Personal Injuries Proceedings Act 2002, s 32 - Duty to Disclose - consequences of non-disclosure - discretion to excuse non-compliance

In Newson v Aust Scan Pty Ltd t/a Ikea Springwood [2010] QSC 223 the Supreme Court examined the discretion under s 32(2) of the Personal Injuries Proceedings Act 2002 (Qld), to permit a document which has not been disclosed as required by the pre-court procedures under the PIPA to be used in a subsequent court proceeding. This appears to be the first time that the nature and parameters of the discretion have been judicially considered.

Disclosure obligations on ex parte application for freezing order - duty of practitioners to the court - failure to comply with duty - serious dereliction of duty to court - supplemental order for costs against solicitors personally

The decision of Applegarth J in Heartwood Architectural & Joinery Pty Ltd v Redchip Lawyers [2009] QSC 195 (27 July 2009) involved a costs order against solicitors personally. This decision is but one of several recent decisions in which the court has been persuaded that the circumstances justified costs orders against legal practitioners on the indemnity basis. These decisions serve as a reminder to practitioners of their disclosure obligations when seeking any interlocutory relief in an ex parte application. These obligations are now clearly set out in r 14.4 of the Legal Profession (Solicitors) Rule 2007 and r 25 of 2007 Barristers Rule. Inexperience or ignorance will not excuse breaches of the duties owed to the court.

Swine flu, doctors and pandemics : Is there a duty to treat during a pandemic?

The swine influenza (H1N1) outbreak in 2009 highlighted the ethical and legal pressures facing general practitioners and health workers in emergency departments in determining the nature and limits of their obligations to their patients and the public. Health workers require guidance on the multiple, overlapping, and at times conflicting legal and ethical duties owed to patients and prospective patients, employers and fellow health workers, and their families. Existing sources of advice on these issues in Australia, by way of statements of medical ethics and other sources of advice, are shown to be in need of further amplification if health workers are to be provided with the certainty and guidance required. Given the complexity of the issues, Australia would therefore benefit from more extensive consultation with the variety of stakeholders involved in these questions if pandemic plans are to smoothly deal with future crises in an ethically and legally sound manner.

The duty to report disease outbreaks : of interest or value? Lessons from H5N1

Since the severe acute respiratory syndrome outbreak in 2003, it has been argued that there has been a substantial revision to the norm dictating the behaviour of states in the event of a disease outbreak. This article examines the evolution of the norm to ‘report and verify’ disease outbreaks and evaluates the extent to which this revised norm has begun to guide state behaviour. Examination of select East Asian countries affected by human infections of the H5N1 (avian influenza) virus strain reveals the need to further understand the mutually constitutive relationship between the value attached to prompt reporting against the capacity to report, and how states manage both in fulfilling their duty to report.

Is there an international duty to protect persons in the event of an epidemic?

In 2006, the International Law Commission began a study into the role of states and international organizations in protecting persons in the event of a disaster. Special Rapporteur Mr. Eduardo Valencia-Ospina was appointed to head the study, and in 2011 the findings of the study will be presented to the United Nations General Assembly. Of interest to this paper has been the inclusion of “epidemics” under the natural disaster category in all of the reports detailing the Commission’s program of work on the protection of persons. This paper seeks to examine the legal and political ramifications involved in including “epidemic” into the concept of protection by exploring where sovereign responsibility for epidemic control begins and ends, particularly in light of the revisions to the International Health Regulations by the World Health Assembly in 2005. The paper will first analyze the findings already presented by the Special Rapporteur, examining the existing “responsibilities” of both states and international organizations. Then, the paper will consider to what extent the concept of protection entails the duty to assist individuals when an affected state proves unwilling or unable to assist their own population in the event of a disease outbreak. In an attempt to answer this question, the third part of the paper will examine the recent cholera outbreak in Zimbabwe.

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...

Facebook and Google have a moral duty to stop online abuse

It’s the stuff of nightmares: your intimate images are leaked and posted online by somebody you thought you could trust. But in Australia, victims often have no real legal remedy for this kind of abuse. This is the key problem of regulating the internet. Often, speech we might consider abusive or offensive isn’t actually illegal. And even when the law technically prohibits something, enforcing it directly against offenders can be difficult. It is a slow and expensive process, and where the offender or the content is overseas, there is virtually nothing victims can do. Ultimately, punishing intermediaries for content posted by third parties isn’t helpful. But we do need to have a meaningful conversation about how we want our shared online spaces to feel. The providers of these spaces have a moral, if not legal, obligation to facilitate this conversation.

Duty to mitigate in leasehold law

Discusses by reference to case law, including Commonwealth authorities, the rights and duties of landlords where demised premises are abandoned by a tenant who has defaulted on the rent, including the remedies available to the landlord, the limitations on his right to sue for loss of rent due between abandonment and expiration of the term, and the applicability of the contractual doctrine of mitigation of damages in leasehold law. Examines the Court of Appeal decision in Reichman v Beveridge on the duty of mitigate loss in an action merely seeking recovery of rent as it accrues due.

Parental Responsibility and the Duty to Consult - the public's view

This article considers the imposition, by the courts, of a parental duty to consult on matters of importance in a child’s life. The results of a survey of 2,300 respondents, who were asked to respond to a number of scenarios, are analysed and discussed. The survey provides some interesting reflections on the views of the general public as to who should be ‘in control’ over decision making for children.

Genocide and the International Court of Justice: Finally, a Duty to Prevent the Crime of Crimes

The International Court of Justice has issued its long-awaited decision in the suit filed by Bosnia and Herzegovina against Serbia and Montenegro with respect to the 1992–1995 war. The decision confirms the factual and legal determinations of the International Criminal Tribunal for the former Yugoslavia, ruling that genocide was committed during the Srebrenica massacre in July 1995 but that the conflict as a whole was not genocidal in nature. The Court held that Serbia had failed in its duty to prevent genocide in Srebrenica, although—because, the Court said, there was no certainty that it could have succeeded in preventing the genocide—no damages were awarded. The judgment provides a strong and authoritative statement of the general duty upon states to prevent genocide that dovetails well with the doctrine of the responsibility to protect.

Euthanasia: why it doesn`t matter (much) what the doctor thinks and why there is no suggestion that doctors should have a duty to kill

A major reason that The Netherlands has taken a different approach to the rest of the world on such a fundamental moral issue is that the courts and legislature in that country have accorded the interests of doctors a cardinal role in the euthanasia debate. This article argues that the interests of doctors are of only incidental and peripheral relevance in relation to the moral status of euthanasia. The moral status of euthanasia has little to do with the
preparedness ofdoctors to administer the lethal injection or their general attitude towards the practice. Euthanasia is principally about the interests of the patient and the impact that the practice may have on the community in general, not preserving the conscience or improving the working life ofdoctors.

Directors' duty to use their powers for proper or permissable purposes

This article focuses generally on the interaction among several internal company law doctrines such as the supremacy of the articles of association; that other organs cannot interfere with powers exclusively conferred upon a particular organ; that courts will not readily interfere with internal company matters; that directors are under a duty to act in good faith and in the best interest of the company as a whole and under a duty to use their powers for proper or permissible purposes; and that there are some remedies available to shareholders if directors did not perform their powers for a proper or permissible purpose. The specific aim with the article is to establish when and why the courts will be prepared to set aside decisions by directors if they have taken them for an improper or impermissible purpose. The article concludes that the courts will be prepared to set the decisions of directors aside when they have used a particular power substantially or primarily for an improper or impermissible purpose. When the exercise of directors' powers is challenged under circumstances where there were both permissible and impermissible purposes for exercising a particular power, there is no alternative for the court but to inquire into the complex area of the state of mind of those who acted and the motive on which they acted. This is, in fact, second-guessing the decisions of directors.