Melbourne Law School - Theses
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ItemSecurity for costs and the courts inherent jurisdiction( 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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ItemLegal professional privilege: its rationale and exceptions( 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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ItemThe law and transsexuals( 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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ItemCapital gains tax and the resources industry( 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.