Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 8 of 8
-
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.
-
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.
-
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.
-
ItemThe constitutional law of membership of Australia( 1979)The relationship between the individual and the state is usually assumed to be 'allegiance' but is, in common .law countries, the subject of little legal thought or writing. In particular, the Australian Citizenship Act 1948-73 is virtually ignored by the Australian legal system. This thesis attempts to discover what 'allegiance' is, whether it is a valid description of the legal concept of the relationship between individual and state in Australia and, if not, to provide a correct description. Calvin's Case, (1608) 2 St. Trials 559, provided the only complete statement of the law as to 'allegiance'. The case reveals that 'allegiance' was a product of natural law, whilst the analogous doctrines of naturalization and alienage were admitted to be creations of law. During the period 1608 to 1914, natural law proved inadequate for the English legal system. 'Allegiance' was replaced with the concept of membership as a contract between the state and the individual. This system may have motivated the 'common code' of 1914. Since 1914, the idea of a relationship between the state and the individual has disappeared from the law of both England arid Australia. The state is no longer assumed to have an existence independent of the legal system. The individual is now considered to be subjected to the legal system and notto the state.