Mental harm, rescuers and the Civil Liability Act 2002 (NSW)

At common law, a duty of care may be owed to a claimant who suffers nervous shock or pure mental harm due to witnessing, or hearing about, physical injury caused to another due to a defendant’s negligence. “Pure mental harm” is the ‘impairment of a person’s mental condition’ that is not suffered as a consequence of any other kind of personal injury to them. However, as many accidents have the potential to create a wide circle of mental suffering to bystanders, family members or others not physically injured themselves, it has traditionally been ‘thought impolitic that everybody so affected should be able to recover damages from the tortfeasor.’ ‘To allow such extended recovery would stretch liability too far.’ Nevertheless, whilst adopting a restrictive approach to liability, the common law courts have recognised that a defendant might owe a duty in relation to the pure mental harm suffered by one who foreseeably attends an accident scene to rescue another from a situation created by the defendant’s negligence.

Review of 'Laying Down the Criminal Law : A Handbook for Youth Workers'

This third edition of Laying down the criminal law: A handbook for youth workers is essential to understanding young people’s experiences with criminal justice in Queensland. The text comprises detailed scenarios of situations where a young person would have contact with the system, and young people ‘in trouble’ (for example, being excluded from school). The text discusses how workers support the young person in talking to police, going to court, or being a victim of crime. One scenario notes how a youth worker responds to 15 year old Stephen staying at a youth shelter after leaving home and having contact with police. Scenarios are supplemented with information about confidentiality and negligence, and how workers consider these concepts supporting young people...

Standardisation and patent ambush : potential liability under Australian competition law

This article examines the problem of patent ambush in standard setting, where patent owners are sometimes able to capture industry standards in order to secure monopoly power and windfall profits. Because standardisation generally introduces high switching costs, patent ambush can impose significant costs on downstream manufacturers and consumers and drastically reduce the efficiency gains of standardisation.This article considers how Australian competition law is likely to apply to patent ambush both in the development of a standard (through misrepresenting the existence of an essential patent) and after a standard is implemented (through refusing to license an essential patented technology either at all or on reasonable and non-discriminatory (RAND) terms). This article suggests that non-disclosure of patent interests is unlikely to restrained by Part IV of the Trade Practices Act (TPA), and refusals to license are only likely to be restrained if the refusal involves leveraging or exclusive dealing. By contrast, Standard Setting Organisations (SSOs) which seek to limit this behaviour through private ordering may face considerable scrutiny under the new cartel provisions of the TPA. This article concludes that SSOs may be best advised to implement administrative measures to prevent patent hold-up, such as reviewing which patents are essential for the implementation of a standard, asking patent holders to make their licence conditions public to promote transparency, and establishing forums where patent licensees can complain about licence terms that they consider to be unreasonable or discriminatory. Additionally, the ACCC may play a role in authorising SSO policies that could otherwise breach the new cartel provisions, but which have the practical effect of promoting competition in the standards setting environment.

Implications of the National Rental Affordability Scheme on the valuation of residential property

The provision of shelter is a basic need and in Australia there has been a history of home ownership. However recent economic growth and rising construction costs, particularly over the past decade, has placed home ownership out of reach for some. In response to increased affordability pressures, the Australian Federal Government established the National Rental Affordability Scheme (NRAS) in 2008. The aim of establishing the NRAS initiative is to stimulate the supply of new affordable rental dwellings, targeting 50,000 new properties by June 2012, through the provision of a National Rental Incentive for each “approved” dwelling. To be approved the dwelling must be newly constructed and subsequently rented to eligible low and moderate income households at rentals no greater than 80 percent of market rates. There is a further requirement that the accommodation be provided as part of the scheme for no less than 10 years. The requirement to provide new residential accommodation at below market rentals for no less than 10 years has an impact on value and as such the valuation methodologies employed. To give guidance to valuers this paper investigates the scheme, the impact on value and expectations for the future.

Attach the correct warning statement

Practitioners will be aware that s 366 (1) of the Property Agents and Motor Dealers Act 2000 provides that a relevant contract must have attached, as its first or top sheet, a warning statement in the approved form. A failure to attach a warning statement in the prescribed manner triggers a right of termination in the buyer. The factual circumstances in Devine Ltd v Timbs [2004] QSC 24 are indicative of the problems that may arise in the construction of this statutory provision. The application concerned put and call option agreements entered into concerning 4 lots. The agreements, in identical terms, were signed before the applicant seller had completed a proposed residential apartment building. In each case the option agreement provided that the agreement was not binding on the seller until and unless the purchaser returned to the seller, amongst other things, two copies of the warning statement under the Property Agents and Motor Dealers Ac 2000 signed by the purchaser and two copies of the contract document signed by the purchaser. The seller was required to hold the contract documentation in escrow and was forbidden to sign it until and unless either option was exercised.

Beware the second offer!

In conveyancing of all types, it is very common that a contract will only be formed after often lengthy negotiations which may involve a counter-offer or multiple counter-offers. At common law, the laws of contract that govern these arrangements are well known and well understood. However, the legislative overlay imposed by the requirements of the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) can create difficulties as illustrated by the result in Rice v Ray [2009] QDC 275.

Can compensation be claimed under the standard commercial land and building contract where the property sold has no legally enforceable vehicular access?

This was the question that confronted Wilson J in Jarema Pty Ltd v Michihiko Kato [2004] QSC 451. Facts The plaintiff was the buyer of a commercial property at Bundall. The property comprised a 6 storey office building with a basement car park with 54 car parking spaces. The property was sold for $5 million with the contract being the standard REIQ/QLS form for Commercial Land and Buildings (2nd ed GST reprint). The contract provided for a “due diligence” period. During this period, the buyer’s solicitors discovered that there was no direct access from a public road to the car park entrance. Access to the car park was over a lot of which the Gold Coast City Council was the registered owner under a nomination of trustees, the Council holding the property on trust for car parking and town planning purposes. Due to the absence of a registered easement over the Council’s land, the buyer’s solicitors sought a reduction in the purchase price. The seller would not agree to this. Finally the sale was completed with the buyer reserving its rights to seek compensation.

Managing wetlands sustainably as ecosystems : The contribution of the law (part 1)

The ways in which a society set standards of behaviour and of conduct for its members vary hugely. For example, accepted practices, recognised customs, spiritually or morally inspired norms, judicially declared rules, executively formulated edicts, formal legislative enactments or constitutionally embedded rights and duties. Whatever form they assume, these standards are the artificial construction of the human mind. Accordingly the law - whatever its form - can do no more and no less than regulate or set standards for human behaviour, human conduct, and human decision-making. The law cannot regulate the environment. It can only regulate human activities that impact directly or indirectly upon the environment. This applies as much to wetlands as components of the environment as it does to any other components of the environment or the environment at large. The capacity of the law to protect the environment and therefore wetlands is thus totally dependent upon the capacity of the law to regulate human behaviour, human conduct and human decision-making. At the same time the law needs to reflect the specific nature, functions and locations of wetlands. A wetland is an ecosystem by itself; it comprises a range of ecosystems within it; and it is part of a wider set of ecosystems. Hence, the significant ecological functions performed by wetlands. Then there are the benefits flowing to humans from wetlands. These may be social, economic, cultural, aesthetic, or a combination of some or of all of these. It is a challenge for a society acting through its legal system to find the appropriate balance between these ecological and these human values. But that is what sustainability requires.The ways in which a society set standards of behaviour and of conduct for its members vary hugely. For example, accepted practices, recognised customs, spiritually or morally inspired norms, judicially declared rules, executively formulated edicts, formal legislative enactments or constitutionally embedded rights and duties. Whatever form they assume, these standards are the artificial construction of the human mind. Accordingly the law - whatever its form - can do no more and no less than regulate or set standards for human behaviour, human conduct, and human decision-making. The law cannot regulate the environment. It can only regulate human activities that impact directly or indirectly upon the environment. This applies as much to wetlands as components of the environment as it does to any other components of the environment or the environment at large. The capacity of the law to protect the environment and therefore wetlands is thus totally dependent upon the capacity of the law to regulate human behaviour, human conduct and human decision-making. At the same time the law needs to reflect the specific nature, functions and locations of wetlands. A wetland is an ecosystem by itself; it comprises a range of ecosystems within it; and it is part of a wider set of ecosystems. Hence, the significant ecological functions performed by wetlands. Then there are the benefits flowing to humans from wetlands. These may be social, economic, cultural, aesthetic, or a combination of some or of all of these. It is a challenge for a society acting through its legal system to find the appropriate balance between these ecological and these human values. But that is what sustainability requires.

Managing Wetlands Sustainably as Ecosystems: The Contribution of the Law (Part 2)

In this Part 2 attention is turned towards the legal arrangements in nation states for managing wetlands. These national arrangements have effect within the international arrangements already mentioned and any regional arrangements that are relevant. However, each national system is a reflection of its own historical, cultural, political and constitutional background. It is the purpose of this Part 2 to review and assess the national approaches to wetlands management. This involves an analysis of a range of instruments. These are: constitutional rules; strategic rules; regulatory rules; and management rules. Each of these sets of rules performs different functions, assumes different forms and is differentially capable of enforcement.

Drug law enforcement : a review of the evaluation literature

This article describes the results of a systematic review of drug law enforcement evaluations. The authors describe the search procedures and document the results in five main categories: international/national interventions (e.g., interdiction and drug seizure), reactive/ directed interventions (e.g., crackdowns, raids, buy-busts, saturation patrol, etc.), proactive/ partnership interventions (e.g., third-party policing, problem-oriented policing, community policing, drug nuisance abatement, etc.), individualized interventions (e.g., arrest referral and diversion), or interventions that used a combination of reactive/directed and proactive/ partnership strategies. Results indicate that proactive interventions involving partnerships between the police and third parties and/or community entities appear to be more effective at reducing both drug and nondrug problems in drug problem places than are reactive/ directed approaches. But the general quality of research in drug law enforcement is poor, the range of interventions that have been evaluated is limited, and more high-quality research is needed across a greater variety of drug interventions.

Providing a law degree for the 'real world' : perspective of an Australian law school

This paper focuses on the ‘real world’ approach to the degree achieved through the first year program, embedding and scaffolding law graduate capabilities through authentic and valid assessment and work integrated learning to assist graduates with transition into the workplace.

Insurance and the law of negligence : an influential or irrelevant persuader?

This article examines, from both within and outside the context of compulsory third party motor vehicle insurance, the different academic and judicial perspectives regarding the relevance of insurance to the imposition of negligence liability via the formulation of legal principle. In particular, the utility of insurance in setting the standard of care held owing by a learner driver to an instructor in Imbree v McNeilly is analysed and the implications of this High Court decision, in light of current jurisprudential argument and for other principles of negligence liability, namely claimant vulnerability, are considered. It concludes that ultimately one’s stance as to the relevance, or otherwise, of insurance to the development of the common law of negligence will be predominately influenced by normative views of torts’ function as an instrument of corrective or distributive justice.

Elections 2.0 : reflections on the 2010 federal election and the future of Australian electoral law

This article analyses the 2010 federal election and the impact the internet and social media had on electoral law, and what this may mean for electoral law in the future. Four electoral law issues arising out of the 2010 election as a result of the internet are considered, including online enrolment, regulation of online advertising and comment, fundraising and the role of lobby groups, especially when it comes to crowdsourcing court challenges. Finally, the article offers some suggestions as to how the parliament and the courts should respond to these challenges.