Forrest v ASIC : a ‘perfect storm’

The policy objectives of the continuous disclosure regime augmented by the misleading or deceptive conduct provisions in the Corporations Act are to enhance the integrity and efficiency of Australian capital markets by ensuring equality of opportunity for all investors through public access to accurate and material company information to enable them to make well-informed investment decisions. This article argues that there were failures by the regulators in the performance of their roles to protect the interests of investors in Forrest v ASIC; FMG v ASIC (2012) 247 CLR 486: ASX failed to enforce timely compliance with the continuous disclosure regime and ensure that the market was properly informed by seeking immediate clarification from FMG as to the agreed fixed price and/or seeking production of a copy of the CREC agreement; and ASIC failed to succeed in the High Court because of the way it pleaded its case. The article also examines the reasoning of the High Court in Forrest v ASIC and whether it might have changed previous understandings of the Campomar test for determining whether representations directed to the public generally are misleading.

Analysing governance categories used on project alliances in the construction industry

In Australia, collaborative contracts, and in particular, project alliances, have been increasingly used to govern infrastructure projects. These contracts use formal and informal governance mechanisms to manage the delivery of infrastructure projects. Formal mechanisms such as financial risk sharing are specified in the contract, while informal mechanisms such as integrated teams are not. Given that the literature contains a multiplicity of often untestable definitions, this paper reports on a review of the literature to operationalize the concepts of formal and informal governance. This work is the first phase of a study that will examine the optimal balance of formal and informal governance structures. Desk-top review of leading journals in the areas of construction management and business management, as well as recent government documents and industry guidelines, was undertaken to to conceptualise and operationalize formal and informal governance mechanisms. The study primarily draws on transaction-cost economics (e.g. Williamson 1979; Williamson 1991), relational contract theory (Feinman 2000; Macneil 2000) and social psychology theory (e.g. Gulati 1995). Content analysis of the literature was undertaken to identify key governance mechanisms. Content analysis is a commonly used methodology in the social sciences area. It provides rich data through the systematic and objective review of literature (Krippendorff 2004). NVivo 9, a qualitative data analysis software package, was used to assist in this process. A previous study by the authors identified that formal governance mechanisms can be classified into seven measurable categories: (1) negotiated cost, (2) competitive cost, (3) commercial framework, (4) risk and reward sharing, (5) qualitative performance, (6) collaborative multi-party agreement, and (7) early contractor involvement. Similarly, informal governance mechanisms can be classified into four measureable categories: (1) leadership structure, (2) integrated team, (3) team workshops, and (4) joint management system. This paper explores and further defines the key operational characteristics of each mechanism category, highlighting its impact on value for money in alliance project delivery. The paper’s contribution is that it provides the basis for future research to compare the impact of a range of individual mechanisms within each category, as a means of improving the performance of construction projects.

Learning routines used by firms during construction of infrastructure projects using the alliance procurement method

Collaborative contracting has emerged over the past 15 years as an innovative project delivery framework that is particularly suited to infrastructure projects. Australia leads the world in the development of project and program alliance approaches to collaborative delivery. These approaches are considered to promise superior project results. However, very little is known about the learning routines that are most widely used in support of collaborative projects in general and alliance projects in particular. The literature on absorptive capacity and dynamic capabilities indicates that such learning enhances project performance. The learning routines employed at corporate level during the operation of collaborative infrastructure projects in Australia were examined through a large survey conducted in 2013. This paper presents a descriptive summary of the preliminary findings. The survey captured the experiences of 320 practitioners of collaborative construction projects, including public and private sector clients, contractors, consultants and suppliers (three per cent of projects were located in New Zealand, but for brevity’s sake the sample is referred to as Australian). The majority of projects identified used alliances (78.6%); whilst 9% used Early Contractor Involvement (ECI) contracts and 2.7% used Early Tender Involvement contracts, which are ‘slimmer’ types of collaborative contract. The remaining 9.7% of respondents used traditional contracts that employed some collaborative elements. The majority of projects were delivered for public sector clients (86.3%), and/or clients experienced with asset procurement (89.6%). All of the projects delivered infrastructure assets; one third in the road sector, one third in the water sector, one fifth in the rail sector, and the rest spread across energy, building and mining. Learning routines were explored within three interconnected phases: knowledge exploration, transformation and exploitation. The results show that explorative and exploitative learning routines were applied to a similar extent. Transformative routines were applied to a relatively low extent. It was also found that the most highly applied routine is ‘regularly applying new knowledge to collaborative projects’; and the least popular routine was ‘staff incentives to encourage information sharing about collaborative projects’. Future research planned by the authors will examine the impact of these routines on project performance.

Health Care and the Law [Fifth Edition]

"Fully updated to reflect the rapid pace of change in the health law areas. Explains the legal process as it relates to the health care professional."--Libraries Australia. Table of Contents Part I. Introductory concepts -- 1. What is law -- 2. The legal structure -- 3. The legal process -- Part II. Patient relationships -- 4. Consent to health care by a competent adult -- 5. Consent to health care by a legally incompetent person -- 6. Negligence -- 7. Patient information and privacy -- 8. Patients' property -- 9. Contract -- Part III. Employment -- 10. Contracts to provide health care services -- 011. Accidents and injuries related to health care --12. Registration and practice --13. Drugs --14. Criminal law and health care --15. State involvement in birth and death: registration and coronial inquiries --16. State involvement in threats to health or welfare --17. Human tissue transplants and reproductive technology --18. Expanding recognition of human rights --19. Decision making, law and ethics: a discussion.

Phosphodiesterase PDE3, but not PDE4, reduces β1- and β2-adrenoceptor-mediated inotropic and lusitropic effects in failing ventricle from metoprolol-treated patients

Background and purpose Phosphodiesterases PDE3 and/or PDE4 control ventricular effects of catecholamines in several species but their relative effects in failing human ventricle are unknown. We investigated whether the PDE3-selective inhibitor cilostamide (0.3-1μM) or PDE4 inhibitor rolipram (1-10μM) modified the positive inotropic and lusitropic effects of catecholamines in human failing myocardium. Experimental approach Right and left ventricular trabeculae from freshly explanted hearts of 5 non-β-blocker-treated and 15 metoprolol-treated patients with terminal heart failure were paced to contract at 1Hz. The effects of (-)-noradrenaline, mediated through β1-adrenoceptors (β2-adrenoceptors blocked with ICI118551), and (-)-adrenaline, mediated through β2-adrenoceptors (β1-adrenoceptors blocked with CGP20712A), were assessed in the absence and presence of PDE inhibitors. Catecholamine potencies were estimated from –logEC50s. Key results Cilostamide did not significantly potentiate the inotropic effects of the catecholamines in non-β-blocker-treated patients. Cilostamide caused greater potentiation (P=0.037) of the positive inotropic effects of (-)-adrenaline (0.78±0.12 log units) than (-)-noradrenaline (0.47±0.12 log units) in metoprolol-treated patients. Lusitropic effects of the catecholamines were also potentiated by cilostamide. Rolipram did not affect the inotropic and lusitropic potencies of (-)-noradrenaline or (-)-adrenaline on right and left ventricular trabeculae from metoprolol-treated patients. Conclusions and implications Metoprolol induces a control by PDE3 of ventricular effects mediated through both β1- and β2-adrenoceptors, thereby further reducing sympathetic cardiostimulation in patients with terminal heart failure. Concurrent therapy with a PDE3 blocker and metoprolol could conceivably facilitate cardiostimulation evoked by adrenaline through β2-adrenoceptors. PDE4 does not appear to reduce inotropic and lusitropic effects of catecholamines in failing human ventricle.

Buying, selling and building a home

A contract to buy or sell a home is the most important contract most people will ever make. It is crucial that the purchase or sale is made carefully and correctly. Similarly, maintaining a home and undertaking repairs or renovations can be significant aspects of life. This chapter will explore these issues under the broad headings of: • buying a home • selling a home • building or renovating a home.

Statutory right of user - its impact in practice?

Scenario 1 A buys a two storey commercial building built along the only street frontage to the property. Vehicles cannot reach the rear of the property as the building extends across the entire width of the land. A bought the building with full knowledge that vehicular access to the rest of the property had been compromised by a desire to obtain maximum street frontage for the building which was occupied by a commercial tenant. On street parking is scarce in the surrounding area. A (to the knowledge of the adjoining owner B) constructs a carpark at the rear of the building. The employees of A’s tenant have been using the carpark obtaining access via a driveway on B’s land. To formalise this arrangement, A seeks a right of way for vehicles to travel down B’s driveway to access the carpark...

State-of-the-art of the Australian thin bed concrete structural masonry

With a view to minimising the spiraling labour costs, the concrete masonry industry is developing thin layer mortar technology (known as thin bed technology) collaboratively with Queensland University of Technology. Similar technologies are practiced in Europe mainly for clay brick masonry; in the UK thin layer mortared concrete masonry has been researched under commercial contract with limited information published. This paper presents numerous experimental data generated over the past three years. It is shown that this form of masonry requires special drymixed mortar containing a minimum of 2% polymer for improved workability and blocks with tighter height tolerance, both of which might increase the cost of these constituent materials. However, through semiskilled labour, tools to dispense and control the thickness of mortar and the associated increase in productivity, reduction to the overall costs of this form of construction can be achieved. Further the polymer mortar provides several advantages: (1) improved sustainability due to dry curing and (2) potential to construct mortar layers of 2mm thickness and (3) ability for mechanisation of mortar application and control of thickness without the need for skilled labour.

A fair e-tendering protocol

Implementation of an electronic tendering (e-tendering) systems requires careful attention to the needs of the system and its various participants. Fairness in an e-tendering is of utmost importance. Current proposals and implementations do not provide fairness and thus, are vulnerable to collusion and favourism. Dishonest participants, either the principal or tenderer may collude to alter or view competing tenders which would give the favoured tenderer a greater chance of winning the contract. This paper proposes an e-tendering system that is secure and fair to all participants. We employ the techniques of anonymous token system along with signed commitment approach to achieve a publicly verifiable fair e-tendering protocol. We also provide an analysis of the protocol that confirms the security of our proposal against security goals for an e-tendering system.

Insurer and insured

This chapter analyses the obligations insurers and insureds owe each other and the remedies which follow a breach of obligation.

Intellectual Property and Joint Ventures

As in the first edition of the book, this chapter outlines the most important ways in which intellectual property is protected in Australia, and also the factors which affect the rights of joint venture participants in the absence of specific agreement between such participants. It then examines particular issues which may be considered in preparing appropriate documentation for any joint venture which involves the utilisation or generation of intellectual property to ensure that the joint venture participants achieve their desired result in terms of the allocation of ownership and control of such rights. The analysis includes and explanation of the special considerations which affect co-operation in research between industry and a university or government research institution. Finally, the rights of the joint venturers to intellectual property upon termination of the joint ventures are considered. The chapter incorporates the legislative changes and new cases in the field since the publication of the first edition.

Raising levels of awareness of rights and obligations in the provision of financial product advice to retail clients

In September-December 2012, 548 financial planning retail clients and 77 financial advisers responded to online surveys addressing consumer satisfaction with financial planning services and the provision of information concerning regulatory and rights issues. Retail clients commented on areas related to the best interests duty in s 961B of the Corporations Act 2001 (Cth), in particular the extent to which advisers considered their clients’ financial objectives and lifestyle situations, and the client-centredness of the financial advice they received. Retail clients also indicated their level of awareness of their substantive rights in relation to receiving advice, the legal obligations imposed on advisers, and whether they would access internal and external complaints processes if warranted. Advisers reported on the extent to which they provide clients with information relating to their substantive rights, and complaints processes available to them. Responses were analysed in relation to client demographics (e.g., age, gender, education), and experience of financial advice. This article reports on the findings of the surveys and their implications for financial planners.

The cost of changing your mind!

A recent decision of the Queensland Civil and Administrative Tribunal dealt with the liability of a purchaser to pay a termination penalty where a contract for the purchase of a residential property was terminated during the ‘cooling-off’ period. The decision is Lucy Cole Prestige Properties Broadbeach Pty Ltd ATF Gaindri FT Trust t/as Lucy Cole Prestige Properties Broadbeach Pty Ltd v Kastrissios [2013] QCAT 653.

Plain English writing in Sri Lanka - an achievable goal

The use of plain English in document writing, whether in correspondence, agreements and deeds, court documents or judicial writing, is an important goal for the legal profession in Sri Lanka.

When leadership meets organizational change : the influence of the top management team and supervisory leaders on change appraisals, change attitudes, and adjustment to change

Despite the importance of adaption and change for firm survival, the failure rate of organizational change efforts remains alarmingly high (Beer and Nohria, 2000; Kotter, 1995). In a recent global survey of over 3,000 executives,Meaney and Pung (2008) reported that two-thirds of executives indicated that their firm had failed to successfully implement organizational changes. Similarly, academic researchers have also concluded that difficulties in implementing and managing organizational change efforts often precipitate organizational crises (Probst and Raisch, 2005). As a result, attention has been directed to identify the factors that improve the likelihood of successfully implementing organizational change efforts. While there has been practitioner-oriented discussion around the pivotal role of workplace leaders in reducing resistance to change, only a limited number of empirical studies have examined relationships between leader behavior and employee change attitudes (e.g., Bommer, Rich, and Rubin, 2005; Herold, Caldwell, and Liu, 2008; Nemanich and Keller, 2007; Oreg and Berson, 2011). However...