Costs assessor selection: A question of timing, or cost?

In Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa [2014] QCA 63 the Queensland Court of Appeal dealt with significant questions of general application relating to the appointment of assessors to conduct an assessment of costs under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

The empire of cancer: Gene patents and cancer voices

In his book, The Emperor of All Maladies, Siddhartha Mukherjee writes a history of cancer — "It is a chronicle of an ancient disease — once a clandestine, 'whispered-about' illness — that has metamorphosed into a lethal shape-shifting entity imbued with such penetrating metaphorical, medical, scientific, and political potency that cancer is often described as the defining plague of our generation." Increasingly, an important theme in the history of cancer is the role of law, particularly in the field of intellectual property law. It is striking that a number of contemporary policy debates over intellectual property and public health have concerned cancer research, diagnosis, and treatment. In the area of access to essential medicines, there has been much debate over Novartis’ patent application in respect of Glivec, a treatment for leukaemia. India’s Supreme Court held that the Swiss company’s patent application violated a safeguard provision in India’s patent law designed to stop evergreening. In the field of tobacco control, the Australian Government introduced plain packaging for tobacco products in order to address the health burdens associated with the tobacco epidemic. This regime was successfully defended in the High Court of Australia. In the area of intellectual property and biotechnology, there have been significant disputes over the Utah biotechnology company Myriad Genetics and its patents in respect of genetic testing for BRCA1 and BRCA2, which are related to breast cancer and ovarian cancer. The Federal Court of Australia handed down a decision on the validity of Myriad Genetics’ patent in respect of genetic testing for BRCA1 in February 2013. The Supreme Court of the United States heard a challenge to the validity of Myriad Genetics’ patents in this area in April 2013, and handed down a judgment in July 2013. Such disputes have involved tensions between intellectual property rights, and public health. This article focuses upon one of these important test cases involving intellectual property, public health, and cancer research. In June 2010, Cancer Voices Australia and Yvonne D’Arcy brought an action in the Federal Court of Australia against the validity of a BRCA1 patent — held by Myriad Genetics Inc, the Centre de Recherche du Chul, the Cancer Institute of Japan and Genetic Technologies Limited. Yvonne D’Arcy — a Brisbane woman who has had treatment for breast cancer — maintained: "I believe that what they are doing is morally and ethically corrupt and that big companies should not control any parts of the human body." She observed: "For my daughter, I've had her have [sic] mammograms, etc, because of me but I would still like her to be able to have the test to see if the mutation gene is in there from me." The applicants made the following arguments: "Genes and the information represented by human gene sequences are products of nature universally present in each individual, and the information content of a human gene sequence is fixed. Genetic variations or mutations are products of nature. The isolation of the BRCA1 gene mutation from the human body constitutes no more than a medical or scientific discovery of a naturally occurring phenomenon and does not give rise to a patentable invention." The applicants also argued that "the alleged invention is not a patentable invention in that, so far as claimed in claims 1–3, it is not a manner of manufacture within the meaning of s 6 of the Statute of Monopolies". The applicants suggested that "the alleged invention is a mere discovery". Moreover, the applicants contended that "the alleged invention of each of claims 1-3 is not a patentable invention because they are claims for biological processes for the generation of human beings". The applicants, though, later dropped the argument that the patent claims related to biological processes for the generation of human beings. In February 2013, Nicholas J of the Federal Court of Australia considered the case brought by Cancer Voices Australia and Yvonne D’Arcy against Myriad Genetics. The judge presented the issues in the case, as follows: "The issue that arises in this case is of considerable importance. It relates to the patentability of genes, or gene sequences, and the practice of 'gene patenting'. Briefly stated, the issue to be decided is whether under the Patents Act 1990 (Cth) a valid patent may be granted for a claim that covers naturally occurring nucleic acid — either deoxyribonucleic acid (DNA) or ribonucleic acid (RNA) — that has been 'isolated'". In this context, the word "isolated" implies that naturally occurring nucleic acid found in the cells of the human body, whether it be DNA or RNA, has been removed from the cellular environment in which it naturally exists and separated from other cellular components also found there. The genes found in the human body are made of nucleic acid. The particular gene with which the patent in suit is concerned (BRCA1) is a human breast and ovarian cancer disposing gene. Various mutations that may be present in this gene have been linked to various forms of cancer including breast cancer and ovarian cancer.' The judge held in this particular case that Myriad Genetics’ patent claims were a "manner of manufacture" under s 6 of the Statute of Monopolies and s 18(1)(a) of the Patents Act 1990 (Cth). The matter is currently under appeal in the Full Court of the Federal Court of Australia. This article interprets the dispute over Myriad Genetics in light of the scholarly work of Nobel Laureate Professor Joseph Stiglitz on inequality. Such work has significant explanatory power in the context of intellectual property and biotechnology. First, Stiglitz has contended that "societal inequality was a result not just of the laws of economics, but also of how we shape the economy — through politics, including through almost every aspect of our legal system". Stiglitz is concerned that "our intellectual property regime … contributes needlessly to the gravest form of inequality." He maintains: "The right to life should not be contingent on the ability to pay." Second, Stiglitz worries that "some of the most iniquitous aspects of inequality creation within our economic system are a result of 'rent-seeking': profits, and inequality, generated by manipulating social or political conditions to get a larger share of the economic pie, rather than increasing the size of that pie". He observes that "the most iniquitous aspect of this wealth appropriation arises when the wealth that goes to the top comes at the expense of the bottom." Third, Stiglitz comments: "When the legal regime governing intellectual property rights is designed poorly, it facilitates rent-seeking" and "the result is that there is actually less innovation and more inequality." He is concerned that intellectual property regimes "create monopoly rents that impede access to health both create inequality and hamper growth more generally." Finally, Stiglitz has recommended: "Government-financed research, foundations, and the prize system … are alternatives, with major advantages, and without the inequality-increasing disadvantages of the current intellectual property rights system.’" This article provides a critical analysis of the Australian litigation and debate surrounding Myriad Genetics’ patents in respect of genetic testing for BRCA1. First, it considers the ruling of Nicholas J in the Federal Court of Australia that Myriad Genetics’ patent was a manner of manufacture as it related to an artificially created state of affairs, and not mere products of nature. Second, it examines the policy debate over gene patents in Australia, and its relevance to the litigation involving Myriad Genetics. Third, it examines comparative law, and contrasts the ruling by Nicholas J in the Federal Court of Australia with developments in the United States, Canada, and the European Union. Fourth, this piece considers the reaction to the decision of Nicholas at first instance in Australia. Fifth, the article assesses the prospects of an appeal to the Full Federal Court of Australia over the Myriad Genetics’ patents. Finally, this article observes that, whatever happens in respect of litigation against Myriad Genetics, there remains controversy over Genetic Technologies Limited. The Melbourne firm has been aggressively licensing and enforcing its related patents on non-coding DNA and genomic mapping.

The issue of consent: For the plaintiff or defendant to prove in trespass to person?

In White v Johnston1 the vexed question of whether it is for a plaintiff to prove lack of consent to a trespass to person or for the defendant to establish consent as defence was considered. The court also considered the principles of assessing an award of exemplary damages...

ACE Research Vignette 043: Can academic entrepreneurship research identify and explain the next Apple, Google, or (even) Halfbrick studios?

This series of research vignettes is aimed at sharing current and interesting research findings from our team of international entrepreneurship researchers. This vignette, written by Professor Per Davidsson, reports findings on the extremely skewed distributions of entrepreneurship outcomes and other key variables of interest to entrepreneurship research and practice, as well as what this means for what and how we can learn through academic research.

Pull the plug or take the plunge: Multiple opportunities and the speed of venturing decisions in the Australian mining industry

Effectively capturing opportunities requires rapid decision-making. We investigate the speed of opportunity evaluation decisions by focusing on firms' venture termination and venture advancement decisions. Experience, standard operating procedures, and confidence allow firms to make opportunity evaluation decisions faster; we propose that a firm's attentional orientation, as reflected in its project portfolio, limits the number of domains in which these speed-enhancing mechanisms can be developed. Hence firms' decision speed is likely to vary between different types of decisions. Using unique data on 3,269 mineral exploration ventures in the Australian mining industry, we find that firms with a higher degree of attention toward earlier-stage exploration activities are quicker to abandon potential opportunities in early development but slower to do so later, and that such firms are also slower to advance on potential opportunities at all stages compared to firms that focus their attention differently. Market dynamism moderates these relationships, but only with regard to initial evaluation decisions. Our study extends research on decision speed by showing that firms are not necessarily fast or slow regarding all the decisions they make, and by offering an opportunity evaluation framework that recognizes that decision makers can, in fact often do, pursue multiple potential opportunities simultaneously.

Intravascular device administration sets: Replacement after standard versus prolonged use in hospitalised patients--a study protocol for a randomised controlled trial (The RSVP Trial)

Introduction Vascular access devices (VADs), such as peripheral or central venous catheters, are vital across all medical and surgical specialties. To allow therapy or haemodynamic monitoring, VADs frequently require administration sets (AS) composed of infusion tubing, fluid containers, pressure-monitoring transducers and/or burettes. While VADs are replaced only when necessary, AS are routinely replaced every 3–4 days in the belief that this reduces infectious complications. Strong evidence supports AS use up to 4 days, but there is less evidence for AS use beyond 4 days. AS replacement twice weekly increases hospital costs and workload. Methods and analysis This is a pragmatic, multicentre, randomised controlled trial (RCT) of equivalence design comparing AS replacement at 4 (control) versus 7 (experimental) days. Randomisation is stratified by site and device, centrally allocated and concealed until enrolment. 6554 adult/paediatric patients with a central venous catheter, peripherally inserted central catheter or peripheral arterial catheter will be enrolled over 4 years. The primary outcome is VAD-related bloodstream infection (BSI) and secondary outcomes are VAD colonisation, AS colonisation, all-cause BSI, all-cause mortality, number of AS per patient, VAD time in situ and costs. Relative incidence rates of VAD-BSI per 100 devices and hazard rates per 1000 device days (95% CIs) will summarise the impact of 7-day relative to 4-day AS use and test equivalence. Kaplan-Meier survival curves (with log rank Mantel-Cox test) will compare VAD-BSI over time. Appropriate parametric or non-parametric techniques will be used to compare secondary end points. p Values of <0.05 will be considered significant.

Food justice or food sovereignty? Understanding the rise of urban food movements in the USA

As world food and fuel prices threaten expanding urban populations, there is greater need for the urban poor to have access and claims over how and where food is produced and distributed. This is especially the case in marginalized urban settings where high proportions of the population are food insecure. The global movement for food sovereignty has been one attempt to reclaim rights and participation in the food system and challenge corporate food regimes. However, given its origins from the peasant farmers' movement, La Via Campesina, food sovereignty is often considered a rural issue when increasingly its demands for fair food systems are urban in nature. Through interviews with scholars, urban food activists, non-governmental and grassroots organizations in Oakland and New Orleans in the United States of America, we examine the extent to which food sovereignty has become embedded as a concept, strategy and practice. We consider food sovereignty alongside other dominant US social movements such as food justice, and find that while many organizations do not use the language of food sovereignty explicitly, the motives behind urban food activism are similar across movements as local actors draw on elements of each in practice. Overall, however, because of the different histories, geographic contexts, and relations to state and capital, food justice and food sovereignty differ as strategies and approaches. We conclude that the US urban food sovereignty movement is limited by neoliberal structural contexts that dampen its approach and radical framework. Similarly, we see restrictions on urban food justice movements that are also operating within a broader framework of market neoliberalism. However, we find that food justice was reported as an approach more aligned with the socio-historical context in both cities, due to its origins in broader class and race struggles.

To sonicate or not to sonicate PM filters: Reactive Oxygen Species generation upon ultrasonic irradiation

In aerosol research, a common approach for the collection of particulate matter (PM) is the use of filters in order to obtain sufficient material to undertake analysis. For subsequent chemical and toxicological analyses, in most of cases the PM needs to be extracted from the filters. Sonication is commonly used to most efficiently extract the PM from the filters. Extraction protocols generally involve 10 - 60 min of sonication. The energy of ultrasonic waves causes the formation and collapse of cavitation bubbles in the solution. Inside the collapsing cavities the localised temperatures and pressures can reach extraordinary values. Although fleeting, such conditions can lead to pyrolysis of the molecules present inside the cavitation bubbles (gases dissolved in the liquid and solvent vapours), which results in the production of free radicals and the generation of new compounds formed by reactions with these free radicals. For example, simple sonication of pure water will result in the formation of detectable levels of hydroxyl radicals. As hydroxyl radicals are recognised as playing key roles as oxidants in the atmosphere the extraction of PM from filters using sonication is therefore problematic. Sonication can result in significant chemical and physical changes to PM through thermal degradation and other reactions. In this article, an overview of sonication technique as used in aerosol research is provided, the capacity for radical generation under these conditions is described and an analysis is given of the impact of sonication-derived free radicals on three molecular probes commonly used by researchers in this field to detect Reactive Oxygen Species in PM.

Compensation or consideration for a statutory right of user?

Section 180 of the Property Law Act 1974 (Qld) makes provision for an applicant to seek a statutory right of user over a neighbour’s property where such right of use is reasonably necessary in the interests of effective use in any reasonable manner of the dominant land. A key issue in an application under s 180 is compensation. Unfortunately, while s 180 expressly contemplates that an order for compensation will include provision for payment of compensation to the owner of servient land there are certain issues that are less clear. One of these is the basis for determination of the amount of compensation. In this regard, s 180(4)(a) provides that, in making an order for a statutory right of user, the court: (a) shall, except in special circumstances, include provision for payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the court to be just The operation of this statutory provision was considered by de Jersey CJ (as he then was) in Peulen v Agius [2015] QSC 137.

Who is the good high school student?

Schooling is one of the core experiences of most young people in the Western world. This study examines the ways that students inhabit subjectivities defined in their relationship to some normalised good student. The idea that schools exist to produce students who become good citizens is one of the basic tenets of modernist educational philosophies that dominate the contemporary education world. The school has become a political site where policy, curriculum orientations, expectations and philosophies of education contest for the ‘right’ way to school and be schooled. For many people, schools and schooling only make sense if they resonate with past experiences. The good student is framed within these aspects of cultural understanding. However, this commonsense attitude is based on a hegemonic understanding of the good, rather than the good student as a contingent multiplicity that is produced by an infinite set of discourses and experiences. In this book, author Greg Thompson argues that this understanding of subjectivities and power is crucial if schools are to meet the needs of a rapidly changing and challenging world. As a high school teacher for many years, Thompson often wondered how students responded to complex articulations on how to be a good student. How a student can be considered good is itself an articulation of powerful discourses that compete within the school. Rather than assuming a moral or ethical citizen, this study turns that logic on it on its head to ask students in what ways they can be good within the school. Visions of the good student deployed in various ways in schools act to produce various ways of knowing the self as certain types of subjects. Developing the postmodern theories of Foucault and Deleuze, this study argues that schools act to teach students to know themselves in certain idealised ways through which they are located, and locate themselves, in hierarchical rationales of the good student. Problematising the good student in high schools engages those institutional discourses with the philosophy, history and sociology of education. Asking students how they negotiate or perform their selves within schools challenges the narrow and limiting ways that the good is often understood. By pushing the ontological understandings of the self beyond the modernist philosophies that currently dominate schools and schooling, this study problematises the tendency to see students as fixed, measurable identities (beings) rather than dynamic, evolving performances (becomings). Who is the Good High School Student? is an important book for scholars conducting research on high school education, as well as student-teachers, teacher educators and practicing teachers alike.

To increase or decrease dosage of antimicrobials in septic patients during continuous renal replacement therapy: the eternal doubt

Critical illness, acute renal failure and continuous renal replacement therapy (CRRT) are associated with changes in pharmacokinetics. Initial antibiotic dose should be based on published volume of distribution and generally be at least the standard dose, as volume of distribution is usually unchanged or increased. Subsequent doses should be based on total clearance. Total clearance varies with the CRRT clearance which mainly depends on effluent flow rate, sieving coefficient/saturation coefficient. As antibiotic clearance by healthy kidneys is usually higher than clearance by CRRT, except for colistin, subsequent doses should generally be lower than given to patients without renal dysfunction. In the future therapeutic drug monitoring, together with sophisticated pharmacokinetic models taking into account the pharmacokinetic variability, may enable more appropriate individualized dosing.

Friends or foes: Group influence effects on moderate drinking behaviors

Drunkenness and the addictive consumption of alcohol remains a key social and public health concern. Advancing beyond traditional individualized prevention approaches, this research explores the role of social influences in determining individual and group influence in moderate-drinking decision-making and participatory actions. A social influence model of intentional moderate drinking actions is conceptualized and validated. Results show group norm as the single social influence predictor of intentions and desire to drink moderately, as opposed to well-known social influence factors (e.g., subjective norm, social identity and drinking contextual effects). Significantly, the peer-group is identified as a key influencer supporting moderate drinking practices, and i-intentions to drink moderately predict group-related we-intentions, which suggests that moderate drinking is a shared goal. These findings advance alcohol prevention research drawing attention to the power of group dynamics to support positive changes in youth drinking behaviors.

Napster: Infinite digital jukebox or pirate bazaar?

This paper considers the copyright litigation over the file-sharing program, Napster. The first section examines the culture of collecting at work in Napster. The next part examines the litigation by the major record companies and Metallica against Napster. The final section considers the future of file-sharing, looking at alternatives to Napster, such as Filetopia, Freenet, Gnutella, MP3board.com and streaming media.

Trick or treaty?: The Australian debate over the Anti-Counterfeiting Trade Agreement

The secretive 2011 Anti-Counterfeiting Trade Agreement – known in short by the catchy acronym ACTA – is a controversial trade pact designed to provide for stronger enforcement of intellectual property rights. The preamble to the treaty reads like pulp fiction – it raises moral panics about piracy, counterfeiting, organised crime, and border security. The agreement contains provisions on civil remedies and criminal offences; copyright law and trademark law; the regulation of the digital environment; and border measures. Memorably, Susan Sell called the international treaty a TRIPS Double-Plus Agreement, because its obligations far exceed those of the World Trade Organization's TRIPS Agreement 1994, and TRIPS-Plus Agreements, such as the Australia-United States Free Trade Agreement 2004. ACTA lacks the language of other international intellectual property agreements, which emphasise the need to balance the protection of intellectual property owners with the wider public interest in access to medicines, human development, and transfer of knowledge and technology. In Australia, there was much controversy both about the form and the substance of ACTA. While the Department of Foreign Affairs and Trade was a partisan supporter of the agreement, a wide range of stakeholders were openly critical. After holding hearings and taking note of the position of the European Parliament and the controversy in the United States, the Joint Standing Committee on Treaties in the Australian Parliament recommended the deferral of ratification of ACTA. This was striking as representatives of all the main parties agreed on the recommendation. The committee was concerned about the lack of transparency, due process, public participation, and substantive analysis of the treaty. There were also reservations about the ambiguity of the treaty text, and its potential implications for the digital economy, innovation and competition, plain packaging of tobacco products, and access to essential medicines. The treaty has provoked much soul-searching as to whether the Trick or Treaty reforms on the international treaty-making process in Australia have been compromised or undermined. Although ACTA stalled in the Australian Parliament, the debate over it is yet to conclude. There have been concerns in Australia and elsewhere that ACTA will be revived as a ‘zombie agreement’. Indeed, in March 2013, the Canadian government introduced a bill to ensure compliance with ACTA. Will it be also resurrected in Australia? Has it already been revived? There are three possibilities. First, the Australian government passed enhanced remedies with respect to piracy, counterfeiting and border measures in a separate piece of legislation – the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth). Second, the Department of Foreign Affairs and Trade remains supportive of ACTA. It is possible, after further analysis, that the next Australian Parliament – to be elected in September 2013 – will ratify the treaty. Third, Australia is involved in the Trans-Pacific Partnership negotiations. The government has argued that ACTA should be a template for the Intellectual Property Chapter in the Trans-Pacific Partnership. The United States Trade Representative would prefer a regime even stronger than ACTA. This chapter provides a portrait of the Australian debate over ACTA. It is the account of an interested participant in the policy proceedings. This chapter will first consider the deliberations and recommendations of the Joint Standing Committee on Treaties on ACTA. Second, there was a concern that ACTA had failed to provide appropriate safeguards with respect to civil liberties, human rights, consumer protection and privacy laws. Third, there was a concern about the lack of balance in the treaty’s copyright measures; the definition of piracy is overbroad; the suite of civil remedies, criminal offences and border measures is excessive; and there is a lack of suitable protection for copyright exceptions, limitations and remedies. Fourth, there was a worry that the provisions on trademark law, intermediary liability and counterfeiting could have an adverse impact upon consumer interests, competition policy and innovation in the digital economy. Fifth, there was significant debate about the impact of ACTA on pharmaceutical drugs, access to essential medicines and health-care. Sixth, there was concern over the lobbying by tobacco industries for ACTA – particularly given Australia’s leadership on tobacco control and the plain packaging of tobacco products. Seventh, there were concerns about the operation of border measures in ACTA. Eighth, the Joint Standing Committee on Treaties was concerned about the jurisdiction of the ACTA Committee, and the treaty’s protean nature. Finally, the chapter raises fundamental issues about the relationship between the executive and the Australian Parliament with respect to treaty-making. There is a need to reconsider the efficacy of the Trick or Treaty reforms passed by the Australian Parliament in the 1990s.