Legal Profession Act 2004 (NSW) : costs agreement between law practice and client - whether binding on non-associated third party payer

The decision in the New South Wales Supreme Court in Boyce v McIntyre [2008] NSWSC 1218 involved determination of a number of issues relating to an assessment of costs under the Legal Profession Act 2004 (NSW). The issue of broad significance was whether a non-associated third party payer must pay the fixed fee that was agreed between the law practice and the client. The court found that the client agreement did not form the basis of assessing costs for the non-associated third party payer.

Future of the Haze Agreement : is the glass half empty or half full?

"In 1997–98, the ASEAN (Association of Southeast Asian Nations) region suffered an unprecedented health and environmental catastrophe due to choking haze created by a massive forest !re in Indonesia. It is estimated that the total losses from the fire could be US$5–6 billion after taking into account the loss of trees and other natural resources as well as the long-term impact on human health. This unprecedented anthropogenic disaster not only created a severe health and environmental hazard but also raised a question mark about the credibility and effectiveness of the ASEAN regional grouping. Against this background, ASEAN took a number of regional initiatives to try and solve the problem and finally adopted a new treaty for regional cooperation to combat forest fire and haze in 2002. This paper assesses the future success of this agreement from the perspectives of the legal, institutional and geopolitical reality of the region. Since numerous studies have examined state responsibility for transboundary environmental harm under international law and its implications on the ASEAN haze problem, this article will not touch upon that general debate nor the remedies that are possibly available to victim states. Rather, it will focus on the ASEAN regional legal and institutional initiatives to combat the haze pollution and compare them with a similar European regional agreement. Regarding the following analysis, it is important to recognise the uncertainty arising from Indonesia’s status (presently a non-party to the Agreement). A primary indication of the future effectiveness of this agreement can be drawn from an analysis of the principles involved in this agreement, bearing in mind the inherent difficulty of enforcing norms in the international environmental legal system as a whole, and the geopolitical reality of the region."

Load bearing improves the limits of agreement for repeated in vivo measures of the speed of sound in human Achilles tendon

Axial acoustic wave propagation has been widely used in evaluating the mechanical properties of human bone in vivo. However, application of this technique to monitor soft tissues, such as tendon, has received comparatively little scientific attention. Laboratory-based research has established that axial acoustic wave transmission is not only related to the physical properties of equine tendon but is also proportional to tensile load to which it is exposed (Miles et al., 1996; Pourcelot et al., 2005). The reproducibility of the technique for in vivo measurements in human tendon, however, has not been established. The aim of this study was to evaluate the limits of agreement for repeated measures of the speed of sound (SoS) in human Achilles tendon in vivo. Methods: A custom built ultrasound device, consisting of an A-mode 1MHz emitter and two regularly spaced receivers, was used to measure the SoS in the mid-portion of the Achilles tendon in ten healthy males and ten females (mean age: 33.8 years, range 23-56 yrs; height: 1.73±0.08 m; weight: 68.4±15.3 kg). The emitter and receivers were held at fixed positions by a polyethylene frame and maintained in close contact with the skin overlying the tendon by means of elasticated straps. Repeated SoS measurements were taken with the subject prone (non-weightbearing and relaxed Achilles tendon) and during quiet bipedal and unipedal stance. In each instance, the device was detached and repositioned prior to measurement. Results: Limits of agreement for repeated SoS measures during non-weightbearing and bipedal and unipedal stance were ±53, ±28 and ±21 m/s, respectively. The average SoS in the non-weightbearing Achilles tendon was 1804±198 m/s. There was a significant increase in the average SoS during bilateral (2122±135 m/s) (P < 0.05) and unilateral (2221±79 m/s) stance (P < 0.05). Conclusions: Repeated SoS measures in human Achilles tendon were more reliable during stance than under non-weightbearing conditions. These findings are consistent with previous research in equine tendon in which lower variability in SoS was observed with increasing tensile load (Crevier-Denoix et al, 2009). Since the limits of agreement for Achilles tendon SoS are nearly 5% of the changes previously observed during walking and therapeutic heel raise exercises, acoustic wave transmission provides a promising new non-invasive method for determining tendon properties during sports and rehabilitation related activities.

Agreement to and compliance with advice on removing mats or rugs by older people with visual impairments

The article presents a study which investigated the reasons why advice related to the removal of mats or rags by older people with visual impairments had a low rate of acceptance. The researchers speculated that it may have been due to older people's need to maintain a sense of control and autonomy and to arrange their environments in a way that they decided or a belief that the recommended modification would not reduce the risk of falling. A telephone survey of subsample of the participants was conducted in the Visually Impaired Persons (VIP) Trial. All 30 interviewees had rugs or mats in their homes. Of the 30 participants, 20 had moved the rugs or mats as a result of recommendations, and 10 had not.

Agreement between temporal and spatial gait parameters from an instrumented walkway and treadmill system at matched walking speed

Background Commercially available instrumented treadmill systems that provide continuous measures of temporospatial gait parameters have recently become available for clinical gait analysis. This study evaluated the level of agreement between temporospatial gait parameters derived from a new instrumented treadmill, which incorporated a capacitance-based pressure array, with those measured by a conventional instrumented walkway (criterion standard). Methods Temporospatial gait parameters were estimated from 39 healthy adults while walking over an instrumented walkway (GAITRite®) and instrumented treadmill system (Zebris) at matched speed. Differences in temporospatial parameters derived from the two systems were evaluated using repeated measures ANOVA models. Pearson-product-moment correlations were used to investigate relationships between variables measured by each system. Agreement was assessed by calculating the bias and 95% limits of agreement. Results All temporospatial parameters measured via the instrumented walkway were significantly different from those obtained from the instrumented treadmill (P < .01). Temporospatial parameters derived from the two systems were highly correlated (r, 0.79–0.95). The 95% limits of agreement for temporal parameters were typically less than ±2% of gait cycle duration. However, 95% limits of agreement for spatial measures were as much as ±5 cm. Conclusions Differences in temporospatial parameters between systems were small but statistically significant and of similar magnitude to changes reported between shod and unshod gait in healthy young adults. Temporospatial parameters derived from an instrumented treadmill, therefore, are not representative of those obtained from an instrumented walkway and should not be interpreted with reference to literature on overground walking.

Pitfalls in the use of kappa when interpreting agreement between multiple raters in reliability studies

OBJECTIVE To compare different reliability coefficients (exact agreement, and variations of the kappa (generalised, Cohen's and Prevalence Adjusted and Biased Adjusted (PABAK))) for four physiotherapists conducting visual assessments of scapulae. DESIGN Inter-therapist reliability study. SETTING Research laboratory. PARTICIPANTS 30 individuals with no history of neck or shoulder pain were recruited with no obvious significant postural abnormalities. MAIN OUTCOME MEASURES Ratings of scapular posture were recorded in multiple biomechanical planes under four test conditions (at rest, and while under three isometric conditions) by four physiotherapists. RESULTS The magnitude of discrepancy between the two therapist pairs was 0.04 to 0.76 for Cohen's kappa, and 0.00 to 0.86 for PABAK. In comparison, the generalised kappa provided a score between the two paired kappa coefficients. The difference between mean generalised kappa coefficients and mean Cohen's kappa (0.02) and between mean generalised kappa and PABAK (0.02) were negligible, but the magnitude of difference between the generalised kappa and paired kappa within each plane and condition was substantial; 0.02 to 0.57 for Cohen's kappa and 0.02 to 0.63 for PABAK, respectively. CONCLUSIONS Calculating coefficients for therapist pairs alone may result in inconsistent findings. In contrast, the generalised kappa provided a coefficient close to the mean of the paired kappa coefficients. These findings support an assertion that generalised kappa may lead to a better representation of reliability between three or more raters and that reliability studies only calculating agreement between two raters should be interpreted with caution. However, generalised kappa may mask more extreme cases of agreement (or disagreement) that paired comparisons may reveal.

Visually impaired drivers who use bioptic telescopes : self-assessed driving skills and agreement with on-road driving evaluation

Purpose. To compare self-assessed driving habits and skills of licensed drivers with central visual loss who use bioptic telescopes to those of age-matched normally sighted drivers, and to examine the association between bioptic drivers' impressions of the quality of their driving and ratings by a “backseat” evaluator. Methods. Participants were licensed bioptic drivers (n = 23) and age-matched normally sighted drivers (n = 23). A questionnaire was administered addressing driving difficulty, space, quality, exposure, and, for bioptic drivers, whether the telescope was helpful in on-road situations. Visual acuity and contrast sensitivity were assessed. Information on ocular diagnosis, telescope characteristics, and bioptic driving experience was collected from the medical record or in interview. On-road driving performance in regular traffic conditions was rated independently by two evaluators. Results. Like normally sighted drivers, bioptic drivers reported no or little difficulty in many driving situations (e.g., left turns, rush hour), but reported more difficulty under poor visibility conditions and in unfamiliar areas (P < 0.05). Driving exposure was reduced in bioptic drivers (driving 250 miles per week on average vs. 410 miles per week for normally sighted drivers, P = 0.02), but driving space was similar to that of normally sighted drivers (P = 0.29). All but one bioptic driver used the telescope in at least one driving task, and 56% used the telescope in three or more tasks. Bioptic drivers' judgments about the quality of their driving were very similar to backseat evaluators' ratings. Conclusions. Bioptic drivers show insight into the overall quality of their driving and areas in which they experience driving difficulty. They report using the bioptic telescope while driving, contrary to previous claims that it is primarily used to pass the vision screening test at licensure.

Assessment of costs : challenge to validity of client agreement between party entitled to costs and its solicitors

In ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540 the Queensland Court of Appeal dismissed an appeal from the decision of Mullins J at first instance in ASIC v Atlantic 3 Financial (Aust) Pty LTd [2006] QSC 152, the majority concluding that the client agreement in issue was not inconsistent with s48 of the Queensland Law Society Act 1952.

Agreement between student-reported and proxy-reported physical activity questionnaires

Parents and 531 students (46% males, 78% white) completed equivalent questionnaires. Agreement between student and parent responses to questions about hypothesized physical activity (PA) correlates was assessed. Relationships between hypothesized correlates and an objective measure of student's moderate-to-vigorous physical activity (MVPA) in a subset of 177 students were also investigated. Agreement between student and parent ranged from r = .34 to .64 for PA correlates. Spearman correlations between MVPA and PA correlates ranged from –.04 to .21 for student report and –.14 to .32 for parent report, and there were no statistical differences for 8 out of 9 correlations between parent and student. Parents can provide useful data on PA correlates for students in Grades 7–12.

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.

Malleability attacks on multi-party key agreement protocols

Multi-party key agreement protocols indirectly assume that each principal equally contributes to the final form of the key. In this paper we consider three malleability attacks on multi-party key agreement protocols. The first attack, called strong key control allows a dishonest principal (or a group of principals) to fix the key to a pre-set value. The second attack is weak key control in which the key is still random, but the set from which the key is drawn is much smaller than expected. The third attack is named selective key control in which a dishonest principal (or a group of dishonest principals) is able to remove a contribution of honest principals to the group key. The paper discusses the above three attacks on several key agreement protocols, including DH (Diffie-Hellman), BD (Burmester-Desmedt) and JV (Just-Vaudenay). We show that dishonest principals in all three protocols can weakly control the key, and the only protocol which does not allow for strong key control is the DH protocol. The BD and JV protocols permit to modify the group key by any pair of neighboring principals. This modification remains undetected by honest principals.

Exact parametric confidence intervals for Bland-Altman limits of agreement

Purpose The previous literature on Bland-Altman analysis only describes approximate methods for calculating confidence intervals for 95% Limits of Agreement (LoAs). This paper describes exact methods for calculating such confidence intervals, based on the assumption that differences in measurement pairs are normally distributed. Methods Two basic situations are considered for calculating LoA confidence intervals: the first where LoAs are considered individually (i.e. using one-sided tolerance factors for a normal distribution); and the second, where LoAs are considered as a pair (i.e. using two-sided tolerance factors for a normal distribution). Equations underlying the calculation of exact confidence limits are briefly outlined. Results To assist in determining confidence intervals for LoAs (considered individually and as a pair) tables of coefficients have been included for degrees of freedom between 1 and 1000. Numerical examples, showing the use of the tables for calculating confidence limits for Bland-Altman LoAs, have been provided. Conclusions Exact confidence intervals for LoAs can differ considerably from Bland and Altman’s approximate method, especially for sample sizes that are not large. There are better, more precise methods for calculating confidence intervals for LoAs than Bland and Altman’s approximate method, although even an approximate calculation of confidence intervals for LoAs is likely to be better than none at all. Reporting confidence limits for LoAs considered as a pair is appropriate for most situations, however there may be circumstances where it is appropriate to report confidence limits for LoAs considered individually.

From Kafka to KAFTA: Intellectual property, and the Korea-Australia free trade agreement

This paper provides a critical examination of the intellectual property sections of the Korea-Australia Free Trade Agreement 2014. Chapter 13 of the Korea-Australia Free Trade Agreement 2014 deals with the subject of intellectual property law. The Chapter covers such topics as the purposes and objectives of intellectual property law; copyright law; trade mark law; patent law; and intellectual property enforcement. The Joint Standing Committee on Treaties in the Australian Parliament highlighted the controversy surrounding this chapter of the agreement: The intellectual property rights chapter of KAFTA has drawn considerable attention from academics and stakeholders regarding the proposed need for changes to Australian intellectual property law and the inclusion of intellectual property in the definition of investment with regard to the investor-state dispute mechanism. Other concerns raised with the Committee include the prescriptive nature of the chapter, the lack of recognition of the broader public interests of intellectual property rights, and possible changes to fair use provisions. Article 13.1.1 of the Korea-Australia Free Trade Agreement 2014 provides that: ‘Each Party recognises the importance of adequate and effective protection of intellectual property rights, while ensuring that measures to enforce those rights do not themselves become barriers to legitimate trade.’ This is an unsatisfactory description of the objectives and purposes of intellectual property law in both Australia and Korea. There is a failure to properly consider the range of public purposes served by intellectual property law – such as providing for access to knowledge, promoting competition and innovation, protecting consumer rights, and allowing for the protection of public health, food security, and the environment. Such a statement of principles and objectives detracts from the declaration in the TRIPS Agreement 1994 of the public interest objectives to be served by intellectual property. Chapter 11 of the Korea-Australia Free Trade Agreement 2014 is an investment chapter, with an investor-state dispute settlement regime. This chapter is highly controversial – given the international debate over investor-state dispute settlement; the Australian context for the debate; and the text of the Korea-Australia Free Trade Agreement 2014. In April 2014, the United Nations Conference on Trade and Development (UNCTAD) released a report on Recent Developments in Investor-State Dispute Settlement. The overall figures are staggering. UNCTAD reports a significant growth in investment-state dispute settlement, across a wide array of different fields of public regulation. Given the broad definition of investment, intellectual property owners will be able to use the investor-state dispute settlement regime in the Korea-Australia Free Trade Agreement 2014. This will have significant implications for all the various disciplines of intellectual property – including copyright law, trade mark law, and patent law.

Robbery under arms: Copyright law and the Australia-United States free trade agreement

TThis article considers the radical, sweeping changes to Australian copyright law wrought by the Australia–United States Free Trade Agreement 2004 (AUSFTA). It contends that the agreement will result in a “piracy of the public domain”. Under this new regime, copyright owners will be able to obtain greater monopoly profits at the expense of Australian consumers, libraries and research institutions, as well as intermediaries, such as Internet service providers. Part One observes that the copyright term extension in Australia to life of the author plus 70 years for works will have a negative economic and cultural impact — with Australia’s net royalty payments estimated to be up to $88 million higher per year. Part Two argues that the adoption of stronger protection of technological protection measures modelled upon the Digital Millennium Copyright Act 1998 (U.S.) will override domestic policy–making processes, such as the Phillips Fox Digital Agenda Review, and judicial pronouncements such as the Stevens v Sony litigation. Part Three questions whether the new safe harbours protection for Internet service providers will adversely affect the sale of Telstra. This article concludes that there is a need for judicial restraint in interpreting the AUSFTA. There is an urgent call for the Federal Government to pass ameliorating reforms — such as an open–ended defence of fair use and a mechanism for orphan works. There is a need for caution in negotiating future bilateral trade agreements — lest the multinational system for the protection of copyright law be undermined.