Supreme Court Decision Results in a Change to Standard Contracts

The decision of Dalton J in Lai v Soineva [2011] QSC 247 has resulted in a change in the latest versions of the Real Estate Institute of Queensland (REIQ) contracts.

iiNet’s Hollywood ending : what does its court victory mean for copyright law?

In what is being billed as iiNet versus Hollywood, the Australian internet service provider has come out an apparent winner after the High Court dismissed a copyright infringement case brought by industry movie studios. The case was a final appeal by the industry in its attempts to crack down on internet users infringing copyright by using BitTorrent to download movies.

High court determines that it cannot be assumed that hot chips are only eaten at lunch

In Strong v Woolworth Ltd (t/as Big W) (2012) 285 ALR 420 the appellant was injured when she fell at a shopping centre outside the respondent’s premises. The appellant was disabled, having had her right leg amputated above the knee and therefore walked with crutches. One of the crutches came into contact with a hot potato chip which was on the floor, causing the crutch to slip and the appellant to fall. The appellant sued in negligence, alleging that the respondent was in breach of its duty of care by failing to institute and maintain a cleaning system to detect spillages and foreign objects within its sidewalk sales area. The issue before the High Court was whether it could be established on the balance of probabilities as to when the hot chip had fallen onto the ground so as to prove causation in fact...

District Court of Queensland Act 1968 s 68 : jurisdiction in pre-proceedings applications under Personal Injuries Proceedings Act 2002

In Woolworths Ltd v Graham [2007] QDC 301 Searles DCJ struck out a pre-proceedings application under the Personal Injuries Proceedings Act 2002 (Qld)on the basis that the material before the Court was not sufficient to attract the jurisdiction of the District Court.The decision serves more broadly as a reminder that the District Court is an inferior court of defined and limited jurisdiction and that any proceedings brought in it must be demonstrably within the jurisdiction conferred on that court by legislation.

Court Based Psychiatric Assessment: A Case for an Integrated and Diversionary Public Health Role

This article describes a follow-up study of 232 individuals who underwent psychiatric assessment by a Criminal Justice Mental Health Team (CJMHT) in 2001/2002, and also draws upon in-depth interviews conducted with 26 of the cohort. At assessment many people are identified with substance misuse problems, as homeless and with a history of psychiatric contact but in the main their problems are of insufficient severity to merit diversion to psychiatric hospital. The study mapped service contact, housing and offending in the 12 months following assessment and compared this to the 12 months prior to assessment, and found increased levels of service contact but also increased levels of offending and no decrease in homelessness. Thus assessment by the CJMHT brought few discernible advantages for the majority of clients. This was also the perception of the 26 clients who were interviewed. Their own perceptions of their lifestyle and the support that they deemed most valuable are described to identify means of enhancing the efficacy of court assessment.

The acquisition of an artificial logographic script and bilingual working memory : Evidence for L1-specific orthographic processing skills transfer in Chinese-English bilinguals

Studies of orthographic skills transfer between languages focus mostly on working memory (WM) ability in alphabetic first language (L1) speakers when learning another, often alphabetically congruent, language. We report two studies that, instead, explored the transferability of L1 orthographic processing skills in WM in logographic-L1 and alphabetic-L1 speakers. English-French bilingual and English monolingual (alphabetic-L1) speakers, and Chinese-English (logographic-L1) speakers, learned a set of artificial logographs and associated meanings (Study 1). The logographs were used in WM tasks with and without concurrent articulatory or visuo-spatial suppression. The logographic-L1 bilinguals were markedly less affected by articulatory suppression than alphabetic-L1 monolinguals (who did not differ from their bilingual peers). Bilinguals overall were less affected by spatial interference, reflecting superior phonological processing skills or, conceivably, greater executive control. A comparison of span sizes for meaningful and meaningless logographs (Study 2) replicated these findings. However, the logographic-L1 bilinguals’ spans in L1 were measurably greater than those of their alphabetic-L1 (bilingual and monolingual) peers; a finding unaccounted for by faster articulation rates or differences in general intelligence. The overall pattern of results suggests an advantage (possibly perceptual) for logographic-L1 speakers, over and above the bilingual advantage also seen elsewhere in third language (L3) acquisition.

Physiological, perceptual and technical responses to on-court tennis training on hard and clay courts

The aim of this study was to investigate the effect of court surface (clay v hard-court) on technical, physiological and perceptual responses to on-court training. Four high-performance junior male players performed two identical training sessions on hard and clay courts, respectively. Sessions included both physical conditioning and technical elements as led by the coach. Each session was filmed for later notational analysis of stroke count and error rates. Further, players wore a global positioning satellite device to measure distance covered during each session; whilst heart rate, countermovement jump distance and capillary blood measures of metabolites were measured before, during and following each session. Additionally a respective coach and athlete rating of perceived exertion (RPE) were measured following each session. Total duration and distance covered during of each session were comparable (P>0.05; d<0.20). While forehand and backhands stroke volume did not differ between sessions (P>0.05; d<0.30); large effects for increased unforced and forced errors were present on the hard court (P>0.05; d>0.90). Furthermore, large effects for increased heart rate, blood lactate and RPE values were evident on clay compared to hard courts (P>0.05; d>0.90). Additionally, while player and coach RPE on hard courts were similar, there were large effects for coaches to underrate the RPE of players on clay courts (P>0.05; d>0.90). In conclusion, training on clay courts results in trends for increased heart rate, lactate and RPE values, suggesting sessions on clay tend towards higher physiological and perceptual loads than hard courts. Further, coaches appear effective at rating player RPE on hard courts, but may underrate the perceived exertion of sessions on clay courts.

Allegations of child sexual abuse in family court cases : a qualitative analysis of psychiatric evidence

Allegations of child sexual abuse in Family Court cases have gained increasing attention. The study investigates factors involved in Family Court cases involving allegations of child sexual abuse. A qualitative methodology was employed to examine Records of Judgement and Psychiatric Reports for 20 cases distilled from the data corpus of 102 cases. A seven-stage methodology was developed utilising a thematic analysis process informed by principles of grounded theory and phenomenology. The explication of eight thematic clusters was undertaken. The findings point to complex issues and dynamics in which child sexual abuse allegations have been raised. The alleging parent’s allegations of sexual abuse against their ex-partner may be: the expression of unconscious deep fears for their children’s welfare, or an action to meet their needs for personal affirmation in the context of the painful upheaval of a relationship break-up. Implications of the findings are discussed.

Federal Court Rules O23 r 11 - offers of compromise - offer for dismissal of claim and to forego recovery of costs.

In Uniline Australia Ltd ACN 010752057 v S Briggs Pty Ltd ACN 007415518 (No 2) [2009] FCA 920 Greenwood J considered a number of principles guiding the exercise of discretion in relation to costs, particularly when offers of compromise have been made under the formal process provided by the Federal Court Rules.

Howzat! The High Court, negligence and indoor cricket

This article examines the High Court case of Woods v Multi-Sport that considers the liability of an indoor cricket centre for an injury sustained by a player. It is a good example of how the issue of breach is dealt with in a sports law context and also shows how difficult it can be to determine when a sporting body will in breach of a duty of care owed to its participants.

Court overrides costs assessment limits

This article considers the implications for Queensland practitioners of the decision of the New South Wales Court of Appeal in Branson v Tucker [2012] NSWCA 310. That decision involved the question whether the court retained a jurisdiction to examine the reasonableness of costs charged by a barrister, who had entered a costs agreement with solicitors, in circumstances where where had been no application under the Legal Profession Act 2004 (NSW) for an assessment of the costs the subject of the bill and it was no longer possible for such an application to be made.

In defence of Victoria's Children's Court : its value and role in the child protection system

Australian child protection systems have been subject to sustained and significant criticism for many decades. As a central part of that system Children’s Courts have been implicated: three recent inquiries into the child protection system in Victoria all criticised the Family Division of the Children’s Court.1 In the resulting debate two diametrically opposed points of view surfaced about the Children’s Court and the role that legal procedures and professionals should play in child protection matters. On one side bodies like the Children’s Court of Victoria, Victoria Legal Aid (‘VLA’), the Law Institute of Victoria (‘LIV’), and the Federation of Community Legal Centres (‘FCLC’) argued that the Children’s Court plays a vital role in child protection and should continue to play that role.2 On the other side a coalition of human service and child protection agencies called for major change including the removal of the Children’s Court from the child protection system. Victoria’s Department of Human Services (‘DHS’) has been critical of the Court3 as have community sector organisations like Anglicare, Berry Street, MacKillop Family Services and the Salvation Army — all agencies the DHS funds to deliver child protection services.4 Victoria’s Child Safety Commissioner has also called for major reform, publicly labelling the Court a ‘lawyers’ playground’ and recommending abolishing the Court’s involvement in child protection completely.

Supreme Court Act 1995 (Qld) s 253 – whether refusal to stay execution of costs is an order “as to costs only”

In Virgtel Ltd v Zabusky [2009] QCA 92 the Queensland Court of Appeal considered the scope of an order “as to costs only” within the meaning of s 253 of the Supreme Court Act 1995 (Qld) (‘the Act”). The Court also declined to accept submissions from one of the parties after oral hearing, and made some useful comments which serve as a reminder to practitioners of their obligations in that regard.

Disclosure obligations on ex parte application for freezing order - duty of practitioners to the court - failure to comply with duty - serious dereliction of duty to court - supplemental order for costs against solicitors personally

The decision of Applegarth J in Heartwood Architectural & Joinery Pty Ltd v Redchip Lawyers [2009] QSC 195 (27 July 2009) involved a costs order against solicitors personally. This decision is but one of several recent decisions in which the court has been persuaded that the circumstances justified costs orders against legal practitioners on the indemnity basis. These decisions serve as a reminder to practitioners of their disclosure obligations when seeking any interlocutory relief in an ex parte application. These obligations are now clearly set out in r 14.4 of the Legal Profession (Solicitors) Rule 2007 and r 25 of 2007 Barristers Rule. Inexperience or ignorance will not excuse breaches of the duties owed to the court.

Supreme Court Act 1995 (Qld) s 253 - leave to appeal costs orders - appeal against substantive judgment insufficient - must be arguable case that discretion will be overturned on appeal

The recent decision of the Court of Appeal in AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262 provides clear direction on the Court’s expectations of a party seeking leave to appeal a costs order.This decision is likely to impact upon common practice in relation to appeals against costs orders. It sends a clear message to trial judges that they should not give leave as of course when giving a judgment in relation to costs, and that parties seeking leave under s 253 of the Supreme Court Act 1995 (Qld) should make a separate application. The application should be supported by material presenting an arguable case that the trial judge made an error in the exercise of the discretion of the kind described in House v King (1936) 55 CLR 499. A different, and interesting, aspect of this appeal is that it was the first wholly electronic civil appeal. The court-provided technology had been adopted at trial, and the Court of Appeal dispensed with any requirement for hard copy appeal record books.