Causing economic harm to property developers : damages for starting an incurably bad appeal?

A recent decision of the Queensland Court of Appeal involved an unusual statement of claim made on behalf of the developer of a proposed resort in Port Douglas. The decision is The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475. The issue The defendant had objected to a development application of the plaintiff developer and lodged an appeal in the Planning and Environment Court against the council decision granting a development permit. The main issue in the Planning and Environment Court was whether the site coverage of the proposed resort was excessive. In a separate action (the subject matter of the present appeal), the plaintiff developer claimed damages for ‘negligence’ alleging that the defendant had breached a duty of care not to appeal without properly or reasonably assessing whether the development qualified for a permit given that the resort qualified for the maximum allowable site coverage. It was alleged that the appeal lodged by the defendant in the Planning and Environment Court had no reasonable prospects of success and that any reasonable person properly advised would know, or ought reasonably to have known, that to be so. The defendant had been “put on notice” that the plaintiff would incur loss of $10,000 for every day there was a delay in starting construction of the resort. The claim made by the developer required the court to consider those circumstances where a person may lawfully and deliberately cause economic harm to another. Was a duty of care owed by the defendant for negligent conduct of litigation that caused economic loss to the plaintiff?

Marketeers beware

The practices of marketeers in the Queensland property market have been the subject of intense media interest and have caused widespread consumer concern. In response to these concerns the Queensland government has amended the Property Agents and Motor Dealers Act 2000 (Qld) (“the Act”). Significant changes to the Act were introduced by the Property Agents and Motor Dealers Amendment Act 2001 (Qld) (“the amending Act”). Implicit in the introduction of the amending Act was recognition that marketeers had altered their operating tactics to avoid the requirements of the Act. The amendments enhance regulation and are intended to capture the conduct of all persons involved in unconscionable practices that have lead to dysfunction in certain sectors of the Queensland property market. The amending Act is focussed on a broad regulatory response rather than further regulation of specific occupations in the property sale process as it was recognised that the approach of industry regulation had proven to be inadequate to curtail marketeering practices and to protect the interests of consumers. As well as providing for increased disclosure obligations on real estate agents, property developers and lawyers together with an extension of the 5 business day cooling-off period to all contracts (other than auction contracts) for the sale of residential property in Queensland; in an endeavour to further protect consumer interests the amending Act provides for increased jurisdiction and powers to the Property Agents and Motor Dealers Tribunal (“the Tribunal”) enabling the Tribunal to deal with claims against marketeers. These provisions commenced on the date of assent (21 September 2001). The aim of this article is to examine the circumstances in which marketeers will contravene the legislation and the ramifications.

Mortgagee sale obligations tightened

The enactment of the Property Law (Mortgagor Protection) Amendment Act 2008 (Qld), means that the obligations of a mortgagee exercising power of sale or a receiver selling have been substantially tightened in Queensland. Background As explained in the explanatory notes accompanying the legislation, with current global economic and financial circumstances, there were concerns about the position of mortgagors when mortgagees exercised their powers of sale. The objective of the amending legislation was to protect the interests of mortgagors by strengthening the statutory provisions relating to the duty of the mortgagee exercising power of sale to take reasonable care to ensure the property is sold at market value. The amending legislation was urgently passed without any consultation process.

Attach the correct warning statement

Practitioners will be aware that s 366 (1) of the Property Agents and Motor Dealers Act 2000 provides that a relevant contract must have attached, as its first or top sheet, a warning statement in the approved form. A failure to attach a warning statement in the prescribed manner triggers a right of termination in the buyer. The factual circumstances in Devine Ltd v Timbs [2004] QSC 24 are indicative of the problems that may arise in the construction of this statutory provision. The application concerned put and call option agreements entered into concerning 4 lots. The agreements, in identical terms, were signed before the applicant seller had completed a proposed residential apartment building. In each case the option agreement provided that the agreement was not binding on the seller until and unless the purchaser returned to the seller, amongst other things, two copies of the warning statement under the Property Agents and Motor Dealers Ac 2000 signed by the purchaser and two copies of the contract document signed by the purchaser. The seller was required to hold the contract documentation in escrow and was forbidden to sign it until and unless either option was exercised.

Waiver of statutory requirements : Property Agents and Motor Dealers Act 2000 (Qld)

One of the many difficulties associated with the drafting of the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’) is the operation of s 365. If the requirements imposed by this section concerning the return of the executed contract are not complied with, the buyer and the seller will not be bound by the relevant contract and the cooling-off period will not commence. In these circumstances, it is clear that a buyer’s offer may be withdrawn. However, the drafting of the Act creates a difficulty in that the ability of the seller to withdraw from the transaction prior to the parties being bound by the contract is not expressly provided by s 365. On one view, if the buyer is able to withdraw an offer at any time before receiving the prescribed contract documentation the seller also should not be bound by the contract until this time, notwithstanding that the seller may have been bound at common law. However, an alternative analysis is that the legislative omission to provide the seller with a right of withdrawal may be deliberate given the statutory focus on buyer protection. If this analysis were correct the seller would be denied the right to withdraw from the transaction after the contract was formed at common law (that is, after the seller had signed and the fact of signing had been communicated to the buyer).

Land Sales Act 1984: The time limit for an application for exemption

The decision of Wilson J in Wan and Ors v NPD Property Development Pty Ltd [2004] QSC 232 also concerned the operation of the Land Sales Act 1984 (Qld) (‘the Act’). As previously noted, s 8(1) of the Act provides that a proposed allotment of freehold land might be sold only in certain circumstances. An agreement made in contravention of s 8(1) is void. Section 19 allows a purchaser (and others) to apply for an exemption from any of the provisions of Pt 2. By s 19(6), notwithstanding s 8, a person may agree to sell a proposed allotment if the instrument that binds a person to purchase the proposed allotment is conditional upon the grant of an exemption. By s 19(7) an application for exemption must be made ‘within 30 days after the event that marks the entry of a purchaser upon the purchase of the proposed allotment.’

Joinder to a later unsigned document?

It is well known that a statutory requirement of formality is associated with contracts concerning land. In this regard, s 59 of the Property Law Act 1974 (Qld) provides: No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised. In addition to the possibility of a formal contract, the statutory wording clearly contemplates reliance on an informal note or memorandum. To constitute a sufficient note or memorandum for the purposes of the statute, the signed note or memorandum must contain details of the parties to the contract, an adequate description of the property, the price and any other essential terms. It is also accepted that the doctrine of joinder may be invoked in circumstances where the document signed by the party to be charged contains an express or implied reference to any other document. In this way, a sufficient note or memorandum may be constituted by the joinder of a number of documents.

Molecular dynamics study of dynamic buckling properties of nanowires with defects

Based on the embedded atom method (EAM) and molecular dynamics (MD) method, the deformation properties of Cu nanowires with different single defects under dynamic compression have been studied. The mechanical behaviours of the perfect nanowire are first studied, and the critical stress decreases with the increase of the nanowire’s length, which is well agreed with the modified Euler theory. We then consider the effects to the buckling phenomenon resulted from different defects. It is found that obvious decrease of the critical stress is resulted from different defects, and the largest decrease is found in nanowire with the surface vertical defect. Surface defects are found exerting larger influence than internal defects. The buckling duration is found shortened due to different defects except the nanowire with surface horizon defect, which is also found possessing the largest deflection. Different deflections are also observed for different defected nanowires. It is find that due to surface defects, only deflection in one direction is happened, but for internal defects, more complex deflection circumstances are observed.

Equity in the twenty-first century

Issues of equity and inequity have always been part of employment relations and are a fundamental part of the industrial landscape. For example, in most countries in the nineteenth century and a large part of the twentieth century women and members of ethnic groups (often a minority in the workforce) were barred from certain occupations, industries or work locations, and received less pay than the dominant male ethnic group for the same work. In recent decades attention has been focused on issues of equity between groups, predominantly women and different ethnic groups in the workforce. This has been embodied in industrial legislation, for example in equal pay for women and men, and frequently in specific equity legislation. In this way a whole new area of law and associated workplace practice has developed in many countries. Historically, employment relations and industrial relations research has not examined employment issues disaggregated by gender or ethnic group. Born out of concern with conflict and regulation at the workplace, studies tended to concentrate on white, male, unionized workers in manufacturing and heavy industry (Ackers, 2002, p. 4). The influential systems model crafted by Dunlop (1958) gave rise to The discipline’s preoccupation with the ‘problem of order’ [which] ensures the invisibility of women, not only because women have generally been less successful in mobilizing around their own needs and discontents, but more profoundly because this approach identifies the employment relationship as the ultimate source of power and conflict at work (Forrest, 1993, p. 410). While ‘the system approach does not deliberately exclude gender . . . by reproducing a very narrow research approach and understanding of issues of relevance for the research, gender is in general excluded or looked on as something of peripheral interest’ (Hansen, 2002, p. 198). However, long-lived patterns of gender segregation in occupations and industries, together with discriminatory access to work and social views about women and ethnic groups in the paid workforce, mean that the employment experience of women and ethnic groups is frequently quite different to that of men in the dominant ethnic group. Since the 1980s, research into women and employment has figured in the employment relations literature, but it is often relegated to a separate category in specific articles or book chapters, with women implicitly or explicitly seen as the atypical or exceptional worker (Hansen, 2002; Wajcman, 2000). The same conclusion can be reached for other groups with different labour force patterns and employment outcomes. This chapter proposes that awareness of equity issues is central to employment relations. Like industrial relations legislation and approaches, each country will have a unique set of equity policies and legislation, reflecting their history and culture. Yet while most books on employment and industrial relations deal with issues of equity in a separate chapter (most commonly on equity for women or more recently on ‘diversity’), the reality in the workplace is that all types of legislation and policies which impact on the wages and working conditions interact, and their impact cannot be disentangled one from another. When discussing equity in workplaces in the twenty-first century we are now faced with a plethora of different terms in English. Terms used include discrimination, equity, equal opportunity, affirmative action and diversity with all its variants (workplace diversity, managing diversity, and so on). There is a lack of agreed definitions, particularly when the terms are used outside of a legislative context. This ‘shifting linguistic terrain’ (Kennedy-Dubourdieu, 2006b, p. 3) varies from country to country and changes over time even within the one country. There is frequently a division made between equity and its related concepts and the range of expressions using the term ‘diversity’ (Wilson and Iles, 1999; Thomas and Ely, 1996). These present dilemmas for practitioners and researchers due to the amount and range of ideas prevalent – and the breadth of issues that are covered when we say ‘equity and diversity in employment’. To add to these dilemmas, the literature on equity and diversity has become bifurcated: the literature on workplace diversity/management diversity appears largely in the business literature while that on equity in employment appears frequently in legal and industrial relations journals. Workplaces of the twenty-first century differ from those of the nineteenth and twentieth century not only in the way they deal with individual and group differences but also in the way they interpret what are fair and equitable outcomes for different individuals and groups. These variations are the result of a range of social conditions, legislation and workplace constraints that have influenced the development of employment equity and the management of diversity. Attempts to achieve employment equity have primarily been dealt with through legislative means, and in the last fifty years this legislation has included elements of anti-discrimination, affirmative action, and equal employment opportunity in virtually all OECD countries (Mor Barak, 2005, pp. 17–52). Established on human rights and social justice principles, this legislation is based on the premise that systemic discrimination has and/or continues to exist in the labour force and particular groups of citizens have less advantageous employment outcomes. It is based on group identity, and employment equity programmes in general apply across all workplaces and are mandatory. The more recent notions of diversity in the workplace are based on ideas coming principally from the USA in the 1980s which have spread widely in the Western world since the 1990s. Broadly speaking, diversity ideas focus on individual differences either on their own or in concert with the idea of group differences. The diversity literature is based on a business case: that is diversity is profitable in a variety of ways for business, and generally lacks a social justice or human rights justification (Burgess et al., 2009, pp. 81–2). Managing diversity is represented at the organizational level as a voluntary and local programme. This chapter discusses some major models and theories for equity and diversity. It begins by charting the history of ideas about equity in employment and then briefly discusses what is meant by equality and equity. The chapter then analyses the major debates about the ways in which equity can be achieved. The more recent ideas about diversity are then discussed, including the history of these ideas and the principles which guide this concept. The following section discusses both major frameworks of equity and diversity. The chapter then raises some ways in which insights from the equity and diversity literature can inform employment relations. Finally, the future of equity and diversity ideas is discussed.

Indigenous Australians, vulnerability and the news media

This short article explores the ways in which the news media's reporting about Indigenous Australians can be improved. The article looks at how journalists predominantly portray Indigenous people in vulnerable circumstances. Journalists also often misrepresent Indigenous Australians in ways that can potentially harm individuals and communities. In forums about the media, it is common to hear Indigenous people say that they ignore non-Indigenous news services due to such problems, and they rely on community media instead. Even so, the non-Indigenous media has a huge impact on public understanding and government policies, which directly influence the living conditions of Indigenous people. Thus it remains important to consider how the performance of non-Indigenous media can be improved, and the article discusses the steps that are needed if this is to happen.

Relational contracting and its efficacy of project outcomes in the Australian construction industry

The Australian construction industry is characterized as being a competitive and risky business environment due to lack of cooperation, insufficient trust, ineffective communication and adversarial relationships which are likely lead to poor project performance. Relational contracting (RC) is advocated by literature as an innovative approach to improve the procurement process in the construction industry. Various studies have collectively added to the current knowledge of known RC norms, but there seem to be little effort on investigating the determinants of RC and its efficacy on project outcomes. In such circumstances, there is a lack of evidence and explanation on the manner on how these issues lead to different performance. Simultaneously, the New Engineering Contract (NEC) that embraced the concept of RC is seen as a modern way of contracting and also considered as one of the best approaches to the perennial problem of improving adversarial relationships within the industry. The reality of practice of RC in Australia is investigated through the lens of the NEC. A synthesis of literature views on the concept, processes and tools of RC is first conducted to develop the framework of RC.

Co-constructing self-efficacy narratives : a study of four mature age university students

This thesis reports on a study in which research participants, four mature aged females starting an undergraduate degree at a regional Australian university, collaborated with the researcher in co-constructing a self-efficacy narrative. For the purpose of the study, self-efficacy was conceptualized as a means by which an individual initiates action to engage in a task or set of tasks, applies effort to perform the task or set of tasks, and persists in the face of obstacles encountered in order to achieve successful completion of the task or set of tasks. Qualitative interviews were conducted with the participants, initially investigating their respective life histories for an understanding of how they made the decision to embark on their respective academic program. Additional data were generated from a written exercise, prompting participants to furnish specific examples of self-efficacy. These data were incorporated into the individual's self-efficacy narrative, produced as the outcome of the "narrative analysis". Another aspect of the study entailed "analysis of narrative" in which analytic procedures were used to identify themes common to the self-efficacy narratives. Five main themes were identified: (a) participants' experience of schooling . for several participants their formative experience of school was not always positive, and yet their narratives demonstrated their agency in persevering and taking on university-level studies as mature aged persons; (b) recognition of family as an early influence . these influences were described as being both positive, in the sense of being supportive and encouraging, as well as posing obstacles that participants had to overcome in order to pursue their goals; (c) availability of supportive persons – the support of particular persons was acknowledged as a factor that enabled participants to persist in their respective endeavours; (d) luck or chance factors were recognised as placing participants at the right place at the right time, from which circumstances they applied considerable effort in order to convert the opportunity into a successful outcome; and (e) self-efficacy was identified as a major theme found in the narratives. The study included an evaluation of the research process by participants. A number of themes were identified in respect of the manner in which the research process was experienced as a helpful process. Participants commented that: (a) the research process was helpful in clarifying their respective career goals; (b) they appreciated opportunities provided by the research process to view their life from a different perspective and to better understand what motivated them, and what their preferred learning styles were; (c) their past successes in a range of different spheres were made more evident to them as they were guided in self-reflection, and their self-efficacious behaviour was affirmed; and (d) the opportunities provided by their participation in the research process to identify strengths of which they had not been consciously aware, to find confirmation of strengths they knew they possessed, and in some instances to rectify misconceptions they had held about aspects of their personality. The study made three important contributions to knowledge. Firstly, it provided a detailed explication of a qualitative narrative method in exploring self-efficacy, with the potential for application to other issues in educational, counselling and psychotherapy research. Secondly, it consolidated and illustrated social cognitive theory by proposing a dynamic model of self-efficacy, drawing on constructivist and interpretivist paradigms and extending extant theory and models. Finally, the study made a contribution to the debate concerning the nexus of qualitative research and counselling by providing guidelines for ethical practice in both endeavours for the practitioner-researcher.

Inexact uniformization method for computing transient distributions of Markov chains

The uniformization method (also known as randomization) is a numerically stable algorithm for computing transient distributions of a continuous time Markov chain. When the solution is needed after a long run or when the convergence is slow, the uniformization method involves a large number of matrix-vector products. Despite this, the method remains very popular due to its ease of implementation and its reliability in many practical circumstances. Because calculating the matrix-vector product is the most time-consuming part of the method, overall efficiency in solving large-scale problems can be significantly enhanced if the matrix-vector product is made more economical. In this paper, we incorporate a new relaxation strategy into the uniformization method to compute the matrix-vector products only approximately. We analyze the error introduced by these inexact matrix-vector products and discuss strategies for refining the accuracy of the relaxation while reducing the execution cost. Numerical experiments drawn from computer systems and biological systems are given to show that significant computational savings are achieved in practical applications.

The tales we tell : exploring the legal stories of Queensland women who kill

The bulk of the homicide research to date has focused on male offending, with little consideration given to women's offending and in particular, their constructions within the courtroom following a homicide-related charge. This thesis examines, in detail, nineteen homicide cases finalised in the Queensland Supreme Courts between 01/01/1997 and 31/12/2002, in order to document and discuss the various legal stories available to women who kill. Predominantly, two “stock stories” are available within the court. The first, presented by the defence, offers the accused woman a victimised position to occupy. Evidence of victimisation is made available through previous abuse, expert testimony from psychologists and psychiatrists, challenges to her mental health, or appeals to her emotional nature. The second stock story, presented by the prosecution, positions the accused woman as angry, full of revenge, calculating and self serving. Such a script is usually supported by witnesses, police evidence, and family members. This thesis examines these competing and contradictory scripts using thematic discourse analysis to examine the court transcripts in detail. It argues that the "truth" of the fatal incident is based on one of these two prevailing scripts. This research destabilises the dominant script of violent female offending in the feminist literature. Most research to date has focussed on explaining the circumstances in which women kill, concentrating attention on the victimisation of the violent offending woman and negating or de-prioritising any volition on her part. By analysing all transcripts of women whose trials were held within the specified period, this research is able to demonstrate the stories used to describe their complex offending, and draw attention to the anger and intent that can occur alongside the victimisation.

Early intervention music therapy : reporting on a 3-year project to address needs with at-risk families

Sing & Grow is an early intervention music therapy project presented to families with additional needs, or those at risk of experiencing disadvantage due to social and/or economic circumstances that may impact on their parenting experiences. The aim of the project is to provide short term music therapy programs to families in communities where access to such services may be limited. The program is strengths-based and focuses on building upon a parent’s capacity to relate to and respond to their child’s emotional and developmental needs.