Defamation proceedings - Limitation of Actions Act 1974

In Noonan v MacLennan [2010] QCA 50 the Queensland Court of Appeal considered for the first time the provision permitting extension of the limitation period for a defamation action under s32A of the Limitation of Actions Act 1974.

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.

Trial by jury election less of a trial

In Kencian v Watney [2015] QCA 212 the Queensland Court of Appeal allowed an appeal against the decision in Watney v Kencian & Wooley [2014] QSC 290 and ordered, pursuant to r475(1) of the Uniform Civil Procedure Rules 1999 (Qld) that the trial proceed as a trial by jury.

Busy auditors, ethical behavior, and discretionary accruals quality in Malaysia

The required professional and ethical pronouncements of accountants mean that auditors need to be competent and exercise due care and skill in the performance of their audits. In this study, we examine what happens when auditors take on more clients than they should, thus raising doubts about their ability to maintain competence and audit quality. Using 2803 observations of Malaysian companies from 2010 to 2013, we find that auditors with multiple clients are associated with lower earnings quality, proxied by total accruals and discretionary accruals. Our results demonstrate that associating client firms’ reported discretionary accruals with individual auditors, rather than their firms or offices, is important in determining audit quality. Moreover, we demonstrate that the disclosure of auditors’ signatures on their reports is useful for assessing auditor quality at the individual level, thus contributing to the debate on the usefulness of having auditor identities on reports.

Patents, Ethics and Stem Cell Research : The Case of hESC Innovation in Australia, Europe and the United States

Embryonic stem cells offer potentially a ground-breaking insight into health and diseases and are said to offer hope in discovering cures for many ailments unimaginable few years ago. Human embryonic stem cells are undifferentiated, immature cells that possess an amazing ability to develop into almost any body cell such as heart muscle, bone, nerve and blood cells and possibly even organs in due course. This remarkable feature, enabling embryonic stem cells to proliferate indefinitely in vitro (in a test tube), has branded them as a so-called miracle cure . Their potential use in clinical applications provides hope to many sufferers of debilitating and fatal medical conditions. However, the emergence of stem cell research has resulted in intense debates about its promises and dangers. On the one hand, advocates hail its potential, ranging from alleviating and even curing fatal and debilitating diseases such as Parkinson s, diabetes, heart ailments and so forth. On the other hand, opponents decry its dangers, drawing attention to the inherent risks of human embryo destruction, cloning for research purposes and reproductive cloning eventually. Lately, however, the policy battles surrounding human embryonic stem cell innovation have shifted from being a controversial research to scuffles within intellectual property rights. In fact, the ability to obtain patents represents a pivotal factor in the economic success or failure of this new biotechnology. Although, stem cell patents tend to more or less satisfy the standard patentability requirements, they also raise serious ethical and moral questions about the meaning of the exclusions on ethical or moral grounds as found in European and to an extent American and Australian patent laws. At present there is a sort of a calamity over human embryonic stem cell patents in Europe and to an extent in Australia and the United States. This in turn has created a sense of urgency to engage all relevant parties in the discourse on how best to approach patenting of this new form of scientific innovation. In essence, this should become a highly favoured patenting priority. To the contrary, stem cell innovation and its reliance on patent protection risk turmoil, uncertainty, confusion and even a halt on not only stem cell research but also further emerging biotechnology research and development. The patent system is premised upon the fundamental principle of balance which ought to ensure that the temporary monopoly awarded to the inventor equals that of the social benefit provided by the disclosure of the invention. Ensuring and maintaining this balance within the patent system when patenting human embryonic stem cells is of crucial contemporary relevance. Yet, the patenting of human embryonic stem cells raises some fundamental moral, social and legal questions. Overall, the present approach of patenting human embryonic stem cell related inventions is unsatisfactory and ineffective. This draws attention to a specific question which provides for a conceptual framework for this work. That question is the following: how can the investigated patent offices successfully deal with patentability of human embryonic stem cells? This in turn points at the thorny issue of application of the morality clause in this field. In particular, the interpretation of the exclusions on ethical or moral grounds as found in Australian, American and European legislative and judicial precedents. The Thesis seeks to compare laws and legal practices surrounding patentability of human embryonic stem cells in Australia and the United States with that of Europe. By using Europe as the primary case study for lessons and guidance, the central goal of the Thesis then becomes the determination of the type of solutions available to Europe with prospects to apply such to Australia and the United States. The Dissertation purports to define the ethical implications that arise with patenting human embryonic stem cells and intends to offer resolutions to the key ethical dilemmas surrounding patentability of human embryonic stem cells and other morally controversial biotechnology inventions. In particular, the Thesis goal is to propose a functional framework that may be used as a benchmark for an informed discussion on the solution to resolving ethical and legal tensions that come with patentability of human embryonic stem cells in Australian, American and European patent worlds. Key research questions that arise from these objectives and which continuously thread throughout the monograph are: 1. How do common law countries such as Australia and the United States approach and deal with patentability of human embryonic stem cells in their jurisdictions? These practices are then compared to the situation in Europe as represented by the United Kingdom (first two chapters), the Court of Justice of the European Union and the European Patent Office decisions (Chapter 3 onwards) in order to obtain a full picture of the present patenting procedures on the European soil. 2. How are ethical and moral considerations taken into account at patent offices investigated when assessing patentability of human embryonic stem cell related inventions? In order to assess this part, the Thesis evaluates how ethical issues that arise with patent applications are dealt with by: a) Legislative history of the modern patent system from its inception in 15th Century England to present day patent laws. b) Australian, American and European patent offices presently and in the past, including other relevant legal precedents on the subject matter. c) Normative ethical theories. d) The notion of human dignity used as the lowest common denominator for the interpretation of the European morality clause. 3. Given the existence of the morality clause in form of Article 6(1) of the Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions which corresponds to Article 53(a) European Patent Convention, a special emphasis is put on Europe as a guiding principle for Australia and the United States. Any room for improvement of the European morality clause and Europe s current manner of evaluating ethical tensions surrounding human embryonic stem cell inventions is examined. 4. A summary of options (as represented by Australia, the United States and Europe) available as a basis for the optimal examination procedure of human embryonic stem cell inventions is depicted, whereas the best of such alternatives is deduced in order to create a benchmark framework. This framework is then utilised on and promoted as a tool to assist Europe (as represented by the European Patent Office) in examining human embryonic stem cell patent applications. This method suggests a possibility of implementing an institution solution. 5. Ultimately, a question of whether such reformed European patent system can be used as a founding stone for a potential patent reform in Australia and the United States when examining human embryonic stem cells or other morally controversial inventions is surveyed. The author wishes to emphasise that the guiding thought while carrying out this work is to convey the significance of identifying, analysing and clarifying the ethical tensions surrounding patenting human embryonic stem cells and ultimately present a solution that adequately assesses patentability of human embryonic stem cell inventions and related biotechnologies. In answering the key questions above, the Thesis strives to contribute to the broader stem cell debate about how and to which extent ethical and social positions should be integrated into the patenting procedure in pluralistic and morally divided democracies of Europe and subsequently Australia and the United States.

History repeats itself: The failure of rational choice models in corporate governance

Marnet, Oliver, 'History repeats itself: The failure of rational choice models in corporate governance', Critical Perspectives on Accounting (2005) 18(2) pp.191-210 RAE2008

The Irish House of Lords, 1780-1800: politics and ideology

This thesis covers the Irish House of Lords in the last two decades of its life. A number of important themes run through the work - the regency crisis, patronage, the management of the Lords, the relationship between the Lords and Commons. These themes, explored from different angles, are vital to an understanding of the political role of the upper house in the 1780s and 1790s. This study is confined to the Lords as a political institution and thus its judicial role as final court of appeal, which was restored to it in 1782, will not be explored here. The thesis consists of two parts. Part one examines the structure and powers of the House of Lords while part two looks at the parties and policies of the house. Chapter one discusses the British constitution as imposed upon Ireland. Chapter two suggests the reasons why constitutional changes were introduced in 1782, and looks at the contribution made by the Irish House of Lords in securing these changes. Chapter three explores the various channels of influence which the peers enjoyed. Chapter four explores the sometimes tense relationship between Lords and Commons. Chapter five examines management of the House of Lords by Dublin Castle. Part two, begins at chapter six. This chapter explores the leadership of both parties within the Lords. Chapter seven looks at how patronage was used to reward those who were loyal to the government. Chapter eight explores the influence of the Whig opposition. Chapter nine looks at the controversial attempts made by Pitt and his ministry during the 1790s to win the support of catholics and turn them from the lure of French ideas, and of the response of the peers to these attempts. Chapter ten is concerned with the relationship between the peers of the House of Lords and the lords lieutenant during the 1790s. Chapter eleven looks at the Union and the House of Lords and attempts to answer the question historians have long asked: why did the Irish parliament and the House of Lords in particular, look favourably on the proposed union of the two kingdoms and the end of their own institution? The House of Lords in the closing decades of the eighteenth century was an institution within which the wealth and power of the kingdom could be found. Its members were politically active, both inside and outside the house. It contained a majority who saw the Crown as the source of stability, but it was a living and evolving political organism and therefore it contained men who believed that the Crown should have its influence limited. This evolution is also demonstrated in its desire for political change in 1782 and 1788. Its last, and perhaps most radical decision, was to vote for its own demise in 1900.

Property in body parts and products of the human body

An intriguing question, which until recently had not been directly explored by the courts, is the extent to which English law recognises body parts and products of the human body as property capable of ownership. Although the common law currently recognises no general property in a dead body (and only limited possessory rights in respect of it), this apparent “no-property rule” provides no justification, it is submitted, for denying proprietary status to parts or products of a living human body. The recent decision of the Court of Appeal in Yearworth v. North Bristol NHS Trust ([2009] EWCA Civ 37) lends strong support to the view that genetic material (as the product of a living human body) is capable of ownership, at least in the context of a claim in the tort of negligence and bailment. This article examines the various issues by reference to both English and Commonwealth authority.

Meaning of "residing with" and succession rights

Reviews case law on the meaning of the phrase "residing with" as used in the Housing Act 1985 s.87 to identify one of the qualifying requirements for the right to succeed to a secure tenancy. Focuses on the Court of Appeal decision in Freeman v Islington LBC on whether a daughter intended to have her settled home with her father where, in the year preceding her father's death she lived with him full time in order to care for him whilst retaining her own flat and using it as her correspondence address for everything but her credit card. Lists conclusions that can be drawn from the case law.

Duty of care and slippery floors

Reflects on the scope of a shop owner's duty of care under the Occupiers' Liability Act 1957 to keep floors clear of spillages. Reviews the principles formulated by the Court of Appeal in Ward v Tesco Stores Ltd, including the evidential burden to show the discharge of the duty, and the approach adopted in subsequent cases. Discusses the High Court ruling in Piccolo v Larkstock Ltd (t/a Chiltern Flowers) on whether a small florist on Marylebone Station concourse was obliged to keep the floor dry and petal-free at all times and notes the importance of a proper system to safeguard customers.

Paying the price for loss of light

Considers the Court of Appeal ruling in Forsyth-Grant v Allen on the principles to be applied in assessing damages for the loss of light. Outlines the method for calculating damages for loss of right to light, the type of amenity which will be included in calculations for loss of amenity and the process applied in this case for assessing damages arising from the loss of profits that would have been made by the owner of the right to light if they had negotiated to relax the covenant, with reference to case law. Notes the limits to damages available for hypothetical loss and the difference between this award of profits and an account of profits.

The Effect of Human RIghts on Criminal Evidentiary Processes: Convergence, Divergence or Realignment?

This article examines the contribution which the European Court of Human Rights has made to the development of common evidentiary processes across the common law and civil law systems of criminal procedure in Europe. It is argued that the continuing use of terms such as 'adversarial' and 'inquisitorial' to describe models of criminal proof and procedure has obscured the genuinely transformative nature of the Court's jurisprudence. It is shown that over a number of years the Court has been steadily developing a new model of proof that is better characterised as 'participatory' than as 'adversarial' or 'inquisitorial'. Instead of leading towards a convergence of existing 'adversarial' and 'inquisitorial' models of proof, this is more likely to lead towards a realignment of existing processes of proof which nonetheless allows plenty of scope for diverse application in different institutional and cultural settings.

Removing children from the care of adults with diagnosed mental illnesses - a clash of human rights?

Health and social services providers throughout Europe are increasingly aware of the possibility of litigation from service users arising from the application of a human rights perspective to public service provision. The substantial body of case law that has emerged from the European Court of Human Rights (ECHR) is used regularly as the basis for this litigation at national and European levels. This paper presents an analysis of ECHR cases related to breaches of human rights that occurred when children were taken into care from families in which one or both parents had a diagnosed mental illness. The issues raised by these cases include the following: how to ensure that the right to family life is protected for adults with mental illnesses; how to ensure access and opportunities for parents to continue bonding with children in care; and how to avoid damaging children while giving time for a proper assessment of the care situation.