Law Papers and Journal Articles

A new tort of privacy – we should be able to sue

Robert Pelletier — Thu, 16 Feb 2012 23:36:23 PST

Robert Pelletier argues that individuals should have the right to sue when their privacy has been seriously invaded.

Cyberbullying: A real and present danger

Robert Pelletier — Thu, 16 Feb 2012 23:14:34 PST

Cyberbullying has exploded across Australian schools, but exactly what are the limits of a school's or school authority's responsibility and liability for cyberbullying? Apart from the humiliation and misery that such behaviour can cause, it is a legal minefield. The author outlines what the law says, although to date there have been no decisions by Australian courts on this issue. It is necessary to go back to first principles to establish the limits of a school's legal responsibility and apply those principles by analogy to cyberbullying. The focus in this article is on negligence rather than other legal issues to do with occupational health and safety, breach of contract or defamation. Schools are obliged to provide a safe environment for students and teachers: this is their duty of care. If online bullying takes place on school premises or at school events, or involves the use of school equipment or software, the school may be liable according to the ordinary principles of negligence. When cyberbullying occurs outside of school hours, away from school premises or without use of school equipment, the school may or may not be liable depending on whether the behaviour was a continuing of such behaviour at school. Liability kicks in where the school knows or ought to have known about the risks, the risks are not insignificant and it is reasonable for the school to do something about those risks. Conversely, where there is no connection between cyberbullying and the school, and prevention or even mitigation is outside its power, then it is very unlikely that the school will have any legal responsibility.

Legal Liability for Injuries Sustained From Repair Work Carried Out On Residential Properties

Greg Walsh — Fri, 04 Nov 2011 00:38:05 PDT

Not Available

The Willem C v International Commercial Arbitration Moot 2004-05

J Collie et al. — Thu, 03 Nov 2011 19:04:20 PDT

Not Available

The Author:

Mr Tomas Fitzgerald

Defining 'inventiveness' - still not 'obvious' post-Lockwood

Christopher Kendall et al. — Fri, 21 Oct 2011 00:45:31 PDT

Analysis of Federal Court and High Court decisions in Lockwood - meaning and effect of 'inventive step' and 'common general knowledge' under the Patents Act - issue of 'fair basing' as defined in s 40 of the Act - Courts' differing approach to the issue of fairness.

Gone but not forgotten - fame and abandonment under Section 92(4)(b) of the Trade Marks Act

Christopher N. Kendall et al. — Fri, 21 Oct 2011 00:35:13 PDT

Issues relating to intellectual property attached to a given brand when companies are merging or are taken over and cease to use their brand name - in what circumstances will failure to use a brand name lead to loss of trade mark protection - if protection has been lost, will an action under s 52 of the Trade Practices Act protect intellectual property attached to that brand.

At full capacity: Farr v State of Queensland [2009] NSWSC 906

Anna Walsh et al. — Thu, 16 Jun 2011 22:41:45 PDT

The factors to be considered in assessing whether a plaintiff has capacity to carry on and settle proceedings and whether they are incapable of managing their affairs was recently determined in the Supreme Court of NSW. Here, the plaintiff brought a medical negligence claim against the state of Queensland, the South Eastern Area Health Service and the Sydney South West Area Health service, for her management and treatment at various hospitals between 1 February 1999 and 19 July 2006. She alleged that the defendants negligently made and maintained a diagnosis of myasthenia gravis and failed to treat her psychiatric symptoms, such that she developed a condition known as 'conversion disorder'.

When can the limitation period for childbirth claims be extended?

Libby Brookes et al. — Thu, 16 Jun 2011 22:27:42 PDT

Whether a court can, under the Limitation Act 2005 (WA) (the 2005 Act), permit an infant plaintiff to commence an action under a childbirth claim, where the applicable limitation period under the Limitation Act 1935 (WA) (the 1935 Act) has expired , was recently argued before Stevenson DCJ in the District Court of Western Australia.

Measuring Legal Expertise: The merits of a national law examination

Greg Walsh — Thu, 16 Jun 2011 21:16:52 PDT

A national bar examination could improve the quality of our law schools and their graduates which would be of significant benefit to the legal profession and the wider community.

Tabet v Gett: The end of loss of chance actions in Australia?

Greg Walsh et al. — Thu, 16 Jun 2011 20:43:30 PDT

This article critically analyses the recent High Court decision in Tabet v Gett (2010) 84 ALJR 292; [2010] HCA 12 which considered whether a person should be able to obtain compensation on the basis of a loss of a chance of a better medical outcome. The appellant argued that the High Court should regard a plaintiff as entitled to compensation when a breach by a defendant of their duty of care causes the plaintiff to lose a possibility, but not a probability, of a better medical outcome. The High Court held that it was not possible for a person in the position of the appellant to obtain compensation for the loss of a chance of a better medical outcome.

Should Health Professionals be under a Legal Duty to Disclose Familial Genetic Information?

Meredith Blake — Tue, 26 Apr 2011 20:52:50 PDT

This article seeks to explore the idea that a health care professional who becomes aware that a patient has a genetic linked disorder should in some circumstances owe a duty to inform blood relatives of that fact, and that failure to so inform should be redressed through the law of negligence. This is a contention which has appeared in medical literature1 and been the subject of litigation in American jurisprudence.2 Given that medical researchers have identified the genetic causes of many human diseases through more sophisticated methods of DNA sequencing, and have confirmed the hereditary nature of many of these conditions, the disclosure of screening results is a serious and contentious issue. This is particularly so given the increasing importance of preventative medicine as a means of dealing with disease.3 The article suggests, by reference to ethical discourse, and particularly Levinas' theory on responsibility,4 that health professionals do owe a duty of care to a patient's relatives, but that this duty may be discharged in ways which do not necessarily involve the disclosure of the information to those parties, and that it is only in certain, specified circumstances that a duty to disclose the information exists.

East Timor: What's Wrong?

Frank Brennan — Thu, 14 Apr 2011 20:09:10 PDT

Discusses the various problems plaguing East Timor and the international efforts being made by the United Nations to help solve these problems. The assistance being provided by the Australian government tin nation building and helping curb civil unrest is also highlighted.

In Memoriam: Sir Ian Brownlie

Ben Clarke — Thu, 23 Sep 2010 18:09:28 PDT

In Memoriam: Sir Ian Brownlie CBE QC (19 September 1932 - 3 January 2010)

Sir Ian Brownlie, QC, aptly described as ‘[a] titan in the crowded field of international law’, died tragically in a road accident while on holiday in Cairo in January 2010. Best known to generations of law students across the world as author of Principles of Public International Law, Brownie was also a skillful advocate. Dealing firstly with his legal scholarship, Principles of Public International Law has been accurately described as the ‘most well established and authoritative textbook on international law on the market.’ Brownlie’s other works include: International Law and the Use of Force by States (1963) [his PhD thesis and first book]; Basic Documents in International Law (1967) (6th ed., 2008); Basic Documents on Human Rights (1971) (5th ed., 2006); African Boundaries: A Legal and Diplomatic Encyclopedia (1979); System of the Law of Nations: State Responsibility (1983); and The Reality of International Law: Essays in Honour of Ian Brownlie (1999), co-edited by Guy S Goodwin-Gill, Stefan Talmon and Brownlie himself.

Securing Compliance with IHL: The Promise and Limits of Contemporary Enforcement Mechanisms [Conference Report]

Ben Clarke — Mon, 30 Aug 2010 21:49:28 PDT

This report highlights several contributions to a recent ICRC sponsored IHL conference on compliance and enforcement. Conference papers addressed a range of contemporary issues including: whether the Human Rights Council has a mandate to examine alleged breaches of IHL; the complementarity debate (IHL/IHRL); the problem of human shields; UN Security Council practice with regard to violations of IHL; and whether IHL should be reformed to provide non-State organised armed groups with greater incentives to comply with IHL during non-international armed conflict.

Law, Religion and Violence: A Human Rights-Based Response to Punishment (by State and Non-State Actors) of Apostasy

Ben Clarke — Thu, 11 Feb 2010 18:18:43 PST

This article examines Islamic law on the punishment of apostasy and its use and abuse by state and non-state actors to justify the taking of human life. It highlights the traditional view of Muslim jurists that apostates must be killed. This approach is contrasted with the growing body of juristic opinion that holds that neither the Qur’an nor authoritative hadith requires apostates to be executed. This debate has assumed greater importance since al-Qaeda and similar groups have sought to justify acts of violence on the grounds that they are engaged in lawful jihad against apostates, apostate governments and collaborators. The thesis advanced here is that all laws (both secular and religious) that sanction the killing of apostates should be reconsidered for three reasons: they violate international human rights law; they are based on unsound Islamic jurisprudence; and they have been abused by both state actors (to punish political opponents and religious minorities) and non-state actors (including al- Qaeda and various other criminal organisations) who claim that their violent actions against apostates are justified under Islamic law. It is argued that all states party to the International Covenant on Civil and Political Rights (1966) (‘ICCPR’) should guarantee, through law reform if necessary, that crimes against religion (including apostasy) are not legally punishable. Put differently, ICCPR principles, including non-discrimination, should be codified by lawmakers and upheld by the judiciary. Under this approach, elements of Islamic law that are inconsistent with the ICCPR would not be enforced. This represents a significant departure from the current position of the Islamic law schools on the punishment of apostasy. Yet it is argued that such change is necessary if various categories of people, including those deemed apostates from Islam, are to be protected from violence and discrimination by state and non-state actors.

Trial By Ordeal? Polygraph Testing In Australia

Ben Clarke — Tue, 06 Oct 2009 23:13:51 PDT

A Polygraph or "lie detector" is "an instrument used to measure the autonomic nervous system responses in terms of blood pressure, pulse rate, respiration rate and galvanic skin response. In theory when a person tells a lie, fear of detection causes uncontrollable reactions in these physiological areas which the polygraph indicates with inked lines on a moving paper scroll". [1]

The use of polygraphs in sensitive areas such as the questioning of suspects in criminal cases, recruitment processes (eg by the FBI), investigation of insurance fraud and interrogation of current or potential employees raises certain ethical issues. In particular, the appropriateness of compelling, or coercing people to undertake such testing needs to be examined. The use of polygraphs also raises the broader question of whether we want to live in a society that is dominated by this type of testing.

Innovative Building Materials and Sick Building Syndrome: Liabilities of Manufacturers and Importers of Defective Materials

Philip Evans — Tue, 16 Jun 2009 00:38:31 PDT

The influence on indoor air quality of volatile organic compounds contained in a wide range of building materials has been known for some time. However in order to reduce materials costs and construction times, builders are increasingly using alternative innovative construction materials which may contain hazardous compounds.

This paper firstly considers the use and composition of innovative materials and discusses the legal issues arising from Sick Building Syndrome with particular emphasis on Part VA of the Trade Practices Act 1974 (Cth) which creates a statutory right to damages in the event that goods are defective and injury or damage is suffered as a result, by imposing a strict liability for manufacturers and importers of defective goods without being constrained by the limitations at common law.

The Globalisation of Human Rights Law

The Hon David K. Malcolm — Tue, 09 Jun 2009 20:55:23 PDT

Australia has ratified multiple international human rights instruments. However, in comparison to other common law jurisdictions, Australia is 'behind the times'. The fact is that Australia has not adopted a Bill of Rights and its human rights legislation is ad hoc The legal protection that different human rights receive in Australia is contradictory. The question of whether Australia should adopt a Bill of Rights and, if so, in what form and with what content is essentially political. Nonetheless, the answer to the question needs to be informed by a greater awareness of the role and function of human rights in Australia.

Spoiled Holidays: Damages for Disappointment or Distress

Philip J. Evans — Thu, 04 Jun 2009 18:29:51 PDT

Generally damages for disappointment or distress following a breach of contract will not be awarded to the innocent party under common law. However where the object of the contract is to provide relaxation or enjoyment, for example, an ocean cruise or a package holiday, damages may be recoverable for disappointment or distress. Damages of this type may also be awarded where there is a breach of the consumer protection provisions of the Trade Practices Act 1974 (Cth).

This paper discusses a number of ‘spoiled’ holiday cases where damages were awarded for disappointment or distress. The liability of travel service providers under the Trade Practices Act 1974 (Cth) is also discussed.

Primary Boycotts and Medical Services

Philip J. Evans — Wed, 27 May 2009 20:53:07 PDT

The Trade Practices Act 1974 (Cth) (the TPA), prohibits the making of, or the giving effect to, contracts, agreements or understandings between competitors which purport to prevent the supply of goods or services to persons. These arrangements are known as exclusionary provisions or primary boycotts.

This article discusses the role of the Australian Competition and Consumer Commission (ACCC) in enforcing the prohibition of the making of exclusionary provisions and the application of the relevant legal principles. An understanding of these principles is important to all those involved in allied health professions.

The article further discusses two recent examples where medical practitioners were found to have breached the exclusionary provisions of the TPA by entering into arrangements to boycott bulk billing and restrict the provision of after-hours medical services to patients.