Melbourne Law School - Theses
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ItemAustralian interstate rivers : legal rights and administration( 1971)This thesis analyses the legal and administrative problems which arise in regulating Australian rivers that flaw along or across State boundaries. It commences by describing some practical difficulties that have occurred in recent years. It then ascertains the legal rights of the Commonwealth, the various States and private individuals to the use, flow or control of interstate rivers. In the light of the existing law, it points to weaknesses in the present administrative arrangements for reconciling. inter-government conflicts in water resources management and suggests an entirely new system that might be implemented.
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ItemThe law of theft in Victoria( 1967)My theme in this thesis is the contention that the substantive law of theft in Victoria is in an unsatisfactory condition and urgently in need of fundamental and comprehensive reform; and that this is so principally for the following two reasons. Firstly, concepts and rules framed in the early English common law for a relatively primitive society and inadequate for the complex framework and activities of the modern occupationally diversified economy still form the basis of much of the present law of theft. Rigid and circumscribed or artificial and fictional uses, in the law of larceny, of the concept of possession,-when reference should be to modern concepts of ownership of property interests-and of the requirement of trespass, -when reference should be to modern concepts of misappropriation- are examples of this. A legal theory framed only for tangibles has proved incapable of facile and useful adaptation to intangibles. Secondly, the history of the law of theft has been marked by piecemeal, ad hoc improvisation, whether by judiciary or legislature, in the successive creation of new offences, or attempted gap-filling in or between old offences, as each new exigency of theory arose. This has led to a confusing multiplicity of authoritatively distinct, though sometimes overlapping, offences-all within the general sphere of theft. It resembles the planting of fruit trees too close together, as in a thicket where none thrived, though one healthy tree, if planted alone, would have done. In such an atmosphere the law has often lost touch with the realities of everyday life. In certain important respects the position is substantially the same in Victoria today. In the pages which follow I shall endeavour to substantiate my contention by a critical examination of the law and its history, with particular reference to certain fundamental problems, and shall finally discuss, in the light of that examination, the sort of reform which seems to be indicated.
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ItemConsumer redress mechanisms : a comparative study of procedural approaches to consumer grievances( 1977)This study examines, on a comparative basis, the procedural avenues open to a consumer who desires to redress a particular wrong of a small monetary nature relating to the purchase or acquisition of a particular commodity or service. The major premise of this work is that the existing orthodox methods of redressing civil claims, of small value, are totally insufficient and unsuitable for processing and adjudicating upon such claims. The function and effectiveness of public agencies, in pursuing individual claims, is examined. Both state and federal agencies' powers are considered. The study then turns to examining the aims and role of small claims fora in both the United States and Australia. The dichotomy of court and tribunal structures is of particular importance; the study examines all major aspects of the fora and relies upon empirical surveys conducted in the United States and Australia. Next the class- action device is examined in the Anglo-Australian context (drawing particular comparison with both the New York- and Canadian experiences). Study, in some detail, is then made of the U.S. Federal Rule 23 since its inception in 1966. Finally, in a brief fashion, this study examines a number,of other initiatives (including Legal Aid) aimed at.:resolving or assisting consumer grievances. A number of conclusions, in relation to each of the above specific areas, are drawn. It is also possible to draw several conclusions of a general nature relating to both consumer and legal matters.
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ItemThe law relating to the rights and duties of landlords and tenants concerning residential premises : a re-assessment( 1975)Despite its vital importance to a large segment of the Australian public, very little attention in the past has been given to the need for a review of the existing law relating to the renting of residential premises. Although a large body of consumer protection legislation has been enacted in recent years by the Australian Government and many States, no such protection has been extended to consumers in the rental housing market. Indeed, although piecemeal legislative changes have been made from time to time by each State, there has never been a systematic all embracing review of the legal rights and duties of landlord and tenants of residential premises covering tenancies both in the private sector and in the public sector. This thesis is designed to rectify this deficiency. It argues for the need for a fundamental re-assessment of three aspects of the rights and duties of landlords and tenants: the common law principles, supplemented by State legislation, which are applicable to those tenancies unaffected by rent control legislation; the existing systems of rent control in Victoria, New South Wales and South Australia; and the relationship of three of the State Housing Commissions with their tenants. Changes in governmental policy are suggested where appropriate. The need for the various reforms and policy changes was dictated not only by library research but also by a' considerable, volume of field research undertaken in Melbourne, Sydney and Adelaide in the preparation of this study. The reforms suggested by the author represent a combination of original ideas and experience in other common law jurisdictions, especially the United States, Canada, the United Kingdom and New Zealand. The author has attempted to mould the reforms in such a manner as to preserve the most useful parts of the existing landlord-tenant law while abolishing those parts which have either outlived their usefulness or are unfair to one or both of the parties. The aim throughout has been to strike a fair balance between the rights and obligations of the landlord and the tenant.
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ItemDrainage of surface waters : common law rights and Victorian legislation( 1976)This thesis considers the different rules applied by the courts in common law jurisdictions to the problem of disposing of unwanted surface waters and also examines the Victorian Drainage of Land Bill 1975 and earlier legislation. It commences with a study of English decisions and then examines, in detail, the three rules generally applied, describes their weaknesses and advantages and compares them with the rules applied to other categories of water. In the course of this examination the legal rights of private individuals pertaining to the use, control and. disposal of surface waters in respect of each rule is ascertained. This study points out weaknesses in the three rules and suggests modifications to them and to the rule applied in Victoria. In the final chapter, a comparison is made between the present law and the Drainage of Land Bill 1975 and the effect this Bill is likely to have. It also suggests amendments to the Bill as presented to the Victorian Parliament.