Melbourne Law School - Theses
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ItemIn search of the proper law in transnational commercial disputes( 1989)For nearly two thousand years, merchants have transcended national boundaries in the pursuit of trade. Although their endeavours led to the accumulation of great wealth, disputes arose among commercial trading partners. Accordingly, the nature of business required the establishment of a judicial system by which merchants could resolve commercial disputes in an expeditious manner, free from local prejudices and local rules. For several centuries, both goals were achieved. Trade that was conducted throughout the Mediterranean, and later the Atlantic, was governed by the lex mercatoria or the law merchant. This often unwritten group of customs imprinted an international standard upon traders from various nations. The law merchant continued to thrive during the medieval era as applied in the Italian city-states and medieval fair courts within England and the Continent. With the rise of nationalism in the seventeenth and eighteenth centuries, the law merchant was absorbed into both the common and civil law. Likewise, the fair courts of the medieval era and similar tribunals became obsolete as commercial disputes became subject to the formal procedures of traditional courts of law. Even arbitrations were subject to strict judicial review within the common law, although practices in the civil law were less taxing. The rigidity and protracted nature of traditional civil litigation disrupted the interests of merchants desirous of both fair and prompt treatment which resulted under the law merchant. Within the past half century, the interdependence of the world economy and the interests of merchants have highlighted a need for institutions and rules that can enhance the development of international commercial relations. As more commercial transactions become multinational in scope, a parallel responsibility is laid upon jurists, commentators and legislators to institute changes that reflect the transnational nature of business relationships. One practice that has come to the forefront in establishing anational rules for international commerce has been in the area of commercial arbitration. As in the days prior to the incorporation of the law merchant into the common and civil law, these modern international arbitral institutions are resurrecting and re-evaluating the law merchant. This minor thesis argues that, as in modern international arbitrations, national courts of law, within certain restraints, should expand their use of and reliance upon business customs or trade usages when resolving international commercial disputes.
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ItemWomen workers and the processes of the conciliation and arbitration system( 1984)The thesis studies the relationship between women workers and the Conciliation and Arbitration System. Its aim is twofold: to explain why particular policies were adopted by the Court/Commission and to assess the extent to which those policies disadvantaged women workers. Previous research has explained women's disadvantaged position by emphasising the role of judicial prejudice and sexist ideologies. The thesis rejects such simple explanations and tries to show that particular policies resulted from the interraction between the Conciliation and Arbitration System and its economic, political and ideological environment. The thesis emphasises the complexity of the processes which determined the law and, in particular, it stresses the role of economic and political forces in shaping legal policy. It also demonstrates that the issue of whether women were in fact disadvantaged by any particular policy can only be resolved through an examination of both the policy and its effects. The first five chapters examine Court/Commission policy on wages, skill, classifications, the sex-typing of work, redundancy protection and maternity leave. The final chapter considers the implications of the arguments adopted in the thesis for other studies of women and the law.
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ItemRecent developments in the law of consumer guarantees and indemnities( 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.
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ItemThe legal nature and taxation implications of friendly society savings and investment assurances( 1986)The heyday of the friendly society movement in Australia, which spanned from the early days of colonisation until the mid-1930's, saw friendly societies as the main provider of social welfare benefits for a large proportion of the population. Since the advent of the modern 'welfare state', the movement drifted steadily into a state of decline. The 1980's, however, have heralded a remarkable rejuuination of the movement, based upon traditional friendly society ideals of providence and thrift. Instigating this revival are Victoria's friendly societies which now market an array of endowment type life assurance policies, designed to promote savings and investment returns for the movement's now diverse and rapidly growing membership. All Commonwealth insurance legislation specifically excludes insurances effected by friendly societies, and from a casual reading of the Victorian Friendly Societies Act 1958, the legislative power for societies to effect life assurances is y no means immediately apparent. Indeed, a closer reading of nineteenth this Act highlights that its / century English based provisions are inadequate, and often unintelligible so far as regulating and providing a satisfactory framework for the operation of modern friendly society life assurance activities. This paper provides a practical description of friendly society endowment assurances, and examines their legal nature and operation by tracing the legislative evolution of the enabling provision. The regulation and operation of these assurances within the scope of the Friendly Societies Act, is discussed at length, and where appropriate, critically analysed. Throughout the paper comparisons between Commonwealth life insurance legislation, which regulates similar assurances, is made with a view to further highlight the inadequacies of the present friendly society legislation. By design, Part 1 is very much descriptive in its content. This is due not only to the fact that modern friendly society life assurances have received little, or no legal comment, but also because a basic understanding of the nature and operation of these assurances is a prerequisite to the discussion of their taxation implications in Part 2. In Part 2, the paper essentially focuses on the taxation consequences of ownership of a friendly society life assurance policy. It does this by looking at the long standing traditional tax concessions applicable to these policies. These take the form of 'tax-free' reversionary bonuses attaching to life assurance policies generally, and until recently, a rebate for contributions. The discussion analyses in detail, recent legislative changes, which coincidental with the dramatic increase in friendly society assurance activities, have been introduced to prevent exploitation of these traditional taxation concessions. Brief attention is also given to the taxation status of the friendly societies themselves.
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ItemReforming the corporate entity principle from a creditors' perspective( 1986)On 28 July 1892 Aron Salomon incorporated Aron Salomon and Company, Limited together with six members of his family. In performing this relatively simple task, he could little have suspected what was about to befall him. Within one year he was to go from riches to ruin. Within two years he was to have his reputation shredded. And within four years he was to have his name enshrined in legal history. In Salomon v. Salomon &. Co.,Ltd. the House of Lords unanimously held that, in English law, companies were legal entities in their own right, completely separate from their owners, and that companies were not the agents or trustees of their owners. This paper will examine this "corporate entity principle" from the viewpoint of trade creditors of companies. It is the thesis of this paper that the corporate entity principle as affirmed in Salomon should, and can, be modified in Australia to more adequately protect trade creditors. Trade creditors are the group who would most like to see the effect of Salomon modified in their favour, and are the group who have had the least success so far in attempting to do this. They have been chosen as the focus of this study precisely because of this lack of success. If the corporate entity principle can be shifted for them, it can be shifted for any other group. To expound on the thesis of this paper, it is first necessary to understand the decision in Salomon and to see the way in which it has been applied by the courts in Australia. Chapters 1 and 2 attempt to provide this background. Chapter 2 also contrasts the approach to the corporate entity principle taken by the courts in Australia with that of the English courts. Even though it is almost 90 years since the House of Lords decided Salomon, Chapter 2 makes it clear that Salomon is still good law in Australia. Chapter 3 suggests that not everyone is happy that this is so, and examines possible reasons why the corporate entity principle has remained intact for so long despite the criticisms that have been levelled against it. In a similar vein, Chapter 4 explores the suggestion that changes made when the Companies Code (2) was introduced in 1981 (in particular, the introduction of s.556(1)) have obviated the need for further changes to the principle. Both these attempts to pre-empt the need to discuss the thesis fail, so Chapter 5 discusses reasons why the corporate entity principle should be modified. Chapter 6 examines possible ways of modifying the principle in the light of the problems highlighted in the preceding chapters. Chapter 7 briefly summarizes the findings of this paper.
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ItemMoratorium legislation in the Canadian and Australian rural sector : its history and present utility( 1989)A. The Analysis and Problem 1. At Common Law the rights of creditors were virtually absolute. 2. Over time, the law has whittled away the unimpeded rights of unsecured creditors through bankruptcy and insolvency legislation. 3. Secured Creditors have also had rights, throughout legal history, which were, virtually, inviolate. 4. In Canada and in Australia, bankruptcy legislation has had very little effect on the rights of secured creditors. 5. However, in times of crisis, even the rights of secured creditors have been restricted in the interest of the common good. 6. The pendulum continues to swing in favour of creating more rights in favour of debtors and restricting secured creditors' rights in Australia and Canada. 7. There is a strong lobby urging the restriction of secured creditors' rights as they relate to farm debtors due to the extreme economic hardship faced by those persons during the 1980's. B. The Issues 8. Whether it is appropriate to further expand the rights of debtors and to restrict the remedies of secured parties in any circumstances through moratorium legislation. 9. Whether farm debtors fit within the principles justifying interference with secured creditors' rights. 10. What safeguards should be inserted in such legislation to ensure that there is proper balance for the legitimate concerns of both debtors and creditors. C. Conclusions 11. Present legislation in Canada is deficient and does not properly assist either debtors or creditors involved in the present farm difficulties. 12. Australian legislation is superior because it has addressed all of the issues facing agriculture and has recognised that there must be adjustment in agriculture. 13. There is a place for moratorium legislation as a means to an end, namely, in promoting alterations in the agricultural sector to promote future efficiency and, potentially, to assist in the transition of nonviable farm enterprises out of the agricultural sector. 14. However, steps must be taken to preserve and protect the fundamental and historical freedoms of creditors.
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ItemResources joint ventures and the Trade Practices Act( 1989)Joint ventures are a popular form of enterprise structure in the resources sector in Australia. Despite the absence of hard data, it is estimated that at least half the expenditure on mineral exploration and virtually all petroleum exploration in Australia in recent years has been through joint venture arrangements. So it is elsewhere, and in other fields. In resource exploration and exploitation, engineering and construction, manufacturing, and research and development, various forms of joint ventures are being relied on increasingly as vehicles for business. In competition policy terms, the creation and activities of joint ventures present special .problems. Whereas competition policy seeks to encourage competition between participants in the marketplace, joint venture arrangements involve cooperation between participants, often resulting in a lessening of competition. There are advantages and disadvantages to be weighed; a balancing test involving beneficial economic effects, and anti-competitive detriments. The task of legislators and competition authorities (in Australia, the Trade Practices Commission) has been and remains to develop and implement a framework which allows joint ventures to develop in an economically beneficial way, whilst at the same time circumscribing their anti-competitive effects. The object of this paper is to examine the approach to this problem which has been developed in Australia, and distilled in the Trade Practices Act 1974 ("the Act"), in the context of resources joint ventures. It is timely to undertake such an examination The Act has now been in force for 15 years and its principles have been applied in a number of determinations, particularly in the last two years. I have adopted what I hope is a relatively straightforward approach to this task. First, in Part 2 of the paper, I attempt to identify the characteristics of resources joint ventures in Australia which are significant in the context of competition policy. Also in this part, I outline the costs and benefits of joint ventures, as they are perceived in competition theory. Secondly, in Part 3 of the paper, I describe the competition provisions of Part IV of the Trade Practices Act, and the adjudication provisions set out in Part VII. Whilst these will be familiar to many readers, they are included here not only for the sake of completeness and the aid of those unfamiliar with the Act, but also because a detailed understanding of these provisions is essential to the analysis and discussion which follows. These provisions embody the regulatory approach to the problem, which is in essence to subject joint ventures to the full spectrum of competition laws (with limited exceptions), but subject to an adjudication process which permits authorised contraventions on public benefit grounds. In Part 4, the meaning of some concepts which are essential to the practical application of the competition and authorisation provisions (namely, "competition", "market", "public benefit" and "dominance") is explained. This is done by reference to decided cases and also to the determinations of the Trade Practices Commission ("the Commission") in the case studies discussed in the Schedule to this paper. Part 5 of the paper examines the competition issues which arise upon the formation of a joint venture. This involves a consideration of Section 50 of the Act (which proscribes mergers or acquisitions leading to market dominance) in relation to the joint venturers individually (the "parents") and the joint venture itself (the "child"). In Part 6, I examine some specific provisions of resources joint venture agreements which have the potential to contravene the Act. These are, namely, area of mutual interest, assignment and non-competition provisions. Also in this part, the trade practices implications of joint venturers' cooperative marketing and joint acquisition arrangements are considered. Throughout the paper, extensive references are made to various determinations of the Commission made since the inception of the Act, which involve resources joint ventures. Summaries of these determinations and the issues which they have considered are set out in the Schedule. These cases provide practical illustrations of the types of competition issues to which resources joint ventures give rise, and the public benefits which have been accepted as outweighing anti-competitive detriment. It is important to emphasize at the outset that competition policy does not operate in a vacuum. Not only does the cause of competition require to be subordinated from time to time to the greater economic benefits which flow from joint ventures; it must also take its place in the ranks of other government policies, not all of which are compatible with it. Examples of this dilemma can be found in the paper; specifically with respect to government policies dealing with crude oil marketing and tenement licensing. Reconciliation of these conflicting policy goals is of course the daunting task of the bureaucracy and the legislature. It is also important to acknowledge the matters which I have not addressed in this paper. First, I have confined my analysis to those provisions of agreements or types of conduct which are an integral part of, or peculiar to, resources joint ventures. This is not to say however that this paper presents a comprehensive picture of the interface between resources joint ventures and competition law. Many activities engaged in by joint venturers with respect to their joint ventures may involve anti-competitive forms of conduct (such as exclusive dealing, tying, predatory pricing or refusals to deal) which invoke the provisions of the Act. However, these forms of conduct are not peculiar to joint ventures, and it is not within the scope of this paper to deal with them. Secondly, the paper is confined to an analysis of the Australian Trade Practices Act. The extra-territorial application of foreign competition and anti-trust laws is not addressed.(2) Thirdly, the paper does not contain any comparative analysis of competition laws in other countries. The issues which are discussed in this paper have been addressed (to varying extents) in the United States, Canada, Japan and the EEC nations. Had time and space permitted, it would have been of interest to compare the approaches adopted by these various countries, and to consider whether an alternative approach should be adopted here.(3) Shortly before this paper was completed, the High Court handed down its decision in the Queensland Wire case (4) The decision in that case has signalled the court's preparedness to adopt a purposive approach to the application of the Act, bearing in mind its objective of fostering competition. This, coupled with the more visible and assertive role being adopted by the Commission, has heightened and reinforced the need for joint venturers to have the Act, and competition policy generally, firmly in mind when contemplating their agreements and arrangements
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ItemThe current position of the application of the doctrines of penalty and relief against forfeiture to security contracts( 1984)This thesis proposes to examine the position that is currently occupied by two doctrines developed by Courts of Equity, as they are applied to relief sought against the legal consequences of default by a borrower under various forms of security contracts. These are the doctrine of penalty and the doctrine of relief against forfeiture. In relation to security contracts, the need for such remedies results from a failure at two levels, firstly the failure of legislators to respond to the need for comprehensive consumer protection legislation, and secondly the failure of lawyers to evolve consistent forms of security contracts in order to fulfil genuine security needs without injustice to either party. Given the accepted views of freedom of contract, it is difficult to see any justification for the court's remaking of a contract between commercial parties all supported by expert legal advice, which should obviate the need for the protection still necessary in the case of consumers. Accepting that there is a place for such equitable relief, the remedies provided under the doctrine of penalty and, to a lesser extent relief against forfeiture, suffer in their application to security contracts from some inherent defects which render them inappropriate in many circumstances for the purpose of providing a just remedy. If, however, the concept of justice is to remain within our legal system, then such discretionary remedies should always be a part of it, but their place in the system should be that of last resort. They have no place in relieving the legislators and lawyers from their responsibilities for reform.
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ItemProbability and paternity: the utility of probability theory in the legal determination of facts in issue with particular reference to the resolution of paternity disputes( 1986-05)In this thesis it is proposed to examine the forensic application of probability to judicial or curial decision making, both in general and with particular reference to the determination of parentage such as is required in a paternity suit.