Debts “incurred” by receivers, administrators and liquidators : the case for a harmonised construction of ss 419, 443A and 556(1)(a) of the Corporations Act

This article analyses the inconsistent approaches taken by courts when interpreting provisions of the Corporations Act which address debts or expenses “incurred” by receivers, administrators and liquidators. The article contends for a consistent construction of these provisions which will enable the legislation to operate (as was intended) for the benefit of persons who supply goods, services or labour to companies in external administration. The article explains how and why debts can be “incurred” by insolvency practitioners continuing on pre-existing contracts. Specifically, the article contends for a construction of ss 419 and 443A of the Corporations Act which renders receivers and administrators personally liable for certain entitlements of employees (eg, wages and superannuation contributions) which become due and payable by reason of the decision of a receiver or administrator to continue a pre-existing contract rather than terminate it.

Submission to House Standing Committee on Infrastructure and Communications inquiry into IT Pricing

The strategies of price discrimination engaged in by a number of international publishers, coupled with a lack of competition and restrictions on the ability of consumers to engage in arbitrage, is likely to undermine the legitimacy of copyright law in Australia. By increasing prices beyond a reasonable and fair level, these strategies also undermine the goal of copyright law to enhance access to cultural goods. Enhancing access – and therefore lowering prices – is crucial to enhancing Australia's innovative capacity and the ability of Australians to experience, learn, act, and grow through cultural works. We recommend that the committee investigates the following options: 1. Repeal parallel importation restrictions; 2. Fundamentally reconsider the operation of anti-circumvention law in the context of digital distribution models; 3. Prohibit and render unenforceable contractual restrictions on parallel importation; 4. Introduce a right of digital resale in Australia.

Walk@Work : an automated intervention to increase walking in university employees not achieving 10,000 daily steps

This study assessed the workday step counts of lower active (<10,000 daily steps) university employees using an automated, web-based walking intervention (Walk@Work). METHODS: Academic and administrative staff (n=390; 45.6±10.8years; BMI 27.2±5.5kg/m2; 290 women) at five campuses (Australia [x2], Canada, Northern Ireland and the United States), were given a pedometer, access to the website program (2010-11) and tasked with increasing workday walking by 1000 daily steps above baseline, every two weeks, over a six week period. Step count changes at four weeks post intervention were evaluated relative to campus and baseline walking. RESULTS: Across the sample, step counts significantly increased from baseline to post-intervention (1477 daily steps; p=0.001). Variations in increases were evident between campuses (largest difference of 870 daily steps; p=0.04) and for baseline activity status. Those least active at baseline (<5000 daily steps; n=125) increased step counts the most (1837 daily steps; p=0.001), whereas those most active (7500-9999 daily steps; n=79) increased the least (929 daily steps; p=0.001). CONCLUSIONS: Walk@Work increased workday walking by 25% in this sample overall. Increases occurred through an automated program, at campuses in different countries, and were most evident for those most in need of intervention.

Practice and Procedure : Workers Compensation and Rehabilitation Act 2003 (Qld) ss 131 and 237(1)

In Jacobs v Woolworths Limited [2010] QSC 24 Jones J was required to determine whether a worker who had lodged an application for compensation for an injury outside the time prescribed under the Workers Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) was precluded from seeking common law damages for that injury. This determination depended upon the proper construction of s 131 of the Act, and what was to be understood by the words “worker who has not lodged an application for compensation for the injury” for the purpose of s 237(1)(d).

Legal Profession Act 2007 : entitlement to itemised bill – meaning of “client” – meaning of “third party payer”

In Legal Services Commissioner and Wright [2010] QSC 168 and Amos v Ian K Fry & Company, the Supreme Court of Queensland considered the scope of some of the provisions of the Legal Profession Act 2007 (Qld), including the definition of “third party payer” in s 301 of the Act.

Arbitration proceeding – determination of “market price” – subpoena under Commercial Arbitration Act 1990 s 17

AGL Wholesale Gas Ltd v Origin Energy Ltd [2008] QCA 366 involved an appeal against the setting aside of paragraphs of a subpoena issued under s 17 of the Commercial Arbitration Act 1990 (Qld). The Court was satisfied that even if the documents were of “apparent relevance” to the subject matter of the proceedings, it would nevertheless be oppressive to require their production.

Legal Profession Act 2004 (NSW) : costs agreement between law practice and client - whether binding on non-associated third party payer

The decision in the New South Wales Supreme Court in Boyce v McIntyre [2008] NSWSC 1218 involved determination of a number of issues relating to an assessment of costs under the Legal Profession Act 2004 (NSW). The issue of broad significance was whether a non-associated third party payer must pay the fixed fee that was agreed between the law practice and the client. The court found that the client agreement did not form the basis of assessing costs for the non-associated third party payer.

Personal Injuries Proceedings Act 2002 s 27(1) – duty of respondent to give information and documents

In Hare v Mount Isa City Council [2009] QDC 39 McGill DCJ examined the scope of s 27(1) of the Personal Injuries Proceedings Act 2002 (Qld) and its interpretation by the Court of Appeal in Haug v Jupiters Ltd [2008] 1 Qd R 276. The judge expressed a number of concerns about the Act and the Regulation made under it, that are worthy of consideration by the Legislature.

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.

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.

UCPR 229 - defamation proceedings – damages to be assessed – application to interrogate as to defendant’s motive - implications of Defamation ACT 2005 - application to interrogate before action - when in the interests of justice

In Hogan v Ellery [2009] QDC 154 McGill DCJ considered two applications for leave to deliver interrogatories under r 229 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). The judgment provides useful analysis of the circumstances in which a plaintiff may obtain leave to deliver interrogatories to a defendant in defamation proceedings, and also to a non-party before action.

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.

Work integrated research higher degree studies : experiences, benefits, barriers and coping strategies

Attributed to the changing social, political and economic landscape of the ‘knowledge economy’, Australian universities are under pressure to produce researchers that have a variety of skills which meet the demands of an increasingly diverse job market. As a consequence, the Australian PhD now includes a range of doctoral degrees. This paper reports on the experiences of two PhD students engaged in an informally managed research higher degree program described in this paper as a Work Integrated Research Higher Degree (WIRHD). Their learning process shares the attributes from both the traditional PhD program and professional doctorates. However, because of the blended nature of the learning contexts, what students need to manage within the WIRHD is much more complicated than the established RHD programs. An exploratory case study approach exploring experiences, benefits, barriers and coping strategies was conducted with the view to develop a preliminary integrative framework that attempts to explain the various contexts that influence the learning experience of WIRHD candidates. The paper concludes with some recommended strategies for helping WIRHD candidates to manage the challenges associated with their learning process.

‘The health-location connection’: using GIS and social media on smartphones to track engagement with the Local urban environment for work, recreation, and physical activity

A technologically innovative study was undertaken across two suburbs in Brisbane, Australia, to assess socioeconomic differences in women's use of the local environment for work, recreation, and physical activity. Mothers from high and low socioeconomic suburbs were instructed to continue with usual daily routines, and to use mobile phone applications (Facebook Places, Twitter, and Foursquare) on their mobile phones to ‘check-in’ at each location and destination they reached during a one-week period. These smartphone applications are able to track travel logistics via built-in geographical information systems (GIS), which record participants’ points of latitude and longitude at each destination they reach. Location data were downloaded to Google Earth and excel for analysis. Women provided additional qualitative data via text regarding the reasons and social contexts of their travel. We analysed 2183 ‘check-ins’ for 54 women in this pilot study to gain quantitative, qualitative, and spatial data on human-environment interactions. Data was gathered on distances travelled, mode of transport, reason for travel, social context of travel, and categorised in terms of physical activity type – walking, running, sports, gym, cycling, or playing in the park. We found that the women in both suburbs had similar daily routines with the exception of physical activity. We identified 15% of ‘check-ins’ in the lower socioeconomic group as qualifying for the physical activity category, compared with 23% in the higher socioeconomic group. This was explained by more daily walking for transport (1.7kms to 0.2kms) and less car travel each week (28.km to 48.4kms) in the higher socioeconomic suburb. We ascertained insights regarding the socio-cultural influences on these differences via additional qualitative data. We discuss the benefits and limitations of using new technologies and Google Earth with implications for informing future physical and social aspects of urban design, and health promotion in socioeconomically diverse cities.

The role of, and key considerations for, advertising campaigns and educational awareness workshops within the work-related road safety context

Australian and international evidence suggests that, in the work-related driving context, road crashes account for a substantial number of occupational incidents. In the attempt to reduce injury and improve safety, organisations may implement an array of strategies and interventions ranging from policy development and implementation, vehicle selection and incident monitoring through to education and awareness-raising. This conceptual paper discusses aspects relating to the latter collection of interventions and, in particular, the role, and some key considerations with respect to the content and dissemination, of advertising campaigns and educational awareness workshops. In relation to advertising campaigns, this paper discusses how some of the overarching principles associated with advertising in the broader general community road safety strategy also apply within the work-related road safety context. Specifically, advertising campaigns/materials should be viewed as a key component within a dedicated organisational approach to road (driver) safety. This dedicated approach would need to comprise of a number, and varied array, of strategies. In addition, the content of, and medium/s (e.g., posters) by which to deliver such advertising campaigns, cannot be addressed by a one-size-fits all approach but, rather, requires careful consideration of the needs as well as characteristics of specific organisations and their driver fleet. The paper provides a summary of some key considerations when devising an advertising campaign, including the nature of campaign/message content as well as the processes by which to devise and refine such content. In relation to driver education awareness workshops, this paper outlines the key considerations for delivering a series of workshops specifically aimed at occupational driving within the organisational context. A case study approach will be utilised to demonstrate the manner in which educational awareness workshops can compliment successful advertising campaigns promoting safer work related driving through better risk management practice. Research underpinning the development of driver behaviour modification tools incorporated within the workshops will also be discussed along with the mechanisms utilised to encourage improvements in driver monitoring and behaviour. In an effort to assist organisations with their continual search for cost-effective approaches which may, ultimately, contribute to improvements in driver behaviour and safety, the current paper offers some clear and practical suggestions in relation to the development and dissemination of two types of interventions, advertising campaigns and education awareness workshops.