Melbourne Law School - Theses
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ItemTime and the dimensions of substantiality: analysis of temporal market definition issues and the substantial lessening of competition standard( 2007)There is a lack of guidance on the underlying requirements of the substantial lessening of competition legal standard. This paper seeks to develop the analytical basis for such guidance. It works from the premise that such guidance would lead to more consistent decision-making and provide a clear framework for many aspects of market definition and competition analysis. The timeframe for assessing substitution possibilities is one area that is particularly vague. It is argued that existing approaches to timeframes are flawed, as they fail to focus on the fundamental requirements of the substantial lessening of competition standard. The paper advocates a new approach derived from an analysis of the duration requirement of substantiality - the requirement that competition effects have a certain duration. The paper then analyses factors other than duration that may also affect the analysis of substantiality. It is argued that there are only three dimensions of substantiality in the substantial lessening of competition standard: duration, size of the effect and probability. Other possible dimensions, such as the size of the industry, appear to be irrelevant. Finally, the paper examines how the thresholds for the three dimensions interact and vary, arguing that there must be some capacity for trade-off between the thresholds.
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ItemSterilisation decision making and the Family Court: the far bridge or the fields?( [1997])This thesis is about the "sterilisation" jurisprudence of the Family Court of Australia. It is also about the nature of "judging" and the stories that have been told about young women with intellectual disabilities in sterilisation cases. The focus of the thesis is on the ways in which particular stories selected by judges have come to tell the "truth" about those young women, even though there are other versions that could lead to different conclusions. In recent years critical legal scholars have become attentive to the role that "storytelling" plays in the law, and especially in the judicial context. The justification for such an approach in this thesis is a belief that the consequences of judicial decision making are not just legal, but include the possibility of "particularly grave" material effects for the particular women in sterilisation cases, and for all young women described as "intellectually disabled". At the time of writing there have been 7 reported sterilisation decisions of the Family Court. In none of the judgments is the "voice" of the young woman heard. What is known about her has been told by others. Some of the stories are told by people who know her well, some are told by "expert witnesses" who have never met her. The people whose views have been privileged by the Court are doctors and parents. Ironically, the need for court based sterilisation decision making arose out of a desire to ensure that the views of doctors and parents did not displace the interests of children with disabilities. (From introduction)
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Item‘Industrial disputes’ and the jurisdiction of the federal industrial tribunal( 1993)What constitutes an 'industrial dispute' for the purposes of s. 51 (xxxv) of the Commonwealth Constitution and s. 4 of the Australian Industrial Relations Act 1988 (Cth) is crucial for the determination of union-employer relations. Ultimately the ambit of the phrase 'industrial dispute' determines those matters that may legitimately be raised by a federally registered union with an employer before the Australian Industrial Relations Commission (hereafter the federal tribunal). The central thesis advanced here is that since 1904 the High Court has employed alternating approaches to identifying an 'industrial dispute'. One approach is that an 'industrial dispute' means no more than the traditionally perceived notion of an individual employer-employee dispute. The other approach is a much broader view, in that such a dispute relates to collective employment relations. Put at its most basic level, I submit in this thesis that the jurisdiction of the federal tribunal has been shaped less by the particular words 'industrial dispute' than by the perception of the kind of employment relationship with which these words are concerned. (From introduction)
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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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ItemThe status of clergy of the Anglican Church of Australia: employees or office holders?( 1997)The acceptance of the traditional view that clergy are the holders of an office has been the subject of challenge over past years and is increasingly being challenged nowadays. In particular, there have been claims by clergy and their dependents for worker's compensation benefits, claims by clergy for wrongful or unfair dismissal and claims by third parties alleging vicarious liability on the part of the Church. Changes in technology, among other matters, have led to an increase in the number of employees who work from a home office. When the remuneration, associated fringe benefits and other entitlements received by clergy are taken into account, it appears that there is little difference between the employee working from a home office and clergy holding parish appointments. This thesis re-considers the status of clergy in the Anglican Church of Australia. There is considered first the administration of the Anglican Church of Australia. This is followed by a consideration of the concept of employment and the concept of an office. Associated with this consideration are two matters which require specific examination. The first of these is the incidence of income tax. Most clergy have income tax deducted at source in accordance with the 'pay as you earn' provisions of the relevant legislation. Yet, these provisions are applicable only to employees. The issue which arises, and which is examined, is whether by participating in this method of payment of income tax clergy are estopped from denying an employment status. It is concluded that both in law and by direction of the Commissioner of Taxation this is merely a matter of convenience and does not constitute evidence of employment status. The second of the associated issues is that of the parson's freehold. The concept of a 'living' is not part of the law or practice of the Anglican Church of Australia. Had it been so, it would have added considerable weight to the argument in favour of the status of office holder. Accordingly, the support for office holder status is weakened. A review of the common law in Australia and elsewhere leads to the conclusion that the status of office holder is still the accepted view. The employment relationship is a contractual relationship made between two parties, an employee and an employer. Therefore, there is examined the issue of who might be the employer of the clergy. The conclusion is that there is no person or body who has sufficient involvement, control or responsibility to be described correctly as an employer. Finally, there is a consideration of the source of the responsibilities and rights of clergy. The conclusion is that the traditional view of clergy as office holders has not been displaced and is still applicable to-day.
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ItemNegligence by corporate health care providers: vicarious liability or non-delegable duty of care?( 1996)Summary of Argument: Hospitals were formerly protected from legal liability. The Common Law is eroding this immunity. Initially this has been done by expanding the doctrine of vicarious liability, but that doctrine has been unable to cope with modern hospital relationships, which have involved the use of independent contractor doctors, who are not directly salaried by a hospital. A doctrine of non-delegable duty of a hospital has emerged, in part to cope with the liability of independent contractors of a hospital. Extensive comparisons are made by me with the laws of hospital liability in England, United States of America and Canada. A line has been presently drawn by Australian courts to exclude hospital liability where an independent contractor doctor treats a hospital patient as a private patient. I analyse and criticise this approach. I argue that there are strong arguments for the extension of the doctrine of non-delegable duty to cover the situation of all negligence which occurs within the four walls of a hospital, notwithstanding that a negligent doctor may be an independent contractor. My thesis demonstrates that the doctrine of vicarious liability has serious short-comings when applied to modern hospital relationships, and I examine these failings in comparison with the competing doctrine of non-delegable duty. I examine the rationale for the existence and expansion of non-delegable duty. Social explanations have been forthcoming from recent judicial decisions in Australia and elsewhere which justify the expansion of the doctrine, and these are fully considered by me. Independent contractor doctors form part of the community utility of a hospital and are inseparably connected with the activities of employed staff, particularly during surgery or other medical practices involving the effort of a team. There is no proper legal basis for the exclusion of hospital liability for the negligence of independent contractors, who work within a hospital.
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ItemA review of the federal investigatory powers of the Federal Commissioner of Taxation under sections 263 and 264 of the Income Tax Assessment Act 1936: a critical evaluation of the balance struck by the courts between the Commissioner's access powers and the rights of the individual( 2001)Section 264 of the Income Tax Assessment Act 1936 provides the Commissioner of Taxation with the power to seek information and documents. Section 263 provides the Commissioner with power to access premises. The present Commissioner has demonstrated a willingness to once again test the limits of section 264 before the Courts. The purpose of this paper is to examine where the balance of judicial authority has placed the boundaries on section 263 and more particularly 264 and whether any movements in those boundaries can be justified given the policies underlying section 264 and individual rights (such as the common law right of a client to legal professional privilege) or whether the decisions in respect of sections 264 and 263 are inconsistent with the approach of the Courts to investigatory powers in other contexts. In this context the paper examines a number of specific issues in respect of sections 264 and 263 including in particular the interaction between sections 263 and 264 and legal professional privilege. Until recently it had been judicially accepted that section 264 does not abrogate legal professional privilege. However in recent times the Commissioner has sought to challenge the scope of legal professional privilege in the context of section 264. The paper will evaluate recent decisions which suggest that section 264 abrogates legal professional privilege.
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ItemEmployment protection of casual employees( 2003)Summary of Argument: This paper aims to make a contribution to the literature by examining the employment protection of workers characterised by the Australian Bureau of Statistics as casual employees (' ABS casual employees'). In undertaking this examination, this paper seeks to compare the employment protection of ABS casual employees with that available to other employees. The examination commences by discussing the key approaches that courts and industrial tribunals have taken in determining whether a worker is a casual employee under a particular industrial instrument. It then analyses the employment protection of ABS casual employees in the following areas: • protection against unfair dismissal; • entitlement to notice at common law and statute; and • protection in the event of redundancies. It concludes that the employment protection of ABS casual employees is generally inferior to that available to other employees with a sub-group of such employees, namely, those engaged pursuant to a series of distinct contracts enjoying even more slender employment protection.
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ItemLegal avenues for protection of the work of Aboriginal artists( 1996)Summary of Argument: The aim of this paper is to consider the legal avenues by which Aboriginal artists or their communities may seek solutions to the problem of appropriation of their art. It will also consider what legislative or other changes might be introduced in order to resolve any such problems. The paper will suggest that legislative or other changes should be the product of consultation with Aboriginal artists and communities, and be clearly directed to legal problems faced by them. In particular, legal change should be as far as possible consistent with Aboriginal laws and customs existing across Australia, while not compromising basic principles of Australian intellectual property law. The attempt to impose an inflexible legislative scheme may be counter-productive. The paper will outline a proposal for legal change which, it will be submitted, is capable of accommodating a variety of Aboriginal customs and laws. The paper will consider the capacity of the Copyright Act 1968 (Cth), and of equitable doctrines of trust and breach of confidence, to resolve the problems of Aboriginal artists and communities in a manner consistent with Aboriginal law. Through an analysis of the decided cases, and through an examination of statutory and judge-made law, it will be established that the existing law is not capable adequately of meeting Aboriginal needs. In particular, the existing law is not capable of accommodating the communal nature of Aboriginal ownership of intellectual property rights in art, its lack of limitation in time, and the variety of interests which individuals or groups may possess in a work of art, or in a story or design underlying such a work. It will be suggested that it is undesirable to attempt to define the interests of Aboriginal groups or individuals in a work of art in advance. At the same time it is necessary that the law in this area be relatively workable and certain. It is possible, it will be submitted, to accommodate these two goals by adopting in relation to questions of appropriation of Aboriginal art principles similar to those adopted in relation to Aboriginal land in the Mabo decision. Such principles could, it will be submitted, be translated into practical proposals for legislative change which would be consistent with basic principles of intellectual property law, and would in addition be relatively consistent with Aboriginal customs and laws.
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ItemDrafting enforceable limitations of liability in construction contracts for major projects( 2002)Engineering and construction contractors working on large industrial plants (each a "Contractor" or, collectively, "Contractors") employ various strategies to define, limit and manage risks associated with their business activities. The cornerstone of any successful risk management philosophy must be excellence in the performance of the Contractor's work on each construction project (each a "Project"). When a Contractor meets or exceeds its customers' expectations, there will usually be minimal risk associated with the work. Given the inherent risk in any Project, Contractors also rely heavily on legal risk management strategies. Many Contractors manage risk through corporate architecture, using different operating companies to conduct their various business activities with the aim of limiting their liability to the assets of the corresponding operating company in the event of a catastrophic loss. This device requires great care in implementation, which is beyond the scope of this paper. The primary legal strategy for the managem.ent of risk utilised by Contractors, and the substance of this paper, is the formation of contracts with customers and major subcontractors and suppliers, including the interplay between such contractual provisions and corresponding insurance protection. This paper focuses on a Contractor's most significant exposures to financial liability in the context of contract formation and considers how a Contractor can minimise such exposures through carefully drafted provisions on limitations of liability, insurance and indemnities. In discussing the reasoning behind such provisions, the paper examines how many of the standard form construction contracts fail to meet the commercial objectives of a Contractor seeking to actively manage its risk. The paper also considers the enforceability of such provisions in the light of recent case law. It does not address other important issues such as regulatory risks and payment risks. This paper is written from the perspective of a Contractor managing risks through contract formation and insurance. (From Introduction)