Statutory right of user imposed for landlocked land

The decision of McMurdo J in Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259 concerned an application under s 180 of the Property Law Act 1974 (Qld) for a statutory right of user.

Encroachment: what cost a pool with ocean views?

In Shadbolt v Wise [2002] QSC 348 the applicants were seeking relief under s184 of the Property Law Act 1974 (Qld) in respect of an encroachment that they constructed on land belonging to the adjacent owner. The encroachment in question consisted of slightly less than one half of an elaborate pool and pool enclosure (the area of the encroachment being approximately 108 square metres). The land upon which the encroachment was situated was elevated with distant ocean views.

Joinder to a later unsigned document?

It is well known that a statutory requirement of formality is associated with contracts concerning land. In this regard, s 59 of the Property Law Act 1974 (Qld) provides: No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised. In addition to the possibility of a formal contract, the statutory wording clearly contemplates reliance on an informal note or memorandum. To constitute a sufficient note or memorandum for the purposes of the statute, the signed note or memorandum must contain details of the parties to the contract, an adequate description of the property, the price and any other essential terms. It is also accepted that the doctrine of joinder may be invoked in circumstances where the document signed by the party to be charged contains an express or implied reference to any other document. In this way, a sufficient note or memorandum may be constituted by the joinder of a number of documents.

A superannuation fund as a buyer?

In Bennett v Stewart McMurdo J considered the operation of a contract where the buyer was described as a superannuation fund. The Bennetts signed a standard REIQ contract as buyers of the Stewarts’ house and land. However, the reference schedule to the contract document contained these words next to the word ‘buyer’: ‘Bennett Superannuation Fund’ The Bennetts wished to enforce the contract. In response, the Stewarts (the sellers) raised two issues: • As the ‘Bennett Superannuation Fund’ was a trust and not a distinct legal entity capable of making a contract, the contract did not specify who was the buyer, so that the contract was void for uncertainty; and • The contract was unenforceable as there was no sufficient note or memorandum for the purposes of s 59 of the Property Law Act 1974 (Qld) as s 59 requires, amongst other things, an identification of the parties. McMurdo J did not accept either of these arguments and made an order for specific performance in favour of the Bennetts. Looking at each issue separately:

The treatment of employee priority in a deed of company arrangement

This article examines one of the changes implemented in the Corporations Amendment (Insolvency) Act 2007 (Cth) . It is argued that the insertion of s 444DA raises some matters that go to the nature of the insolvency process generally and the operation of Pt 5.3A in a particular. The position of employees in insolvency is a matter that is the subject of much comment from a policy perspective. This article does not cover that debate but provides some initial explanation of the need to protect employees. The second part of the article covers the particular background to the voluntary administration system as far as employee rights are concerned as well as the arguments put forward by the government to justify the change in the legislation which inserted s 444DA . It suggests that there was little evidence provided for the need to protect employee priority rights in this particular way. An alternative explanation is given for the change adopted by the government. The third part of the article suggests that the manner in which the legislation seeks to better protect employee creditors is somewhat clumsy in its operation. It raises a number of questions about how the legislation may operate and argues that given the stated aims, some alteration to it would improve its effectiveness.

Floods, earthquakes and insurance coverage : issues, problems and solutions

The recent floods in Queensland and elsewhere in Australia as well as the recent earthquakes in New Zealand have again given rise to very significant uninsured losses. This article looks at the issue of cover protection against catastrophes such as floods and earthquakes affecting home buildings and contents insurance and the standard cover provisions of the Insurance Contracts Act 1984 (Cth). It points also to the possibility of a national scheme to cover natural disasters including floods.

The conceptual and operational compatibility of data breach notification and information privacy laws

Mandatory data breach notification laws are a novel and potentially important legal instrument regarding organisational protection of personal information. These laws require organisations that have suffered a data breach involving personal information to notify those persons that may be affected, and potentially government authorities, about the breach. The Australian Law Reform Commission (ALRC) has proposed the creation of a mandatory data breach notification scheme, implemented via amendments to the Privacy Act 1988 (Cth). However, the conceptual differences between data breach notification law and information privacy law are such that it is questionable whether a data breach notification scheme can be solely implemented via an information privacy law. Accordingly, this thesis by publications investigated, through six journal articles, the extent to which data breach notification law was conceptually and operationally compatible with information privacy law. The assessment of compatibility began with the identification of key issues related to data breach notification law. The first article, Stakeholder Perspectives Regarding the Mandatory Notification of Australian Data Breaches started this stage of the research which concluded in the second article, The Mandatory Notification of Data Breaches: Issues Arising for Australian and EU Legal Developments (‘Mandatory Notification‘). A key issue that emerged was whether data breach notification was itself an information privacy issue. This notion guided the remaining research and focused attention towards the next stage of research, an examination of the conceptual and operational foundations of both laws. The second article, Mandatory Notification and the third article, Encryption Safe Harbours and Data Breach Notification Laws did so from the perspective of data breach notification law. The fourth article, The Conceptual Basis of Personal Information in Australian Privacy Law and the fifth article, Privacy Invasive Geo-Mashups: Privacy 2.0 and the Limits of First Generation Information Privacy Laws did so for information privacy law. The final article, Contextualizing the Tensions and Weaknesses of Information Privacy and Data Breach Notification Laws synthesised previous research findings within the framework of contextualisation, principally developed by Nissenbaum. The examination of conceptual and operational foundations revealed tensions between both laws and shared weaknesses within both laws. First, the distinction between sectoral and comprehensive information privacy legal regimes was important as it shaped the development of US data breach notification laws and their subsequent implementable scope in other jurisdictions. Second, the sectoral versus comprehensive distinction produced different emphases in relation to data breach notification thus leading to different forms of remedy. The prime example is the distinction between market-based initiatives found in US data breach notification laws compared to rights-based protections found in the EU and Australia. Third, both laws are predicated on the regulation of personal information exchange processes even though both laws regulate this process from different perspectives, namely, a context independent or context dependent approach. Fourth, both laws have limited notions of harm that is further constrained by restrictive accountability frameworks. The findings of the research suggest that data breach notification is more compatible with information privacy law in some respects than others. Apparent compatibilities clearly exist as both laws have an interest in the protection of personal information. However, this thesis revealed that ostensible similarities are founded on some significant differences. Data breach notification law is either a comprehensive facet to a sectoral approach or a sectoral adjunct to a comprehensive regime. However, whilst there are fundamental differences between both laws they are not so great to make them incompatible with each other. The similarities between both laws are sufficient to forge compatibilities but it is likely that the distinctions between them will produce anomalies particularly if both laws are applied from a perspective that negates contextualisation.

Phase two of the National Credit Reforms : examining the regulation of payday lenders

This study seeks to analyse the adequacy of the current regulation of the payday lending industry in Australia, and consider whether there is a need for additional regulation to protect consumers of these services. The report examines the different regulatory approaches adopted in comparable OECD countries, and reviews alternative models for payday regulation, in particular, the role played by responsible lending. The study also examines the consumer protection mechanisms now in existence in Australia in the National Consumer Credit Protection Act 2009 (Cth) (NCCP) and the National Credit Code (NCC) contained in Schedule 1 of that Act and in the Australian Securities and Investments Commission Act 2001 (Cth).

Practice and procedure : an application under r367 of the Uniform Civil Procedure Rules may be of use in obtaining copies of otherwise unavailable documents held by government agencies.

In Bowenbrae Pty Ltd v Flying Fighters Maintenance and Restoration [2010] QDC 347 Reid DCJ made orders requiring the plaintiffs to make application under the Freedom of Information Act 1982 (Cth) (“the FOI Act”) for documents sought by the defendant.

Special Measures in Indigenous Welfare Reform: Examining the Cape York Trial

The Cape York Welfare Reform (‘CYWR’) trial was due to expire at the end of 2011. In October 2011, the Queensland Government voted to extend the trial until the end of 2013. In November 2011, the Federal Minister for Indigenous Affairs announced changes to the Social Security (Administration) Act 1999 (Cth) that will extend another similar welfare reform, the School Enrolment and Attendance through Welfare Reform Measure (‘SEAM’), throughout other parts of Australia. This article examines the CYWR with reference to the Racial Discrimination Act 1975 (Cth) (‘RDA’), using the data available in the publications from the Family Responsibilities Commission (‘FRC’).It finds no clear evidence that the reforms have been effective in improving social conditions thus far and, as such, serious concerns as to whether the CYWR breaches the RDA.

Green leases : becoming a reality

Only a few years ago there were only a handful of buildings in Australia, mainly leased by or from the Commonwealth Government to which a green lease might have application. Now with the passing of the Building Energy Efficiency Disclosure Act 2010 (Cth) all commercial office premises in excess of 2000 square metres have 12 months from 1 November 2010 to obtain a Building Energy Efficiency Certificate as part of Stage 1 of the Federal Government’s National Framework for Energy Efficiency This significant change has focused attention on changes required to the conditions of leases where the building has a NABERS rating. This article considers material from the United Kingdom, the United States and Canada where there are similar policy changes in play and makes suggestions as to how certain clauses of a standard lease of a commercial office block may be altered to meet this new regime.

Get Into Vocational Education (GIVE) Rockhampton Region Pilot Project : Final Report to The John Villiers Trust

This report describes the Get Into Vocational Education (GIVE) pilot project run in the Rockhampton Region at two schools in 2011. The report includes a description of the project, including its aims, budget, and timeline; and the findings in relation to each of the three major objectives of the project, namely (a) build awareness of, interest in, and familiarity with, trades as a future vocation and opportunity for advancement; (b) enhance literacy, numeracy and science knowledge and performance; and (c) provide motivation and engagement to stay on at school and build towards a productive future. The clear findings of the GIVE Rockhampton Region pilot project are that, for students at risk in terms of school attendance, engagement and learning: (1) awareness of trade practices in horticulture, hospitality, retail, and design and engineering, literacy, mathematics and science knowledge, and motivation and engagement all improve and, in most cases, dramatically improve, in the GIVE structure; and (2) the crucial factor in the GIVE structure that gives the improvement is the integration of classroom work with trades experiences and not the classroom and trades experiences themselves (although it is better if these are good).

Mandatory auditor rotation : Australian evidence

A key part of the auditor independence reforms in Australia, as represented by Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth) (CLERP 9), mandates audit partner rotation. The change was criticised predominantly due to the costs imposed on both the audit firms and the audit clients. This study examines the Australian experience post-CLERP 9 with mandated auditor rotation. Based on data of audit partner rotation over 2003–2009 (on average 1200 listed Australian companies over the sample period), we show that audit partner tenure sat at a median of 2–3 years, but that the maximum audit partner tenure was as high as 20 years in the pre-CLERP 9 period. For around 85% of the market, audit partner rotation occurred voluntarily at between 1–5 years. The interesting result is that for 15% of the market, the mandated audit partner rotation had a significant impact on corporate governance practice. There is also a greater observed impact of mandatory rotation on audit engagements involving the non-global auditing firms. These findings inform the debate as to the ‘costliness’ of the law reform.

Battling in a virtual world: a proposal for increased copyright protection of multimedia products in Australia

This article discusses the adequacy of copyright protection afforded to multimedia products pursuant to the Copyright Act 1968 (Cth) and in response to international obligations. The paper critically evaluates the effect that the most recent amendments to the Copyright Act have had on the protection of copyright in multimedia products. An outline of some practical measures of protection available to copyright owners as alternatives or complements to the current statutory regime is provided, ultimately concluding that the current legislative protection is ineffective. The paper closes by considering possible future reform by way of statutory amendments to the Copyright Act aimed at increasing protection of copyright in multimedia products.

The Australian Consumer Law (2nd ed.)

The purpose of this book is to summarise and explain the substantive rights of consumers, and the obligations of businesses under the Australian Consumer Law (ACL). Since the first edition there have been two significant legislative developments at the Federal and State level which have been incorporated into this edition. The Competition and Consumer Legislation Amendment Act 2011 (Cth), which amends the provisions of the ACL relating to unconscionable conduct, took effect from 1 January 2012. In addition to this the Fair Trading Act 1999 (Vic) has been replaced by the Australian Consumer Law and Fair Trading Act 2012 (Vic), which applies the ACL as a law of the State of Victoria.