Uncetainty in claiming damages for defects in property

In Project Management Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd [2011] QCA 102 the appellant sought leave to join its parent company party (Project Management Company No 1) as a plaintiff to the proceedings and to amend its statement of claim. It was argued that the parent company had suffered the loss claimed in the proceedings, rather than the appellant. Rule 69(1)(b)(ii) of the Uniform Civil Procedure Rules 1999 (Qld) allows a court at any stage of the proceeding to order that ‘a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding’ be include as a party. To determine this issue, the Court of Appeal had to review the law relevant to the proceedings – a claim in negligence for pure economic loss, in particular, the principles espoused by the High Court in Bryan v Maloney(1995) 182 CLR 609 and Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.

The role of law in responding to climate change : emerging regulatory, liability and market approaches

Climate change presents as the archetypal environmental problem with short-term economic self-interest operating to the detriment of the long-term sustainability of our society. The scientific reports of the Intergovernmental Panel on Climate Change strongly assert that the stabilisation of emissions in the atmosphere, to avoid the adverse impacts of climate change, requires significant and rapid reductions in ‘business as usual’ global greenhouse gas emissions. The sheer magnitude of emissions reductions required, within this urgent timeframe, will necessitate an unprecedented level of international, multi-national and intra-national cooperation and will challenge conventional approaches to the creation and implementation of international and domestic legal regimes. To meet this challenge, existing international, national and local legal systems must harmoniously implement a strong international climate change regime through a portfolio of traditional and innovative legal mechanisms that swiftly transform current behavioural practices in emitting greenhouse gases. These include the imposition of strict duties to reduce emissions through the establishment of strong command and control regulation (the regulatory approach); mechanisms for the creation and distribution of liabilities for greenhouse gas emissions and climaterelated harm (the liability approach) and the use of innovative regulatory tools in the form of the carbon trading scheme (the market approach). The legal relations between these various regulatory, liability and market approaches must be managed to achieve a consistent, compatible and optimally effective legal regime to respond to the threat of climate change. The purpose of this thesis is to analyse and evaluate the emerging legal rules and frameworks, both international and Australian, required for the effective regulation of greenhouse gas emissions to address climate change in the context of the urgent and deep emissions reductions required to minimise the adverse impacts of climate change. In doing so, this thesis will examine critically the existing and potential role of law in effectively responding to climate change and will provide recommendations on the necessary reforms to achieve a more effective legal response to this global phenomenon in the future.

Legal liability for carbon capture and storage in Australia : where should the losses fall?

This article presents a critical analysis of the current and proposed CCS legal frameworks across a number of jurisdictions in Australia in order to examine the legal treatment of the risks of carbon leakage from CCS operations. It does so through an analysis of the statutory obligations and liability rules established under the offshore Commonwealth and Victorian regimes, and onshore Queensland and Victorian legislative frameworks. Exposure draft legislation for CCS laws in Western Australia is also examined. In considering where the losses will fall in the event of leakage, the potential tortious and statutory liabilities of private operators and the State are addressed alongside the operation of statutory protections from liability. The current legal treatment of CCS under the new Australian Carbon Pricing Mechanism is also critiqued.

Combined mitochondrial and nuclear DNA sequences resolve the interrelations of the major Australasian marsupial radiations

Australasian marsupials include three major radiations, the insectivorous/carnivorous Dasyuromorphia, the omnivorous bandicoots (Peramelemorphia), and the largely herbivorous diprotodontians. Morphologists have generally considered the bandicoots and diprotodontians to be closely related, most prominently because they are both syndactylous (with the 2nd and 3rd pedal digits being fused). Molecular studies have been unable to confirm or reject this Syndactyla hypothesis. Here we present new mitochondrial (mt) genomes from a spiny bandicoot (Echymipera rufescens) and two dasyurids, a fat-tailed dunnart (Sminthopsis crassicaudata) and a northern quoll (Dasyurus hallucatus). By comparing trees derived from pairwise base-frequency differences between taxa with standard (absolute, uncorrected) distance trees, we infer that composition bias among mt protein-coding and RNA sequences is sufficient to mislead tree reconstruction. This can explain incongruence between trees obtained from mt and nuclear data sets. However, after excluding major sources of compositional heterogeneity, both the “reduced-bias” mt and nuclear data sets clearly favor a bandicoot plus dasyuromorphian association, as well as a grouping of kangaroos and possums (Phalangeriformes) among diprotodontians. Notably, alternatives to these groupings could only be confidently rejected by combining the mt and nuclear data. Elsewhere on the tree, Dromiciops appears to be sister to the monophyletic Australasian marsupials, whereas the placement of the marsupial mole (Notoryctes) remains problematic. More generally, we contend that it is desirable to combine mt genome and nuclear sequences for inferring vertebrate phylogeny, but as separately modeled process partitions. This strategy depends on detecting and excluding (or accounting for) major sources of nonhistorical signal, such as from compositional nonstationarity.

Does section 420A impose ‘strict liability’ upon controllers for acts or omissions of agents and experts?

This article addresses in depth the question of whether section 420A of the Corporations Act 2001 (Cth) imposes ‘strict liability’ upon a controller for the failure of an agent or expert to take reasonable care. The weight of existing authority appears to suggest that controllers are liable under s 420A for the carelessness of their agents or expert advisers. However, a closer analysis of the text of the provision and relevant Australian and UK case law demonstrates that this aspect of the statutory construction of s 420A remains very much an open question. This article ultimately contends for a construction of s 420A which requires a controller to adequately supervise and scrutinise, but which does not render a blameless controller strictly liable for all careless acts and omissions of agents and expert advisers.

Civil and Criminal Liability of Players

The liability of players in their particular sporting fields has increasingly become prevalent in the minds of government, sport administrators, the medical and legal professions and the parents and players themselves. This awareness has arisen for numerous reasons. Due to the enormous volume of sport to which the community is being exposed through the varied levels of the media together with our aspirations towards a healthier lifestyle and longevity, participation in sports has increased. Accordingly, sports injury litigation has increased. A number of other factors may be advanced to explain the increase. Sport has become big business all over the world. A talent for sport may bring the lucky player fame and fortune. It is not surprising therefore, where such ambitions are frustrated by deliberately or carelessly inflicted injury to the player, thought will be given to seeking compensation for that injury in the courts of law. Other factors are that litigation is on the increase as a means of dispute resolution and lawyers see sporting organisations better able to afford compensation to their players because they are more likely to carry insurance.

Modelling the flow of cane constituents in the milling process

A model has been developed to track the flow of cane constituents through the milling process. While previous models have tracked the flow of fibre, brix and water through the process, this model tracks the soluble and insoluble solid cane components using modelling theory and experiment data, assisting in further understanding the flow of constituents into mixed juice and final bagasse. The work provided an opportunity to understand the factors which affect the distribution of the cane constituents in juice and bagasse. Application of the model should lead to improvements in the overall performance of the milling train.

Director liability for uncommercial transactions : is s 588G(1A) impotent to provide liquidators the means to seek compensation for creditors?

In the 10 years since the addition of uncommercial transactions to the table of deemed “debts incurred” in s 588G(1A) of the Corporations Act, the sub-section has arguably achieved little. This article explains why this has been so, and what needs to be done to enable this aspect of Australia’s insolvent trading laws to operate effectively and as originally intended.

S-allylmercaptocysteine reduces carbon tetrachloride-induced hepatic oxidative stress and necroinflammation via nuclear factor kappa B-dependent pathways in mice.

Purpose To study the protective effects and underlying molecular mechanisms of SAMC on carbon tetrachloride (CCl4)-induced acute hepatotoxicity in the mouse model. Methods Mice were intraperitoneally injected with CCl4 (50 μl/kg; single dose) to induce acute hepatotoxicity with or without a 2-h pre-treatment of SAMC intraperitoneal injection (200 mg/kg; single dose). After 8 h, the blood serum and liver samples of mice were collected and subjected to measurements of histological and molecular parameters of hepatotoxicity. Results SAMC reduced CCl4-triggered cellular necrosis and inflammation in the liver under histological analysis. Since co-treatment of SAMC and CCl4 enhanced the expressions of antioxidant enzymes, reduced the nitric oxide (NO)-dependent oxidative stress, and inhibited lipid peroxidation induced by CCl4. SAMC played an essential antioxidative role during CCl4-induced hepatotoxicity. Administration of SAMC also ameliorated hepatic inflammation induced by CCl4 via inhibiting the activity of NF-κB subunits p50 and p65, thus reducing the expressions of pro-inflammatory cytokines, mediators, and chemokines, as well as promoting pro-regenerative factors at both transcriptional and translational levels. Conclusions Our results indicate that SAMC mitigates cellular damage, oxidative stress, and inflammation in CCl4-induced acute hepatotoxicity mouse model through regulation of NF-κB. Garlic or garlic derivatives may therefore be a potential food supplement in the prevention of liver damage.

Full compensation no longer sacrosanct : reflections on the past and future economic loss ‘cap’ for high income earners

The civil liability provisions relating to the assessment of damages for past and future economic loss have abrogated the common law principle of full compensation by imposing restrictions on the damages award, most commonly by a “three times average weekly earnings” cap. This consideration of the impact of those provisions is informed by a case study of the Supreme Court of Victoria Court of Appeal decision, Tuohey v Freemasons Hospital (Tuohey) , which addressed the construction and arithmetic operation of the Victorian cap for high income earners. While conclusions as to operation of the cap outside of Victoria can be drawn from Tuohey, a number of issues await judicial determination. These issues, which include the impact of the damages caps on the calculation of damages for economic loss in the circumstances of fluctuating income; vicissitudes; contributory negligence; claims per quod servitum amisit; and claims by dependants, are identified and potential resolutions discussed.

Lifting the joint venture veil : liability of related entities for misleading conduct of agents engaged by joint venture partners

At common law, a corporation may be liable vicariously for the conduct of its appointed agents, employees or directors. This generally requires the agent or employee to be acting in the course of his or her agency or employment and, in the case of representations, to have actual or implied authority to make the representations. The circumstances in which a corporation may be liable for the conduct of its agents, employees or directors is broadened under the Australian Consumer Law (ACL) to where one of these parties engages in conduct “on behalf of” the corporation. As the decision in Bennett v Elysium Noosa Pty Ltd (in liq) demonstrates, this may extend to liability for the misleading conduct of a salesperson for the joint venture to parties who are not formal members of the joint venture, but where the joint venture activities are within the course of the entity’s “business, affairs or activities”.