Insurance and trust : lessons from the Christchurch Cathedral

This article examines important insurance and trust law issues that may confront trustees charged with the governance and protection of unique properties with broad community and heritage significance. Often trustee roles are assumed by community leaders without full appreciation of the potential difficulties and consequences when unforeseen circumstances arise. Three recent New Zealand court decisions in relation to the deconstruction and repair of the Christchurch Cathedral and to the interim construction of a transitional"cardboard Cathedral" highlight how difficult - and legally exposed - the role of trustee can be. The Cathedral cases go to the heart of defining the core purpose for which a Trust is created and examine the scope of discretion in fulfilling this charge its Trustees carry. Arising in the wake of the devastating Christchurch earthquakes, the Cathedral's Trustees were called upon to consider the best directions forward for a criplled and dangerous building subject to potential demolition, the wellbeing of the Cathedral's direct community, and the broader heritage and identity factors that this 'heart' of Christchurch represented. In the context of a seemingly grossly underinsured material damage cover - and faced with broader losses across the Diocese's holdings - the Trustees found that their sense of mission failed to gel with that of a community-based heritage buildings preservation trust. The High Court had to consider how monies received under the material damage policy could be applied by the Trustee in deconstructing, reinstating or repairing the Cathedral and if monies could be partly deployed to create an interim solution in the former of a transitional cathedral - all this in the context of the site-specific purpose of the Cathedral trust. The cases emphasise further the need to assess professionally the nature and quantum of cover effected to protect against various risks. In addition, in the case of historic or unusual buildings extra care must be exercised to take account additional costs associated with reinstatement so as to substantially retain the character and intrinsic value of such properties.

Bank audit fees and asset securitization risks

Using the lens of audit pricing, we provide insights into auditors’ behaviors in relation to the risk of asset securitizations to bank holding companies in a period encompassing the Global Financial Crisis (GFC) and the introduction of the accounting standards FAS 166 and FAS 167. Using US bank holding company data from 2003 to 2011, we find significant and positive associations between asset securitization risks and audit fees. We find that auditors appear to focus on different aspects of asset securitization risks after the onset of the GFC, and increase their attention to the systemic risks facing bank holding companies in general. After the implementation of FAS 166 and FAS 167, which removed the discretion to treat asset securitizations as sales and required the consolidation of the accounts of special purpose entities, asset securitization risks no longer have a significant effect on audit fees.

The defence of hardship to specific performance actions

The decision of Evans v Robcorp Pty Ltd[2014] QSC 26 is of interest as being an instance where the defence of hardship, in this case, financial hardship, was successfully pleaded in defence to a summary application for specific performance of a contract for the sale of land. Equity has always recognised the defence of hardship in response to an action for specific performance which, as an equitable remedy, might be refused in the discretion of the Court (Hewett v Court (1983) 149 CLR 639 at 664). However, whilst the remedy is discretionary, there are certain accepted principles which have guided the courts in their application of this defence to particular facts. It is not a blanket defence to a claim for specific performance where the buyer simply does not have the funds to complete the contract at the time when settlement is called for. Occasionally, a radical change in, say for instance, the health of the defendant between contract and completion, perhaps coupled with a long delay by a seller in calling for completion not being the fault of the buyer might enliven the defence (Patel v Ali [1984]1 Ch 283)

Equal shared parental responsibility and shared care post-return to Australia under the Hague Child Abduction Convention

This article explores the outcomes experienced by abducting primary carer mothers and their children post-return to Australia under the Hague Convention on Civil Aspects of International Child Abduction.1 The circumstances faced by families that experience international parental child abduction are examined by considering how part VII of the Australian Family Law Act 1975 (Cth) is applied to resolve parenting disputes post-return. At present, the statutory criteria found in part VII encourage an equal shared parental responsibility and shared care parenting approach.2 This emphasis aligns children’s best interests with collaborative parenting3 and their parents living within close geographical proximity of each other to facilitate the practicalities of the approach.4 Arguably, these statutory criteria guide the exercise of judicial discretion to determine a child’s best interests towards a parenting arrangement that is incompatible with the lifestyle and functional characteristics of these families.

Blame it on Rio: Biodiscovery, native title, and traditional knowledge

This article examines the legal responses to protect traditional knowledge of biodiversity in the wake of the Rio Convention on Biological Diversity. It considers the relative merits of the inter-locking regimes of contract law, environmental law, intellectual property law, and native title law. Part 1 considers the natural drug discovery industry in Australia. In particular, it looks at the operations of Amrad, Astra Zeneca R & D, and the Australian Institute of Marine Science. This section examines the key features of the draft regulations proposed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) - model contracts, informed consent, benefit-sharing, and ministerial discretion. The use of Indigenous Land Use Agreements in the context of access to genetic resources is also explored. Part 2 considers the role played by native title law in dealing with tangible and intangible property interests. The High Court decision in Western Australia v Ward considers the relationship between native title rights and cultural knowledge. The Federal Court case of Neowarra v Western Australia provides an intriguing gloss on this High Court decision. Part 3 looks at whether traditional knowledge of biodiversity can be protected under intellectual property law. It focuses upon reforms such as Senator Aden Ridgeway's proposed amendments to the Plant Breeder's Rights Act 1994 (Cth), and the push to make disclosure of origin a requirement of patent law.

Sustainability at the Australian local government level: Is there room for Strategic Environmental Assessment (SEA)?

Recent calls in Australia have addressed the need for better integration of planning processes. The consequent effort made by government has been, and still is, reshaping the way urban and regional planning and sustainability are managed. Focusing on planning practices at the local and regional levels, we investigate how environmental sustainability is pursued from an institutional perspective. Specifically, we analyse the way that planning in Australian cities aims to achieve sustainable strategies and reflect on the relationship with ‘Strategic Environmental Assessment’. This paper has four goals. First, sustainable planning practices at the local and regional levels are analysed considering the legislative and organizational frameworks of each state. The goal is to identify through an analysis of planning documents how much discretion is given to local councils to address sustainable strategies. Second, we focus on two regional and four cities in Queensland, to outline strengths and weaknesses of current legislative and practical frameworks. We use analytical criteria from the SEA literature to investigate these plans in more detail. Third, we examine the relationship between strategic and statutory plans, to see how sustainability is actually implemented. Finally we compare emerging issues about sustainable planning in Australia with countries overseas with different planning and SEA traditions. Considering that SEA is evolving and there are considerable international experiences, we offer recommendations on how Australia might achieve a more integrated and sustainable approach to planning.

From court to QCAT, or not

In Sutton v Tang [2015] QDC 191 Reid DCJ considered the circumstances that may be relevant to the exercise of the discretion to order a transfer of a proceeding to the Queensland Civil and Administrative Tribunal (the tribunal) under s53 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the Act).

"Ei vittu, mennään röökille" : tutkimus sitaattien tehtävistä ja tekemisestä kaunokirjallis-journalistisissa lehtijutuissa

This research deals with direct speech quotations in magazine articles through two questions: As my major research question, I study the functions of speech quotations based on a data consisting of six literary-journalistic magazine articles. My minor research question builds on the fact that there is no absolute relation between the sound waves of the spoken language and the graphemes of the written one. Hence, I study the general thoughts on how utterances should be arranged in the written form based on a large review of literature and textbooks on journalistic writing as well as interviews I have made with magazine writers and editors, and the Council of Mass Media in Finland. To support my main research questions, I also examine the reference system of the Finnish language, define the aspects of the literary-journalistic article and study vernacular cues in written speech quotations. FUNCTIONS OF QUOTATIONS. I demonstrate the results of my analysis with a six-pointed apparatus. It is a continuum which extends from the structural level of text, all the way through the explicit functions, to the implicit functions of the quotation. The explicit functions deal with the question of what is the content, whereas the implicit ones base mainly on the question how the content is presented. 1. The speech quotation is an distinctive element in the structure of the magazine article. Thereby it creates a rhythm for the text, such as episodes, paragraphs and clauses. 2. All stories are told through a plot, and in magazine articles, the speech quotations are one of the narrative elements that propel the plot forward. 3. The speech quotations create and intensify the location written in the story. This location can be a physical one but also a social one, in which case it describes the atmosphere and mood in the physical environment and of the story characters. 4. The quotations enhance the plausibility of the facts and assumptions presented in the article, and moreover, when a text is placed between quotation marks, the reader can be assured that the text has been reproduced in the authentic verbatim way. 5. Speech quotations tell about the speaker's unique way of using language and the first-hand experiences of the person quoted. 6. The sixth function of speech quotations is probably the most essential one: the quotations characterize the quoted speaker. In other words, in addition to the propositional content of the utterance, the way in which it has been said transmits a lot of the speaker's character (e.g. nature, generation, behaviour, education, attitudes etc.). It is important to notice, that these six functions of my speech quotation apparatus do not exlude one another. It means that every speech quotation basically includes all of the functions discussed above. However, in practice one or more of them have a principal role, while the others play a subsidiary role. HOW TO MAKE QUOTATIONS? It is not suprising that the field of journalism (textbooks, literature and interviews) holds heterogeneous and unestablished thoughts on how the spoken language should be arranged in written quotations, which is my minor research question. However, the most frequent and distinctive aspects can be depicted in a couple of words: serve the reader and respect the target person. Very common advice on how to arrange the quotations is − firstly, to delete such vernacular cues (e.g. repetitions and ”expletives”) that are common in spoken communication, but purposeless in the written language. − secondly, to complete the phonetic word forms of the spoken language into a more reader-friendly form (esim. punanen → punainen, 'red'), and − thirdly, to enhance the independence of clauses from the (authentic) context and to toughen reciprocal links between them. According to the knowledge of the journalistic field, utterances recorded in different points in time of an interview or a data-collecting session can be transferred as consecutive quotations or even merged together. However, if there is any temporal-spatial location written in the story, the dialogue of the story characters should also be situated in an authentic context – chronologically in the right place in the continuum of the events. To summarize, the way in which the utterances should be arranged into written speech quotations is always situationally-specific − and it is strongly based on the author's discretion.

Evidence in view: Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256

Rule 478 of the Uniform Civil Procedure Rules 1999 (Qld)(view by court) is silent as to the manner in which a court might be expected to exercise the discretion to order an inspection or demonstration under the rule and also as to the use which may be made of any inspection or demonstration ordered. The decision in Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256 provides guidance on both matters. This case provides some guidance on the circumstances in which a court may exercise its discretion to order a view or demonstration

Musculoskeletal disorders and psychosocial factors at work : Effects of a participatory ergonomics intervention in a cluster randomized controlled trial

This study examined the efficacy of a participatory ergonomics intervention in preventing musculoskeletal disorders (MSDs) and changing unsatisfactory psychosocial working conditions among municipal kitchen workers. The occurrence of multiple-site musculoskeletal pain (MSP) and associations between MSP and psychosocial factors at work over time were studied secondarily. A cluster randomized controlled trial was conducted during 2002-2005 in 119 municipal kitchens with 504 workers. The kitchens were randomized to an intervention (n = 59) and control (n = 60) group. The intervention lasted 11 to 14 months. The workers identified strenuous work tasks and sought solutions for decreasing physical and mental workload. The main outcomes were the occurrence of and trouble caused by musculoskeletal pain in seven anatomical sites, local musculoskeletal fatigue after work, and musculoskeletal sick leaves. Psychosocial factors at work (job control, skill discretion, co-worker relationships, supervisor support, mental strenuousness of work, hurry, job satisfaction) and mental stress were studied as intermediate outcomes of the intervention. Questionnaire data were collected at three months intervals during the intervention and the one-year post-intervention follow-up. Response rates varied between 92 % and 99 %. In total, 402 ergonomic changes were implemented. In the control group, 80 changes were spontaneously implemented within normal activity. The intervention did not reduce perceived physical workload and no systematic differences in any health outcomes were found between the intervention and control groups during the intervention or during the one-year follow-up. The results suggest that the intervention as studied in the present trial was not more effective in reducing perceived physical workload or preventing MSDs compared with no such intervention. Little previous evidence of the effectiveness of ergonomics interventions in preventing MSDs exists. The effects on psychosocial factors at work were adverse, especially in the two of the participating cities where re-organization of foodservices timed simultaneously with the intervention. If organizational reforms at workplace are expected to occur, the execution of other workplace interventions at the same time should be avoided. The co-occurrence of musculoskeletal pain at several sites is observed to be more common than pain at single anatomical sites. However, the risk factors of MSP are largely unknown. This study showed that at baseline, 73 % of the women reported pain in at least two, 36 % in four or more, and 10 % in six to seven sites. The seven pain symptoms occurred in over 80 different combinations. When co-occurrence of pain was studied in three larger anatomical areas (neck/low back, upper limbs, lower limbs), concurrent pain in all three areas was the most common combination (36 %). The 3-month prevalence of MSP (≥ 3 of seven sites) varied between 50 % and 61 % during the two-year follow-up period. Psychosocial factors at work and mental stress were strong predictors for MSP over time and, vice versa, MSP predicted psychosocial factors at work and mental stress. The reciprocality of the relationships implies either two mutually dependent processes in time, or some shared common underlying factor(s).

Compression use during an exercise intervention and associated changes in breast cancer-related lymphoedema

Aim This study assessed the association between compression use and changes in lymphoedema observed in women with breast cancer-related lymphoedema who completed a 12 week exercise intervention. Methods This work uses data collected from a 12 week exercise trial, whereby women were randomly allocated into either aerobic-based only (n=21) or resistance-based only (n=20) exercise. Compression use during the trial was at the participant’s discretion. Differences in lymphoedema (measured by L-Dex score and inter-limb circumference difference [%]) and associated symptoms between those who wore, and did not wear compression during the 12 week intervention were assessed. We also explored participants’ reasons surrounding compression during exercise. Results No significant interaction effect between time and compression use for lymphoedema was observed. There was no difference between groups over time in the number or severity of lymphoedema symptoms. Irrespective of compression use, there were trends for reductions in the proportion of women reporting severe symptoms, but lymphoedema status did not change. Individual reasons for the use of compression, or lack thereof, varied markedly. Conclusion Our findings demonstrated an absence of a positive or negative effect from compression use during exercise on lymphoedema. Current and previous findings suggest the clinical recommendation that garments must be worn during exercise is questionable, and its application requires an individualised approach.

Employee green behavior: A theoretical framework, multilevel review, and future research agenda

We propose a conceptual model based on person–environment interaction, job performance, and motivational theories to structure a multilevel review of the employee green behavior (EGB) literature and agenda for future research. We differentiate between required EGB prescribed by the organization and voluntary EGB performed at the employees’ discretion. The review investigates institutional-, organizational-, leader-, team-, and employee-level antecedents and outcomes of EGB and factors that mediate and moderate these relationships. We offer suggestions to facilitate the development of the field, and call for future research to adopt a multilevel perspective and to investigate the outcomes of EGB.

Managing flexible work arrangements in small not-for-profit firms: The influence of organisational size, financial constraints and workforce characteristics

Small, not-for-profit organisations fulfil a need in the economy that is typically not satisfied by for-profit firms. They also operate in ways that are distinct from larger organisations. While such firms employ a substantial proportion of the workforce, research addressing human resource management (HRM) practices in these settings is limited. This article used data collected from five small not-for-profit firms in Australia to examine the way one significant HRM practice – the provision and utilisation of flexible work arrangements – operates in the sector. Drawing on research from several scholarly fields, the article firstly develops a framework comprising three tensions in not-for-profits that have implications for HRM. These tensions are: (1) contradictions between an informal approach to HRM vs. a formal regulatory system; (2) employee values that favour social justice vs. external market forces; and (3) a commitment to service vs. external financial expectations. The article then empirically examines how these tensions are managed in relation to the specific case of flexible work arrangements. The study reveals that tensions around providing and accessing flexible work arrangements are managed in three ways: discretion, leadership style and distancing. These findings more broadly inform the way HRM is operationalised in this under-examined sector.

Posted Workers and Free Movement of Services in the European Union – the Impact on National Employment and Immigration Law

This thesis examines posting of workers within the free movement of services in the European Union. The emphasis is on the case law of the European Court of Justice and in the role it has played in the liberalisation of the service sector in respect of posting of workers. The case law is examined from two different viewpoints: firstly, that of employment law and secondly, immigration law. The aim is to find out how active a role the Court has taken with regard these two fields of law and what are the implications of the Court’s judgments for the regulation on a national level. The first part of the thesis provides a general review of the Community law principles governing the freedom to provide services in the EU. The second part presents the Posted Workers’ Directive and the case law of the European Court of Justice before and after the enactment of the Directive from the viewpoint of employment law. Special attention is paid to a recent judgment in which the Court has taken a restrictive position with regard to a trade union’s right to take collective action against a service provider established in another Member State. The third part of the thesis concentrates, firstly, on the legal status of non-EU nationals lawfully resident in the EU. Secondly, it looks into the question of how the Court’s case law has affected the possibilities to use non-EU nationals as posted workers within the freedom to provide services. The final chapter includes a critical analysis of the Court’s case law on posted workers. The judgments of the European Court of Justice are the principal source of law for this thesis. In the primary legislation the focus is on Articles 49 EC and 50 EC that lay down the rules concerning the free movement of services. Within the secondary legislation, the present work principally concentrates on the Posted Workers’ Directive. It also examines proposals of the European Commission and directives that have been adopted in the field of immigration. The conclusions of the case study are twofold: while in the field of employment law, the European Court of Justice has based its judgments on a very literal interpretation of the Posted Workers’ Directive, in the field of immigration its conclusions have been much more innovative. In both fields of regulation the Court’s judgments have far-reaching implications for the rules concerning posting of workers leaving very little discretion for the Member States’ authorities.

Monopolising Names? : The Protection of Geographical Indications in the European Community

Marketing of goods under geographical names has always been common. Aims to prevent abuse have given rise to separate forms of legal protection for geographical indications (GIs) both nationally and internationally. The European Community (EC) has also gradually enacted its own legal regime to protect geographical indications. The legal protection of GIs has traditionally been based on the idea that geographical origin endows a product exclusive qualities and characteristics. In today s world we are able to replicate almost any prod-uct anywhere, including its qualities and characteristics. One would think that this would preclude protec-tion from most geographical names, yet the number of geographical indications seems to be rising. GIs are no longer what they used to be. In the EC it is no longer required that a product is endowed exclusive characteristics by its geographical origin as long as consumers associate the product with a certain geo-graphical origin. This departure from the traditional protection of GIs is based on the premise that a geographical name extends beyond and exists apart from the product and therefore deserves protection itself. The thesis tries to clearly articulate the underlying reasons, justifications, principles and policies behind the protection of GIs in the EC and then scrutinise the scope and shape of the GI system in the light of its own justifications. The essential questions it attempts to aswer are (1) What is the basis and criteria for granting GI rights? (2) What is the scope of protection afforded to GIs? and (3) Are these both justified in the light of the functions and policies underlying granting and protecting of GIs? Despite the differences, the actual functions of GIs are in many ways identical to those of trade marks. Geographical indications have a limited role as source and quality indicators in allowing consumers to make informed and efficient choices in the market place. In the EC this role is undermined by allowing able room and discretion for uses that are arbitrary. Nevertheless, generic GIs are unable to play this role. The traditional basis for justifying legal protection seems implausible in most case. Qualities and charac-teristics are more likely to be related to transportable skill and manufacturing methods than the actual geographical location of production. Geographical indications are also incapable of protecting culture from market-induced changes. Protection against genericness, against any misuse, imitation and evocation as well as against exploiting the reputation of a GI seem to be there to protect the GI itself. Expanding or strengthening the already existing GI protection or using it to protect generic GIs cannot be justified with arguments on terroir or culture. The conclusion of the writer is that GIs themselves merit protection only in extremely rare cases and usually only the source and origin function of GIs should be protected. The approach should not be any different from one taken in trade mark law. GI protection should not be used as a means to mo-nopolise names. At the end of the day, the scope of GI protection is nevertheless a policy issue.