Recognition and enforcement of foreign judgments : are the rules appropriate?

The recognition and enforcement of foreign judgments is an aspect of private international law, and concerns situations where a successful party to litigation seeks to rely on a judgment obtained in one court, in a court in another jurisdiction. The most common example where the recognition and enforcement of foreign judgments may arise is where a party who has obtained a favourable judgment in one state or country may seek to recognise and enforce the judgment in another state or country. This occurs because there is no sufficient asset in the state or country where the judgment was rendered to satisfy that judgment. As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments is of increasing importance, since a party who has obtained a judgment in cross-border litigation may wish to recognise and enforce the judgment in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court. The purpose of the study is to examine whether the current state of laws for the recognition and enforcement of foreign judgments in Australia, the United States and the European Community are in line with modern-commercial needs. The study is conducted by weighing two competing objectives between the notion of finality of litigation, which encourages courts to recognise and enforce judgments foreign to them, on the one hand, and the adequacy of protection to safeguard the recognition and enforcement proceedings, so that there would be no injustice or unfairness if a foreign judgment is recognised and enforced, on the other. The findings of the study are as follows. In both Australia and the United States, there is a different approach concerning the recognition and enforcement of judgments rendered by courts interstate or in a foreign country. In order to maintain a single and integrated nation, there are constitutional and legislative requirements authorising courts to give conclusive effects to interstate judgments. In contrast, if the recognition and enforcement actions involve judgments rendered by a foreign country’s court, an Australian or a United States court will not recognise and enforce the foreign judgment unless the judgment has satisfied a number of requirements and does not fall under any of the exceptions to justify its non-recognition and non-enforcement. In the European Community, the Brussels I Regulation which governs the recognition and enforcement of judgments among European Union Member States has created a scheme, whereby there is only a minimal requirement that needs to be satisfied for the purposes of recognition and enforcement. Moreover, a judgment that is rendered by a Member State and based on any of the jurisdictional bases set forth in the Brussels I Regulation is entitled to be recognised and enforced in another Member State without further review of its underlying jurisdictional basis. However, there are concerns as to the adequacy of protection available under the Brussels I Regulation to safeguard the judgment-enforcing Member States, as well as those against whom recognition or enforcement is sought. This dissertation concludes by making two recommendations aimed at improving the means by which foreign judgments are recognised and enforced in the selected jurisdictions. The first is for the law in both Australia and the United States to undergo reform, including: adopting the real and substantial connection test as the new jurisdictional basis for the purposes of recognition and enforcement; liberalising the existing defences to safeguard the application of the real and substantial connection test; extending the application of the Foreign Judgments Act 1991 (Cth) in Australia to include at least its important trading partners; and implementing a federal statutory scheme in the United States to govern the recognition and enforcement of foreign judgments. The second recommendation is to introduce a convention on jurisdiction and the recognition and enforcement of foreign judgments. The convention will be a convention double, which provides uniform standards for the rules of jurisdiction a court in a contracting state must exercise when rendering a judgment and a set of provisions for the recognition and enforcement of resulting judgments.

Competency and capacity : the legal and medical interface

Balancing the competing interests of autonomy and protection of individuals is an escalating challenge confronting an ageing Australian society. Legal and medical professionals are increasingly being asked to determine whether individuals are legally competent/capable to make their own testamentary and substitute decision-making, that is financial and/or personal/health care, decisions. No consistent and transparent competency/capacity assessment paradigm currently exists in Australia. Consequently, assessments are currently being undertaken on an ad hoc basis which is concerning as Australia’s population ages and issues of competency/capacity increase. The absence of nationally accepted competency/capacity assessment guidelines and supporting principles results in legal and medical professionals involved with competency/capacity assessment implementing individual processes tailored to their own abilities. Legal and medical approaches differ both between and within the professions. The terminology used also varies. The legal practitioner is concerned with whether the individual has the legal ability to make the decision. A medical practitioner assesses fluctuations in physical and mental abilities. The problem is that the terms competency and capacity are used interchangeably resulting in confusion about what is actually being assessed. The terminological and methodological differences subsequently create miscommunication and misunderstanding between the professions. Consequently, it is not necessarily a simple solution for a legal professional to seek the opinion of a medical practitioner when assessing testamentary and/or substitute decision-making competency/capacity. This research investigates the effects of the current inadequate testamentary and substitute decision-making assessment paradigm and whether there is a more satisfactory approach. This exploration is undertaken within a framework of therapeutic jurisprudence which promotes principles fundamentally important in this context. Empirical research has been undertaken to first, explore the effects of the current process with practising legal and medical professionals; and second, to determine whether miscommunication and misunderstanding actually exist between the professions such that it gives rise to a tense relationship which is not conducive to satisfactory competency/capacity assessments. The necessity of reviewing the adequacy of the existing competency/capacity assessment methodology in the testamentary and substitute decision-making domain will be demonstrated and recommendations for the development of a suitable process made.

Lateral impact response and parametric studies of axially loaded square concrete filled steel tube columns

This paper presents a numerical study on the response of axially loaded slender square concrete filled steel tube (CFST) columns under low velocity lateral impact loading. A finite element analysis (FEA) model was developed using the explicit dynamic nonlinear finite element code LS -DYNA in which the strain rate effects of both steel and concrete, contact between steel tube and concrete and confinement effect provided by the steel tube for the concrete were considered. The model also benefited from a relatively recent feature of LS-DYNA for applying a pre-loading in the explicit solver. The developed numerical model was verified for its accuracy and adequacy by comparing the results with experimental results available in the literature. The verified model was then employed to conduct a parametric study to investigate the influence of axial load level, impact location, support conditions, and slenderness ratio on the response of the CFST columns. A good agreement between the numerical and experimental results was achieved. The model could reasonably predict the impact load-deflection history and deformed shape of the column at the end of the impact event. The results of the parametric study showed that whilst impact location, axial load level and slenderness ratio can have a significant effect on the peak impact force, residual lateral deflection and maximum lateral deflection, the influence of support fixity is minimal. With an increase of axial load to up to a certain level, the peak force increases; however, a further increase in the axial load causes a decrease in the peak force. Both residual lateral deflection and maximum lateral deflection increase as axial load level increases. Shifting the impact location towards the supports increases the peak force and reduces both residual and maximum lateral deflections. A rise in slenderness ratio decreases the peak force and increases the residual and maximum lateral deflections.

Encouraging, assisting, and time to eat : comparison of mealtime assistance interventions in elderly medical inpatients

BACKGROUND: The prevalence of protein-energy malnutrition in older adults is reported to be as high as 60% and is associated with poor health outcomes. Inadequate feeding assistance and mealtime interruptions may contribute to malnutrition and poor nutritional intake during hospitalisation. Despite being widely implemented in practice in the United Kingdom and increasingly in Australia, there have been few studies examining the impact of strategies such as Protected Mealtimes and dedicated feeding assistant roles on nutritional outcomes of elderly inpatients. AIMS: The aim of this research was to implement and compare three system-level interventions designed to specifically address mealtime barriers and improve energy intakes of medical inpatients aged ≥65 years. This research also aimed to evaluate the sustainability of any changes to mealtime routines six months post-intervention and to gain an understanding of staff perceptions of the post-intervention mealtime experience. METHODS: Three mealtime assistance interventions were implemented in three medical wards at Royal Brisbane and Women's Hospital: AIN-only: Additional assistant-in-nursing (AIN) with dedicated nutrition role. PM-only: Multidisciplinary approach to meals, including Protected Mealtimes. PM+AIN: Combined intervention: AIN + multidisciplinary approach to meals. An action research approach was used to carefully design and implement the three interventions in partnership with ward staff and managers. Significant time was spent in consultation with staff throughout the implementation period to facilitate ownership of the interventions and increase likelihood of successful implementation. A pre-post design was used to compare the implementation and nutritional outcomes of each intervention to a pre-intervention group. Using the same wards, eligible participants (medical inpatients aged ≥65 years) were recruited to the preintervention group between November 2007 and March 2008 and to the intervention groups between January and June 2009. The primary nutritional outcome was daily energy and protein intake, which was determined by visually estimating plate waste at each meal and mid-meal on Day 4 of admission. Energy and protein intakes were compared between the pre and post intervention groups. Data were collected on a range of covariates (demographics, nutritional status and known risk factors for poor food intake), which allowed for multivariate analysis of the impact of the interventions on nutritional intake. The provision of mealtime assistance to participants and activities of ward staff (including mealtime interruptions) were observed in the pre-intervention and intervention groups, with staff observations repeated six months post-intervention. Focus groups were conducted with nursing and allied health staff in June 2009 to explore their attitudes and behaviours in response to the three mealtime interventions. These focus group discussions were analysed using thematic analysis. RESULTS: A total of 254 participants were recruited to the study (pre-intervention: n=115, AIN-only: n=58, PM-only: n=39, PM+AIN: n=42). Participants had a mean age of 80 years (SD 8), and 40% (n=101) were malnourished on hospital admission, 50% (n=108) had anorexia and 38% (n=97) required some assistance at mealtimes. Occasions of mealtime assistance significantly increased in all interventions (p<0.01). However, no change was seen in mealtime interruptions. No significant difference was seen in mean total energy and protein intake between the preintervention and intervention groups. However, when total kilojoule intake was compared with estimated requirements at the individual level, participants in the intervention groups were more likely to achieve adequate energy intake (OR=3.4, p=0.01), with no difference noted between interventions (p=0.29). Despite small improvements in nutritional adequacy, the majority of participants in the intervention groups (76%, n=103) had inadequate energy intakes to meet their estimated energy requirements. Patients with cognitive impairment or feeding dependency appeared to gain substantial benefit from mealtime assistance interventions. The increase in occasions of mealtime assistance by nursing staff during the intervention period was maintained six-months post-intervention. Staff focus groups highlighted the importance of clearly designating and defining mealtime responsibilities in order to provide adequate mealtime care. While the purpose of the dedicated feeding assistant was to increase levels of mealtime assistance, staff indicated that responsibility for mealtime duties may have merely shifted from nursing staff to the assistant. Implementing the multidisciplinary interventions empowered nursing staff to "protect" the mealtime from external interruptions, but further work is required to empower nurses to prioritise mealtime activities within their own work schedules. Staff reported an increase in the profile of nutritional care on all wards, with additional non-nutritional benefits noted including improved mobility and functional independence, and better identification of swallowing difficulties. IMPLICATIONS: The PhD research provides clinicians with practical strategies to immediately introduce change to deliver better mealtime care in the hospital setting, and, as such, has initiated local and state-wide roll-out of mealtime assistance programs. Improved nutritional intakes of elderly inpatients was observed; however given the modest effect size and reducing lengths of hospital stays, better nutritional outcomes may be achieved by targeting the hospital-to-home transition period. Findings from this study suggest that mealtime assistance interventions for elderly inpatients with cognitive impairment and/or functional dependency show promise.

Modelling for the electricity distribution network

Global awareness for cleaner and renewable energy is transforming the electricity sector at many levels. New technologies are being increasingly integrated into the electricity grid at high, medium and low voltage levels, new taxes on carbon emissions are being introduced and individuals can now produce electricity, mainly through rooftop photovoltaic (PV) systems. While leading to improvements, these changes also introduce challenges, and a question that often rises is ‘how can we manage this constantly evolving grid?’ The Queensland Government and Ergon Energy, one of the two Queensland distribution companies, have partnered with some Australian and German universities on a project to answer this question in a holistic manner. The project investigates the impact the integration of renewables and other new technologies has on the physical structure of the grid, and how this evolving system can be managed in a sustainable and economical manner. To aid understanding of what the future might bring, a software platform has been developed that integrates two modelling techniques: agent-based modelling (ABM) to capture the characteristics of the different system units accurately and dynamically, and particle swarm optimization (PSO) to find the most economical mix of network extension and integration of distributed generation over long periods of time. Using data from Ergon Energy, two types of networks (3 phase, and Single Wired Earth Return or SWER) have been modelled; three-phase networks are usually used in dense networks such as urban areas, while SWER networks are widely used in rural Queensland. Simulations can be performed on these networks to identify the required upgrades, following a three-step process: a) what is already in place and how it performs under current and future loads, b) what can be done to manage it and plan the future grid and c) how these upgrades/new installations will perform over time. The number of small-scale distributed generators, e.g. PV and battery, is now sufficient (and expected to increase) to impact the operation of the grid, which in turn needs to be considered by the distribution network manager when planning for upgrades and/or installations to stay within regulatory limits. Different scenarios can be simulated, with different levels of distributed generation, in-place as well as expected, so that a large number of options can be assessed (Step a). Once the location, sizing and timing of assets upgrade and/or installation are found using optimisation techniques (Step b), it is possible to assess the adequacy of their daily performance using agent-based modelling (Step c). One distinguishing feature of this software is that it is possible to analyse a whole area at once, while still having a tailored solution for each of the sub-areas. To illustrate this, using the impact of battery and PV can have on the two types of networks mentioned above, three design conditions can be identified (amongst others): · Urban conditions o Feeders that have a low take-up of solar generators, may benefit from adding solar panels o Feeders that need voltage support at specific times, may be assisted by installing batteries · Rural conditions - SWER network o Feeders that need voltage support as well as peak lopping may benefit from both battery and solar panel installations. This small example demonstrates that no single solution can be applied across all three areas, and there is a need to be selective in which one is applied to each branch of the network. This is currently the function of the engineer who can define various scenarios against a configuration, test them and iterate towards an appropriate solution. Future work will focus on increasing the level of automation in identifying areas where particular solutions are applicable.

The Royal Commission into the NSW Police Service : process corruption and the limits of judicial reflexivity

This paper will offer an examination of the Reports of the Royal Commission into the NSW Police Service (Interim Report February 1996; Interim Report: Immediate Measures November 1996; Final Report Vol I: Corruption; Final Report Vol II: Reform; Final Report Vol III: Appendices May 1997) excluding the Report on Paedophilia, August 1997. The examination will be confined essentially to one question: to what extent do the published Reports consider the part played by the judiciary, prosecutors and lawyers, in the construction of a form of criminal justice revealed by the Commission itself, to be disfigured by serious process corruption? The examination will be conducted by way of a chronological trawl through the Reports of the Commission in an attempt to identify all references to the role of the judiciary, prosecutors and lawyers. The adequacy of any such treatment will then be considered. In order to set the scene a brief and generalised overview of the Wood Commission will be offered together with the Commission's definition of process corruption.

End-of-life care in the intensive care unit : a systematic review of qualitative studies investigating the experiences and perceptions of the patient's family

Review question/objective The review objective is to synthesise the best available evidence on experiences and perceptions of family members of intensive care unit patients on the adequacy of end-of-life care, where life-support modalities have been withheld or withdrawn. Inclusion criteria Types of participants This review will consider studies that report on the experiences and perceptions of patients’ families on EOLC in the ICU, where life-support modalities have been withheld or withdrawn. The family is defined as “those who are closest to the patient... the family may include the biological family, family by acquisition, and the family of choice and friends”. Phenomena of interest The phenomena of interest for this review are the patients’ families experiences, perceptions or views on the adequacy of EOLC delivered in the ICU, where life-support modalities were withheld or withdrawn. These experiences may refer to the following views on domains of care considered important at the end-of-life in the ICU, which have been described already in the existing literature: timely, consistent, and compassionate communication, clinician availability, clinical decision making based on patients’ preferences, goals and values, physical care implemented to maintain patient comfort, holistic interdisciplinary care and bereavement care for families of patients who died.

Law, ethics and pandemic preparedness : the importance of cross-jurisdictional and cross-cultural perspectives

OBJECTIVE To explore social equity, health planning, regulatory and ethical dilemmas in responding to a pandemic influenza (H5N1) outbreak, and the adequacy of protocols and standards such as the International Health Regulations (2005). APPROACH This paper analyses the role of legal and ethical considerations for pandemic preparedness, including an exploration of the relevance of cross-jurisdictional and cross-cultural perspectives in assessing the validity of goals for harmonisation of laws and policies both within and between nations. Australian and international experience is reviewed in various areas, including distribution of vaccines during a pandemic, the distribution of authority between national and local levels of government, and global and regional equity issues for poorer countries. CONCLUSION This paper finds that questions such as those of distributional justice (resource allocation) and regulatory frameworks raise important issues about the cultural and ethical acceptability of planning measures. Serious doubt is cast on a 'one size fits all' approach to international planning for managing a pandemic. It is concluded that a more nuanced approach than that contained in international guidelines may be required if an effective response is to be constructed internationally. IMPLICATIONS The paper commends the wisdom of reliance on 'soft law', international guidance that leaves plenty of room for each nation to construct its response in conformity with its own cultural and value requirements.

Law, ethics and pandemic preparedness : the importance of cross-jurisdictional and cross-cultural perspectives

Objective To explore social equity, health planning, regulatory and ethical dilemmas in responding to a pandemic influenza (H5N1) outbreak, and the adequacy of protocols and standards such as the International Health Regulations (2005). Approach This paper analyses the role of legal and ethical considerations for pandemic preparedness, including an exploration of the relevance of cross-jurisdictional and cross-cultural perspectives in assessing the validity of goals for harmonisation of laws and policies both within and between nations. Australian and international experience is reviewed in various areas, including distribution of vaccines during a pandemic, the distribution of authority between national and local levels of government, and global and regional equity issues for poorer countries. Conclusion This paper finds that questions such as those of distributional justice (resource allocation) and regulatory frameworks raise important issues about the cultural and ethical acceptability of planning measures. Serious doubt is cast on a ‘one size fits all’ approach to international planning for managing a pandemic. It is concluded that a more nuanced approach than that contained in international guidelines may be required if an effective response is to be constructed internationally. Implications The paper commends the wisdom of reliance on ‘soft law’, international guidance that leaves plenty of room for each nation to construct its response in conformity with its own cultural and value requirements.

New challenges for old laws? The development of e-health in Australia

Increasing role of electronic health care in Australia - possibilities of e-health in terms of provider-to-consumer initiatives and of business-to-business initiatives - challenges of e-health in the context of existing laws and recent reforms - assessment of the adequacy of existing laws to meet the challenges posed by e-health

Ecological risk analysis of transgenic plants

Public concern about the safety of many forms of industrial technology are known to be linked to a range of factors including a perceived lack of confidence in regulatory decision making.1 The use of transgenic plants in agriculture may be seen as an issue that could generate similar concern. Criticism has been made about the completeness of knowledge on the potential for aberrant behaviour of genetically manipulated organisms (GMO's) in release environments, and the adequacy of existing pre­‐release screening and assessment methodologies (Goldberg & Tjaden, 1990). Such comments are important because any perceived shortcomings in the pre-release assessment of GMO safety may lead to decreased public support of the technology -­‐and the industry itself...

Nonlinear geometric and material computational technique : higher-order element with refined plastic hinge approach

This paper addresses of the advanced computational technique of steel structures for both simulation capacities simultaneously; specifically, they are the higher-order element formulation with element load effect (geometric nonlinearities) as well as the refined plastic hinge method (material nonlinearities). This advanced computational technique can capture the real behaviour of a whole second-order inelastic structure, which in turn ensures the structural safety and adequacy of the structure. Therefore, the emphasis of this paper is to advocate that the advanced computational technique can replace the traditional empirical design approach. In the meantime, the practitioner should be educated how to make use of the advanced computational technique on the second-order inelastic design of a structure, as this approach is the future structural engineering design. It means the future engineer should understand the computational technique clearly; realize the behaviour of a structure with respect to the numerical analysis thoroughly; justify the numerical result correctly; especially the fool-proof ultimate finite element is yet to come, of which is competent in modelling behaviour, user-friendly in numerical modelling and versatile for all structural forms and various materials. Hence the high-quality engineer is required, who can confidently manipulate the advanced computational technique for the design of a complex structure but not vice versa.

Aligning off-balance sheet risk, on-balance sheet risk and audit fees: a PLS path modelling analysis

This study focuses on using the partial least squares (PLS) path modelling technique in archival auditing research by replicating the data and research questions from prior bank audit fee studies. PLS path modelling allows for inter-correlations among audit fee determinants by establishing latent constructs and multiple relationship paths in one simultaneous PLS path model. Endogeneity concerns about auditor choice can also be addressed with PLS path modelling. With a sample of US bank holding companies for the period 2003-2009, we examine the associations among on-balance sheet financial risks, off-balance sheet risks and audit fees, and also address the pervasive client size effect, and the effect of the self-selection of auditors. The results endorse the dominating effect of size on audit fees, both directly and indirectly via its impacts on other audit fee determinants. By simultaneously considering the self-selection of auditors, we still find audit fee premiums on Big N auditors, which is the second important factor on audit fee determination. On-balance-sheet financial risk measures in terms of capital adequacy, loan composition, earnings and asset quality performance have positive impacts on audit fees. After allowing for the positive influence of on-balance sheet financial risks and entity size on off-balance sheet risk, the off-balance sheet risk measure, SECRISK, is still positively associated with bank audit fees, both before and after the onset of the financial crisis. The consistent results from this study compared with prior literature provide supporting evidence and enhance confidence on the application of this new research technique in archival accounting studies.

Aligning off-balance sheet risk, on-balance sheet risk and audit fees: a PLS path modelling analysis

This study focuses on using the partial least squares (PLS) path modelling methodology in archival auditing research by replicating the data and research questions from prior bank audit fee studies. PLS path modelling allows for inter-correlations among audit fee determinants by establishing latent constructs and multiple relationship paths in one simultaneous PLS path model. Endogeneity concerns about auditor choice can also be addressed with PLS path modelling. With a sample of US bank holding companies for the period 2003-2009, we examine the associations among on-balance sheet financial risks, off-balance sheet risks and audit fees, and also address the pervasive client size effect, and the effect of the self-selection of auditors. The results endorse the dominating effect of size on audit fees, both directly and indirectly via its impacts on other audit fee determinants. By simultaneously considering the self-selection of auditors, we still find audit fee premiums on Big N auditors, which is the second important factor on audit fee determination. On-balance-sheet financial risk measures in terms of capital adequacy, loan composition, earnings and asset quality performance have positive impacts on audit fees. After allowing for the positive influence of on-balance sheet financial risks and entity size on off-balance sheet risk, the off-balance sheet risk measure, SECRISK, is still positively associated with bank audit fees, both before and after the onset of the financial crisis. The consistent results from this study compared with prior literature provide supporting evidence and enhance confidence on the application of this new research technique in archival accounting studies.

Rapid on-site evaluation of fine needle aspiration specimens by cytology scientists : a review of 3032 specimens

Objectives To determine: (1) the accuracy of cytology scientists at assessing specimen adequacy by rapid on-site evaluation (ROSE) at fine needle aspiration (FNA) cytology collections; and (2) whether thyroid FNA with ROSE has lower inadequacy rates than non-attended FNAs. Methods The ROSE of adequacy for 3032 specimens from 17 anatomical sites collected over a 20-month period was compared with the final report assessment of adequacy. ROSE was performed by 19 cytology scientists. The report profile for 1545 thyroid nodules with ROSE was compared with that for 1536 consecutive non-ROSE thyroid FNAs reported by the same cytopathologists during the study period. Results ROSE was adequate in 75% (2276/3032), inadequate in 12% (366/3032) and in 13% (390/3032) no opinion was rendered. Of the 2276 cases assessed as adequate by ROSE, 2268 (99.6%) were finally reported as adequate for assessment; eight specimens had adequacy downgraded on the final report. Fifty eight per cent of cases with a ROSE assessment of inadequate were reported as adequate (212/366), whereas 93% (363/390) with no opinion rendered were reported as adequate. The overall final report adequacy rate for the 3032 specimens was 94% (2843/3032). Confirmation of a ROSE of adequacy at reporting was uniformly high amongst the 19 scientists, ranging from 98% to 100%. The inadequacy rate for thyroid FNAs with ROSE (6%) was significantly (P < 0.0001) lower than for non-ROSE thyroid FNAs (17%). A significantly (P = 0.02) higher proportion of adequate ROSE thyroid specimens was reported with abnormalities, compared with non-ROSE thyroid collections. Conclusions Cytology scientists are highly accurate at determining specimen adequacy at ROSE for a wide range of body sites. ROSE of thyroid FNAs can significantly reduce inadequate reports.