Default judgment set aside without costs

A recent District Court case is believed to be the first in Queensland in which UCPR r 5 has been used to support the setting aside of a regularly entered default judgment without a costs order.

Setting aside default judgment - whether judgment regularly or irregularly entered - service under Corporations Act 2001 (Cth) s109X(1) - requirements for affadavit of service

In Hill v Robertson Suspension Systems Pty Ltd [2009] QDC 165 McGill DCJ considered the procedural requirements for the service of originating process on a company, and for proving that service for the purpose of obtaining default judgment.The judge’s views adopt a strict and technical construction of the requirements for an affidavit of service under r 120(1)(b). Though clearly obiter, they may well affect the approach taken on applications to enter or set aside default judgments in the lower courts. Pending further judicial consideration of the issue, it is suggested the prudent course is to ensure that the deponent of an affidavit for service effected under s 109X(1)(a) of the Act deposes not only to the location of the registered office of the company but also, at a minimum, provides the source of that information.

Default judgment - whether irregular - whether court has residual discretion not to set aside default judgment irregularly entered

In CB Richard Ellis (C) Pty Ltd v Wingate Properties Pty Ltd [2005] QDC 399 McGill DCJ examined whether the court now has a discretion to set aside an irregularly entered default judgment.

Setting aside default judgment - whether applicant must file affidavit providing direct evidence of defence 'on the merits'

In Prus-Butwilowicz v Moxey [2002] QDC 166 the court examined the question whether an applicant for an order setting aside a default judgment was required to file an affidavit providing direct evidence of a defence 'on the merits' and whether the position had changed under the Uniform Civil Procedure Rules 1999 (Qld).

District Court debt decisions

This article examines the distinction between a "liquidated demand" and a claim for "unliquidated damages" and the implications of that distinction on the procedure for obtaining a judgment if the defendant fails to file a notice of intention to defend.

The STRATIFY tool and clinical judgment were poor predictors of falling in an acute hospital setting

Objective: To compare the effectiveness of the STRATIFY falls tool with nurses’ clinical judgments in predicting patient falls. Study Design and Setting: A prospective cohort study was conducted among the inpatients of an acute tertiary hospital. Participants were patients over 65 years of age admitted to any hospital unit. Sensitivity, specificity, and positive predictive value (PPV) and negative predictive values (NPV) of the instrument and nurses’ clinical judgments in predicting falls were calculated. Results: Seven hundred and eighty-eight patients were screened and followed up during the study period. The fall prevalence was 9.2%. Of the 335 patients classified as being ‘‘at risk’’ for falling using the STRATIFY tool, 59 (17.6%) did sustain a fall (sensitivity50.82, specificity50.61, PPV50.18, NPV50.97). Nurses judged that 501 patients were at risk of falling and, of these, 60 (12.0%) fell (sensitivity50.84, specificity50.38, PPV50.12, NPV50.96). The STRATIFY tool correctly identified significantly more patients as either fallers or nonfallers than the nurses (P50.027). Conclusion: Considering the poor specificity and high rates of false-positive results for both the STRATIFY tool and nurses’ clinical judgments, we conclude that neither of these approaches are useful for screening of falls in acute hospital settings.

Developing consistency in teacher judgment formation through online meeting centres

This paper investigates the complex interactions that occur as teachers meet online to justify and negotiate their assessment judgments of student work across relatively large and geographically dispersed populations. Drawing from sociocultural theories of learning and technology, the technology is positioned as playing a role in either supporting or hindering teachers reaching a common understanding of assessment standards. Meeting transcripts and interviews with the teachers have been qualitatively analysed in terms of the interactions that occurred and teachers’ perceptions of these interactions. While online meetings offer a partial solution to address the current demands of assessment in education, they also present new challenges as teachers meet, in an unfamiliar environment, to discuss student work.

The appropriateness of default investment options in defined contribution plans : Australian evidence

For participants in defined contribution (DC) plans who refrain from exercising investment choice, plan contributions are invested following the default investment option of their respective plans. Since default investment options of different plans vary widely in terms of their benchmark asset allocation, the most important determinant of investment performance, participants enrolled in these options face significantly different wealth outcomes at retirement. This paper simulates the terminal wealth outcomes under different static asset allocation strategies to evaluate their relative appeal as default investment choice in DC plans. We find that strategies with low or moderate allocation to stocks are consistently outperformed in terms of upside potential of exceeding the participant’s wealth accumulation target at retirement as well as downside risk of falling below that target outcome by aggressive strategies whose allocation to stocks approach 100%. The risk of extremely adverse wealth outcomes for plan participants also does not appear to be very sensitive to asset allocation. Our evidence suggests the appropriateness of strategies heavily tilted towards stocks to be nominated as default investment options in DC plans unless plan providers emphasize predictability of wealth outcomes over adequacy of retirement wealth.

Don’t judge a superannuation default investment option by its name

With the massive decline in savings arising from the Global Financial Crisis (GFC), it is timely to review superannuation fund investment and disclosure strategies in the lead-up to the crisis. Accordingly, this study examines differences among superannuation funds’ default investment options in terms of naming and framing over three years from 2005 to 2007, as presented in product disclosure statements (PDSs). The findings indicate that default options are becoming more alike regardless of their name, and consequently, members may face increasing difficulties in distinguishing between balanced and growth-named default options when comparing them across superannuation funds. Comparability is also likely to be constrained by variations in the framing of default options presented in investment option menus in PDSs. These findings highlight the need for standardisation of default option definitions and disclosures to ensure descriptive accuracy, transparency and comparability.

Bayesian methodology incorporating expert judgment for ranking countermeasure effectiveness under uncertainty: Example applied to at grade railroad crossings in Korea

This paper describes the formalization and application of a methodology to evaluate the safety benefit of countermeasures in the face of uncertainty. To illustrate the methodology, 18 countermeasures for improving safety of at grade railroad crossings (AGRXs) in the Republic of Korea are considered. Akin to “stated preference” methods in travel survey research, the methodology applies random selection and laws of large numbers to derive accident modification factor (AMF) densities from expert opinions. In a full Bayesian analysis framework, the collective opinions in the form of AMF densities (data likelihood) are combined with prior knowledge (AMF density priors) for the 18 countermeasures to obtain ‘best’ estimates of AMFs (AMF posterior credible intervals). The countermeasures are then compared and recommended based on the largest safety returns with minimum risk (uncertainty). To the author's knowledge the complete methodology is new and has not previously been applied or reported in the literature. The results demonstrate that the methodology is able to discern anticipated safety benefit differences across candidate countermeasures. For the 18 at grade railroad crossings considered in this analysis, it was found that the top three performing countermeasures for reducing crashes are in-vehicle warning systems, obstacle detection systems, and constant warning time systems.

Getting more than the judgment debtor can give?

Prior to the decision of the High Court in Black v Garnock (2007) 230 CLR 438 it was an established principle in Queensland that a judgment creditor acting under an enforcement warrant could take no interest beyond what the judgment debtor could give. However, the decision of the High Court called this principle into question. This article examines the current position in the context of s 120 of the Land Title Act 1994 (Qld) , Queensland Titles Office practice and standard contractual provisions. This examination is further informed by the recent decision of Martin J in Secure Funding Pty Ltd v Doneley [2010] QSC 91.