Judicial intervention in the affairs of unincorporated religious associations in New South Wales

The leading Australian High Court case of Cameron v Hogan (1934) 51 CLR 358 confirmed that associations which are 'social, sporting, political, scientific, religious, artistic or humanitarian in character’, and not formed ‘for private gain or material advantage’, are usually formed on a basis of mutual consent. Unless there is some clear, positive indication that the members wish to relate to each other in a legal fashion, the rules of the association will not be treated as an enforceable contract in contrast to the rules of incorporated bodies. Australian unincorporated associations experiencing internal disputes, like those in most other common law jurisdictions, have found courts reluctant to provide a remedy unless there is a proprietary interest or trust to protect. This is further compounded by the judicial view that an unincorporated association has no legal recognition as a ‘juristic person’. The right to hold property and the ability to sue and be sued are incidences of this recognition. By contrast, the law recognises ‘artificial’ legal persons such as corporations, who are given rights to hold property and to sue and be sued. However, when a number of individuals associate together for a non-commercial, lawful purpose, but not by way of a corporate structure, legal recognition ‘as a group’ is denied. Since 1934, a significant number of cases have distinguished or otherwise declined to follow this precedent of the High Court. A trenchant criticism is found in McKinnon v Grogan [1974] 1 NSWLR 295, 298 where Wootten J said that ‘citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions’. According to Wootten J at 298, if disputes are not settled by the courts, this would create a ‘legal-no-man's land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations, but by deceit, craftiness, and an arrogant disregard of rights’. Cameron v Hogan was decided in 1934. There is an increasing volume of first instance cases which distinguish or, in the words of Palmer J, ‘just pay lip service’ to this High Court decision. (Coleman v Liberal Party of Australia (2007) 212 FLR 271, 278). The dissenting cases seem to call for a judicial policy initiative. This would require recognition by judges that voluntary associations play a significant role in society and that members have a legitimate, enforceable expectation that the rules of the association will be observed by members and in the last resort, enforced by the courts without the need to prove contractual intention, the existence of a trust or the existence of a right of a proprietary nature. This thesis asks: what legal, as distinct from political, redress does an ordinary member have, when a rule is made or a process followed which is contrary to the underlying doctrines and philosophies embodied in the constitutional documents of an unincorporated religious association? When, if at all, will a court intervene to ensure doctrinal purity or to supervise the daily life of a large unincorporated religious association? My research objective is to examine and analyse leading cases and relevant legislation on the enforceability of the constitutions of large, unincorporated, religious associations with particular reference to the Anglican Church in New South Wales. Given its numerical size, wide geographical spread and presence since the foundation of New South Wales, the Anglican Church in New South Wales, contains a sufficient variety of ‘real life’ situations to be representative of the legal issues posed by Cameron v Hogan which may be faced by other large, unincorporated, religious associations in New South Wales. In contemporary society, large, unincorporated, religious associations play an important community role. The resolution of internal disputes in such associations should not remain captive to legal doctrines of an earlier age.

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.

Living a managed community lifestyle : lessons from Queensland

Purpose - The paper aims to improve consumer awareness of the complexities of community living. It does this by clarifying how living in a managed community is different from a ‘traditional’ neighbourhood; and identifying matters that can become disputes Design/methodology/approach - The paper builds on research by other authors into strata scheme disputes by examining recent Queensland cases. Findings - Many disputes appear to result from a lack of understanding of the complexities of community living. Matters that should be able to be easily resolved are therefore escalated to formal disputes. Research limitations/implications - The paper considers law and cases from Queensland. The types of matters considered, however, are relevant for any managed community and therefore the research is relevant for all jurisdictions. The research will be of particular interest to jurisdictions looking to boost living density by increasing the development of managed communities. Practical implications - The research will assist in consumer transactions by providing guidance as to the matters to be considering prior to moving into a managed community. More informed decision making by prospective residents will lead to a decreased likelihood of disputes arising. Originality/value - The paper is an up-to-date consideration of the issues arising from community living. It highlights the benefits arising from increased consumer awareness of the complexities of community living and the potential for consumer education to reduce the number of disputes.

Evaluating consent and legitimacy amongst shifting community norms : an EVE Online case study

The legitimate resolution of disputes in online environments requires a complex understanding of the social norms of the community. The conventional legal approach to resolving disputes through literal interpretation of the contractual terms of service is highly problematic because it does not take into account potential conflict with community expectations. In this paper we examine the importance of consent to community governance and argue that a purely formal evaluation of consent is insufficient to legitimately resolve disputes. As online communities continue to grow in importance to the lives of their participants, the importance of resolving disputes legitimately, with reference to the consent of the community, will also continue to grow. Real consent, however, is difficult to identify. We present a case study of botting and real money trading in EVE Online that highlights the dynamic interaction of community norms and private governance processes. Through this case study, we argue that the major challenge facing regulators of online environments is that community norms are complex, contested, and continuously evolving. Developing legitimate regulatory frameworks then depends on the ability of regulators to create efficient and acceptable modes of dispute resolution that can take into account (and acceptably resolve) the tension between formal contractual rules and complex and conflicting community understandings of acceptable behaviour.

Determinants of contractor satisfaction

Performance in the construction industry is increasingly scrutinized as a result of the delays, cost overruns and poor quality of the industry’s products and services. Increasingly, disputes, conflicts and mismatches of objectives among participants are contributory factors. Performance measurement approaches have been developed to overcome these problems. However, these approaches focus primarily on objective measures to the exclusion of subjective measures, particularly those concerning contractor satisfaction (Co-S). The contractor satisfaction model (CoSMo) developed here is intended to rectify the situation. Data derived from a questionnaire survey of 75 large contractors in Malaysia in respect of a key project are analysed to identify participant factors and their strength of relationship with Co-S dimensions. The results are presented in the form of eight regression equations. The outcome is a tool for use by project participants to provide a better understanding of how they, and the project, affect contractor satisfaction. The developed model sheds some light on a hitherto unknown aspect of construction management in providing an increased awareness of the importance of major Malaysian construction contractors’ needs in the execution of successful projects.

The significance of owner participation for a successful detached housing development in Malaysia

The detached housing scheme is a unique and exclusive segment of the residential property market in Malaysia. Generally, the product is expensive and for many Malaysians who can afford them, owning a detached house is a once in a lifetime opportunity. In spite of this, most of the owners failed to fully comprehend the specific need of this type of housing scheme, increasing the risk of it being a problematic undertaking. Unlike other types of pre-designed "mass housing" schemes, the detached housing scheme may be built specifically to cater the needs and demands of its owner. Therefore, owner participation during critical development stages is vital to guarantee the success of the development as a whole. In addition, due to its unique design the house would have to individually comply with the requirements and regulations of relevant authorities. Failure by the owner to recognise this will result in delays, penalties, disputes and ultimately cost overruns. These circumstances highlight the need for a research to guide the owner through participation during the critical development stages of a detached house. Therefore, this research aims to develop a guideline to improve owner participation for a successful detached house development in Malaysia. To achieve the aim, questionnaire surveys and semi-structured interviews were employed to collect the detached house owners' and consultants' & contractors' responses through their experiences in developing detached houses in Malaysia. Stratified and random sampling were utilised to gather information from both parties to represent Malaysian detached house participants. The questionnaire responses were analysed through the application of quantitative analysis such as descriptive analysis, factor analysis and structural equation modelling which were substantiated through qualitative analysis procedure such as content analysis. This research had identified that in order to produce a successful outcome detached house owners are required to participate during critical stages of the development. In the planning stage, the owner needs to provide proper specific input to the consultant regarding his/her expectations of the cost for the entire development, its detailed specification and general idea of the internal and external design of the detached house and its compound. In the contracting stage, the owner must make the appropriate choice of selecting the right contractor for the job. This decision may be taken after recommendations from the consultants or from the owner's personal contacts or experiences but it is not recommended for the owner to select a contractor primarily on the basis of the lowest bid. In the completion stage, the owner may need to attend a number of important site meetings to ensure that the progress of the works is according to what had been planned and the completion date is achievable. By having the owners undertake an active role during critical stages of the development, not only the quality and delivery of the development improved but also there is an increase in satisfaction to the owners themselves.

Empirical facts : a rationale for expanding lawyers' methodological expertise

This article examines the importance of the social evidence base in relation to the development of the law. It argues that there is a need for those lawyers who play a part in law reform (legislators and those involved in the law reform process) and for those who play a part in formulating policy-based common law rules (judges and practitioners) to know more about how facts are established in the social sciences. It argues that lawyers need sufficient knowledge and skills in order to be able to critically assess the facts and evidence base when examining new legislation and also when preparing, arguing and determining the outcomes of legal disputes. For this reason the article argues that lawyers need enhanced training in empirical methodologies in order to function effectively in modern legal contexts.

Designing REDD+ to be just : considerations for a legally binding instrument

The international climate regime is in the process of negotiating a legally binding instrument concerning Reducing Emissions from Deforestation and Degradation (REDD+). The paper starts by exploring the complex web of decisions and advices that currently regulate REDD+ initiatives within the international climate regime. This is followed by an analysis of justice issues raised by non-state actors in the REDD+ international negotiations. The paper concludes by building on this analysis to identify some relevant considerations when seeking to design a just and legally binding REDD+ instrument. These considerations include: the impact of market- versus fund-based investment channels, the importance of defining a clear objective; the inclusion and role of international principles such as sovereignty, preventative action, common but differentiated responsibility, sustainable development, and Free, Prior, and Informed Consent; the appropriate design of REDD+ safeguards and the inclusion of grievance mechanisms within the instrument which provide guidance on resolving disputes associated with REDD+ investment.

Regulating virtual worlds : considering participant-driven approaches

There are a number of pressing issues facing contemporary online environments that are causing disputes among participants and platform operators and increasing the likelihood of external regulation. A number of solutions have been proposed, including industry self-governance, top-down regulation and emergent self-governance such as EVE Online’s “Council of Stellar Management”. However, none of these solutions seem entirely satisfying; facing challenges from developers who fear regulators will not understand their platforms, or players who feel they are not sufficiently empowered to influence the platform, while many authors have raised concerns over the implementation of top-down regulation, and why the industry may be well-served to pre-empt such action. This paper considers case studies of EVE Online and the offshore gambling industry, and whether a version of self-governance may be suitable for the future of the industry.

Governance challenges in the global games industry

Current governance challenges facing the global games industry are heavily dominated by online games. Whilst much academic and industry attention has been afforded to Virtual Worlds, the more pressing contemporary challenges may arise in casual games, especially when found on social networks. As authorities are faced with an increasing volume of disputes between participants and platform operators, the likelihood of external regulation increases, and the role that such regulation would have on the industry – both internationally and within specific regions – is unclear. Kelly (2010) argues that “when you strip away the graphics of these [social] games, what you are left with is simply a button [...] You push it and then the game returns a value of either Win or Lose”. He notes that while “every game developer wants their game to be played, preferably addictively, because it’s so awesome”, these mechanics lead not to “addiction of engagement through awesomeness” but “the addiction of compulsiveness”, surmising that “the reality is that they’ve actually sort-of kind-of half-intentionally built a virtual slot machine industry”. If such core elements of social game design are questioned, this gives cause to question the real-money options to circumvent them. With players able to purchase virtual currency and speed the completion of tasks, the money invested by the 20% purchasing in-game benefits (Zainwinger, 2012) may well be the result of compulsion. The decision by the Japanese Consumer Affairs agency to investigate the ‘Kompu Gacha’ mechanic (in which players are rewarded for completing a set of items obtained through purchasing virtual goods such as mystery boxes), and the resultant verdict that such mechanics should be regulated through gambling legislation, demonstrates that politicians are beginning to look at the mechanics deployed in these environments. Purewal (2012) states that “there’s a reasonable argument that complete gacha would be regulated under gambling law under at least some (if not most) Western jurisdictions”. This paper explores the governance challenged within these games and platforms, their role in the global industry, and current practice amongst developers in the Australian and United States to address such challenges.

Friendships in the early years

Having a best friend or close friend is closely connected to children’s health and well being in the early years. Having friends safeguards children from social isolation and is associated with academic attainment and social success. In early childhood, children often make friends through play or other shared activities. This chapter investigates friendships and children’s well being in the early years of schooling. Drawing on direct accounts and representations from interviews with young children about friendships, the chapter outlines characteristics of friendship and strategies children use to make friends and manage disputes as they negotiate roles in play and shared spaces. Three key dimensions of friendship are evident in the children’s accounts: friendship is enduring, friendship is mutual and friendship involves an emotional investment. This chapter provides educators with an understanding of the important role that friendships have for happiness and wellbeing in the early years.

Regulating online : participant-driven approaches

This thesis considers and evaluates different approaches to regulating online gaming communities, including traditional top-down regulation, as well as bottom-up and hybrid forms led by participants. I examine the regulatory environment in both the video game and gambling industries through case studies of the science fiction, massively multiplayer game Eve Online and offshore gambling platforms and their community sites. I identify that the participant driven approach to regulation sometimes used in the offshore gambling industry was dependent on a number of factors, notably the strength of the community and the risks to platform operators of negative publicity. By subsequently comparing this to the video gaming industry, I suggest that participant driven processes may be an appropriate way to resolve disputes in the games industry, and show how these are – to a limited extent – already being applied.

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.

Improving construction management : an investigation into the influences of effective stakeholder involvement on project quality outcomes

This research has developed a framework to improve the effectiveness and efficiency of stakeholder involvement during the early planning stages of residential construction projects, in order to improve many of the quality issues that occur during the construction phases of such projects. A mixed methods approach (survey, interviews and case studies) was employed to collect the required data. It is expected that with development, this framework can bring some significant benefits to future construction projects in terms of reducing rework and wastage, improving timely delivery and avoiding disputes. The research is also anticipated to produce three high impact journal articles.