subject:(just terms)

University of New South Wales

1. Lewis, Ilan. Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution.

Degree: Law, 2017, University of New South Wales

URL: http://handle.unsw.edu.au/1959.4/57966 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:45204/SOURCE02?view=true

► In relation to the case law dealing with the scope of s 51(xxxi) of the Australian Constitution (‘the Proviso’) it has been suggested that no… (more)

▼ In relation to the case law dealing with the scope of s 51(xxxi) of the Australian Constitution (‘the Proviso’) it has been suggested that no coherent line of principle emerges, that one meets undisclosed processes of reasoning and that, as a consequence, the Proviso’s operation is unpredictable. This dissertation gives an account and critique of the increasing incoherence of s 51(xxxi) jurisprudence and the High Court’s failure to articulate the constitutional values the Proviso serves to protect. A comprehensive account is given of the Proviso’s inherent interpretive challenges and the various approaches the High Court has adopted to tackle them.The thesis considers in detail the Proviso’s complex interrelationships with other constitutional powers and limitations. It is argued that understanding these interrelationships is a necessary pre-requisite to understanding the problems the Proviso throws up and the formulation of possible solutions. In this context, it considers whether the Proviso’s protective scope can be coherently described as a function of whether or not a given acquisition operates arbitrarily or breaches various tenets of the rule of law. Are decisions dealing with the Proviso’s scope explicable on the basis that the Proviso operates to proscribe legislation which offends such principles as non-retrospectivity, generality and the separation of powers - at least in the property domain? Four cases dealing with the application of the Proviso to what might be called ‘retrospective interests,’ that is, interests arising by way of the retrospective operation of judicial decisions are analysed in detail. It is argued that by excising these types of cases from the mainstream of s 51(xxxi) jurisprudence an opportunity to clarify other areas of doctrine and reconcile other decisions opens up. Finally, various accounts of the Proviso’s purpose or function are evaluated. The thesis concludes that, while various rule of law principles provide a useful guide to understanding the High Court’s decisions in many instances, there exist a number of hard limits on reconciling existing case law and that it is easy to overstate the degree of coherence to be found within it. Advisors/Committee Members: Edgeworth, Brendan, Law, Faculty of Law, UNSW, Roux, Theunis, Law, Faculty of Law, UNSW.

Subjects/Keywords: just terms; 51(xxxi); Australian Constitution; vibe

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APA · Chicago · MLA · Vancouver · CSE | Export to Zotero / EndNote / Reference Manager

APA (6^th Edition):

Lewis, I. (2017). Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution. (Masters Thesis). University of New South Wales. Retrieved from http://handle.unsw.edu.au/1959.4/57966 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:45204/SOURCE02?view=true

Chicago Manual of Style (16^th Edition):

Lewis, Ilan. “Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution.” 2017. Masters Thesis, University of New South Wales. Accessed April 15, 2021. http://handle.unsw.edu.au/1959.4/57966 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:45204/SOURCE02?view=true.

MLA Handbook (7^th Edition):

Lewis, Ilan. “Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution.” 2017. Web. 15 Apr 2021.

Vancouver:

Lewis I. Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution. [Internet] [Masters thesis]. University of New South Wales; 2017. [cited 2021 Apr 15]. Available from: http://handle.unsw.edu.au/1959.4/57966 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:45204/SOURCE02?view=true.

Council of Science Editors:

Lewis I. Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution. [Masters Thesis]. University of New South Wales; 2017. Available from: http://handle.unsw.edu.au/1959.4/57966 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:45204/SOURCE02?view=true

University of Adelaide

2. Stubbs, Matthew Thomas. The eminent domain in Australia: the ’individual rights’ approach to s 51 (xxxi) of the Australian Constitution.

Degree: 2011, University of Adelaide

URL: http://hdl.handle.net/2440/71494

► The interpretation of ‘acquisition of property on just terms’ in s 51(xxxi) of the Australian Constitution is contested. This thesis re-evaluates the historical, theoretical and… (more)

▼ The interpretation of ‘acquisition of property on just terms’ in s 51(xxxi) of the Australian Constitution is contested. This thesis re-evaluates the historical, theoretical and comparative contexts of the placitum, and comprehensively examines the High Court’s s 51(xxxi) jurisprudence since Federation, in order to identify the best interpretation of the placitum – that is, one which is contextually coherent, doctrinally consistent and capable of resolving current interpretive controversies. The genesis of s 51(xxxi) is traced to two traditions: the English constitutional protection of private property expressed in the theory of Locke and Blackstone, as reflected in nineteenth century legislative practice in England and the Australian Colonies; and the European public law theory of eminent domain, as constitutionalised in the United States. Both traditions required full market-value compensation in every individual case when private property was appropriated. This was the understanding of s 51(xxxi) reflected in the Convention Debates and other relevant historical materials, and these contexts were habitually referenced by the Framers of the Australian Constitution. To the extent that the American experience contained a more robust justification for the requirement of compensation, and had been rigorously enforced by the Courts, s 51(xxxi) followed the American model. This is the interpretation of s 51(xxxi) adopted by the High Court for the first forty years: one focussed on the placitum’s purpose of protecting ‘individual rights’, and not on its role in conferring a ‘legislative power’. This changed after World War Two, when Justice (and later Chief Justice) Dixon led the Court away from its earlier jurisprudence and from the contextual understanding of s 51(xxxi), replacing the focus on the individual with a dominant concern to maximise legislative power. The s 51(xxxi) jurisprudence has never fully recovered from this deviation, despite increasing instances of reversion to aspects of the ‘individual rights’ approach over the ensuing years. To the extent that agreed difficulties remain in the Court’s interpretation of s 51(xxxi), this thesis demonstrates that the complete adoption of the ‘individual rights’ approach is the only contextually coherent and doctrinally consistent solution to those difficulties, given the historical, theoretical and comparative contexts of s 51(xxxi) and the development of the High Court’s jurisprudence interpreting the placitum. Advisors/Committee Members: Owens, Rosemary Joan (advisor), Williams, John Matthew (advisor), Law School (school).

Subjects/Keywords: Australian constitution; 51 (xxxi); acquisition of property; just terms; eminent domain; compensation; compulsory acquisition

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APA · Chicago · MLA · Vancouver · CSE | Export to Zotero / EndNote / Reference Manager

APA (6^th Edition):

Stubbs, M. T. (2011). The eminent domain in Australia: the ’individual rights’ approach to s 51 (xxxi) of the Australian Constitution. (Thesis). University of Adelaide. Retrieved from http://hdl.handle.net/2440/71494

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

Chicago Manual of Style (16^th Edition):

Stubbs, Matthew Thomas. “The eminent domain in Australia: the ’individual rights’ approach to s 51 (xxxi) of the Australian Constitution.” 2011. Thesis, University of Adelaide. Accessed April 15, 2021. http://hdl.handle.net/2440/71494.

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

MLA Handbook (7^th Edition):

Stubbs, Matthew Thomas. “The eminent domain in Australia: the ’individual rights’ approach to s 51 (xxxi) of the Australian Constitution.” 2011. Web. 15 Apr 2021.

Vancouver:

Stubbs MT. The eminent domain in Australia: the ’individual rights’ approach to s 51 (xxxi) of the Australian Constitution. [Internet] [Thesis]. University of Adelaide; 2011. [cited 2021 Apr 15]. Available from: http://hdl.handle.net/2440/71494.

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

Council of Science Editors:

Stubbs MT. The eminent domain in Australia: the ’individual rights’ approach to s 51 (xxxi) of the Australian Constitution. [Thesis]. University of Adelaide; 2011. Available from: http://hdl.handle.net/2440/71494

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

University of Pretoria

3. [No author]. A critical analysis of exclusionary clauses in medical contracts .

Degree: 2009, University of Pretoria

URL: http://upetd.up.ac.za/thesis/available/etd-05252009-215044/

► This thesis examines the validity of exclusionary clauses in medical contracts, more especially, hospital contracts in which the healthcare provider exonerates itself against edictal liability… (more)

▼ This thesis examines the validity of exclusionary clauses in medical contracts, more especially, hospital contracts in which the healthcare provider exonerates itself against edictal liability arising from the negligent conduct of its staff, resulting in the patient suffering damages. In assessing whether these types of clauses should be outlawed by our courts, this thesis attempts to synthesize six major traditional areas of law, namely, the law of delict, the law of contract, medical law and ethics, international and foreign law, statutory law and constitutional law into a legal conceptual framework relating specifically to exclusionary clauses in medical contracts in South Africa. This thesis highlights systemic inconsistencies with regard to the central issue, namely, whether these types of clauses are valid or not, especially, given the fact that the practice of exclusionary clauses or waivers in hospital contracts has hitherto traditionally been assessed within the framework of the law of contract. The alignment of the various pre-existing areas of statutory and common law with the Constitution highlights that an inter-disciplinary and purposive approach under the value-driven Constitution, brings about a less fragmented picture in assessing the validity of these types of clauses. This approach accords with the new solicitude of the executive, the judiciary, the legislature and academia to transform the South African legal system not only in terms of procedural law but also substantive law. This has resulted in the alignment with constitutional principles and the underlying values to test the validity of these types of clauses, alternatively, contracts. Whereas pre-constitutionally the assessment of disclaimers in hospital contracts was done against the stratum of antiquated principles, namely, freedom of contract and the sanctity of contract, ignoring values such as reasonableness, fairness and conscionability, post-constitutionally, because the values that underlie the Bill of Rights and which affects all spheres of law, including the law of contract, concepts such as fairness, equity, reasonableness should weigh heavily with the decision-maker. In this regard, broader medico-legal considerations, normative medical ethics and the common law principles of good faith, fairness and reasonableness play a fundamental role in the assessment of contractual provisions, including the practice of disclaimers or exclusionary clauses in hospital contracts. This thesis critically examines how these types of clauses or contracts ought to be adjudicated eventually against the background of such alignment. It concludes that the entering into a hospital contract, in which the patient exonerates a hospital and its staff from liability flowing from the hospital or its staff's negligence causing damages to the patient, would be inconsistent with the Constitution and invalid. In the old order in which traditional divisions of law have been encouraged, a fragmented approach resulted in legal in congruencies which, in turn, created… Advisors/Committee Members: Prof P A Carstens (advisor).

Subjects/Keywords: Medical and normative ethics; Access to the courts; Inalienable right; Integrative approach; Status of the contracting parties; Unconscionable-ness; Public interests; Unequal bargaining position; Exclusionary clauses; Doctor/hospital-patient relationship; Just and fair results in contract; Inequality in contract; Inalienable rights in terms of the constitution; Exclusion of professional liability; Legislative reform; Ethos of contractual freedom versus fairness and r; UCTD

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APA · Chicago · MLA · Vancouver · CSE | Export to Zotero / EndNote / Reference Manager

APA (6^th Edition):

author], [. (2009). A critical analysis of exclusionary clauses in medical contracts . (Doctoral Dissertation). University of Pretoria. Retrieved from http://upetd.up.ac.za/thesis/available/etd-05252009-215044/

Chicago Manual of Style (16^th Edition):

author], [No. “A critical analysis of exclusionary clauses in medical contracts .” 2009. Doctoral Dissertation, University of Pretoria. Accessed April 15, 2021. http://upetd.up.ac.za/thesis/available/etd-05252009-215044/.

MLA Handbook (7^th Edition):

author], [No. “A critical analysis of exclusionary clauses in medical contracts .” 2009. Web. 15 Apr 2021.

Vancouver:

author] [. A critical analysis of exclusionary clauses in medical contracts . [Internet] [Doctoral dissertation]. University of Pretoria; 2009. [cited 2021 Apr 15]. Available from: http://upetd.up.ac.za/thesis/available/etd-05252009-215044/.

Council of Science Editors:

author] [. A critical analysis of exclusionary clauses in medical contracts . [Doctoral Dissertation]. University of Pretoria; 2009. Available from: http://upetd.up.ac.za/thesis/available/etd-05252009-215044/

University of Pretoria

4. Lerm, Henry. A critical analysis of exclusionary clauses in medical contracts.

Degree: Public Law, 2009, University of Pretoria

URL: http://hdl.handle.net/2263/24973

► This thesis examines the validity of exclusionary clauses in medical contracts, more especially, hospital contracts in which the healthcare provider exonerates itself against edictal liability… (more)

▼ This thesis examines the validity of exclusionary clauses in medical contracts, more especially, hospital contracts in which the healthcare provider exonerates itself against edictal liability arising from the negligent conduct of its staff, resulting in the patient suffering damages. In assessing whether these types of clauses should be outlawed by our courts, this thesis attempts to synthesize six major traditional areas of law, namely, the law of delict, the law of contract, medical law and ethics, international and foreign law, statutory law and constitutional law into a legal conceptual framework relating specifically to exclusionary clauses in medical contracts in South Africa. This thesis highlights systemic inconsistencies with regard to the central issue, namely, whether these types of clauses are valid or not, especially, given the fact that the practice of exclusionary clauses or waivers in hospital contracts has hitherto traditionally been assessed within the framework of the law of contract. The alignment of the various pre-existing areas of statutory and common law with the Constitution highlights that an inter-disciplinary and purposive approach under the value-driven Constitution, brings about a less fragmented picture in assessing the validity of these types of clauses. This approach accords with the new solicitude of the executive, the judiciary, the legislature and academia to transform the South African legal system not only in terms of procedural law but also substantive law. This has resulted in the alignment with constitutional principles and the underlying values to test the validity of these types of clauses, alternatively, contracts. Whereas pre-constitutionally the assessment of disclaimers in hospital contracts was done against the stratum of antiquated principles, namely, freedom of contract and the sanctity of contract, ignoring values such as reasonableness, fairness and conscionability, post-constitutionally, because the values that underlie the Bill of Rights and which affects all spheres of law, including the law of contract, concepts such as fairness, equity, reasonableness should weigh heavily with the decision-maker. In this regard, broader medico-legal considerations, normative medical ethics and the common law principles of good faith, fairness and reasonableness play a fundamental role in the assessment of contractual provisions, including the practice of disclaimers or exclusionary clauses in hospital contracts. This thesis critically examines how these types of clauses or contracts ought to be adjudicated eventually against the background of such alignment. It concludes that the entering into a hospital contract, in which the patient exonerates a hospital and its staff from liability flowing from the hospital or its staff's negligence causing damages to the patient, would be inconsistent with the Constitution and invalid. In the old order in which traditional divisions of law have been encouraged, a fragmented approach resulted in legal in congruencies which, in turn, created… Advisors/Committee Members: Prof P A Carstens (advisor).

Subjects/Keywords: Medical and normative ethics; Access to the courts; Inalienable right; Integrative approach; Status of the contracting parties; Unconscionable-ness; Public interests; Unequal bargaining position; Exclusionary clauses; Doctor/hospital-patient relationship; Just and fair results in contract; Inequality in contract; Inalienable rights in terms of the constitution; Exclusion of professional liability; Legislative reform; Ethos of contractual freedom versus fairness and r; UCTD

Record Details Similar Records Cite « Share

❌

APA · Chicago · MLA · Vancouver · CSE | Export to Zotero / EndNote / Reference Manager

APA (6^th Edition):

Lerm, H. (2009). A critical analysis of exclusionary clauses in medical contracts. (Doctoral Dissertation). University of Pretoria. Retrieved from http://hdl.handle.net/2263/24973

Chicago Manual of Style (16^th Edition):

Lerm, Henry. “A critical analysis of exclusionary clauses in medical contracts.” 2009. Doctoral Dissertation, University of Pretoria. Accessed April 15, 2021. http://hdl.handle.net/2263/24973.

MLA Handbook (7^th Edition):

Lerm, Henry. “A critical analysis of exclusionary clauses in medical contracts.” 2009. Web. 15 Apr 2021.

Vancouver:

Lerm H. A critical analysis of exclusionary clauses in medical contracts. [Internet] [Doctoral dissertation]. University of Pretoria; 2009. [cited 2021 Apr 15]. Available from: http://hdl.handle.net/2263/24973.

Council of Science Editors:

Lerm H. A critical analysis of exclusionary clauses in medical contracts. [Doctoral Dissertation]. University of Pretoria; 2009. Available from: http://hdl.handle.net/2263/24973

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