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.

Equity in estate litigation : setting aside inter vivos transactions post mortem on the grounds of undue influence and unconscionable bargains

Where the value of an estate of a deceased person has been diminished by intervivos transfers of property, equitable doctrines provide powerful tools for practitioners advising those who are seeking to claim benefits under wills (or an intestacy) and those seeking further and better provision from the deceased estate.

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).

No variance for filed orders: Hayes v Westpac Banking Corporation [2015] QCA 260

In Hayes v Westpac Banking Corporation [2015] QCA 260 the Queensland Court of Appeal examined the relationship between rules 7 (extending and shortening time) and 667 (setting aside) of the Uniform Civil Procedure Rules 1999 (Qld), and held that r667(1) does not enable the court to set aside or vary an order after the order has been filed. The court found that, to the extent that this conclusion was contrary to the decision in McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152, the decision in McIntosh was wrong and should not be followed.

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.

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.

With or without you...judging politically in the field of Area of Freedom, Security and Justice? Research Papers in Law, 3/2007

From the Introduction. The study of the European Court of Justice’s (ECJ) case law of the regarding the Area of Freedom Security and Justice (AFSJ) is fascinating in many ways.1 First, almost the totality of the relevant case law is extremely recent, thereby marking the first ‘foundational’ steps in this field of law. This is the result of the fact that the AFSJ was set up by the Treaty of Amsterdam in 1997 and only entered into force in May 1999.2 Second, as the AFSJ is a new field of EU competence, it sets afresh all the fundamental questions – both political and legal – triggered by European integration, namely in terms of: a) distribution of powers between the Union and its member states, b) attribution of competences between the various EU Institutions, c) direct effect and supremacy of EU rules, d) scope of competence of the ECJ, and e) measure of the protection given to fundamental rights. The above questions beg for answers which should take into account both the extremely sensible fields of law upon which the AFSJ is anchored, and the EU’s highly inconvenient three-pillar institutional framework.3 Third, and as a consequence of the above, the vast majority of the ECJ’s judgments relating to the AFSJ are a) delivered by the Full Court or, at least, the Grand Chamber, b) with the intervention of great many member states and c) often obscure in content. This is due to the fact that the Court is called upon to set the foundational rules in a new field of EU law, often trying to accommodate divergent considerations, not all of which are strictly legal.4 Fourth, the case law of the Court relating to the AFSJ, touches upon a vast variety of topics which are not necessarily related to one another. This is why it is essential to limit the scope of this study. The content of, and steering for, the AFSJ were given by the Tampere European Council, in October 1999. According to the Tampere Conclusions, the AFSJ should consist of four key elements: a) a common immigration and asylum policy, b) judicial cooperation in both civil and penal matters, c) action against criminality and d) external action of the EU in all the above fields. Moreover, the AFSJ is to a large extent based on the Schengen acquis. The latter has been ‘communautarised’5 by the Treaty of Amsterdam and further ‘ventilated’ between the first and third pillars by decisions 1999/435 and 1999/436.6 Judicial cooperation in civil matters, mainly by means of international conventions (such as the Rome Convention of 1981 on the law applicable to contractual obligations) and regulations (such as (EC) 44/20017 and (EC) 1348/20008) also form part of the AFSJ. However, the relevant case law of the ECJ will not be examined in the present contribution.9 Similarly, the judgments of the Court delivered in the course of Article 226 EC proceedings against member states, will be omitted.10 Even after setting aside the above case law and notwithstanding the fact that the AFSJ only dates as far back as May 1999, the judgments of the ECJ are numerous. A simple (if not simplistic) categorisation may be between, on the one hand, judgments which concern the institutional setting of the AFSJ (para. 2) and, on the other, judgments which are related to some substantive AFSJ policy (para. 3).

Provisional supervision in Hong Kong : third time lucky?

Provisional supervision (PS) is Hong Kong’s proposed new corporate rescue procedure. In essence, it is a procedure for the preparation by a professional, usually an accountant or a solicitor, of a proposal for a voluntary arrangement, supported by a moratorium. There should be little court involvement in the process and it is anticipated that the costs and delays of the process would be less than alternate, currently available procedures. This article will retrace some of the key events and issues arising from the numerous policy and legislative debates about PS in Hong Kong. At present the Hong Kong government is in the midst of drafting a new Bill on corporate rescue procedure to be introduced to the HKSAR Legislative Council. This will be the third attempt. Setting aside the controversies and the content of this new effort by the Hong Kong administration, the Global Financial Crisis in 2008 has signalled to the international policy and business community, free markets alone cannot be an effective regulatory mechanism. Having legal safeguards and clear rules to regulate procedures and conduct of market participants are imperative to avoid future financial meltdowns.

Arbitration proceeding – determination of “market price” – subpoena under Commercial Arbitration Act 1990 s 17

AGL Wholesale Gas Ltd v Origin Energy Ltd [2008] QCA 366 involved an appeal against the setting aside of paragraphs of a subpoena issued under s 17 of the Commercial Arbitration Act 1990 (Qld). The Court was satisfied that even if the documents were of “apparent relevance” to the subject matter of the proceedings, it would nevertheless be oppressive to require their production.

Practice and Procedure : UCPR r 7 - power to extend time

In McIntosh & Anor as Trustees of the Estate of Camm (A Bankrupt) v Linke Nominees Pty Ltd & Anor [2008] QCA 410 the Queensland Court of Appeal considered the extent of the court’s power under r 7(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) to extend time, and in particular whether the rule applied so as to permit extension of the period specified under rule 667 for varying or setting aside an order. The case also provides an illustration of circumstances in which the court might be expected to depart from the general principle that a successful litigant is entitled to the costs of the litigation.

Use of physical activity self-management strategies by high school students

Teaching adolescents to use self-management strategies (SMS's) may be an effective approach to promoting lifelong physical activity (PA). However, the extent to which adolescents use SMS's and their impact on current PA have not been studied previously. The aims of this study were: 1) describe the prevalence of SMS use in adolescents; and 2) determine relationships between SMS use, PA self-efficacy, and PA participation. 197 students completed questionnaires measuring use of SMS's, self-efficacy, and PA behavior. The most prevalent SMS's (>30%) were thinking about the benefits of PA, making PA more enjoyable, choosing activities that are convenient, setting aside time to do PA, and setting goals to do PA. Less than 10% reported rewarding oneself for PA, writing planned activities in a book or calendar, and keeping charts of PA. SMS use was associated with increased self-efficacy (r = 0.47, P < .001) and higher levels of PA (r = 0.34 P < .001). A one unit difference in SMS scores was associated with a ~ 4-fold increase in the probability of being active (OR = 3.7, 95% CI = 1.8-7.4). Although strongly associated with PA, a relatively small percentage of adolescents routinely use SMS's.

Signal-Powered Low-Drop-Diode Equivalent Circuit for Full-Wave Bridge Rectifier

Piezoelectric-device-based vibration energy harvesting requires a rectifier for conversion of input ac to usable dc form. Power loss due to diode drop in rectifier is a significant fraction of the already low levels of harvested power. The proposed circuit is a low-drop-diode equivalent, which mimics a diode using linear region-operated MOSFET. The proposed diode equivalent is powered directly from input signal and requires no additional power supply for its control. Power used by the control circuit is kept at a bare minimum to have an overall output power improvement. Diode equivalent was used to replace the four diodes in a full-wave bridge rectifier, which is the basic full- wave rectifier and is a part of the more advanced rectifiers like switch-only and bias-flip rectifiers. Simulation in 130-nm technology and experiment with discrete components show that a bridge rectifier with the proposed diode provides a 30-169% increase in output power extracted from piezoelectric device, as compared to a bridge rectifier with diode-connected MOSFETs. The bridge rectifier with the proposed diode can extract 90% of the maximum available power from an ideal piezoelectric device-bridge rectifier circuit. Setting aside the constraint of power loss, simulations indicate that diode drop as low as 10 mV at 38 mu A can be achieved.

Pretty good governance: balancing policy drivers and stakeholder interests in developing fisheries ecosystem plans

The central research question that this thesis addresses is whether there is a significant gap between fishery stakeholder values and the principles and policy goals implicit in an Ecosystem Approach to Fisheries Management (EAFM). The implications of such a gap for fisheries governance are explored. Furthermore an assessment is made of what may be practically achievable in the implementation of an EAFM in fisheries in general and in a case study fishery in particular. The research was mainly focused on a particular case study, the Celtic Sea Herring fishery and its management committee, the Celtic Sea Herring Management Advisory Committee (CSHMAC). The Celtic Sea Herring fishery exhibits many aspects of an EAFM and the fish stock has successfully recovered to healthy levels in the past 5 years. However there are increasing levels of governance related conflict within the fishery which threaten the future sustainability of the stock. Previous research on EAFM governance has tended to focus either on higher levels of EAFM governance or on individual behaviour but very little research has attempted to link the two spheres or explore the relationship between them. Two main themes within this study aimed to address this gap. The first was what role governance could play in facilitating EAFM implementation. The second theme concerned the degree of convergence between high-level EAFM goals and stakeholder values. The first method applied was governance benchmarking to analyse systemic risks to EAFM implementation. This found that there are no real EU or national level policies which provide stakeholders or managers with clear targets for EAFM implementation. The second method applied was the use of cognitive mapping to explore stakeholders understandings of the main ecological, economic and institutional driving forces in the Celtic Sea Herring fishery. The main finding from this was that a long-term outlook can and has been incentivised through a combination of policy drivers and participatory management. However the fundamental principle of EAFM, accounting for ecosystem linkages rather than target stocks was not reflected in stakeholders cognitive maps. This was confirmed in a prioritisation of stakeholders management priorities using Analytic Hierarchy Process which found that the overriding concern is for protection of target stock status but that wider ecosystem health was not a priority for most management participants. The conclusion reached is that moving to sustainable fisheries may be a more complex process than envisioned in much of the literature and may consist of two phases. The first phase is a transition to a long-term but still target stock focused approach. This achievable transition is mainly a strategic change, which can be incentivised by policies and supported by stakeholders. In the Celtic Sea Herring fishery, and an increasing number of global and European fisheries, such transitions have contributed to successful stock recoveries. The second phase however, implementation of an ecosystem approach, may present a greater challenge in terms of governability, as this research highlights some fundamental conflicts between stakeholder perceptions and values and those inherent in an EAFM. This phase may involve the setting aside of fish for non-valued ecosystem elements and will require either a pronounced mind-set and value change or some strong top-down policy incentives in order to succeed. Fisheries governance frameworks will need to carefully explore the most effective balance between such endogenous and exogenous solutions. This finding of low prioritisation of wider ecosystem elements has implications for rights based management within an ecosystem approach, regardless of whether those rights are individual or collective.

Experiences with mephedrone pre- and post-legislative controls: Perceptions of safety and sources of supply

Background: Drug scenes within several countries have changed in recent years to incorporate a range of licit psychoactive products, collectively known as “legal highs.” Hundreds of different legal high products have been described in the literature. Many of these products contain synthetic stimulants that allegedly
“mirror” the effects of some illicit drugs. In 2009–2010, growing concern by the UK and Irish governments focused on mephedrone, a synthetic stimulant that had become embedded within several drug scenes in Britain and Ireland. In April 2010, mephedrone and related cathinone derivatives were banned under
the UK’s Misuse of Drugs Act 1971. Setting aside “worse case scenarios” that have been portrayed by UK and Irish media, little is known about mephedrone use from the consumer’s perspective. The purpose of this paper was to (1) explore respondents’ experiences with mephedrone, (2) examine users’ perceptions
about the safety of mephedrone, and primarily to (3) examine sources of mephedrone supply during the pre- and post-ban periods.
Methods: Semi-structured interviews were conducted with 23 adults who had used mephedrone during 2009–2010. Data collection occurred in May and June 2010, following the ban on mephedrone. A total of 20/23 respondents had used mephedrone during the post-ban period, and the vast majority had prior
experience with ecstasy or cocaine. Respondents’ ages ranged from 19 to 51, approximately half of the sample were female and the majority (19 of 23) were employed in full- or part-time work.
Results: Most respondents reported positive experiences with mephedrone, and for some, the substance emerged as a drug of choice. None of the respondents reported that the once-legal status of mephedrone implied that it was safe to use. Very few respondents reported purchasing mephedrone from street-based
or on-line headshops during the pre-ban period, and these decisions were guided in part by respondents’ attempts to avoid “drug user” identities. Most respondents purchased or obtained mephedrone from friends or dealers, and mephedrone was widely available during the 10-week period following the ban. Respondents reported a greater reliance on dealers and a change in mephedrone packaging following the criminalisation of mephedrone.
Conclusion: The findings are discussed in the context of what appears to be a rapidly changing mephedrone market. We discuss the possible implications of criminalising mephedrone, including the potential displacement effects and the development of an illicit market.

Dinâmicas de MOODLiz@ção num agrupamento de escolas de Matosinhos: o caso do agrupamento vertical de escolas de Leça da Palmeira/Santa Cruz do Bispo

O advento da Internet e da Web, na década de 1990, a par da introdução e desenvolvimento das novas TIC e, por consequência, a emergência da Sociedade da Informação e do Conhecimento, implicaram uma profunda alteração na forma de análise dos processos de ensino-aprendizagem, já não apenas segundo um prisma cognitivista, mas, agora, também social, isto é, segundo a(s) perspetiva(s) construtivista(s). Simultaneamente, torna-se imperativo que, para que possam transformar-se em futuros trabalhadores de sucesso, isto é, trabalhadores de conhecimento (Gates, 1999), os sujeitos aprendentes passem a ser efetivamente educados/preparados para a Sociedade da Informação e do Conhecimento e, tanto quanto possível, através da educação/formação ao longo da vida (Moore e Thompson, 1997; Chute, Thompson e Hancock, 1999). Todavia, de acordo com Jorge Reis Lima e Zélia Capitão, não se deve considerar esta mudança de paradigma como uma revolução mas, antes, uma evolução, ou, mais concretamente ainda, uma “conciliação de perspectivas cognitivas e sociais” (Reis Lima e Capitão, 2003:53). Assim, às instituições de ensino/formação cumprirá a tarefa de preparar os alunos para as novas competências da era digital, promovendo “a aprendizagem dos pilares do conhecimento que sustentarão a sua aprendizagem ao longo da vida” (Reis Lima e Capitão, Ibidem:54), isto é, “aprender a conhecer”, “aprender a fazer”, “aprender a viver em comum”, e “aprender a ser” (Equipa de Missão para a Sociedade da Informação, 1997:39; negritos e sublinhados no original). Para outros, a Internet, ao afirmar-se como uma tecnologia ubíqua, cada vez mais acessível, e de elevado potencial, “vem revolucionando a gestão da informação, o funcionamento do mercado de capitais, as cadeias e redes de valor, o comércio mundial, a relação entre governos e cidadãos, os modos de trabalhar e de comunicar, o entretenimento, o contacto intercultural, os estilos de vida, as noções de tempo e de distância. A grande interrogação actual reside em saber se a Internet poderá também provocar alterações fundamentais nos modos de aprender e de ensinar” (Carneiro, 2002:17-18; destaques no original). Trata-se, portanto, como argumenta Armando Rocha Trindade (2004:10), de reconhecer que “Os requisitos obrigatórios para a eficácia da aprendizagem a ser assim assegurada são: a prévia disponibilidade de materiais educativos ou de formação de alta qualidade pedagógica e didáctica, tanto quanto possível auto-suficientes em termos de conteúdos teóricos e aplicados, bem como a previsão de mecanismos capazes de assegurar, permanentemente, um mínimo de interactividade entre docentes e aprendentes, sempre que quaisquer dificuldades destes possam manifestarse”. Esta questão é também equacionada pelo Eng.º Arnaldo Santos, da PT Inovação, quando considera que, à semelhança da “maioria dos países, a formação a distância em ambientes Internet e Intranet, vulgo e-Learning, apresenta-se como uma alternativa pedagógica em franca expansão. Portugal está a despertar para esta nova realidade. São várias as instituições nacionais do sector público e privado que utilizam o e-Learning como ferramenta ou meio para formar as suas pessoas” (Santos, 2002:26). Fernando Ramos acrescenta também que os sistemas de educação/formação que contemplam componentes não presenciais, “isto é que potenciam a flexibilidade espacial, têm vindo a recorrer às mais variadas tecnologias de comunicação para permitir a interacção entre os intervenientes, nomeadamente entre os professores e os estudantes. Um pouco por todo o mundo, e também em Portugal, se têm implantado sistemas (habitualmente designados como sistemas de ensino a distância), recorrendo às mais diversas tecnologias de telecomunicações, de que os sistemas de educação através de televisão ou os sistemas de tutoria por rádio ou telefone são exemplos bem conhecidos” (Ramos, 2002b:138-139). Ora, o nosso estudo entronca precisamente na análise de um sistema ou plataforma tecnológica de gestão de aprendizagens (Learning Management System - LMS), o MOODLE, procurando-se, deste modo, dar resposta ao reconhecimento de que “urge investigar sobre a utilização real e pedagógica da plataforma” (Carvalho, 2007:27). Por outro lado, não descurando o rol de interrogações de outros investigadores em torno da utilização do MOODLE, nem enveredando pelas visões mais céticas que inclusive pressagiam a sua “morte” (Fernandes, 2008b:134), também nós nos questionamos se esta ferramenta nem sequer vai conseguir transpor “a fase de final de entusiasmo, e tornar-se uma ferramenta de minorias e de usos ocasionais?” (Fernandes, Op. cit.:133).