Disclosure of documents and limitation of actions

This article considers the decisions in Stephan v NRMA Insurance Limited [2001]QDC 002 and Bertha v Dragut [2001] QDC 003

Legal professional privilege and disclosure under UCPR - recent cases

This article examines the decisions in Galway v Constable [2001] QSC 180 and Mazelow Pty Ltd v Herberton Shire Council [2001] QSC 250

Removal of a valid caveat - how convenient?

This article analyses in detail the approaches which have been taken when the court has been called upon to order removal of a caveat, particularly in circumstances where the caveat in question is valid as to form and protects a recognisable caveatable interest in land. It examines the question in all jurisdictions, with a primary focus on Western Australia.

Should the court direct that costs ordered to be recovered on the indemnity basis be assessed by reference to a costs agreement between the successful party and their solicitors?

The decision in Hook v Boreham & QBE Insurance (Australia) Limited [2006] QDC 304 considered whether the court should go further than order that costs be assessed on the indemnity basis, but should also specify the basis by which those indemnity costs should be determined. The decision makes it clear that under r704(3) of the Uniform Civil Procedure Rules, questions of that nature are ordinarily preserved to the discretion of the Registrar.

Gratuitous services - Civil Liability Act 2003 s59

The article considers the decision of the Queensland Court of Appeal in Kritz v King [2006] QCA 351, which examined for the first time s59 of the Civil Liability Act 2003 (Qld) in relation to claims for damages for gratuitous services.

Lawyering and Positive Professional Identities

Lawyering and Positive Professional Identities aims to help law students successfully navigate the demands of law studies and legal practice through the development of positive professional legal identities. It does this by focusing on the knowledge, skills and attitudes necessary for law students to be motivated and engaged learners, and psychologically healthy individuals. The text will fill an important gap for many law schools seeking to enact the threshold learning outcomes for law by addressing these important topics in their curricula. It is a valuable guide for all law students who wish to maximise their success and chances of thriving at law school and beyond. Positive lawyering knowledge and practice are central themes of this book, with a particular emphasis on lawyers’ roles as upholders of the rule of law, as dispute resolvers and as ethical professionals. Throughout, the authors provide practical, experience-based advice on the development of core skills for legal education and practice.

The Construction and Performance of Commercial Contracts

This book analyses the principles underlying the construction and application of a number of boilerplate and other clauses commonly included in commercial contracts. The first Part of the work deals with general principles of interpretation. It then considers clauses which allocate commercial risk; clauses relating to performance; clauses introducing new parties by way of assignment, novation or nomination; clauses such as guarantees and indemnities which create liabilities in third parties; and dispute resolution clauses including governing law. The authors highlight common issues surrounding the application of these clauses in practice and, where appropriate, make drafting recommendations based on their analysis of case law and the operation of relevant statutes. This is a very accessible resource for all commercial practitioners.

Women and ADR

Alternative dispute resolution, or ‘ADR’, is defined by the National Alternative Dispute Resolution Advisory Council as: … an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance. A broad range of ADR processes are used in legal practice contexts, including, for example, arbitration, conciliation, mediation, negotiation, conferencing, case appraisal and neutral evaluation. Hybrid processes are also used, such as med-arb in which the practitioner starts by using mediation, and then shifts to using arbitration. ADR processes generally fall into one of three general categories: facilitative, advisory or determinative. In a facilitative process, the ADR practitioner has the role of assisting the parties to reach a mutually agreeable outcome to the dispute by helping them to identify the issues in dispute, and to develop a range of options for resolving the dispute. Mediation and facilitated negotiation are examples of facilitative processes. ADR processes that are advisory involve the practitioner appraising the dispute, providing advice as to the facts of the dispute, the law and then, in some cases, articulating possible or appropriate outcomes and how they might be achieved. Case appraisal and neutral evaluation are examples of advisory processes. In a determinative ADR process, the practitioner evaluates the dispute (which may include the hearing of formal evidence from the parties) and makes a determination. Arbitration is an example of a determinative ADR process. The use of ADR processes has increased significantly in recent years. Indeed, in a range of contemporary legal contexts the use of an ADR process is now required before a party is able to file a matter in court. For example, Juliet Behrens discusses in Chapter 11 of this book how the Family Law Act 1975 (Cth) now effectively mandates attendance at pre-filing family dispute resolution in parenting disputes. At the state level, in Queensland, for example, attendance at a conciliation conference can be required in anti-discrimination matters, and is encouraged in residential tenancy matters, and in personal injuries matters the parties must attend a preliminary compulsory conference. Certain ADR processes are used more commonly in the resolution of particular disputes. For example, in family law contexts, mediation and conciliation are generally used because they provide the parties with flexibility in terms of process and outcome while still ensuring that the negotiations occur in a positive, structured and facilitated framework. In commercial contexts, arbitration and neutral evaluation are often used because they can provide the parties with a determination of the dispute that is factually and legally principled, but which is also private and more timely than if the parties went to court. Women, as legal personalities and citizens of society, can find themselves involved in any sort of legal dispute, and therefore all forms of ADR are relevant to women. Perhaps most commonly, however, women come into contact with facilitative ADR processes. For example, through involvement in family law disputes women will encounter family dispute resolution processes, such as mediation. In this chapter, therefore, the focus is on facilitative ADR processes and, particularly, issues for women in terms of their participation in such processes. The aim of this chapter is to provide legal practitioners with an understanding of issues for women in ADR to inform your approach to representing women clients in such processes, and to guide you in preparing women clients for their participation in ADR. The chapter begins with a consideration of the ways in which facilitative ADR processes are positive for women participants. Next, some of the disadvantages for women in ADR are explored. Finally, the chapter offers ways in which legal practitioners can effectively prepare women clients for participation in ADR. Before embarking on a discussion of issues for women in ADR, it is important to acknowledge that women’s experiences in these dispute resolution environments, whilst often sharing commonalities, are diverse and informed by a range of factors specific to each individual woman; for example, her race or socio-economic background. This discussion, therefore, addresses some common issues for women in ADR that are fundamentally gender based. It must be noted, however, that providing advice to women clients about participating in ADR processes requires legal practitioners to have a very good understanding of the client as an individual, and her particular needs and interests. Some sources of diversity are discussed in Chapters 13, 14 and 15.

Governing virtual worlds : to what extent is it possible to empower players and preserve their rights in virtual worlds, and what is the best method of doing so?

In this paper the author considers the possibilities for establishing democratic governance in virtual worlds. He looks at the freedoms currently available to players in “Second Life”, contrasting these to those established in Raph Koster’s “A Declaration of the Rights of Avatars”, and assess whether some restrictions are more necessary in game spaces than social spaces. The author looks at the early implementations of self-governance in online spaces, and consider what lessons can be taken from these, investigating what a contemporary democratic space looks like, in the form of “A Tale in the Desert”, and finally considers how else we may think of giving players more rights in these developing social spaces.

Australian patent enforcement : a proposal for an expert panel opinion

The Australian Government has been concerned “to find ways of making patent enforcement less of an issue” and to make it “cheaper, simpler and quicker to get fair and appropriate resolution for any dispute”. Major problems relating to patent enforcement in Australia have been identified as: the cost of legal proceedings; the lack of patent owners’ financial capacity to fund enforcement proceedings; delay; and uncertainty as to the outcome and lack of knowledge about the processes of enforcement. This paper considers some of the problems associated with patent enforcement in Australia and proposes an approach to patent litigation which is directed at alleviating some of the difficulties which have been identified. Specifically, it proposes a strategy designed to identify the parties’ risks at an early stage of patent litigation proceeding and facilitate an early resolution of the dispute.

The Australian Nonprofit Sector Legal Almanac 2014

The ACPNS nonprofit sector legal almanac provides summaries of legal cases involving nonprofit organisations, or of relevance to the work of nonprofits, particularly from Australia, but also New Zealand, the United Kingdom, Canada and the United States. It also summarises legislative changes that relate to nonprofit organisations in all Australian jurisdictions, and includes short articles on relevant topics: mergers of not for profit organisations; public ancillary funds; charitable housing; and dispute resolution.

Amendments potentially time-barred : A practical approach

In Mineral Resources Engineering Services Pty Ltd as Trustee for the Meakin Investment Trust v Commonwealth Bank of Australia: Hay v Commonwealth Bank of Australia [2015] QSC 62 Philip McMurdo J considered challenges to amended statements of claim in two related actions. The amendments were potentially time-barred and his Honour considered in particular the date from which the amendments should take effect.

Costs assessor selection: A question of timing, or cost?

In Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa [2014] QCA 63 the Queensland Court of Appeal dealt with significant questions of general application relating to the appointment of assessors to conduct an assessment of costs under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

The artist is a thief: A book review

Stephen Gray is a writer and law lecturer who has been living in Darwin since 1989. He started out writing formal legal pieces about how copyright law had unsuccessfully sought to accommodate Aboriginal art. Such work led him to further investigate the philosophical questions underlying the legal issues affecting both traditional and urban Indigenous people. Gray has also explored matters of bioprospecting in relation to Indigenous biological resources. He has investigated the introduction of a label of authenticity into Australia. Gray has also published a number of articles about other legal issues affecting Indigenous people. He has explored such topics as native title, customary law, alternative dispute resolution, and criminal law. Gray has recently been awarded The Australian/ Vogel Literary Award for his novel The Artist is a Thief. He was inspired to write a book after being sent out to a community on a possible copyright claim as part of his job in the law faculty of Northern Territory University: "I wrote an academic article and then a more philosophical piece talking about the copyright act and the way it doesn't really protect traditional artists who have a very different view of the place of their art. The pieces were interesting, but I felt there was something more there that needed a fictional expression as well." It is ironic that such a self-conscious and sophisticated meditation upon appropriation and authenticity should win The Australian/ Vogel Literary Award. The inaugural award in 1980 was won by Paul Radley, who later revealed his books were mostly written by his uncle, and in 1993 it was won by Helen Demidenko, aka Darville, who had lied about her Ukrainian background and family history.