Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 10 of 13
-
Item
-
ItemCompensation for compulsory acquisition in Victoria( 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 Commonwealth Industrial Court, 1956-1973( 1974)The issue of separation of powers in the Australian Federation has been one that bas occupied the High Court since its inception. Despite this it was not until 1956 that the Court squarely faced the question of whether or not it was constitutionally permissible to combine in the Commonwealth Court of Conciliation and Arbitration both judicial end non judicial power. In deciding the question in the negative the High Court made necessary the establishment of the Commonwealth Industrial Court.
-
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.
-
ItemThe recovery of mistaken payments( 1970)The aim of this dissertation is to provide a survey and analysis of the occasions upon which payments made by mistake may be recovered. The dissertation is divided into four parts : Part I deals with the historical foundations and the philosophical implications of the action, money had and received, which is commonly employed to recover mistaken payments. The "gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money." This then is the broad theme or general criterion that I have tried to bear in mind and introduce throughout this dissertation : is the defendant, in the circumstances, obliged by the ties of natural justice and equity to make restitution? Part II deals with the recovery of money paid under mistake of fact. More specific criteria need to be formulated than that already given in order to ascertain when recovery will be allowed. A test based upon fundamentality of error is posited. Part III deals with the recovery of payments made under mistake of law, after discussing briefly the distinction between mistakes of law and of fact. Since payments made voluntarily under mistake of law cannot, as a rule, be recovered, it is necessary to investigate when a payment may be termed "voluntary". Exceptions to the general rule both at law and in equity are considered. Part IV sets out limitations, qualifications, and defences to actions for the recovery of mistaken payments. Throughout this dissertation I have referred in the main to English and Australian decisions; but I have also drawn on those of other Commonwealth countries. Occasional reference has been made to American law which, as revealed in the pages of the American Law Institute's Restatement of the Law of Restitution, provides an interesting contrast with our local experience and perhaps predicts its destiny. The law is stated as on 31st May, 1970.
-
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.
-
ItemIndustry, industrial disputes and the constitution( 1971)This thesis is concerned with s.51(xxxv) of the Constitution which gives the Commonwealth Parliament the power to make laws with respect to the prevention and settlement of industrial disputes by means of conciliation and arbitration. The constitutional power is examined from the point of view of which groups and types of employees are capable of taking part in "industrial disputes" as comprehended therein. When the Commonwealth Parliament first passed legislation under s.51(xxxv) it set up a single Federal tribunal to deal with labour disputes. From the employees' point of view the right to an audience before that tribunal was to be gained by the registration of representative organisations under the Act and the question arose as to the basis on which parties to such labour disputes were to be permitted to obtain registration. Because of the limitations on the Commonwealth jurisdiction which were envisaged as a result of the presence of the adjective "industrial" in para. (xxxv) it was not surprising that the Commonwealth Parliament decided that the basis of such registration would he participation in industry and, as a result, the scope given to expressions such as "industry" and "industrial employment" has always been of significance in so far as understanding of the jurisdiction of the tribunal set up under the Commonwealth Conciliation and Arbitration Act is concerned. The early part of this thesis (contained in Chapters II - IV) is concerned with a historical background to Australian industrial legislation and with the reaction of the Commonwealth Parliament and the High Court to pressures caused by employees attempting to bring themselves within the provisions of the Act by combining themselves into groups so that they might be regarded as collectively engaged in "industry" or in "industries" as defined at various points of time in the Act. The substance of this examination is contained in Chapter IV which traces the relevant amendments to the definitions and registration provisions after 1904. The second part of the thesis (contained in Chapters V - VII) is not concerned with the Conciliation and Arbitration Act or with the question of industrial groupings. It is concerned with attempts made to withhold the application of the Federal industrial power from certain types of persons by reference to the nature of the employment of those persons. It has been said that some employment is not industrial by nature and that, in view of the fact that the constitutional power of the Commonwealth is limited by the presence of the expression "industrial disputes" in s.51(xxxv), persons engaged in such employment cannot take part in any system devised by the Commonwealth Parliament for the maintenance of peaceful labour relations in Australia. Chapters V - VII (together with Chapter VITI) are concerned with an examination of this question and its real relevance to a determination of the extent of the power granted in s.51(xxxv). It will be seen that the cases examined in this part of the thesis reveal some confusion on the part of the High Court between the jurisdiction conferred on the Commonwealth Parliament by the Constitution and that conferred on the Commonwealth industrial tribunal by the Conciliation and Arbitration Act and this tendency has made the task of organising this thesis into separate parts an extremely difficult one. For example, from one point of. view it might have been preferable to have examined the 1 recent case of Pirfield v. Framki in the earlier part of the thesis as that case deals with the meaning of "industry" from the point of view of the registration provisions in the Act. However, as the decision cannot properly be understood without reference to material appearing in Chapters VI and VII, it has seemed most desirable to devote a separate Chapter to that case, and the considerations discussed therein, towards the conclusion of the thesis. The only other point which need be made at this preliminary stage relates to the extent to which certain aspects 0f historical background have been examined. At first glance this examination may be thought to be excessive. However, when all things are considered, the cases dealt with in this thesis ultimately come back to questions of impression and, in this regard, it is essential to know something about the reasons for the formation of certain general impressions as to the extent of the Commonwealth industrial power. An examination 1. (1970) 44 A.L.J.R. 391. of the course of employer-employee disputes and the development of organisations of employees in Australia and Great Britain is contained in Chapter V and, in view 0f the way in which attempts have been made to limit the concept of industry (assuming that concept to lie at the basis of the Federal power), it has proved convenient to examine the efforts of the English Courts to draw a distinction between "manual" and "non-manual" employment. This examination is to be 1. found in Appendix A.
-
ItemNationalisation in the conflict of laws : a comparative study( 1977)The nationalisation of private property has never been merely an abstract problem of jurisprudence. Its reality is growing in a world undergoing a dynamic socio-economic evolution. In the absence of binding treaty obligations and effective international machinery to deal with the problems arising from nationalisation, the subject assumes ever-increasing importance both in public and private international law. This study deals primarily with the problems raised by nationalisation in the conflict of laws. While the treatment of nationalisation in public international law can boast of a prolific literature, the same cannot be said as regards private international law. Furthermore, this study draws extensively on comparative law. It. is hoped that such a comparative analysis might provide greater insight into the problems presented by nationalisation of private property. The right to nationalise private property has been the subject of considerable political controversy in recent years, In this study an attempt has been made to avoid pure political debate and to deal primarily with the legal aspects of nationalisation in conflicts law. But it is clear that law, if it is to be useful, must be socially relevant. This study, therefore, does not proceed from a narrow technical outlook, but endeavours to provide a synthesis of historical, political, economic and legal elements.
-
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.
-
ItemWinding up on the just and equitable ground( 1973)This is a study of winding up on the just and equitable ground, mainly at the instance of members as contributories. The typical cases are (a) where the object for which the company was formed is impossible of further or any attainment;. and (b) where the petitioner has lost confidence in the controllers or, in the case of a quasi-partnership, in other members. In either case the petitioning contributory seeks to be relieved from his contractual obligation to contribute to the capital of the company or, in the case of a company limited by guarantee, to contribute in the event of its being wound up and in an article in (1964) 27 Modern Law Review 282, 305 Dr.B.H. McPherson suggested that Winding up on the just and equitable ground might amount to little more than the application to that contractual obligation of the doctrines of discharge by frustration and on account of breach. This thesis originally set out to verify that hypothesis, but in the course of study it became apparent that the contractual analysis was an aid to understanding rather than a complete solution to the problems presented by Section 222(1)(h). In the first place, a winding up order is a discretionary equitable remedy, so that the common law doctrines of discharge by frustration and on account of breach are modified by the discretionary considerations applicable to equitable remedies generally and in particular equitable remedies in contract. Secondly, it is submitted, the Court does not apply those doctrines directly or even by analogy. Their apparent application stems from the fact that in the majority of cases they do produce a result which is just and equitable. The Court, looking to those ultimate reasons rather than to any application of common law doctrine, usually comes to the same result - but not always. There are cases where a remedy is granted in the absence of circumstances analogous to frustration or breach as well as cases where an order is refused notwithstanding that those circumstances have been shown to obtain. The main illustration is afforded by the Court's recognition of what Sir Owen Dixon once called "general intention and common understanding among the members". A company may have a great many objects stated in its memorandum and its articles may be in standard form, but if there is an express or implied arrangement among the members that its activities are to be directed to one object only or as to the manner in which its affairs are to be conducted the Court will have regard to that arrangement. If the main object becomes impossible or if the understanding among the members breaks down, although the contract expressed in the memorandum and articles has not been frustrated or breached, it may be just and equitable that the company be wound up. Although the contractual analysis has been retained as an invaluable aid, the thesis is now more than just a verification of the original hypothesis. It covers the field generally but concentrates on those areas where an original contribution seemed possible. The main such area is the concept of general intention and common understanding, which not only requires the contractual analysis to be modified but also that attention be given to problems of enforcement against persons not parties to the arrangement and to the consequences in terms of admissible proof. The law and principles of equity are stated from materials available to me in Melbourne at approximately 30th June, 1973.