Concepts and principles in unjust enrichment : a comparative study

The Thesis was inspired by a perceived need better to understand the unique description of unjust enrichment by the Australian courts, as a unifying legal concept. It demonstrates that concepts and principles are essential features of the common law because they identify the character and taxonomy of rules. The comparative study, encompassing Australian and English law primarily, and law of other jurisdictions, modern and ancient, elucidates the special characteristics of the concepts and principles of Anglo/Australian unjust enrichment and of concepts and principles generally. A like concept has had a place in the common law since its inception under several characterisations. It bears the mark of ancient Roman jurisprudence, but relates to independent principles. The jurisprudence was formed by special characteristics of its history. It is distinct from modern Roman/Dutch law but the doctrinal overtones of its foundational case law reflect the basis of reasoning which in Continental law, is found in the adopted ancient codes. It is this foundation of reasoning and the firm rejection of a normative general principle that makes Anglo/Australian law different in character and jurisprudence from unjust enrichment in USA and Canada. Stifled for centuries by quasi contract misconceptions, the law of unjust enrichment entered the modern law in the 20th C through the seminal judgements of Lord Wright in Fibrosa Spolka Akcyjna v Fairbairn Lawson Coombe Barbour Ltd, and related cases and through the strong judicial and juristic following they inspired. That “…any civilised system of law is bound to provide remedies for … unjust enrichment…” became an imperative across the common law world: it has long held a place in the Roman Dutch jurisdictions of South Africa and Continental Europe. The special character of unjust enrichment in Anglo/Australian law is focussed upon a unique action where-by the law imposes an obligation upon the establishment of a recognised ground. The notion of breach of a primary rule does not arise: the obligation is therefore a primary obligation imposed by law, as distinct from a remedy for a breach. Important consequences flow from the characteristic. The juristic development of unjust enrichment in the common law has long been the sole prerogative of the superior courts. The place of historical features of the jurisprudence has however been subsumed by modern judicial methodology that is slowly assuming a unifying pattern of reasoning from case to case; from one ground to another. This is the special characteristic of the unifying legal concept and English principle of unjust enrichment. The thesis draws widely based conclusions about concepts and principles of unjust enrichment and the actions and obligations they sponsor. It portrays them as the substance of legal reasoning and analyses underlying theory. to this end, it addresses counter juristic and historical arguments. Its central conclusion are that there are sound jurisprudential arguments for actions based upon a unifying legal concept and English principle of unjust enrichment, and that the explanation of the unjust enrichment concept as the foundation of an independent branch of the common law and taxonomy is theoretically sustainable. In this manner concepts and principles of the common law are demonstrated as critical characteristics of the common law at large.

Comparative ecology of island and mainland swamp antechinus populations

The demography, reproduction and behaviour of the swamp antechinus, a small carnivorous marsupial, were compared in island and mainland populations. Divergent demography and behaviour occurred between populations, with island animals benefiting from increased productivity caused by nesting seabirds. However, evolutionary divergence in life-history and morphology, which occur in island rodent populations, were not recorded.

Re-framing the riot : journalism, creative non-fiction and telling the story of Australia's black history

On 19 November 2004, an Aboriginal man was arrested on Palm Island, off the coast of Townsville in northern Queensland. He was taken to the local watch house on a drunk and disorderly charge. An hour later, he lay dead on a cell floor. His liver, an autopsy showed, had been split in half and his spleen ruptured. But when that autopsy report also found that Mulrunji Doomadgee’s severe injuries were not caused by force, the Palm Island Indigenous community, enraged and grief-stricken, went looking for payback.

The Palm Island “riots” ensured that this Aboriginal death in custody made international news headlines where others barely got a mention, if at all (Hollinsworth, 2005). The ensuing Coronial Inquest and criminal prosecution of the arresting Queensland police officer, Chris Hurley, also were covered consistently by the news media. Senior Sergeant Hurley has, however, so far escaped punishment and the Queensland media’s most recent report of the case was to tell how the Qld Police Union now funds a legal bid to clear his name. Meanwhile, little is heard in the news media of the Doomadgee family, the Palm Island community, or of other deaths in custody occurring steadily through the 18 years since the Royal Commission that was supposed to implement a raft of preventative recommendations.

While the news media’s framing of these issues has most often followed historically predictable and ultimately racist lines, a work of creative non-fiction tells the story with warranted complexity and power. Chloe Hooper’s The Tall Man: Death and Life on Palm Island documents Cameron Doomadgee’s death, the riots, and the ensuing legal farce from the front row. Hooper, in the tradition of Truman Capote, arrived at Palm Island as a white writer from a big city. But by “walking the talk” – being with the Doomadgee family and their community through the hearings and after, Hooper was given extraordinary access to community, history, and significant cultural nuance barely identified by, let alone understood by, non-Indigenous readers.

By focussing on Hooper’s experience with sources and court reporting, compared with some print media coverage, this paper will consider the comparative roles of journalism and creative non-fiction in re-framing the Palm Island “riot”. It will suggest that Hooper’s work subverts some dominant (and racist) news media representations of Australian Indigenous peoples through its use of source relationships in an extended narrative structure.

A deliberative approach to Northeast Asia's contested history

The failure to reconcile views of the past and to address historical injustice has damaged inter-state relations in Northeast Asia. Joint committees, dialogues and the participation of civil society have been used to address historical issues, but scholars in the disciplines of international relations and area studies have largely ignored these dialogues and deliberative forums. At the same time, there is an emergent theoretical literature on how deliberative democracy can address ethnic conflicts and historical injustice. There is a serious disconnect or distance between the theoretical literature on the resolution of conflicts via deliberation on the one hand, and empirical studies of deliberative approach in East Asia on the other. This article aims to address this shortcoming in the study of the politics of historical dispute in Northeast Asia by proposing a deliberative approach to history disputes and highlighting the achievements, limits and dynamics of deliberation. Through mapping and comparative testing, we confirm that deliberation offers some potential for a departure from nationalist mentalities and a shift towards a consciousness of regional history in Northeast Asia. Our empirical test of the utility of the deliberative approach suggests that a new model for addressing regional disputes may be emerging.

History researcher development and research capacity in Australia and New Zealand

 This article presents data and discussion on history researcher development and research capacities in Australia and New Zealand, as evidenced in analysis of history PhD theses’ topics. The article is based on two independent studies of history PhD thesis topics, using a standard discipline coding system. It shows some marked differences in the Australian and New Zealand volumes and distributions of history PhDs, especially for PhDs conducted on non-local/national topics. These differences reflect national researcher development, research capacities and interests, in particular local, national and international histories, and have implications for the globalisation of scholarship. Thesis topics are used as a proxy for the graduate’s research capacity within that topic. However, as PhD examiners have attested to the significance and originality of the thesis, this is taken as robust. The longitudinal nature of the research suggests that subsequent years’ data and analysis would provide rich information on changes to history research capacity. Other comparative (i.e. international) studies would provide interesting analyses of history research capacity. There are practical implications for history departments in universities, history associations, and government (PhD policy, and history researcher development and research capacity in areas such as foreign affairs). There are social implications for local and community history in the knowledge produced in the theses, and in the development of local research capacity. The work in this article is the first to collate and analyse such thesis data either in Australia or New Zealand. The comparative analyses of the two datasets are also original.

Comparative patterns of adrenal activity in captive and wild Canada lynx (Lynx canadensis)

Stress and animal well-being are often assessed using concentrations of glucocorticoids (GCs), a product of the hypothalamic–pituitary–adrenal axis. However, GC concentrations can also be modulated by predictable events, such as changes in season or life history stage. Understanding normative patterns of adrenal activity is critical for making valid conclusions about changes in GC concentrations. In this study, we validated an assay for monitoring fecal glucocorticoid metabolites (FGM) in Canada lynx. We then used this technique to assess patterns of adrenal activity in Canada lynx across several contexts. Our results show that captive lynx have higher FGM concentrations than wild lynx, which may be related to differences in stress levels, metabolic rate, diet, or body condition. We also found that FGM concentrations are correlated with reproductive status in females, but not in males. For males, seasonal increases in FGM expression coincide with the onset of the breeding season, whereas in females, FGM increase toward the end of the breeding season. This information provides a valuable foundation for making inferences about normative versus stress-induced changes in adrenal activity in Canada lynx.

Exploration strategies map along fast-slow metabolic and life-history continua in muroid rodents

1Personality is highly relevant to ecology and the evolution of fast–slow metabolic and life-history strategies. One of the most important personality traits is exploratory behaviour, usually measured on an animal introduced to a novel environment (e.g. open-field test).2Here, we use a unique comparative dataset on open-field exploratory behaviour of muroid rodents to test a key assumption of a recent evolutionary model, i.e. that exploration thoroughness is positively correlated to age at first reproduction (AFR). We then examine how AFR and exploratory behaviour are related to basal metabolic rate (BMR).3Inter-specific variation in exploratory behaviour was positively correlated with AFR. Both AFR and exploration behaviour were negatively correlated with BMR. These results remained significant when taking phylogeny into account.4We suggest that species occupying unproductive and unpredictable environments simultaneously benefit from high exploration, low BMR and delayed AFR because exploration increases the likelihood of finding scarce resources, whereas low BMR and delayed reproduction enhance survival during frequent resources shortages.5This study provides the first empirical evidence for a link between personality, life-history, phylogeny and energy metabolism at the inter-specific level. The superficial-thorough exploration continuum can be mapped along the fast–slow metabolic and life-history continua.

Using gene-history and expression analyses to assess the involvement of LGI genes in human disorders

Mutations in the leucine-rich, glioma-inactivated 1 gene, LGI1, cause autosomal-dominant lateral temporal lobe epilepsy via unknown mechanisms. LGI1 belongs to a subfamily of leucine-rich repeat genes comprising four members (LGI1–LGI4) in mammals. In this study, both comparative developmental as well as molecular evolutionary methods were applied to investigate the evolution of the LGI gene family and, subsequently, of the functional importance of its different gene members. Our phylogenetic studies suggest that LGI genes evolved early in the vertebrate lineage. Genetic and expression analyses of all five zebrafish lgi genes revealed duplications of lgi1 and lgi2, each resulting in two paralogous gene copies with mostly nonoverlapping expression patterns. Furthermore, all vertebrate LGI1 orthologs experience high levels of purifying selection that argue for an essential role of this gene in neural development or function. The approach of combining expression and selection data used here exemplarily demonstrates that in poorly characterized gene families a framework of evolutionary and expression analyses can identify those genes that are functionally most important and are therefore prime candidates for human disorders.

The inter-section of political history and health policy in Asia - the historical foundations for health policy analysis

One of the challenges for health reform in Asia is the diverse set of socio-economic and political structures, and the related variability in the direction and pace of health systems and policy reform. This paper aims to make comparative observations and analysis of health policy reform in the context of historical change, and considers the implications of these findings for the practice of health policy analysis. We adopt an ecological model for analysis of policy development, whereby health systems are considered as dynamic social constructs shaped by changing political and social conditions. Utilizing historical, social scientific and health literature, timelines of health and history for five countries (Cambodia, Myanmar, Mongolia, North Korea and Timor Leste) are mapped over a 30-50 year period. The case studies compare and contrast key turning points in political and health policy history, and examines the manner in which these turning points sets the scene for the acting out of longer term health policy formation, particularly with regard to the managerial domains of health policy making. Findings illustrate that the direction of health policy reform is shaped by the character of political reform, with countries in the region being at variable stages of transition from monolithic and centralized administrations, towards more complex management arrangements characterized by a diversity of health providers, constituency interest and financing sources. The pace of reform is driven by a country's institutional capability to withstand and manage transition shocks of post conflict rehabilitation and emergence of liberal economic reforms in an altered governance context. These findings demonstrate that health policy analysis needs to be informed by a deeper understanding and questioning of the historical trajectory and political stance that sets the stage for the acting out of health policy formation, in order that health systems function optimally along their own historical pathways.

Brazil and Turkey, a comparative analysis of both countries' economic development and institutional design from the Great Depression to the early 21st century

Apos uma década de rápido crescimento econômico na primeira década do século 21, Brasil e Turquia foram considerados duas das economias emergentes mais dinâmicas e promissoras. No entanto, vários sinais de dificuldades econômicas e tensões políticas reapareceram recentemente e simultaneamente nos dois países. Acreditamos que esses sinais e a sua simultaneidade podem ser entendidos melhor com um olhar retrospectivo sobre a história econômica dos dois países, que revela ser surpreendentemente paralela. Numa primeira parte, empreendemos uma comparação abrangente da história econômica brasileira e turca para mostrar as numerosas similaridades entre os desafios de política econômica que os dois países enfrentaram, assim como entre as respostas que eles lhes deram desde a virada da Grande Depressão até a primeira década do século 21. Essas escolhas de política econômica comuns dão forma a uma trajetória de desenvolvimento notavelmente análoga, caracterizada primeiro pela adoção do modelo de industrialização por substituição das importações (ISI) no contexto da recessão mundial dos anos 1930; depois pela intensificação e crise final desse modelo nos anos 1980; e finalmente por duas décadas de estabilização e transição para um modelo econômico mais liberal. Numa segunda parte, o desenvolvimento das instituições econômicas e políticas, assim como da economia política subjacente nos dois países, são analisados comparativamente a fim de prover alguns elementos de explicação do paralelo observado na primeira parte. Sustentamos que o marco institucional estabelecido nos dois países durante esse período também têm varias características fundamentais em comum e contribui a explicar as escolhas de política econômica e as performances econômicas comparáveis, detalhadas na primeira parte. Este estudo aborda elementos do contexto histórico úteis para compreender a situação econômica e política atual nos dois países. Potencialmente também constitui uma tentativa de considerar as economias emergentes numa perspectiva histórica e comparativa mais ampla para entender melhor as suas fraquezas institucionais e adotar um olhar mais equilibrado sobre seu potencial econômico.

Comparative genomic hybridization detects novel amplifications in fibroadenomas of the breast

Comparative genomic hybridization analysis was performed for identification of chromosomal imbalances in 23 samples of fibroadenomas of the breast. Chromosomal gains rather than losses were a feature of these lesions. Only two cases with a familial and/or previous history of breast lesions had gain of 1q or 16q as the sole abnormality. The most frequently overrepresented segments were 5p14 (10/23 cases), 5q34-qter (6/23 cases), 13q32-qter (6/23 cases), 10q25-qter (5/23 cases), and 18q22 (4/23 cases). Some of these regions have previously been associated with breast carcinoma, but this study indicates that gain of these regions can also occur in benign breast lesions. Our findings may provide a basis for conducting further investigations to locate and identify genes associated with proliferation that may be involved in the early steps of tumorigenesis of the breast. (C) 2001 Wiley-Liss, Inc.

Comparative cytogenetics of cichlid fishes through genomic in-situ hybridization (GISH) with emphasis on Oreochromis niloticus

Fundação de Amparo à Pesquisa do Estado de São Paulo (FAPESP)

Comparative genomic hybridization analysis detects frequent over-representation of DNA sequences at 3q, 7p, and 8q in head and neck carcinomas

Comparative genomic hybridization (CGH) was used to identify chromosomal imbalances in 19 samples of squamous cell carcinoma of the head and neck (HNSCC). The chromosome arms most often or er-represented were 3q (48%), 8q (42%), and 7p (32%); in many cases, these changes were observed at high copy number. Other commonly over-represented sites were 1q, 2q, 6p, 6q, and 18q. The most frequently under-represented segments were 3p and 22q. Loss of heterozygosity of two polymorphic microsatellite loci from chromosome 22 was observed in two tongue tumors, in agreement with the CGH analysis. Gains of 1q and 2q material were detected in patients exhibiting a clinical history of recurrence and/or metastasis followed by terminal disease. This association suggests that gain of 1q and 2q map be a new marker of head and neck tumors with a refractory clinical response. (C) 2000 Elsevier B.V. All rights reserved.

Comparative population biology of Uca rapax (Smith, 1870) (Brachyura, Ocypodidae) from two subtropical mangrove habitats on the Brazilian coast

The structure of two populations of the fiddler crab Uca rapax in two subtropical mangrove habitats near Ubatuba, State of São Paulo, Brazil were compared. The size - frequency distribution, sex ratio, and recruitment were evaluated. Sampling was performed monthly from April 2001 to March 2002 in the Itamambuca and Ubatumirim habitats. Crabs were caught manually for 15 min by two collectors during low tide. The carapace width of each crab was measured with a digital caliper, and the sex and ovigerous state were recorded. The median size of the carapace width of males was greater than that of females at both sites (P<0.05). The median size of the crabs from Itamambuca was larger than at Ubatumirim (P<0.05). Only 28 ovigerous females were obtained from both mangroves, which suggested that females might remain in their burrows during the incubation period. The highest recruitment pulse occurred in winter for both populations, probably as a consequence of high reproductive activity during summer. The sex ratio in the size classes showed an anomalous pattern, with a higher frequency of females in the intermediate size classes. This may be related to a greater energy requirement for reproduction in females, thus delaying growth. The variable environmental conditions to which Uca rapax populations are subject appear to act directly or indirectly on the population, causing variations in growth and reproductive processes in the different populations investigated here.