Melbourne Law School - Theses
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ItemSimple in theory, not so in proof : how antitrust markets are established by evidence in federal court proceedings in Australia( 2002)Definition of a relevant market is the first and an essential step involved in determining whether or not there has been a contravention of certain of the substantive prohibitions under Part IV of the Trade Practices Act 1974 (Cth). The concept of a `market' for this purpose is based on settled, essentially economic, principles. However, proving the existence of a market, as a matter of evidence, in legal proceedings has been and remains a complex and uncertain exercise. The objectives of this thesis are to examine and critically evaluate the way in which the proof of markets under the Act has been handled in litigation before the Federal Court over the last 28 years. The primary sources for the research are the judgements that have been handed down by the Federal Court over this period in cases in which market definition has been a contested issue. While there is an abundance of literature on the relevant principles and their application in major cases, there has been no in-depth or systematic consideration of the issues of evidence and proof raised by this issue. For the purposes of examining the approach taken to the proof of a market, four principal categories of evidence are identified in the thesis - industry evidence, consumer evidence, quantitative evidence and expert opinion evidence. Issues of both form and substance that have arisen and the use that has been made of each category of evidence are explored in detail. For the purposes of evaluating the approach that has been taken to the proof of a market, a test of purposiveness is applied in the thesis. The question is posed, in other words, whether proof of the market has been approached with a view to identifying the existence (or otherwise) of close constraints on the commercial conduct of the firm(s) in question in the proceeding. It is concluded that, of the four categories of evidence examined, industry evidence has been the most effective in the sense that it has had the greatest impact on findings made concerning the relevant market. Consumer evidence has been bedevilled by concerns as to admissibility and weight and has been regarded as being of limited relevance in any event. Quantitative evidence has generally been unavailable and when available has proven unpersuasive. Overcoming initial reservations, there have been efforts to maximise the value derived from expert opinion evidence, particularly that of economists. Nevertheless, as some of these efforts themselves attest, such evidence has taken the form of submission more than it has of evidence and accordingly its role has been limited. The emphasis that has been placed on industry evidence is consistent with a purposive approach to market definition. It is this evidence that best enables a court to identify the sources and the extent of the constraints operating on the firm(s) in question. However, as is argued in this thesis, there are several important respects in which the analysis of industry evidence could and, indeed, should be more rigorously undertaken. Such rigour is required to ensure that markets are defined in a manner that reflects commercial realities and ultimately therefore to ensure that the substantive prohibitions under the Act are properly enforced.
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ItemThe interrelationship of private international law principles and international corporate insolvency( 2002)The search for the appropriate manner to conduct cross border insolvency administrations has continued for many years and taken many forms. Clearly these administrations involve assets, rights and creditors dispersed among jurisdictions with nations having no unilateral authority to administer aspects of the insolvency not located in their jurisdiction. My thesis initially outlines and reviews this search for the manner in which these administrations should be conducted explaining the theoretical approaches proposed as to the manner in which these administrations should be conducted and isolates the theory reflected in these current proposals. The conclusion drawn from this review is that generally a universalist approach is preferred, being a stance of co-operation with foreign administrations. This thesis tests this 'co-operative approach' by way of the international instruments proposed, the characterisation process presently utilised in determining the law governing rights/assets involved in these administrations and the trends evident in the most recent developments in this area i.e. the writings of the theorists, recent domestic legislative enactments and international solutions proposed. The Australian approach is accorded particular focus in this examination to both ascertain the approach it adopts and the solution it would be disposed to in any international solution. This examination reveals that despite all the work undertaken in this search for the appropriate manner in which to conduct these administrations, in reality despite an ostensibly universalist stance predominance is accorded to the protection of domestic and other commercial interests over any real co-operation being achieved. This thesis argues once insolvency intervenes it is appropriate for all rights to be determined in an insolvency context and details the factors making such characterisation appropriate. The final chapter of this thesis discusses how the present situation can move on to a more international solution. Building on the commonalities evident in the international instruments proposed, this thesis proposes the appropriate manner to conduct these administrations. This thesis then determines the manner in which this international solution should be implemented and discusses why in Australia's case the CA is not the appropriate vehicle to utilise for same.
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ItemDrafting enforceable limitations of liability in construction contracts for major projects( 2002)Engineering and construction contractors working on large industrial plants (each a "Contractor" or, collectively, "Contractors") employ various strategies to define, limit and manage risks associated with their business activities. The cornerstone of any successful risk management philosophy must be excellence in the performance of the Contractor's work on each construction project (each a "Project"). When a Contractor meets or exceeds its customers' expectations, there will usually be minimal risk associated with the work. Given the inherent risk in any Project, Contractors also rely heavily on legal risk management strategies. Many Contractors manage risk through corporate architecture, using different operating companies to conduct their various business activities with the aim of limiting their liability to the assets of the corresponding operating company in the event of a catastrophic loss. This device requires great care in implementation, which is beyond the scope of this paper. The primary legal strategy for the managem.ent of risk utilised by Contractors, and the substance of this paper, is the formation of contracts with customers and major subcontractors and suppliers, including the interplay between such contractual provisions and corresponding insurance protection. This paper focuses on a Contractor's most significant exposures to financial liability in the context of contract formation and considers how a Contractor can minimise such exposures through carefully drafted provisions on limitations of liability, insurance and indemnities. In discussing the reasoning behind such provisions, the paper examines how many of the standard form construction contracts fail to meet the commercial objectives of a Contractor seeking to actively manage its risk. The paper also considers the enforceability of such provisions in the light of recent case law. It does not address other important issues such as regulatory risks and payment risks. This paper is written from the perspective of a Contractor managing risks through contract formation and insurance. (From Introduction)
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ItemSuperannuation: a public trust( 2002)Superannuation funds in Australia were originally established in an occupational environment and administered as private trusts. Superannuation funds are also collective investment schemes and, as such, can have commercial overtones. This thesis demonstrates how the judiciary and the government have both strained and extended private trust law in order to accommodate the distinctive features of the superannuation trust. Chapter 2 examines some of the tensions with traditional trust law by undertaking a survey of case law dealing with disability benefits. A detailed analysis of the statutory scheme contained in the superannuation legislation is undertaken in chapter 3. Chapter 4 will examine the impact of imposing 'merits review' - an administrative law mechanism - on private trustees. These developments suggest that superannuation trustees perform a public function. Yet the private form and source of superannuation benefits indicate that it is inappropriate to simply replace trust law standards with administrative law standards, unless it can be said that superannuation trustees now operate in the public domain. This question is explored in chapter 5 and analogies are drawn with the more public charitable trust. It is concluded that both the charitable trust and the superannuation trust operate within a hybrid 'public service' sector. A unique public model must therefore be formulated. Chapters 6 and 7 propose the specific features of the hybrid public model for superannuation trusts. Modifications to the current legal regime are identified in order to bolster the tentative trend in this direction. It is submitted that this public model offers a solution to the dilemmas currently encountered in conceiving a juristic framework for the modern superannuation trust in Australia.
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ItemReform to the law of corporate groups to protect employees( 2002)The rise of asset-stripping behaviour and other forms of corporate opportunism have presented a challenge to regulators around the world, and the response has been varied and creative. A recent phenomenon in Australia has been the manipulation by employers of corporate law structures to avoid obligations to employees on insolvency of the employer. The regulation of corporate groups was examined in the light of the industrial dispute and ensuing litigation that surrounded the waterfront dispute of 1998 between Patrick Stevedores and the Maritime Union of Australia and which ended in the redundancy of more than half of the company's 1,427 employees. The Patrick Stevedores group of companies undertook a corporate restructure towards the end of 1997. This resulted in different companies within the corporate group conducting the stevedoring business, holding assets and employing and supplying labour. The dismissal of the entire workforce occurred when the employer companies entered voluntary administration and led to Australian courts examining for the first time an organisational restructure that allegedly was designed to avoid fulfilling obligations to employees when one or more companies within a group of companies became insolvent. The complex strategy involved in the restructuring of the Patrick Stevedores group of companies revealed fundamental problems in the law of corporate groups. The present work critically discussed legal controls on directors and corporations and the capacity under the Corporations Act 2001 (Cth) for a company to structure or restructure its operations so as to avoid meeting obligations to employees on insolvency. In particular, the discussion involved a review of the obligations of directors and corporations, including related companies, under these circumstances. To this end, the application of the separate entity principle in the Salomon v Salomon case to corporate groups was reviewed. An in-depth analysis was then undertaken of the litigation surrounding the waterfront dispute, and other Australian cases that have involved the attempted use of the separate entity principle as a device to allow a company to avoid obligations that would otherwise be legally binding. The conclusions drawn from analyses of the various examinations of cases and of the consequential legislative reforms enacted and proposed and the results of survey questionnaire information provided by members of the Insolvency Practitioners Association of Australia lead to suggestions for reform to the law of corporate groups to protect employees. It is suggested that modifications to the law as it applies to directors, liquidators, administrators, creditors, shareholders and employees are required to prevent similar corporate conduct to that undertaken by the Patrick Stevedores group of companies. An amendment to the Corporations Act 2001 (Cth) to allow employees to seek contribution orders against a related company in respect of entitlements owed by an insolvent company is proposed. The discussion contained herein is based on the law as at 9 November 2002.