Melbourne Law School - Theses
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ItemThe regulation of government enterprises in Victoria : balancing efficiency and accountability( 1990)In a Westminster system such as that in Victoria, the regulation of government enterprises must strike a balance between the demands of government enterprises for autonomy, so as to maximise efficiency, and the public's demands for full accountability for the expenditure of public funds. Since 1982, in response to these demands, the Cain Government has followed a policy of "commercialising" the operations of major public enterprises, while simultaneously attempting to increase their accountability to the Government, Parliament and the public. While the initiatives flowing from this "dual purpose" policy have already achieved a measure of success in enhancing both the efficiency and accountability of government enterprises in Victoria, significant gaps remain, particularly in the area of accountability. Although it is to be hoped that the Cain Government will move to remedy this imbalance, the omissions in the policy should not be seen as overshadowing the Government's major achievements in the field of government enterprise regulation.
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ItemThe place of freedom of information legislation in civil litigation : new discoveries - old ways( 1990)In completing one discovery we never fail to get an imperfect knowledge of others of which we had no idea before, so that we cannot solve one doubt without creating several new ones'. Discoveries can be of many kinds; the word is one full of portent. It will be the aim of this paper to review the development and current status of documentary discovery in civil litigation and the impact, both actual and potential, of the introduction of freedom of information legislation on the discovery process as we know it and on the adversary system which is the foundation of the litigative process itself and of which discovery is, in conventional understanding, merely an adjunct. The emphasis will be on civil proceedings, although issues arising from criminal procedures may become relevant. The term discovery will be used in this work to refer to the discovery of documents in civil litigation and not, unless specifically stated, to other discovery devices such as interrogatories or oral examination. The much vaunted and rapidly developing information revolution experienced this century, in conjunction with the increasing complexity of our society and its social and commercial relationships, has,in a manner which lawyers of earlier centuries would never have contemplated, immeasurably increased our reliance on documentary evidence in all forms of civil litigation. We cannot even point to the development of the so called "paperless" office as an indication that our reliance on documentary material will diminish. The expanded definition of "document" to be found in legislation such as the Acts Interpretation Act 1901 (Cth), Interpretation of Legislation Act 1984 (Vic) and in freedom of information legislation indicates that. Yet discovery as we know it is only a recent development when viewed in terms of the history of our legal system, based as it is on English law and procedure. Before examining the more recent developments in discovery and the impact of the freedom of information acts, it is useful to briefly examine the origins and development of the discovery process.
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ItemPart performance estoppel and self imposed obligations( 1990)Chapter one . At present fundamental changes are evident in the law relating to self imposed obligations and these have been commented upon by both judges and writers. Chapter two Estoppel was known in equity from its very earliest days and included elements of the substantive part performance of expectations. Chapter three The early avoidance of the Statute of Frauds by equity was never based upon a single coherent principle but included elements of estoppel. Chapter four With the ascendency of classical common law contract in the nineteenth century, estoppel and the doctrine of part performance parted company and fulfilled separate roles. Chapter five With the revival of equitable principles and the disintegration of classical contract theory in the mid years of the present century the two doctrines have again moved together and there is a renewed prospect of part performance being enveloped by estoppel. Chapter six Conceptually there is, once again, little distinction between estoppel and part performance and they may both be used as vehicles to impose obligations over a wide spectrum. Chapter seven Apart from the 'doctrine of part performance' acts carried out in reliance upon an expectation may be rendered effective by other legal concepts such as unilateral contracts. Contracts may be imposed by the courts. Chapter eight There are indications that an emerging jurisdiction in reliance protection could cut away much of the territory presently occupied by estoppel and the doctrine of part performance. Chapter nine Should classical contract theory and estoppel remain as clearly distinct heads of law the future of the doctrine of part performance as a distinct legal concept seems assured. But should contract and estoppel merge into a unified regime of law relating to self imposed obligations the future of the doctrine of part performance could be precarious. Chapter ten So long as the Statute of Frauds survives a 'doctrine of part performance' in some form or other, will probably survive to afford the courts with a discretion as to when to avoid the Statute. But the Statute itself will probably not be permitted to determine the cbligations of the parties.