Receivers' future liability for costs

In Juniper Property Holdings No.15 Pty Ltd v Caltabiano [2015] QSC 95, Jackson J considered what he described as a 'novel point' as to whether the court had jurisdiction to make a determination of the liability of receivers and managers appointed to the plaintiff to pay any costs orders that may be made in favour of the defendant.

The impact of the health insurance program on the near-poor in Vietnam

This thesis is a cross-sectional study of a health insurance scheme for a representative sample of the near-poor in Cao Lanh district, Dong Thap province, Vietnam. It examines insurance coverage, health service utilisation, out-of-pocket expenditures and their associated factors. The research findings contribute evidence for policy makers who seek to improve the health insurance scheme for socioeconomically disadvantaged people in Vietnam, which is an important component of national efforts to implement universal health insurance. This community-level research adds to the evidence-base needed to improve the insurance system and thereby influence the quality of health care services.

'I love PEMCO' : Creating conversation worthy buzz in the insurance industry with word of mouth marketing

Surveys by PR-COM, a communications agency, indicate that leading German companies (1) have not recognized the relevance of social media yet or (2) have difficulties with implementing the concept (Meiners et al. 2010). For example, a survey among DAX-companies indicates that their social media activities are “lückenhaft und halbherzig” (PR-COM 2009). Another survey in the German IT industry shows that less than a third had a German and/or English blog (PR-COM 2010), even though blogging is considered a key tool for marketing communications. However, firms “that are not present on social media run the risk of not being in the position to build a positive reputation or to correct negative comments” (Meiners et al. 2010).

Don't argue with the ref! - Legal liability for incorrect decisions of sports' officials

This paper continues the conversation from recent articles examining potential remedies available for incorrect decisions by sports officials. In particular, this article focuses on bringing an action against an official in negligence for pure economic loss. Using precedent cases, it determines that such an action would have a low chance of success, as a duty of care would be difficult to establish. Even if that could be overcome, an aggrieved player or team would still face further hurdles at the stages of breach, causation and defences. The article concludes by proposing some options to further reduce the small risk of liability to officials.

Medical negligence, causation and 'exceptional cases' under the civil liability legislation

Under the civil liability legislation enacted in most Australian jurisdictions, factual causation will be established if, on the balance of probabilities, the claimant can prove that the defendant's negligence was 'a necessary condition of the occurrence of the [claimant's] harm'. Causation will then be satisfied by showing that the harm would not have occurred 'but for' the defendant's breach of their duty of care. However, in an exceptional or appropriate case, sub-section 2 of the legislation provides that if the 'but for' test is not met, factual causation may instead be determined in accordance with other 'established principles'. In such a case, 'the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed' on the negligent party.

Accountability of insurers under s 54: Striking the balance between commerciality and consumer protection

Section 54 of the Insurance Contracts Act 1984 (Cth) continues to occupy a prominent position in insurance-related litigation. This section which imposes a concept of causation, or prejudice to the insurer, to restrict an insurer’s reliance upon contractual terms to avoid liability for particular claims, is often before the courts. This note focuses upon the recent High Court of Australia decision in Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33.

Accountability 30 years on: Insurance Contracts Act Reform

The Insurance Contracts Act 1984 (Cth) since inception has effected major reform to the law in this field. One of Australia’s most frequently cited pieces of legislation, it has had a major impact upon the law and practice of insurance. Given the importance of insurance to domestic and commercial activity and its pivotal position as a mechanism to manage exposure to risk, it is not surprising that this legislation has been the subject of extensive analysis in the courts and in legal literature. Furthermore the Act has, arising out of a 2009 review, been significantly amended by the Insurance Contracts Amendment Act 2013 (Cth). The principal amendments introduced are: two-fold: the Insurance Contracts Act 1984 (Cth) has been amended so that a failure to comply with the duty of good faith is now a breach of the Act; and disclosure and misrepresentation provisions under the Insurance Contracts Act 1984 (Cth) are amended and clarified.

Liability and statutory defence in Queensland

Context Increasing client awareness of valuer's duty of care - Webb Resolutions Ltd v E.Surv Ltd [2012] - Provident Capital Limited v John Virtue Pty Ltd (No 2) [2012] - Including disciplinary actions: Valuers Registration Board of Qld v Conroy [2013] QCAT 688 combined with Post-GFC ‘drops’ in value!

Social audit failure: Legal liability of external auditors

In this chapter, we look at the step beyond reporting, to the external audit or assurance function. The role of any audit engagement is to provide a professional opinion on a set of financial or non-financial assertions reported by an organization's management, based on an agreed evaluative framework. Any such opinion is not a guarantee that the underlying report is free from fraud or misstatement. Where an audit opinion on financial statements is incorrect, this is referred to as an audit failure. Specifically, the textbook definition of audit failure has two components: that the financial statements contain a serious error and that the auditor has failed to detect the error due to the auditor's failure during the audit process.

Moments of flux in intermediary liability for copyright infringement

This chapter provides an overview of a recent shift in regulatory strategies to address copyright infringement toward enlisting the assistance of general purpose Internet Service Providers. In Australia, the High Court held in 2012 that iiNet, a general purpose ISP, had no legal duty to police what its subscribers did with their internet connections. We provide an overview of three recent developments in Australian copyright law since that decision that demonstrate an emerging shift in the way that obligations are imposed on ISPs to govern the actions of their users without relying on secondary liability. The first is a new privately negotiated industry code that introduces a 'graduated response' system that requires ISPs to pass on warnings to subscribers who receive allegations of infringement. The second involves a recent series of Federal Court cases where rightsholders made a partially successful application to require ISPs to hand over the identifying details of subscribers whose households are alleged to have infringed copyright. The third is a new legislative scheme that will require ISPs to block access to foreign websites that 'facilitate' infringement. We argue that these shifts represent a greater sophistication in approaches to enrolling general purpose intermediaries in the regulatory project. We also suggest that these shifts represent a potentially disturbing trend towards enforcement of copyright law in a way that does not provide strong safeguards for the legitimate constitutional due process interests of users. We conclude with a call for greater attention and research to better understand how intermediaries make decisions when governing the conduct of users, how those decisions may be influenced by both state and non-state actors, and how the rights of individuals to due process can be adequately protected.

Evidence in view: Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256

Rule 478 of the Uniform Civil Procedure Rules 1999 (Qld)(view by court) is silent as to the manner in which a court might be expected to exercise the discretion to order an inspection or demonstration under the rule and also as to the use which may be made of any inspection or demonstration ordered. The decision in Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256 provides guidance on both matters. This case provides some guidance on the circumstances in which a court may exercise its discretion to order a view or demonstration

The Benefits Planner: Improved Work Incentives in Social Security Disability Insurance Program - Changes Will Make Work More Attractive to SSDI Recipients

This newsletter will provide valuable information on how work for persons with disabilities effects government benefits, with an emphasis on the Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) work incentives. Each newsletter will contribute to an ongoing dialogue on topics related to benefits and work.

Duty and Control in Intermediary Copyright Liability: An Australian Perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This chapter argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Decision examines wrongdoers and liability

In Ligon Sixty-Three Pty Ltd v ClarkeKann [2015] QSC 153 the court considered an application to join parties as defendants when it was alleged they were concurrent wrongdoers for the purpose of the proportionate liability provisions of the Civil Liability Act 2003 (Qld) (the Act).

Impact of dental insurance on adults’ oral health care in Tehran, Iran.

The aim of the present study was to determine relationships between insurance status and utilization of oral health care and its characteristics and to identify factors related to insured patients’ selection of dental clinic or dentist. The study was based on cross-sectional data obtained through phone interviews. The target population included adults in the city of Tehran. Using a two-stage stratified random technique, 3,200 seven-digit numbers resembling real phone numbers were drawn; when calling, 1,669 numbers were unavailable (busy, no answer, fax, line blocked). Of the 1,531 subjects who answered the phone call, 224 were outside the target age (under 18), and 221 refused to respond, leaving 1,086 subjects in the final sample. The interviews were carried out using a structured questionnaire and covered characteristics of dental visits, the respondent’s reason for selecting a particular dentist or clinic and demographic and socio-economic background (gender, age, level of education, income, and insurance status). Data analysis included the Chi-square test, ANOVA, and logistic regression and the corresponding odds ratios (OR). Of all the 1,086 respondents, 57% were women, 62% were under age 35, 46% had a medium and 34% a high level of education, 13% were under the poverty line, and 70% had insurance coverage; 64% with the public, and 6% with a commercial insurance. Having insurance coverage was more likely for women (OR=1.5), for those in the oldest age group (OR=2.0), and for those with a high level of education (OR=2.5). Of those with dental insurance, 54% reported having had a dental visit within the past 12 months ; more often by those with commercial insurance in comparison with public (65% vs. 53% p<0.001). Check-up as the reason for the most recent visit occurred most frequently among those with commercial insurance (28%) compared with those having public insurance (16%) or being non-insured (13%) (p<0.001). Having had two or more dental visits within the past 12 months was most common among insured respondents, when compared with the non-insured (31% vs. 22% p=0.01). The non-insured respondents reported tooth extractions almost twice as frequently as did the insured ones (p<0.001). Of the 726 insured subjects, 60% selected fully out-of-pocket-paid services (FOP), and 53% were unaware of their insurance benefits. Of those who selected FOP, good interpersonal aspects (OR=4.6), being unaware of dental insurance benefits (OR=4.6), and good technical aspects (OR=2.3) as a reason had greater odds of selecting FOP. The present study revealed that dental insurance was positively related to demand for oral health care as well as to utilization of services, but to the latter with a minor extent. Among insured respondents, despite their opportunity to use fully or highly subsidized oral health care services, good interpersonal relationship and high quality of services were the most important factors when an insured patient selected a dentist or a clinic. The present findings indicate a clear need to modify dental insurance systems in Iran to facilitate optimal use of oral health care services to maximize the oral health of the population. A special emphasis in the insurance schemes should be focused on preventive care.