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)

The defence of joint illegal activity must be looked at in context

In Miller v Miller (2011) 85 ALJR 480; [2011] HCA 9 the High Court examined the complex issue of joint illegal activity. The issue before the court was whether a plaintiff who had engaged in an illegal activity with the defendant may claim damages in negligence. In its decision the court analysed the cases of Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438, Smith v Jenkins (1970) 119 CLR 397, Jackson v Harrison (1978) 138 CLR 438 and Gala v Preston (1991) 172 CLR 243.

In defence of Victoria's Children's Court : its value and role in the child protection system

Australian child protection systems have been subject to sustained and significant criticism for many decades. As a central part of that system Children’s Courts have been implicated: three recent inquiries into the child protection system in Victoria all criticised the Family Division of the Children’s Court.1 In the resulting debate two diametrically opposed points of view surfaced about the Children’s Court and the role that legal procedures and professionals should play in child protection matters. On one side bodies like the Children’s Court of Victoria, Victoria Legal Aid (‘VLA’), the Law Institute of Victoria (‘LIV’), and the Federation of Community Legal Centres (‘FCLC’) argued that the Children’s Court plays a vital role in child protection and should continue to play that role.2 On the other side a coalition of human service and child protection agencies called for major change including the removal of the Children’s Court from the child protection system. Victoria’s Department of Human Services (‘DHS’) has been critical of the Court3 as have community sector organisations like Anglicare, Berry Street, MacKillop Family Services and the Salvation Army — all agencies the DHS funds to deliver child protection services.4 Victoria’s Child Safety Commissioner has also called for major reform, publicly labelling the Court a ‘lawyers’ playground’ and recommending abolishing the Court’s involvement in child protection completely.

Truth, Proof and Gödelian Arguments : A Defence of Tarskian Truth in Mathematics

One of the most fundamental questions in the philosophy of mathematics concerns the relation between truth and formal proof. The position according to which the two concepts are the same is called deflationism, and the opposing viewpoint substantialism. In an important result of mathematical logic, Kurt Gödel proved in his first incompleteness theorem that all consistent formal systems containing arithmetic include sentences that can neither be proved nor disproved within that system. However, such undecidable Gödel sentences can be established to be true once we expand the formal system with Alfred Tarski s semantical theory of truth, as shown by Stewart Shapiro and Jeffrey Ketland in their semantical arguments for the substantiality of truth. According to them, in Gödel sentences we have an explicit case of true but unprovable sentences, and hence deflationism is refuted. Against that, Neil Tennant has shown that instead of Tarskian truth we can expand the formal system with a soundness principle, according to which all provable sentences are assertable, and the assertability of Gödel sentences follows. This way, the relevant question is not whether we can establish the truth of Gödel sentences, but whether Tarskian truth is a more plausible expansion than a soundness principle. In this work I will argue that this problem is best approached once we think of mathematics as the full human phenomenon, and not just consisting of formal systems. When pre-formal mathematical thinking is included in our account, we see that Tarskian truth is in fact not an expansion at all. I claim that what proof is to formal mathematics, truth is to pre-formal thinking, and the Tarskian account of semantical truth mirrors this relation accurately. However, the introduction of pre-formal mathematics is vulnerable to the deflationist counterargument that while existing in practice, pre-formal thinking could still be philosophically superfluous if it does not refer to anything objective. Against this, I argue that all truly deflationist philosophical theories lead to arbitrariness of mathematics. In all other philosophical accounts of mathematics there is room for a reference of the pre-formal mathematics, and the expansion of Tarkian truth can be made naturally. Hence, if we reject the arbitrariness of mathematics, I argue in this work, we must accept the substantiality of truth. Related subjects such as neo-Fregeanism will also be covered, and shown not to change the need for Tarskian truth. The only remaining route for the deflationist is to change the underlying logic so that our formal languages can include their own truth predicates, which Tarski showed to be impossible for classical first-order languages. With such logics we would have no need to expand the formal systems, and the above argument would fail. From the alternative approaches, in this work I focus mostly on the Independence Friendly (IF) logic of Jaakko Hintikka and Gabriel Sandu. Hintikka has claimed that an IF language can include its own adequate truth predicate. I argue that while this is indeed the case, we cannot recognize the truth predicate as such within the same IF language, and the need for Tarskian truth remains. In addition to IF logic, also second-order logic and Saul Kripke s approach using Kleenean logic will be shown to fail in a similar fashion.

In Defence of "the Lesser Cousin of History": An Interview with Rohan Wilson

Few branches of postcolonial literature are as contested as the historical fiction of settler societies. This interview with the Australian historical novelist Rohan Wilson, author of The Roving Party (2011) and To Name Those Lost (2014), explores the intersections between truth, accuracy, and existential authenticity in his fictional accounts of nineteenth-century Tasmania. Wilson offers a nuanced yet robust defence of fiction’s role in narrating colonial history. He explains his intentions in writing two linked yet distinctive novels of the frontier—one that focuses on the “Black War” of the 1820s and 1830s, and another that explores how racial violence is refracted by capitalism in subsequent decades.

Ethics of Justification : A Defence of Contractualism

In What We Owe to Each Other, T.M. Scanlon formulated a new version of the ethical theory called contractualism. This theory took reasons considerations that count in favour of judgment-sensitive attitudes to be the fundamental normative notion. It then used normative reasons to first account for evaluative properties. For an object to be valuable, on this view, is for it to have properties that provide reasons to have favourable attitudes towards the bearer of value. Scanlon also used reasons to account for moral wrongness. His contractualism claims that an act is morally wrong if it is forbidden by any set of moral principles that no one could reasonably reject. My thesis consists of five previously published articles which attempt to clarify Scanlon s theory and to defend it against its critics. The first article defends the idea that normative reason-relations are fundamental against Joshua Gert. Gert argues that rationality is a more basic notion than reasons and that reasons can be analysed in terms of their rationally requiring and justifying dimensions. The second article explores the relationship between value and reasons. It defends Scanlon s view according to which reasons are the more basic than value against those who think that reasons are based on the evaluative realm. The last three articles defend Scanlon s views about moral wrongness. The first one of them discusses a classic objection to contractualist theories. This objection is that principles which no one could reasonably reject are redundant in accounting for wrongness. This is because we need a prior notion of wrongness to select those principles and because such principles are not required to make actions wrong or to provide reasons against wrong actions. The fourth article explores the distinctive reasons which contractualists claim there are for avoiding the wrong actions. The last article argues against the critics of contractualism who claim that contractualism has implausible normative consequences for situations related to the treatment of different-sized groups of people.

Towards a Normative Defence of Provocation in England and Ireland

This article compares, in the light of the House of Lords’ decision in R v Smith (Morgan James), the English and Irish approaches to the objective test in provocation. Though the law on this point has developed in radically different directions as between England and Ireland, both jurisdictions demonstrate a profound dissatisfaction with the objective test in its traditional formulation combined with a reluctance to dispense with it altogether. It is suggested that Lord Hoffmann’s approach in Morgan Smith, by drawing out the essentially normative function of the objective test, provides a useful way forward for the law on both sides of the Irish Sea.