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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