Melbourne Law School - Theses
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ItemCompensation for compulsory acquisition in VictoriaTrussler, Marguerite Jean ( 1974)This thesis explores in some detail the law of compensation for compulsory acquisition in the State of Victoria. An historical survey Is undertaken in Chapter One of Victorian legislation to give the background to and an understanding of the current legislative provisions. These provisions are analysed. Chapter two discusses the relevant case law while chapter three shows the actual practice of a sampling of acquiring authorities in the State of Victoria. Chapter four branches out and takes a quick survey of the legislation in several other jurisdictions. Chapter five pinpoints the major areas of concern and makes some recommendations for improvements in the law.
ItemThe law of theft in VictoriaJames, Denzil Robert ( 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.
ItemDrainage of surface waters : common law rights and Victorian legislationAdams, John Murray Alfred ( 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.
ItemRecent developments in the law of consumer guarantees and indemnitiesBingham, Paul ( 1985)A brief examination of the history of the guarantee reveals that equity treated the guarantor as a favoured debtor, given the absence of real benefit to the guarantor. However, these protections have largely been removed by standard form guarantee contracts used by, credit providers, and the law is also otherwise deficient in protecting consumer guarantors. As the expansion of the use of credit in recent years has meant that guarantees are now sometimes given carelessly and thoughtlessly, by persons without adequate education and resources to protect their interests, regulation is required (Chapter 1). The statutory regulation of guarantees before the passing of the Credit Act was inadequate. After examining the scope and nature of the Credit Act, the effect of the Credit Act on the regulation of guarantees is examined (Chapter 2). The extent to which the common law and statute law regulate pre-contractual information given to guarantors is then examined. It is concluded that room for improvement exists (Chapter 3). The extent to which the common law and statute law regulate the exercise of undue influence, unfair pressure and the making of unconscionable bargains is then examined and it is concluded that developments will occur rapidly in this area (Chapter 4). Common law and statutory provisions which discharge the guarantor from liability are then examined in the light of the operation of the Credit Act and it is concluded that some flaws exist both in principle and in the operation of the law (Chapter 5). The extent to which the guarantor is entitled to control the appropriation of payments made by the debtor, and the extent to which the guarantor's liability is coextensive with that of the debtor is then examined and some changes suggested (Chapter 6). The guarantor's rights to have action taken first against the debtor and the debtor's assets, the guarantor's rights to notice before action, and the right of indemnification after action, are then examined (Chapter 7). The possible reasons for the non-regulation of guarantees are examined and dismissed; past suggestions for reform and possible future reforms are examined (Chapter 8). Standard form contracts of guarantee are discussed and the text of a draft fair, simple English, standard form guarantee is suggested (Chapter 9). The law is as stated at 30 November, 1985.
ItemThe concept of dishonesty in the law of theft in Victoria and EnglandKornblum, Abraham Zali ( 1983)This paper is en empirical examination of the concept of dishonesty in England and Victoria from its inception as a result of the recommendations of the Criminal Law Revision Committee in England to the present state of the authorities in England and Victoria. The paper follows the authorities in chronological order first in England and then in Victoria. Each authority is examined and analysed in order to see how the Courts have come to terms with the new concept in defining it, how the concept has developed and changed and the connection of the new concept with the old concepts of larceny and related offences. General criticisms are offered where it is believed that the Courts have strayed from the concept or where the Courts appear confused about defining the concept or where the reasoning appears erroneous. The adequacy or otherwise of the concept as it presently stands is assessed and what advantages and disadvantages exist in the two jurisdictions. Finally, a proposal for reform is suggested having regard to the present state of the authorities.
ItemThe selling of allotments on plans of subdivision prior to registration : an analysis of the existing legislative controls and suggestions for reformHager, Rod ( 1983)The thesis will examine the development of legislation in Victoria controlling the practice of pre-selling real estate. Attention will be paid to the problems associated with uncontrolled pre-selling which became evident in the period 1960 - 1962. The effectiveness of the Sale of Land Act 1962 in dealing with pre-selling will be considered. Controls on pre-selling as are now contained in the Sale of Land Act 1962, the Strata Titles Act 1967, the Cluster Titles Act 1974 and which may be contained in the Companies (Victoria) Code 1981 will be analysed. The general contention of this thesis is that properly regulated pre-selling can play an important role in ensuring a more orderly and efficient property development industry. The present legislative controls are unduly restrictive and have only led property developers to seek artificial means of avoiding the controls and the present means of avoiding legislative restrictions will be considered at length. The thesis will conclude with a call for reform of legislation relating to the pre-selling of real estate and make suggestions of some considerations which should be taken into account when implementing legislative reform.
ItemThe history of legal institutions in VictoriaWoinarski, Severin Howard Zichy ( 1942)It has become inveterate in English legal writings to fit all English colonies into a dichotomy – colonies acquired by conquest or cession, and colonies acquired by settlement or occupation. Important constitutional differences attach according to whether a particular colony falls within the one class or the other. To quote the words of Lord Watson in giving the advice of the Privy Council in Copper v Stuart:- “The extent to which English law is introduced into a British Colony and the manner of its introduction must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cessation. In which case there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.” The locus classicus dealing with the position of a colony of the former class, that acquired by conquest or cessation, is to be found in the judgment of Lord Mansfield in Campbell v Hall. Its essential feature lies in the fact that the laws there in force continue until they are altered or abrogated, and until that time British subjects are under their control. This feature is necessarily excluded by the circumstances in which a colony is acquired by settlement. In such a colony from the nature of things there can be no lex loci to which the settlers are amenable, no existing laws to contest the superiority, and no power in the settlers to establish laws independently of the mother country to which they still owe allegiance. In such a colony English law prevails as the birthright of the settlers, and the bond of allegiance between the colonial subjects and their sovereign. (From Introduction)
ItemThe law relating to the protection and treatment of animals in VictoriaMcInnes, Susan Elizabeth ( 1984)The subject matter of this thesis is the Victorian law relating to the protection and treatment of animals. Brief reference is made by way of comparison with the laws of other jurisdictions. This thesis attempts to survey the law and examine the way the law provides some protection for animals even though animals are not capable of holding or enforcing legal rights in our system of law. This is generally by way of protecting property rights of owners, the public morality or the public interest in the natural resource of animals. As traditional western attitudes have generally accepted man's dominant status over animals, the law reflects the greater weight to be given to human needs or benefits in balancing any conflicting interests of animals with human interests. Therefore, against the historical background of Chapter 1, the remaining chapters set out the law protecting animals attempting to show how the law has balanced the various competing interests involved. In Chapter 2 the Victorian statutory provisions relating to cruelty to animals are surveyed. They reflect that cruelty to animals is generally prohibited under the Protection of Animals Act 1966. However the concept of cruelty applied to animals requires that there be a balancing between the pain inflicted on the animal and the circumstances surrounding the infliction of pain. The statutory provisions reflect the concept. Cruelty is generally not prohibited under the Act if it can be justified as being reasonable in the circumstances, often on the, grounds that it can be justified in terms of serving a human need. The Act goes on to provide specific exemptions from the cruelty provisions for activities which are generally accepted in Western Society as essential or convenient for human activities or needs and these are not prohibited. The major exemptions relate to using animals for farming purposes, hunting purposes, experimental purposes and exterminating vermin. These are discussed in Chapters 3, 4 and 5. Chapter 6 surveys the law relating to animals used for entertainment purposes. The present law reflects a desire to balance the need to prohibit those sports and entertainments which offend against the moral standards of the community such as blood sports and the need to retain those activities where ill-treatment of animals can be justified in terms of a legitimate object such as an educational interest, in the case of wildlife parks and zoos or a sporting or commercial interest in the case of horse racing. Chapter 7 looks briefly at the Victorian law relating to the conservation of wildlife. The law on this subject reflects the Christian philosophy of preserving all animal species for God's kingdom to come. This basis for the law is strengthened by an increasing awareness of the need to preserve all the animal species as a requirement for preserving the natural balance of animal species necessary for the survival of all plant and animal life. However the law provides varying degrees of protection depending on the animal concerned. Animals which are not native to Australia and animals regarded as vermin do not receive this special protection, because their survival is not essential to the natural balance to be preserved. The law also makes exemptions to allow wildlife to be used for educational purposes such as in wildlife parks and for restricted commercial purposes, such as for sale and for breeding. Thus the law on this subject also reflects the balancing processes involved in preserving wildlife but allowing for some human activities which are recognised or established as sufficiently important to be exceptions to the rule of preserving wildlife. The law is, unless otherwise stated, as at February 1983.