Duty to the court and the administration of justice : some examples, implications and clarifications

No liberal democracy can survive without popular trust in its judicial system. The legal profession and the judiciary enjoy a level of independence and autonomy from the executive that makes them both powerful and privileged. A UNIQUE AND ORGANIC DUTY: So long as the courts are seen to fulfil their duty to guard against encroachments by the executive on the freedoms and rights of individual citizens with integrity and credibility, they maintain enough public support to retain their normative authority. But support for those with power and privilege is easily undermined. It is contingent upon trust. Lawyers who breach that trust in ways that go to the heart of the legal system ought to expect to be made examples of and to suffer severe penalties. The good news is that the sorts of breach discussed here should be neither difficult to anticipate nor to avoid – in theory. In practice, smart and honest lawyers sometimes fall foul of these duties for all sorts of understandable (if not condonable) reasons. Law does not get practised in a social or cultural vacuum. Lawyers are people, and people have weaknesses, failings and stresses...

The court and the factory the legal construction of occupational health and safety offences in Victoria

This thesis reports on an empirically based study of the manner in which Victorian Magistrates Courts constructed occupational health and safety (OHS) issues when hearing prosecutions for offences under the Industrial Safety, Health and Welfare Act 1981 (the ISHWA) and the Occupational Health and Safety Act 1985 (OHSA) from 1983 to 1991. These statutes established OHS standards for employers and other relevant parties. The State government enforced these standards through an OHS inspectorate which had a range of enforcement powers, including prosecution. After outlining the historical development of Victoria’s OHS legislation, the magistracy’s historical role in its enforcement, and the development of an enforcement culture in which inspectors viewed prosecution as a last resort, the study shows how the key provisions of the ISHWA and OHSA required occupiers of workplaces and employers to provide and maintain safe systems of work, including the guarding of dangerous machinery. Using a wide range of empirical research methods and legal materials, it shows how the enforcement policies, procedures and practices of the inspectorate heavily slanted inspectors workplace investigations and hence prosecutions towards a restricted and often superficial, analysis of incidents (or “events”) most of which involved injuries on machinery. There was evidence, however, that after the establishment of the Central Investigation Unit in 1989 cases were more thoroughly investigated and prosecuted. From 1990 the majority of prosecutions were taken under the employer’s general duty provisions, and by 1991 there was evidence that prosecutions were focusing on matters other than machinery guarding.

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)

Prosecution of maritime pirates : the national court is dead—long live the national court

Piracy is one of the main maritime security concerns in the contemporary world. The number of piracy incidents is increasing rapidly, which is highly problematic for maritime security. Although international law provides universal jurisdiction for the prosecution of maritime pirates, the actual number of prosecutions is alarmingly low compared to the number of incidents of piracy. Despite many states becoming parties to the relevant international conventions, they are reluctant to establish the necessary legal and institutional frameworks at the national level for the prosecution of pirates. The growing incidences of piracy and the consequential problems associated with prosecuting pirates have created doubts about the adequacy of the current international legal system, which is fully dependent on national courts for the prosecution of pirates. This article examines the possible ways for ensuring the effective prosecution of pirates. Contrary to the different proposals forwarded by researchers in the wake of Somali piracy for the establishment of international judicial institutions for the prosecution of pirates, this article argues that the operationalization of national courts through the proper implementation of relevant international legal instruments within domestic legal systems is the most viable solution. However, this article submits that the operationalization of national courts will not be very successful following the altruistic model of universal adjudicative jurisdiction. A state may enact legislation implementing universal jurisdiction but will not be very interested in prosecuting a pirate in its national court if it has no relation with the piratical incident. Rather, it will be successful if the global community seriously implement the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention), which obligates the states that have some connection with a piratical incident to prosecute pirates in their national courts.

Developments in court to court communications in International insolvency cases

As business increasingly operates on a global basis, courts are called upon more often to adjudicate insolvency cases with international connections. The financial collapse of Lehman Brothers Holding Inc (‘Lehman Holdings’) provides a recent example where courts across many jurisdictions were called upon to determine issues arising from a multistate insolvent enterprise. Lehman Holdings filed for Chapter 11 bankruptcy protection in the United States on 15 September 2008. Lehman Brothers was the fourth largest investment bank in America and the largest company ever to file for bankruptcy in the United States. However the effects of its collapse were felt worldwide, including within Australia.

Offending behaviour and mental illness : characteristics of a mental health court liaison service

This paper begins with a brief review of recent literature about relationships between offending behaviour and mental illness, classifying studies by the settings within which they occurred. The establishment and role of a mental health court liaison (MHCL) service is then described, together with findings from a 3-year service audit, including an examination of relationships between clients’ characteristics and offence profiles, and comparisons with regional offence data. During the audit period, 971 clients (767 males, 204 females) were referred to the service, comprising 1139 service episodes, 35.5% of which involved a comorbid substance use diagnosis. The pattern of offences for MHCL clients was reasonably similar to the regional offence data, except that among MHCL clients there were proportionately more offences against justice procedures (e.g., breaches of apprehended violence orders [AVOs]) and fewer driving offences and “other offences”. Additionally, male MHCL clients had proportionately more malicious damage and robbery offences and lower rates of offensive behaviour and drug offences. A range of service and research issues is also discussed. Overall, the new service appears to have forged more effective links between the mental health and criminal justice systems.

Antisocial personality disorder and therapeutic justice court programs

It has become commonplace for courts to supervise an offender as part of the sentencing process. Many of them have Anti Social Personality Disorder (ASPD). The focus of this article is how the work of specialist and/or problem solving courts can be informed by the insights of the psychology profession into the best practice in the treatment and management of people with ASPD. It is a legitimate purpose of legal work to consider and improve the well-being of the participants in the legal process. Programs designed specifically to deal with those with ASPD could be incorporated into existing Drug Courts, or implemented separately by courts to aid with reforming offenders with ASPD and in managing the re-entry of offenders into the community as part of their sentence. For the success of this initiative on the part of the court, ASPD will need to be specifically diagnosed and treated. Close co-operation between courts and psychologists is required to improve the effectiveness of court programs to treat people with ASPD and to evaluate their success.

Inter-cycle variability of ignition delay in an ethanol fumigated common rail diesel engine

An experimental study has been performed to investigate the ignition delay of a modern heavy-duty common-rail diesel engine run with fumigated ethanol substitutions up to 40% on an energy basis. The ignition delay was determined through the use of statistical modelling in a Bayesian framework this framework allows for the accurate determination of the start of combustion from single consecutive cycles and does not require any differentiation of the in-cylinder pressure signal. At full load the ignition delay has been shown to decrease with increasing ethanol substitutions and evidence of combustion with high ethanol substitutions prior to diesel injection have also been shown experimentally and by modelling. Whereas, at half load increasing ethanol substitutions have increased the ignition delay. A threshold absolute air to fuel ratio (mole basis) of above ~110 for consistent operation has been determined from the inter-cycle variability of the ignition delay, a result that agrees well with previous research of other in-cylinder parameters and further highlights the correlation between the air to fuel ratio and inter-cycle variability. Numerical modelling to investigate the sensitivity of ethanol combustion has also been performed. It has been shown that ethanol combustion is sensitive to the initial air temperature around the feasible operating conditions of the engine. Moreover, a negative temperature coefficient region of approximately 900{1050 K (the approximate temperature at fuel injection) has been shown with for n-heptane and n-heptane/ethanol blends in the numerical modelling. A consequence of this is that the dominate effect influencing the ignition delay under increasing ethanol substitutions may rather be from an increase in chemical reactions and not from in-cylinder temperature. Further investigation revealed that the chemical reactions at low ethanol substitutions are different compared to the high (> 20%) ethanol substitutions.

Impact of mobility constraints on epidemic broadcast mechanisms in delay-tolerant networks

In this paper, we investigate the effect of mobility constraints on epidemic broadcast mechanisms in DTNs (Delay-Tolerant Networks). Major factors affecting epidemic broadcast performances are its forwarding algorithm and node mobility. The impact of forwarding algorithm and node mobility on epidemic broadcast mechanisms has been actively studied in the literature, but those studies generally use unconstrained mobility models. The objective of this paper is therefore to quantitatively investigate the effect of mobility constraints on epidemic broadcast mechanisms. We evaluate the performances of three classes of epidemic broadcast mechanisms - P-BCAST (PUSH-based BroadCast), SA-BCAST (Self-Adaptive BroadCast), and HP-BCAST (History-based P-BCAST) - with a random waypoint mobility model with mobility constraints. Our finding includes that the existence of mobility constraints significantly improves the reach ability and dissemination speed of epidemic broadcast mechanisms while degrading their efficiency.

Mesenchymal stromal cells transiently alter the inflammatory milieu post-transplant to delay graft-versus-host disease

Background: Multipotent mesenchymal stromal cells suppress T-cell function in vitro, a property that has underpinned their use in treating clinical steroid-refractory graft-versus-host disease after allogeneic hematopoietic stem cell transplantation. However the potential of mesenchymal stromal cells to resolve graft-versus-host disease is confounded by a paucity of pre-clinical data delineating their immunomodulatory effects in vivo. Design and Methods: We examined the influence of timing and dose of donor-derived mesenchymal stromal cells on the kinetics of graft-versus-host disease in two murine models of graft-versus-host disease (major histocompatibility complex-mismatched: UBI-GFP/BL6 [H-2b]→BALB/c [H-2d] and the sibling transplant mimic, UBI-GFP/BL6 [H-2b]→BALB.B [H-2b]) using clinically relevant conditioning regimens. We also examined the effect of mesenchymal stromal cell infusion on bone marrow and spleen cellular composition and cytokine secretion in transplant recipients. Results: Despite T-cell suppression in vitro, mesenchymal stromal cells delayed but did not prevent graft-versus-host disease in the major histocompatibility complex-mismatched model. In the sibling transplant model, however, 30% of mesenchymal stromal cell-treated mice did not develop graft-versus-host disease. The timing of administration and dose of the mesenchymal stromal cells influenced their effectiveness in attenuating graft-versus-host disease, such that a low dose of mesenchymal stromal cells administered early was more effective than a high dose of mesenchymal stromal cells given late. Compared to control-treated mice, mesenchymal stromal cell-treated mice had significant reductions in serum and splenic interferon-γ, an important mediator of graft-versus-host disease. Conclusions: Mesenchymal stromal cells appear to delay death from graft-versus-host disease by transiently altering the inflammatory milieu and reducing levels of interferon-γ. Our data suggest that both the timing of infusion and the dose of mesenchymal stromal cells likely influence these cells’ effectiveness in attenuating graft-versus-host disease.