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.

Towards an understanding of model driven process configuration and its support at large

The common presupposition of Enterprise Systems (ES) is that they lead to significant efficiency gains. However, this is only the case for well-implemented ES that meet organisational requirements. The list of major ES implementation failures is as long as the list of success stories. We argue here that this arises from a more fundamental problem, the functionalist approach to ES development and provision. As long as vendors will continue to develop generic, difficult-to-adapt ES packages, this problem will prevail because organisations have a non-generic character. A solution to this problem can only consist in rethinking the way ES packages are provided. We propose a strict abstraction layer of ES functionalities and their representation as conceptual models. ES vendors must provide sufficient means for configuring these conceptual models. We discuss in this paper what generic situations can occur during process model configuration in order to understand process model configuration in depth.

Small business entity tax concessions : through the eyes of the practitioner

Australia’s small business sector has pursued often-competing imperatives of simplicity, equity and efficiency in the income tax regime (particularly focusing on the notion of simplicity) over the last decade. In 2001, there was an attempt to provide such simplification and reduce the compliance burden faced by Australian small businesses through the ‘simplified tax system’ (‘STS’). However, despite amendments over the years, the regime is much criticised. This article explores how the STS (now known as the ‘small business entity’ regime or ‘SBE’) is utilised from the perspective of tax practitioners, by analysing their recommendations to small business clients in respect of the regime. The results indicate that practitioners believe the regime did nothing to simplify the tax system for small businesses or reduce tax compliance costs. Indeed, the practitioners believed that the introduction of small business concessions had actually achieved the opposite result — it had increased tax compliance costs for their small business clients. However, tax practitioners still recommend the regime highly because it minimises their client’s tax liability.

The BRICS and the responsibility to protect : lessons from the Libyan and Syrian crises

The emerging ‘responsibility to protect’ (R2P) principle presents a significant challenge to the BRICS (Brazil, Russia, India, China and South Africa) states’ traditional emphasis on a strict Westphalian understanding of state sovereignty and non-interference in domestic affairs. Despite formally endorsing R2P at the 2005 World Summit, each of the BRICS has, to varying degrees, retained misgivings about coercive measures under the doctrine’s third pillar. This paper examines how these rising powers engaged with R2P during the 2011–2012 Libyan and Syrian civilian protection crises. The central finding is that although all five states expressed similar concerns over NATO’s military campaign in Libya, they have been unable to maintain a common BRICS position on R2P in Syria. Instead, the BRICS have splintered into two sub-groups. The first, consisting of Russia and China, remains steadfastly opposed to any coercive measures against Syria. The second, comprising the democratic IBSA states (India, Brazil and South Africa) has displayed softer, more flexible stances towards proposed civilian protection measures in Syria, although these three states also remain cautious about the implementation of R2P’s coercive dimension. This paper identifies a number of factors which help to explain this split, arguing that the failure to maintain a cohesive BRICS position on R2P is unsurprising given the many internal differences and diverging national interests between the BRICS members. Overall, the BRICS’ ongoing resistance to intervention is unlikely to disappear quickly, indicating that further attempts to operationalize R2P’s third pillar may prove difficult.

Towards a right to sustainable energy

Energy represents the cornerstone of modern life. However, current patterns of energy production are unsustainable. This is true for both the developed and developing worlds. In this context, this paper considers how, from a conceptual perspective, the law can contribute to more sustainable patterns of energy production can be addressed. The approach that this paper adopts is to consider two of the most important concepts that are relevant to the governance of modern environmental and societal challenges: human dignity and sustainable development. It is within this context that this paper contends that the convergence of these concepts provides the platform for a novel approach to encourage the sustainable production of energy by way of a ‘right to sustainable energy’. With this in mind, this paper considers the forum in which a right to sustainable energy may be developed and outlines the content of the proposed right.

Achieving high reliability for ambiguity resolutions with multiple GNSS constellations

Global Navigation Satellite Systems (GNSS)-based observation systems can provide high precision positioning and navigation solutions in real time, in the order of subcentimetre if we make use of carrier phase measurements in the differential mode and deal with all the bias and noise terms well. However, these carrier phase measurements are ambiguous due to unknown, integer numbers of cycles. One key challenge in the differential carrier phase mode is to fix the integer ambiguities correctly. On the other hand, in the safety of life or liability-critical applications, such as for vehicle safety positioning and aviation, not only is high accuracy required, but also the reliability requirement is important. This PhD research studies to achieve high reliability for ambiguity resolution (AR) in a multi-GNSS environment. GNSS ambiguity estimation and validation problems are the focus of the research effort. Particularly, we study the case of multiple constellations that include initial to full operations of foreseeable Galileo, GLONASS and Compass and QZSS navigation systems from next few years to the end of the decade. Since real observation data is only available from GPS and GLONASS systems, the simulation method named Virtual Galileo Constellation (VGC) is applied to generate observational data from another constellation in the data analysis. In addition, both full ambiguity resolution (FAR) and partial ambiguity resolution (PAR) algorithms are used in processing single and dual constellation data. Firstly, a brief overview of related work on AR methods and reliability theory is given. Next, a modified inverse integer Cholesky decorrelation method and its performance on AR are presented. Subsequently, a new measure of decorrelation performance called orthogonality defect is introduced and compared with other measures. Furthermore, a new AR scheme considering the ambiguity validation requirement in the control of the search space size is proposed to improve the search efficiency. With respect to the reliability of AR, we also discuss the computation of the ambiguity success rate (ASR) and confirm that the success rate computed with the integer bootstrapping method is quite a sharp approximation to the actual integer least-squares (ILS) method success rate. The advantages of multi-GNSS constellations are examined in terms of the PAR technique involving the predefined ASR. Finally, a novel satellite selection algorithm for reliable ambiguity resolution called SARA is developed. In summary, the study demonstrats that when the ASR is close to one, the reliability of AR can be guaranteed and the ambiguity validation is effective. The work then focuses on new strategies to improve the ASR, including a partial ambiguity resolution procedure with a predefined success rate and a novel satellite selection strategy with a high success rate. The proposed strategies bring significant benefits of multi-GNSS signals to real-time high precision and high reliability positioning services.

Re-framing infrastructure investment decision-making processes : a preliminary scoping study for urban flood risk management in Jakarta, Indonesia

Jakarta, Indonesia’s chronic housing shortage poses multiple challenges for contemporary policy-makers. While it may be in the city’s interest to increase the availability of housing, there is limited land to do so. Market pressures, in tandem with government’s desire for housing availability, demand consideration of even marginal lands, such as those within floodplains, for development. Increasingly, planning for a flood resilient Jakarta is complicated by a number of factors, including: the city is highly urbanized and land use data is limited; flood management is technically complex, creating potential barriers to engagement for both decision-makers and the public; inherent uncertainty exists throughout modelling efforts, central to management; and risk and liability for infrastructure investments is unclear. These obstacles require localized watershed-level participatory planning to address risks of flooding where possible and reduce the likelihood that informal settlements occur in areas of extreme risk. This paper presents a preliminary scoping study for determination of an effective participatory planning method to encourage more resilient development. First, the scoping study provides background relevant to the challenges faced in planning for contemporary Jakarta. Second, the study examines the current use of decision-support tools, such as Geographic Information Systems (GIS), in planning for Jakarta. Existing capacity in the use of GIS allows for consideration of the use of an emerging method of community consultation - Multi-Criteria Decision-Making (MCDM) support systems infused with geospatial information - to aid in engagement with the public and improve decision-making outcomes. While these methods have been used in Australia to promote stakeholder engagement in urban intensification, the planned research will be an early introduction of the method to Indonesia. As a consequence of this intervention, it is expected that planning activities will result in a more resilient city, capable of engaging with disaster risk management in a more effective manner.

Wrongful birth : assessment of damages in 2013

More than 10 years have passed since the High Court of Australia confirmed the recoverability of damages for the cost of raising a child, in the well-known decision in Cattanach v Melchior. Yet a number of aspects of the assessment of such “wrongful birth” damages had not been the subject of a comprehensive court ruling. The recent decision in Waller v James was widely anticipated as potentially providing a comprehensive discussion of the principles relevant to the assessment of damages in wrongful birth cases. However, given a finding on causation adverse to the plaintiffs, the trial judge held that it was unnecessary to determine the quantum of damages. Justice Hislop did, however, make some comments in relation to the assessment of damages. This article focuses mostly on the argued damages issues relating to the costs of raising the child and the trial judge’s comments regarding the same. The Waller v James claim was issued before the enactment of the Health Care Liability Act 2001 (NSW) and the Civil Liability Act 2002 (NSW). Although the case was therefore decided according to the “common law”, as explained below, his Honour’s comments may be of relevance to more recent claims governed by the civil liability legislation in New South Wales, Queensland and South Australia.

Overstepping the fiduciary mark

The decision of Justice Boddice in The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban & Anor is the latest in a series of Supreme Court actions arising out of Ms Ban’s management of the affairs of her long-time elderly friend, ADF. Following on from an earlier decision in which it was determined that Ms Ban held her share of funds in a joint bank account with ADF on trust for him, this most recent case concerned a claim for an account of funds withdrawn from that account on the basis that as trustee Ms Ban owed fiduciary duties to ADF. The purpose of the accounting was to determine whether any withdrawals had been made in breach of trust, which would give rise to equitable remedies. The primary question for determination was therefore whether the withdrawals were applied for the benefit of ADF. Having regard to all the circumstances of the case, his Honour found that although some transactions were for ADF’s benefit, substantial withdrawals, (including a significant portion of a $700,000 transfer), were not applied for his benefit, and were therefore made in breach of fiduciary obligation, giving rise to equitable rights and remedies.

Pleading intention

This article considers the scope of the application of the civil liability legislation, an issue which is still being clarified by the courts, despite the passage of some ten years since the enactment of the non-uniform civil liability legislation across Australia. The introduction of the civil liability legislation has made more important the pleading of intention, in addition to negligence, so as to maximise damages awards. This involves pleading torts traditionally referred to as intentional torts – particularly trespass to the person. Such an approach is attractive for plaintiffs because, in several jurisdictions, tort claims which plead intention have been excluded from the operation of the legislative restrictions on the quantum of damages awards, and prohibitions on exemplary and aggravated damages. This approach reflects the policy that those who intend the harmful consequences of their actions should be held fully responsible.

Calligraphy and causation : two obstetric management cases - Hirst v Sydney South West Area Health and King v Western Sydney local health network

Two recent decisions of the Supreme Court of New South Wales in the context of obstetric management have highlighted firstly, the importance of keeping legible, accurate and detailed medical records; and secondly, the challenges faced by those seeking to establish causation, particularly where epidemiological evidence is relied upon...

What the plaintiff would have done in informed consent cases

Both at common law and under the various civil liability acts, in deciding liability for breach of duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. For plaintiffs in medical negligence claims founded on negligent failure to provide sufficient information (informed consent cases), this onus involves persuading the court to make a favourable determination as to what a particular patient would have done (from a subjective perspective) in the hypothetical situation of the defendant not being negligent (that is, in the event that the medical practitioner had provided sufficient information to the patient)

Fraud risk and the visibility of carbon

In recent years, carbon has been increasingly rendered ‘visible’ both discursively and through political processes that have imbued it with economic value. Greenhouse gas (GHG) emissions have been constructed as social and environmental costs and their reduction or avoidance as social and economic gain. The ‘marketisation’ of carbon, which has been facilitated through various compliance schemes such as the European Union Emissions Trading Scheme (EU ETS), the Kyoto Protocol, the proposed Australian Emissions Reduction Scheme and through the voluntary carbon credit market, have attempted to bring carbon into the ‘foreground’ as an economic liability and/or opportunity. Accompanying the increasing economic visibility of carbon are reports of frauds and scams – the ‘gaming of carbon markets’(Chan 2010). As Lohmann (2010: 21) points out, ‘what are conventionally classed as scams or frauds are an inevitable feature of carbon offset markets, not something that could be eliminated by regulation targeting the specific businesses or state agencies involved’. This paper critiques the disparate discourses of fraud risk in carbon markets and examines cases of fraud within emerging landscapes of green criminology.

Justice for pollution-victims in China and Australia

The concept of environmental justice is well developed in North America, but is still at the evolutionary stage in most other jurisdictions around the globe. This paper seeks to explore two jurisdictions where incidents of environmental justice are likely to be seen in the future as a result of manufacturing and mining practices. The discussion will centre upon avenues to environmental justice for both private citizens and the public at large. The first jurisdiction considered is China, where environmental liability claims brought by Chinese citizens have increased at an annual average of 25% (Yang 2011). Manufacturing is at the core of the Chinese economy and is responsible for some of the unprecedented economic growth in the region. Less discussed are the industry impacts on water and air pollution levels and the associated implications of these pollutants on local communities. China introduced the Tort Liability Law (TLL) in 2010, which may provide avenues to justice for private citizens. The other jurisdiction considered by the paper is Australia, where the mining boom has buffered the Australian economy from the global financial crisis. There is some limited case law in Australia where private citizens have made a claim in toxic torts; however the framework is underdeveloped in terms of the significant risks facing indigenous and local communities in mining areas and also by comparison to the developments of the TLL framework in China. This paper traces the regulatory responses to the affects of major industries on communities in China and Australia. From this it examines the need for environmental justice avenues that align with rule of law principles.

Migraine genetics and prospects for pharmacotherapy

Migraine is a common complex neurological disorder with a well-known but poorly characterized genetic liability. The search for migraine susceptibility genes has been the focus of intense research. It is now believed that common migraine is not a single gene disorder, but attributable to several potentially interacting genetic variants. These variants may differ in each sufferer and interact with environmental factors to set the individual migraine threshold. This genetic liability may play an important role in the clinical heterogeneity seen in migraine and also in the variability of treatment response. This review will look at genetic loci implicated in migraine to date and consider their current or prospective role in migraine therapy. To elucidate the complex nature of migraine genetic liability, approaches that consider detailed endophenotypic profiles that encompass treatment response may provide much more relevant information than simple end diagnosis.