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By-laws - Queensland Law Society

The Verdict

2006 Volume 2

EXCLUSIVE

Take a look inside the

life of the Chief Justice’s

executive assistant!

TORT LAW IN

SPORT:

Civil tort actions by

sports players

Home units: What

are they & how do

they operate?

PREVENTIVE LAW:

Mapping the future

Using the law

to respond to

homelessness

✚PLUS

SUCCESSION LAW

Amendments to

Queensland’s

Succession Act

SCHOOL EXCURSIONS

AND THE LAW:

Liability and duty of care

LAW WEEK ART

COMPETITION

RESULTS!

FAMILY DISPUTE

RESOLUTION:

Ensuring justice for

victims of violence

PART TWO OF

PAMD ACT UPDATE!

NEW!

Legislation update, case

watch & critic’s corner


W Wel

c o m e

el

...to the mid year

edition

of The

Verdict.

W

hard copy

as much

as

we are en joy

in

e hope

you’re

enjoy

ing

receiving

The

Verdict

in

g pro

duc

ing it!

This edition

we are intro

duc

ing two new sections.

The

first

is a Legis

la tion

Update

article

dedicated

to bring

ing up- to-date

infor

mation

on impor

tant

legis

lation

changes

that affect

your

every

day

rights

and responsi

bili

ties.

The

first

instal

ment

is on page

13.

The second

new addition

is our

Case

Watch

section.

The

Queensland

Law

Society

s

Young

Lawyers

Commit

tee

will

give

short

case

reviews

on current

impor

tant

and

interest

ing

court

cases.

Look

out

for the first instal

ment

of Case

Watch

with

articles

on Tom Jones

and

Harry

Potter

on

page

28.

In this

edition

we are very pleased

to announce

the

winners

of

the SCES

Law

Week

Art Compe

ti tion.

The

Profes

sional

Devel

op

ment

Depart

ment

offices

were

again

flooded

with entries,

some

of which

are

displayed

in this issue.

Congrat

u lations

to all entries

for all the

effort

put into their

posters.

Further

details

of the

competi

-

tion and winning

entries

can be found

on pages

30

to 34, as well

as

the

inside

front

and

back

covers.

Another inter

esting

feature

in this

edition

is an

inter

view

with Marie

Bergwever,

who

is the execu

tive assis

-

tant to the

Chief

Justice

of

Queensland.

Other

articles

include

the legal

issues

of school

excur

sions,

the new

Succes sion

Law amendments

and

the

second

instal

ment

of Barrister

Josh

Trevino’s

article

on the Property

Age nts and

Motor

Dealers

Act.

Sadly

this

is my last welcome

to you

all.

I will

have

left

the

Law

Society

by the

time

this edition

of

The

Verdict

reaches

your

desks.

I would

like to say

how

much

I have

enjoyed

my

time

working

with

you

all and wish

you

all the

very

best

in

your

future

endeavours.

Don’t

forget

the SCES

values

your

feed

back,

so let us

know

what

you think!

Contact

us via email

at schools@qls.com.

au or

fax 3221

2279.

Warmest

regards

Rebekah

House

Schools

& Com

mu

nity

Edu

cation

Su per

vi sor

Queensland

Law Society

SCES

– Linking

you and the Law!

The Verdict

Ed i tor Rebekah House

Graphic De signer Steph a nie Brims

Il lus tra tions Ste phen Irwin, SeaWitch Cre ations

Man ag ing Ed i tor Sharon Burke

Pub lished by the Queensland Law So ci ety

QLS Schools and Com mu nity Ed u ca tion Ser vice

Schools & Commu nity Educa tion Super vi sor: Rebekah House/

Rob Hoey

The

Verdict

Contributors to The Verdict express their own views and these do not

necessarily reflect the opinions or views of the Queensland Law Society.

The content of any part of The Verdict should not be construed as legal

or professional advice.

Vol. 2 2006 The Verdict 1


What’s inside

What’s in side

★FEATURES

FEATURES

In side the law: A day in the life Take a look in side the life

of the Chief Jus tice’s ex ec u tive as sis tant..............................................03

Us ing the law to re spond to home less ness

Monica Tay lor pro vides us with a snap shot of the QPILCH Home less

Person’s Le gal Clinic ............................................................................. 08

Pre ven tive law Joe Kafrouni in tro duces the emerg ing field of pre -

ven tive law yer ing ....................................................................................16

Tort law in sport This ar ti cle ex am ines court cases in volv ing civil

torts ac tion by sports play ers af ter on-field in ci dents...............................18

School ex cur sions and the law William Wade dis cusses

the is sues of safety and li a bil ity in re la tion to school ex cur sions..............22

A buyer’s night mare Mitchell Beck re ports on how fail ing to

seek le gal ad vice be fore sign ing a con tract may prove costly.................28

Fam ily dis pute res o lu tion Rachael Field looks at fam ily dis -

pute res o lu tion for vic tims of vi o lence....................................................34

Law Week Art Com pe ti tion re sults ..........................31

Home units What are home units and how do they operate? Gary

Bugden reports.......................................................................................40

Suc ces sion law Recent amend ments have been made to

Queensland’s Suc ces sion Act, Judy Hayward reports.................................46

2 The Verdict Vol. 2 2006

18

46

8

★REGULARS

REGULARS

Private eye.......................14

Commu ni ca tion

break down......................55

Leg is la tion update....13

Case watch.....................45

Critic’s corner...............49

Web weaving................58

Legal glossary..............61

Puzzle page...................63

Work ex pe ri ence........39

School field trips.......55


INSIDE

THE LAW

A look in side

the life of the

Chief Jus tice’s

ex ec u tive

as sis tant

Vol. 2 2006 The Verdict 3


inside the law

by Stephen Irwin & Sharon Burke

Stephen Irwin is a Brisbane

based writer, screen director

and illustrator.

Sharon Burke is the manager of

the QLS Professional

Development Department and

managing editor of The Verdict.

There’s an old say ing: if you want to get a job

done, give it to a busy per son. Queensland’s

Chief Jus tice must be fa mil iar with this ax iom,

be cause his ex ec u tive as sis tant is the kind of per -

son who keeps his Hon our’s Cham bers run ning

de spite what seems, from the out side at least, an

amaz ing amount of re spon si bil ity. On any given

day, her job can in volve meet ing am bas sa dors,

jug gling me dia en qui ries, or gan is ing func tions,

and jog ging his mem ory about a va ri ety of im -

pend ing con cerns – all while keep ing Cham bers

run ning and of fer ing the as sis tance that the Chief

Jus tice re quires to ex e cute his du ties.

Marie is the public face of the Chief Justice’s office and

the first point of contact for anyone approach ing The

Honour able Paul de Jersey. Her office is in Brisbane’s

Supreme Court, and arriv ing there you’d meet an immac u -

lately presented, perfectly spoken woman whose easy

manner doesn’t betray the weight of tasks she under takes

for the state. However, Marie is happy to point out two

things: firstly, that an ability to work calmly under pressure

was one of the selec tion crite ria when she applied for the

position more than five years ago; secondly, that she loves

her job.

“It’s a fasci nat ing role. I have had the oppor tu nity to meet

many people from all walks of life, includ ing Ms Cherie

Blair (wife of UK Prime Minis ter Tony Blair) and a Princess

from Thailand,” explains Marie. “If you wish to travel, or if

you want a job with flexi bil ity to work part-time, full-time, or

temping, then execu tive assist ing is a marvel lous job

option,” says Marie. “Good execu tive assis tants are

always in demand. Another big plus for the job is the

variety of roles one has the oppor tu nity to perform, from

recep tion and secre tarial work, office manage ment,

co-ordinating events, desktop publish ing such as Christ -

mas cards and invita tions to, of course, day-to-day diary

management.”

Marie is every bit as complex and inter est ing as her

present position. She has worked for Queensland’s

Depart ment of Justice in various roles for more than 12

years (her previ ous position was as execu tive assis tant to

the Senior Judge Admin is tra tor, Justice Moynihan). In her

earlier career, Marie also worked as a school admin is tra -

tor, a bank officer, a legal secre tary, and has also run her

own business (also for 12 years). These positions all share

at least one common thread, showing that Marie has a gift

for organi sa tion. And Marie believes that a strong head for

organi sa tion – along with some other quali ties – is part of

what makes a good execu tive assis tant invaluable.

“My princi pal role is to provide high-level assis tance to

the Chief Justice,” says Marie. “That is a small sentence

that trans lates into lots of differ ent tasks. I take short hand

and provide secre tarial support; arrange meetings; make

travel and accom mo da tion arrange ments and itiner ar ies; I

have organ ised a comput er ised filing ‘bring up’ system

that ensures that the Chief Justice’s commit ments are all

met; I’ve organ ised an efficient file system for all corre -

spon dence and reports. I liaise with judges of the Supreme

Court and their staff, and with the Princi pal Regis trar. I

manage Chambers when the Chief Justice is absent, and

ensure he is kept informed during absences or travel. I

even ensure that Mrs de Jersey is kept apprised of her

husband’s day-to-day tasks.”

It’s obvious from this that Marie must exercise a great

deal of tact and diplo macy with such sensi tive – and often

highly confi den tial – matters. For instance, the Chief

Justice invites her criti cal assess ment of his draft public

addresses.

“Integ rity is essen tial to the role. I am, in some respects,

the public face of the office of the Chief Justice, and my

perfor mance and probity reflects to an extent both on His

Honour, and on the Supreme Court.

As the public face of the office, Marie is also the

gatekeeper. “To a signif i cant extent, I screen enqui ries and

approaches to the office. There are dozens of people –

from the legal profes sion and the general public – who

daily would like time with the Chief Justice. I have to use

my discre tion and my experi ence in the Justice system to

ensure that the Chief Justice deals with tasks in a timely

manner that reflects their impor tance, and redirect other

enqui ries.”

Marie explained that there are more subtle skills

demanded by her role. “Some people wishing to contact

the Chief Justice are in great need, or are under great

emotional pressures. I often find myself drawing on

conflict resolu tion skills, needing to calm people down and

talk them gently through the steps they need to take to

have their issues resolved.”

Each day, Marie also draws on a lot of other skills that

she has built over her career. She regards as perhaps her

4 The Verdict Vol 2. 2006 Spring 2005 The Verdict 4


“ It’s a fasci nat ing role. I have had the

oppor tu nity to meet many people from all

walks of life, includ ing Ms Cherie Blair (wife

of UK Prime Minis ter Tony Blair) and a

Princess from Thailand. “

most impor tant her commu ni ca tion skills. “Oral and

written commu ni ca tion are the build ing blocks of our legal

system,” says Marie. “Being able to commu ni cate clearly

is absolutely essen tial.” Marie learned short hand many

years ago and whilst this is regarded by some as an

antiquated skill, Marie uses it almost daily. “The ability to

sit in meetings and take written dicta tion quietly and

efficiently is an invalu able skill.”

Marie’s capabil ity and experi ence have allowed her a

great deal of auton omy in her role. She has been able to

set in place her own systems for manag ing Chambers.

“There are many facets to the job that I have to be aware of

– every thing from knowing the dress code at an upcom ing

function, to under stand ing the Chief Justice’s respon si bil -

i ties as acting Gover nor when the Gover nor is absent,”

she explained. “It is impor tant for me to have a comput er -

ised, efficient system that allows me to place my hand

instantly on any documen ta tion or corre spon dence the

Chief Justice may need. It’s grati fy ing that I’ve been

allowed to set up Chambers to run in a way that I regard as

most effec tive.” This has been one of Marie’s outstand ing

and distinc tive contributions.

inside the law

5 The Verdict Spring 2005 Vol. 2 2006 The Verdict 5


inside the law

While Marie’s normal working day is 8:30am to 5:30pm, on

days prepar ing for special events or visitors, she works

longer hours to ensure that proceed ings go ahead smoothly.

“When I took the job, I proba bly didn’t expect some sleep less

nights prior to major events, wonder ing if all will proceed

without a hitch!”

A job which demands some long days and which causes

the odd sleep less nights must take a toll. “Not really. I have a

very support ive work environ ment – the Chief Justice places

great value on the family and the balance between work and

family life. He takes care to ensure his staff are as well

supported as possi ble. I also have a very under stand ing

partner, and I think that this is impor tant in any job where

there is respon si bil ity and pressure.”

So, with such a demand ing and various job, is there time

for Marie to have a life of her own? “You’d be surprised!” she

says. “While there are certainly days when I have to work late,

or start early, if one is organ ised enough then the role isn’t

terri bly more demand ing than a less inter est ing, normal job. I

love travel, and make time to go on trips every year; this year I

will be travel ling to the North ern Terri tory and I am hoping to

visit Canada next year. I love cooking and enter tain ing, and

make time to spend with family and friends, who help keep

me grounded. On weekends I bushwalk, garden, and enjoy

my hobby which is stained glass work. And I’m a voracious

reader, which I think helps make me a better writer, too. A

strong respect for English grammar and spell ing is essen tial

in my job.”

Marie is a profes sional at the top of her game. “It is very

excit ing to work at a level where impor tant decisions are

being made,” said Marie. “I have enjoyed the oppor tu nity to

gain a very good, inside under stand ing of how our judicial

system works. I am able to enjoy working with some bright

and intel li gent Associ ates.” Does she have any regrets?

“None. I’ve had – and am having! – a very reward ing life. As a

job with respon si bil ity, variety, reward and excite ment, I’ve

found being an execu tive assis tant to be truly grati fy ing.” ■

Findlaw

HREOC:

New

IR laws,

same

protections

6 The Verdict Vol 2. 2006

news

HOW TO BE A SUCCESSFUL EXECUTIVE.

.ASSISTANT – TIPS FROM MARIE

Marie believes that a sound respect for

proto col is essen tial for a success ful EA.

• Be aware of honor if ics – profes sion als

and appointed persons includ ing doctors,

barris ters, judges, justices and minis ters

have worked hard to gain their titles.

Always be aware how to address them,

and use their honor if ics until invited to

do other wise.

• District Court judges are referred to as

‘His Honour’ or ‘Her Honour’

• Supreme Court justices are referred to as

‘The Honour able’

• Post nominals (ie the profes sional

abbre vi a tions of quali fi ca tions that follow

a person’s name) are also hard-earned

and very impor tant to respect, especially

in profes sional corre spon dences.

• Asher Joel’s ‘Austra lian Proto col and

Proce dures’ is a very helpful book for

learn ing about terms of address and

post-nominals.

The

Human

Rights

and

Equal

Oppor

tu

nity

Commis

sion

(HREOC)

has

reminded

employ

ers

that

federal

and

state

equal

oppor

tu

nity

laws

still

prohibit

employers

from

dismissing

people

based

on

grounds

covered

under

the race,

sex,

disabil

ity

and

age

discrimi

nation

Acts.

With the intro

duction

of

the

govern

ment’s

Work

Choices

reforms,

companies

with

fewer

than

100

employ-

ees

are

exempt

from

unfair

dismissal

laws.

However,

all

businesses,

regardless

of

their

size,

must

still

adhere

to equal

oppor

tu

nity

laws

and

affected

employ

ees

( including

casuals,

contract

workers,

part-time

and/or

full-time)

can still

use unlawful

termination

legis

lation

and

make

a complaint

to HREOC.

HREOC

is an

independ

ent,

national

organi

sa

tion

respon

sible

for

investi

gat

ing

and

concil

i at

ing

complaints

under

the

Ra cial

Discrimi

nation

Act

1975, Se x Discrimi

nation

Act

1984, Disabil ity Discrimi

nation

Act

I992 and

Age

Dis crim

i na

tion

Act

2004.

Grounds

for

complaint

under

these

Acts

may

include

discrimi

nation

based

on:

sex,

pregnancy,

marital

status

or family

respon

sibil

ities;

race,

colour,

national

origin,

ethnic

origin

or descent;

actual

or

imputed

disabil

ity,

medical

condi

tion,

and;

mature

aged

or

youth

discrim

ination.

HREOC

also

confirms

that

complaints can still

be made

under

the

Human Rights

and

Equal

Oppor

tu

nity

Commis

sion

Act

1986

(HREOCA).


Look ing for work experience

options?

Consider

the SCES

Work

Ex pe ri ence

Place ment

Pro gram

Ex pand ing the ser vices of fered to SCES sub scrib ers, the Queensland Law So ci ety (the QLS) is pleased to

an nounce the com mence ment of the SCES Work Ex pe ri ence Place ment Pro gram.

From July 1, 2005, the QLS will of fer place ments within our busy work ing of fices to stu dents in ter ested in

gain ing ex pe ri ence in a le gal of fice en vi ron ment/mar ket ing de part ment.

Place ments in this program will be pre dom i nately in the Pro fes sional De vel op ment De part ment of the QLS.

En com pass ing five dif fer ent busi ness sec tions, in clud ing the Con tin u ing Le gal Ed u ca tion (events) sec tion,

the Pro fes sional De vel op ment De part ment is an ex tremely busy of fice en vi ron ment, which will give stu dents

ac cess to le gal of fice work, ad min is tra tion, mar ket ing and pro mo tions.

Work ex pe ri ence place ments will be avail able for pe ri ods of 1 to 4 weeks (lon ger place ments and sum mer

in tern ships are avail able upon ne go ti a tion with the Man ager, Pro fes sional De vel op ment).

To reg is ter your school/stu dents’ in ter est in par tic i pat ing in this program, please for ward an ex pres sion of

in ter est via email to Ms Sharon Burke, Man ager, Pro fes sional De vel op ment at s.burke@qls.com.au

Please in clude in your ex pres sion of in ter est;

• School name & ad dress

• Staff Con tact name

• Di rect phone num ber of con tact per son

• Email ad dress of con tact per son

• Stu dent de tails (if known)

• Pro posed dates of place ment

Vol. 2 2006 The Verdict 7


law & homelessness law & homelessness

Using the Law

to respond to

Homeless ness:

A snapshot of the

QPILCH Homeless

Persons’ Legal

Clinic

Samantha sought le gal as sis tance from the

Home less Per sons’ Le gal Clinic (HPLC) in re -

la tion to a Centrelink debt. 1 Samantha’s

mother re ceived Youth Al low ance on her be half

whilst Samantha was at tend ing high school. Her

mother’s fiancée moved into the fam ily home and

18 months later Samantha was no ti fied by

Centrelink that she had been over paid due to the

in creased house hold in come. Samantha, who suf -

fers a men tal ill ness, made tre men dous ef forts to

re pay the debt, even though she was at var i ous

times ex pe ri enc ing acute home less ness. HPLC

law yers ne go ti ated with Centrelink to have the

debt (in ex cess of $4,000) en tirely waived on com -

pas sion ate grounds. Centrelink also re funded

over $2,300 that our cli ent had al ready re paid.

Samantha is just one of many clients that the Homeless

Persons’ Legal Clinic assists on a weekly basis.

About the HPLC

The Homeless Persons’ Legal Clinic (HPLC) is a pro

bono outreach legal service coordi nated by the

Queensland Public Inter est Law Clear ing House

by Monica Taylor

Monica Taylor is the coordi na tor of the

QPILCH Homeless Persons’ Legal

Clinic,a project of the Queensland

Public Interest Law Clearing House

(QPILCH). Prior to this, Monica was

employed as a commercial litigation

lawyer at Deacons.

(QPILCH). It provides free legal assis tance to clients

experi enc ing or at risk of homeless ness.

The HPLC is a dynamic partner ship between the corpo -

rate and commu nity legal sector. It draws on the pro bono

resources of eleven private firms to provide free legal

advice and assis tance to homeless people at eight

outreach locations in Brisbane. Rather than clients being

required to travel to a legal centre or a law firm for advice

and assis tance, HPLC lawyers provide legal assis tance at

locations already frequented by homeless people, thereby

remov ing a struc tural barrier to access ing the law for

people experi enc ing or at risk of homeless ness.

What is homeless ness?

Homeless ness means more than not simply having a

roof over one’s head. In Austra lia, the most recog nised

defini tion of homeless ness is one which catego rises

homeless as primary, second ary or tertiary homeless -

ness. 2 Primary homeless ness refers to people without

conven tional accom mo da tion, such as sleep ing rough in

parks or on the streets, squat ting, living in vehicles or in

impro vised dwell ings. Second ary homeless ness refers to

people moving between various forms of tempo rary

shelter, such as refuges, emergency hostel accom mo da -

tion or ‘couch surfing’ between the homes of family and

friends. Tertiary homeless ness is where a person lives in a

board ing house on a medium to long-term basis, includ ing

margin ally housed residents living in caravan parks as they

are unable to afford or find alter na tive accom mo da tion.

In addition to housing status, homeless ness also refers

to a person’s feelings of discon nec tion and exclu sion from

society. The Council to Homeless Persons defines a

homeless person as someone who is “without a conven -

tional home, who lacks the social and economic supports

that a home normally affords.” 3 Many of the clients of the

Homeless Persons’ Legal Clinic have lost contact with

their family members, and many have mental health

and/or substance-abuse issues. Being “at home” there -

fore incor po rates subjec tive feelings of personal safety,

connectedness with one’s commu nity and a sense of

personal auton omy and control.

How big an issue is homenless ness in

Queensland?

Homeless ness is a signif i cant social issue in

Queensland. The Austra lian Bureau of Statis tics estimates

that on the night of the 2001 census, 24,596 people were

homeless in Queensland. 4 Of that number, an estimated

16% of people were primary homeless, 62% second ary

homeless and 22% tertiary homeless. The rate of

homeless ness for Queensland in 2001 was 69.8 per

10,000, the second highest in Austra lia. A census by the

Brisbane Homeless ness Taskforce estimated that on one

partic u lar night in 2003, Brisbane had 345 homeless

people sleep ing rough or in crisis accom mo da tion within

three kilometres of Brisbane City Hall. 5

Homeless ness & the law

The law and legal system play a power ful role in causing

and resolv ing a person’s homeless ness. The experi ence

of the Homeless Persons’ Legal Clinic and substan tial

academic research demon strates that there are strong

causal and conse quen tial associ a tions between legal

problems, homeless ness and social exclu sion. 6 Homeless

people are more likely than any other social group to

experi ence multi ple legal problems which are an identi fied

pathway into homeless ness. Homeless people also

experi ence multi ple barri ers to access ing legal assis tance

and services.

8 The Verdict Vol 2. 2006 Vol. 2 2006 The Verdict 9


law & homelessness

However, just as legal problems can lead to homeless -

ness, the resolu tion of legal problems can contrib ute

substan tially to prevent ing and/or resolv ing homeless -

ness. In 2004, the Senate Legal and Consti tu tional

Refer ences Commit tee (Senate Commit tee) report found

that, “improv ing access to justice is essen tial to break ing

the cycle that leads to and compounds homeless ness and

poverty.” 7

In its report, the Senate Commit tee found that very few

people become homeless or exit homeless ness without

some inter ac tion with legal or bureau cratic insti tu tions.

The Senate Commit tee also specif i cally identi fied a

number of factors prevent ing homeless people effec tively

access ing the justice system. These include:

• the limited avail abil ity of legal aid for civil and

admin is tra tive matters;

• the limited avail abil ity and inade quate resourcing

of appro pri ately targeted and directed special ist

legal services;

• a lack of aware ness on the part of homeless

people that that they may have a ‘legal problem’ or

that they have ‘legal rights’ that have been

infringed; and

• individ ual barri ers such as mental illness, language

issues, the percep tion that legal services are

expen sive, or past negative experi ences with the

legal system and the courts.

The QPILCH Homeless Persons’ Legal Clinic, along with

other Homeless Persons’ Legal Clinics in Victo ria and New

South Wales, address the factors identi fied by the Senate

Report by provid ing free, acces si ble and quality outreach

legal services for people experi enc ing or at risk of

homeless ness.

What sort of legal matters do homeless people

seek assis tance with?

The Homeless Persons’ Legal Clinic is often asked what

sorts of legal problems homeless people have. The top

four areas of law that our clients seek assis tance with are:

• Crimi nal law (22%)

• Debt and fines law (12%)

• Housing and tenancy law (12%)

• Family law (11%)

Crim i nal law

The major ity of our clients who have crimi nal law

matters have been charged with one or more of the

follow ing summary offences:

• Begging in a public place (s8 Summary

Offences Act 2005);

• Being drunk in a public place (s10

Summary Offences Act 2005);

• Public nuisance (s6 Summary Offences

Act 2005);

• Posses sion of a danger ous drug (s9

Drugs Misuse Act 1986);

• Contra ven ing a lawful police

direc tion (s445(2) Police Powers and

Respon si bil i ties Act 2000).

Unlaw ful begging is an offence which is

clearly designed to target behav iour of

someone who is homeless or poor. In our

10 The Verdict Vol 2. 2006

experi ence, homeless people who beg do so because

they have no money and little alter na tive to obtain money

to pay for basic neces si ties. The vast major ity of our clients

are in receipt of a govern ment benefit, most commonly the

Centrelink Disabil ity Support Pension, which indicates that

the person is unable to maintain employ ment due to a

physi cal or mental disabil ity, or both. Other laws, such as

being drunk in a public place or the offence of public

nuisance, have a dispro por tion ate impact on homeless

people because they tend to occupy public space more

frequently than other members of the general commu nity. 8

Homeless people often do not have a ‘private space’ to

retreat to, and have little choice but to carry out their daily

activ i ties (such as urinat ing, drink ing, sleep ing and social -

is ing) in public. None of those daily activ i ties are illegal

except for the fact that they take place in public. For

example, the legal act of drink ing is trans formed into a

crimi nal offence simply because alcohol is consumed in

public. It can there fore be argued that public space laws

dispro por tion ately target and have a detri men tal impact on

homeless people, and impede their ability to enjoy funda -

men tal freedoms that many Queens landers take for

granted.

Housing and tenancy

Common housing and tenancy legal problems encoun -

tered by homeless people include unlaw ful or unjust

evictions and unlaw ful withhold ing of bond monies.

“Black list ing” on private tenancy databases is another

signif i cant legal problem affect ing homeless people.

Private tenancy databases collect and publish infor ma tion

about the tenancy history of tenants. Real estate agents

and private landlords often use tenancy databases to

screen poten tial tenants and, if a person is listed, this often

results in them being refused accom mo da tion, effec tively

locking them out of the private rental market.

In 2003, the Residen tial Tenan cies Act 1994 (Qld) was

amended to include greater controls over the use of

residen tial tenancy databases, includ ing a require ment

that a tenant be notified by the landlord prior to being

listed. Whilst the amend ments afforded greater regula tion

over the use of databases, the process for challeng ing an


unjust or incor rect listing is by way of tribu nal hearing,

which in our clients’ experi ence is a confus ing and intim i -

dat ing legal process.

Fines and debt

In relation to fines and debt, many homeless people have

accumu lated fines through the State Penal ties Enforce -

ment Regis try (SPER) system. SPER is the admin is tra tive

agency in Queensland which has juris dic tion over all fines

ordered to be paid under the Penal ties and Sentences Act

1992 (Qld), includ ing court ordered fines and fines

imposed via an infringe ment notice. If a person fails to pay

their fine within the prescribed time (usually 28 days), their

fine is referred to SPER, at which point an admin is tra tion

fee is added to the fine amount.

Our service often provides assis tance for clients by

helping them enter a fine instal ment plan so that the client

can gradu ally repay their accumu lated SPER debts,

usually by fortnightly repay ments automat i cally deducted

from their govern ment benefit.

Unlike other fine enforce ment agencies in Austra lia,

SPER is the only agency which cannot exercise discre tion

to waive fines.

Family law

The major ity of clients who seek family law assis tance

from our service are women resid ing in emergency

accom mo da tion hostels. In 2004-05, domes tic violence

was the main reason for all people seeking assis tance

from SAAP services and together, domes tic violence and

relation ship/family break down comprised 25% of the main

reason for seeking assis tance. 9 Women require assis tance

with a range of family law matters, includ ing the process

for obtain ing a divorce or varying contact orders with their

children. In such cases, the Homeless Persons’ Legal

Clinic makes active refer rals to other agencies with

special ist exper tise in family law, such as the Women’s

Legal Service and Legal Aid Queensland.

In addition to the “top four”, the HPLC also assists with

other areas of law, includ ing:

• Personal injuries

• Crimi nal compen sa tion

• Wills and estates

• Social security

• Guard ian ship and admin is tra tion

• Police complaints

• Discrim i na tion

Gary sustained minor injuries in a trip and fall incident in

a major CBD shopping centre. Lawyers from the Homeless

Persons’ Legal Clinic researched the extent of the

shopping centre’s liabil ity and negoti ated a settle ment

with the shopping centre’s insurer on the client’s behalf.

Gary was awarded a $300 settle ment by the centre’s

insurer.

Jennifer is a single mother who lives in public housing.

She sought assis tance from the Homeless Persons’ Legal

Clinic to help progress a complaint which she had lodged

with the Anti-Discrim i na tion Commis sion of Queensland

for discrim i na tion on the basis of pregnancy and family

respon si bil i ties. HPLC lawyers helped the Jennifer prepare

for the concil i a tion confer ence, attended the concil i a tion

law & homelessness

confer ence with her and success fully negoti ated a

settle ment and compen sa tion payout on Jennifer’s behalf.

Law reform initia tives

Given the power ful impact of the law in causing or resolv -

ing homeless ness, the Homeless Persons’ Legal Clinic is

actively involved in a number of law reform projects. Our

service identi fies and responds to systemic legal issues

affect ing homeless people as deter mined by trends appar -

ent in our casework.

The Homeless Persons’ Legal Clinic is currently under -

tak ing a research project in conjunc tion with the Univer sity

of Queensland T.C Beirne School of Law into homeless

persons’ inter ac tions with police, includ ing police

move-on powers. As part of the research, our service is

admin is ter ing a survey and running a range of facil i tated

workshops & discus sions with homeless people.

Our service is also part of a multi-agency refer ence group

estab lished to support a new pilot Magis trates Court Diver -

sion Program for homeless people in Brisbane. The

commenced in May 2006 and will divert homeless people

charged with public spaces offences away from the crimi -

nal justice system by refer ring them to services to address

accom mo da tion, health and other needs which may be

contrib ut ing to their offend ing behav iour.

Conclu sion

Homeless ness must not be viewed as a condi tion of

individ ual failing. Rather, homeless ness is the endpoint of

a complex inter play of struc tural, economic, social and

polit i cal factors which combine to enable homeless ness to

exist and perpet u ate in our incred i bly afflu ent society.

Recog nis ing the power ful influ ence of the law in causing

and resolv ing homeless ness, the Homeless Persons’

Legal Clinic aims to address the under ly ing systemic

factors which enable homeless ness to perpet u ate.

As the Common wealth Advisory Commit tee on

Homeless ness stated, “It is not accept able for people in

Austra lia to be homeless. Myths that link homeless ness to

personal flaws or bad choices must be dispelled. The

struc tural and idiosyn cratic factors that cause homeless -

ness must be tackled and the factors that protect against it

must be strength ened. Homeless ness presents a serious

challenge for all Austra lian govern ments and commu ni -

ties”. 10 ■

★ F urther

Reading

& Information

• Council

to Homeless

Persons

• www.chp.org.au/

Queensland

Public

Inter

est

Law

Clearing

House

Inc.

( QPILCH)

www.qpilch.

org.

au

• /

• Public

Inter

est

Law

Clearing

House

• www.pilch.org.au/

• Legal

Aid

Queensland

• www.legalaid.

qld.

gov.

au/

Vol. 2 2006 The Verdict 11


law & homelessness

Notes

1 Real client names have not been used in this article.

2 Chris Cham ber lain and David Mac Ken zie, ‘Un der -

stand ing Con tem po rary Home less ness: Issues of

Def i ni tion and Mean ing’ (1992) 27 Aus tra lian Journal of

Social Issues 274

3 Council to Home less Persons In for ma tion Sheet

Number 1, http://www.chp.org.au/public_library/

items/2005/03/00055-upload-00001.doc

Ac cessed 04.05.06

4 Cham ber lain and Mac Ken zie, ‘Count ing the Home -

less– Queensland’ 2004 http://www.salvationarmy.org.

au/reports/Count ing_The_Home less/SWI002_Qld_

report.pdf Ac cessed 04.05.06

5 See http://www.qshelter.asn.au/ and City South

Home less ness Profile, Bris bane City Council

http://www.bris bane.qld.gov.au/bccwr/plans_and_

strat e gies/doc u ments/cs_home less ness_profile.pdf

Ac cessed 04.05.06

6 Phil Lynch, ‘Beg ging for Change: Home less ness and

the Law’ Vol 26, No 3, Mel bourne Uni ver sity Law

Review, (2002) 690 – 706 and Tamara Walsh, ‘Waltz ing

Practical

Henry

VIII

Clauses

A Henry

VIII

clause

is a clause

of an Act

of the

Parliament

which

permits

the Act

itself,

or even

other

Acts

of Parliament,

to be amended

by

subor

di

nate

legis

lation

such

as regulations

or proclamations

which are

not

necessarily

authorised

by

the

Parlia-

ment

itself.

While

these

clauses

are

named

after

the

English

King

Henry

VIII,

the

first

use of such

a device

was

made

long

before

his

reign

in

1385

in an enactment

concerning the

Staple.

But

the

term

became

associ

-

ated

with

Henry

VIII

as

the

next

three

uses

of such

clauses

where

made

in his reign.

One

of

the

best

examples

for

under

stand

ing

how

Henry

VIII

clauses

operated

is through

Henry’

s

Statute

of

Sewers

in 1531,

when

he

embarked

on a

grand

plan

of

install

ing

sewers

in an

other

wise

stench-filled

London.

Through

the

Parlia

ment

Henry

gave

his Commis

sioners

of Sewers

powers

to create

legis lation

themselves

without

refer

ence

to

Parlia-

ment

as well

as powers

to impose

rates

on

landowners

and

to impose

penal

ties

for

non-payment

of

those

rates.

The

Commis

sioners

of

Sewers

could

them

merrily

go about

knock

ing

down

people’s

houses

and

charging

taxes

creat

ing

laws

to

suit

their

needs

as

they

went.

12 The Verdict Vol 2. 2006

point

Matilda’ One Hundred Years Later: In ter ac tions

Between Home less Persons and the Crim i nal Justice

System in Queensland’ Vol 25, Sydney Law Review,

(2003) 75 – 95.

7 Senate Legal and Con sti tu tional Ref er ences Com mit -

tee, Legal Aid and Access to Justice (2004) 149 – 153.

See also Beth Midgley, ‘Im prov ing the Ad min is tra tion

of Justice for Home less People in the Court Pro cess’

(2004) www.pilch.org.au Ac cessed 04.05.06

8 Tamara Walsh, ‘From Park Bench to Court Bench –

De vel op ing a re sponse to breaches of public space law

by mar gin al ised people’ Sep tem ber 2004, p26.

9 SAAP (Sup ported Ac com mo da tion As sis tance

Program) Figure 5.2: Main reason for seeking as sis -

tance, Queensland 2004-05

10 Com mon wealth Ad vi sory Com mit tee on Home less -

ness, ‘Work ing Towards a Na tional Home less ness

Strat egy – Re sponse to Con sul ta tions’ (2003) pg 7

http://www.facs.gov.au/internet/facsinternet.nsf/aboutf

acs/pro grams/house-nhs_strat egy_re sponse.htm

Ac cessed 04.05.06

As these

clauses

have

developed

over

time

they

have

been

used

to amend

and

extend

the

appli

ca

tion

of certain

Acts

of

Parlia

ment.

For

a modern

day

example

of such

clauses

in Queensland

legisla

tion

see sections

17(2)

and

20

of

the

Residential Tenan

-

cie s Act

1994.

Matthew

Dunn,

QLS

Princi

pal

Policy

Officer


Legis la tion

Child Employ ment Act 2006 (Qld)

On 15 Febru ary 2006 the State Govern ment passed the

Child Employ ment Act 2006. The explan a tory notes to the Bill

state; “The objec tive...is to safeguard children working in

Queensland and to ...provide safeguards to ensure that work

does not inter fere with children’s school ing and that

children are prevented from perform ing work that

may be harmful to their health or safety or their physi -

cal, mental, moral or social devel op ment.” The new

legis la tion commenced on 1 July 2006 and

restricts the maximum hours worked by

school-aged children during a school term to

a maximum of four hours on school days and

a maximum of 12 hours to be worked in the

same week.

For a defini tion of school-aged child and more

infor ma tion, go to:www.legis la tion.qld.gov.au/

Bill_Pages/Bill_51_05.htm.

Succes sion Amend ment Act 2006 (Qld)

The Succes sion Amend ment Act 2006 commenced on 1 April 2006.

This amend ing Act updates and inserts provi sions of the Succes sion

Law Act 1981 (Qld).

The main changes and additions are the intro duc tion of court

authorised wills for minors and people who lack testa men tary capac -

ity; replac ing the substan tial compli ance require ment for the

execu tion of wills with a testa men tary inten tion test; remov ing the

require ment that a will must be signed at its foot or end; intro duc ing

provi sions to allow the admis sion of limited evidence to aid in the

inter pre ta tion of wills; new rules about the effect of marriage on wills;

new rules about benefi cia ries and inter pret ers who witness wills; and

new provi sions about who is entitled to see a will on the death of the

testa tor.

For more infor ma tion includ ing a copy of the amend ing Act go to;

www.legis la tion.qld.gov.au/OQPChome.htm.

Update

Po lice Pow ers and Re spon si bil i ties and Other Acts Amend ment Bill 2006

When enacted, the new Bill will provide the Queensland Police Service with the ability to use

‘move-on’ powers in all public spaces in Queensland and also contains new provi sions for

“evade police” offences. In the case of someone who causes high speed pursuits, they

will soon face perma nent confis ca tion of their vehicle, a fine of up to $15,000 and/or

three years in jail. The new Bill contains other new measures includ ing; spitting,

biting or throw ing bodily fluids at a police officer will be classed as a “serious

assault” under section 340 of the Crimi nal Code, which carries a jail term of up to

seven years. Police can issue a “notice to appear” to start a domes tic violence

appli ca tion, instead of first having to make an arrest or serve a summons; Police will be

able to search people and vehicles without a warrant for an offence involv ing wilful

damage if there is a reason able suspi cion.

legal update

Employ ment Law changes

The remain ing provi sions of the new

WorkChoices laws came into force from 27

March 2006. The new system provides a

single, national set of rules for minimum

terms and condi tions, awards and agree -

ments.

The accom pa ny ing Workplace Relations

Regula tions 2006 will help employ ers and

employ ees know what their rights and

respon si bil i ties are under the new

WorkChoices system. The new legis la tion

includes the follow ing:

• Workplace Relations Amend ment (Work

Choices) Act 2005

• Workplace Relations Amend ment (Work

Choices) Act 2005 – Procla ma tion

• Workplace Relations Regula tions 2006

• Workplace Relations Amend ment (Work

Choices) (Conse quen tial Amend ments)

Regula tions 2006

• Workplace Relations (Regis tra tion and

Account abil ity of Organi sa tions)

Amend ment Regula tions 2006

For a clear expla na tion of the new changes

and what they mean for employ ees and

employ ers, visit the Queensland Indus trial

Relations website at:

www.dir.qld.gov.au/industrial/rights/system/

workchoices/index.htm.

A booklet and fact sheets ex plain ing the new

leg is la tion can also be ac cessed on the

WorkChoices website at:

www.workchoices.gov.au/ourplan/pub li ca -

tions/.

Vol. 2 2006 The Verdict 13


NEW!

Web links to other fact sheets;

! The Supreme Court

www.justice.qld.gov.au/courts/factsht/C04Supreme.htm

! The District Court

www.justice.qld.gov.au/courts/factsht/C03District.htm

! The Magistrates Court

www.justice.qld.gov.au/courts/factsht/C02MagCrt.htm

! The Drugs Court

www.justice.qld.gov.au/courts/factsht/C10DrugCrt.htm

! Murri Court Qld

www.justice.qld.gov.au/courts/factsht/C11MurriCourt.htm

! Children Services Tribunal

www.justice.qld.gov.au/courts/factsht/cst_brief.htm

! Justices of the Peace

www.justice.qld.gov.au/jps/factsheet.htm

! Powers of Attorney

www.justice.qld.gov.au/guardian/poa/epa.htm

! Legal Aid Qld

www.legalaid.qld.gov.au/gateway.asp?c=publications

! Queensland Parliament

www.parliament.qld.gov.au/view/forSchools/forSchools.

Asp?area=factSheet&LIndex=2&SubArea=factSheet

Introducing SCES

Fact Sheets!

The Schools & Community Education Scheme is

creating dozens of easy-to-read information

brochures covering a range of interesting legal

issues. The SCES fact sheets have been

specifically designed to assist with lesson planning

and assignment writing, but are also of great

benefit to community groups and individuals

wanting access to simple and contemporary legal

education information. Keep an eye on the Fact

Sheet section of the SCES website as we add more

over the coming months.

Fact sheets currently available

include;

Juries

Neighbours & the Law

Sport Law

Preventive Law

Court Structure

Immigration Law

Personal Address Protocols

Legal Citation

!


people in the law

Private eye

with the Hon. Chief Jus tice Paul de Jer sey

14 The Verdict Vol 2. 2006

The Hon. Paul de Jersey AC

Chief Justice of Queensland

✰ Where did you study law and when were

you ad mit ted to prac tice?

Uni ver sity of Queensland, 1966-1971, Bris bane. Ad mit ted

as a bar ris ter in De cem ber 1971.

✰ Do you have any other degrees or

qual i fi ca tions?

BA and LSDA (Li cen ti ate Speech and Drama Aus tra lia).

✰ Why did you study law?

Through an early in ter est in the per sua sive powers of ad -

vo cacy/debate.

✰ What was your first job after being

ad mit ted to prac tice?

As a bar ris ter in private prac tice based in Bris bane.

✰ What is your current job?

Chief Justice of Queensland.

✰ What other jobs have you had in your

career?

Part-time soldier, 1966-1971, Queensland Uni ver sity Reg i -

ment (CMF). During uni ver sity va ca tions – selling

mens wear at a city store, at ten dant in the main ring at the

Ekka.

✰ What is the best thing about having a law

degree?

De ploy ing your ex per tise to help others solve their dif fi cult

prob lems – re liev ing burdens and hope fully re stor ing

balance in areas of peo ple’s lives.

✰ What do you wish someone had told you

when you where study ing law?

To study just a tad harder.

✰ If you hadn’t studied law what do you think

you’d be doing now?

Med i cine.

✰ Outside of law what are your fa vour ite past

times?

Spend ing time with my family/reading/travel.


preventive law

Pre ven tive law

Pre ven tive law

Mapping the future

When a cli ent calls their law yer and asks

for a Will to be pre pared, the chances

are high that a Will is ex actly what they

want. How ever, upon delv ing a lit tle fur ther, the

cli ent may tell you: “I am go ing in for an op er a -

tion next week and I want to make sure my fam -

ily is looked af ter in case some thing hap pens

to me.”

Knowing the reasons behind the client’s request

allows a proactive lawyer to address more fully the

“root” concern that prompts the client’s request. It

opens up the possi bil ity of a discus sion on the

practicalities of other tools that the client and lawyer

16 The Verdict Vol 2. 2006

by Joe Kafrouni

Joe is managing partner and founder

of Kafrouni Lawyers. He specialises in

commercial law and is the president of

the National Centre for Preventive Law

and an executive member of the

Australian Legal Practice Management

Association.

may consider and imple ment together to more

completely and effec tively resolve the concern. Some of

these may be legal solutions, such as an endur ing

power of attor ney, a business succes sion plan or

buy/sell agree ment. In addition, non-legal solutions may

require imple men ta tion by other profes sion als such as

life insur ance if the client currently has none.

The practi cal appli ca tions of “preven tive lawyer ing”

range from a periodic legal check-up for an individ ual

client to detailed, system atic legal compli ance

programs being imple mented on a corpo rate scale. The

benefits are inher ent and numer ous. In the United

States, organi sa tions imple ment ing such programs

have been termed “Good Citizen Compa nies” by the

courts and have been recog nized with vastly decreased

or “nil” liabil ity in cases where employ ees have acted

unlawfully.

In Austra lia, the solic i tor/client relation ship has been

found to give rise to a duty which requires the solic i tor to

take positive steps beyond the specific profes sional task

or function agreed in the instruc tions to avoid a real and

foresee able economic loss being sustained by the

client.[1] This makes preven tive legal practice good

practice and gives added incen tive for lawyers to learn

the tools of the preven tive lawyer’s trade.


What is preven tive law?

Stated simply, preven tive lawyer ing is about acting

“proactively” by taking steps to prevent a problem from

occur ring. This is opposed to acting “reactively” in dealing

with a client’s problem once it has occurred. Profes sor

Thomas Barton believes that it is more than just planning

how to win the next time the problem happens.[2]

He likens the diffi culty of dealing with the problem “next

time” to stumbling through a darkened room, moving

aside objects on the floor as you bump them. Moving

aside any object in the room is a quick fix to progress ing

through the room, but moving objects in the dark without

knowing what larger object may be tipped over by your

actions is not fully respon si ble. Instead of being reactive to

an immedi ate need, what is needed is to find some light or

other way to reveal the elements compris ing the environ -

ment, even if that means stopping and waiting for one’s

eyes to adjust to the darkness; retreat; or call for help.[3]

Learn ing how to deal effec tively with the anteced ents

and emergence of needs, rather than the needs

themselves is the basis of learn ing to practice law preven -

tively.[4] To be truly effec tive, lawyers must always find the

clients “real problem”, not just their legal problem.

The benefits

Preven tive lawyer ing will contrib ute to the life and

business success of a client. A client is likely to be saved

stress, harm and cost. The practice should also ensure

that the client is not misguided on issues that may have a

substan tial impact on them in the future.

Why would n’t a client act proactively or welcome a

lawyer’s advice to do so? It may be argued that a client will

not act proactively because they are not willing to spend

the money; or invest the time.

However, it is perhaps more ac cu rate to say that it is due to

the client:

1. Not ap pre ci at ing the risk of in ac tion; or

2. Ap pre ci at ing the risk but not con sid er ing the risk is se -

vere enough to re quire ac tion.

If the client appre ci ates the risk – money and time spent

now is viewed in perspec tive of what it may cost or how

much time it may take if left unchecked. Remem ber the

common proverb “an ounce of preven tion is better than a

pound of cure”? JFK put it like this: “There are risks and

costs to a program of action. But they are far less than the

long-range risks and costs of comfort able inaction”. The

lawyer must ensure that the client appre ci ates the risk.

The multi-dimen sional lawyer

The preven tive lawyer can be likened to a designer. The

designer is the dimen sion of legal practice that is often

overlooked due to the reactive pressures of legal practice.

The designer works proactively with clients to identify

poten tial legal trouble spots and design inter ven tions that

prevent those risks from occur ring. In compar i son, the

“problem solver” deals with those problems that do erupt,

notwith stand ing the best preven tive efforts. Failing that or

where justice concerns other wise seem to warrant it, the

“fighter” initi ates judicial resolu tion of the problem. All

three dimen sions of lawyer ing are impor tant.[5]

To be only one-dimen sional would be to risk obtain ing

the best so lu tion for your client. There is a saying that,

preventive law

“When the only tool you have is a hammer, ev ery thing

looks like a nail”.

Where to start?

Preven tive lawyer ing starts with attitude towards the

practice of law. Time and effort must be made to go

beyond the client’s current “problem”.

The lawyer needs to build strong bonds with their clients.

They need the client to feel that they can talk to them about

anything that may directly or even indirectly relate to their

legal affairs. Without this bond, the client will be more

reluc tant to tell the lawyer every thing. Sometimes, a client

will innocently fail to pass on infor ma tion because they

don’t see its relevance. In order to overcome this obsta cle,

commu ni ca tion is essen tial.

If a rapport of this nature can be estab lished, it is likely

that the lawyer will be better equipped to prevent legal

problems occur ring for their client. By under stand ing the

client’s individ ual needs, their business, indus try and

goals, we are better placed to deter mine what the future

issues are, and the under ly ing cause of exist ing issues.

Preven tive law and Austra lia

As the second country to insti tute their own National

Centre for Preven tive Law (a third in Europe is currently in

the planning stages), Austra lian lawyers are well placed to

develop and culti vate the practice of preven tive law. This

will be for the benefit of all.

Notes

1 Montague Mining v Gore (1998) FCA 1334 per

Wilcox J at 17.

2 Barton, T: Think ing Preven tively (2003)

http://www.preventivelawyer.org/main/default.asp

?pid=essays.htm at page 2. Profes sor Barton is

the Coordi na tor of the National Centre for

Preven tive Law, Califor nia Western School of Law

3 Ibid at page 4.

4 Ibid at page 22.

5 Barton, T: Preven tive Law for Multi-Dimen sional

Lawyers: www.prevent.com.au.

★ Further

reading

and

information:

• National

Centre

for

Preventive

Law

Austra

lia

• Visit

www.prevent.

com.au

– This

site

contains

fur

ther

reading

and

ma

te

rial

on Preventive

Law,

its

his

tory,

di

versity,

impor

tance

and

21st

century

growth.

• National

Center

for

Preventive

Law

( USA)

• www.preventivelawyer.

org/

main/default.asp


This

site

contains

further

reading

and

material

on Preventive

Law,

the

Brown

Program

in

Preventive

Law,

essays

and

other

material.

Vol. 2 2006 The Verdict 17


sport law

T rt law

in Sp rt

18 The Verdict Vol 2. 2006

by Chris Davies

Chris Davies is a lecturer with the

School of Law at James Cook University.

He recently submitted his thesis for a

PhD in Sports Law at the University of

Sydney.

In two pre vi ous Ver dict ar ti cles I dis cussed,

firstly, the role of sport ing tri bu nals in pro vid -

ing in-house po lic ing of on-field in dis cre tions

in sport, and sec ondly, the fact that de spite such

in-house po lic ing, crim i nal con vic tions can still

oc cur. What this ar ti cle will now ex am ine is cases

in volv ing civil torts ac tions by play ers af ter

on-field in ci dents, ei ther as a claim for tres pass to

the per son, or as a breach of the duty of care in

what is a neg li gence claim. Other neg li gence

claims in a sport ing con text that do not in volve

on-field vi o lence will also be ex am ined.

Trespass to the Person

•(a) McNamara v Duncan (1971) 26 ALR 584

In this partic u lar case, McNamara and Duncan were

involved in an amateur Austra lian football match. The facts

of the case were, just after McNamara had kicked the ball,

Duncan ran towards him and struck him with a raised

elbow that fractured his skull. McNamara was taken to

hospi tal where he remained uncon scious for ten days, and

was then left with a minor degree of perma nent disabil ity in

the form of discom fort in the leg. McNamara subse quently

sued Duncan for damages in a claim for trespass to the

person. In the Supreme Court of the Austra lian Capital

Terri tory, Justice Fox held that the strik ing was inten tional,

and rejected the defence of consent, stating that while

body contact was part of the game, the blow was contrary

to the rules of Austra lian football, and there fore McNamara

had not given consent to the trespass.

•(b) Giumelli v Johnston (1991) Aust Torts Reports

81-085

This case also involved an Austra lian football match in

which Giumelli struck Johnston with a thrust ing action

while Johnston was in posses sion of the ball. As a conse -

quence of the action Johnston suffered a depressed

fracture of the left cheek bone. In the District Court in South

Austra lia Johnston was awarded $7,801 in damages. On

appeal Chief Justice King (with whom Mohr and Prior JJ

agreed) held that a player’s consent to force applies to

what is within the rules of the game, and also to some

commonly encoun tered infringe ments of those rules.

However, his Honour also pointed out that such consent

does not extend to violence in contra ven tion of the rules by

a player who intends to cause bodily harm and ought to

know that such harm is likely to result. His Honour then

upheld the decision of the District Court judge in favour of

Johnston. Like McNamara v Duncan 1 this case involved

amateur players, but in rugby league there have been two

torts actions involv ing well known profes sional players.

•(c) Canter bury-Banks town v Rogers (1993) Aust Torts

Reports 81-246

Steve Rogers was a star player during the 1970’s and

1980’s who played for most of his career with

Cronulla-Suther land. As a star player he was often

targeted by opposi tion players, and such was the case

when he played in a match against Canter bury-Banks town

in March, 1985. Before the match the Canter bury players

were instructed by their coach to target Rogers, and

hooker, Mark Bugden, did just that, break ing Rogers’ jaw

with an illegal hit to the head. It was an injury that effec -

tively ended Rogers’ career, and he subse quently sued

both Bugden and the Canter bury club.


The court held that Bugden had delib er ately hit Rogers in

the face with his forearm with the inten tion of hurting him,

while the club was also held vicar i ously liable for the

assault because of the coach’s instruc tions to target

Rogers. Damages were then awarded because of the way

Bugden had carried out his attack, with exemplary

damages also being awarded to deter Bugden from doing

such acts again.

•(d) McCracken v Melbourne Storm [2005] NSWSC 107

(22 Feb 2005)

This case involved another rugby league player with the

action again being based on trespass to the person. It was

noted in the judgment that the reason for this was to avoid

the limita tions that were placed on the amount of damages

that could be claimed for a negli gence claim by the Civil

Liabil ity Act 2002 (NSW). The case related to an incident

that occurred in a match between the Wests Tigers and the

Melbourne Storm in May 2000 where two Melbourne

sport law

Storm players, Stephen Kearney and Marcus Bai, had

lifted the West Tigers’ Jarrod McCracken into a danger ous

position in a tackle. This caused McCracken to fall head

first into the ground, causing him to suffer a neck injury

serious enough to end his career.

During the trial, video evidence of the tackle was

presented to the court, with former first grade player and

coach, Warren Ryan, giving expert evidence on how

players are coached to tackle for games in a compe ti tion

like the National Rugby League (NRL). Ryan’s opinion was

that the tackle was unrea son ably danger ous and that

given the train ing and experi ence of the two players

involved, was something that could, and should, have

been avoided.

Justice Hulme saw no reason to reject these opinions,

and also looked at the fact that when they had appeared

before the NRL tribu nal both Kearney and Bai had pleaded

guilty to the charge of danger ous throw when affect ing the

tackle.

Vol. 2 2006 The Verdict 19


sport law

In his Honour’s opinion the three factors that had stood

out in the case were the inher ent danger of lifting a player

upside down in a tackle, the fact that the rules of the game

prohib ited such a danger ous tackle, and the fact that such

an action was not neces sary to prevent the forward

movement of a player. Justice Hulme there fore held that

Kearney and Bai had intended to injure McCracken in the

tackle, though not as severely as the injury suffered by

McCracken. The Melbourne Storm, as the employer of

both Kearney and Bai, was held to be vicar i ously liable for

the actions of their two employ ees.

Thus the McCracken case followed the earlier Rogers

one in that the players inflict ing the injuries were held liable

for their actions, while their respec tive employ ers were

also held vicar i ously liable. Another additional signif i cant

factor from the McCracken case was that the judge used

the guilty plea of the players before the NRL tribu nal as

evidence. It there fore highlighted a problem that can arise

from a guilty plea before a tribu nal, though it should also

be noted that the rules of the NRL allow for a no contest

plea, as well as guilty or not guilty plea, which may well be

the way players in the situa tion experi enced by Kearney

and Bai should be advised to plead in the future.

• (b) Cases involv ing negli gence in sport

Injuries suffered during a sport ing contest can also result

to a claim based on negli gence. In Queensland recently,

the Supreme Court held that a golfer was found to owe a

duty of care to another player that he injured on the golf

course, 2 with this decision being upheld by the Court of

Appeal. 3 In this case the player had hit off the

tee when the group in front was still in

range with the plain tiff then suffer ing

severe brain injuries as a result of

being hit.

The examples mentioned so

far in this article have involved

situa tions where the plain tiff

has suffered injuries as a result

of the actions of another partic -

i pant. However, negli gence

claims can also arise from other

situa tions. For instance, in

Austra lian football, Shaun Rehn

threat ened to sue the Austra lian

Football League (AFL) for negli -

gence after he suffered a serious

injury when he slipped on the small

piece of artifi cial turf that the AFL

was then placing in the middle of the

ground to help make the bounc ing of

the ball at the start of the match, and

restarts during the match, easier for the

umpires. The matter, however, was settled

out of court, and the fact that the AFL

immedi ately removed these pieces of artifi -

cial turf from all the AFL grounds indicated

that they had at least accepted there was a

problem with using the artifi cial turf in this

manner. A wrestling coach was meanwhile

held liable for the serious spinal injuries

20 The Verdict Vol 2. 2006

suffered by a partic i pant in a bout he was super vis ing at a

local youth club. 4 Mean while a soccer club has recently

been held liable for injuries suffered when a specta tor

tripped over a rope in a car park area. 5

Conclu sion

Like the crimi nal cases that have arisen after on-field

violence in sport, the torts cases discussed here illus trate

that players involved in body contact sport are subject to

the law of the land when they exceed what is permit ted

under the rules of the game, and their opponents implied

consent to the appli ca tion of force. These cases also illus -

trate that the clubs, as employ ers, can also be held

vicar i ously liable for the actions of their employ ees,

namely the players.

As a number of cases illus trate, negli gence claims have

also been success fully used by plain tiffs in actions involv -

ing sport ing situa tions that were outside the context of

on-field violence.

Another area of torts law involves the protec tion of the

unborn child. This relates to the recent issue involv ing

netball in Austra lia and the attempts by the sport‘s

govern ing body to prevent pregnant women from playing

in matches. This partic u lar issue will be discussed in

more detail in a future article regard ing women in sport

and the law.

Discus sion points

1. Do you think that it was right for play ers such as Steve

Rog ers and Jarrod McCracken to sue their fel low

rugby league play ers?

2. Or do you the mat ter should have been left with the de -

ci sion of the rugby league tri bu nal to sus pend the

play ers in volved in the in ci dent? ■


Notes

1 (1971) 26 ALR 584

2 Ollier v Magnetic Island Country Club Inc [2004]

QSC 263 (15 Aug 2003)

3 Ollier v Magnetic Island Country Club Inc (2004)

Aust Torts Reports 81-743

4 IFoscolos v Foots cray Youth Clu (2002) Aust

Torts Reports 81-658

5 Langham v Connells Point Rovers Soccer Club

Inc [2005] NSWCA 461 (21 Dec 2005)

Findlaw

news

★ Further

reading

and

information:

• Deakin

Law

Review

– Austlii

Website

• Visit

http:

// austlii.

law.uts.edu.au/

• au/journals/

DeakinLRev/2003/18.h

tml

– This

site

contains

article

titled

‘ The

Law

Of

Tort

And

Amateur

Sport:

An

Incentive

To

Stay

At

Home?

’.

• Curtin

University

of

Technology

Website

• www.cbs.curtin.edu.au/

files/

Injuries_Pauline_and

_Rob1.

pdf)

This

site

contains

an article

titled

‘Sports

Injuries

and

the

Right

to

Damages

Queensland

Courts

Website

• www.courts.

qld.

gov.

au/

– Recent

Queensland

Cases

mentioned

in

this

article

can

be

found

this

website.

Are

sedition

laws

neces

sary

and

effec

tive?

– Australian

Law

Reform

Commission

The

Austra

lian

Law

Reform

Commis

sion

has

announced

that

an

independ

ent

review

of federal

sedition

laws

questions

whether

the contro

ver

sial

laws

are

neces

sary

and

effec

tive.

Austra

lian

Law

Reform

Commis

sion

Presi

dent,

Professor

David

Weisbrot,

called

for public

comment

today

with

the

release

of

a commu

nity

consul ta

tion

paper

Review

of Sedition

Laws

(AL RC Issues

Paper

30)

.

Accord

ing

to the

ALRC,

the Federal

Govern

ment

“modernised”

the old

sedition

offences

in the

Crimes Act

1914

(Cth)

last

year

by enact

ing

the

An ti-Terror

ism

Act

(No

2)

2005

( Cth),

which

targets

activity

promot

ing

terror

ist

violence.

“The sedition

laws

provoked

particu

lar

contro-

versy,”

Mr

Weisbrot

said.

“The

main

concerns

are

that

these

laws

are

not

suffi

ciently

clear,

overlap

with

other

criminal

offences,

and

may

be inconsistent

with

Austra

lia’s

liberal

democratic

system

by inhib

it

ing

freedom

of

speech”.

Mr Weisbrot

added

that

it was

under

stand

able

that

the

term

“sedition”

prompts

strong

reactions.

“Sedition

laws

histori

cally

have

a polit

i cal

connection,”

he said.

“They

tend

to

be

intro

duced

or revived

at times

of

great

social

stress

in Austra

lia,

for

example,

during

the anti-conscription

movement

of

World

War

I,

during

the

height

of

the

Cold

War

in the 1950s,

and

now

again

with

rising

concern

about

international

terrorism.”

sport law

Accord

ing

to

Professor

Weisbrot,

the new

offences

abandon

the

old

defini

tion

of

“sedition”,

which

turned

on

“ exciting

disaf

fec

tion

against

the

Sover

eign

or among

her

Majesty’

s subjects.


Instead,

Professor

Weisbrot

said,

the new

offences;

• urge

the

use

of

force

or violence

to

overthrow

the

govern

ment

or

interfere

with

an election;

• urge

others

to assist

an

organi

sa

tion

or

country

engaged

in

armed

hostil

i ties

with

Austra

lia,

or

• urge

others

to engage

in violence

against

particu

lar

groups

in the

community.

Professor

Weisbrot

said

the

Issues

Paper

tries

to take

some

of

the

emotion

out

of the debate

and

focuses

on whether

the new

laws

are

neces

sary,

how clearly

they

have

been

expressed,

how

effec

-

tively

they

will

achieve

their

aims

and

how

they

fit

in with

the

many

other

laws

dealing

with

public

order and

the

special

problems

of

counter-terror

-

ism.

“The

review

also

will

look

closely

at the

‘unlaw

ful

associ ations‘

provi

sions

of the

Crimes Act,

which

have

not

been

used

for decades

and

may

no

longer be

needed

in

light

of

more

recent

legis

la-

tion

dealing

with

terror

ist

organi

sa

tions,”

he said.

“The

Issues

Paper

asks

24 questions

about

how

best

to proceed,

and

with

a very

tight

timetable

the ALRC

is seeking

urgent

commu

nity

feedback

on these

matters.”

on

Vol. 2 2006 The Verdict 21


school excursions & law

School ex cur sions w

22 The Verdict Vol. 2 2006

by Wil liam Wade

William Wade is a senior associate at Abbott

Tout Lawyers in the insurance services

group. He has 22 years’ experi ence in

insur ance-related litiga tion includ ing public

& product liabil ity, profes sional indem nity,

trade practices, commer cial & construc tion

litiga tion, CTP and workers compensation.

The school ex cur sion has be come some thing

of an in sti tu tion. For many years, schools of

all types have ar ranged ac tiv i ties for their stu -

dents to take place away from the school pre -

mises. Stu dents travel to other ven ues for sports,

mu sic, de bat ing, and drama and like ac tiv i ties. In

and

the

la

more re cent times, work ex pe ri ence pro grams

have taken stu dents out of school and into work

places. The use of out door ed u ca tion pro grams

has in creased and many schools pro mote over -

seas ex cur sions for sport ing, mu sic, his tory and

lan guage groups.

Not being an educa tor it is not my role to exhaustively

define the benefits of such programs, but I under stand

they are consid ered an impor tant adjunct, which compli -

ments and enriches the tradi tional curric u lum, fosters

independ ent learn ing skills, devel ops under stand ing and

knowl edge in areas broader than the tradi tional curric u lum

and impor tantly, devel ops social skills that might other -

wise not be developed.


Follow ing the HIH collapse and the public liabil ity crisis,

there were some cries suggest ing that obses sion with

safety and liabil ity issues threat ened to render extinct the

tradi tional school excur sion. I think a more balanced view

has now emerged, so that with care and planning, worth -

while excur sions can be conducted without taking

unaccept able safety risks.

Liabil ity and the duty of care

Whilst it may be pos si ble (par tic u larly in cases in volv ing

pri vate schools) for ac tions to be framed in breach of con -

tract, the over whelm ing body of cases will be de ter mined

by con sid er ations of the tort law of neg li gence. Ac cord -

ingly, the usual as pects of the tort law of neg li gence will fall

to be con sid ered as follows:

• The existence of a duty of care.

• The scope or content of the duty of care.

• Whether the school or teacher has breached the

duty of care.

• Causa tion, that is whether the breach of the duty of

care has caused the plain tiff’s loss, injury or

damage.

It is now trite to say that schools and teach ers do owe a

non-delegable duty of care to their pupils for their safety

and wellbeing, not only whilst they are at school during

normal hours, but extend ing to before and after school,

and beyond the normal school premises in the cases of

school-arranged or affil i ated activ i ties.

Non-delegable duty

The non-delegable nature of the duty of care owed

should not be misun der stood. A non-delegable duty is not

the same thing as strict or absolute liabil ity. Some confu -

sion may result from describ ing a non-delegable duty as a

duty to ensure that reason able care is taken for the safely

of pupils, which may give rise to the miscon cep tion that

the respon si bil ity of a school or teacher is absolute.

It is not a duty to keep school children free from all harm.

A duty to provide a safe school environ ment is one where

in the context; ‘safe’ means free of reason ably foresee able

risks of harm, and the ‘duty’ is a duty to take reason able

care. See Lepore v NSW [2003] HCA 4 per Gleeson CJ and

Gaudron J.

Reason able foreseeability

Reason able foreseeability plays a part in defin ing the

scope or extent of a duty of care because the duty to take

precau tions is imposed only in relation to risks or dangers

that are reason ably foresee able. Reason able

foreseeability has been described as an undemand ing

test; only such risks as are farfetched and fanci ful can be

ignored. Whilst it is an unusual case that turns on the test

of reason able foreseeability, not every thing that in fact

transpires should be consid ered as reason ably foresee -

able.

In Gugiatti v Servite College Council Inc [2004] WASC 5,

the full court of the Western Austra lian Supreme Court

held that it was not reason ably foresee able that an injury

of the kind which occurred (wrenched knee on awkward

landing) would result from the actions of the claim ant, in

that case from jumping a very modest creek whilst on a

bushwalk.

school excursions & law

Standard of care/breach of duty – the

negli gence calcu lus

Most cases involv ing schools’ liabil ity will turn on issues

involv ing the standard of care, whether there has been

breach of the duty of care and consid er ation of the

so-called negli gence calcu lus.

The classi cal exposi tion of same is contained in the

judgment of Mason J in the case of Wyong Shire Council v

Shirt (1980) 146 CLR 40 where his Honour said:

“In decid ing whether there has been a breach of the duty

of care the tribu nal of fact must first ask itself whether a

reason able man in the defen dant’s position would have

foreseen that his conduct involved a risk of injury to the

plain tiff or to a class of persons includ ing the plain tiff. If the

answer be in the affir ma tive it is then for the tribu nal of fact

to deter mine what a reason able man would do by way of

response to the risk. The percep tion of the reason able

man’s response calls for a consid er ation of the magni tude

of the risk and the degree of the proba bil ity of its occur -

rence, along with the expense, diffi culty and

incon ve nience of taking allevi at ing action and any other

conflict ing respon si bil i ties which the defen dant may have.

It is only when these matters are balanced out that the

tribu nal of fact can confi dently assert what is the standard

of response to be ascribed to the reason able man placed

in the defendant’s position.”

Since the Ipp report 1 , these factors and this balanc ing

exercise have come to be referred to as the negli gence

calcu lus. The negli gence calcu lus is essen tially the issue

of prevent abil ity: a reason able man’s reaction to the

perceived risk. The negli gence calcu lus has now been

codified in section 5B(2) of the Civil Liabil ity Act 2002

(NSW) 2 , which states:

“In deter min ing whether a reason able person would

have taken precau tions against a risk of harm, the court is

to consider the follow ing (amongst other relevant things):

• (a) the proba bil ity that the harm would occur if care

were not taken;

• (b) the likely serious ness of the harm;

• (c) the burden of taking precau tions to avoid the

risk of harm; and

• (d) the social utility of the activ ity that creates the

risk of harm.”

Essen tially, this is a restate ment of Mason J’s dictum

from Shirt’s case but it adds crite rion (d), namely the social

utility of the activ ity that creates the risk of harm, which was

not mentioned in Shirt’s case. In a footnote to his report,

Ipp explains that the panel had in mind that some activ i ties

are more worth taking risks for than others.

A common situa tion, in which precau tions that would

normally be thought reason able need not be taken, is

where an emergency vehicle is speed ing an injured or sick

person to hospi tal. As Denning LJ said in Watt v

Herefordshire County Council [1954] 2 All ER 368; “it is

one thing to take risks when driving for some commer cial

purpose with no emergency, but quite another to take risks

for life and limb”.

In various judgments of the courts, the social utility of

conduct ing school excur sions is a factor to which some

weight is attached. In Kretschmar v State of Queensland

(1989) Aust Torts Rep 80-272 Derrington J sitting in the

Full Court of the Supreme Court of Queensland said:

Vol. 2 2006 The Verdict 23


school excursions & law

“Social percep tions of what is reason able in the degree

of chance of body contact and the more remote chance of

serious hurt from that body contact, in games which are

permit ted to children by those having control over them

must come into play in cases such as this. In expos ing

children to mild and even more vigor ous physi cal assaults

of this nature, there is seen to be a healthy benefit which

prepares the child for the experi ences that come with an

adult’s choice to engage in activ i ties which bear these

marks. Further, there is seen to be some psycho log i cal

benefit in the devel op ment of the child’s charac ter in a

variety of ways. So in the balance, sports and activ i ties

which carry some risks are seen as justi fied and even

desirable.”

In the Trust ees of the Roman Catho lic Church Archdi o -

cese of Sydney v Kondrajian [2001] NSWCA 308 Ipp AJA

sitting in the NSW Court of Appeal said:

“It is neither practi ca ble nor desir able to maintain a

system of educa tion that seeks to exclude every risk of

injury other wise. As Morris LJ said in Wright v Cheshire

County Council 1952 2 ALL ER 789 ‘Only inactiv ity and

inani tion could be planned’. And as McNair J observed in

Jeffrey v London County Council 1954 52 LGR 521:

‘School author i ties ... must strike some balance between

the metic u lous super vi sion of children every moment of

the time when they are under their care, and the very desir -

able object of encour ag ing the sturdy independ ence of

children as they grow up ...’.”

The cases demon strate some clear lessons for organ is -

ing safe and liabil ity free excur sions. They are:

1. Thorough planning.

2. Pre-excur sion train ing/instruc tions.

3. Adequate check ing.

4. Adequate super vi sion.

1. Thorough planning

This requires consid er ation of the follow ing factors such

as the follow ing:

• Where we are going?

• Why we are going?

• What will be done when we get there?

• How are we getting there?

• How many students are going?

• How many super vis ing teach ers will be needed?

• Are the students up to it?

• Do the teach ers or other instruc tors have the

neces sary quali fi ca tions?

• What pre-trip train ing/instruc tions are needed?

• Develop emergency proce dures.

• Should warnings be given and when?

The more detailed the planning (and it should be

documented at least in outline), the more likely it is that in

the event of mishap and claim, adverse findings against

the school and teach ers can be avoided.

Many schools now contract with special ised provid ers

for outdoor activ ity programs. Because of the

non-delegable nature of the schools’ duty of care, this will

not neces sary avoid liabil ity. However, where the school

furnishes detailed speci fi ca tion of its require ments, includ -

ing appro pri ate depart men tal or other guide lines to the

camp provider, and Educa tion Law for Schools conducts

an appro pri ate review/evalu a tion of their services and facil -

24 The Verdict Vol. 2 2006

i ties, this will go a long way to discharg ing the

non-delegable duty.

2. Pre-excur sion train ing

This is neces sary not only for the students but also for

staff and other partic i pants. The nature and extent of

pre-excur sion train ing or instruc tions will of course vary

with the activ i ties that are planned. Similarly, brief ings on

arrival or during the course of the excur sion may be

required, and on these occasions it may be appro pri ate to

provide specific risk warnings. The point here is that such

train ing sessions and brief ing sessions need to be well

thought out and planned before the excur sion, rather than

deliv ered on the run.

3. Adequate check ing

Through out the excur sion the super vis ing teach ers will

be required to aspects such as the weather, equip ment,

the children’s perfor mance or ability, trans port arrange -

ments, the terrain. Thorough planning for the excur sion

will have arranged a program with suffi cient flexi bil ity that

changes can be made where neces sary through some

adverse contingency.

4. Super vi sion

Not only must there be adequate numbers of super vis ing

teach ers depend ing on the size of the group and the

nature of the activ i ties, but the teach ers must actively

super vise through out the excur sion. The degree of super -

vi sion will depend (amongst other things) on the age of the

students. It is often consid ered that older children require

less super vi sion and broadly this is correct, but it is still

neces sary to guard against the exuber ance and

occasional folly of youth.

“ Not only must there be adequate numbers

of super vis ing teach ers depend ing on the

size of the group and the nature of the

activ i ties, but the teach ers must actively

super vise through out the excur sion.”

The balance to be struck was described by Steytler J in

the Full Court of the Supreme Court of Western Austra lian

in Gugiatti’s case rather well:

“.. while it must be recog nised that a 16-year-old school

boy cannot be taken to have attained such a degree of

maturity or judgment or experi ence as no longer to stand

in the need of the protec tion of a school mas ter against risk

of injury arising from his own conduct. It must also be

accepted that 16-year-old boys ‘are not to be treated as if

they were infants at crèches ...’” Camkin v Bishop [1941] 2

ALL ER 713 at 716 per Goddard LJ.

The courts have shown that less super vi sion will be

demanded for leader ship programs where greater

independ ence is to be fostered but the corol lary of afford -

ing less active super vi sion is that corre spond ingly greater

atten tion must be paid to pre-excur sion planning, train ing

and instruc tion.


Two cases which demon strate these matters are:

(a) Regan v ACT Schools Author ity [2003]

ACT SC 47

This was a case, which concerned an accident to a

student whilst on an abseiling outdoor educa tion program.

The School was able to adduce a volume of evidence

which satis fied the Judge that: “The school had exercised

appro pri ate care in the planning and prepa ra tion for the

abseiling class. Mr McCar thy and Mr Thomp son were

experi enced and well-quali fied outdoor educa tion teach -

ers. I am satis fied that the students were properly

instructed and super vised. I am satis fied that the equip -

ment was all in good working order. I am satis fied that a

teacher acted as a belayer for all student descents, and in

partic u lar that Mr McCar thy belayed the plain tiff on this

descent. I am satis fied that the require ments in the

Outdoor Educa tion Manual were followed.”

(b) Ayoub v Downs 7 Oct 1982 NSW SC,

BC8200006

This is a much older case, but reveals a much more

poorly organ ised excur sion to a farm property. There were

about 50 boys most of whom came from special English

classes. They were aged between 13 and 15 and only two

teach ers went with them. One of the teach ers, who did not

give evidence, appar ently knew the owners of the farm and

may have been there before. The other teacher had no

knowl edge of the area.

After alight ing from the bus, the boys looked at various

farm animals and then went to the farmhouse where they

were met by one of the owners who suggested that some

of them might like to walk down and see the river. The

group then split with about 25 or 30 boys accom pa ny ing

Sir? Some of the

kids wonder if

this was the best

place to bring the

school.

school excursions & law

only one of the teach ers to the river (the one who had not

previ ously been to the farm).

At one stage, whilst proceed ing along a rough track built

onto the side of a steep hill they encoun tered a gate. Some

diffi culty was experi enced in opening the gate because of

the boys’ unfamil iar ity with such farm gates. In addition, it

would seem the gate was in need of repair, and it had been

tempo rarily tied up in a make-do fashion. A boy who had

been holding the downhill fence post on which the gate

appeared to swing fell, and was injured when another boy

released the other end of the gate from the tie mecha nism

that had been support ing the gatepost, which was not

firmly rooted in the ground.

Yeldham J found an inade quate provi sion of super vis ing

teach ers. He found that one teacher alone could not

properly super vise a group of 25 or 30 boys dealing with

an unfamil iar piece of equip ment. What this case really

shows is extremely poor pre-excur sion planning. Even

though this was a fairly inert excur sion, there was no

consid er ation of the various factors we raised above under

point 1, ‘thor ough planning’.

Work experi ence

In my view work experi ence programs should be consid -

ered and planned for in the same way as group

excur sions. Obviously the require ment for super vi sion is

absent but as with leader ship programs, greater care may

be required to prior planning, train ing and instruc tion (for

both the partic i pant and the host).

Civil Liabil ity Act impli ca tions – recre ational

activ i ties

Many excur sions will involve what the Civil Liabil ity Act

2002 (NSW) (‘the Act’) 3 refers to as recre ational activ i ties.

Vol. 2 2006 The Verdict 25


school excursions & law

Recre ational activ ity includes:

• (a) any sport (whether or not the sport is an

organ ised activ ity); and

• (b) any pursuit or activ ity engaged in for

enjoy ment, relax ation or leisure; and

• (c) any pursuit or activ ity engaged in at a place

(such as beach, park or other public or open

space), where people ordinarily engage in sport or

in any pursuit or activ ity for enjoy ment, relax ation

or leisure.

Section 5L of ‘the Act’ 4 provides a complete exclu sion of

liabil ity for harm suffered as a result of the materi ali sa tion

of an obvious risk of a danger ous recre ational activ ity

engaged in by the plain tiff. The liabil ity embargo applies

whether or not the plain tiff himself was aware of the risk.

What, then, is a danger ous recre ational activ ity?

Section 5K 5 states only that danger ous recre ational activ -

ity means a recre ational activ ity that involves a signif i cant

risk of physi cal harm. Unfor tu nately, this defini tion does

not assist greatly. The very occur rence of harm tends, at

least in hindsight, to suggest that the activ ity did involve a

signif i cant risk of physi cal harm.

While signif i cant risk carries a notion of a greater risk

than the expres sion “not insig nif i cant risk”, I doubt that the

courts would accept that ‘signif i cant’ indicates a degree of

proba bil ity of harm occur ring which is more proba ble than

not. The signif i cance of risk proba bly refers not only to the

proba bil ity of occur rence, but also the magni tude of poten -

tial harm.

Perhaps signif i cant risk of harm denotes some inher ent

quality in the recre ational activ ity. If so, the inher ent quality

of the risk is not the same as an inher ent risk as defined in

the previ ous division of ‘the Act’ (ie. a risk which cannot be

avoided by reason able care) which would make Section

5L entirely redun dant.

Is abseiling, for example, a danger ous recre ational activ -

ity? The unini ti ated may well think so, but devotees would

proba bly think not. The question did not arise in Regan’s

case because that case concerned ACT law not NSW law.

In the case of Nobrega v Trust ees of Roman Catho lic

Church Archdi o cese of Sydney [1999] NSW CA75 the

Court of Appeal agreed in the judgment of Powell JA, who

found that a waterslide which was set up on a dam wall,

and the use of the slide was not consid ered danger ous “if

used in an orderly fashion by boys under super vi sion” and

was consid ered by the court to be an entirely appro pri ate

activ ity for early teenag ers.

It seems to me that Section 5L of the Act is unlikely to

make much differ ence to the liabil ity position of a school. It

is only where the risk that eventu ates is a normal incidence

of the recre ational activ ity itself without contri bu tion from a

want of care by the school or teacher that the protec tion of

the the Act will operate, and the same position is reached

by the common law in any event.

Risk warnings 6

Section 5M of ‘the Act’ provides that there is no duty of

care to a person engag ing in a recre ational activ ity to take

care in respect of a risk, if a risk warning is given.

A risk warning is a warning given in a manner reason ably

likely to result in people being warned before engag ing in

the recre ational activ i ties. A risk warning can be given

26 The Verdict Vol. 2 2006

orally or in writing, includ ing by means of a sign or other -

wise. A defen dant is not required to estab lish that the

plain tiff received, or under stood, or was capable of receiv -

ing and under stand ing the warning. In addition, a risk

warning can only be given to an incapa ble person, eg. a

child, if the risk warning was given to a parent of an incapa -

ble person, or to a guard ian who was in control of, or

accom pa nied, the incapa ble person (and who was not

himself an incapa ble person and not the defen dant).

Presum ably there must be some coinci dence between the

risk which materi al ises and the risk against which the

warning was given before liabil ity is excluded, but a risk

warning need not be specific to the partic u lar risk and can

be a general warning of risk that includes the partic u lar risk

concerned (so long as the risk warning warns of the

general nature of the partic u lar risk).

A risk warning cannot be relied on if contra dicted by

other repre sen ta tions. A defen dant cannot rely on a risk

warning unless it is given by or on behalf of the defen dant,

or by or on behalf of the occupier of the place where the

recre ational activ ity is engaged in. A risk warning cannot

be relied on where there is contra ven tion of a statu tory

code or regula tory proto col for protec tion of personal

safety. Risk warnings cannot be relied on if the plain tiff was

required to engage in the recre ational activ ity by the defen -

dant. Query what degree of power, author ity and

compul sion is neces sary but it may well be that risk

warnings given on the subject of school excur sions may

not be effec tive because, for all practi cal purposes, atten -

dance on the excur sion was compul sory and formed part

of the curric u lum for a partic u lar subject or satisfactory

completion of the school year.

However, because a risk warning which satis fac to rily

complies with the Act require ments, will be effec tive to

entirely obviate liabil ity arising on the part of the school for

risks emanat ing which are the subject of the warning, it is

recom mended that schools should give serious consid er -

ation to well drawn risk warnings being passed to parents

in paren tal permis sion notes.

Pa ren tal con sent/per mis sion notes

Are they worth the paper? I would say they are, but not

because they of themselves discharge the school from

liabil ity, but because, subject to what I said previ ously

about risk warnings given under the Act they do not.

Gener ally waiver clauses are ineffec tive against legally

incapa ble individ u als. This is because as a matter of law,

such persons simply cannot contract to waive liabil ity and

parents or guard ians cannot do so on their behalf.

In NSW the capac ity of minors to contract is governed by

the Minors (Property and Contracts) Act 1976 (NSW).

Sections 18 and 19 provide that as long as having suffi -

cient maturity to under stand what he/she is doing, a minor

can be bound by a contract, which is to his/her benefit.

Whilst partic i pa tion in the excur sion may well be of benefit

to the minor, a document where the dominant purpose

and the only endur ing obliga tion is the waiver of liabil ity,

will not be seen in the same light.

The value of paren tal permis sion notes lies in a contri bu -

tion to the proper instruc tion, planning, brief ing and

train ing required to discharge the duty of care. A well

designed permis sion note setting out the aims, objec tives,


activ i ties and proce dures which will be pursued on an

excur sion can demon strate something at least of the

points I have mentioned previ ously about adequate

planning, check ing, train ing and super vi sion. In

addition, as I have previ ously mentioned, it can

provide an excel lent oppor tu nity for furnish ing a risk

warning, which complies with the Civil Liabil ity Act

2002 (NSW). Further more, permis sion notes provide

an excel lent oppor tu nity for parents to provide in

response useful infor ma tion regard ing any special

require ments or limita tions their child might present

with.

Some schools have endeavoured to obtain paren tal

indem ni ties for misad ven ture. These are fraught with

diffi culty. Courts have tradi tion ally strained to place a

narrow construc tion on such clauses, to read them

down if not out, and so to be legally effec tive, they

need to clearly indicate that the indem nity is to

operate even in the face of overt negli gence by the

school author ity or of its staff.

Such clauses are gener ally unaccept able to

parents. Many strike them out or refuse to sign the

form. A school endeavouring to enforce such a

signed indem nity will gener ally attract a degree of

moral disap pro ba tion. The Depart ments of Educa tion

disap prove of the use of these clauses by schools

under its control. Many parent controlled (or influ -

enced) independ ent schools also reject them.

Practi cal enforce ment of such clauses will rarely be

achieved.

In short, practi cal diffi cul ties usually render any

endeavour for a legally effec tive form of indem nity

clause, not worth the effort of the attempt.■

Findlaw

New

food

tamper

ing

laws

news

Restau

rants,

takeaway

stores

and

other

food

and

drink

outlets

face

fines

of up to $ 15,000

for not

reporting

suspected

or confirmed

food

tamper

ing,

under

new

laws

introduced

into

State

Parliament.

Health

Minister

Stephen

Robertson

said

the

Food

Amend

ment

Bill

2006

would

better

protect

the

public

from

food

poison

ing

by compel

ling

all food

businesses

to report

instances

of intention

ally

contam

inated

food

immedi

ately.

The new

laws

follow

the

case

of food

contam

ina-

tion

in

Sizzler

restau

rants

earlier

this

year,

which

raised

concerns

about

the

public

safeguards

against

food

tamper

ing.

“Immedi

ately

after

the

incident

became

known,

the

Premier

and

I met

with

food

industry

leaders

and

govern ment

author

ities

to

discuss

quick

and

appro-

priate

solutions.

Mr Robert

son

said

the amend

ment

would

make

it

clear

that

report

ing

of

food

contam

ination

was

Notes

1 The Ipp Report – The Review of the Law of

Negli gence Report, Aug 2002, Ipp J

2 See Civil Liabil ity Act 2003 (Qld) s 9 (2)

3 See Civil Liabil ity Act 2003 (Qld), Chapter 2

Division 4

school excursions & law

4 See Civil Liabil ity Act 2003 (Qld) s 19

5 See Civil Liabil ity Act 2003 (Qld) s 18

6 There is no proactive duty to warn of obvious

risk in Qld. See Civil Liabil ity Act 2003 (Qld) s 15

★ Further

reading

and

information:

• Treasurey

Depart

ment

Website

• Visit

http:

// revofneg.treasury.

gov.

au/content/

• review2.asp

– This

site

contains

the

Review

of

the

Law

of

Negligence

Report,

Aug

2002

• Carter

Capner

Lawyers

Website

• Visit

www.cartercapner.com.au/

school.html

• This

legal

firm

website

contains

an article

called

Public

Liability

– School

Injuries

( Qld).

man

da

tory

only

if there

was

reason

able

sus

pi

cion

that

it was

done

intention

ally.

“The

Bill

takes

into

account

that

incidental

and

accidental

contam

ination

of

food

is commonplace

and

proce

dures

are

already

in place

to

deal

with

these

occur

rences,

” he

said.

“Mandatory

reporting

will

apply

if foul

play

is suspected.”

To support

businesses

in meeting

their

report

ing

obliga tions,

Queensland

Health

will

provide

infor

-

mation

and

guidance

to

help

prevent

and

identify

food

tamper

ing.

Queensland

Health’s

inves

ti

gation

into

the

Sizzler

incidents

was

hampered

because

our

public

health

officers

did

not

have

any

contami

nated

food

to test,”

he said.

“To ensure

there

is no

delay

in carry

ing

out

independ

ent

food

analysis,

businesses

will

be

required

to retain

all suspected

contam

inated

food.”

Vol. 2 2006 The Verdict 27


contracts of sale

A buyer’s

night mare!

28 The Verdict Vol. 2 2006

Failing to seek legal advice

before signing a contract

could prove costly.


A fter

by Mitch ell Beck

Mitchell is a member of Flower & Hart‘s

commercial and property law team. His

experience spans a broad range of

commercial and property law matters, with

a focus on conveyancing and leasing.

a con tract has been signed, a buyer may

wish to change their name as it ap pears on the

con tract by add ing or sub sti tut ing an other

buyer or nom i nate an other en tity to com plete the pur -

chase, usu ally where the buyer is de scribed on the

con tract as “the buyer and/or nom i nee”. This sit u a -

tion in vari ably oc curs be cause the buyer has signed

a con tract be fore seek ing le gal ad vice about the ap -

pro pri ate struc tur ing of their trans ac tion. It can be dif -

fi cult and costly to fix af ter the con tract is signed.

The imposi tion of “double” trans fer duty

The Duties Act 2001 (Qld) imposes trans fer duty on a

contract for the sale of land in Queensland. In a standard

REIQ contract, the payment of duty is the buyer’s respon si -

bil ity (however, if the duty is not paid the Office of State

Revenue can require a seller to pay the duty). The liabil ity to

pay duty arises at the time the contract is formed.

Accord ingly, a buyer in the above scenario is faced with the

liabil ity of paying “double duty” – at the time the contract is

formed and again when they add or substi tute another buyer

to the contract or nominate another entity to complete the

purchase. This is because a further “trans fer” of the property

has occurred. How can the imposi tion of “double duty” be

avoided where the ultimate holding entity of the property is

unknown before the contract is signed?

Adding the buyer’s spouse as a party to the contract

If the buyer is a natural person, they can trans fer an inter est

in the property to their spouse. The Act provides an exemp -

tion from paying trans fer duty where:-

1. The party hav ing an in ter est in the prop erty be ing trans -

ferred is the buyer’s spouse (mar ried or de-facto);

2. The par ties will hold the prop erty as joint ten ant’s or ten -

ant’s in com mon in equal shares; and

3. The trans fer is by way of gift; and

4. The prop erty is res i den tial land; and

5. The prop erty will be their prin ci pal place of res i dence.

Unless all the above condi tions are met, additional trans fer

duty will be payable. The disad van tage with this exemp tion is

that it only applies to a spouse of the buyer and is limited to

specific circum stances.

Acting as undis closed agent for the buyer

A buyer can trans fer their inter est in a property to another

entity where they are acting as agent. This will allow the

“agent” to later trans fer the property to their princi pal without

paying duty. The follow ing condi tions must be met:-

1. The prin ci pal must pro vide all the pur chase funds, in -

clud ing the de posit; and

2. The agency agree ment must be in writ ing and en tered

into be fore the con tract is signed.

The problem with this exemp tion is that the arrange ment is

limited to specific circum stances and must be entered into

before the contract is signed.

contracts of sale

An option to purchase

The simplest way is for a buyer to buy the property through

a put & call option (“option agree ment”). The contract is

annexed to the option agree ment. An option agree ment can

be condi tional on such things as finance and/or build ing

inspec tion. A basic option agree ment can work in the follow -

ing way; the buyer and seller exchange a sum of money (the

option fee) which gives the buyer a “right” to buy the property

for a speci fied period (call option period). If the buyer does

not exercise the option, the seller can require the buyer to

buy the property for a speci fied period (put option

period). The call option fee may also form part of the deposit

held under the sale contract after the option is exercised.

Prior to the exercise of the call option, the buyer can

nominate another entity to exercise the call option. The sale

contract will then be signed in the name of the nominee. The

nominee can include the buyer.

Duty is payable on both the option agree ment and

contract, however, if the call option fee is nominal (say $1.00)

only nominal duty will be payable. If the call option fee is

substan tial, then a higher amount of duty will be

payable. When the option is exercised and the contract is

assessed for duty, a credit is allowed for the duty already

paid on the option agree ment.

Option agree ments are very useful because:-

1. The pay ment of sub stan tial trans fer duty can be de layed

un til the op tion is ex er cised; and

2. The buyer may have the op por tu nity of on-sell ing the

prop erty dur ing the call op tion pe riod – ef fec tively sell ing

the “op tion” to buy the prop erty to a third party for a profit.

It is impor tant to remem ber that an option agree ment must

be entered into before the contract is signed.

What if the buyer has already signed the contract?

When a buyer signs a contract before seeking legal advice,

they may be faced with the costly alter na tives of:-

1. Pur chas ing the prop erty in the name as stated on the

con tract (which may not be de sir able in the cir cum -

stances);

2. Trans fer ring the prop erty to a nom i nee or add ing an other

buyer to the con tract (and pay ing dou ble duty);

3. Ter mi nat ing the con tract pur su ant to the stat u tory cool -

ing off pe riod (which in curs a pen alty of 0.25% of the pur -

chase price and is only avail able for the first five busi ness

days af ter the par ties are bound); or

4. En ter ing into a deed of re scis sion and new con tract with

the seller (which re quires the sell ers con sent and will in -

cur ad di tional time and ex pense for the buyer). ■

★ Fur

ther

reading

and

infor

mation:

• REIQ

website

www.reiq.

com.au/

buySellRent/

default.

htm

– This

site

contains

infor

ma

tion

on

buying,

selling

and

renting

for

the

general

public..

• Office

of State

Revenue

www.osr.qld.gov.au/

buy_home.

htm

– This

site

contains

infor

ma

tion

on

what

you

need

to know

about

duties

(taxes)

when

buying

a

home

in Queensland.

Vol. 2 2006 The Verdict 29


Law Week Art Competition

Division Name School Place

Overall Winner

Pirrin Francis

Junior y

Primar

Senior y

Primar

oopilly

Indoor l

Schoo

State High

Overall

winner

Shannon Robinson

St Bernard State

School

1st place

Hamish Mulcahy

St Bernard State

School

2nd place

Paige Toby-Young

Durack State School

3rd place

Tita Misa Durack State School

Highly Com mended

Daniel Lyne

St Bernard State

School

Highly Com mended

Katelyn Weaver

Harrisville State

School

Highly Com mended

Shanice Hook

Harrisville State

School

Highly Com mended

Gemma Cannon

Murgon State School

1st place

Nicola Cowin

Whitfield State

School

2nd place

Michaela

Lilley

Sarah McGrath

Maryborough

School

Maryborough

School

West State

West State

3rd place

Highly Commended

Mikayla Hillyard

Whitfield State

School

Highly Commended

Nakita Smart

30 The Verdict Vol.2 2006

I

n prep

ara

tion

for

Law

Week

2006,

the

Schools

and

Com

mu

nity

Edu

ca

tion

Scheme

recently

ran another

state-

wide

art com

pe

tition

for

primary

and

high

school

students.

With

the

of

fi cial

Law

Week

theme

“Open

ing

the

Doors

to Law

, stu

dents

were

asked to sub

mit

a poster,

in

the

hope

of win

-

ning

ex

cel

lent

prizes

as well

as

publi

cation

of their

artwork

as the of

fi cial

Law

Week

poster

for

2006.

The Pro

fes

sional

Develop

ment

Depart

ment

was

flooded

with

en tries.

With

pen and

ink

draw

ings,

pencil,

paint,

crayon

and

elec

tronic

entries,

each

submission

brought

much

plea

sure

to

the

staff

in the

Professional Develop

ment

Depart

ment.

With

hun

-

dreds

of en tries

received,

our

three

judges

(Ms

Sharon

Burke,

Professional

De

vel

opment,

Ms

Steph

anie

Brims,

Graphic

Designer

and

Ms

Rebekah

House,

Schools

& Com

mu

nity

Ed

u ca

tion

Murgon State School

Highly Com mended

Scheme)

had an extremely

diffi

cult

time

choosing

our win

ners.

But in the end,

se

lec

tions

were

made

based

on a mix

ture

of

cre

ativ

ity,

orig

i nal

thought

and

ar tis

tic abil

ity.

Indoo

roo

pilly

State

High

School

student

Pirrin

Fran cis

was

an nounced

over

all

win

ner

of

the

com-

pe ti

tion.

Pirrin’s

win

ning

poster

(see

op po

site

page)

was

cho

sen

from more

than

200

en

tries.

Prizes

were

also

awarded

for

other

cate

gories.

Don’

t for

get

to

take

a look

at

a se lec

tion

of other

win

ning

en tries

over

the

page!

Con

grat

ula

tions

to all students

who

partic

ipated

in

the com

pe

ti tion

for their

ar

tistic

ef forts.

Many

thanks

also

to the Depart

ment

of

Edu

cation

and

the

Arts

for

their

sup

port

and promotion

of this com

pe

ti tion.

Photo:

Com

pe

ti tion

win

ner

Pirrin

Fran

cis

( front)

with QLS

Professional

De

vel

opment

Man

ager

r

Sharon

Burke,

QLS

Cor

porate

Ser

vices

Di rec

tor

Pe ter

Ly

ons

and

QLS

Presi

dent

Rob

Da vis.

Division Name School Place

Alex Duncan St Patricks College

Highly Com mended

Johnathan Chapman

St Bernard State

School

Highly Com mended

Fokel Ellen St Bernard State

School

Highly Com mended

Keshia Talati

St Bernard State

School

Highly Com mended

Nathan Carson

Harrisville State

School

Highly Com mended

Alanah Dawson

Harrisville State

School

Highly Com mended

Junior High Danielle Watt

Mirani State High School

1st place

Cameron Hogg

St Patricks College

2nd place

Andrew Drummond

St Patricks College

3rd place

Nathanael

Ranveer

Singh

Senior High Pirrin Francis

St Patricks College

Highly Com mended

Indooroopilly

School

State High

1st place

Sara Zacchigna Centenary State

High 2nd place

Sarah Watts

St Columbans College

3rd place

Cherie Duncan

Centenary State

High Highly Com mended

Adrian Morris

All Saints

Anglican

School

Highly Com mended

Vol. 1 2006 The Verdict 31


32 The Verdict Vol 1. 2006

Vol. 2 2006 The Verdict 33


family law family law

Fam ily dis pute

res o lu tion:

Ensur ing Justice for Victims of Violence

34 The Verdict

35 The

Vol

Verdict

1. 2006

Vol 1. 2006

by Rachael Field

Rachael is a lecturer at the Faculty of Law at

QUT. Her key research interests are in alternative

dispute resolution, women and the law and

family law. Rachael is also currently President of

Women‘s Legal Service, Brisbane.

The soon to be en acted Fam ily Law Amend ment

(Shared Pa ren tal Re spon si bil ity) Bill 20051 will re -

quire par ties to a fam ily law parenting chil dren’s

dis pute to at tend fam ily dis pute res o lu tion be fore the

par ties can file an ap pli ca tion in court.

A family dispute resolu tion process, such as media tion, is an

infor mal way of resolv ing parenting children’s disputes. Some

parties will be allowed to avoid family dispute resolu tion if they

satisfy an excep tion that relates to actual or threat ened family

violence or child abuse. 2

This excep tion acknowl edges that victims of violence can be

signif i cantly disad van taged in infor mal dispute resolu tion

processes, such as media tion. However, many victims of violence

will still find themselves in media tion, despite the excep tion. This

article looks at a positive role for lawyers in family dispute resolu -

tion as advocates for victims of violence to ensure that just

outcomes are possi ble, despite the disad van tages.

What are the disad van tages that victims of violence

poten tially face in family dispute resolu tion?

Family dispute resolu tion, because it is an infor mal process in

which the parties have to work together to reach a consen sus

decision, is based on cooper a tive bargain ing. The idea of

cooper a tive bargain ing with a perpe tra tor of violence, however,

is an oxymo ron. 3 Perpe tra tors of violence cannot genuinely

cooper ate with their victims. This is because family violence is

about the gendered asser tion of power and control.Perpe tra tors

of violence coerce, intim i date, monitor, threaten, and devalue

their victims. Perpe tra tors often also deny their own violence. So

cooper a tion and consent are not really possi ble in disputes

where there is a history of violence.

Violence also automat i cally disempowers the victim. A perpe -

tra tor’s control of their victim is based on their ability to make the

victim fearful. Victims of violence are made to be fearful about

their physi cal and emotional safety, and also often about the

physi cal and emotional safety of their children as well. Being

fearful of the person you are negoti at ing with takes away your

ability to bargain effec tively for your own inter ests.

If a perpe tra tor of violence cannot bargain cooper a tively and is

used to control ling their victim by making them fearful, it is inevi -

ta ble that in an infor mal negoti at ing environ ment, such as family

dispute resolu tion, the outcome is likely to repre sent the will and

inter ests of the perpe tra tor. It follows that such outcomes are

also likely to be unjust, unfair and inappro pri ate for the victim.

Sometimes when a history of violence is known to exist

between the parties, strat e gies such as shuttle or telephone

media tion are used. This is because it is thought that if a victim

doesn’t have to sit face to face with the perpe tra tor then the

negoti at ing imbal ance created by the violence is fixed. But this

isn’t the case. Just physi cally separat ing the parties, or stopping

Vol. 2 2006 The Verdict 35


family law

them from having direct contact, cannot address the use of

power and control against the victim. It doesn’t stop them

from being fearful. A perpe tra tor can use a tone or phrase,

or mention a partic u lar issue or incident, that will frighten

and disempowers the victim, even if they aren’t physi cally

in the same room with the victim.

If there is an excep tion, why will victims of

violence still end up in family dispute resolu tion?

There are a number of reasons why, despite the excep -

tion, many victims of violence will still end up in family

dispute resolu tion with the person who has perpe trated

violence against them.

As family dispute resolu tion will be mandated for every -

one except those who try to rely on the excep tion, it is clear

that the overall number of people in the general popula tion

who are partic i pat ing in family dispute resolu tion will

increase. Inevi ta bly we will see as a result an increase in

the propor tion of victims of violence who are partic i pat ing.

This was the experi ence in the United States when manda -

tory divorce media tion was intro duced, 4 with one author

assert ing in 1999 that in the US 50-80% of family disputes

referred to court-based media tion programs involved

domes tic violence. 5

Secondly, intake and screen ing processes are not

perfect, and many victims of violence may choose not to

tell anyone about the violence they have experi enced. If

screen ing processes fail, or if victims of violence choose

not to disclose the violence they have experi enced, then

victims will find themselves partic i pat ing in family dispute

resolu tion.

Thirdly, there are many social, economic and psycho log -

i cal factors that limit the dispute resolu tion options

avail able to victims of violence, especially post-separa tion.

For example, many victims of violence cannot afford to go

to court, and some others may find it diffi cult to get legal

aid. If a victim of violence does not disclose or minimises

the violence they have experi enced, then the victim can

make sure that they get access to family dispute resolu tion

which is at least a form of struc tured, assisted dispute

resolu tion. Victims might think it better than getting no help

at all, or having to privately negoti ate with the perpe tra tor,

even though the victim might under stand that the history of

violence will almost certainly negatively affect their partic i -

pa tion in the process, and the fairness of the outcome.

How can we stop family dispute resolu tion from

being unjust for victims of violence?

I believe that includ ing lawyers in family dispute resolu -

tion can help address some of the disad van tages victims

of violence face; partic u larly if the lawyer is present in

family dispute resolu tion not only in their usual role of legal

repre sen ta tive and adviser, but also as a coach, supporter

and advocate for the victim. 6 This approach draws on the

protections that legal repre sen ta tion can provide for

victims of violence, 7 but takes those benefits even further

in that the inten tion behind having a lawyer present is also

to help victims to negoti ate effec tively on their own behalf.

Certainly, lawyers are sometimes already present in

mediations, and sometimes with victims of violence. What

I’m suggest ing, however, is that as a part of the imple men -

ta tion of the family law reforms of 2006, the Govern ment

36 The Verdict Vol. 2 2006

makes sure that if a victim of violence ends up in family

dispute resolu tion, the victim is there with a lawyer who will

help them to negoti ate for themselves.

What would a lawyer do to help victims of

violence negoti ate in family dispute resolu tion?

A lawyer could help a victim of violence partic i pate effec -

tively in family dispute resolu tion in three key ways. Firstly,

the lawyer could be the victim’s coach in prepar ing the

victim for family dispute resolu tion; secondly, the lawyer

could support the victim in the process; and thirdly, the

lawyer could use their legal knowl edge to help the victim to

advocate for their own inter ests. It is impor tant, however,

that in helping victims of violence in this way, the lawyer

doesn’t allow the environ ment to turn into a court -

room-style contest. 8

Helping victims of violence in family dispute

resolu tion: being a coach

A lawyer’s coach ing role for victims of violence who are

going to partic i pate in family dispute resolu tion could

include a number of tasks; for example, prepar ing the

victim with infor ma tion about the process, provid ing them

with some skills for their partic i pa tion, and begin ning a

process of gener at ing satis fac tory options for the resolu -

tion of the dispute.

For a victim of violence to be prepared to engage in

family dispute resolu tion effec tively, it is very impor tant

that the victim have as much infor ma tion about the

process as possi ble. 9 Provi sion of this infor ma tion,

explain ing it thoroughly, and ensur ing it is under stood,

would be a criti cal part of a lawyer’s possi ble coach ing

role. Another impor tant aspect of that role would be

provid ing partic i pa tion skills. This could involve teach ing

victims of violence a variety of abili ties and attrib utes

impor tant for achiev ing just outcomes in bargain ing

processes based on cooper a tion and consen sus. For

example, abili ties in terms of identi fy ing key needs, inter -

ests and issues; asser tive ness skills; 10 active listen ing

skills, 11 ways of maintain ing confi dence and self-esteem

through out the process; and ways to adopt protec tive

behav iours. 12

Prepa ra tion coach ing by a victim’s lawyer could also

involve assist ing with identi fy ing and explor ing “the worst,

best and possi ble outcomes” and “ways of achiev ing (the

victim’s) desired outcomes and prior i ties.” 13 This is

because just outcomes are far more likely to be achiev able

if a party to family dispute resolu tion has thought through a

number of appro pri ate and accept able options and alter -

na tives. It is also useful for a party to have a “bench mark

against which to compare an emerg ing settle ment”, 14 and

some strat e gies for dealing with the other party’s “last

gap” in negoti a tions. 15 A lawyer is just the right person to

help a victim of violence with this sort of prepa ra tion for

family dispute resolu tion.

Helping victims of violence in family dispute

resolu tion: being a support and advocate

A lawyer’s role as support person and advocate in family

dispute resolu tion should be focussed on ensur ing that

the victim’s inter ests (and conse quently those of the

victim’s children) are protected. It follows that the lawyer’s


ole would also involve helping the victim pursue just and

appro pri ate negoti ated outcomes.

The sort of assis tance that might be provided to a victim

of violence partic i pat ing in family dispute resolu tion could

take various forms. It would depend on the needs, skills

and capac ity of the victim. The lawyer would at least be a

support ive presence and able to affirm the victim’s own

ability to negoti ate on their own behalf. But they could also

provide speedy advice when it is requested, and contrib -

ute to the way the process is managed so that the victim is

not disad van taged. This might involve naming situa tions

where the imbal ance of negoti at ing power is clearly going

to hamper reach ing a just negoti ated outcome. For

example, the lawyer could insist that several short

sessions take place rather than a long exhaust ing one; the

lawyer could ensure “discus sions stay on track”; 16 the

lawyer could act as a “second pair of ears” for the victim. 17

The lawyer could help the victim to work on alter na tives to

propos als made by the perpe tra tor, through apply ing the

lawyer’s legal knowl edge and exper tise to the process of

“bargain ing in the shadow of the law”. 18 And the lawyer

could ask for a break, or for some time out, or for a private

session with the facil i ta tors when neces sary. As a last

resort, the lawyer could take respon si bil ity for termi nat ing

the process, if construc tive negoti a tions with the perpe tra -

tor were simply not possi ble. 19

Another key role of the lawyer advocate in protect ing the

victim’s inter ests is in relation to advis ing on the detail of

any final agree ment. 20 It’s impor tant in this process that a

balance is struck between pursu ing what is equita ble, 21

acting on the victim’s instruc tions, 22 and remain ing flexi ble

to just and appro pri ate agree ment possi bil i ties that might

never the less be outside legal remedial norms. Altobelli

has said that lawyers are partic u larly skilled at “turning

decisions into workable plans.” 23

Nice one, Mum.

Now who‘s go ing

to take me to

soc cer?

family law

Some concerns about involv ing lawyers in family

dispute resolu tion to help victims of violence

Above it was noted that it is really impor tant for the lawyer

not to turn family dispute resolu tion into a court room style

contest. Unfor tu nately, there is still a wide percep tion that

lawyers inevi ta bly increase the adversarial nature of family

law negoti a tions. For example, Roberts has said that

lawyers pose a threat to the integ rity of media tion; 24 and

McKay has commented that some lawyers are “thoroughly

commit ted to the adver sary process” and that they would

proba bly be “unsuc cess ful in the infor mal give-and-take of

a media tion proceed ing”. 25 The Parlia men tary Commit tee

that inves ti gated post-separa tion child arrange ments in

2003, which led to the current reform to mandate family

dispute resolu tion, also noted in its report that: the commit -

tee had heard “numer ous examples of lawyers whose

adversarial approach to repre sent ing their client has

exacer bated the dispute and cost the client a lot of

money.” 26

It should also be acknowl edged that many lawyers’ need

to develop their knowl edge of issues for separated parties,

and partic u larly of issues relat ing to family violence. 27

These skills are essen tial for the proposal detailed here to

work; and ensur ing that lawyers have the relevant knowl -

edge and skills is a respon si bil ity of the profes sion, and a

matter for legal educa tion. So, in general, we can say that

lawyers do have partic u lar skills in “provid ing for partic i pa -

tion on an equal basis,” 28 and that they are trained to be

“sensi tive to issues of both power and rights.” 29

There are in fact a number of reasons why we can be

confi dent about the ability of lawyers to partic i pate

positively in family dispute resolu tion. The first of these is

that, whilst it is true that old-style lawyer ing was largely

focussed on being adversarial, contem po rary lawyers

possess a diverse skill base that is relevant to construc tive

Vol. 2 2006 The Verdict 37


family law

and effec tive partic i pa tion in processes such as media -

tion. 30 These skills are neces sary to practise well in what is

a changed legal environ ment, and Sordo has commented

that these days only “a small percent age of lawyers are

more comfort able with a tradi tional adversarial formal

dispute resolu tion approach.” 31

Secondly, we know that today’s lawyers have at least

some of the neces sary skills for effec tive coach ing,

support and advocacy in family dispute resolu tion. This is

because most law schools, and legal practice colleges, in

Austra lia now teach aspects of alter na tive dispute resolu -

tion, and princi ples of non-adversarial approaches to

dispute resolu tion. 32 It is also true that although lawyers

might be trained to be able to repre sent their client’s inter -

ests in adversarial environ ments, this does not mean that

lawyers are there fore unable to also appre ci ate or engage

in non-adversarial proce dures and dispute resolu tion

methods.

Thirdly, lawyers themselves have argued for some time

that they have an impor tant role to play in infor mal dispute

resolu tion processes gener ally. 33 Lawyers can help

mitigate a party’s ignorance of the law, lack of asser tive -

ness, lack of self-esteem or inabil ity to artic u late their

points persua sively. 34 Murayama found in a study of

Japanese divorce matters that legal repre sen ta tion in

media tion was consis tently connected with just and fair

outcomes. 35 Lawyers as media tors have also been

relatively well accepted for some time. 36

What is another possi ble problem with the

proposal?

Another possi ble problem with this proposal is that it

requires a signif i cant funding commit ment from Govern -

ment. This sort of finan cial commit ment would be an

appro pri ate invest ment in the justice of the reform

outcomes, but is proba bly unlikely to eventu ate.; Govern -

ment is looking to family dispute resolu tion to reduce the

costs of family matters involv ing children and this proposal

would cost rather than save money. It would certainly be a

very positive way for the Govern ment to demon strate,

however, that it is commit ted to prevent ing these reforms

from result ing in injus tice for victims of violence and their

children. This could be seen as a positive and appro pri ate

invest ment in the future of Austra lian families.

Conclu sion

If the disad van tages and dangers for victims of violence

in family dispute resolu tion are addressed, processes

such as media tion can poten tially be used appro pri ately

and safely. This proposal, through promot ing the

presence of a lawyer for victims of violence in family

dispute resolu tion, contrib utes to ensur ing that fair and

appro pri ate outcomes are possi ble. The role of the lawyer

would involve prepar ing victims for family dispute resolu -

tion, helping victims to repre sent and protect their own

inter ests during the process, and also assist ing with the

terms of a final agreement.

A lawyer’s involve ment in family dispute resolu tion offers

many more oppor tu ni ties, for ensur ing the process is

equita ble, than it does threats. Clearly, the finan cial costs

associ ated with lawyers partic i pat ing in family dispute

resolu tion in this way are high, and require a signif i cant

38 The Verdict Vol. 2 2006

finan cial commit ment from Govern ment. However, such a

commit ment would clearly demon strate an inten tion to

protect the future of Austra lian families post-separa tion,

and work towards reduc ing the poten tial for unjust and

inappro pri ate family dispute outcomes for victims of

violence. ■

Notes

1 The Family Law Amend ment (Shared Paren tal

Respon si bil ity) Bill 2005 (the ‘Bill’) was intro duced

into the House of Repre sen ta tives on 8 Decem ber

2005 and is expected to be debated in the first half

of 2006. The Bill arose out of recom men da tions of

the House of Repre sen ta tives Stand ing Commit tee

on Family and Commu nity Affairs in Every Picture

Tells a Story: Report on the inquiry into child

custody arrange ments in the event of family

separa tion, Decem ber 2003, Canberra, avail able at

www.aph.gov.au/house/commit tee/fca/childcustod

y/report.htm (accessed 20 Febru ary 2006). In

relation to manda tory media tion see in partic u lar

recom men da tion 9 of the Report.

2 See section 60I(9) of the Bill.

3 Barbara Hart ‘Gentle Jeopardy: The Further

Endan ger ment of Battered Women and Children

in Custody Media tion’ (1990) 7 Media tion

Quarterly 317at 320.

4 Andree Gagnon ‘“Ending Manda tory Divorce

Media tion for Battered Women’“ (1992) 15

Harvard Women’s Law Review 272 at 278.

5 Jennifer Maxwell ‘Manda tory Media tion of

Custody in the Face of Domes tic Violence: Some

Sugges tions for Courts and Media tors’ (1999) 37

Family and Concil i a tion Courts Review 335 at

335.

Notes continued on page 60.

★ Further

reading

and

information:

• Every

picture

tells

a story:

Inquiry

into

child

custody

arrangements

in

the

event

of family

separation.

Visit

www.aph.gov.au/

house/

committee/

fca/

childcustody/report.

htm

– Thi

site

contains

a full

copy

of the

orginal

report

tabled

in

Parlia

ment

on 29

December

2003.

• s

• Comlaw

• Visit

www.comlaw.gov.au/

– This

site

contains

consol

idated

copies

of

current

and

past

legis

la

tion

including

The

Family

Law

Amend

ment

(Shared

Parental

Responsibil

ity)

Bill

2005

and

the

Family

Law

Act

1975.


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Vol. 2 2006 The Verdict 39


community titles law community titles law

HOME UNITS

What

How do they operate?

40 The Verdict Vol. 2 2006

are

they?

by Gary Bugden

Gary is a consultant lawyer who has

practised in strata and community titles law

for over 30 years. He is a former partner of

Mallesons Stephen Jacques and has held

various academic appointments. He is also

the author of four books.

It is es ti mated that over four mil lion Aus tra lians

own, live in or work in strata ti tle prop er ties (called

“com mu nity ti tle” in Queensland) and the num ber

is in creas ing rap idly each year. The chances are that

most people at some point in their life will be involved

with a commu nity title property, proba bly in the form

of a home unit. Because that involve ment is likely to

be as an owner or tenant, an under stand ing of how

home units operate is very useful knowl edge.

The land and build ing

Most home units are located within a build ing constructed on

a block of land, this land being known as the “scheme land”. A

plan is regis tered to verti cally subdi vide this build ing and land

into lots (the home units) and common property (the areas of

the build ing and land that are intended for common use by the

people who occupy the units). A separate land title is issued for

each of the home units so they can be sold to individ ual

owners. In a practi cal sense this title is the same as title to an

ordinary piece of land (e.g. a normal house). It can be leased,

mortgaged and dealt with in the same way as any other land.

Some home units are not actually within a build ing. These

include villa homes and some town houses. Instead of land and

a build ing being subdi vided verti cally, the land is subdi vided

horizon tally and the individ ual villa homes or townhouses are

situated within the bound aries of the land lots created by the

subdi vi sion. Despite this physi cal differ ence they operate in

much the same way as home units.

Sometimes land is subdi vided horizon tally into lots and

common property with no build ing being involved at the time of

the subdi vi sion. The build ings (usually free stand ing houses)

are constructed after the subdi vi sion occurs. This type of

project is commonly referred to as a master planned commu -

nity. Again, these projects operate in much the same way as

other commu nity titles schemes.

The body corpo rate

When the subdi vi sion plan is regis tered -

• A document, known as a Commu nity Manage ment

State ment (or “CMS”), is also regis tered.

• A body corpo rate (a special type of company) is

incor po rated.

Initially, the body corpo rate comprises a sole member, the

property devel oper (called the origi nal owner). As the individ ual

home units are sold the owners of those units all become

members of the body corpo rate. The role of the body corpo rate

is to be respon si ble for mainte nance of the common property

and the admin is tra tion of the scheme. However, the body

corpo rate does not actually own the common property. The

owners of the units own it jointly.

The CMS is an impor tant document for the body corpo rate. It

sets out a number of things, includ ing -

• The by-laws that regulate the way in which the unit

owners can use the home units and common property.

• The “lot entitlements” of the unit owners (which is

similar to a shareholding in an ordinary company).

• Any rights unit owners have to exclu sively occupy any

part of the common property (e.g. a car parking space)

or exclu sively use an asset of the body corpo rate (e.g.

a berth for a boat on a marina).

• The regula tions that govern the admin is tra tion of the

body corpo rate.

There are two types of lot entitlements:

• Contri bu tion sched ule lot entitlements – which

deter mine the amount of annual levies that a lot owner

pays (as to which, see below)

• Inter est sched ule lot entitlements – which deter mine the

share of joint owner ship of the common property of the

unit owner.

The tenets of unit owner ship

It is impor tant to under stand what is involved in unit owner -

ship. When a person buys a unit they acquire -

• Owner ship of the unit

• A share in owner ship of the common property (the

propor tion being based on the inter est sched ule lot

entitle ment of the unit purchased)

• Member ship of the body corpo rate (which carries with it

respon si bil ity to contrib ute to its funding).

The last two compo nents are not present when a person buys

a conven tional house or block of land. To some extent this

makes the purchase of a home unit a little more compli cated

than the purchase of a free stand ing house.

The commu nity titles scheme

The combi na tion of the scheme land, the subdi vi sion plan,

the CMS and the body corpo rate effec tively comprise what is

called “the commu nity titles scheme”. The princi pal law relat -

ing to commu nity titles schemes is mainly comprised in the

Body Corpo rate and Commu nity Manage ment Act 1997.

Vol. 2 2006 The Verdict 41


community titles law

However, the detailed rules for the day-to-day admin is tra -

tion of the scheme are mainly found in the set of

regula tions that is identi fied in the CMS.

There are four sets of regula tions, each of which applies

to a partic u lar type of scheme. They are referred to as

“modules” and their common names are -

• Standard Module – intended for normal residen tial

schemes. 1

• Accom mo da tion Module – intended for schemes

with holiday letting or serviced apart ments

opera tions (such as the Gold Coast style serviced

apart ments). 2

• Commer cial Module – intended for shops, offices

and other non-residen tial schemes 3

• Small Schemes Module – restricted to schemes

with six units or less. 4

Gover nance and manage ment

A commit tee, the members of which are elected by the

unit owners at an annual general meeting, governs the

body corpo rate. 5 Commit tee members are unit owners or

their nominated repre sen ta tives. The commit tee acts like

the board of direc tors of a company, although its powers

are shared with the unit owners collec tively. This collec tive

of unit owners is called a general meeting. It is a meeting of

the members of the body corpo rate convened from time to

time, but at least once each year.

The commit tee has execu tive officers – a chair per son,

secre tary and treasurer. There may also be a body corpo -

rate manager who is a profes sional admin is tra tor engaged

by the body corpo rate to assist in the record keeping and

manage ment of the scheme. Some schemes have

caretak ers or on-site build ing manag ers (more accurately

called “caretaking service contrac tors”). Where these

people are involved in a scheme, they are also members of

the commit tee, although they have no right to vote at

meetings of the committee.

The follow ing diagram illus trates the basic gover nance

and manage ment struc ture of a body corpo rate:

42 The Verdict Vol. 2 2006

Layered schemes

Sometimes a lot within a commu nity titles scheme is

“owned” by another commu nity titles scheme. This results

in a “layered commu nity titles scheme”. The body corpo -

rate in the lower scheme (called a subsid iary body

corpo rate) is a member of the higher scheme body corpo -

rate (called the princi pal body corpo rate). Sometimes

there are up to three layers in a commu nity titles schemes.

Devel op ers use struc tures such as these to separate differ -

ent types of build ings or uses from others (e.g. commer cial

from residen tial or townhouse from a home unit tower).

The follow ing diagram shows a layered structure:

By-laws

As mentioned, the CMS contains by-laws. These are

rules regulat ing the day-to-day conduct of unit owners and

occupi ers. They are very impor tant for preserv ing peace

and harmony within the scheme. They cover use of both

the units and common property. For example, they may

deal with such things as:

• Creat ing disturb ing noise in a unit

• Leaving articles, such as washing, on a balcony

• Using a unit for an illegal or immoral purpose

• Disposal of garbage

• Parking motor vehicles on common property

• Damag ing lawns or gardens

• Use of the swimming pool.

If a person fails to observe the by-laws the commit tee can

autho rize the service of a by-law contra ven tion notice on

that person. If their failure contin ues after service of the

notice they can be prose cuted by the body corpo rate and

fined. It is there fore impor tant that every one living in a

home unit build ing is given a copy of the by-laws. Far too

often people, partic u larly tenants, fail to observe the

by-laws because they have never seen a copy of them.

General meetings

Owners meet together in general meeting in any of 3

situa tions -

• First Annual General Meeting – held within a

speci fied time after the scheme is estab lished

(being 6 months at the outside). 6

• Annual General Meeting – which must be held

each year to under take a specific range of annual

business.

• Extraor di nary General Meeting – which is held to

discuss a partic u lar item of business when

requested by the unit owners or required by the

commit tee.


While the commit tee can under take many of the

day-to-day business activ i ties of the body corpo rate, more

impor tant activ i ties (e.g. appoint ment of a body corpo rate

manager, approv ing large items of expen di ture and autho -

riz ing commence ment of certain legal proceed ings) can

only be under taken by a general meeting. Further more,

the general meeting can restrict the power of the commit -

tee and can over-ride its decisions in certain

circumstances.

An impor tant role of the general meeting is to super vise

the work of the commit tee. If the general meeting is not

happy with the perfor mance of the commit tee, it can

remove one or more of the commit tee members from office

and replace them with someone new.

Mainte nance respon si bil ity

As a general rule, in a home unit build ing a unit owner is

respon si ble for mainte nance of their unit and the body

corpo rate is respon si ble for mainte nance of the common

property. In practice this division of mainte nance respon si -

bil ity is not that simple. A good example of this is where in a

home unit build ing a wall separat ing a unit from common

property needs to be repaired (eg. a wall that has a unit

on one side of it and common property on the other

side, such as an exter nal wall). In the case of such

a wall, the line, or the bound ary,that separates

the unit from the common property is the

centre line of the wall. There fore, if the wall

has to be repaired the unit owner is respon -

si ble for repair ing the inside half of the wall

and the body corpo rate is respon si ble for

repair ing the outside half of the wall.

Similar problems can occur between

unit owners, because one unit owner

will own half of the wall and the other

half owned by another unit owner.

Again, this is because the divid ing

line or bound ary between one unit

and another unit (or common

property) is gener ally the centre of

the floors, walls and ceilings

enclos ing the unit.

These types of problems are not

as frequent in the case of villa

homes and town house devel op -

ments because most of the

build ings are situated within the lots

and are the respon si bil ity of the lot

owner. The same applies in the

case of master planned commu ni -

ties where in most cases the houses

are entirely within the bound aries of

the lots.

Levies

The body corpo rate needs funds to

pay for mainte nance of the common

property, insur ance of the build ing,

common property services (such as

electric ity and swimming pool chemi cals)

and for costs of admin is ter ing the scheme.

These expenses are paid from a special

community titles law

account called an admin is tra tive fund. It also needs to put

money away to cover the costs of renewal and replace -

ment of the common property (as opposed to its day to

day mainte nance). For example, if the bearings in the

swimming pool pump are noisy their repair is a mainte -

nance expense. If the pump itself burns out and cannot be

repaired, the cost of its replace ment comes from another

account called a sinking fund.

The body corpo rate obtains money by impos ing levies

on unit owners. Levies are imposed to both the admin is tra -

tive fund and the sinking fund. The propor tion that a unit

owner pays depends upon the contri bu tion sched ule lot

entitle ment of their unit. The levies are usually calcu lated at

each annual general meeting when the unit owners adopt

a budget. The admin is tra tive fund budget is for a 12-month

period, but the sinking fund budget is for a 10-year period.

The approach to the sinking fund budget is to work out

what renew als and replace ments are likely to occur over

the next 10 years and then put money away each year so

that when the renewal or replace ment has to be attended

Vol. 2 2006 The Verdict 43


community titles law

to there will be suffi cient funds to pay the costs. Where an

unbudgeted expense occurs in either fund the body

corpo rate has to impose a special levy to cover that

expense.

The levies are usually payable by install ments, mostly

quarterly. Failure to pay levies results in the unit owner

loosing their right to vote at general meetings of the body

corpo rate. It can also result in the body corpo rate taking

legal proceed ing to recover the levies.

Disputes

Because of the close quarter living usually involved in

commu nity titles schemes and the existence of a

democratic decision making regime, disputes can occur.

They may, for example, be disputes between two unit

owners, between a unit owner and the body corpo rate or

the body corpo rate and a tenant.

Where a dispute occurs and it cannot be resolved within

the scheme an appli ca tion may be made to a Govern ment

appointed official to resolve the dispute. This official is the

Body Corpo rate and Commu nity Titles Commis sioner.

The Commis sioner will give every one affected by the

dispute the oppor tu nity to comment on it by written

submis sion and will then decide how the dispute is best

resolved. The Commis sioner will have three choices:

• Media tion

• Concil i a tion

• Adjudi ca tion

These processes can result in an agreed or imposed

“order” requir ing a party to the dispute to do or refrain from

doing some partic u lar thing (e.g. to stop playing their

stereo so loudly). If the order is not observed an offence is

commit ted and the person who breaches the order can be

prose cuted and fined. If the dispute concerns

maladministration of the scheme, the Commis sioner may

appoint a person to take control of the body corpo rate and

act as a compul sory admin is tra tor of the scheme. This

person is usually a body corpo rate manager, although not

normally one who was previ ously appointed by the body

★ Further

reading

and

information:

• Office

of Queensland

Parlia

mentary

Counsel

Visit


www.legislation.qld.gov.au/

Acts_SLs/

Acts_SL_B.htm.

This

site

contains

all

relevan

legis

la

tion

for

Body

Coporate

ventures

in Qld.

• t

• Commu

nity

Titles

Insti

tute

Queensland

• Visit

– www.ctiq.

org.

au/.

This

site

contains

current

news

items,

indus

try

standards

and

ethics

and

infor

ma

tion

on

the

book

the

Laymans

Guide

to

the

Body

Corporate

Act.

• Depart

ment

of Tourism,

Fair

Trading

and

Wine

Development.

Visit

– www.dtrft.qld.gov.au/

• Dispute+

Resolu

tion/BCCM/Body+

Corporate+

and+

C

ommu

nity+

Manage

ment

This

site

contains

relevant

forms,

brochures

and

consumer

infor

ma

tion

regard

ing

body

corporate

issues

in Queensland.

44 The Verdict Vol. 2 2006

corpo rate itself. This type of manager can make decisions

on behalf of the body corpo rate and the general meeting of

owners cannot inter fere with that decision making

process.

Where an order is made by an adjudi ca tor, the appli cant

for the order or the person against whom the order is made

may appeal to the District Court, but only on a question of

law arising out of the deter mi na tion of the appli ca tion.

Lifestyle

Although commu nity titles schemes sound complex and

may involve more oppor tu nity for disputes than exists in

conven tional housing estates, the fact is that they are

becom ing increas ing popular forms of living. This is

because, despite the short com ings, they offer real advan -

tages. In partic u lar –

• Strong friend ships and commu nal support are

often formed

• Residents have access to better recre ational

facil i ties (e.g. swimming pool, gym, spa, tennis

courts) because they are more afford able when the

costs are shared

• Mainte nance is attended to by the body corpo rate

so residents have more leisure time

• They can be more secure and safer than ordinary

houses

• They often retain or increase their value more than

houses in conven tional land subdi vi sions because

regular mainte nance preserves the appear ance

and attrac tive ness of the commu nity

• They are a very conve nient and effec tive form of

investment property.

So, when you come to buy or rent your first commu nity

title property, be armed with the knowl edge of how they

operate; be prepared to partic i pate in commu nal activ i ties,

includ ing gover nance; have a positive attitude to your new

environ ment; be caring for your fellow residents and enjoy

the great lifestyle that is on offer.■

Notes

1 Body Corpo rate and Commu nity Manage ment

(Standard Module) Regula tion 1997.

2 Body Corpo rate and Commu nity Manage ment

(Accom mo da tion Module) Regula tion 1997.

3 Body Corpo rate and Commu nity Manage ment

(Commer cial Module) Regula tion 1997.

4 Body Corpo rate and Commu nity Manage ment

(Small Schemes Module) Regula tion 1997.

5 The number of members on the commit tee

varies accord ing to the size of the scheme, but

the maximum number permit ted is 7 voting or

elected members.

6 This is effec tively the meeting at which the

devel oper hands control of the body corpo rate to

the unit owners.


CASE WATCH

Case

No.1

Being a ‘Sex bomb’ one would think that ‘It’s gain from associating their products with the

not unusual’ for people to want to revel in Tom Jones persona, often associated with

your image. However, back on Tom Jones’ reveling in the hoards of ‘Lusty ladies’.

‘Green, green grass of home’ he has applied However, this registration may result in an

to have his image registered as a trade mark, unusual predicament: as for a trademark to

to prevent the unauthorised use of his image remain registered it must continue to be used

throughout the European Community. as it appears on the Register.

Could this mean that the registration may Accordingly, when Tom starts to contemplate

prevent ‘Some other guy’ from performing his ‘Younger days’ it may well eventuate that

his songs, or even impersonating him in Tom Jones will have to ‘Do what you gotta do’

public venues? Probably not, but it is and regularly frequent his plastic surgeon to

enough ‘To make a big man cry’! maintain his appearance and therefore

“So!” I hear you utter ‘ What’s new pussycat’ registration, or at least apply for a new

– this has been done before by Noel trademark. Soon we may well see all those

Gallagher, lead singer of British band Oasis. unscrupulous traders who would use Tom’s

Unlike Noel Gallagher, Tom Jones has a trade image without his authority to gain from those

mark image that has already stood the test of fans who cry “Tom Jones, we ‘Can’t stop

time. From a performance in a ‘ Spanish loving you’”, ‘ Sitting on the dock of the bay’

harlem’ to ‘ Burning down the house’ at a gig as a forlorn figure with a trade mark

in London, every ‘ Tom, Dick and Harry’ infringement judgment in hand and hear them

wants to ‘ Move closer’ to the spotlight and exclaim ‘ If I only knew ’.

Case

No.2

With the QLS Young Lawyers Committee

Tom Jones, I got your number: CTM 3526142

Hint: If you’ve never heard of Tom Jones – ask your Mum!

Harry Potter and the half-read prints

Copyright law and unauthorised publication

By Mark Metzling

By Mark Metzling

There was a spell of controversy recently on 7 July 2005, the publishers and JK was also illegal to use the book as a doorstop

when the Supreme Court of British Rowling sought an injunction to prevent not until such time as reading of the book was

Columbia handed down an injunction only the communication of this confidential permitted.

regarding 14 Harry Potter and the Half- information, but also the actual reading of

Blood Prince books which had been the confidential information.

accidentally sold prior to the official book W h e n p u r c h a s i n g t h e b o o k , t h e

release date. Under copyright law, the "unsuspecting" purchasers appear to have

owner of the copyright has the right to obtained legal ownership of the paper that

prevent the unauthorised publication of made up the book but not the legal right to

their book. The decision is reportedly read the contents of the book.

unusual as the injunction prevented Whilst it is understandable that the publisher

unidentified and innocent purchasers of and author would have suffered a

the books from reading the books. commercial loss if the books were passed

Harry Potter and the Half-Blood Prince on from reader to reader, or if the plot were

was printed and shipped in sealed boxes disclosed prior to the release date, it is

to vendors around the world and the questionable what irrecoverable loss was to

vendors were bound by contract not to be suffered through the reading of the book

publish the book, nor make the copyright by the initial purchaser.

work available to the public, until 12:01 Certainly there was no lost sale to be

am GMT July 16, 2005. incurred. Unfortunately for these

When The Real Canadian Superstore, a purchasers the injunction also extended to

grocery store in British Columbia, preventing them from making any use of the

inadvertently sold 14 copies of the book book that they purchased, so presumably it


succession law succession law

SUCCESSION

LAW:

Re cent

amend ments to

Queensland‘s

Suc ces sion Act

by Judy Hayward

Judy Hayward is a senior associate with Murphy

Schmidt Solicitors. She is a QLS Accredited

Succession Law Specialist. Judy practises

exclusively in the area of Wills, estate

administration, estate planning and estate

litigation.

Significant changes to Queensland’s Suc ces -

sion Act were passed through Par lia ment on

14 Feb ru ary, 2006. The amend ments com -

menced on 1 April, 2006. Key amend ments in clude:

• Intro duc ing court authorised Wills to Queensland;

• Enabling the Supreme Court to author ise a minor to

make, alter or revoke a Will;

• Alter ing the formal execu tion require ments for a valid

Will;

• Amend ing the provi sions concern ing the voiding of

gifts to witness-benefi cia ries;

• Prescrib ing who is entitled to inspect and obtain a

copy of a deceased’s Will.

Court-authorised Wills 1

The amend ments intro duce to Queensland the concept

of a court-authorised Will for minors and for people who

46 The Verdict Vol. 2 2006

lack testa men tary capac ity. The United Kingdom, South

Austra lia, Victo ria, Tasma nia and North ern Terri tory

already have court-authorised Wills.

Court-authorised Wills offer a solution to minors and

those people who have lost capac ity through illness or

accident without having made a Will. This also offers

minors and people deemed to have lost capac ity to amend

their current Will or to take into account a change of

circum stances (e.g. additional children, a large windfall).

A recent case from South Austra lia highlights the impor -

tance of the proposed amend ments. 2 In that case a

six-year-old girl was injured in a motor vehicle accident

and ultimately received a substan tial damages award. Her

parents were separated at the time of the accident and

subse quently divorced. From the time of the accident the

girl had very little contact with her father. The girl, who was

38 years old at the time of the court hearing, never had

capac ity to make a Will. Pursu ant to the laws of intes tacy

both of her parents were equally entitled to her estate,

even though her mother gave up full-time employ ment to

become her primary carer. The court authorised a Will to

be made on her behalf giving all of her assets to her

mother.

Signing a Will 3

Previ ously a Will must have been signed or acknowl -

edged by the Will maker, at the foot of the Will and in the

presence of two witnesses. Both of whom must have been

present at the same time. In a number of cases, where

both witnesses were not present at the same time, the

courts held the Will to be invalid as it failed to comply with

the formal require ments.

The recent changes enable a Queensland court to treat a

document as a valid Will, even if it has not been validly

signed, provided the court is satis fied that the Will maker

intended the document to be their last Will. The require -

ment that the Will maker’s signa ture be positioned at the

foot of the Will has also been removed. This rule only

applies to those people who have made a Will and who die

after 1 April, 2006.

Witness beneficiaries 4

Until the recent amend ments, a benefi ciary (or a spouse

of a benefi ciary) who witnessed a Will was disqual i fied

from receiv ing their benefit under the Will. The amend -

ments now enable an inter ested witness to receive their

gift if all other benefi cia ries consent or if the court is satis -

fied that the Will maker knew and approved of the gift and

was not unduly influ enced in making it. This rule only

applies to those people who have made a Will and who die

after 1 April, 2006.

Vol. 2 2006 The Verdict 47


succession law

Obtain ing a copy of a Will 5

The amend ments intro duce a statu tory rule as to who

may inspect or obtain a copy of the deceased’s Will. The

follow ing people are now entitled to a copy of the

deceased’s Will:

1. Any one men tioned in the Will, or any ear lier Will, of the

de ceased, as ben e fi ciary or oth er wise;

2.The deceased’s spouse, child or par ent;

3. Any one who would be en ti tled to a share of the es tate

on in tes tacy (i.e. if the de ceased died with out a valid

Will);

4. Cred i tors;

5. Any one who is en ti tled to bring a fam ily pro vi sion ap -

pli ca tion;

6. The par ent or guard ian of an in fant men tioned in the

Will, en ti tled on in tes tacy, or en ti tled to bring a fam ily

pro vi sion ap pli ca tion against the estate.

Notes

1 See Div 4 subdi vi sion 2 & 3 Succes sion Act

1981.

2 Bryant v Blake [2004] SASC 369.)

3 s10 Succes sion Act 1981.

4 s11 & 12 Succes sion Act 1981 but note s10(10)

which states that a blind person is not eligi ble to

act as a witness.

5 s33Z Succes sion Act 1981.

48 The Verdict Vol. 2 2006

Why? Because

where there‘s a

will there‘s a

weigh

This rule applies regard less of when a person who has

made a Will dies.

Conclu sion

These changes imple ment the recom men da tions of the

National Commit tee for Uniform Succes sion Laws regard -

ing the reform of the law of Wills. The amend ments are

long overdue and are a much welcomed change to our

succes sion laws, bring ing Queensland laws in line with

some of the other states and terri to ries.■

★ Further

reading

and

information:

• Office

of Queensland

Parlia

mentary

Counsel

Visit


www.legislation.qld.gov.au/

Acts_SLs/

Acts_SL_B.htm.

This

site

contains

a copy

of

the

mos

current

version

of

the

Succes

sion

Law

Act.

• t

• Austlii

( Australasian

Legal

Infor

ma

tion

Insti

tute)

• Visit

– www.austlii.edu.au/

forms/

search1.

html?

• meta=

/au&method=

title&mask=

au/cases/sa/

SASC.

This

site

contains

a copy

of

the

above

mentioned

case

Bryant

v Blake

[ 2004]

SASC

369.

.

• Gilshenan

& Luton

Lawyers

• Visit

– www.gnl.

com.au/

index.

php?

action=

view&view

• = 6330&pid=

2487.

This

law

firm

website

contains

a

further

article

on the

new

succes

sion

laws.


Critic’s

Corner

Austra lian Legal

Insti tu tions (2nd Ed)

By R.A Hughes, G.W.G

Leane & A Clarke

Pub lisher: Thomson

The au thors of this

pub li ca tion have

aimed to pro vide

read ers with a com pre -

hen sive over view of the

Aus tra lian le gal sys tem

by ex am in ing the fun da -

men tal Aus tra lian le gal in sti tu tions and their op -

er a tion. This has been achieved, but to some

de gree at the cost of an ef fec tively laid out and

use able text. When us ing this book, the reader

must fil ter im por tant points out of some times ex -

ces sive de tail, laid out in a cramped man ner.

Despite its format limita tions, the content of this publi -

ca tion is no doubt useful, and compre hen sive, for the

needs of second ary and tertiary students alike. It looks

in detail at the funda men tal basis of Law; what Law is,

how it is devel oped and its philo soph i cal roots. The text

then covers the opera tion of Austra lian legal insti tu tions

and has useful chapters on the legal profes sion and

recent legal devel op ments. A number of useful learn ing

tools such as case studies and focus questions have

also been included. This text has definite value as a tool

for research and general under stand ing of the law and

Austra lian legal insti tu tions. Its format limita tions are, at

most, a minor incon ve nience, and are insig nif i cant

when compared to the infor ma tive content.■

Elder Law in Austra lia

By Rodney Lewis

Lexis Nexis Butterworths

El der Law in Aus tra lia

has been writ ten to

pro vide le gal and

health care pro fes sion als

with a con cise ref er ence

tool about the law as it ap -

plies to older Aus tra lians.

As it was writ ten for the

use of pro fes sion als, the con tent is quite ad -

vanced, but the text still re mains use able for

sec ond ary and ter tiary stu dents and ed u ca tors.

One useful feature of this text is that, follow ing the

preface, there is a list of Elder Law cases and legis la -

tion, as well as a refer ence to where that partic u lar

piece of law is discussed in the book. This enables

readers, with some knowl edge of the Law that they

wish to inves ti gate, to reach infor ma tion quickly.

In addition, the legis la tive listings are organ ised by

Act, which enables the reader to rapidly identify

sections relevant to them.The content itself begins at a

basic level, intro duc ing the spectrum of law to be

discussed and defin ing the concept of older Austra -

lians. It moves on to cover, with refer ence to cases and

legis la tion, the rights of older Austra lians and how

those rights are sometimes violated. The later part of

the book looks at finan cial issues, includ ing govern -

ment subsi dies for older Austra lians and making wills.

This text has relevance to a wide audience and would

make a valuable resource for anyone looking to learn

more about law as it applies to older Austra lians.

A Guide to Pre par ing and

Pre sent ing As sign ments

Ed ited by Charles Arcodia

So ci ety Press

This text is aimed pri -

mar ily at stu dents

ap proach ing ter tiary

stud ies for the first time,

but the top ics cov ered

main tain rel e vance to a

more ex pe ri enced ac a -

demic au di ence. As the ti tle sug gests, this

pub li ca tion cov ers the ba sics of ef fec tive as -

sign ment writ ing. This has been done by fo cus -

ing on three spe cific ar eas; re search and

writ ing, as sign ment for mat and prac ti cal mat -

ters such as time man age ment and ref er enc -

ing.

There is enough detail contained in this text to solve

the vast major ity of problems that students may

encoun ter when writing a tertiary level assign ment.

One limita tion however, may be that the section on

internet research tools is not as relevant now as when

the publi ca tion was released in 1999. Even consid er -

ing this, A Guide to Prepar ing and Present ing

Assign ments is a well presented, appro pri ately struc -

tured and very useful text for those wishing to develop

or further their assign ment writing skills.

Vol. 2 2006 The Verdict 49


PAMD Act PAMD Act

Prop erty Agents & Mo tor Deal ers Act – an up date

In the last issue of The Verdict we

featured part one of Josh Trevino’s

article examin ing the Property

Agents & Motor Dealers Act. Don’t

miss the final instal ment of this

informative article!

PAMDA pro ceed ings

50 The Verdict Vol. 2 2006

by Josh Trevino

Joshua is a barris ter in private

practice at the Cairns Bar. Prior to

his admission Joshua spent two

years as a judge’s associ ate in

2003 as associ ate to the Hon.

Justice John Jerrard, Qld Court of

Appeal.

Marke teers and prohib ited conduct

It is signif i cant to note that the term “marke teer” is

defined very broadly in the Act and specif i cally, that a

lawyer can fall within the defini tion:

“Marke teer- (a) means a person directly or indirectly

involved in any way in the sale, or promo tion of the sale,

or provi sion of a service in connec tion with the sale, of

residen tial property, alone, or with others under a formal

or infor mal arrange ment, and whether or not-

• (i) the person derives a direct or indirect benefit from

the sale, or promo tion of the sale, or provi sion of a

service in connec tion with the sale, of the property; or

(ii) the way the property is marketed includes offer ing

poten tial buyers of the property induce ments

intended to encour age them to purchase the

property; or

• (iii) any of the persons is licensed or is a regis tered

employee; or

• (iv) the sale, or promo tion of the sale, or provi sion of

a service in connec tion with the sale, of property is,

or is part of, a business the person ordinarily

conducts; and

(b) in cludes a person who-

• (i) causes or arranges for the sale, promo tion of the

sale, or provi sion of a service in connec tion with the

sale, of residen tial property; or

• (ii) provides advisory, manage ment, legal,

account ing, admin is tra tive or other services in

connec tion with the sale, or for promot ing the sale,

or for provid ing a service in connec tion with the sale,

of residen tial property.”

The Act prohib its the follow ing conduct by marke teers:

• mislead ing conduct, s573A;

• uncon scio na ble conduct, s 573B and;

• false repre sen ta tions and other mislead ing

conduct by marke teers in relation to residen tial

property, s573C.

Both s573B and s573C set out an exten sive list of

matters pertain ing to the sale of residen tial property that

can be taken into account in deter min ing whether a

marke teer has engaged in uncon scio na ble or false or

mislead ing conduct in relation to residen tial property.

Section 573D provides that s573A, s573B and s573C

are in addition to, and do not limit, any other law, written

or unwrit ten, about conduct mentioned in them and

apply to conduct, happen ing in or outside Queensland,

relat ing to residen tial property in Queensland.

Section 574 provides that a licensee under the Act or a

regis tered employee of a licensee must not make false

rep re sen ta tions about prop erty.

The Act provides two ways in which proceed ings can

be taken against a marke teer whose conduct has

caused a person finan cial loss. Such an affected person

could, if the marke teer was a licensee or a licensee’s

employee, make a claim for compen sa tion against the

Claim Fund set up by the Act. Alter na tively, the Chief

Execu tive of the Depart ment of Fair Trading could

commence a marketeering proceed ing against the

marke teer seeking an order, that the marke teer pay an

amount of compen sa tion to the affected person.

The Claim Fund

The Act estab lishes a Claim Fund for meeting motor

vehicle claims and claims relat ing to residen tial sales of

property. A claim against the fund is currently limited to

$200,000 and the total amount that may be paid from

the fund because of, or arising out of, a wrong by a

single person is $2,000,000.00. 11

Section 470 provides that a person may make a claim

against the fund if the person suffers finan cial loss

Part

two

because of the contra ven tion of, amongst other provi -

sions of the Act, s573A, s573B, s573C and s574;

provided that the contra ven tion is by a relevant person.

Section 469 provides that a relevant person is a

licensee; a licensee’s employee or a person having

charge or control, or appar ent charge or control, of a

licensee’s regis tered business.

The right to make a claim against the fund in relation to

a contra ven tion of s573A to s573C (a marketeering

contra ven tion) is strictly limited by the Act:

(a) A per son can only make a claim against the fund

re lat ing to a marketeering con tra ven tion if the claim

is made in re la tion to a prin ci pal place of res i dence:

s471(2)(h);

(b) Such a claim is lim ited to fi nan cial loss that is a

real ised cap i tal loss: s471A; 12

(c) A claim ant cannot recover more than $35,000 from

the fund: s492(3).

Proce dure for making claim

A claim against the fund must be made to the Chief

Execu tive of the Depart ment of Fair Trading in the

approved form, 13 and within the time limits set out by

s472 and 472A. The Chief Execu tive then gives notice of

the claim to the person or persons whose actions are

alleged to have given rise to the claim – the respon -

dent. 14 The respon dent may attempt to settle the claim. 15

If the claim does not settle within 28 days after the claim

notice is given, the claim ant may give written notice that

the claim ant wants to proceed with the claim. 16 The

Chief Execu tive can at this point, direct that an inspec tor

be appointed to inves ti gate the claim; such an inspec tor

prepares a report that is provided to the Chief Execu -

tive. 17

The Act confers exten sive powers on inspec tors 18 in

order to inves ti gate claims and contra ven tions of the Act

includ ing the power to require a licensee or marke teer to

produce relevant documents. 19

If the claim is for less than $5000 (a minor claim), the

Chief Execu tive can decide the claim. 20 Claims other

than minor claims are referred to the Commer cial

Consumer Tribu nal (“the tribu nal”) for hearing. 21 The

Chief Execu tive must provide a copy of any inspec tors’

report that has been prepared in relation to the claim to

the tribu nal. 22

The process of decid ing a claim against the fund that

the tribu nal must follow is set out in s488:

Vol. 2 2006 The Verdict 51


PAMD Act

“488 De cid ing claims other than minor claims

(1) The tribu nal may allow the claim, wholly or partly,

or reject the claim.

(2) However, the tribu nal may allow the claim only if

satis fied, on the balance of proba bil i ties, that- (a) an

event mentioned in section 470(1) happened; and (b)

the claim ant suffered finan cial loss because of the

happen ing of the event.

(3) If the tribu nal allows the claim, wholly or partly,

the tribu nal must:

• (a) take into account-

• (i) any amount the claim ant might reason ably

have received or recov ered if not for the

claim ant’s neglect or default; and

• (ii) any amount ordered to be paid to the

claim ant as compen sa tion under section

530A, 572D or

• (b) decide the amount of the claim ant’s finan cial

loss; and

• (c) name the person who is liable for the

claim ant’s finan cial loss.”

The orders the tribu nal may make on a claim

hearing are set out in s530:

“530 Orders tri bu nal may make on claim hearing

The tri bu nal may make the fol low ing orders in re la tion

to a claim against the fund-

• (a) an order allow ing the claim, wholly or partly, or

reject ing the claim;

• (b) an order stating that a named person is liable

for a claim ant’s finan cial loss and the amount of

the loss;

• (c) an order about recov ery of an amount payable

in relation to a claim;

• (d) an order that no amount is recov er able in

relation to a claim.”

A person named as the person liable for a claim -

ant’s finan cial loss is liable to reimburse the fund to

the extent of the amount paid to the claim ant. 23

The tribu nal is not bound by the rules of evidence

and may inform itself in any way that it consid ers

appro pri ate. A person may only be repre sented by a

lawyer at a hearing if the tribunal consid ers that it is

appro pri ate in the circum stances. 24 A party wishing to

be legally repre sented at the hearing should seek to

obtain the agree ment of the other party as early as

possi ble and, if not obtained, should seek a direc tion

at a Direc tions Hearing. 25

Marke teer proceed ings

The Act provides that the Chief Execu tive may

commence a marke teer proceed ing in the tribu nal or

apply to the District Court for an order that the marke -

teer pay a money penalty to the State or compen sa tion

to a person who suffered finan cial loss because of the

contra ven tion of a marketeering provi sion. I would

suggest that the decision of the Chief Execu tive as to

what avenue to take in a partic u lar circum stance

would partly depend on the nature of the loss caused

to the person affected by the contra ven tion as the

tribu nal’s power to award compen sa tion is limited to

52 The Verdict Vol. 2 2006

an amount no more than $50,000. 26

Tribu nal proceed ing

If the Chief Execu tive believes either that a marke teer:

• (a) has contra vened sections 573A – 573C;

• (b) is likely to or proposes to engage in conduct

that does contra vene sections 573A – 573C;

Or the marke teer is reason ably suspected of

anything mentioned above at (a) or (b), the Chief

Execu tive may commence a marke teer proceed ing

by filing a complaint with the Tribu nal Regis trar. 27

The orders the tribu nal may make on a marke teer

proceed ing are set out in s530A:

• “530A Orders tribu nal may make in a marke teer

proceed ing

• (1) This section applies if, in a marke teer

proceed ing, the tribu nal is satis fied a marke teer

has contra vened section 573A, 573B or 573C.

• (2) The tribu nal may make one or more of the

follow ing orders against the marke teer-

• (a) an order that the person pay to the chief

execu tive, within the time stated in the order, an

amount of not more than the money value of-

• (i) for an individ ual – 200 penalty units; or

• (ii) for a corpo ra tion – 1000 penalty units;

• (b) an order that the person’s licence or

regis tra tion certif i cate, if any, be suspended for

the period stated in the order;

• (c) an order-

• (i) if the person is the holder of a licence or

regis tra tion certif i cate when the order is

made-that the licence or regis tra tion certif i cate

be cancelled; or

• (ii) whether or not the person is the holder of a

licence or regis tra tion certif i cate when the

order is made-that the person be disqual i fied,

for the period stated in the order, of not more

than five years, from holding a licence or

regis tra tion certif i cate;

• (d) an order that an individ ual be disqual i fied, for

the period stated in the order, of not more than

five years, from being an execu tive officer of any

corpo ra tion that holds a licence;

• (e) an order impos ing condi tions on, or amend ing

or revok ing the condi tions of, the person’s licence

or regis tra tion certif i cate, if any;

• (f) an order prohib it ing a person from being

involved in any way in the business of the sale, or

promo tion of the sale, or provi sion of a service in

connec tion with the sale, of residen tial property in

Queensland for the period stated in the order, of

not more than five years;

• (g) an order restrict ing the way the person

conducts the business of the sale, or promo tion of

the sale, or provi sion of a service in connec tion

with the sale, of residen tial property in

Queensland for the period stated in the order, of

not more than five years;

• (h) an order to pay to a person who has suffered

• finan cial loss, as compen sa tion, an amount,

decided by the tribu nal, up to the limit of a


• Mag is trates Court’s civil ju ris dic tion;

• (i) another order the tribu nal consid ers appropriate

to ensure the person complies with this Act.

• (3) However, the tribu nal may make an order

under subsec tion (2)(a) or (h) against a person

who is not licensed or a regis tered employee only

on the basis of evidence, submis sions and other

infor ma tion received in accor dance with the

eviden tiary law and practice appli ca ble to a civil

proceed ing in a Magis trates Court.

• (4) If- (a) the tribu nal proposes to order a

marke teer to pay an amount to the chief execu tive

under subsec tion (2)(a)(i) and compen sa tion

under subsec tion (2)(h); and (b) the marke teer

does not have enough finan cial resources to pay

both; the tribu nal must prefer to make an order for

compen sa tion.

• (5) If- (a) the tribu nal orders a corpo ra tion to pay

an amount to the chief execu tive under subsec tion

(2)(a)(ii) or compen sa tion under subsec tion (2)(h);

and (b) the corpo ra tion does not have enough

finan cial resources to pay either or both; the

execu tive officers of the corpo ra tion are jointly and

sever ally liable to pay any amount not paid by the

corporation.

• (6) It is a defence to a liabil ity under subsec tion (5)

for an execu tive officer to prove that-

• (a) if the officer was in a position to influ ence

the conduct of the corpo ra tion in relation to

the conduct in question-the officer took all

reason able steps to ensure the corpo ra tion

did not contra vene section 573A, 573B or

573C; or

• (b) the officer was not in a position to

influ ence the conduct of the corpo ra tion in

relation to the conduct in question.

• (7) For subsec tion (6)(a), it is suffi cient for the

execu tive officer to prove that the act or omission

that was the conduct in question was done or

made without the officer’s knowl edge despite the

officer having taken all reason able steps to ensure

the corpo ra tion did not contra vene section 573A,

573B or 573C.

So far, the Office of Fair Trading has claimed only

one marke teer scalp through a tribu nal proceeding:

Gold Coast real estate agent and REIQ member,

Philip Hall; 28 see Chief Execu tive DTRFT v Hall [2004]

CCT XO13-03.

In that decision, the tribu nal ruled that in decid ing

whether a marke teer had contra vened s573A, s573B

or s573C, the tribu nal was to apply the Briginshaw

test; 29 i.e. to deter mine whether a contra ven tion

occurred on the balance of proba bil i ties but having

regard to the gravity of the conse quences flowing

from that finding. 30

District Court proceed ings

If a person contra venes s573A, s573B or s573C, the

Chief Execu tive may apply to the District Court for an

order requir ing the person to: 31

(a) Pay to the state a money pen alty ; or

PAMD Act

(b)Pay a person who suffered finan cial loss

because of the contra ven tion an amount as

compen sa tion.

The orders the District Court may make on such an

appli ca tion are set out at s 572D:

• “572D Orders District Court may make

• (1) This section applies if the court is satis fied the

person has contra vened section 573A, 573B or

573C.

• (2) The court may order the person to pay to the

State, as a money penalty, an amount up to the

limit of the court’s civil juris dic tion for each

contra ven tion.

• (3) If satis fied another person has suffered

finan cial loss because of the contra ven tion, the

court may order the person to pay to the other

person, as compen sa tion, an amount, decided by

the court, up to the limit of the court’s civil

juris dic tion.

• (4) If-

• (a) the court proposes to order an individ ual to

pay a money penalty under subsec tion (2) and

compen sa tion under subsec tion (3); and

• (b) the person does not have the resources to

pay both; the court must prefer to make an

order for compen sa tion.

• (5) If-

• (a) the court orders a corpo ra tion to pay a

money penalty under subsec tion (2) or

compen sa tion under subsec tion (3); and

• (b) the corpo ra tion does not have the

resources to pay either or both; the execu tive

officers of the corpo ra tion are jointly and

sever ally liable to pay any amount not paid by

the corpo ra tion.

• (6) It is a defence to a liabil ity under subsec tion

(5) for an execu tive officer to prove that-

• (a) if the officer was in a position to influ ence

the conduct of the corpo ra tion in relation to

the conduct in question-the officer took all

reason able steps to ensure the corpo ra tion

did not contra vene section 573A, 573B or

573C; or

• (b) the officer was not in a position to

influ ence the conduct of the corpo ra tion in

relation to the conduct in question.

• (7) For subsec tion (6)(a), it is suffi cient for the

execu tive officer to prove that the act or omission

that was the conduct in question was done or

made without the officer’s knowl edge despite the

officer having taken all reason able steps to ensure

the corpo ra tion did not contra vene section 573A,

573B or 573C.”

The District Court also has power to make orders:

(a) Pre serv ing money or other prop erty held by a

mar keter or any as so ci ate of a mar ke teer;32

(b) Grant ing an injunc tion to restrain a contra ven -

tion or attempted contra ven tion of the Act or a

Code of Conduct; 33

(c) En forc ing un der tak ings en tered into by a per son

with the Chief Ex ec u tive. 34

Vol. 2 2006 The Verdict 53


PAMD Act

Conclu sion

Sections 366 and 367 of the Act offer poten tial

buyers of residen tial property a signif i cant escape

hatch that can be utilised with impunity where techni -

cal breaches of the require ments of s 366 have been

made by the seller or seller’s agent.

It goes without saying that lawyers should be alive

to the possi ble opera tion of s367 in every contract for

the sale of residen tial property. Given the wide defini -

tion of residen tial property in the Act, the benefit of

s367 is conferred not only on a purchaser in a

consumer trans ac tion but also to purchas ers

involved in commer cial convey ances of land.

Practi tio ners should also be alive to the possi ble

appli ca tion of the PAMDA proceed ings surveyed

above in the context of commer cial disputes concern -

ing contracts for the sale of residen tial property. ■

★ Further

reading

and

information:

• Property

Agents

& Motor

Dealers

Act

2000

www.legislation.qld.gov.au/

LEGISLTN/CURREN




T/P/PropAgMoDA00.pdf.

Property

Sales

Associ

ation

Qld

www.psaq.

org.

au/07_downloads.

asp?

pid=

7

Hunt

& Hunt

Lawyers

Article

www.hunthunt.

com.au/

hunthunt/

asp/

news_detai

l. asp?

NewsID=

273

Findlaw

54 The Verdict Vol. 2 2006

Property

Resources

www.findlaw.com.au/

direc

tory/

default_id44_sit

eLE.htm

news

Notes

11 s492; r 55 Property Agents and Motor

Dealers Regula tion 2001

12 Section 488B provides that the realised

finan cial loss in relation to a residen tial

property is the differ ence between the

contract price or value of the property paid by

the claim ant and the contract price or value

for the sale of the property by the claim ant

(the on sale)

13 s473 and s473A

14 s474

15 s474(3)(b)

16 s476(1)

17 s477

18 See Chapter 15 – Enforce ment, Part 1 &

Part 2

19 s556 and s556A

20 s476 (2); s478

21 s476(3); s485

22 s477(3) 23 s490

24 s76 Commer cial and Consumer Tribu nal

Act 2003 (Qld)

25 For further infor ma tion concern ing the

proce dure followed by the Tribu nal with

respect to claims against the fund see the

Property Agents and Motor Dealers List

Guide lines on the Tribu nal’s website:

www.tribu nals.qld.gov.au/PAMD/pamdGuideli

Urgent

protection

needed

against

unfair

tenancy

blacklists,

privacy

breaches

and

fraud

Queensland

and

Tasma

nia

have

intro

duced

uniform

defama

tion

laws

into

their

Parlia

ments

following

an

agreement

by the

states

for uniform

defama

tion

laws.

The

new

approach

encour

ages

parties

to resolve

disputes

out

of

court,

through

an ‘offer

of

amends’

process.

Damages

for

non-economic

loss

have

been

capped

at

$ 250,000,

although

courts

will

continue

to

be able

to

award

full recov

ery

for

economic

loss.

Other

features

of the legisla

tion

include

prevent

ing

corpora

tions

( other

than

non-for-profit

organi

sa

tions

or small

businesses)

from

suing

for defamation,

reducing

the time

limit

for

bring

ing

a defama

tion

action

from six years

to one

year,

and

limit

ing

juries

to deter-

min

ing

whether

a person

has

been

defamed,

leaving

the awarding

of damages

to judges.

Queensland’s

Attor

ney-General

and

Minis

ter

for

Justice,

Linda

Lavarch,

described

the

bill

as

“ a triumph

for State

and

Terri

tory

cooper

a tion

and

common

sense.”

Mrs

Lavarch

said

the new

laws

replaced

legisla

tion

that

had

been

virtu

ally

unaltered

since

it was

adopted

in

1889.

The

states

and

terri

tories

have

agreed

to enter

an

inter

gov

ern

mental

agreement

to maintain

uniformity

in

making

futorms.

South

Austra

lia,

Victoria

and

Western

Austra

lia have

already

tabled

tls

in their

parlia

ments.

The

new

laws

should

come

into

effect

across

the country

on 1 January

2006.

Findlaw

News


Communication

Part 2 – The finer points of drafting

T he

pro cess of com pos ing a well struc -

tured and ef fec tive doc u ment in volves a

num ber of cru cial steps. The first edi tion

in this se ries (printed in the Feb ru ary Ver dict)

looked at writ ing doc u ments us ing plain and

clear lan guage. This in stall ment will cover the

es sen tials of draft ing as they ap ply to writ ing

vir tu ally any type of pa per.

The impor tance of effec tive draft ing cannot be

under stated. Draft ing enables the writer to struc ture

arguments, empha sise impor tant points and essen -

tially optimize the “flow” of the document. In addition

to this, draft ing lets the author analyse and restruc -

ture (where neces sary) sentences and paragraphs to

ensure correct grammar and word usage. While there

are many facets of draft ing, this paper will analyse

those most crucial to the writing process.

communication breakdown

break down

Length

The length of a document is very impor tant. A short,

precise document will more readily convey your

message, so where possi ble, try to be succinct. It has

been stated that:

“Many legal documents are unnec es sar ily lengthy,

overwrit ten, self conscious and repeti tious. They

consist of lengthy sentences and involved sentence

construc tion. They are poorly struc tured and poorly

designed. They suffer from elabo rate and often

unnec es sary cross-refer enc ing. They retain archaic

phrases. They use techni cal terms and foreign words

and phrases even when English equiv a lents are

readily avail able. They are unintel li gi ble to the

ordinary reader and barely intel li gi ble to many

lawyers”. 1

To this end, it is clear that the wording of a

document must be pitched at a level appro pri ate to

Vol. 2 2006 The Verdict 55


communication breakdown

the target audience - for if a lawyer experi ences diffi -

culty inter pret ing a legal document, what chance has

the layman? There fore, as a rule of thumb, points

should be made with the least number of words

possi ble, within reason and without sacri fic ing the

fluency of the document.

Techni cal & foreign language

A common problem in draft ing is the use of techni -

cal and foreign language. Techni cal or indus try

specific language can be very daunt ing for your

audience. Although the use of techni cal jargon is

sometimes unavoid able, this is not an excuse to

become lazy in draft ing. A way of combat ing this

confu sion is by giving a defini tion or clari fy ing the

term in a footnote or endnote.

Foreign words and phrases can also cause your

audience confu sion. The English language has now

incor po rated many foreign words and, despite this, a

large propor tion of them are not under stood by the

general public. The legal indus try, for instance, uses

a minefield of Latin terms and phrases. In his book on

legal writing, Rylance 2 aptly states;

“...the use of Latin and Law French by lawyers may

have histor i cal use but it has no justi fi ca tion in

modern practice. At best it is an affec ta tion turned to

habit, at worst, an attempt to intim i date the reader.

These foreign words and phrases have English

equiv a lents which are every bit as good and more

likely to be under stood”. Consid er ing this, where it is

possi ble an English equiv a lent should always be

used, rather than a foreign word or phrase.

Accepted word usage

It is impor tant when choos ing words or phrases to

keep in mind their gener ally accepted defini tion, and

the target audience your work will reach. The defini -

tion of a word in the English language in one country

can mean something very differ ent in another.

General terms such as the all-Austra lian ‘schoo ner’ of

beer can cause much confu sion. A schoo ner in the

United Kingdom is a sailing boat.

Another example would be the use of the term

“traffic lights” in a document target ing a South African

audience, where traffic lights are commonly referred

to as “robots”.

Where possi ble, it is also advis able to avoid collo -

qui al isms if you wish your work to have univer sal

appeal. For example, rather than refer ring to a small

aluminium boat as a “tinnie”, its formal name should

be used. To avoid causing confu sion or offence to

any reader, it is always best to research your target

audience and tailor your wording accord ingly.

Non-discrim i na tory and gender neutral

language

Gener ally, discrim i na tory language can be

construed as language that expresses a preju dice

against an individ ual for some factor that is out of

their control. The danger of discrim i na tory language

is that it can be offen sive not only to your audience

but also to the larger commu nity.

56 The Verdict Vol. 2 2006

Draft ing without discrim i na tory language is not

merely about being polit i cally correct. Language can,

and does, affect the way in which the audience

reacts. Good draft ing will avoid describ ing people

through stereo types – it is not neces sary to point out

differ ences that are not relevant to the subject of your

document.

One of the most common forms of discrim i na tory

language relates to gender. To write in a manner that

is gender-neutral involves the removal of terms such

as “he”, “she”, “him” or “her”. It is easy to find

examples of where this is not done well. Papers on

crime often catego rise the offender as “he”, where

they should actually use a neutral terms such as “the

offender”.

Remem ber too, it is impor tant to be sensi tive to

what is socially accept able at the time of writing.

What is appro pri ate can, and does, change over

time. To illus trate, in times past terms were used that

are now consid ered both derog a tory and offen sive.

Dr Matthew Conaglen gives an excel lent example of

this when he states: “...the accept able term for

African Ameri cans has ranged from black through

Negro, Afro-Ameri can and coloured, to African

Ameri can or people of colour”. 3 Thus, it is vital to

remain up to date with your knowl edge of socially

accept able terms of refer ence if you do not wish to

offend.

Definite direc tions

Does your document include instruc tions or direc -

tions? Do you require your reader to accom plish

something by a given date or time? A writer must

always be vigilant in their expla na tions and direc -

tions. Your reader should never be left in any doubt

as to how, or when, they are to act.

When giving direc tions or explain ing compli cated

issues it can also be very diffi cult to be clear using just

words. This is where the use of visual aids such as

graphs, tables and maps may be used to best effect.

Graphs and charts can make a new subject for your

audience clearer and easier to under stand. They can

even take away the need for complex descrip tions

and expla na tions. For example, the use of a visual

aide in the form of a map will always the easiest way

to explain a geograph ical location or how to get from

point A to point B.

Dates and times

Dates and times are both issues to be very careful

with. The customs and conven tions of differ ent

locations should be kept in mind. When writing for an

inter state or overseas audience, remem ber to

consider business days, public holidays and time

zones. For example all states on the east coast of

Austra lia are in the same time zone. This is called the

Austra lia Eastern Standard Time. However,

Queensland does not currently have daylight

savings. This means Queensland is one hour behind

for several months each year. Keeping this in mind an

example of a clearly written date is; 5.00pm

(Brisbane, Qld) on the 14 Novem ber 2006.


Attach ments

Sched ules and attach ments allow for greater clari fi ca -

tion of the content of a document and can be an integral

part of a success ful document. Attach ments allow the

audience to concen trate on the main point or issue,

whilst having further clari fi ca tion immedi ately avail able

to them.

So what is the differ ence between a sched ule, appen -

dix and annex ure? Some experts draw distinc tions

between the three saying that they are all for differ ent

purposes. Others say that there is little use in making

any distinc tion. Gener ally it seems to be accepted that

a sched ule is for short detail that forms part of the

overall agree ment or document. An appen dix is meant

for further documen ta tion and an annex ure should be

reserved for those more cumber some attach ments

such as large print outs, maps and plans.

Those who see no need for the distinc tion often argue

that some documents can have all three groups of

attach ments. In this case it would only increase confu -

sion if the audience were unaware of the distinc tions. It

is much simpler to select one type of attach ment, and

stick with it. For a straight for ward approach, number

your attach ments in the order they appear.

The location of attach ments within the document

depends on their content. Most attach ments contain

other documents, letters, print outs, lists, maps and

plans. The appro pri ate place for this sort of attach ment

is at the end of the document. Remem ber to place each

attach ment in the order it is mentioned in the main

document.

Odd

legal

facts

Comb-overs

are patent-protected

Have

you

ever

cringed

when,

with

a gust

of

unpredicted

wind,

someone

famil

iar

to you

becomes

exposed

as a perpe

tra

tor

of

the

dreaded

comb-over?

This

technique

for

disguis

ing

baldness

is adopted

worldwide,

but

users

might

be

interested

to know

that

it is actually

patent-protected.

US

patent

number

4,022,227

( May

10,

1977)

protects:

“A method

for

styling

hair

to

cover

bald

areas

using

only

the

individual’s

own

hair,

compris

ing

separating

the hair

on

the

head

into

several

substantially

equal

sections,

taking

the

hair

on one

section

and

placing

it

over

the

bald

area,

then

taking

the

hair

on

another

section

and

placing

it over

the first

section,

and

finally

taking

the

hair

on the

remaining

sections

and

placing

it over

the

other

sections

whereby

the

bald

area

will

be completely

covered1

.”

Just

in case

anyone

reading

this

is fretting

that

someone

they

know

is

infring

ing

on

a US patent,

the

regis

tra

tion

goes

on

to describe

the exact

proce

dure:

“The

method

here

disclosed

uses

the remain

ing

hair

around

the

bald

area

on a person’s

head.

The

hair

in

this

area

must

be extra

long

to cover

the

bald

A table of contents can also be consid ered an

attach ment. It is not part of the main body of the

document, but an essen tial tool to summa rise the

contents of a large document and can greatly assist

the reader in quickly access ing specific sections of

a large document. ■

★ Next issue:

Part 3 – Prepar ing to print

In the last part of this three-part article we will look

at the finer points of editing your document. Atten -

tion will be given to sentence and paragraph

struc ture and the final layout before you send your

document to its intended reader.

Notes

communication breakdown

1 Plain Eng lish and the Law, Vic to rian Law

Re form Com mis sion, Re port No 9, FD

Atkinson Gov ern ment Printer, Mel bourne,

1987.

2 P Rylance, Legal Writing & Draft ing,

Blackstone Press Ltd, London, 1994.

3 MDJ Conaglen, Justi fy ing Polit i cally

Correct Language: A Fresh Start (1998) 9

PLR 183.

area.

Gener

ally

the hair

should

be about

three

to four

inches

long.

To use

the

method

of this

invention,

the

hair

around

the bald

area

is divided

into

equal

portions,

gener

ally

three

such

sections

will

be used.

The

sections

of

hair

used

by this

method

gener

ally

will

be

to

include

equal

sections

on each

side

of

the

head

and

a third

section

on

the

back

of the head.

The

hair

to be used

as covering

is brushed

over

the

bald

area

in alter

nat

ing

folds

using

hair

spray

to hold

the hair

in

place.

The

upper

most

section

can

be

styled

to the

person’s

personal

taste1

.“

If nothing

else,

this

serves

as a timely

reminder

of

how

easy

it can

be to protect

an idea.

The

next

time

you

decide

to style

your

hair

or

tie

your

shoes

a

certain

way,

you

might

want

to check

to make

sure

you

are

not

break

ing

the

law!

1 Tuesday

27 June

2006,

in USPTO

full-text

and

image

database,

www.uspto.gov/#

, in URL

netacgi/nph-Parser?

Sect1=

PTO1&

Sect2=

HITOFF&d=

PALL&p=1&u=

%2Fnetahtml%

2FPTO%

2Fsrc

hnum.htm&r=1&f=

G&l=50&s1=

4,022,

227.PN.&OS=

PN/ 4,022,

2

27&RS=

PN/ 4,022,

227

Vol. 2 2006 The Verdict 57


web weaving

WEB WEAVING

As gov ern ment and leg is la tion af fect ev ery as -

pect of our daily lives I thought this is sue I

would look at a website rel e vant to ev ery

Queens lander. The Queensland Par lia ment

website is packed full of use ful in for ma tion. Few

Queens landers real ise how ac ces si ble in for ma -

tion from par lia ment ac tu ally is. This site con tains

information such as cur rent and past par lia men -

tary de bates, leg is la tion, and fact sheets and it

even pro vides the op por tu nity to have your say on

is sues in Queensland.

58 The Verdict Vol. 2 2006

by Rebekah House

Rebekah House is the Queensland

Law Society‘s Schools and

Com mu nity Ed u ca tion Supervisor

The Queensland Par lia ment website

www.par lia ment.qld.gov.au

Having your say

The Queensland Parlia ment website always has oppor -

tu ni ties for the general public to comment on current

polit i cal and justice issues. Always found on the home

page are links to pages with infor ma tion on issues as well

as how every Queens lander can contrib ute their own

comments and ideas for the future of the state. One of the

current discus sions is the ‘inquiry into the acces si bil ity of

admin is tra tive justice’. The website also gives the general

public the oppor tu nity to start and sign a petition. A


popular current petition is on the topic of daylight savings.

The link for this section is also to be found on the right

hand side of the home page or in the legis la tive assembly

section.

Legis la tive assem bly

Did you know that by 1878, the Queensland Parlia ment

was the first in the world to have a daily official report of the

debates without any form of govern ment censor ship? The

official report of the debates and proceed ings of Parlia -

ment and its commit tees is called Hansard. Queensland’s

Hansard is published daily when parlia ment is sitting and

is avail able on the Internet.

So what else is in this section? Well, you can find listings

of all members and their contact details, copies of

speeches they have made, links to legis la tion from Bill

form through to enacted legis la tion. You can even access

the Parlia men tary Proce dures Handbooks and the code of

ethical standards.

Histor i cal infor ma tion

The Histor i cal section of the website contains electronic

databases of old Hansards back to 1990 and questions on

notice back to 1995. It also contains the impor tant history

of the Queensland Parlia ment House, Parlia ments officer

holders and members since 1860 and all of our past gover -

nors. You will also find infor ma tion on past elections and

refer en dums even includ ing the dates they were held right

back to the first general election in April and May of 1860.

web weaving

Students and young people

Wonder ing who's who in parlia ment? Where do the

members of parlia ment sit? This section of the website has

a photo guide and seating plan in the ‘Infor ma tion on

Parlia ment’ page. In this section you will also find three

excel lent books, Written in three levels, junior, second ary

and tertiary, these books explain the levels, roles and

processes of parlia ment. At 44 pages is very detailed and

clear. There are also the many fact sheets on parlia ment

again written for the three levels. These include fact sheets

on the ‘role of the premier’, ‘role of an MP’, ‘making a law’,

‘ques tion time and many more. This and the histor i cal

section are great for a school age student doing a project

on parliament.

For educa tors

In the schools section teach ers can find a highly useful

resource called ‘class room activ i ties’. Designed to compli -

ment school sylla bus this resource gives an outstand ing

array of work sheets, role-play activ i ties, fact sheets and

flow charts to brighten up any class room activ ity when

teach ing your students about the roles and processes of

parlia ment. Again they have put careful thought and

prepa ra tion into each section with activ i ties suitable for

specific and all age groups. All of these resources are

made avail able in PDF so access is quick and easy.

Don’t forget the excel lent schools tour page found under

the schools section. This page gives avail able tours and

dates as well as the oppor tu nity to book you student tours

online. You can even check date and time avail abil ity.

The educa tion section

For any Queens lander wanting to learn about the origins

or Queensland’s parlia ment, it’s consti tu tion, it’s electoral

system and it’s general systems and opera tions this

section is an excel lent section to start with. Once you have

gone through this sections you will have a better under -

stand ing of the Queensland Parlia ment website, making it

even easier to recog nize where infor ma tion will be located.

Publi ca tions

The documents in this section can all be found in the

individ ual sections such as the above legis la tive assem bly

section or the Educa tional section. I have to admit that the

research briefs in this section are some of my favour ite

Vol. 2 2006 The Verdict 59


web weaving

publi ca tions on this website. Nothing beats them for a

clearer under stand ing of a subject matter they cover in

each. There are currently briefs on the Murri Court system,

major ity jury verdicts in crimi nal trials and indus trial

manslaugh ter and many more. Like most things on this

website they are set out in order by year of publi ca tion. As

is the Hansard collec tion. If you are a student research ing

a legal topic it is well worth you while looking at what has

been produced both current and histor i cal and placed in

this section.

Sitemap & search ing

Unfor tu nately the site doesn’t have an overall search

engine, although it does have separate search engines for

the table office collec tions and another for the Hansard

collec tions. Each search engine is very easy to use with

three easy steps. Results are also very easy to sort

through. The only other search able database I could find

was the Members’ speeches. Again sorted into years and

using the three easy step search system. It is a pity that

these databases can’t be searched all at once but having

said each is very easy to use.

The sitemap is a good one. Laid out as a clear contents

page, it takes you through section by section as they

appear in the drop down menus across the top of each

page. Although I doubt you will need to use this contents

page because you’ve lost your way on the website, it is a

Court

Four-year-old

on jury

duty

60 The Verdict Vol. 2 2006

news

good contents indica tor for those who prefer to jump

directly to what there after instead of surfer through a

website.

Useful links

Well worth a quick mention. If you are having trouble

finding parlia ments around the world and in Austra lia this

page has the links you need. It also has links for infor ma -

tion on elections, govern ments and politics, new media

sites, legis la tion sites and other vital library sites. Not a

long list but a good one.

Overall opinion

I have to say this is a very easy site to use. With colour

coded sections and the ever-present left hand naviga tion

and drop down menus it is very hard to get lost. There are

always multi ple paths to the same infor ma tion allow ing for

differ ent types of web users from the novice all the way

through to the pro.

One final thing...every document on this site is in PDF so

all documents look smart and are easily accessed. Don’t

forget if you’re having trouble opening a PDF it may be

because you’re using a differ ent version of Adobe. It’s an

easily solved problem. Right click on the link and chose

‘save target as’. Save the document to your desktop and

then open it from there. It will use your version of Adobe

instead. Enjoy! ■

A four-year-old

girl

has

been

called

up for jury

service

because

her

grandad

was

recently

sent

a summons

in England.

and

explained

to her

what

he

had

to do.”

Officials

sent

a letter

to Beatrice

Ball

order

ing

her

to Sam,

33,

of

Bedminster,

Bristol,

contacted

officials

to

attend

a trial

at Bristol

Crown

Court

on

June

5,

The

Sun

explain

and

Beatrice

has

now

been

excused

from

jury

reported.

duty.

Beatrice’s

mum,

Sam

was

aston

ished

her

daugh

ter

Civil

servants

respon

sible

for issuing

jury

could

be called

up for

jury

duty.

summonses

blamed

Bristol

City

Council

for the mix-up.

“She

found

it hilar

i ous.

Beatrice

is bright

for

her

age

The

Court

Service

said

it

was

sent

an old electoral

list

but

this

is ridic

ulous.

She

knows

what

jury

service

is

mistak

enly

containing

Beatrice’s

name.


Glossary

Adjudi ca tion

The legal process of re solv ing a dispute

Advocates

The act of as sist ing, de fend ing, plead ing or pros e cu -

tion for another.

Amateur

An athlete who has never com peted for money; one

who cul ti vates any study or art or other ac tiv ity for per -

sonal plea sure instead of pro fes sion ally or for per sonal

gain.

Antiquated

Grown old; ob so lete or ob so les cent; ill-adapted to

present use.

Artifi cial

Made in im i ta tion of or as a sub sti tute; not genuine;

made by human skill and labour (opposed to natural).

Witness benefi cia ries

A ben e fi ciary under a will who wit nesses the making of

that will.

Bilat eral

A con flict of laws. In volv ing or af fect ing two parties.

Biodiversity

A di ver sity of species of plants and animals

Black-listing

To have one’s name put on a list to be boy cotted or

pun ished; a list of persons who are under sus pi cion,

dis fa vour, censure, etc.

Census

A means of ob tain ing a great deal of in for ma tion about

people, in clud ing their oc cu pa tions and their social

con di tions.

Chair per son

The pre sid ing officer of a meeting, com mit tee, board,

etc.

Commu nal

Per tain ing to a commune or a com mu nity; of or be long -

ing to the people of a com mu nity.

Concil i a tion

A set tle ment of a dispute in an agree able manner.

Consen sus

Agree ment of opinion; a ma jor ity verdict.

Contra ven ing

The act of coming to or being in con flict with; to go to or

act counter to; oppose.

Conven tional

Normal or stan dard; usual.

Detract

To take away; to draw away or divert; to take away

some part, as from quality, value, or rep u ta tion.

Enact ment

The action or process of making into law; a statute

glossary

Equita ble

Char ac ter ised by equity or fair ness; just and right; fair;

rea son able.

Exemplary damages

Damages awarded in ad di tion to general damages,

where the court wishes not only to com pen sate the

victim of a tort, but to punish the de fen dant.

Funda men tal

Es sen tial; a leading or primary prin ci ple or rule, which

serves as the ground work of a system; es sen tial part.

Vol. 2 2006 The Verdict 61


glossary

Glossary

Im po si tion

Something imposed, as a burden, levy, tax etc; an

unusual or ex traor di nary bur den some task or re quire -

ment.

In fringe ments

A breach or a in frac tion, as of a law, right, or ob li ga tion;

vi o la tion; trans gres sion.

In tes tacy

The status of having died without having made a valid

will, or without having ef fec tively dis posed of the whole of

one’s prop erty by will.

Maladministration

Poor man age ment or reg u la tion, esp. in an of fi cial ca pac -

ity. – Also termed misadministration.

Me di a tion

A method of nonbinding dispute res o lu tion in volv ing a

neutral third party who tries to help the dis put ing parties

reach a mu tu ally agree able so lu tion.

Mit i gate

To make less severe; to mod er ate the se ver ity of (any -

thing dis tress ing).

Nominee

A person who is pro posed for an office, po si tion, or duty;

a person des ig nated to act in place of another, usu. in a

very limited way.

Per pe tra tor

A person who commits a crime or offence

Proactively

Taking the ini tia tive in di rect ing the course of events,

rather than waiting till things happen and then re act ing.

62 The Verdict Vol. 2 2006

Re scis sion

Putting an end to a con tract in a way that treats the

con tract as if it never existed.

Short com ings

A failure or defect in conduct.

Sub di vided

The di vi sion of a thing into smaller parts; a parcel of

land in a larger de vel op ment.

Sub mis sion

A con tract in which the parties agree to refer their

dispute to a third party for res o lu tion.

Unjust

Not in ac cor dance with justice or fair ness, as actions.

Vi car i ously

To take the place of another person or thing, acting or

serving as a sub sti tute.

Vo ra cious

Eager and in de fat i ga ble: she is a vo ra cious reader.

References

The Macquarie Dic tio nary, 2nd Edi tion, The

Macquarie Li brary Pty Ltd, 1991

Black’s Law Dic tio nary, 7th Edi tion, West

Group, 1999

The Aus tra lian Encyclopaedic Dic tio nary,

Lexis Nexis, 2005


Puzzle page

Act

Adjudication

Bilateral

Census

Clause

Find-a-word

Conciliation

Contract

Damages

Enactment

Equity

Intestacy

Justice

Liability

Mediation

Regulation

Rescission

Solicitor

Succession

Term

puzzles

Vol. 2 2006 The Verdict 63


notes

Fam ily dis pute resolution (cont.)

Notes (cont. from page 38)

6 Robert McKay ‘Ethi cal Consid er ations in Alter na tive

Dispute Resolu tion’ (1990) 45 Arbitra tion Journal 15 at 22.

7 Martha Fineman ‘Domi nant Discourse Profes sional

Language and Legal Change in Child Custody Decision

Making’ (1990) 101(4) Harvard Law Review 727 at 760-768.

8 Bridget Sordo ‘The Lawyer’s Role in Media tion’ (1996) 7(1)

Austra lian Dispute Resolu tion Journal 20 at 23.

9 National Council for Violence Against Women prepared

by Astor Hilary Guide lines for Use if Mediat ing Cases

Involv ing Violence Against Women NCVAW (1992).

10 Susan Gribben, ‘Violence and Family Media tion: Practice’

(1994) 8 Austra lian Journal of Family Law 22 at 34-35.

11 See for example, Leo Hawkins, Michael Hudson and

Robert Cornall The Legal Negoti a tor, Longman

Profes sional: Melbourne (1991) at section D(3), Hugh

Mackay Why Don’t People Listen? Pan Austra lia (1994), and

Judi Brownell Build ing Active Listen ing Skills, Prentice-Hall:

New York (1986).

12 Gribben (1994) at 34-35.

13 Sordo (1996) at 23.

14 Penelope Bryan ‘Reclaim ing Profes sion al ism: The

Lawyer’s Role in Divorce Media tion’ (1994) 28 Family Law

Quarterly 177 at 217-218.

15 Sordo (1996) at 23 refer ring to John Wade ‘The Last Gap in

Negoti a tions – Why is it Impor tant? How can it be Crossed?’

(1995) 6 Austra lian Dispute Resolu tion Journal 190.

16 Tom Altobelli ‘Family Lawyers as Media tors’ (1995) 9

Austra lian Journal of Family Law 222 at 229.

17 Sordo (1996) at 25.

18 Robert Mnookin and Lewis Kornhauser ‘Bargain ing in the

Shadow of the Law: The Case of Divorce’ (1979) 88 Yale

Law Journal 950.

19 See Gerard Sammon ‘The Ethical Duties of Lawyers Who

Act for Parties to a Media tion’ (1993) Austra lian Dispute

Resolu tion Journal 190 at 193.

20 M Dee Samuels and Joel Shawn ‘The Role of the Lawyers

Outside the Media tion Process’ (1983) 2 Media tion

Quarterly 13 at 15, Note ‘Lawyer Media tion in Family

Disputes’ (1985) 59 (11) Law Insti tute Journal 1163.

21 Altobelli (1995) at 229.

22 Sordo (1996) at 26 refer ring to Thomas Bishop ‘Medi a tion

Standards: An Ethical Safety Net’ (1984) Media tion

Quarterly 5 at 8 and Sammon (1993) at 196.

23 Altobelli (1995) at 229.

Notes (cont. from page 12)

26 s530A(2)(h)

27 See s500A and s500B

29 Briginshaw v Briginshaw (1938) 60 CLR 336

30 At [18] – [19]

64 The Verdict Vol. 2 2006

24 Simon Roberts ‘Medi a tion in the Lawyers’ Embrace’

(1992) 55 Modern Law Review 258 at 261.

25 McKay (1990) at 22. See also Carrie Menkel-Meadow

‘The Trans for ma tion of Disputes by Lawyers: What the

Dispute Paradigm Does and Does not Tell Us’ (1985)

Missouri Journal of Dispute Resolu tion 31-34, and Leonard

Riskin ‘Toward New Standards for the Neutral Lawyer in

Media tion’ (1984)

26 Arizona Law Review 329 at 330.

26 House of Repre sen ta tives Stand ing Commit tee on Family

and Commu nity Affairs (2003) at 77.

27 Nan Seuffert ‘Locat ing Lawyer ing: Power Dialogue and

Narra tive’ (1996) 18 Sydney Law Review 523.

28 Altobelli (1995) at 229.

29 Altobelli (1995) at 230.

30 Patri cia Winks ‘Divorce Media tion: A Non-Adver sary

Proce dure for the No-Fault Divorce’ (1981) 19 Journal of

Family Law 615 at 646. McKay (1990) at 22 makes a similar

state ment.

31 Sordo (1996) at 25.

32 Jenny David ‘Inte grat ing Alter na tive Dispute Resolu tion

(ADR) in Law Schools’ (1991) 2 Austra lian Dispute

Resolu tion Journal 5. Also Jack Effron ‘Break ing

Adjudi ca tion’s Monop oly: Alter na tives to Litiga tion Come to

Law School’ (1991) 2 Austra lian Dispute Resolu tion Journal

21; Karen Kraemer and David Singer ‘Teach ing Media tion:

The Need to Overhaul Legal Educa tion’ (1992) 47

Arbitra tion Journal 12; and Richard Calver ‘Teach ing

Alter na tive Dispute Resolu tion in Austra lian Law Schools: A

Study’ (1996) 2 Commer cial Dispute Resolu tion Journal

209.

33 Jenny David ‘Lawyers – Engage in ADR!’ (1991) 65 Law

Insti tute Journal 51; Peter McCar thy and Janet Walker

‘Involve ment of Lawyers in the Media tion Process’ (1996) 26

Family Law 154 for a discus sion of the various roles for

lawyers discussed here as well as results of a survey of

FMA (Family Media tor Associ a tion) trained media tors on the

issue of lawyer involve ment in media tion).

34 Ellen Goodman ‘Dispute Resolu tion in Family Law: Is

‘Concil ia tory Proce dure’ the Answer?’ (1986-1987) 1

Austra lian Journal of Family Law 28 and at 35-37.

35 M Murayama, ‘Does a Lawyer Make a Differ ence? Effects

of a Lawyer on Media tion Outcomes in Japan’ (1999) 13

Inter na tional Journal of Law Policy and the Family 52.

36 Judith Ryan ‘The Lawyer as Media tor: A New Role for

Lawyers in the Practice of Non-adversarial Divorce’ (1986) 1

Canadian Family Law Quarterly 105 at 132.

Us ing the law to re spond to home less ness (cont.)

31 See s572B and s572C 32 s572A

33 s564, s565

34 s571

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