Melbourne Law School - Research Publications
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ItemRewinding Sony: An Inducement Theory of Secondary Liability(Sweet and Maxwell, 2005)Discusses the US Supreme Court ruling in Metro - Goldwyn - Mayer Studios Inc v. Grokster Ltd, which preserved the technology protecting rule established by its earlier decision in Sony Corp of America v. Universal City Studios Inc but failed to clarify its application to peer to peer (P2P) technologies. Reviews the operation of the Sony rule on vicarious and contributory liability in copyright cases, its application in subsequent case law, the Grokster judgment's likely impact on the Sony principles and the remaining areas of uncertainty regarding the revised test to be met by P2P companies seeking to escape secondary liability for inducement of copyright infringement. Reflects on the likely effects of the Grokster ruling for future technologies.
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ItemNo Preview AvailableContempt of Parliament in Victoria(Adelaide Law Review Association, 2005)The wide powers of State Parliaments to punish members and outsiders vary from State to State. Authorities on contempt of Parliament have compared the different jurisdictions, but there has been no specific study of contempt of the Victorian Parliament. Its powers are different from those of the Commonwealth, New South Wales and Tasmanian parliaments, and it has a distinctive record of little-known contempt cases. This article provides an overview of the Victorian Parliament’s powers and the way they have been used.
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ItemThe doctrine of 'strict compliance' in the Italian legal system(The University of Arizona, 2005)In recent years, courts all over the world have been called upon more and more often to resolve disputes involving transactions made through letters of credit. This paper analyzes the doctrine of strict compliance in letters of credit in the Italian legal system in light of some decisions issued by Italian courts over the past fifty years. It is not the intent of this paper to explain in detail the "technical" function of letters of credit, since the mechanism underlying this trade tool is already known: the buyer of merchandise asks a bank (issuing bank) to issue a letter of credit payable to the seller of the merchandise (beneficiary) upon presentation of certain documents tendered by the seller to the issuing bank. In international transactions, a separate bank often confirms the obligation at the beneficiary's place of business (confirming bank). When the required documents, complying on their face with the conditions of the credit, are tendered, the bank honors its undertaking. Due to its characteristics, the letter of credit is used for the most part among merchants residing in different countries.
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ItemNo Preview AvailablePrinciples of Contract Law(Lawbook Co, 2005)
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ItemLeft Out in the Cold: Homelessness and Anti-Discrimination Law(Council of Homeless Persons, 2005)Anti-discrimination legislation has long been accepted as an integral part of Australian law and culture. However, the current legal framework at both Commonwealth and State levels fails to adequately protect people who are homeless, unemployed or in receipt of social security benefits. (1) This omission in the law masks the fact that discrimination against these groups is deeply ingrained and currently lawful. Not only does this seem to indicate a lack of awareness on the part of the legislature, it also seems to demonstrate ignorance of the fact that homeless people, although impoverished, possess basic human rights.
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ItemThe Schiavo and Korp cases: Conceptualising end-of-life decision making(Law Book Co., 2005)An incompetent, terminally ill patient can be viewed in two ways – as a person who is dying, when futile, life-prolonging treatment can be lawfully withdrawn; or a person with a disability, for whom a guardian must be appointed to decide about treatment. Terri Schiavo’s husband took the first view and her parents the second. Maria Korp was regarded as dying when treatment was withdrawn. The difference in conceptualising a patient’s situation is critical. Where a patient is dying, treatment can be lawfully withdrawn whatever the view of the relatives; they cannot require treatment to be continued. Where a patient has a disability and a surrogate decision maker is appointed, the focus is on what the patient would have wanted in such circumstances, so that the surrogate can act in accordance with the patient’s wishes. That deflects attention from the fundamental legal principle that whatever a patient or the relatives want, they are not legally entitled to demand treatment that doctors consider futile in the circumstances.
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Item[Review of the book Complications: a surgeon’s notes on an imperfect science](The Victorian Bar, 2005)Author-surgeon’s book describes the limitations of surgery andimprovements and the scope for future advances.
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ItemEffects of tort law reform on medical liability(Thomson, 2005)In the period 2001-2004, legislation has been passed in all Australian jurisdictions to effect “tort law reform”. This article outlines some of these changes, focusing particularly on the amendments to the Wrongs Act 1958 (Vic), though it also draws attention to corresponding changes in other jurisdictions. The new legislation creates new immunities from liability; limits recovery for psychiatric injury; reintroduces in modified form the Bolam test of professional negligence; replaces the “not far-fetched or fanciful” test of foreseeability with one requiring that the risk be “not insignificant”; extends the scope of the traditional defence of voluntary assumption of risk; and provides caps, thresholds and a higher discount rate in relation to damages. The impact that these changes may have on the liability of health professionals is considered.
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ItemJustinian and mathematics: an analysis of the Digest’s compilation plan(Australian Scholarly Publishing, 2005)The compilation of the Digest comprised the major component of the acclaimed Second Law Commission of Justinian the Great. The commission was formed on 15 December 530 and concluded three years later on 16 December 533. Its task was to edit and condense almost 1000 years of Roman legal writing; this it achieved in a single volume of fifty books. The question that has intrigued modern legal historians is how was the final compilation realised. The first major advance in answering this question occurred in 1820, when Bluhme proposed that the original books of legal writings (libri) had been excerpted in an orderly manner to produce four masses (bodies of text), which were subsequently combined during an editing stage to form the Digest. Bluhme also argued that these four masses had been assigned to three committees, which he named the Sabinian, the Edictal and the Papinian; the smaller fourth mass, the Appendix, having later been appended to the Papinian mass. Subsequently, Krueger made some minor amendments to Bluhme’s list. This revised list, which shows the order in which the committees excerpted their material, is called the Bluhme-Krueger Ordo. The next major insight into the Digest’s compilation came in the 1970s when Honoré proposed that each of the three committees was divided into two subcommittees for the purpose of excerpting. I utilise Honoré’s quantitative analysis of the Digest to provide a detailed statistical and arithmetical argument that the commissioners were operating under a pre-ordained plan in which the existing body of legal writing was to be reduced to precisely 5% of the total number of libri lines available to the commission. Moreover, I show how by understanding this key to the Digest’s compilation one can reveal various other details of the commission’s work, including an identification of the excerpting and editing contributions of specific commissioners, as well as the commission’s general timetable.
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ItemPriggish, Pitiless, and Punitive or Proud, Passionate, and Purposeful? Dichotomies, Sexual Harassment, and "Victim-Feminism"(UNIV TORONTO PRESS INC, 2005-01-01)