Melbourne Law School - Theses

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    Probability and paternity: the utility of probability theory in the legal determination of facts in issue with particular reference to the resolution of paternity disputes
    Park, M. M. ( 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.
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    Security for costs and the courts inherent jurisdiction
    Delany, C. J. ( 1985)
    In order to ensure the process of litigation is conducted in a manner which is fair to all parties Australian Courts have inherent jurisdiction to make and enforce rules of practice. In the exercise of the inherent jurisdiction Courts have power to order a party to provide security for costs. This power is supplemented by specific provisions in the Supreme Federal and Country Court Rules and in the Companies Code. These provisions confirm the broad discretionary power to order security so as to prevent abuse of process. The Rules and Code do not fetter the discretion derived from the inherent jurisdiction but confirm the Court’s power to order security in any cause or matter where it is appropriate to do so. (From Introduction)
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    Legal professional privilege: its rationale and exceptions
    Tsalanidis, Joseph ( 1984)
    The object of this thesis is to critically examine the rationale of legal professional privilege and its common law and statutory exceptions. It is contended that the effect of the privilege in excluding relevant and otherwise admissible evidence is justifiable so long as the privilege is applied consistently with its underlying rationale and is closely confined by its exceptions. The traditiona1 rationale of the privilege and the 'lawyer's brief' theory are discussed. The approach of the High Court of Australia to the privilege is analysed in light of recent decisions. It is noted that the privilege is no longer a mere rule of evidence but a general and substantive principle. An important aim in examining the common law and statutory exceptions to the privilege is to consider the extent to which the exceptions can be reconciled with the policy of the privilege. Some common law exceptions have yet to be recognized in Australia. The third party exception, however, which appears to be accepted in this country, conflicts with the rationale of the privilege and should be abolished. With regard to the statutory exceptions, provisions expressly abrogating the privilege are rare. There is also legislation which may arguably override the privilege by necessary implication. The principles applied by courts in construing such legislation are discussed. The increasing regulation of society coupled with the vesting of wide investigative powers on administrative officers have posed a major challenge to the continued existence of the privi1ege. It is necessary that the privilege be preserved. The functioning of our legal system depends on protecting the freedom of communication between legal advisers and their clients.
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    The law and transsexuals
    Baczynski, Mary ( 1982)
    The development of our Common Law as well as the law of most other societies has been based on certain fundamental assumptions about sex. Only two sexes exist, male and female. Everyone is classified as belonging to one or the other by anatomical sex at birth. A person's social and legal status may depend on his or her sex, which until recently was regarded as immutable. Transsexual surgery became a modern reality in 1952 when the much publicized case of Christine Jorgensen was brought to world attention. Since that time transsexuality has become both a dilemma and controversy in medicine, psychiatry and the law. There is no clear legal theory for determining how to accommodate the transsexual into our legal system. with the development in modern surgery the essential criteria for determining sex are being re examined. Although the dilemma of sex determination may initially seem far removed from the real concerns of lawyers, recent cases such as Corbett v Corbett , M.T. v J.T. and C and D3 make clear the need to re-evaluate accepted legal classification. (From Introduction)
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    Exemplary damages
    Waters, J. T. ( 1982)
    This thesis explores the historical development of the award of exemplary damages at common law, examines the law as it stands today in England, Australia and The United States of America and reviews the rationale for such damages and the criticism made of them. In the course of the thesis I critically examine the assertion that exemplary damages were first awarded in the constitutional cases of 1763 and argue that in fact they were, in all probability, a feature of the civil law from the earliest period of the development of the jury system and a law of damages. In my examination of the current law in the three jurisdictions I concentrate on the types of actions which allow exemplary damages, the type of conduct that is a necessary prerequisite for them and the principles for their assessment. In my review I submit that there is a valid place in the civil law for the award of damages of this character and that they generally serve a useful purpose. In short, that the benefit to society from allowing such damages outweighs any possible detriment.
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    Capital gains tax and the resources industry
    Wade, Timothy Cardwell ( 1988)
    In one of the most significant events in the history of government funding since the introduction of uniform taxation, the Federal Labor Treasurer, Paul Keating, announced the introduction of a Capital Gains Tax for Australia on 19 September 1985. This paper assesses the application of this new form of impost to one of the largest and most capital intensive industry sectors in Australia, the resources industry. Such an analysis must necessarily be considered in the context of the peculiar Federal and State regulatory frameworks governing the exploration and exploitation of minerals and petroleum. In particular, the following discussion will focus on the precise scope and operation of the terms 'asset' and 'property' - which together operate as the fulcrum of the capital gains tax provisions. It is the object of this paper to show that non-proprietary 'assets' are not adequately included within the ambit of the capital gains tax provisions. On the premise that property law concepts necessarily underpin the capital gains tax provisions, an examination will be conducted of the 'proprietary' nature of various mining rights, including permits, leases, licences, royalty interests and information. The potential application of capital gains tax in the resources industry turns heavily on the resolution of this 'threshold' issue. It will be seen that the capital gains tax provisions incorporated into the Income Tax Assessment Act 1936 (Cth) (the Assessment Act) do not, apart from three separate sections, address themselves specifically to the resources industry. It is this decision to deny the resources industry special consideration that has created the most widespread uncertainty and enduring resentment, particularly in view of the industry's historically preferred tax treatment. It will be submitted that specific attention must be given in the capital gains tax provisions to the wide variety of traditional mining and petroleum 'interests', rather than attempting to mould them into a definitional context with a clear cornmon law proprietary bias.