Cross-border insolvency

Panellist commentary on delivered conference papers on the topic of Cross-border Insolvency.

Statutory right to rescind contract remained available to buyer subject to specific performance decree

The aftermath of the Queensland floods of January 2011 continues to be played out in the courts. The effect of the floods on such a large scale has awakened the use of some statutory provisions that have not previously been litigated .Section 64 of the Property Law Act 1974 (Qld) is such a section. A version of this provision appears as s 34 of the Sale of Land Act 1982 (Vic). Broadly speaking, these sections permit a buyer of a dwelling house which has been damaged or destroyed between contract and completion to rescind the contract and recover their deposit provided that the rescission notice is given prior to "the date of completion or possession". The Court of Appeal decision of Dunworth v Mirvac Queensland Pty Ltd [2011] QCA 200 appears to be the first litigation upon the application of the section since it came into force in 1975.

In defence of Victoria's Children's Court : its value and role in the child protection system

Australian child protection systems have been subject to sustained and significant criticism for many decades. As a central part of that system Children’s Courts have been implicated: three recent inquiries into the child protection system in Victoria all criticised the Family Division of the Children’s Court.1 In the resulting debate two diametrically opposed points of view surfaced about the Children’s Court and the role that legal procedures and professionals should play in child protection matters. On one side bodies like the Children’s Court of Victoria, Victoria Legal Aid (‘VLA’), the Law Institute of Victoria (‘LIV’), and the Federation of Community Legal Centres (‘FCLC’) argued that the Children’s Court plays a vital role in child protection and should continue to play that role.2 On the other side a coalition of human service and child protection agencies called for major change including the removal of the Children’s Court from the child protection system. Victoria’s Department of Human Services (‘DHS’) has been critical of the Court3 as have community sector organisations like Anglicare, Berry Street, MacKillop Family Services and the Salvation Army — all agencies the DHS funds to deliver child protection services.4 Victoria’s Child Safety Commissioner has also called for major reform, publicly labelling the Court a ‘lawyers’ playground’ and recommending abolishing the Court’s involvement in child protection completely.

The Role of the Judiciary in Earth Jurisprudence : An Analysis of Judicial Approaches to Standing in Climate Change and Environmental Justice Litigation

The role of the judiciary in common law systems is to create law, interpret law and uphold the law. As such decisions by courts on matters related to ecologically sustainable development, natural resource use and management and climate change make an important contribution to earth jurisprudence. There are examples where judicial decisions further the goals of earth jurisprudence and examples where decisions go against the principles of earth jurisprudence. This presentation will explore judicial approaches to standing in Australia and America. The paper will explore two trends in each jurisdiction. Approaches by American courts to standing will be examined in reference to climate change and environmental justice litigation. While Australian approaches to standing will be examined in the context of public interest litigation and environmental criminal negligence cases. The presentation will draw some conclusions about the role of standing in each of these cases and implications of this for earth jurisprudence.

The effectiveness of the best interests duty : enhancing consumer protection?

This article considers the uncertainty surrounding the scope of the best interests duty which forms part of the Government’s Future of Financial Advice (FOFA) reforms. It is likely to be many years before the courts can interpret and clarify the content of the duty. Under the new regime, the provision of personal financial advice will be made more difficult, complex and costly and these costs will be passed on to consumers. The article also considers whether there will still be scope for delivering standardized, non-tailored advice in the light of the best interests duty. In the pas standardized advice has allowed large amounts of low-level, generic advice to be delivered very efficiently. In order to avoid breaching the best interests duty standardized advice should only be used rarely, and only after a careful assessment has been made to ensure that a standardized approach is appropriate.

A framework of promoting stakeholder mutual benefits for sustainable housing implementation

Strong regulatory pressure and rising public awareness on environmental issues will continue to influence the market demand for sustainable housing for years to come. Despite this potential, the voluntary uptake rate of sustainable practices is not as high as expected within the new built housing industry. This is in contrast to the influx of emerging building technologies, new materials and innovative designs as showcased in office buildings and exemplar homes worldwide. One of the possible reasons for this under-performance is that key stakeholders such as developers, builders and consumers do not fully understand and appreciate the related challenges, risks and opportunities of pursuing sustainability. Therefore, in their professional and business activities, they may not be able to see the tangible and mutual benefits that sustainable housing may bring. This research investigates the multiple challenges to achieving benefits (CABs) from sustainable housing development, and links these factors to the characteristics of key stakeholders in the housing supply chain. It begins with a comparative survey study among seven stakeholder groups in the Australian housing industry, in order to examine the importance and interrelationships of CABs. In-depth interviews then further explore the survey findings with a focus on stakeholder diversity, which leads to the identification of 12 critical mutual-benefit factors and their interrelationship. Based on such a platform, a mutual-benefit framework is developed with the aid of Interpretive Structure Modelling, to identify the patterns of stakeholder benefit materialisation, suggest the priority of critical factors and provide related stakeholder-specific action guidelines for sustainable housing implementation. The study concludes with a case study of two real-life housing projects to test the application of the mutual-benefit framework for improvement. This framework will lead to a shared value of sustainability among stakeholders and improved stakeholder collaboration, which in turn help to break the "circle of blame" for the current under-performance of sustainable housing implementation.

Games for change and transformative learning : an ethnographic case study

This thesis aims to contribute to a better understanding of how serious games/games for change function as learning frameworks for transformative learning in an educational setting. This study illustrates how the meaning-making processes and learning with and through computer gameplay are highly contingent, and are significantly influenced by the uncertainties of the situational context. The study focuses on SCAPE, a simulation game that addresses urban planning and sustainability. SCAPE is based on the real-world scenario of Kelvin Grove Urban Village, an inner city redevelopment area in Brisbane, Queensland, Australia. The game is embedded within an educational program, and I thus account for the various gameplay experiences of different school classes participating in this program. The networks emerging from the interactions between students/players, educators, facilitators, the technology, the researcher, as well as the setting, result in unanticipated, controversial, and sometimes unintended gameplay experiences and outcomes. To unpack play, transformative learning and games, this study adopts an ecological approach that considers the magic circle of gameplay in its wider context. Using Actor-Network Theory as the ontological lens for inquiry, the methods for investigation include an extensive literature review, ethnographic participant observation of SCAPE, as well as student and teacher questionnaires, finishing with interviews with the designers and facilitators of SCAPE. Altogether, these methods address my research aim to better understand how the heterogeneous actors engage in the relationships in and around gameplay, and illustrate how their conflicting understandings enable, shape or constrain the (transformative) learning experience. To disentangle these complexities, my focus continuously shifts between the following modes of inquiry into the aims „h To describe and analyse the game as a designed artefact. „h To examine the gameplay experiences of players/students and account for how these experiences are constituted in the relationships of the network. „h To trace the meaning-making processes emerging from the various relations of players/students, facilitators, teachers, designers, technology, researcher, and setting, and consider how the boundaries of the respective ecology are configured and negotiated. „h To draw out the implications for the wider research area of game-based learning by using the simulation game SCAPE as an example for introducing gameplay to educational settings. Accounting in detail for five school classes, these accounts represent, each in its own right, distinct and sometimes controversial forms of engagement in gameplay. The practices and negotiations of all the assembled human and non-human actors highlight the contingent nature of gameplay and learning. In their sum, they offer distinct but by no means exhaustive examples of the various relationships that emerge from the different assemblages of human and non-human actors. This thesis, hence, illustrates that game-based learning in an educational setting is accompanied by considerable unpredictability and uncertainty. As ordinary life spills and leaks into gameplay experiences, group dynamics and the negotiations of technology, I argue that overly deterministic assertions of the game¡¦s intention, as well as a too narrowly defined understanding of the transformative learning outcome, can constrain our inquiries and hinder efforts to further elucidate and understand the evolving uncertainties around game-based learning. Instead, this thesis posits that playing and transformative learning are relational effects of the respective ecology, where all actors are networked in their (partial) enrolment in the process of translation. This study thus attempts to foreground the rich opportunities for exploring how game-based learning is assembled as a network of practices.

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.

Civil procedure : commentary and materials (3rd ed.)

This book provides a comprehensive analysis of the practical and theoretical issues encountered in Australian civil procedure, including alternative dispute resolution. Each chapter features in-depth questions and notes together with lists of further reading to aid understanding of the issue. It also examines and discusses each substantive and procedural step in the trial process. Topics include jurisdiction of a court to consider a matter, alternative dispute resolution. limitations of actions, commencing proceedings, pleading, gathering evidence, trial and appeal, costs and practice directions. The procedures in the Supreme Courts of each of the states and Territories are covered, as well as those of the Federal Court of Australia.

Practice and Procedure : UCPR r 7 - power to extend time

In McIntosh & Anor as Trustees of the Estate of Camm (A Bankrupt) v Linke Nominees Pty Ltd & Anor [2008] QCA 410 the Queensland Court of Appeal considered the extent of the court’s power under r 7(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) to extend time, and in particular whether the rule applied so as to permit extension of the period specified under rule 667 for varying or setting aside an order. The case also provides an illustration of circumstances in which the court might be expected to depart from the general principle that a successful litigant is entitled to the costs of the litigation.

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.

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.

Court-provided trial presentation technology : the way of the future?

The trial in Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd (File no BS 10157 of 2001; BS 2763 of 2002) commenced on 8 October 2007 before Fryberg J, but the matter settled on 6 November 2007 before the conclusion of the trial. This case was conducted as an “electronic trial” with the use of technology developed within the court. This was the first case in Queensland to employ this technology at trial level. The Court’s aim was to find a means to capture the key benefits which are offered by the more sophisticated trial presentation software of commercial service providers, in a way that was inexpensive for the parties and would facilitate the adoption of technology at trial much more broadly than has been the case to date.

Juveniles’ contact with the criminal justice system in Australia

This report presents the first collection of data on juveniles’ contact with the criminal justice system as both alleged/convicted offenders and complainants/victims in New South Wales, the Australian Capital Territory, Victoria, Queensland, Western Australia, South Australia and the Northern Territory. Its primary objectives are to outline data from each of these jurisdictions on juveniles’ contact with the policing, courts and correctional systems and to determine what we do and do not know about juveniles’ contact with the criminal justice system.

Juveniles in detention in Australia, 1981-2008

The Australian Institute of Criminology’s (AIC’s) national Juveniles in Detention Monitoring Program was established to contribute to the evidence base on juvenile detention in Australia, with a particular focus on Indigenous juveniles. Findings date back to 1981 and have been reported annually. This report provides an overview of the numbers and rates of juveniles in detention in Australia since 1981 and juveniles in detention for the financial year 2007–08. As with the AIC’s previous report on juveniles in detention (Taylor 2009), it also provides contextual information on young people sentenced in the children’s courts. The collation of data for these reports is supported by statutory juvenile justice agencies in each of Australia’s jurisdictions, as well as the NSW Department of Corrective Services. As described in more detail in this report, the Australian Institute of Health and Welfare (AIHW) administers the Juvenile Justice National Minimum Data Set and also reports annually on juveniles in detention. Given this development, the AIC is conducting a review of the Juveniles in Detention Monitoring Report in 2010–11, to ensure that AIC’s research and monitoring does not duplicate the AIHW’s work and that it makes a useful contribution to the field and enables more in-depth analysis of key issues.