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.

UCPR r243 - notice of non-party disclosure - obligation to state allegation to which documents sought are directly relevant

In Deppro Pty Ltd v Hannah [2008] QSC 193 one of the matters considered by the court related to the requirement in r 243 of the Uniform Civil Procedure Rules 1999 (Qld) that a notice of non-party disclosure must “state the allegation in issue in the pleadings about which the document sought is directly relevant.”The approach adopted by the issuing party in this case of asserting that documents sought by a notice of non-party disclosure are relevant to allegations in numbered paragraphs in pleadings, and serving copies of the pleadings with the notice, is not uncommon in practice. This decision makes it clear that this practice is fraught with danger. In circumstances where it is not apparent that the non-party has been fully apprised of the relevant issues the decision suggests an applicant for non-party disclosure who has not complied with the requirements of s 243 might be required to issue a fresh, fully compliant notice, and to suffer associated costs consequences.

China's "Responsible Protection" concept : re-interpreting the Responsibility to Protect (R2P) and military intervention for humanitarian purposes

This article assesses the extent to which the recently formulated Chinese concept of “Responsible Protection” (RP) offers a valuable contribution to the normative debate over R2P’s third pillar following the controversy over military intervention in Libya. While RP draws heavily on previous proposals such as the original 2001 ICISS report and Brazil’s “Responsibility while Protecting” (RwP), by amalgamating and re-packaging these earlier ideas in a more restrictive form the initiative represents a new and distinctive interpretation of R2P. However, some aspects of RP are framed too narrowly to provide workable guidelines for determining the permissibility of military intervention for civilian protection purposes, and should therefore be clarified and refined. Nevertheless, the Chinese proposal remains significant because it offers important insights into Beijing’s current stance on R2P. More broadly, China’s RP and Brazil’s RwP initiatives illustrate the growing willingness of rising, non-Western powers to assert their own normative preferences on sovereignty, intervention and global governance.

Duty to the court and the administration of justice : some examples, implications and clarifications

No liberal democracy can survive without popular trust in its judicial system. The legal profession and the judiciary enjoy a level of independence and autonomy from the executive that makes them both powerful and privileged. A UNIQUE AND ORGANIC DUTY: So long as the courts are seen to fulfil their duty to guard against encroachments by the executive on the freedoms and rights of individual citizens with integrity and credibility, they maintain enough public support to retain their normative authority. But support for those with power and privilege is easily undermined. It is contingent upon trust. Lawyers who breach that trust in ways that go to the heart of the legal system ought to expect to be made examples of and to suffer severe penalties. The good news is that the sorts of breach discussed here should be neither difficult to anticipate nor to avoid – in theory. In practice, smart and honest lawyers sometimes fall foul of these duties for all sorts of understandable (if not condonable) reasons. Law does not get practised in a social or cultural vacuum. Lawyers are people, and people have weaknesses, failings and stresses...

What’s law got to do with it?: Medical negligence, causation and the use of policy

In a medical negligence context, and under the causation provisions enacted pursuant to Civil Liability Legislation in most Australian jurisdictions, the normative concept of “scope of liability” requires a consideration of whether or not and why a medical practitioner should be responsible for a patient’s harm. As such, it places a limit on the extent to which practitioners are deemed liable for a breach of the duty of care owed by them, in circumstances where a legal factual connection between that breach and the causation of a patient’s harm has already been shown. It has been said that a determination of causation requires ‘the identification and articulation of an evaluative judgement by reference to “the purposes and policy of the relevant part of the law”’: Wallace v Kam (2013) 297 ALR 383, 388. Accordingly, one of the normative factors falling within scope of liability is an examination of the content and purpose of the rule or duty of care violated – that is, its underlying policy and whether this supports an attribution of legal responsibility upon a practitioner. In this context, and with reference to recent jurisprudence, this paper considers: the policy relevant to a practitioner’s duty of care in each of the areas of diagnosis, treatment and advice; how this has been used to determine an appropriate scope of liability for the purpose of the causation inquiry in medical negligence claims; and whether such an approach is problematic for medical standards or decision-making.

A matter of taste : genetic and environmental influences on responses to sweetness

Diet is a major player in the maintenance of health and onset of many diseases of public health importance. The food choice is known to be largely influenced by sensory preferences. However, in many cases it is unclear whether these preferences and dietary behaviors are innate or acquired. The aim of this thesis work was to study the extent to which the individual differences in dietary responses, especially in liking for sweet taste, are influenced by genetic factors. Several traits measuring the responses to sweetness and other dietary variables were applied in four studies: in British (TwinsUK) and Finnish (FinnTwin12 and FinnTwin16) twin studies and in a Finnish migraine family study. All the subjects were adults and they participated in chemosensory measurements (taste and smell tests) and filled in food behavior questionnaires. Further, it was studied, whether the correlations among the variables are mediated by genetic or environmental factors and where in the genome the genes influencing the heritable traits are located. A study of young adult Finnish twins (FinnTwin16, n=4388) revealed that around 40% of the food use is attributable to genetic factors and that the common, childhood environment does not affect the food use even shortly after moving from the parents home. Both the family study (n=146) and the twin studies (British twins, n=663) showed that around half of the variation in the liking for sweetness is inherited. The same result was obtained both by the chemosensory measurements (heritability 41-49%) and the questionnaire variables (heritability 31-54%). By contrast, the intensity perception of sweetness or the responses to saltiness were not influenced by genetic factors. Further, a locus influencing the use-frequency of sweet foods was identified on chromosome 16p. A closer examination of the relationships among the variables based on 663 British twins revealed that several genetic and environmental correlations exist among the different measures of liking for sweetness. However, these correlations were not very strong (range 0.06-0.55) implying that the instruments used measure slightly different aspects of the phenomenon. In addition, the assessment of the associations among responses to fatty foods, dieting behaviors, and body mass index in twin populations (TwinsUK n=1027 and FinnTwin12 n=299) showed that the dieting behaviors (cognitive restraint, uncontrolled eating, and emotional eating) mediate the relationship between obesity and diet. In conclusion, the work increased the understanding of the background variables of human eating behavior. Genetic effects were shown to underlie the variation of many dietary traits, such as liking for sweet taste, use of sweet foods, and dieting behaviors. However, the responses to salty taste were shown to be mainly determined by environmental factors and thus should more easily be modifiable by dietary education, exposure, and learning than sweet taste preferences. Although additional studies are needed to characterize the genetic element located on chromosome 16 that influences the use-frequency of sweet foods, the results underline the importance of inherited factors on human eating behavior.

Impact of exercise selection on hamstring muscle activation

Objective: To determine the extent to which different strength training exercises selectively activate the commonly injured biceps femoris long head (BFLH) muscle. Methods: This two-part observational study recruited 24 recreationally active males. Part 1 explored the amplitudes and the ratios of lateral to medial hamstring (BF/MH) normalised electromyography (nEMG) during the concentric and eccentric phases of 10 common strength training exercises. Part 2 used functional magnetic resonance imaging (fMRI) to determine the spatial patterns of hamstring activation during two exercises which i) most selectively, and ii) least selectively activated the BF in part 1. Results: Eccentrically, the largest BF/MH nEMG ratio was observed in the 45° hip extension exercise and the lowest was observed in the Nordic hamstring (NHE) and bent-knee bridge exercises. Concentrically, the highest BF/MH nEMG ratio was observed during the lunge and 45° hip extension and the lowest was observed for the leg curl and bent-knee bridge. fMRI revealed a greater BFLH to semitendinosus activation ratio in the 45° hip extension than the NHE (p<0.001). The T2 increase after hip extension for BFLH, semitendinosus and semimembranosus muscles were greater than that for BFSH (p<0.001). During the NHE, the T2 increase was greater for the semitendinosus than for the other hamstrings (p≤0.002). Conclusion: This investigation highlights the non-uniformity of hamstring activation patterns in different tasks and suggests that hip extension exercise more selectively activates the BFLH while the NHE preferentially recruits the semitendinosus. These findings have implications for strength training interventions aimed at preventing hamstring injury.

O Congresso Nacional e a política externa brasileira : posicionamento dos senadores frente às negociações para a formação da ALCA (1994-2005)

Analisa o posicionamento dos integrantes do Congresso Nacional frente às negociações para a formação da Área de Livre Comércio das Américas (ALCA), a concentrar sua atenção sobre o Senado Federal, com eventuais incursões pela Câmara dos Deputados. O período por nós delimitado compreende, respectivamente, o lançamento da proposta pela integração continental, ocorrida na I Cúpula das Américas, nos EUA, em 1994, até o ano de 2005, em que se evidenciou a paralisação do processo negociador. Dois fatores estimularam-nos a realizar esta tarefa. Primeiro, colocar à prova a tese, disseminada pelo senso comum, de que o Parlamento não demonstra interesse por questões ou assuntos internacionais. Segundo, fornecer uma contribuição à escassa bibliografia disponível a respeito da relação entre os congressistas e a produção da política externa brasileira de integração regional, em particular. Apesar de não ignorarmos o papel predominante do Poder Executivo na formulação e condução da política externa nacional, e nem a comprovada carência de mecanismos participativos e decisórios formais à disposição do Parlamento para atuar nas diferentes facetas deste plano, procuramos aferir em que medida a atividade parlamentar se restringe ou não, na prática, ao seu exercício constitucional de aprovar ou rejeitar matérias sobre política exterior, conforme nos aponta o senso comum. O caráter polêmico das negociações e dos debates ocorridos no Brasil a respeito da conformação da ALCA, ao longo de mais de uma década, levou-nos a questionar qual teria sido o posicionamento dos congressistas com relação ao assunto, ou seja, se teriam manifestado interesse em se envolver mais intensamente com a questão, ou se reservado a debatê-la somente na ocasião em que fosse submetida, na forma de um acordo, à sua apreciação. A elaboração do presente trabalho orientou-se pela pretensão em alcançar respostas para duas perguntas formuladas por nós: a ausência de mecanismos formais de participação parlamentar nas negociações sobre a ALCA teria refletido um suposto desinteresse dos senadores pela questão? Em que medida esta referida ausência não teria impelido o Parlamento a buscar influenciar o processo por outros meios, ou até mesmo fomentado demandas pela ampliação de seu papel constitucional no tratamento de questões externas? Para tentar responder a tais perguntas, servimo-nos especialmente dos apanhamentos taquigráficos dos pronunciamentos realizados pelos senadores; de proposições elaboradas pelos congressistas e de atas e notas tquigráficas de audiências públicas promovidas por Comissões do Congresso Nacional.

An exploration of seniors’ motivation to use mobile brain-exercise software

This article reports on the development of an iPhone-based brain-exercise tool for seniors involving a series of focus groups (FGs) and field trials (FTs). Four FGs with 34 participants were conducted aimed at understanding the underlying motivational and de-motivational factors influencing seniors’ engagement with mobile brain-exercise software. As part of the FGs, participants had approximately 40 minutes hands-on experience with commercially available brain-exercise software. A content analysis was conducted on the data resulting in a ranking of 19 motivational factors, of which the top three were challenge, usefulness and familiarity and 15 de-motivational factors, of which the top-three were usability issues, poor communication and games that were too fast. Findings were used to inform the design of three prototype brain-exercise games for the iPhone contained within one overall application, named Brain jog. Subsequently, two FTs were conducted using Brain jog to investigate the part that time exposure has to play in shaping the factors influencing engagement. New factors arose with respect to the initial FGs including the motivational factor feedback and the de-motivational factor boring. The results of this research provide valuable guidelines for the design and evaluation of mobile brain-exercise software for seniors.

Physical Activity, Gender, Weight Status, and Wellbeing in 9- to 11-Year-Old Children: A Cross-Sectional Survey

Background: The aim of this study was to examine the relationship between physical activity and wellbeing in children, and to further explore the extent to which this may vary by gender and weight status. Method: A representative sample of 1424 9- to 11-year-olds completed a self-report measure of physical activity, the Child Health and Illness Profile, KIDSCREEN, and a self-esteem scale. Body Mass Index (BMI) measurements were also obtained. Results: 24% of children achieved the recommended level of 60 minutes of moderate-tovigorous intensity physical activity (MVPA) per day, with more boys than girls achieving this level. Children achieving the recommended level of MVPA scored significantly higher on measures of the Child Health and Illness Profile (F(5, 1354) = 5.03; P < .001), KIDSCREEN (F(3, 1298) = 4.68; P = .003), and self-esteem (F(1,1271) = 18.73; P = .003) than less active children although the effect sizes were small (ηp2 ≈ .01). Substantial gender differences in wellbeing were found reflecting gender specific behaviors and socialization. Weight status had negligible influence on wellbeing. Conclusions: Children who meet the recommended guidelines of MVPA were more likely to have better wellbeing. When attempting to raise children’s physical activity levels consideration should be given to the specific relationships between wellbeing and physical activity.

Realising Justice for victims before the International Criminal Court

The International Criminal Court (ICC) has been celebrated for its innovative victim provisions, which enable victims to participate in proceedings, avail of protection measures and assistance, and to claim reparations. The impetus for incorporating victim provisions within the ICC, came from victims’ dissatisfaction with the ad hoc tribunals in providing them with more meaningful and tangible justice.1 The International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY/R) only included victim protection measures, with no provisions for victims to participate in proceedings nor to claim reparations at them. Developments in domestic and international law, in particular human rights such as the 1985 UN Declaration on Justice for Victims and the UN Guidelines on Remedy and Reparations, and transitional justice mechanisms, such as truth commissions and reparations bodies, have helped to expand the notion of justice for international crimes to be more attuned to victims as key stakeholders in dealing with such crimes.

With the first convictions secured at the ICC and the victim participation and reparation regime taking form, it is worth evaluating the extent to which these innovative provisions have translated into justice for victims. The first part of this paper outlines what justice for victims of international crimes entails, drawing from victimology and human rights. The second section surveys the extent to which the ICC has incorporated justice for victims, in procedural and substantive terms, before concluding in looking beyond the Court to how state parties can complement the ICC in achieving justice for victims. This paper argues that while much progress has been made to institutionalise justice for victims within the Court, there is much more progress needed to evolve and develop justice for victims within the ICC to avoid dissatisfaction of past tribunals.

Activism and Restraint within the UK Supreme Court

This article provides evidence for the extent to which the UK Supreme Court as a body - and Supreme Court Justices as individuals - have displayed an activist or restrained attitude to their decision-making role. Taking October 2009 as the starting point (when the UKSC came into existence) the article surveys the degree to which the Court and individual Justices have (1) departed from precedents, (2) interpreted legislation in unanticipated ways, (3) rejected the government's position on matters of social, economic or foreign policy, and (4) developed the common law. The article concludes that, while the Supreme Court as a whole remains as conservative as the Appellate Committee of the House of Lords which preceded it (with the possible exception of its approach to immigration law), there are notable differences between the attitudes of individual Justices, one or two of whom appear to be straining at the leash.

Using Comparative Reasoning in Human Rights Adjudication:The Court of Justice of the European Union and the European Court of Human Rights Compared

This article examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.

“They should stay at their desk until the work’s done”: a qualitative study examining perceptions of sedentary behaviour in a desk-based occupational setting

Background: Workplace sedentary behaviour is a priority target for health promotion. However, little is known about how to effect change. We aimed to explore desk-based office workers’ perceptions of factors that influenced sedentary behaviour at work and to explore the feasibility of using a novel mobile phone application to track their behaviours.

Methods: We invited office employees (n = 12) and managers (n = 2) in a software engineering company to participate in semi-structured interviews to explore perceived barriers and facilitators affecting workplace sedentary behaviour. We assessed participants’ sedentary behaviours using an accelerometer before and after they used a mobile phone application to record their activities at self-selected time intervals daily for 2 weeks. Interviews were analysed using a thematic framework.

Results: Software engineers (5 employees; 2 managers) were interviewed; 13 tested the mobile phone application; 8 returned feedback. Major barriers to reducing workplace sedentary behaviour included the pressure of ‘getting the job done’, the nature of their work requiring sitting at a computer, personal preferences for the use of time at and after work, and a lack of facilities, such as a canteen, to encourage moving from their desks. Facilitators for reduced sedentariness included having a definite reason to leave their desks, social interaction and relief of physical and mental symptoms of prolonged sitting. The findings were similar for participants with different levels of overall physical activity. Valid accelerometer data were tracked for four participants: all reduced their sedentary behaviour. Participants stated that recording data using the phone application added to their day’s work but the extent to which individuals perceived this as a burden varied and was counter-balanced by its perceived value in increasing awareness of sedentary behaviour. Individuals expressed a wish for flexibility in its configuration.

Conclusions: These findings indicate that employers’ and employees’ perceptions of the cultural context and physical environment of their work, as well as personal factors, must be considered in attempting to effect changes that reduce workplace sedentary behaviour. Further research should investigate appropriate individually tailored approaches to this challenge, using a framework of behaviour change theory which takes account of specific work practices, preferences and settings.

Appropriate complexity for the prediction of coastal and estuarine geomorphic behaviour at decadal to centennial scales

Coastal and estuarine landforms provide a physical template that not only accommodates diverse ecosystem functions and human activities, but also mediates flood and erosion risks that are expected to increase with climate change. In this paper, we explore some of the issues associated with the conceptualisation and modelling of coastal morphological change at time and space scales relevant to managers and policy makers. Firstly, we revisit the question of how to define the most appropriate scales at which to seek quantitative predictions of landform change within an age defined by human interference with natural sediment systems and by the prospect of significant changes in climate and ocean forcing. Secondly, we consider the theoretical bases and conceptual frameworks for determining which processes are most important at a given scale of interest and the related problem of how to translate this understanding into models that are computationally feasible, retain a sound physical basis and demonstrate useful predictive skill. In particular, we explore the limitations of a primary scale approach and the extent to which these can be resolved with reference to the concept of the coastal tract and application of systems theory. Thirdly, we consider the importance of different styles of landform change and the need to resolve not only incremental evolution of morphology but also changes in the qualitative dynamics of a system and/or its gross morphological configuration. The extreme complexity and spatially distributed nature of landform systems means that quantitative prediction of future changes must necessarily be approached through mechanistic modelling of some form or another. Geomorphology has increasingly embraced so-called ‘reduced complexity’ models as a means of moving from an essentially reductionist focus on the mechanics of sediment transport towards a more synthesist view of landform evolution. However, there is little consensus on exactly what constitutes a reduced complexity model and the term itself is both misleading and, arguably, unhelpful. Accordingly, we synthesise a set of requirements for what might be termed ‘appropriate complexity modelling’ of quantitative coastal morphological change at scales commensurate with contemporary management and policy-making requirements: 1) The system being studied must be bounded with reference to the time and space scales at which behaviours of interest emerge and/or scientific or management problems arise; 2) model complexity and comprehensiveness must be appropriate to the problem at hand; 3) modellers should seek a priori insights into what kind of behaviours are likely to be evident at the scale of interest and the extent to which the behavioural validity of a model may be constrained by its underlying assumptions and its comprehensiveness; 4) informed by qualitative insights into likely dynamic behaviour, models should then be formulated with a view to resolving critical state changes; and 5) meso-scale modelling of coastal morphological change should reflect critically on the role of modelling and its relation to the observable world.