Compensation for lost services of an employee : pure economic loss and per quod action

Under the common law an employer may take action against a defendant for the loss of an employee’s services due to the act of the defendant (per quod servitium amisit - by reason of which the services were lost). The High Court has recently affirmed the existence of this ancient tort in Barclay v Penberthy [2012] HCA 40.

Setting aside default judgment - whether judgment regularly or irregularly entered - service under Corporations Act 2001 (Cth) s109X(1) - requirements for affadavit of service

In Hill v Robertson Suspension Systems Pty Ltd [2009] QDC 165 McGill DCJ considered the procedural requirements for the service of originating process on a company, and for proving that service for the purpose of obtaining default judgment.The judge’s views adopt a strict and technical construction of the requirements for an affidavit of service under r 120(1)(b). Though clearly obiter, they may well affect the approach taken on applications to enter or set aside default judgments in the lower courts. Pending further judicial consideration of the issue, it is suggested the prudent course is to ensure that the deponent of an affidavit for service effected under s 109X(1)(a) of the Act deposes not only to the location of the registered office of the company but also, at a minimum, provides the source of that information.

Community health workers' response to violence against women

This paper reports on a qualitative study of community health workers from a predominantly rural based region in Queensland. The purpose of this study was to determine the community health worker barriers to identification, assessment and intervention on the issue of violence against women. The qualitative research method comprised five structured focus group interviews with 28 community health workers using open-ended questions to explore their perceptions. Analysis of the focus group data revealed that community health workers expressed reluctance to become involved in cases of violence against women. The reasons they provided are grouped under three main themes: barriers to identification; barriers to assessment; and barriers to intervention. Training programs offered to rural community health workers need to be aware of the barriers to identifying, assessing and intervening in cases of violence against women that are highlighted by this study. Further studies are needed to assess the wider relevance of these findings to other groups of community health workers in rural and non-rural settings.

Analysing the Prospects of a Successful Application Under s 180 of the Property Law Act 1974 (Qld)

Section 180 of the Property Law Act 1974 (Qld) makes provision for an applicant to seek a statutory right of user over a neighbour’s property where such right of use is reasonably necessary in the interests of effective use in any reasonable manner of the dominant land. In recent years, the Queensland courts have been confronted with a number of such applications. Litigation has also been common in New South Wales which has a statutory provision in largely similar terms. This article seeks to identify those factors that have underpinned successful applications, the obstacles that an applicant may encounter and the considerations that have guided the courts when considering the associated issues of compensation and costs.

Practice and Procedure - Personal Injuries Proceedings Act 2002 - whether "urgent need" under s43 to start proceeding notwithstanding non-compliance with chapter 2 part 1

In Lamb v State of Queensland [2003] QDC 003 McGill DCJ considered an application under s43 of the Personal Injuries Proceedings Act 2002. That provision permits the court to give a claimant leave to start a proceeding notwithstanding non-compliance with part 1 of chapter two of the Act, "if the court is satisfied there is an urgent need to start the proceeding."

Mandatory offers under the Motor Accident Insurance Act 1994 - with interest please!

In Windon v Edwards [2005] QDC 029 Robin QC DCJ considered the cost consequence of mandatory final offers under the Motor Accident Insurance Act 1994 (Qld)

Practice and Procedures - costs - offer to settle by plaintiff under UCPR r360 for amount of claim plus costs

In JLG Industries Inc v Teetree Pty Ltd [2002] QDC 031 the court considered the implications in terms of costs of an offer to settle by the plaintiff under the UCPR where the element of compromise involved only acceptance of the amount of claim without interest.

Personal injury in motor accident in NSW - procedural requirements under Motor Accidents Insurance Act 1988 (NSW)

In Hooper v Robinson [2002] QDC 080 (District Court of Queensland, D 4841 of 2001, McGill DCJ, 19.4.2002) McGill DCJ considered the application of the decision in John Pfeiffer Pty Ltd v Rogerson [2000] 203 CLR 503 to notice requirements such as in s42 of NSW Motor Accident Insurance Act 1988 and concluded such provisions are now substantive.

The caveat in Queensland : getting it off!

This article critically analyses the provisions by which a caveat against dealings may be cleared from a land title in Queensland, namely ss 126, 127 and 128 of the Land Title Act 1994(Qld). It includes a comparison of the current provisions with the pre-existing law and provides a comprehensive guide as to the circumstances in which, and the manner by which, the current provisions may be utilised to clear caveats from land titles in Queensland.

Solicitors who commence a proceeding without authority act at their peril

In Nominal Defendant v Kisse [2001] QDC 290 a person suffered personal injury caused by a motor vehicle in circumstances where there was a cause of action to which the Motor Accident Insurance Act 1994 applied. The person died before taking the steps required under Pt 4 of the Act and before commencing litigation to enforce that cause of action. The decision also involved a costs order against solicitors on an indemnity basis, providing a timely reminder to practitioners of the importance of ensuring they have proper authority before commencing any court proceedings.

Breaches of lease between exercise of option to renew and expiry of lease in Queensland

The decision of Greppo v Jam-Cal Bundaberg Pty Ltd [2015] QCA 131 illustrates a defect in s 128 of the Property Law Act 1974(Qld) which gives a right to a lessee to apply for relief against forfeiture against loss of a right to exercise an option to renew. The defect arises because the legislation does not adequately deal with breaches that occur after the exercise of the option but before the expiry of the lease. Most commercial leases of all kinds have a standard provisions, as the lease in this case, as a conditions of the exercise of the option to renew that the lessee will have given notice of exercise within the time specified to the lessor and will have up to the date of expiry of the lease paid all rent and observed all lessee’s covenants. The difficulties occur because invariably an option must be exercised before the expiry of the lease when a lessee may not be in breach of the lease but may later prior to the expiry of the lease fall into breach. As this decision indicates,at least in Queensland, that the lessee who desires to challenge the lessor’s right to enforce those conditions can neither seek relief under s 128 against forfeiture of the right to exercise the option ,or indeed, under s 124 of the Property Law Act 1974 to preserve the agreement for lease brought about by the otherwise regular exercise of the option to renew. The decision cries out for legislative reform along the lines of s 133E of the Conveyancing Act 1919(NSW) which was amended in 2001 to meet this contingency.

Questions & Answers About Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination on the basis of disability. Title I of the ADA makes it unlawful for any employer to discriminate against a qualified applicant or employee because of a disability in any aspect of employment. The ADA covers employers with 15 or more employees, including state and local governments. Section 501 of the Rehabilitation Act provides the same protections for federal government employees and applicants. In addition, most states have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and provide protections in addition to those available under the ADA.

Pacific Salmon, Oncorhynchus spp., and the Definition of "Species" Under the Endangered Species Act

For purposes ofthe Endangered Species Act (ESA), a "species" is defined to include "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. "Federal agencies charged with carrying out the provisions of the ESA have struggled for over a decade to develop a consistent approach for interpreting the term "distinct population segment." This paper outlines such an approach and explains in some detail how it can be applied to ESA evaluations of anadromous Pacific salmonids. The following definition is proposed: A population (or group of populations) will be considered "distinct" (and hence a "species ")for purposes of the ESA if it represents an evolutionarily significant unit (ESU) of the biological species. A population must satisfy two criteria to be considered an ESU: 1) It must be substantially reproductively isolated from other conspecific population units, and 2) It must represent an important component in the evolutionary legacy of the species. Isolation does not have to be absolute, but it must be strong enough to permit evolutionarily important differences to accrue in different population units. The second criterion would be met if the population contributes substantially to the ecological/genetic diversity of the species as a whole. Insights into the extent of reproductive isolation can be provided by movements of tagged fish, natural recolonization rates observed in other populations, measurements of genetic differences between populations, and evaluations of the efficacy of natural barriers. Each of these methods has its limitations. Identification of physical barriers to genetic exchange can help define the geographic extent of distinct populations, but reliance on physical features alone can be misleading in the absence of supporting biological information. Physical tags provide information about the movements of individual fish but not the genetic consequences of migration. Furthermore, measurements ofc urrent straying or recolonization rates provide no direct information about the magnitude or consistency of such rates in the past. In this respect, data from protein electrophoresis or DNA analyses can be very useful because they reflect levels of gene flow that have occurred over evolutionary time scales. The best strategy is to use all available lines of evidence for or against reproductive isolation, recognizing the limitations of each and taking advantage of the often complementary nature of the different types of information. If available evidence indicates significant reproductive isolation, the next step is to determine whether the population in question is of substantial ecological/genetic importance to the species as a whole. In other words, if the population became extinct, would this event represent a significant loss to the ecological/genetic diversity of thes pecies? In making this determination, the following questions are relevant: 1) Is the population genetically distinct from other conspecific populations? 2) Does the population occupy unusual or distinctive habitat? 3) Does the population show evidence of unusual or distinctive adaptation to its environment? Several types of information are useful in addressing these questions. Again, the strengths and limitations of each should be kept in mind in making the evaluation. Phenotypic/life-history traits such as size, fecundity, and age and time of spawning may reflect local adaptations of evolutionary importance, but interpretation of these traits is complicated by their sensitivity to environmental conditions. Data from protein electrophoresis or DNA analyses provide valuable insight into theprocessofgenetic differentiation among populations but little direct information regarding the extent of adaptive genetic differences. Habitat differences suggest the possibility for local adaptations but do not prove that such adaptations exist. The framework suggested here provides a focal point for accomplishing the majorgoal of the Act-to conserve the genetic diversity of species and the ecosystems they inhabit. At the same time, it allows discretion in the listing of populations by requiring that they represent units of real evolutionary significance to the species. Further, this framework provides a means of addressing several issues of particular concern for Pacific salmon, including anadromous/nonanadromous population segments, differences in run-timing, groups of populations, introduced populations, and the role of hatchery fish.

Annotation of Case C-272/94, Criminal proceedings against Michel Guiot and Climatec SA, ECR 1996 I-1905

Employer's contributions - Loyalty stamps - Bad-weather stamps - Freedom to provide services - Posted Workers

The Victim Test under the Human Rights Act 1998 and its Implications for Domestic Violence Cases

The European Court of Human Rights has now clearly established that domestic violence constitutes a human rights issue. However, there are a number of difficulties involved in using the Human Rights Act 1998 in relation to violence against women in the home. One of these obstacles is the restrictive test of standing found in the Act, which is problematic as regards an ‘unseen crime’ such as domestic violence. This article examines this test of standing and the difficulties it poses in the context of violence against women in the home. It then considers alternative models for the standing requirement and assesses whether a change in the test of standing would produce beneficial results as regards the issue of domestic violence.