Summary judgment for plaintiff

The decision in Burke v Van Eeuwen (unreported, District Court of Queensland, No 1490/2002) reminds practitioners of the importance of an appearance for a party at any hearing of an application, even when a party's representatives may consider an opposing party is clearly not entitled to the order it seeks.

Buyer's hardship precludes specific performance

The case is noteworthy for its consideration of the relevance of circumstances arising after formation of the contract of sale in a summary judgment context...

The valley of the dolls: Brand protection and artistic parody

In the case of Mattel Inc v Walking Mountain Productions, the toy doll manufacturer Mattel sought to prohibit a Utah photographer called Thomas Forsythe from producing and selling a series of 78 photographs entitled "Food Chain Barbie". The work had strong social and political overtones. The artist said that he chose to parody Barbie in his photographs because he wanted to challenge the beauty myth and the objectification of women. He observed: "Barbie is the most enduring of those products that feed on the insecurities of our beauty and perfection-obsessed consumer culture." The company Mattel argued that the photographs infringed its copyrights, trade marks, and trade dress. It was concerned that the artistic works would erode the brand of Barbie by wrongfully sexualising its blonde paragon of womanhood. However, Lew J of the Central District Court of California granted summary judgment for the photographer. The Court of Appeals upheld this verdict. Pregerson J held that the use of the manufacturer's copyrighted doll in parodic photographs constituted a fair use of copyright works. His Honour held that the use of manufacturer's "Barbie" mark and trade dress did not amount to trade mark infringement or dilution. This article provides a case commentary upon the Court of Appeals decision in Mattel Inc v Walking Mountain Productions, and its wider ramifications for the treatment of artistic parody under copyright law and trade mark law. It contends that the decision highlights the need for reform in Australian jurisprudence and legislation in respect of artistic parody.

A Continuation of the Happiness Success Story: Does Happiness Impact Service Quality?

A Continuation of the Happiness Success Story: Does Happiness Impact Service Quality? The effects of long-term happiness on various outcomes for the individual and society have been studied extensively in psychology but the concept has so far received limited research attention in marketing. Happiness is defined as a summary judgment of one’s life. Previous research has shown that happiness is a relatively stable perception of happiness in one’s life. Thus, happiness in this thesis is long-term and more global as a phenomenon than in the marketing literature, where happiness is commonly conceptualized as an emotion, feeling or momentary state of happiness. Although there is plenty of research on consumer affect and its impact on service responses, there are no studies on the effect of long-term happiness on service evaluation. As empirical evidence suggests that happy people perceive smaller and bigger events in life more positively than less happy people and that happy people are more prone to experience positive feelings and less of negative feelings it was hypothesized that happiness affects service quality directly but also indirectly through mood. Therefore, in this thesis, it was set out to explore if happiness affects customer-perceived service quality. A survey method was adopted to study the relationship between happiness, mood and service quality. Two studies were conducted with a total of 17 investigated services. Out of the 17 different investigated cases, happiness was found to positively affect service quality in only four cases. The results from the two studies also provide weak support for a positive relationship between mood and service quality. Out of the 17 cases, mood was found to positively affect service quality in only three cases and the results provide additional evidence for the stream of literature arguing that affect plays no or only a minimal role in service quality. Based on the collective results in this study, it can be concluded that the evidence for a positive relationship between happiness, mood and service quality is weak. However, in this thesis, it was recognized that the happiness concept is relevant for marketers and serve potential to explain marketing related phenomena. Marketing researchers who are interested in studying happiness are advised to focus research attention on consumer well-being.

Monumental vision : a confrontation with the image of the Eternal Return

"Monumental Vision” is a nuanced summary of Nietzschean nihilism and the Eternal Return as rite of passage for free subjects and as condensed image of speculative intelligence proper. Utilizing Gerhard Richter’s “Sheet 692” from Atlas, a series of photographs of the mountains and lake at Sils Maria, Switzerland, as summary judgment of the limit imposed by this condition on all systems of representation, this form of vision discloses the chiasmus embedded in consciousness itself. In constantly revisiting Sils, the very location where Nietzsche “suffered” the vision of the Eternal Return, Richter has engaged repeatedly this origin for what has come into his work via Nietzsche – that is, an elective veil that refuses all compromises with transcendence until such is merged with immanence.

As situated amidst modernist “ideology as intellection”, and subsequent nascent forms of anti-modernism, the Eternal Return as image also signals the return of the Kantian “aesthetic-teleological” synthesis in non-discursive or purely visual agency. As an elective form of aesthetic vision, and as image of time insofar as it registers an overwhelming externality (Other) that nominally swallows and empowers the subject at once, this excoriating sense of universal praxis underwrites artistic and architectural production of the highest order, renegotiating concepts of the paradigmatic.

Utilizing Georg Simmel’s late work on Rembrandt (1916) and his encounter with Schopenhauer and Nietzsche (1907), the essay suggests that by the 1920s the avant-garde premises of modernism had already come under attack by an ahistorical and synoptic vision here denoted “monumental vision,” which also contains the imprint of eschatological time (invoking a schism present in rationality as such). The two readings of this image perpetrated by Karl Löwith in Nietzsche’s Philosophy of the Eternal Recurrence of the Same (Nietzsches Philosophie der ewigen Wiederkehr des Gleichen, 1935), or the cosmological and the ethical, while considered irreconcilable by Löwith, have since the 1960s been recalibrated through the figure of the event to pose possible scenarios out of the stalemate of the confrontation between Self and Other (ipseity and alterity) buried within this image as limit. In this manner, the image of the Eternal Return stands at the boundary between two forms of time (or two worlds) and signals the irreducible confrontation present in speculative thought and the necessity of closure through an aesthetic vision that produces a unitary field for all creative acts.

Notably, Nietzsche’s startling vision from Zarathustra suggests that the limit imposed by the Eternal Return is also a mask for an austere condition within subjectivity closely resembling the conundrum of Fichte’s I facing I, or thought turned toward thought itself (absolute subjectivity as cipher for Being). In Alenka Zupančič’s reading, in The Shortest Shadow: Nietzsche’s Philosophy of the Two (2003), the Eternal Return effectively contains a secret formal function that grinds all “error” to dust – a highly suggestive interpretation that also neutralizes the schism introduced by Löwith between the cosmological and the ethical.

Supreme Court Act 1995 s48 - Interest on judgment for damages for personal injuries

The case of Flynn v The Maryborough Sugar Factory Limited [2003] QDC 446 the plaintiff had been awarded damages for personal injuries and there was a charge on those damages under a Commonwealth statute, with a provision in the statute that damages could not be satisfied until the Commonwealth had been paid. The Court considered the point of considerable practical significance of whether interest accrued on the judgment under s48 of the Supreme Court Act 1995 (Qld) before the defendant had obtained clearances under the Commonwealth legislation.

The final judgment and the destruction of Babylon : all the predictions of the Apocalypse now fulfilled from things heard and seen /

Tr. of : De ultimo judicio et de Bablylonia destructa.

Arthur F. Naylor, et als., Defendants-Respondents : civil action on appeal from final judgment of the Superior Court of New Jersey, Chancery Division - Burlington County. Sat below: Goldmann, J. S. C. Appendix to respondents' brief.

At head of title: Superior Court of New Jersey Appellate Division - Docket no. A-215-53.

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.

Brite innovation survey : executive summary

This report summarises the fi ndings of an innovation survey of the Australian construction industry undertaken by the BRITE Project of the CRC for Construction Innovation in 2004. The BRITE Innovation Survey can be viewed in full at www.brite.crcci.info.The objective of the BRITE project is to improve the incidence and quality of innovation in the Australian construction industry. Many stakeholders in the industry are sceptical about the potential for innovation and its likely benefi ts. Many also lack the linkages and capabilities required for successful innovation. The BRITE Project is redressing this situation through demonstration and benchmarking activities. The term ‘innovation’ is defi ned as a new or signifi cantly improved technology or advanced business practice. Innovation may be technological or organisational, and it may be new to the world, or just new to the industry or business concerned. The defi nition includes the adoption of existing advancements developed outside a particular business. The survey sample was drawn from 3,500 businesses in the road/bridge and commercial building sectors in New South Wales, Victoria and Queensland, covering main contractors, trade contractors, consultants, suppliers and clients. Onethird of this population was sampled and a response rate of almost 30% was achieved. The survey collected information about respondents’ perceptions of innovation determinants in the industry, comprising various aspects of business strategy and business environment.

Multi-Outcome Construction Policies : Industry-Focused Research Summary

The Multi-outcomes Construction Policies research project, funded by the Cooperative Research Centre for Construction Innovation (Project 2006-036-A), sought to explore the costs and benefits of leveraging social outcomes on public construction contracts. The context of the research project was the trend towards the contracting out of public construction works and the attempts that have been made to use new contractual arrangements with construction companies to construction achieve a wide range of social outcomes. In federal and state jurisdictions it is now common for governments to impose a range of additional requirements on public works contractors that relate to broad social/community objectives. These requirements include commitments to train apprentices and trainees; to provide local and/or indigenous employment opportunities; to buy local materials; and to include art works. The cost and benefits of using public construction contracts to achieve social/community goals have, to our knowledge, not been thoroughly researched in an Australian context. This is likely to reflect in large part the relatively short history of contracting out public works. As Jensen and Stonecash (2004) explain, most previous empirical studies of contracting out have attempted to measure the cost savings achieved through privatization, as this was the focus of policy debate in the 1980s and 1990s. Relatively few studies have addressed the ability of contracting arrangements to ensure the delivery of desired ‘quality’ outcomes1, or the costs of achieving these outcomes via contracting arrangements. One of the potential costs of attempting to leverage social/community outcomes on public construction projects is a reduction in the amount of competition for these projects, with obvious consequences for average bid prices and choice. In jurisdictions, such as Western Australia and Queensland, where currently construction market conditions are already

How to extract and expand randomness : a summary and explanation of existing results

We examine the use of randomness extraction and expansion in key agreement (KA) pro- tocols to generate uniformly random keys in the standard model. Although existing works provide the basic theorems necessary, they lack details or examples of appropriate cryptographic primitives and/or parameter sizes. This has lead to the large amount of min-entropy needed in the (non-uniform) shared secret being overlooked in proposals and efficiency comparisons of KA protocols. We therefore summa- rize existing work in the area and examine the security levels achieved with the use of various extractors and expanders for particular parameter sizes. The tables presented herein show that the shared secret needs a min-entropy of at least 292 bits (and even more with more realistic assumptions) to achieve an overall security level of 80 bits using the extractors and expanders we consider. The tables may be used to �nd the min-entropy required for various security levels and assumptions. We also �nd that when using the short exponent theorems of Gennaro et al., the short exponents may need to be much longer than they suggested.

Duty of police and ambulance services : what happens when the plaintiff refuses treatment?

In a recent case the New South Wales Court of Appeal considered the duty of care owed by ambulance and police officers, issues concerning breach and causation and the practical effect of the exclusion of the plaintiff's evidence.