眾律國際法律事務所

1. Decision [if reserved give your own brief assessment of the just outcome].

Not guilty. The issue was whether the accused did the GBH alleged and that doing was unlawful. It was not a question of whether the complaint suffered GBH. But what matters was the accused’s doing. In absence of jury, defence submitted defences/excuses such as trespass, self-defence and accident. His Honour did not see any grounds for self-defence or trespass, but allowed the excuse of accident to be left to the jury.

2. Any issues of Competence or Compellability.

The general rule is that everybody is both a competent (s9 QEA) and compellable witness (Hoskyn)[1] which was sworn under oath when they understood that the giving evidence was a serious matter and were under obligation to tell truth, over and above ordinary duty (s9B(2) QEA). The witnesses were all adults who either knew the accused or had lived or visited the house where the alleged offence occurred. Wardle, the accused, was competent but not compellable in his defence (s8(1) QEA), however he voluntarily wanted to testify himself. The Crown was not competent or compellable to testify (Payne).[2] This was the most interesting part in trial was when the Crown cross-examined the accused Wardle on his credit worthiness to testify himself in court. The tactic behind was to prove prior inconsistent statement to what Wardle has testified himself in the current trial.

3. Relevant Exclusionary Rules [e.g. Hearsay, Character or Opinion].

Exclusionary evidence is evidence, which, by law, is not allowed in a criminal prosecution even though there may be no claims against its authenticity (Murphy).[3] Opinion evidence in general is not admissible (s76 CEA). Witnesses must give a plain account of the actual perception (through their five senses) that is devoid of evaluation, inference, interpretation, belief or opinion. However expert witness, being experts in a particular field, may express opinions upon relevant matters within the field of expertise. This is an exception to the general rule that a witness may speak only as to facts (s79 of CEA). The condition for admissibility of expert opinion evidence is that the evidence given must be within the expert’s field of specialised knowledge. There must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert. The opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached (Makita).[4]

In this trial, Doctor Lyne, as an orthopaedic surgeon, who has specialised his training in hip and knee replacement since 1966, provided his expert opinion about the incident. In his opinion, if a person is being pushed from the edge of a distance between half to two meters that would certainly cause GBH to the victim. If someone is over weight (the victim weighted around 87-88kgs), then it is more likely to fracture then falling from the height. Significant force such as falling from the edge of the hill could also cause GBH. This evidence has been ruled in as juries and judge would require expert assistance to draw correct inferences of whether the accused is guilty of the GBH offence (Clark v Ryan).[5]

Character evidence is admissible in a criminal trial if offered by a defendant as circumstantial evidence, through reputation or opinion evidence as long as the character evidence the defendant seek was relevant to this trial (s 110 CEA; Sherrard v Jacob[6]). Despite the character evidence was not directly connected to this case at hand but by Mr Jeffery Wayne’s testimony, have been friends with the defence for 15 years, doing all the family activities together, has proven accused’s positive character.

4. Judicial discretion.

The power of a judge is to exercise a personal notion of fairness, guided by principles and rules of law. An exercise of judicial discretion does not involve the application of a strict rule of law but involved the weighing of various competing factors and making a determination according to what was fair, just or otherwise be part of the admissible evidence (Hasler).[7]

The functions of judge and jury:

Judge: The judge decides as a matter of law what evidence they will consider in coming to a decision.

Jury: is the ultimate ‘tribunal of fact’ and the function of the judge is to direct them on points of law and to ensure that they are not misled by inadmissible evidence. This process finds statutory expression in Queensland under the Criminal Code s620.

In practice, the line between these two functions can become somewhat blurred. For example, in deciding as a question of law whether or not a confession is admissible, a judge may be required to consider conflicting factual allegations as to how it was obtained and choose which facts to believe. This will normally be done out of the hearing of the jury in a process known as a voir dire.

If that confession is then admitted, Defence Counsel can re-raise before the jury all the factual disputes raised on the voir dire and invite the jury to conclude that the confession was involuntary, which is in essence a question of law. By the same process Defence Counsel can also severely reduce the amount of weight that the jury will attach to the confession.

The jury is the ultimate arbiter of fact but the judge controls what facts they are allowed to hear. The rules under which the judge does so are called ‘the laws of evidence’.

Types and Classifications of Evidence:

Oral Evidence: verbal testimony of a witness in court. That witness will, ideally, be speaking to something that they perceived with their own senses (sight, sound, smell etc), and if they seek instead to relate what someone else perceived and then communicated to them, then their testimony may well be rejected as hearsay. In some cases, although the witness is required to enter the witness box and answer questions, the importance of their evidence lies not in what they perceived but in the assistance that they are able to give to the court in interpreting facts spoken to by others, or objects connected with the matter under investigation.

Direct evidence: witness X states that they saw A hit B, then in an assault trial this is direct evidence. ‘Direct’ evidence is evidence that leads directly to the proof of a fact in issue.

Dispute Resolution              

There are various dispute resolution techniques that you can possibly use resolving conflicts. They are:

Negotiation:

Negotiation is a process whereby two or more parties seek to reach a mutual agreement. There may be no third party involvement during the negotiation, therefore the principals usually act for themselves or have their legal representatives to act for them. 

Below is a summary of advantages and disadvantages of using the Negotiation technique for dispute resolution.

Advantages of Negotiation

• Parties with their lawyers are in best position to assess proposed solutions
• Compromise often offer parties at least some of what they want
  • (note: court may not give them any of what they want)
• Parties might not resolve all issues but may narrow them

Disadvantages of Negotiation

• If there is no adequate preparation, a party can agree to a settlement outcome well below what a court may order
• May not have valuations, adequate medical evidence to properly assess case
• A party may feel that they were pushed too far
• A party may agree to an unfair agreement due to inequality of bargaining power/coercion

Mediation

Mediation is a process where an independent third party mediator assists two or more parties to reach a mutual agreement. The mediator’s role is to facilitate communication between parties rather than providing legal or any other advices.

During the mediation process, mediator will aim to engage parties in constructive communication.

Since the Family Law Amendment[1] commenced on 21 November 2008, it has introduced not only financial aspects of de facto relationship breakdown into the Family Law Act 1975 (Cth) (“FLA”), but has also changed a number of parenting provisions in the FLA which has significant impacts for surrogate families and same-sex couples.

The purpose of this research paper is to consider whether further reforms are required to the FLA when two or more parties are in dispute about parenting arrangements for a child in the context of same-sex relationships:

1. Artificial Conception Procedure (“Artificial insemination”) or;
2. Surrogacy or;
3. Adoption.

Assuming all circumstances, parties and children are in Queensland, State and Commonwealth Laws apply. In considering all of the above scenarios, it is important to keep in mind that the FLA makes the best interest of a child the paramount consideration in all decisions relating to parenting arrangements.[2] In assessing the best interests of children, family law would look at the role of ‘both of their parents’ and ‘other people significant to their care, welfare and development’.[3] Further, the Discrimination Law Amendment[4] has introduced ‘de facto partner’[5] as a new category of ‘spouse’. A large number of amendments have removed references to ‘husband’ and ‘wife’ with a replacement of ‘spouse’. Significantly, these amendments have also made changes to the Acts Interpretation Act 1954 (Qld)[6] that any reference to a ‘spouse’ in other legislations would include a ‘de facto partner’ as part of the interpretation unless the particular legislation expressly states the contrary.[7] Further potential areas of reform for same-sex relationships were identified from the Anti-Discrimination Commission in Queensland,[8] which will be discussed in detail in this paper.

Artificial insemination

When a child is born using an artificial insemination, provided the consent of the other intended parent is given, the child would be the child of the biological mother and of the other intended parent.[9] Relevant sections which apply to same-sex female couples in circumstances of artificial insemination in Queensland include 17, 18, 19, 19C, 19D and 19E of the Status of Children Act 1978 (Qld).[10]

The FLA has been slow to catch up to the changing face of the family. This creates problems for non birth mothers and often, the men who donated sperm to assist them. The new s60H of the FLA[11] now refers to the woman’s partner as an “other intended parent” rather than a “parent” to incorporate all situations if a woman was married to, or a de facto partner of, another person, then the child is the child of the woman and of the other intended parent, not the party who have provided genetic material for the child.[12] However the failure to expand the definition of a “parent” in s4 of the FLA to include an “other intended parent” could potentially be problematic because ss60B (1)(a), (1)(d), (2)(a), (2)(c) and (2)(d) (objects and principles of Part VII); ss60 CC (2)(a), (3)(c), (3)(e) and (3)(i) (best interest of the child); s61C (parental responsibility); s61DA (presumption of equal shared parental responsibility) of the FLA could all exclusively incorporate “other intended parent” to these provisions. This has indicated an inconsistency between s60H and other provisions of the FLA because a non-birth mother may be considered as an “other intended partner” under s60H of the FLA but may not be considered as a “parent” for the purposes of other provisions of the Act.[13] Section 60H of the FLA would need to be read in conjunction with s. 90RB FLA which provides that a child is “child of a de facto relationship’ in accordance with s. 60H and its associated sections to extend such section to “both opposite-sex and same-sex de facto couples.”[14]

In circumstances of artificial insemination, the birth mother will be a legal parent whereas the other intended parent, the lesbian co-mother, would need to obtain a parenting order in respect of their child. Such parenting order may not always entitled lesbian co-mothers to have the same financial and work-related benefits as a legal (birth) parents do. The other intended partner in the same-sex relationship will only be considered as a ‘parent’ of a child if the child was born in a de-facto relationship at the time of the artificial insemination.[1] This may compromise the best interest of a child born to a lesbian or gay couple.[2] The result is that same-sex families are excluded from a range of federally funded entitlements and benefits that are available to heterosexual families. Consequently, this has resulted in same-sex families being denied access to benefits intended to help parents’ support their children that may leave the children in a same-sex family worse off than other children from opposite-sex families.

Therefore as a federal government policy officer, it is important to undertake further reforms to ensure equality of the children being raised in same-sex families and to clarify access entitlements for parents seeking to support their children in the best way they can.

Surrogacy

A child born to a gay couple will often have a birth father and a gay co-father, as well as a birth mother. Alternatively, a child may have two gay co-fathers as well as a birth mother. If there is a birth father, he will be a legal parent. Pursuant to the Surrogacy Act,[3] the intended parent or intended parents may include a man and an eligible woman; or two men; or two eligible women to be parents of the child; and a birth parent would stop being a parent of the child.[4]

The present requirements for gay couples making a parenting order include a proposed order for the well-being and in the best interest of the child; the child must has resided with the applicant for at least 28 consecutive days before the day of the application was made and before time of hearing; proof of evidence of a medical or social need for the surrogacy arrangement and such arrangement was made after the parties obtained an independent legal advice; all parties must have obtained counseling from a qualified counselor about the surrogacy arrangement and such arrangement was made with the consent of the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants before the child was conceived; provided such arrangement cannot be a commercial arrangement.[5] It is recognized that further reform is needed to clarify the status and role of a person who has no biological connection to a child.

Article 26 of the International Covenant and Civil and Political Rights[6] provides:

“All persons are equal before the law without any discrimination to the protection of the law. The law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground…”

In Re Michael: Surrogacy Arrangements,[7] Watts J considered[8] s60HB of FLA and found unexpected consequences in relation to application for leave to adopt a child born as a result of a family surrogacy arrangement. This is one example of how the new provision s60H of FLA could lead to strange results.  In Re Michael, Sharon’s mother Lauren, who was in a de factor relationship with Clive, gave birth to Michael by using Paul’s sperm (Sharon’s husband) as Sharon suffered from a cervical cancer, she could not give birth. However, due to the s60G of FLA which defines the “prescribed adopting parent”, Paul and Sharon could not adopt Michael despite the fact that Paul was Michael’s biological father. Section 60H of FLA only provides scope for a child born as a result of artificial insemination to have two parents, this provision would not however assist the children of a gay male couple who have a child or children under a surrogacy arrangement. Such restriction is problematic for children born to multi-parent families, or children born to gay male couples. Despite the fact that the new s60H of FLA has now recognised the status of non birth mother, nevertheless, in a number of cases, s60H of FLA is not sufficiently flexible to recognize the various forms of family that exist in today’s society. Further reform would need to be made to recognise the multiplicity of family constellations for the benefit and security of the children living with them.

Adoption

Section 89 of the Adoption Act[1] restricts its adoption right to heterosexual individuals or couples may infringe article 21 of the Convention on the rights of the child (“CRC”)[2] in conjunction with article 2. Article 21 of the CRC[3] requires countries that permit adoption to ensure that the best interests of the child are ‘the paramount consideration’ in the adoption process. Discrimination against same-sex couples in adoption may also lead to discrimination in access to financial entitlements for the benefit of the family, which are only available to birth parents or adoptive parents.

Such restrictive and discriminatory laws have a particularly serious impact on the children of gay couples. It is particularly difficult for gay couples to become a legal parent of their child without adoption. Gay male couples that wished to have children would need to go through artificial reproductive procedures or intercourse without involving a childbearing woman. Such limited scope of state adoption laws severely limits the possibly of adoption for same-sex couples. Thus, it has certainly infringed article 21 of the CRC[4] that requires the best interests of the child to be the paramount consideration in adoption.  This may also compromise the best interest of the child under article 3(1) of the CRC[5] that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a paramount consideration.

Recommendations

One of the consequences of the reform introduced by the Same-Sex relationships[6] and the Family Law Amendment[7] is that from 1^st July 2009, the FLA acknowledges that children are frequently cared for by a range of ‘other people significant to the care’ of a child. Those people other than the birth parents or adoptive parents can seek a parenting order from the Family Court of Australia if they wish to formalise their parenting role.[8]

Further amendments are needed to clarify the status and role of a person who has no biological connection to a child. This is to ensure equal protection for the children of same-sex parents. As a federal government policy officer, such reforms should include the recognition of lesbian co-mother or gay co-father. Federal laws should ensure that a lesbian co-mother of an artificial child could access the same financial and work-related entitlements available to a birth mother and birth father. This could be achieved by amending the FLA to include a parenting presumption in favour of the lesbian co-mother of an artificial child and ensuring that the definition of ‘child’ in any relevant legislation recognizes the parenting presumptions of the FLA; or in the Acts Interpretation Acts[9] that any references to a person’s ‘child’ in federal legislation would include the artificial child of a lesbian co-mother. In addition, Queensland should also enact parenting presumptions in favour of lesbian co-mothers and gay co-fathers. While parenting presumptions are appropriate for the artificial child of a lesbian couple, broader adoption laws are the better solution for a gay couple having an artificial child. Federal financial and work-related laws should include the definition of ‘step-child’ that recognizes a child under the care of a ‘de facto partner’ of a birth mother or birth father. ‘Step-parent adoption’ laws should be more readily consider adoption by a lesbian co-mother or gay co-father. Same-sex couples should have equal rights to apply for adoption of an unrelated child. Further, there should be a public information and education campaign to ensure that gay and lesbian families are aware of their rights and entitlements under federal financial and work-related laws. In addition, federal laws should explicitly recognizes the eligibility of a person who has a parenting order from the Family Court of Australia. Such access to financial or work-related benefits would be extended beyond legal parents. 

Bibliographies

Secondary Sources

Belle Lane, ‘Who is a parent?’ (2010) 21(2) Australian Family Lawyer.

Lawyers stand a fiduciary relationship with his or her client. Therefore breach of lawyers’ fiduciary duty to a client may end up in civil proceedings against the lawyer. Depending on the nature of the breach, action may be brought up for compensation or damages; an order setting aside the transaction; or account of profits. Lawyer-client relationship dictates that lawyers must give undivided loyalty to their clients, “without being distracted by other interests including personal interest”.[1] The purpose of this is to prohibit lawyers engaging with their clients in circumstances involving a conflict of interest and duty. More importantly, what would constitute a breach of a lawyer’s fiduciary duty to the client is where the lawyer gains at the expense of the client or where the lawyer fails to disclose the lawyer’s personal interest in the transaction, in all, likelihood be professional misconduct.

In Law Society of NSW v Harvey (1976), confirmed that the basic elements of fiduciary duty that a lawyer owes to a client is to act in good faith. In this judgement, Street CJ summaries the following elements of what constitutes duty of good faith:

1. Full disclosure of lawyer’s interest;

2. Duty of a lawyer to the client is paramount when conflict situations arise, lawyer should advise client to receive independent advice or to withdraw the case. Such conflict of interest should be avoidable or ought to be avoided.

Such meaning extends to avoiding the appearance of conflict. In the case of Spector v Ageda[2], Megarry J’s Ratio decidendi are as follows:

"The solicitor must be remarkable indeed if he can feel assured of holding the scales evenly between himself and his client. Even if in fact he can and does, to demonstrate to conviction that he has done so  will usually be beyond possibility in a case where anything to the client’s detriment has occurred. Not only must his duty be discharged, but it must manifestly and undoubtedly be seen to have been discharged.”

This is especially the case where lawyers must not accept instructions to act for a person in any transaction or proceedings affecting or related to any legal or equitable right or interest in property or entitlement, or to act for a person engaged in such transaction or proceedings when lawyers consciously aware that the person’s interest in the transaction or proceedings is, or would be, in conflict with lawyer’s own interest or the interest of an associate.

The Australian Solicitors’ Conduct Rules extend the proscription to “associates” of the conflicted lawyer, the term “associate” are being defined in broad terms as follows:[3]

• a partnership or corporation for which the lawyer has a material beneficial interest;
• employee, agent, or partner of the lawyer or of the lawyer’s firm;
• member of the lawyer’s immediate family, this include spouse, child, grandchild, sibling, parent or grandparent of a lawyer;
• Director of the incorporated legal practice or a subsidiary of that practice.

Nevertheless, in some circumstances, clients may relax such conflict of interest to secure loyal service from their lawyers as long the client has given informed consent or authority to the lawyer acting, or continuing to act, in such matter involving a duty-interest conflict.

Street CJ in Law Society of New South Wales v Harvey:[4]

1.0 Introduction

When there are a large number of persons who all have the same interest, it is impractical and probably impossible for each to become an individual party to a proceeding and accordingly, a class action, known as representative proceeding (“RP”) may be a more practical option.[1] As a representative party, one party may, whether as a plaintiff or defendant, represent other persons who have the same interest when the class is too large for each person to be an individual party.

2.0 Representative Rule in Australia

Apart from the statutory class action regimes applicable in the Federal Court and in the Victorian Supreme Court, the rules of court in most Australian jurisdictions make provisions for representative actions themselves. In some cases, such representative action rules may be more appropriate than the statutory class action provisions. In some other cases, it may be more appropriate to rely on both the representative rule and the applicable class action statutory provisions. The representative action rule in the High Court is r 21.09 of the High Court Rules 2004 (Cth),[2] which is similar to the earlier English representative action rule and the representative actions rule in most other Australian jurisdictions.[3] The representative action rule in the Federal Court however is incorporated in O 6 r 13 of the Federal Court Rules[4] which operates concurrently with the provision of Pt IVA of the Federal Court of Australia Act 1976 (Cth).[5] The provisions of Pt IVA make it clear that, except as otherwise provided by such provisions, nothing in Pt IVA affects the commencement or continuance of any action of a representative character commenced otherwise than under pt IVA[6] or the court’s power under provisions other than Pt IVA[7] or the operation of any law relating to proceedings of a representative character.[8]

Since 1 July 1999, the Uniform Civil Procedure Rules (“UCPR”) have applied to all civil proceedings in the Supreme Court, District Court and Magistrates Courts of Queensland.[9] The Queensland representative procedure rule 75[10] operates at two levels: a jurisdictional level and a discretionary level. Before the representative action may be commenced, the parties represented must have the “same interest”. If such criterion is satisfied, there is jurisdiction to commence a proceeding as a RP. However, even if a proceeding is properly commenced as the RP, the court arguably under rule 62[11] can give discretion to include parties whose presence is necessary to enable an adjudication of all issues raised in the proceeding.[12]

In Minister for Industrial Development of Queensland v Taubenfeld,[13] Mackenzie J contrasted the position under r75[14] with the previous rules in the Supreme Court[15] that “when there were a numerous persons having the same interest in the subject matter of a proceeding…on a proper construction of UCPR 75 and 76,[16] I do not think that approval of the court for appointment of a representative defendant is now required.”[17] Standing alone would permit proceedings to be started and continued against one or more of the persons who have the same interest in the subject matter of the proceeding as all such persons who could have been parties to the proceeding. His Honour in Taubenfeld[18] submitted that the authority of court should still be obtained to sue the representative person however on a proper construction of UCPR r75 and 76,[19] the approval of the court for appointment of a representative defendant was not now required. This is because UCPR r75[20] follows the wording of s82 of the Supreme Court Act[21] for which does not refer to leave being required for having a representative defendant appointed. As His Honour proceeded to observe that if an issue is raised as to the appropriateness of having a representative defendant at all, or whether a particular person selected by an applicant to be a representative defendant is an appropriate person having regard to the relevant criteria, it would be convenient to resolve that issue at the earliest possible opportunity.[22]

It is often the case that representative proceedings (“RP”) are challenged by respondents, including on the ground that the threshold requirements are not satisfied amongst others. There are some criteria that the Queensland representative action rule would appear to be of limited utility in many instances particularly where the claims for relief include damages.[1] For the identity of interest, Queensland has not yet considered the UCPR requirement into its judicial consideration but may be receptive of a wide or narrow interpretation.  In r75 of the UCPR,[2] courts have tended to adopt a narrow interpretation of the ‘same interest’ requirement and often concluded that this precludes bringing representative claim for damages. Furthermore, other representative action rules often provide that the proceeding may be brought on behalf of ‘some or all’ of those with the same interest[3] whereas the Queensland rule does not expressly provide for a limited number of class numbers. In the past, various groups have made submissions advocating for establishing of a legislative regime in Queensland to correct some of the RP shortcomings.[4] There appears to be some perceived problems with the representative action procedure incorporated in court rules which led to various proposals in Australia for which a statutory class action regime that were said to be ‘bedeviled…by defeats and uncertainties’.[5] Concerns remain about lack of certainty for litigants when there is an absence of a clear framework for brining and management of RP in Queensland especially where there is a lack of protection of statute of limitations provisions; absence of consent of represented persons to the initiation of litigation given that judgment will be binding on all members of a represented class; the risk of an adverse costs order being borne solely by the representative of a represented class with the need to examine whether separate damages claims are likely to split the proceeding[6] It can be concluded that Queensland law and practice has failed to keep up with national and international developments. Procedural reform must be introduced to facilitate the representative procedure into Queensland courts.

3.0 Reform of the Queensland RP rule

There are obvious advantages of a structured, court-managed class action regime as contained in Part IVA Federal Court Act over the Queensland scheme in Chapter 3 Division 4 UCPR, namely, that it is:

• Cheaper for all parties;
• Fairer for defendant who has to defend one action rather than many;
• Fairer for the plaintiffs who can resolve common issues;
• Fairer for the community in that it benefits a broad range of people; and
• Have clear rules for all potential litigants to follow.

While it appears that the Queensland rules can be used for RP, the rules do not facilitate management of the RP by the court or make RP requirements or procedures clear for potential litigants and the public at large. The first requirement of an identical interest may be contrasted with other Australian jurisdictions for which the federal and Victorian court provisions do not require identify of interest but that the parties claims arise out of the interest which is similar or related circumstances that gives a greater scope for claims to be prosecuted within one representative action.[7] In addition, the Queensland courts have adopted a narrow construction of the ‘same interest’ requirement and have subsequently concluded that this precludes bringing representative claims for damages. One of the difficulties Queensland faced was when claimants come up with cause of actions arising under the common law, or based on State statutory provisions, is that the representative procedure in the Federal Court require there to be at least one federal cause of action. Attempts to join common law claims with a federal cause of action may be a recipe for disaster for both litigants and lawyers.[8] In relation to the Queensland floods in 2011 for example, there has been media and press coverage of a long foreshadowed class action against the State of Queensland claiming damages for the affected victims. Question arises as to whether a NSW resident who has suffered property loss in Queensland could lead a RP in the NSW Supreme Court under Part 10 of the Civil Procedure Act 2005 (NSW).[9] To raise such RP might be problematic as there is no federal cause of action available with any applicable class action procedure in Queensland.

Generally, the representative persons or entities not party to the RP will not be liable for costs for which the liability for costs will fall on to the representative parties,[1] despite such judgment cannot be enforced against those unnamed persons or entities except by leave of the court.[2]  The unnamed persons or entities in a RP do not need to consent to the institution of proceedings on their behalf.[3] A person may start a proceeding and represent all of the persons who have the same interest[4] and to bring such an action even when some of the representative parties knew nothing of the action.[5] Furthermore, a judgment in a RP must describe or at least to identify the class group members who will be affected by such RP. Unless the court order, the RP would bind all parties who have the same interest as a representative party[6] and to adopt Federal Court’s RP rule for which persons in such Federal Court proceedings have a freedom of choice to ‘opt out’ by not being one of the parties in the proceeding.[7]

Despite that, the Queensland jurisdiction has its inherent jurisdiction to award costs against non-parties, which being defined broadly in the UCPR (Qld) to include persons not party to proceedings by or to whom costs are payable.[8] In some jurisdictions, RP are governed by detailed legislative schemes, which govern how members of the class can ‘opt in’ or ‘opt out’, and to communicate in proceedings. Rule 76 of the UCPR (QLD)[9] however contains no such framework. In the case of Carnie,[10] it was argued that the absence of such a legislative scheme would lead the court to give a very narrow operation to such the case in Esanda.[11] Gleeson CJ mentioned that the absence of a detailed legislative prescription would need to deal with matters such as whether or not consent is required from group members, right of such members to opt out of the proceedings; the position of person under disability, alternations to the description of the group, settlement and discontinuance of the proceeding and to give various notices to group members.[12] In the United States, Federal Rule of Civil Procedure 23(a)(4)[13] imposes one of the conditions to commence a class action that all the representative parties will be fairly and adequately protect the interests of the class for which it is fundamental in the RP where all group members are bound by the outcome of litigation but are not before the Court to be able to protect their own interests that their representative will loyally advance their interest. This need for adequacy of representation has been recognised by High Court in Carnie.[14] Therefore in order to promote a fairer RP in Queensland, it should adopt its Federal Court’s ‘opt out’ system for which allows any persons who do not wish to be part of the proceeding or proceed further with their claims to ‘opt out’.[15] In addition such scheme must also be more clearly spells out the requirements for all parties by notifying represented persons and resolution of problems associated with intermingling of issues that would reduce some problems experienced federally.

4.0 Conclusion

Queensland law and practice has failed to keep up with national and international developments. Procedural reform should be introduced to facilitate class actions in Queensland courts, on behalf of Queensland persons and conducted by Queensland practitioners.

It is recommended that the UCPR be amended to introduce an active class action regime in Queensland, similar to the approach of the Federal Court of Australia that gives greater scope to the court to administer and manage a class action. Such a regime would give greater certainty to potential litigants in a class action as to the requirements for instituting, continuing and defending such proceedings.

Compensation for improper caveat[1]

Pursuant to s 130(1) of the Land Title Act 1994, a person who lodges or continues a caveat without reasonable cause must compensate anyone else who suffers loss or damage as a result. Section 130(2) of the Land Title Act 1994 specifically provides that a court of competent jurisdiction, when determining the compensation in such a proceeding, may include a component for exemplary damages. It is presumed that a caveat has been lodged or continued without reasonable cause until the person who lodged or continued it proves that there was reasonable cause (s 130(3) of the Land Title Act 1994).[2]

This is because it might be proved later that the caveat is unmeritorious and the other party suffered financial loss because of the caveat.[3] There are two main ways by which a registered owner can remove the caveat: removal by application to the Registrar General and removal by order of the Supreme Court. Therefore, if the registered owner contests the caveat, the caveator must be prepared to incur legal expenses to defend his interest on the property. The removal of the caveat that is found to be lodged without merit may result also to compensation of legal costs incurred by the registered owner. Furthermore, if a party fails to prove his interest in the property he is forever precluded from lodging a caveat on the same property.

The party who is considering lodging a caveat must first seek legal advice. The need to protect one’s interest on a property must be balanced with the danger of being ordered to pay damages as a consequence of filling an unmeritorious caveat.

List of Sources:

1. Land Title Act 1994 (QLD) – current as at 1 December 2014 – revised version-Queensland legislation.
2. Secondary Resource: - accessed on 1^st August 2016
3. http://www.onerfamilylaw.com.au/Sites/2251/Images%20Files/FLNA%20caveat%20article.pdf>
3. Secondary Resource: Aussie Divorce Est. 2005 - accessed on 1^st August 2016
4. http://www.aussiedivorce.com.au/familylawinformation/lodging-a-caveat-on-matrimonial-real-property.html>
4. Land Title Practice Manual  - Department of Natural Resources and Mines – accessed on 1^st August 2016 –

<https://www.dnrm.qld.gov.au/__data/assets/pdf_file/0003/97149/ltpm-part-11.pdf >

Case Law Persons Who May Lodge a Caveat

A Person Claiming an Interest in a Lot

What Happens after a Caveat is lodged?

1. Notification:  Once the caveat has been lodged, the registered owner will receive a letter from the Department of Natural and Mines advising that the caveat has been registered. The titles office will send notices to each person whose interests are affected by the lodgement of the caveat.[1] The registered owner’s consent is not required for the lodgement of a caveat.
2. Court Proceedings: Once the caveat has been lodged, court proceedings must be investigated to support your interest under the caveat.  These proceedings must be filed by you either:[2]

• Within 3 months[3] from the date the caveat is lodged; or
• Within 14 days[4] from receipt of a notice from the registered proprietor of the property under section 126 of the Land Title Act.

Once a caveat has been registered, and a Notice is not served by the registered owner as detailed above, then the caveat will remain in place, but only for three months. If property settlement matters are not resolved within that three month period, the only way to keep the caveat “alive” and registered against the property is to start Court proceedings for property settlement. Such proceedings must be commenced before three months have lapsed. Once that has taken place, the caveat will remain registered against the property indefinitely until both parties reach mutual agreement.

Removing a caveat[5]

Pursuant to s 127 of the Land Title Act 1994 or 389H of the Land Act 1994, a caveatee may apply at any time to the Supreme Court for an order that a caveat be removed. The caveat remains in force until the matter is determined by the court or the caveat is withdrawn.[6] A registered caveat may be withdrawn by the caveator by lodging a Form 14 – Request to Withdraw (s 125 of the Land Title Act 1994 or s 389G of the Land Act 1994). The Supreme Court may make the order whether or not the caveator has been served with the application, and may make the order on the terms it considers appropriate.[7]

Pursuant to s 128 of the Land Title Act 1994 or s 389I of the Land Act 1994, the Registrar may cancel a caveat upon receipt of a request to cancel if the Registrar is satisfied that:

• the interest claimed by the caveator has ceased or the claim to it has been abandoned or withdrawn; or

• the claim of the caveator has been settled by agreement or otherwise satisfied; or

• the nature of the interest claimed does not entitle the caveator to prevent registration of an instrument or document that has been lodged.

The Registrar must notify the caveator of the Registrar’s intention to cancel the caveat at least seven days before it is cancelled (s 128(2) of the Land Title Act 1994 or s 389I (3) of the Land Act 1994). If no response is received within seven days, the caveat will be cancelled. If an instrument or document that has been lodged will, on registration, give effect to the interest claimed in the caveat, the Registrar may remove the caveat immediately before registering the instrument (s 128(3) of the Land Title Act 1994 or document s 389I (4) of the Land Act 1994).

Lapsing a Caveat[8]

What are they and how do they work?

When a relationship breaks down in Queensland (whether it be matrimonial or de facto), it is often the case that a caveat needs to be registered against a property which forms part of the net asset pool available for division. A spouse or de facto who feels uncertain about the security of his/her share in the relationship’s properties sometimes resorts to lodging a caveat on the certificate of title.[1]

In a nutshell, a caveat is a formal document known as Form 11, to be lodged at the Titles Office with the Department of Natural Resources and Mines against real estate in Queensland. [2] The purpose of this is to stop the legal owner (and any other person) from selling the property or further registering other instruments against it, such as a loan/mortgage. It also stops the legal owner from being able to transfer the property to another person.[3]

Why Lodge a Caveat?

It is common for a property to be registered in one party’s name alone (the “registered owner”). That property may have been brought into the relationship by one of the parties or for tax/commercial purposes. Whatever the reason, lodging a caveat is to protect the interests of the party who is not on the title (the “other party”).

Person who may lodge a caveat[4]

Pursuant to s 122(1) of the Land Title Act 1994 a caveat may be lodged by:

• a person claiming an interest in a lot;

• the Registrar;

• a registered owner of the lot;

Evidence that your relationship is genuine:

When you apply for a Partner visa, you must provide evidence that supports your claim of a genuine and continuing relationship with your partner. This include history of your relationship, evidence of your relationship, social and financial aspect of the relationship, the nature of the household and the nature of your commitment to each other.

The history of your relationship will include providing a statement between you and your partner regarding the history of your relationship. This include how, when and where you first met; how your relationship developed; when you decided to marry or commence a de facto partner relationship; your domestic arrangements (how you support each other financially, physically and emotionally and when this level of commitment began); any periods of separation (when and why the separation occurred, for how long and how you maintained your relationship during the period of separation); and your future plans. Please note that the statements written by you and your partner can be an ordinary writing paper or a statutory declaration form may be used. Each statement or statutory declaration must be signed and dated by the author.

There are four (4) broad categories of evidence that you need to provide including:

  (1) Financial aspects;

  (2) The nature of the household;

  (3) Social context of the relationship and;  

  (4) The nature of your commitment to each other.

Please note that all relationships are different, so you should provide as much evidence as you can that you believe will support your claims.

From the financial perspectives, evidence will be required that you and your partner share financial commitments and responsibilities including evidence of any joint ownership of real estate or other major assets (for example, cars, appliances) and any joint liabilities (for example, loans, insurance); sharing of finances; legal commitments that you and your partner have undertaken as a couple; evidence that you and your partner have operated joint bank accounts for a reasonable period of time; or sharing of household bills and expenses.

1.0 What is a Partner Visa?

Partner visa is a type of visa that allows the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen to live in Australia. This category of migration permits married partners (example opposite-sex spouses) and de facto partners (including those in a same-sex relationship) of Australian citizens, Australian permanent residents and eligible New Zealand citizens to enter and remain permanently in Australia.  Partners who meet the legal criteria will be granted a subclass 820 temporary visa followed by a Subclass 801 (partner) residence visa provided that you are still in the relationship with your Australian partner two (2) years after first applying for the subclass 820 visa.

2.0 How can I apply for a Partner Visa through a ‘de-facto relationship’?

To satisfy that there is a ‘de-facto relationship’,[1] a person must be the de facto partner of another person (whether of the same sex or a different sex) if they are not in a married relationship[2] and they have a mutual commitment to a shared life to the exclusion of all others; and the relationship between them is genuine and continuing that they live together or do not live separately and apart on a permanent basis, they are not related by family. 

3.0 Application

The following is the application steps for applying a Partner visa inside or outside Australia. The temporary Partner visa (subclass 820) is the first stage towards a permanent Partner visa (subclass 801). You must be in Australia when you apply and also when this visa is decided.

Applying from outside Australia

Step 1: Subclass 300-Prosepctive Marriage (temporary) – you plan to marry your Australian fiancé(e).

Step 2: Subclass 820-Partner (temporary) – travel to Australia; then marry your Australian partner while the subclass 300 visa is valid; and then make an application (in Australia) to stay in Australia.

Step 3: Subclass 801 – Partner (residence) – you are still in the relationship with your Australian partner 2 years after first applying for the subclass 820 visa.

If you have been injured and can show your injury was caused by someone else’s actions, you may be able to make a personal injury claim against them.

In Queensland the Personal Injuries Proceedings Act 2002 (PIPA) was introduced to provide a speedy resolution of claims for damages for personal injury. This Act requires a person intending to commence a claim for damages to first provide written notice of the claim to the person against whom the claim is to be made (s9 PIPA). For a claim involving medical negligence, s9A of PIPA requires additional information regarding inter alia, the medical procedure.

General Law personal injury claims are set out under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) and the Civil Liability Act 2003 (Qld) (CLA).

It does not consider claims for personal injuries which:

• resulted at work and are covered by the Workers' Compensation and Rehabilitation Act 2003;
• occurred as a result of a car accident and are covered by the Motor Accident Insurance Act 1994;
• occurred as a result of a crime and are covered by the Criminal Offence Victims Act 1995 or the Victims of Crime Assistance Act 2009;
• are dust-related conditions; or
• resulted from use or exposure to tobacco products or tobacco smoke.

Time limits

Claims for damages for personal injuries must be commenced within three years[1] of the cause of action arising.  In most personal injury cases, this means three years from the date the injuries were sustained.   The three year limitation period may be extended in certain specified circumstances.

Section 11 of the Limitation of Actions Act applies to common law actions by injured workers or their dependents against their employers. The Act provides that an action for damages or breach of duty, in which the damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person, shall not be brought after the expiration of three years from the date on which the cause of action arose.

Court proceedings

Court proceedings are to be commenced within 60 days of a compulsory conference.[2]  Once court proceedings have been commenced, a different set of deadlines apply, as governed by the Uniform Civil Procedure Rules 1999 (Qld). 

Establishing liability

近期關於急診暴力新聞頻傳，原為處理急診病患的醫療場所卻變成影響醫護人員甚至病患之人身安全的不安之地，讓我們不得不開始反思並尋求對策改善；本所於多年前即關注急診暴力相關法律議題，並於去年針對此議題提出幾點迷思，希祈政府機關或大眾共同參與反思，討論並尋求以法律面向解決此重大議題，而今感謝關鍵評論網將本所文章轉貼，期讓此議題能獲更大迴響。

本所文章從現行法規面，包含刑法、醫療法甚至延伸至醫院場所安全維護措施方面討論，依醫療法第24條第2項、第4項及第106條第1項，從規範內容來看，此等「訓示規定」似乎僅具「安慰劑」效果；並對比既存法律規範，只有對於「訪害醫療業務者」處以刑事責任，並未對於「人身安全危害」有特別加重。簡而言之，該條文修正的直接目的是為了「維護醫療業務執行」，而非「保障人身安全」。另從依「警察人員人事條例」第40條訂定的「各機關學校團體駐衛警察設置管理辦法」第2條可知，各類機關，包括公私立醫療機構可依法申請具「公權力」的駐衛警察來討論，以警察駐點改善醫療場所安全之實際建議。

近期衛福部長林奏延特針對沙鹿光田醫院急診暴力案表示，支持修正醫療法第106條，將醫院納入公共危險罪，此點亦與本所文章不謀而合，而後續政府機關如何修訂改善醫療場所安全，值得我們共同持續關注，而現若有相關法律疑問亦可直接洽詢本所諮詢，共同為醫療安全盡一份心力。

全文可參本所痞克邦文章：http://zoomlaw.pixnet.net/blog/post/60158983

或至關鍵評論網一同討論：http://www.thenewslens.com/article/44284

E-Resources of Taiwan Law in English

Public databases

It is part of the Taiwanese government’s efforts to promote transparency and openness of the government information and operation. In this context, there are mainly two public online databases where we can find the English versions of of many Taiwanese legal sources, translated and published by the legislative authorities.

These are:

• Ministry of Justice Law database
• Judicial Yuan Law database

Both of them are the official government pages which include an English version of them. The databases include laws, regulations, directives, conventions, judicial interpretations and decisions in full text both in Chinese and English.  

Commercial databases:

Artificial Intelligence in Law

Artificial intelligence is progressing rapidly, from Apple’s virtual assistant Siri, to Google’s Self Driving Cars, including the world’s first artificially intelligent attorney: Ross, a digital legal expert which assist lawyers through legal research. It is been anticipated that robots and artificial intelligence will permeate wide segments of daily life by 2025, with huge implications and impact in a range of industries, such as health care, transport, customer service and home maintenance. In this context, artificial intelligence also affects Law.

As mentioned above, computationally based services have already been applied in the legal world too. Ross is an artificially intelligent attorney which helps lawyers power through legal research. The machine is designed to understand language, provide answers to questions, formulate hypotheses and monitor developments in the legal system. This way, it improves upon existing alternatives by actually understanding questions in natural sentences, such as “Can a bankrupt company still conduct business?”. The robot can mine facts and conclusions by analysing billions of documents and will provide an highly relevant answer with citations and suggested readings from legislation, case law and secondary sources.  

Ross Robot is already working in the bankruptcy team of a global Firm and according to Andrew Arruda, the co-founder of the company behind the “digital attorney”, other law firms are also planning to sign licenses with Ross.

It is important to point out that Ross does not replace lawyers, but only assist them and allow them to do more and faster than they were able to do before. Nevertheless, once machine intelligence become as good as humans (lawyers in this case) in developing some kind of service it does not stop improving, considering not only that unlike humans, robots can work incessantly without caffeine or sleep, but also in a shorter space of time, which can help save a lot of time for lawyers, who need to master a huge and growing body of literature to do their job. That is why work done by junior lawyers and trainees will be done by robots in a not too distant future, like it is already happening with Ross, who can read through the law in a second.

All this leads us to the following question: is there a big possibility that robots will be able to preform complex legal services too in a more distant future? Will machines be able to speak in court? In brief, will lawyers be replaced by robots?

Ross and other developments already mean that software can effectively do the job of a in-house lawyer. That is why in the recent years, the fate of lawyers (among other professions) has been seen to be in danger. The rapid commercialization of artificial intelligence has led to concerns that lawyers can be automated.

Artificial intelligence is designed to stimulate human thinking. However, at the moment is not creative or independent, two qualities which are crucial for the discharge of the legal profession and its obligations. Furthermore, artificial intelligence might come up with a list of precedents, statues and regulation, but it does not yet have the ability to analyse the individual circumstances of a client and the human experience of making a persuasive argument that takes the context into account: lawyers have a moral and ethical responsibility which must use to build trust with the clients which, at least nowadays, artificial intelligence lack of.

Regardless of what can happen in a more distant future, artificial intelligence is inevitably affecting the society, including legal jobs, the legal role and the effectiveness of the rule of law and the justice system. That is why changes to employment law need to me made in preparation for this kind of intelligence machines and adapt to them. The expectations we have from the world are dynamic, changing and transforming at speed, and we must face the fact that artificial intelligence will become more and more entrenched in our lives. Adding technology to the workplace is more likely to transform, rather than to eliminate jobs. This way, the justice and legal systems have already started to embrace the use of technology and the benefits of artificial intelligence, and leaders must become more forward-looking and understand that they must look into the future and understand the impact of new technologies, using it to improve their work.  

Bilateral Investment Treaties Concluded by Taiwan

A Bilateral investment treaty (BIT) is an agreement between two countries that sets up the rules for foreign investment in each other’s countries, providing companies and individuals with special rights and legal protections when they invest in a foreign country. Therefore, in order to address foreign investors’ concerns and promote investing, many countries have entered intro bilateral treaties for the protection of investment. When two countries enter into a BIT, both agree to provide protections for the other country’s foreign investors that they would not otherwise have, reducing many of the risks associated with foreign investment. It provides major benefits to foreign investors, including fair and equitable treatment. A key protection offered by the majority of bilateral investment treaties is to allow international arbitration in the event of an investment dispute, rather than to force foreign investors to sue the host-State in its own courts. In this context, BITs are typically created to promote investment in the host State.

The United Nations Conference on Trade and Development (UNCTAD) reaches the following 23 bilateral investment agreements in force concluded by the Republic of China with the following contracting states: