Estoppel in the face of consumer protection in land transactions- judicial reasoning or judicial intuition

Nationally, there is much legislation regulating land sale transactions, particularly in relation to seller disclosure of information. The statutes require strict compliance by a seller failing which, in general, a buyer can terminate the contract. In a number of instances, when buyers have sought to exercise these rights, sellers have alleged that buyers have either expressly or by conduct waived their rights to rely upon these statutes. This article examines the nature of these rights in this context, whether they are capable of waiver and, if so, what words or conduct might be sufficient to amount to waiver. The analysis finds that the law is in a very unsatisfactory state, that the operation of those rules that can be identified as having relevance are unevenly applied and concludes that sellers have, in the main, been unsuccessful in defeating buyers' statutory rights as a result of an alleged waiver by those buyers.

Practice and Procedure. Self-executing order - construction - whether further judicial at required for self-executing order to take effect

In Mango Boulevard Pty Ltd v Spencer [2010] QCA 207, a self-executing order had been made in consequence of continuing default by parties to the proceedings in meeting their disclosure obligations. The case involved several questions about the construction and implications of the self-executing order. This note focuses on the aspects of the case relating to that order.

Civil applications in the Magistrates Court are often set down for hearing by a judicial registrar, but there is now some uncertainty on the limitation of this practice

The decision of the District Court of Queensland in Mark Treherne & Associates -v- Murray David Hopkins [2010] QDC 36 will have particular relevance for early career lawyers. This decision raises questions about the limits of the jurisdiction of judicial registrars in the Magistrates Court.

Judicial and legislative considerations in the taxation of compensation receipts : an international comparison

In 1995, the Federal Commissioner of Taxation released Taxation Ruling TR 95/35 in an attempt to comprehensively address the appropriate capital gains tax treatment of a receipt of compensation, awarded either by the courts or via a settlement. The ruling was in response to the numerous, somewhat contradictory, court decisions of the early 1990s. Despite the release of TR 95/35, there still appears to be a lack of consensus as to the appropriate treatment of such awards. It has been suggested that the only way a taxpayer can, with any certainty, determine their liability is to obtain a private binding ruling, a far from satisfactory situation. In an attempt to clarify what the capital gains tax consequences of a compensation receipt should be, this article examines the Australian position and explores the comparative jurisprudence of the United Kingdom and Canada to ascertain whether the Australian attitude is consistent with these international jurisdictions. This article concludes that while the jurisdictions, through differing approaches, achieve a similar result, there is still a need to address the uncertainties that remain.

The Role of the Judiciary in Earth Jurisprudence : An Analysis of Judicial Approaches to Standing in Climate Change and Environmental Justice Litigation

The role of the judiciary in common law systems is to create law, interpret law and uphold the law. As such decisions by courts on matters related to ecologically sustainable development, natural resource use and management and climate change make an important contribution to earth jurisprudence. There are examples where judicial decisions further the goals of earth jurisprudence and examples where decisions go against the principles of earth jurisprudence. This presentation will explore judicial approaches to standing in Australia and America. The paper will explore two trends in each jurisdiction. Approaches by American courts to standing will be examined in reference to climate change and environmental justice litigation. While Australian approaches to standing will be examined in the context of public interest litigation and environmental criminal negligence cases. The presentation will draw some conclusions about the role of standing in each of these cases and implications of this for earth jurisprudence.

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.

Perceptions and expectations for learning and development for older workers within Queensland local government councils : a case study

Current literature warns organisations about a global ageing phenomenon. Workplace ageing is causing a diminishing work pool which has consequences for a sustainable workforce in the future. This phenomenon continues to impact on local government councils in Australia. Australia has one of the world’s most rapidly ageing populations, and there is evidence that Australian local government councils are already resulting in an unsustainable workforce. Consequently, this research program investigated the role of older workers in the Queensland local government workplace in enabling them to extend their working lives towards transitional employment and a sustainable workforce in the future. Transitional Employment is intended as a strategy for enabling individuals to have greater control over their employment options and their employability during the period leading to their final exit from the workforce. There was no evidence of corporate support for older workers in Queensland local government councils other than tokenistic government campaigns encouraging organisations to "better value their older workers". (Queensland Government, 2007d, p.6). TE is investigated as a possible intervention for older workers in the future. The international and national literature review reflected a range of matters impacting on current older workers in the workforce and barriers preventing them from accessing services towards extending their employment beyond the traditional retirement age (60 years) as defined by the Australian Government; an age when individuals can access their superannuation. Learning and development services were identified as one of those barriers. There was little evidence of investment in or consistent approaches to supporting older workers by organisations. Learning and development services appeared at best to be ad hoc, reactive to corporate productivity and outputs with little recognition of the ageing phenomenon (OECD, 2006, p.23) and looming skills and labour shortages (ALGA, 2006, p. 19). Themes from the literature review led to the establishment of three key research questions: 1. What are the current local government workforce issues impacting on skills and labour retention? 2. What are perceptions about the current workplace environment? And, 3. What are the expectations about learning and development towards extending employability of older workers within the local government sector? The research questions were explored by utilising three qualitative empirical studies, using some numerical data for reporting and comparative analysis. Empirical Study One investigated common themes for accessing transitional employment and comprised two phases. A literature review and Study One data analysis enabled the construction of an initial Transitional Employment Model which includes most frequent themes. Empirical Study Two comprised focus groups to further consider those themes. This led to identification of issues impacting the most on access to learning and development by older workers and towards a revised TEM. Findings presented majority support for transitional employment as a strategy for supporting older workers to work beyond their traditional retirement age. Those findings are presented as significant issues impacting on access to transitional employment within the final 3-dimensionsal TEM. The model is intended as a guide for responding to an ageing workforce by local government councils in the future. This study argued for increased and improved corporate support, particularly for learning and development services for older workers. Such support will enable older workers to maintain their employability and extend their working lives; a sustainable workforce in the future.

The Royal Commission into the NSW Police Service : process corruption and the limits of judicial reflexivity

This paper will offer an examination of the Reports of the Royal Commission into the NSW Police Service (Interim Report February 1996; Interim Report: Immediate Measures November 1996; Final Report Vol I: Corruption; Final Report Vol II: Reform; Final Report Vol III: Appendices May 1997) excluding the Report on Paedophilia, August 1997. The examination will be confined essentially to one question: to what extent do the published Reports consider the part played by the judiciary, prosecutors and lawyers, in the construction of a form of criminal justice revealed by the Commission itself, to be disfigured by serious process corruption? The examination will be conducted by way of a chronological trawl through the Reports of the Commission in an attempt to identify all references to the role of the judiciary, prosecutors and lawyers. The adequacy of any such treatment will then be considered. In order to set the scene a brief and generalised overview of the Wood Commission will be offered together with the Commission's definition of process corruption.

‘Structuring’ judicial sentencing discretion : consistency, guidance or pandering to the punitive?

Until quite recently, most Australian jurisdictions gave statutory force to the principle of imprisonment as a sanction of last resort, reflecting its status as the most punitive sentencing option open to the court.1 That principle gave primary discretion as to whether incarceration was the most appropriate means of achieving the purpose of a sentence to the sentencing court, which received all of the information relevant to the offence, the offender and any victim(s). The disestablishment of this principle is symptomatic of an increasing erosion of judicial discretion with respect to sentencing, which appears to be resulting in some extremely punitive consequences.

Withholding and withdrawing life-sustaining treatment in a patient's best interests : Australian judicial deliberations

•Intractable disputes about withholding and withdrawing life-sustaining treatment from adults who lack capacity are rare but challenging. Judicial resolution may be needed in some of these cases. •A central concept for judicial (and clinical) decision making in this area is a patient's “best interests”. Yet what this term means is contested. •There is an emerging Supreme Court jurisprudence that sheds light on when life-sustaining treatment will, or will not, be judged to be in a patient's best interests. •Treatment that is either futile or overly burdensome is not in a patient's best interests. Although courts will consider patient and family wishes, they have generally deferred to the views of medical practitioners about treatment decisions.

Bribery and corruption in Australian local councils

This paper explores concerns about corruptio and bribery in Australian local government and provides guidance for policy-makers on how to control bribery and corruption. Lack of regulation is a major reason why local councils are not taking appropriate anti-corruption or bribery measures. The author urgers regulators to impose radical and mandatory requirements, especially reporting requirements, on local councils. Australia should also look to other countries for successful measures to curb bribery and corruption.

Three of a kind? The special case of Australia's Island Councils

In common with many other countries, Australian local government policymakers have focussed heavily on improving financial sustainability and operational efficiency through structural change and other modes of systemic reform. However, this system-wide approach cannot adequately deal with small island councils due to their sui generis characteristics. In an effort to fill this gap in the literature, this article examines the financial sustainability of Australia’s three island councils – Flinders, Kangaroo and King – over the period 2008–2013 in order to determine whether alternative organisational arrangements may be better suited to their unique circumstances. In so doing, our study contributes to the literature by providing the first empirical analysis of the financial viability of Australia’s island councils while considering the need for an alternative organisation entity in an effort to enhance their long-term financial sustainability.

Environmental Crime and Specialist Courts: The case for a ‘One-Stop (Judicial) Shop’ in Queensland

The increasing international political, public and scientific engagement in matters of environmental sustainability and development has produced a rapidly expanding body of environmental law and policy. The advent of international protocols, directives, and multilateral agreements has occurred concomitantly with the harmonisation of widespread environmental regimes of governance and enforcement within numerous domestic settings. This has created an unprecedented need for environmental legal apparatuses to manage, regulate and adjudicate legislation seeking to protect, sustain and develop global natural habitats. The evolving literature in green criminology continues to explore these developments within discourses of power, harm and justice. Such critiques have emphasised the role of dedicated environmental courts to address environmental crimes and injustices. In this article, we examine the important role of specialist courts in responding to environmental crime, with specific reference to the State of Queensland. We offer a critique of existing processes and practices for the adjudication of environmental crime and propose new jurisdictional and procedural approaches for enhancing justice. We conclude that specialist environmental courts endowed with broad civil and criminal jurisdiction are an integral part of an effective response to environmental crime.