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0902742 [2011] MRTA 80 (18 January 2011).txt

0902742 2011 mrta 80 18 january 2011 last updated 25 january 20110902742 2011 mrta 80 18 january 2011 decision recordreview applicant m ardo ismail gesodvisa applicant mr osman abdi alimrs shukri sheikh hassanmiss fadumo osman abdimr abdullahi osman abdimr hamza osman abdimr mohamed osman abdimrt case number 0902742diac reference osf2008 029285tribunal member gary ledsondate 18 january 2011place decision melbournedecision tribunal affirms decision grant visa applicant family migrant class bo visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant visa applicant family migrant class bo visa unders 65of themigration act 1958 act visa applicant applied department immigration citizenship family migrant class bo visa 15 december 2008 delegate decided refuse grant visa 11 february 2009 notified visa applicant decision review right letter dated 11 february 2009 delegate refused visa application basis first named visa applicant visa applicant satisfy cl 115 211 cl 115 221 schedule 2 themigration regulation 1994 regulation satisfied visa applicant spouse remaining relative review applicant review applicant applied tribunal 14 april 2009 review delegate decision tribunal find delegate decision mrt reviewable decision 338 5 act tribunal find review applicant made valid application review 347 act relevant lawat time visa application lodged family migrant class bo visa contained subclass 114 aged dependent relative subclass 115 remaining relative subclass 116 carer item 1123a schedule 1 regulation subclass respect claim advanced subclass 115 remaining relative criterion subclass 115 visa set inpart 115of schedule 2 regulation primary criterion must satisfied least one member family unit applicant visa member family unit applicant visa need satisfy secondary criterion granted subclass 115 visa visa applicant must remaining relative australian relative time application cl 115 211 continue remaining relative time decision cl 115 221 remaining relative meaning set r 1 15 regulation regulation subject number legislative amendment form regulation applies case follows 1 15 remaining relative 1 applicant visa aremaining relativeof another person australian citizen australian permanent resident eligible new zealand citizen applicant satisfies minister person parent brother sister step parent step brother step sister applicant b person usually resident australia c applicant applicant spouse near relative near relative usually resident australia ii australian citizen australian permanent resident eligible new zealand citizen applicant child turned 18 ii adopted australian citizen australian permanent resident eligible new zealand citizen theadoptive parent overseas time making application adoptive parent residing overseas period least 12 month 2 regulation near relative relation applicant mean person parent brother sister step parent step brother step sister applicant applicant spouse b child including step child applicant applicant spouse child turned 18 dependent child applicant applicant spouse ii turned 18 wholly substantially daily care control applicant applicant spouse primary criterion satisfied time application subclass visa applicant sponsored australian relative spouse co habiting relative spouse turned 18 settled australian citizen australian permanent resident eligible new zealand citizen usually resident australia cl 115 212 primary criterion satisfied time decision visa applicant continues satisfy criterion cl 115 211 regulation cl 115 221an assurance support accepted department family community service cl 115 225the visa applicant family member satisfy certain public interest criterion special return criterion cl 115 223 115 224 115 226 115 227a sponsorship kind mentioned cl 115 212 approved minister force whether sponsor sponsor time application cl 115 222in case visa application made 1 july 2005 visa applicant satisfies certain passport requirement cl 115 228 part 115of schedule 2 also contains secondary criterion must satisfied visa applicant member family unit person satisfies primary criterion issue present case whether visa applicant spouse remaining relative review applicant claim evidencethe tribunal department file relating visa applicant tribunal also regard material referred delegate decision materialon 20 july 2010 tribunal wrote review applicant pursuant 359 2 act follows tribunal note agent submission dated 8 april 2009 state wish make detailed response matter raised decision record dated 11 february 2009 matter constituted member consideration member invite submission address matter raised delegate mentioned decision record material establishes family composition son spouse order meet primary criterion grant subclass 115 remaining relative visa applicant must meet requirement remaining relative near relative defined inregulation 1 15 attached reference response invitation due 17 august 2010 invitation advised review applicant tribunal receive information within period allowed extended tribunal may make decision review without taking action obtain information review applicant advised would lose entitlement might otherwise themigration actto appear tribunal give evidence present argument review applicant respond invitation seek extension time provide informationon 10 december 2010 tribunal wrote review applicant pursuant tos 359aand 359 2 themigration actas follows comment adverse information pursuant tos 359ain decision record provided application review delegate noted secondary applicant visa application spouse son m hassan shukri hassan claimed relative alive deceased decision record note m hassan provided substantial evidence detail support claim child parent deceased information relevant absence evidence tribunal may satisfied m hassan relative australian citizen australian permanent resident eligible new zealand citizen usually resident australia may reason part reason affirming matter review invitation provide information pursuant tos 359 2 noted previous correspondence representative indicated intention provide detailed response matter raised decision record tribunal invite submission information support claim son osman abdi ali wife m hassan shukri hassan meet requirement remaining relative defined regulation copy attached invitation sent review applicant last address provided connection review advised information comment provided writing 7 january 2011 tribunal may make decision review without taking step obtain information comment review applicant would lose entitlement might otherwise act appear tribunal give evidence present argument review applicant provided information comment within prescribed period extension granted circumstance 359capplies pursuant tos 360 3 review applicant entitled appear tribunal effect ofs 363aof act review applicant entitlement hearing tribunal power permit appear hasran v miac 2010 fcafc 40 tribunal decided proceed decision without taking step obtain information comment finding reasonsthe visa application made basis visa applicant remaining relative review applicant tribunal accepts visa applicant mother evidence including copy review applicant certificate australian citizenship bio data page passport tribunal find review applicant australian citizen usually resident australia consequently tribunal find r 1 15 1 r 1 15 1 b definition remaining relative met regulation 1 15 1 apply matter key issue case therefore whether visa applicant spouse near relative defined r 1 15 2 usually resident australia australian citizen permanent resident eligible new zealand citizen r 1 15 1 c regulation 1 15 2 relevantly defines near relative include parent brother sister step parent step brother step sister applicant applicant spouse delegate identified decision record copy provided part review visa applicant spouse unable provide substantial evidence detail support claim child parent deceased basis delegate satisfied visa applicant spouse remaining relative review applicant tribunal invited review applicant pursuant tos 359 2 subsequently pursuant tos 359aand 359 2 detailed claim evidence provide evidence visa applicant spouse relative australian citizen permanent resident eligible new zealand citizen usually resident australia review applicant advised absence evidence tribunal may satisfied visa applicant spouse remaining relative defined r 1 15 review applicant provided response either invitation circumstance tribunal observes review applicant provided level detail necessary satisfactorily establish relevant fact case applicant responded invitation made respect visa applicant spouse circumstance may possible tribunal either find favour information provided investigate matter greater depth hearing despite invitation review applicant failed provide tribunal information support claim family circumstance visa applicant spouse consequently basis limited evidence including contained department file tribunal satisfied visa applicant spouse near relative near relative usually resident australia australian citizen australian permanent resident eligible new zealand citizen tribunal therefore find visa applicant meet r 1 15 c therefore visa applicant meet definition remaining relative inregulation 1 15of regulation satisfy requirement cl 115 211 time application conclusionsin light finding visa applicant meet requirement definition remaining relative r 1 15 time application therefore satisfy cl 115 211 respect visa subclass material would permit finding visa applicant meet prescribed criterion visa sought decisionthe tribunal affirms decision grant visa applicant family migrant class bo visa gary ledsonmember date 18 january 2011

HPD Property Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 27 (17 March 2021).txt

hpd property group pty ltd v sunshine coast regional council 2021 qpec 27 17 march 2021 last updated 2 june 2021planning environment courtof queenslandcitation hpd property group pty ltd v sunshine coast regional council 2021 qpec 27parties hpd property group pty ltd appellant vsunshine coast regional council respondent file 2765 2020division planning environmentproceeding application costsoriginating court planning environment court brisbanedelivered 17 march 2021 ex temporedelivered brisbanehearing date 17 march 2021judge rackemann dcjorder application cost dismissedcatchwords planning environment cost respondent made application pending proceeding sought order include issue case appellant seek application respondent pay cost relation amended application pending proceeding whether cost awarded pursuant tos 60 1 theplanning environment court act 2016 qld legislation planning environment court act 2016 qld s 60 1 e f counsel connor solicitor appellanth stephanos respondentsolicitors connor meara solicitor appellantsunshine coast regional council legal service respondent 1 application cost made appellant matter application respondent pay cost respondent amended application pending proceeding filed 16th march 2021 application sought order altered issue case include issue respondent case also sought direction relation timing report one council expert mr curtis relation field architecture urban design 2 application came hearing appellant made instanter application seeking order permit existing expert respond written statement evidence mr curtis today also day return application brought appellant matter set hearing maroochydore 3 application cost said pursuant tosection 60 1 e f theplanning environment court actin seeking notify issue stage respondent seeking introduce new material given explanation overlooked notifying issue earlier time issue notified accordance court earlier timetable said default earlier order concerning issue required notified accept discretion award cost enlivened least respect subparagraph f question discretion exercised 4 respondent oversight respect additional issue became apparent result joint expert report prepared traffic engineer referred provision upon council wish rely council notified appellant promptly receiving joint report would wish rely upon provision referred joint expert report sought appellant agreement expansion issue material disclose formal response mr connor appeared appellant today acknowledged response along line inviting respondent make application would consider take instruction respect 5 relief opposed suggested addition issue would require joint meeting process provision dealt simply course report trial short little complexity concern respect application 6 already observed amended application respect cost sought also sought direction relation provision written statement mr curtis field architecture urban design mr curtis expert nominated relation number different area expertise insofar field architecture urban design concerned appellant expert corresponding expertise accordingly would expected mr curtis would simply single report extent evidence given respect field rather engaged joint report process since counterpart field appears however confusion arose party express direction given court relation provision mr curtis separate statement relation field expertise difference opinion whether direction given exchange written report nominated expert disagreement sufficiently broad capture mr curtis effect prevent giving later separate report relation field architecture urban design reason amended application necessary agitate issue brought unopposed appellant 7 already observed appellant took opportunity make instanter application order would effect permit client existing expert one provide evidence responding mr curtis foreshadowed statement evidence relation field architecture urban design even though appellant expert notified expertise field order took deal debate today ultimately appellant unsuccessful seeking order instead order made effect provide respondent basis upon contends existing expert relevant expertise respond mr curtis statement also provide copy proposed statement evidence issue regard later ventilated 8 appellant application matter set hearing maroochydore unopposed 9 evident said today hearing concerned multiplicity issue two separate application one setting matter maroochydore entirely uncontentious amended application involved different element one provision statement mr curtis necessary bring confusion arose party effect earlier court order ultimately controversial party one largely unsuccessful instanter application appellant seek order today would provided expert respond statement evidence mr curtis thirdly extension issue arose respondent oversight earlier notification whilst respondent failure notify issue earlier time may raised discretion relation cost seems regard multiplicity application issue dealt course day return date discretion exercised order order cost

Commissioner of State Revenue v Harrison [2006] VSC 227 (28 June 2006).txt

commissioner state revenue v harrison 2006 vsc 227 28 june 2006 last updated 28 june 2006in supreme court victorianot restrictedat melbournecommercial equity divisionvictorian taxation appealsno 6815 2005commissioner state revenueappellantvrichard john harrisonrespondent judge hollingworth jwhere held melbournedate hearing 7 april 2006date judgment 28 june 2006case may cited commissioner state revenue v harrisonmedium neutral citation 2006 vsc 227 first home owner grant scheme deceased estate real property devised respondent sister transfer land respondent executor estate sister beneficiary sister sold half share respondent transfer sister respondent respondent registered proprietor respondent applied first home owner grant respondent became entitled possession sale contract whether appellant permitted raise ineligibility argument first time appeal first home owner grant act2000

Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 516 (27 May 2010).txt

pivotel satellite pty limited v optus mobile pty limited 2010 fca 516 27 may 2010 last updated 28 may 2010federal court australiapivotel satellite pty limited v optus mobile pty limited 2010 fca 516citation pivotel satellite pty limited v optus mobile pty limited 2010 fca 516parties pivotel satellite pty limited pivotel group pty limited pivotel communication pty limited v optus mobile pty limited optus network pty limitedfile number nsd 1468 2009judge jagot jdate judgment 27 may 2010catchwords practice procedure application leave file amended statement claim whether pleading discloses reasonable cause action whether pleading cause embarrassment leave grantedlegislation trade practice act 1974 cth federal court rule 11 r 16cases cited banque commerciale sa en liquidation v akhil holding ltd 1990 169 clr 279dare v pulham 1982 hca 70 1982 148 clr 658mckellar v container terminal management service ltd management service ltd 1999 fca 1101 1999 165 alr 409 1999 fca 1101murex diagnostics australia pty ltd v chiron corp 1995 fca 1040 1995 55 fcr 194pancontinental mining ltd v posgold investment pty ltd 1994 fca 983 1994 121 alr 405re kernel holding pty ltd v rothmans pall mall australia pty ltd 1991 fca 417re tooth co ltd tooheys ltd 1979 39 flr 1singapore airline limited v taprobane tour wa pty ltd 1991 fca 621 1991 33 fcr 158date hearing 21 may 2010place sydneydivision general divisioncategory catchwordsnumber paragraph 29counsel applicant mr f kunc sc mr c n bovacounsel respondent mr c moore mr j c pottssolicitor applicant marque lawyerssolicitor respondent minter ellison lawyersin federal court australianew south wale district registrygeneral divisionnsd 1468 2009between pivotel satellite pty limitedfirst applicantpivotel group pty limitedsecond applicantpivotel communication pty limitedthird applicantand optus mobile pty limitedfirst respondentoptus network pty limitedsecond respondentjudge jagot jdate order 27 may 2010where made sydneythe court order applicant notice motion filed 3 may 2010 dismissed applicant pay respondent cost incidental applicant notice motion filed 3 may 2010 agreed taxed applicant pay respondent cost incidental applicant notice motion leave discontinue proceeding filed 24 february 2010 agreed taxed respondent notice motion filed 4 may 2010 adjourned date fixed proceeding listed direction 1 june 2010 note settlement entry order dealt order 36 federal court rule text entered order located using federal law search court website federal court australianew south wale district registrygeneral divisionnsd 1468 2009between pivotel satellite pty limitedfirst applicantpivotel group pty limitedsecond applicantpivotel communication pty limitedthird applicantand optus mobile pty limitedfirst respondentoptus network pty limitedsecond respondentjudge jagot jdate 27 may 2010place sydneyreasons judgmentthe applicant respondent filed notice motion applicant pivotel satellite pty limited pivotel group pty limited pivotel communication pty limited pivotel sought leave rely amended application statement claim respondent optus mobile pty limited optus network pty limited optus sought strike original application statement claim common ground party first proposed amendment application immaterial pivotel wish include reference tos 87of thetrade practice act1974

Tate v Unanderra Heights Pty Limited (No2) (RLD) [2005] NSWADTAP 22 (27 May 2005).txt

tate v unanderra height pty limited no2 rld 2005 nswadtap 22 27 may 2005 last updated 27 may 2005new south wale administrative decision tribunal appeal panelcitation tate v unanderra height pty limited no2 rld 2005 nswadtap 22parties appellantspaula tate derek taterespondentunanderra height pty limitedfile number 049037hearing date paperssubmissions closed 22 04 2005decision date 27 05 2005before chesterman adcj deputy president higgins judicial membero neill non judicial memberdecision appeal unanderra height pty limited v tate unreportedfile number appeal 045008appeal date 12 07 2004legislation cited administrative decision tribunal act 1997retail lease act 1994cases cited calderbank v calderbank 1975 3 er 333citadin pty ltd 2 v eddie azzi australia pty ltd general pant pty ltd rld 2001 nswadtap 31gizah pty ltd v axa trustee ltd 2 2001 nswadt 164north eastern travelstops pty ltd v bradley or 2 rld 2005 nswadtap 17sotiropoulos v mattana coiffure pty ltd 2 rld 2004 nswadtap 43tate v unanderra height pty ltd rld 2005 nswadtap 5application costsmatter decision costsapplicant representative appellantsc doyle solicitorrespondent representative respondentc bavin solicitororders 1 respondent application cost appeal dismissed2 order cost application reason decision reason decisionintroduction1 application cost successful respondent appeal appeal appellant paula derek tate unsuccessfully challenged decision tribunal holding liable licence agreement respondent unanderra height pty ltd continue make payment site fee moved premise agreement related 2 premise owned respondent situated belmont agreement conferred right occupation appellant used conduct hairdressing business appellant vacated premise 20 october 2003 whereupon respondent asserted claim instalment weekly site fee 350 period 14 november 2003 23 june 2005 3 outline ground tribunal ex tempore decision respondent favour follows licence agreement conferred appellant right occupy premise purpose retail business period one year therefore fell within definition retail shop lease in 3of theretail lease act1994

Tough; Secretary, Department of Family and Community Services [2002] AATA 1212; (2002) 71 ALD 458; (2002) 36 AAR 226 (22 November 2002).txt

tough secretary department family community service 2002 aata 1212 2002 71 ald 458 2002 36 aar 226 22 november 2002 last updated 30 july 2009catchwords social security family tax benefit child adjusted taxable income exceeded cut amount year whether debt due commonwealth whether entitled family tax benefit distinction entitled eligible whether secretary review determination initially made entitling applicant benefit whether basis event occurring subsequently date initial determination distinction determination 31 decision 105a new tax system family assistance administration act 1999 decision set aside social security act 1991a new tax system family assistance act 1999ss 3 21 22 22a 58 60to63and85 schedule 1 3 4a new tax system family assistance administration act 1999ss 5 7 7a 9to10 13 16 17 19 21 23 24 25 27 27a 28 28a 28b 29 30 31 31a 31b 51b 54b 70 71 104 105 107 225and226data matching program assistance tax act 1990offner secretary department family community service 2002 aata 911re tiknaz director general social service 1981 4 aln n44decision reason decision 2002 aata 1212administrative appeal tribunal v2001 1649general administrative division secretary department family community servicesapplicantand michele toughrespondentdecisiontribunal miss forgie deputy president date 22 november 2002place melbournedecision tribunalset aside decision social security appeal tribunal dated 20 november 2001 substitute decision amount family tax benefit paid applicant respondent period 1 july 2000 11 april 2001 amount 732 72 debt due commonwealth applicant andadjourn consideration whether debt recovered date fixed forgiedeputy presidentreasons decisionon 18 december 2001 applicant secretary department family community service secretary applied review decision social security appeal tribunal ssat dated 20 november 2001 decision ssat set aside earlier decision delegate secretary deciding raise recover respondent mr michele tough debt 1 732 72 family tax benefit ftb paid period 1 july 2000 11 april 2001 place ssat substituted decision mr tough owe debt secretary since 1 000 debt waived leaving debt 732 72 2 matter heard paper party made written submission given opportunity oral hearing regard written submission also document lodged pursuant tos 37of theadministrative appeal tribunal act 1975 document issue3 issue case whether mr tough owes debt commonwealth whether amount debt amount 1 732 72 paid period 1 july 2000 11 april 2001 le amount already waived resolution issue requires consideration whether mr tough entitled ftb period also requires consideration whether secretary may review determination initially made entitling mr tough ftb whether may basis event occurring subsequent date initial determination mr tough owes debt secretary agreed issue relating waiver adjourned consideration another time background4 disagreement party regarding fact case light basis material referred made finding fact set following paragraph together outline structure relevant legislation provision eligibility ftb5 1 july 2000 parenting payment family payment previously paid pursuant thesocial security act 1991 s act replaced family tax benefit ftb payable pursuant thea new tax system family assistance act 1999 fa act ftb one payment together described legislation family assistance fa act 3 1 eligibility ftb6 eligibility ftb subject ofs 21of thefa actand provides 1 individual eligible family tax benefit individual least 1 ftb child seesection 22and later provision b individual australian resident c individual rate family tax benefit worked division 1 ofpart 4 greater nil 2 however individual eligible family tax benefit another provision subdivision provides 7 generally question whether individual ftb child determined according whether individual age 18 year age 18 20 aged 21 24 year different criterion must met according age group individual fall criterion set in 22of thefa act mr tough two son steven born 18 november 1979 brent born 24 june 1982 question case mr tough son met criterion relevant age group relevant time 8 section 22aof thefa actqualifiess 22for provides despite 22 individual cannot ftb child another case proceeds set table one case relevant case individual cannot ftb child another individual anadult individual aged 16 individual adjusted taxable income income year particular time occurs equal exceeds cut amount fa act 22a 1 9 expression adjusted taxable income meaning given byschedule 3of thefa act 3 1 general term subject qualification relevant case mean sum individual taxable income year adjusted fringe benefit target foreign income net rental property loss tax free pension benefit relevant year le amount individual deductible child maintenance expenditure year fa act schedule 3 clause 2 10 amount described cut amount mean sum amount specified column 2 item 2 table clause 30 schedule 1 divided 0 3 b amount specified clause 33 schedule fa act 22a 2 clause 30ofschedule 1sets subject toclause 31 individual standard rate worked mr tough circumstance standard rate son 1 781 20 clause 33provides individual income free area 1 616 11 applying figure formula in 22a 2 cut amount mr tough son 7 553 33 note however secretary ssat calculated cut amount 7 662 83 basis appropriate standard rate according toclause 30ofschedule 1of thefa act adjusted accordance consumer price index according tos 85andschedule 4 1 814 05 accept appropriate figure calculation rate ftb12 section 58 1 thefa actprovides subject tosections 60to63 individual annual rate family tax benefit calculated accordance rate calculator schedule 1 section 60to63modify provision ofs 58 1 circumstance relevant case making claim ftb13 section 5of thea new tax system family assistance administration act 1999 faa act provides way person become entitled paid family tax benefit make claim accordance subdivision ofpart 3 individual approved care organisation described legislation claimant may make claim payment family tax benefit instalment b payment family tax benefit past period c case claimant individual payment family tax benefit single payment substitution death another individual faa act 7 manner claim made subject ofs 7 2 thefaa act claim ftb instalment must give detail bank account accordance withs 7a faa act 7 2 aa claim ftb instalment claim payment ftb instalment past period must give tax file number tfn accordance withs 8 faa act 7 2 b section 9and10impose certain restriction claim payment ftb instalment past period respectively limitation relevant case determination claim ftb14 claimant claim payment ftb must determined according tosubdivision bofpart 3of thefaa act faa act 13 manner determination depends upon whether claim payment ftb instalment past period substitution death another section 16applies determination instalment entitlement claim provides secretary satisfied claimant time secretary make determination claim eligible family tax benefit accordance subdivision c division 1 part 3 family assistance act secretary must determine entitled paid ftb day determination force daily rate secretary considers claimant eligible faa act 16 2 section 17applies determination past period claim ands 17 b provides secretary satisfied claimant eligible family tax benefit whole period accordance subdivision c division 1 part 3 family assistance act ii part period accordance subdivision division remainder period accordance section 31 act secretary must determine claimant entitled paid family tax benefit past period 15 secretary satisfied matter addressed ins 16and17 must claim payment ftb instalment determine claimant entitled paid ftb day determination force claim payment past period determine claimant entitled paid ftb period s 19 b determination force 16 section 21 1 provides subject qualification appearing elsewhere in 21 determination come force made remains force time afterwards broad term s 21 2 provides determination underss 16or19 person entitled paid ftb cease force another determination made claim payment ftb instalment claim payment ftb past period section 21 3 provides determination cease force claimant advises secretary wish determination cease force payment ftb17 section 23 1 thefaa act provides subject section claimant entitled paid family tax benefit instalment secretary must instalment period ending determination made pay instalment amount claimant time secretary considers appropriate credit bank account nominated maintained claimant instalment amount amount accruing day instalment period entitlement paid family tax benefit arose determination 23 2 instalment period mean period 14 day beginning day secretary considers appropriate relation claimant class claimant claimant included b successive period 14 day 23 2 18 section 23 6 provides thats 23is subject topart 4andss 225and226of thefaa act section 225and226permit commissioner taxation make certain deduction order collect amount may become payable thefaa actand set family assistance amount tax liability part 4is concerned overpayment debt recovery 19 respect claim ftb past period secretary may pay amount claimant time manner secretary considers appropriate faa act 24 1 section 24 4 provides provision ofs 24are subject inpart 4andss 225ands 226of thefaa act claimant obligation notify secretary20 section 25of thefaa actsets obligation claimant become entitled paid ftb instalment claimant becomes entitled paid family tax benefit instalment anything happens cause claimant cease eligible family tax benefit day claimant become entitled paid benefit determination concerned become eligible daily rate family tax benefit le specified determination b claimant becomes aware anything likely happen effect claimant must manner set written notice given claimant undersection 25a soon practicable claimant becomes aware thing happened likely happen notify secretary happened likely happen variation determination21 subdivision cofpart 3provides variation secretary determination secretary may vary determination instalment past period determination claimant fails provide tfn circumstance set in 27of thefaa act may vary determination claimant fails provide bank account detail circumstance set in 27a may also variation instalment past period determination claimant claimant partner lodged income tax return required faa act 28 section 28aprovides variation estimate claimant amount adjusted taxable income regarded secretary reasonable section 28bprovides variation determination claimant entitled paid ftb instalment respect individual ftb child individual make claim certain payment including social security pension social security benefit faa act 28b section 29and30provide variation failure provide certain information 22 section 31 1 relevant case provides determination made undersection 16that claimant entitled paid family tax benefit instalment b determination made event occurs c secretary becomes aware occurrence secretary considers making determination immediately occurrence would conclude claimant longer eligible family tax benefit ii claimant still eligible rate family tax benefit different rate rate previously determined secretary must subject subsection 2 subparagraph c applies vary determination claimant entitled paid family tax benefit effect date occurrence e subparagraph c ii applies vary determination establish different rate effect date occurrence reference occurrence include occurrence event cause claimant provide revised estimate claimant adjusted taxable income secretary b cause secretary revise estimate claimant maintenance income unless c event also affect claimant eligibility family tax benefit rate family tax benefit payable claimant reason amount claimant adjusted taxable income maintenance income event claimant becoming ceasing member couple faa act 31 1b 23 section 31aprovides determination varied reflect revised estimate adjusted taxable income claimant paid ftb instalment rate ftb worked basis estimate adjusted taxable income new rate ftb would payable using revised estimate secretary must vary determination determine claimant rate basis revised estimate date effect revised determination subject ofs 31a 2 variation determination subsection 1 effect result increase claimant rate family tax benefit unless subparagraph ii applies day revised estimate provided secretary ii first day income year revised estimate relates occurs day identified subparagraph first day b result decrease including decrease nil claimant rate family tax benefit unless subparagraph ii iii applies day revised estimate provided secretary ii first day income year revised estimate relates occurs day identified subparagraph subparagraph iii apply first day iii day end last instalment period variation take place occurs day identified subparagraphs ii day first mentioned subparagraph variation period unders 31adoes take precedence variation made pursuant toss 27to30 31a 3 24 section 31bof thefaa actprovides variation determination claimant rate ftb worked basis estimate claimant maintenance income particular income year claimant entitled paid instalment secretary make revised estimate claimant maintenance income revision attributable occurrence event event whichss 31 1b c applies see paragraph 22 secretary must vary determination new rate ftb would required date variation determination effect must earlier either day end last instalment period variation take place b first day income year revised estimate relates faa act 31b 2 provision ofs 31b 3 reflect ofs 31a 3 secretary review decisions25 section 104of thefaa actsets decision secretary may review initiative decision decision officer family assistance law except certain determination underss 51band54b determination relation ftb excluded section 105provides decision coming withins 104may reviewed secretary secretary satisfied sufficient reason review decision faa act 105 1 b qualification circumstance secretary may conduct review qualification applicable case faa act s 105 3 reviewing decision secretary may decide affirm original decision vary set aside substitute new decision may also deem certain event occurred certain circumstance relevant case faa act 105 5 date effect decision made unders 105is subject ofs 107but none provision relevant context case overpayment debt recovery26 amount paid way family assistance includes ftb amount debt due commonwealth extent provision thefaa actor thedata matching program assistance tax act 1990expressly provides faa act 70 section 71applies family assistance child care benefit family tax benefit advance applies ftb provides entitlement amount debt generally owed person 1 subject subsection 2 amount paid person way family tax benefit maternity allowance maternity immunisation allowance assistance respect period event b person entitled assistance respect period event amount paid debt due commonwealth person overpayment 2 amount received amount paid person way assistance b received amount greater amount correct amount assistance paid person family assistance law difference received amount correct amount debt due commonwealth person 27 circumstance case find steven income exceeded 7 663 16 january 2001 mr tough advised centrelink occurrence date brent income exceeded 7 663 18 april 2001 mr tough advised centrelink date delegate decision28 record delegate decision appears screen dump made 31 august 2001 record notice issued mr tough 22 may 2001 included statement brent income 2000 2001 financial year exceeded dependant child income limit 7663 entitled payment family tax benefit 01 07 2000 document page 19 debt start date shown 1 july 2000 debt end date shown 11 april 2001 submissions29 decision ssat took view mr tough entitled ftb child exceeded limit mr tough notified centrelink soon son income exceeded limit benefit cancelled immediately incur debt position supported submission made behalf mr tough essence submission initially made behalf secretary ftb benefit paid annually whole payment must reviewed child income exceeds 7 663 child income exceeded amount mr tough entitled ftb whole financial year respect child subsequent submission secretary pointed power unders 105of thefaa actand said decision made section rather unders 31 consideration30 mr kenny said inoffner secretary department family community service 2002 aata 911 11 october 2002 family tax benefit payment may made applicant event fbt sic child provided insection 21of act although circumstance applicant andrew met requirement sub section 22 2 act provision must read circumstance exception listed sub section 22a 1 act paragraph 20 section 21determines eligibility ftb regard must provision ofs 22aas well provision made brief reference see paragraph 6 10 determining eligibility also agree mr kenny thats 22a 1 precludes individual ftb child adjusted taxable income 2000 2001 income year equalled exceeded cut amount calculated accordance sub section 22a 2 act paragraph 20 31 mr kenny considering case similar mr tough case happened mr tough m offner son adjusted taxable income 2000 2001 income year exceeded cut amount calculated 7 663 course year mr kenny concluded m offner circumstance embraced term sub section 71 1 administration act amount family tax benefit paid year amount entitled pursuant provision amount debt due commonwealth paragraph 20 although agree mr kenny ultimate conclusion debt express manner reach conclusion little differently 32 regard provision thefa actand thefaa actthat set seem two category decision may made alter determination one vary determination undersubdivision cofpart 3of thefaa act review decision circumstance set indivision 1ofpart 5into whichs 105of thefaa actfalls regard avenue begin first brief consideration ofs 70of thefaa act provides context case amount debt due commonwealth onlyto extent act expressly providesthat emphasis added reading section withs 71of act claimant owe debt commonwealth respect period unless provision thefaa actexpressly providing person entitled ftb respect period 33 seems follow conclusion person ineligible ftb entitled ftb whole year thefaa actuses word entitle eligible derivative appears distinct circumstance example 71 1 thefaa actspeaks term lack entitlement provides amount paid claimant respect period debt due commonwealth claimant entitled ftb respect period section 21of thefa actis couched term eligibility set criterion individual must fulfil order eligible ftb section as 16of thefaa actis couched term eligibility entitlement claimant eligible day secretary make determination claim secretary must determine claimant entitled paid ftb section 25is also couched term eligibility entitlement claimant become entitled paid ftb anything happens likely happen causing cease eligible ftb day become entitled become eligible lower amount claimant must notify secretary example occasion word entitle eligible derivative used thefa actor thefaa act 34 choice two word rather one suggests intended convey different meaning indeed given ordinary meaning two word synonymous taking first eligible mean far ordinary meaning relevant context 1fit entitled chosen position award etc new shorter oxford english dictionary 3rd edition 1993 1 fit proper chosen worthy choice desirable macquarie dictionary 2nd edition 1991 entitle chiefly circumstance quality etc confer person thing rightful claimtosomething rightto new shorter oxford english dictionary 3rd edition 1993 1 give person thing title right claim something furnish ground laying claim macquarie dictionary 2nd edition 1991 35 regard structure thefa actor thefaa act ordinary meaning word entitle eligible would seem appropriate summary legislation previous section reason show thefa actand thefaa actdeal separately distinctly step must taken determining whether individual entitled paid ftb first criterion determine whether person appropriate person receive ftb e eligible ftb set mean ftb conferred upon e entitled ftb entitlement arise make claim complies requirement manner claim must made provides information required claimant eligible secretary must determine entitled determination remains force another determination made claim instalment past period individual advises secretary wish cease force claimant entitled paid instalment secretary must pay instalment amount end instalment period 36 brings back two way determination altered first tos 31 set 31out full see paragraph 22 applies person entitled paid ftb instalment determination made unders 16and occurs event secretary making determination would cause conclude claimant longer eligible ftb date effect determination date occurrence 37 mr tough case determination made unders 16that entitled paid instalment ifs 31applies event must occurred date determination event could said occurred date would lead secretary conclude mr tough longer eligible ftb son adjusted taxable income exceeded cut amount ceased ftb child consequence although different time financial year case secretary must vary determination mr tough entitled paid ftb date effect varied determination date event event must occurred varied determination made date effect must date adjusted taxable income exceeded 7 633 date beginning financial year time mr tough son adjustable taxable income exceeded cut amount 38 interpretation ofs 31is consistent withs 25of thefaa act section 25requires claimant notify secretary anything cause cease eligible ftb day claimant become entitled paid benefit determination concerned refer past eligibility future eligibility anything happens consistent event occurs in 31after determination made 39 secretary decision made unders 31and provision thefaa actwere relevant case would follow mr tough entitlement ftb could cease son adjusted taxable income reached cut amount 7 633 amount paid date would amount mr tough would entitled would debt due commonwealth 40 however second avenue secretary may alter decision review earlier decision secretary may pursuant tos 105 delegate decision 22 may 2001 see paragraph 28 refer tos 105and refer tos 31 despite consider decision made unders 105 three feature first state brent income level exceeded child income limit second purport deal mr tough entitlement whole year third raise debt whole period decision feature consistent decision unders 31for decision unders 31could affected payment ftb date brent income exceeding cut amount could affected amount ftb paid mr tough prior date decision unders 105 however could effect may substituted original decision affect ftb paid date effect original decision e 1 july 2001 41 using power unders 105to review determination mr tough entitled ftb proper secretary consider eligibility light fact happened date decision fact affected eligibility 1 july 2001 approach consistent general principle adopted relation review tribunal set example tiknaz director general social service 1981 4 aln n44 daviesj president mr ballard dr garlick member nothing thefa actor thefaa actthat suggests review limited fact occurred certain time also consistent provision thefa actand thefaa actin far permit person apply ftb past period eligibility entitlement person would also determined reference known income person applying ftb child 42 context eligibility ftb one fact may affect eligibility income mr tough child particular brent effect ofs 22aof thefa actis brent cannot mr tough ftb child particular time adjusted taxable income income year particular time occurs exceeds cut amount regard income brent earned year ending 30 june 2001 income exceeded amount mean particular time year could ftb child mr tough brent could ftb child time financial year mr tough entitled ftb period financial year determination entitled ftb could made unders 16of thefaa actif entitled consequently entitled paid ftb 1 july 2000 11 april 2001 amount paid debt due commonwealth 43 reason given set aside decision social security appeal tribunal dated 20 november 2001 substitute decision amount family tax benefit paid applicant respondent period 1 july 2000 11 april 2001 amount 732 72 debt due commonwealth applicant andadjourn consideration whether debt recovered date fixed certify forty three preceding paragraph true copy reason decision herein ofmiss forgie deputy president signed p paczkowski associatedate hearing papersdate decision 22 november 2002for applicant m r bradley departmental advocatesolicitor respondent mr l jaffit victoria legal aid

Ward and Department for Family and Children's Services, Re [1996] WAICmr 56 (21 October 1996).txt

ward department family child service 1996 waicmr 56 21 october 1996 office information commissioner wa decision summary issued pursuant tos 76 8 thefreedom information act 1992complaint 96132decision d05696parties robert john wardcomplainantdepartment family child servicesrespondentno document dispute 3exemption clause 3 1 10 may 1996 mr ward complainant lodged access application department family child service agency seeking access thefreedom information act 1992 thefoi act document file note correspondence made agency connection certain earlier telephone call visit made office agency complainant application treated agency request thefoi actfor access personal information complainant accordingly agency gave complainant access full 10 document granted access edited copy three document deleting three document matter agency considered exempt matter clause 3 1 schedule 1 thefoi act 25 july 1996 agency received facsimile communication complainant treated request internal review respect initial decision give complainant access edited copy three document 7 august 1996 internal reviewer agency confirmed decision give complainant access edited copy document 2 september 1996 complainant lodged complaint information commissioner seeking external review agency decision pursuant provision thefoi act obtained copy disputed document agency although investigation officer attempted arrange meeting complainant discus certain aspect complaint attempt unsuccessful 3 october 1996 examining disputed document considering submission party acting information commissioner provided party writing preliminary view complaint preliminary view matter deleted disputed document matter prima facie exempt matter clause 3 1 acting information commissioner also gave party detailed written reason holding view agree view reason although complainant made submission response preliminary view submission dissuaded preliminary view matter deleted document agency exempt matter clause 3 1 summary reason provided party follows disputed matterthe three document dispute matter consist 1 facsimile transmission two page dated 23 2 96 canning branch agency foi record officer head office 2 extract case note dated 1 2 96 3 duty activity register dated 6 2 96 matter deleted document consists name telephone number date birth information named individual none deleted information relates concern complainant exemption clause 3 1 personal information clause 3 far relevant provides exemption 1 matter exempt matter disclosure would reveal personal information individual whether living dead glossary schedule 2 thefoi act personal information defined mean information opinion whether true whether recorded material form individual whether living dead whose identity apparent reasonably ascertained information opinion b identified reference identification number identifying particular fingerprint retina print body sample examined matter deleted disputed document satisfied matter personal information third party defined thefoi act view matter prima facie exempt matter clause 3 1 schedule 1 thefoi act limit exemptionpursuant clause 3 5 matter exempt matter clause 3 1 access applicant provides evidence establishing individual concerned consent disclosure matter applicant instance complainant attached application external review copy 2 access application dated 5 february 1996 made third party application bore annotation indicating complainant authorised receive inspect copy document subject application third party access application dated 5 february 1996 predate complainant access application five month view neither document constitutes evidence consent either third person disclosure complainant personal information either may contained disputed document instance although complainant submitted consent evidence placed satisfies complainant entitled access deleted matter subclause 3 6 also limit exemption clause 3 1 provides matter exempt clause 3 1 disclosure would balance public interest pursuant tos 102 3 thefoi act onus complainant establish disclosure personal information third party would balance public interest nothing regard notwithstanding recognise public interest access applicant able exercise right access thefoi act also recognise public interest maintenance personal privacy circumstance matter consider two competing public interest relevant interest must balanced absence material persuade otherwise consider public interest maintaining privacy third party identified disputed document outweighs complainant right access information accordingly reason given support acting information commissioner preliminary view summarised find matter deleted disputed document exempt matter clause 3 1 schedule 1 thefoi act b keighley gerardyinformation commissioner21 october 1996

Aikin v Riquier [1998] SARTT 71 (17 December 1998).txt

aikin v riquier 1998 sartt 71 17 december 1998 summarysection 66 two application one application lodged landlord seeking order tribunal rent owing agreement paid compensating landlord damage caused subject premise tenant second application lodged tenant seeking compensation matter arising landlord allowed third party subject premise tenant met another person name m glynn seeking accommodation tenant suggested m glynn might seek occupy subject premise m aikin left expectation m glynn stored belonging subject premise 6 may m aikin tenant secured house departed adelaide returned 10 may found window broken lamp broken drawer rifled glove missing tenant alleges m glynn gained access subject premise landlord either opened premise m glynn gave key broken window explained partly landlord partly m aikin m glynn cat believed inside subject premise returned 9 may gained access breaking window telephoned landlord explain done landlord arranged window replaced tribunal satisfied m glynn gained access premise 8 may facilitated landlord opening door landlord indicates received call officer office consumer business affair mt gambier police effect let m glynn access house could remove possession landlord state virtually forced opening door tribunal find m glynn sub tenant boarder legal right demand entry subject premise landlord obligation grant entry tribunal observes landlord action may breach section 65 66 tribunal also note section 72 provides landlord right entry note landlord fulfil proviso set section tribunal find landlord liable damage lamp glove belonged mr connor tenant boarder lodger tribunal concludes mr connor standing bring claim tribunal landlord mr connor party residential tenancy dispute riquier v aikinlenreasons order tribunal made hearing18 november 1998 riquier v aikinaikin v riquier r3587 98 determination two application heard on18 november 1998 first lodged on17 july 1998 byleon riquier aslandlord residential tenancy agreement renée jane aikin application seek order tribunal rent owing agreement paid landlord compensating landlord damage caused subject premise respondent tenant second application lodged on22 october 1998b byrenée aikin tenant application seek order tribunal compensating tenant matter arising landlord allowed third party subject premise tenant fixed amount 220 00 mr leon riquier landlord m renée aikin tenant appeared gave sworn evidence mr david connor basis evidence find residential tenancy agreement following term premise 20 millicent road burrungulecommencement date 13 november 1997period 12 monthslandlord leon gerard henri fernand modest riquiertenant renée jane aikinrent 110 00 per week payable weeklysecurity bond 440 00 guaranteed south australian housing trust behalf tenant registered commissioner bond 3072203 2 find agreement subject theresidential tenancy act 1995 theact note compliance regulation landlord supplied required inspection sheet information brochure commencement tenancy find notice termination prescribed form schedule 2 dated16 may 1998 served personally tenant notifying alleged breach residential tenancy agreement namelyrent 650 00 arrears notice provides breach remedied within three day tenancy terminated force notice tenant must give possession premise before25 may 1998 notice handwritten one pre printed standard form obviously differs important respect standard form regulation require notice form set schedule 2 general legislative provision effect give force document form substantially similar prescribed form however mr riquier form differs substantially particular comply provision section 80 section 80 requires person serving form give period least seven day fault remedied tenancy terminated mr riquier allowed three day accordingly find notice invalid m aikin chose leave subject premise note one year term expired elect take six month extension however ask extra two week moved fact left 27 may 1998 notice served influence decision leave considerable difficulty verifying rent arrears appears time rent recorded rent book landlord held approximately february gave rent book tenant thereafter mr riquier adopted system issuing invoice rent due receipt rent paid mr riquier bring receipt book prepared series statement reason made mount gambier office consumer business affair statement record receipt account invoice commencing november 1997 considerable difficulty making sense document calculated rent arrears stood 1002 00 mr riquier assured rent arrears stood 681 00 referred application specified amount m aikin prepared accept arrears stood 681 00 second claim relates flyscreen upstairs bedroom m aikin admitted flyscreen mesh damaged tenancy agreed pay amount sought landlord namely 25 00 claim landlord transport item left subject premise namely refrigerator washing machine car tyre rim m aikin told left item arranged friend pick cart dump may dispute long item left premise mr riquier moved m aikin new residence m aikin gave evidence paid friend cart away apparently get around time event satisfied item left premise two day m aikin vacated given nature item reasonable mr riquier return rather take dump event trip district dump tip fee would probably involved cost mr riquier offsider loaded onto vehicle moved mount gambier mr riquier claim 85 00 understand distance one way premise m aikin new residence approximately 20 km accordingly shall allow 20 00 travelling work taken approximately one hour allow labour two people come 25 00 making total 45 00 head claim total allowed mr riquier claim 751 00 brings u m aikin claim claim long time coming mr riquier matter first listed hearing 4 september 1998 able attend day medical treatment adelaide day m aikin indicated wish bring cross application matter relisted 25 september 1998 m aikin advised yet filed application diverted need care sick infant day indicated mr riquier tribunal intended claim broken lamp missing mesh glove matter relisted 4 november 1998 m aikin son due undergo surgery sought adjournment advance hearing date matter eventually heard 18 november 1998 m aikin application dated 22 october 1998 rather inelegantly worded much order sought non payment two week rent 110 00 x 2 ground indicate dispute landlord allowing person house without prior permission given mr riquier present earlier occasion m aikin outlined substance claim believe adequate notice detail application prepared matter proceed hearing evidence advantage hearing evidence mr riquier m aikin mr david connor found m aikin forthright evidence readily prepared admit matter interest appeared clear truthful evidence mr connor seemed somewhat passionate giving evidence occasion somewhat heated appears harbour animosity towards mr riquier may coloured evidence hand matter clear emphatic making allowance mr riquier ill health found rather confused especially sequence date note earlier considerable difficulty extracting history rent payment history recording rent payment evidence may direct conflict m aikin preferred evidence m aikin outline m aikin claim thus stage met within circle acquaintance person named sue glynn seeking accommodation m aikin suggested m glynn might seek occupy subject premise m aikin left expectation m glynn stored belonging subject premise wednesday 6 may m aikin secured house departed adelaide returned sunday 10 may return found window broken lamp broken drawer rifled glove missing intervening period mr connor attended house feed m aikin cat found house open people nearby including m glynn m aikin alleges m glynn gained access subject premise mr riquier either opened premise m glynn gave key flesh matter detail m aikin departed wednesday 6 may locked house secured friend mr connor residence town mount gambier although visit m aikin sometimes stay mr connor recall hitched ride subject premise friday arriving 1 00 pm noticed backdoor unlocked opened one house entered noticed certain item missing understood belonged m glynn also noticed touch lamp floor broken noticed people nearby building party referred studio evidence m aikin stated m glynn stored furniture subject premise studio mr connor approached people studio recognised man called theo person involved southeast anglican community care recognised m glynn somewhat cross m aikin premise entered remonstrated people studio told gone house intention call police police help resolve situation end went closed gate across vehicle track said m glynn drove car struck although understand causing significant injury car ran gate damaged gate apparently mr connor returned subject premise secured departed m aikin gave evidence returned bus sunday 10 may found window spare bedroom ground floor broken saw damaged gate entered house noticed broken lamp drawer rifled item belonging m glynn removed also came notice mesh glove missing mesh glove insignificant item belonged mr connor used previous employment cost purchasing glove given 160 00 told live least five year often 10 year six month old mr connor belief resale value approximately 150 00 m aikin also gave evidence obtained quote replacement lamp one stored offered similar lamp 43 95 another store offered 29 95 occurs replacement lamp probably le expensive seeking repaired indeed could repaired broken window explained partly mr riquier partly m aikin appears m glynn cat believed inside subject premise returned saturday 9 may gained access breaking window apparently telephoned mr riquier explain done mr riquier arranged window replaced upon returning home m aikin promptly located mr riquier asked happened indicated let m glynn subject premise mr riquier gave evidence portland 8 may received call mr len wall know officer office consumer business affair also received call mount gambier police call effect let m glynn access house could remove possession said protested receiving another telephone call mr len wall virtually forced opening door said supervised removal item file memo mr len wall indicates m glynn made enquiry 8 may claiming co tenant renée aikin claimed needed access remove good contacted mr riquier mr len wall understood se anglican care would assist m glynn moving belonging satisfied m glynn gained access subject premise 8 may facilitated mr riquier opening door presume gained access 1 00 pm accept mr connor evidence later day found lamp broken glove missing reasonable inference find people mr riquier allowed inside subject premise responsible damage lamp removal glove although sympathy pressure mr riquier think error making subject premise open m glynn tenant particular named residential tenancy agreement sub tenant would consider claim demand directed tenant however find sub tenant boarder m glynn legal right demand entry subject premise mr riquier obligation grant entry mr riquier action may breach ofsection 65of theact provides landlord permit interference privacy tenant tenant use premise may also breach ofsection 66of theact section relates security premise one provision provides neither party alter remove lock without consent mr riquier changed physical lock breach provision provision section landlord take reasonable step provide maintain lock device necessary secure premise note two separate provision conjoined word find curious piece drafting well may implied term withinsection 66of theact note similar term tosection 48of previousact 1987 tribunal found landlord provided key premise new tenant present tenant vacated money missing premise landlord breach implied term regarding security premise gibbs strouss v robey r2472 87 section 66will nonsense unless interpreted way provide party render lock ineffective intend follow previous decision provide implied term security premise landlord let stranger key premise continuing duty provide maintain lock ensure premise reasonably secure would negated note tosection 66of theactmakes law quite clear civil liability contraveningsection 66 likewise civil liability contraveningsection 65 section 72provides landlord right entry subject certain proviso mr riquier fulfil proviso set section provides neither shield comfort accordingly find mr riquier liable damage lamp reason stated earlier shall allow tenant claim 29 95 glove belonged mr connor tenant boarder lodger visited tenant time time lived elsewhere question arises whether m aikin mr connor claim landlord pursuant theact ground upon either claim jurisdiction magistrate court might jurisdiction case another issue power tribunal scattered throughout theact particular concentration insection 110 general power restricted dealing matter arise party tenancy dispute tenancy dispute defined theactto mean claim residential tenancy agreement dispute party residential tenancy agreement matter arising agreement theact conclude mr connor standing bring claim tribunal mr riquier mr connor party residential tenancy dispute standing bring claim residential tenancy agreement option m aikin bring claim mr riquier begs question whether standing bring claim acting agent mr connor may liable loss glove evidence acting agent evidence indicates m aikin baillee glove baillee reward benefit position bailee liable account mr connor glove damaged lost negligence loss glove came wrongful action party negligent act inaction behalf m aikin thus nothing indicate m aikin liability mr connor loss glove find tribunal power make order regarding glove evidence given hearing bond allocated landlord agreement part payment m aikin liability m aikin paid 20 00 reduction liability bringing account damage lamp find balance owing m aikin mr riquier 261 05 mr riquier wait long enough indeed see ground would reasonably give rise order suspend payment period time orderpursuant tosection 110 c theact order tenant pay landlord sum 261 05 forthwith failing payment order may enforced magistrate court rymilltribunal member

Merman Investments Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1107 (10 March 2023).txt

merman investment pty ltd v woollahra municipal council 2023 nswlec 1107 10 march 2023 last updated 10 march 2023land environment courtnew south walescase name merman investment pty ltd v woollahra municipal councilmedium neutral citation 2023 nswlec 1107hearing date conciliation conference commencing 1 december 2022date order 10 march 2023decision date 10 march 2023jurisdiction class 1before harding acdecision court order 1 appeal upheld 2 development application da66 2022 1 alteration addition approved residential flat building 3 wiston garden double bay otherwise known lot 4 dp 15968 determined way granting development consent subject condition set annexure 3 applicant pay cost respondent thrown away result amendment application development consent referred paragraph 2 pursuant tosection 8 15 3 theenvironmental planning assessment act 1979 agreed assessed catchword development application residential flat building clause 4 6 objection height floor space ratio control agreementlegislation cited environmental planning assessment act 1979 s 8 7 8 15land environment court act 1979 34state environmental planning policy amendment water catchment 2022state environmental planning policy building sustainability index basix 2004state environmental planning policy biodiversity conservation 2021 6 65 chs 6 12state environmental planning policy resilience hazard 2021 4 6woollahra local environmental plan 2014 cll 4 3 4 4 4 6 5 21 6 1category principal judgmentparties merman investment pty ltd applicant woollahra municipal council respondent representation counsel gadiel solicitor applicant le breton solicitor respondent solicitor mill oakley applicant hwl ebsworth lawyer respondent file number 2022 246647publication restriction nojudgmentcommissioner appeal pursuant tos 8 7 1 theenvironmental planning assessment act1979

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ICS Industries Pty Ltd [2023] FWC 834 (5 April 2023).txt

communication electrical electronic energy information postal plumbing allied service union australia v ic industry pty ltd 2023 fwc 834 5 april 2023 last updated 6 april 2023 2023 fwc 834the attached document replaces document previously issued missing code 5 april 2023 missing mnc 2023 fwc 834and reference number pr760922 added associate deputy president clancy dated 6 april 2023 2023 fwc 834fair work commissiondecisionfair work act 2009s 437 protected actioncommunications electrical electronic energy information postal plumbing allied service union australiavics industry pty ltd b2023 316 deputy president clancymelbourne 5 april 2023proposed protected action ballot employee ic industry pty ltd 1 application communication electrical electronic energy information postal plumbing allied service union australia applicant made 437 fair work act 2009 act protected action ballot order relation certain employee ic industry pty ltd respondent 2 5 april 2023 associate advised respondent object application 3 circumstance decided determine matter paper without holding hearing 4 basis material including declaration m chelsea hill applicant setting step taken bargaining respondent genuinely trying reach agreement respondent satisfied notification time relation proposed agreement requirement 443 1 act met 5 order separately issued inpr760923 deputy presidentprinted authority commonwealth government printer pr760922

V00_10997 [2001] RRTA 146 (15 February 2001).txt

v00 10997 2001 rrta 146 15 february 2001 refugee review tribunaldecision reason decisionrrt reference v00 10997country reference yugoslaviatribunal member adolfo gentiledate decision made 15 february 2001place melbournedecision tribunal affirms decision grant protection visa backgroundthe applicant citizen yugoslavia arrived australia lodged application protection class az visa department immigration multicultural affair themigration act 1958 act delegate minister immigration multicultural affair refused grant protection visa applicant applied review decision hearing conducted assistance interpreter bosnian english languagesthe legislationunders 65 1 act visa may granted decision maker satisfied prescribed criterion visa satisfied criterion grant protection class az visa set in 36of act inpart 866of schedule 2 migration regulation force immediately 20 october 1999 subsection 36 2 act provides criterion protection visa applicant visa non citizen australia australia protection obligation refugee convention amended refugee protocol refugee convention refugee protocol defined mean 1951 convention relating status refugee 1967 protocol relating status refugee respectively 5 1 act australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined refugee conventionarticle 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 applicant anor v minister immigration ethnic affair anor 1997 190 clr 225 andminister immigration ethnic affair v guo anor 1997 191 clr 559 inguo case court observed definition contains four key element first applicant must outside country element issue present matter second applicant must fear persecution every threat harm interference person right convention reason constitutes persecuted inchan casemason cj referred persecution requiring serious punishment penalty significant detriment disadvantage case mchugh j said notion persecution involves selective harassment appropriate case may include single act oppression serious violation human right measure disregard human dignity persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor third persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country country nationality applicant stateless must unable unwilling fear return country former habitual residence whenever protection applicant country available ground based well founded fear refusing person concerned need international protection refugee whether applicant person australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future claim evidencethe tribunal department file includes applicant protection visa application tribunal also written submission support application review applicant also gave oral evidence tribunal applicant protection visa application form claimed bad position muslim serbia describes conflict child problem school street religion claim properly paid authority would provide assistance adviser submission indicated applicant face persecution mixed marriage submission accompanied statement applicant well statement two witness statement recount difficulty experienced two people applicant stated subjected threat abuse work colleague husband family neighbour others husband unemployed ethnically clean married muslim submission also indicated advised husband lost job hearing applicant reiterated claim tribunal heard several witness finding reasonsthe applicant female citizen yugoslavia bosnian ethnicity muslim faith arrived australia passport name australian three month visitor visa husband child remain yugoslavia essence claim fear persecution ground muslim mixed marriage also fear persecution second class citizen fear welfare child totality applicant claim made context yugoslavia 1990s war croatia bosnia lately kosovo applicant report harassed co worker muslim also report incident oldest child school child cut razor blade see blood applicant stated hearing child brought orthodox faith applicant hearing made general claim discrimination harassment muslim general especially mixed marriage tribunal accepts might time certain person would insult muslim applicant suffered particular fate hand one co worker tribunal also accepts child play ground may behave fashion racist offensive tribunal accepts incident occurred consider involve sufficient degree harm constitute convention persecution tribunal note applicant continuously employed professional capacity since early 1980s various location tribunal accepts stated lost job however evidence tribunal indicate loss employment related convention reason tribunal note since applicant australia husband child remained yugoslavia reported occurrence kind behaviour outlined applicant towards husband child tribunal also accepts period time covered applicant claim e ninety yugoslavia characterised division divisiveness culminating break former yugoslavia problem kosovo tribunal note considerable change taken place yugoslavia even tribunal hearing people turned milosevic regime commentator called bloodless coup number democratic reform already put place fry following independent information illustrates analysis kostunica early day first step long road andrew gray reuters news service 20 october 2000 cx46647 belgrade vojislav kostunica might feel quiet satisfaction first two week yugoslav president time 56 year old constitutional lawyer catapulted power uprising forced slobodan milosevic admit defeat last month election plenty show early stage presidency kostunica huge task still ahead one ally even joked week taking tablet keep awake day night since taking office two week ago saturday new president main achievement restoring tie west broken decade milosevic rule brought four balkan war international pariah status received impressed stream high level foreign visitor whose presence belgrade would unthinkable week ranging french foreign minister hubert vedrine u president bill clinton balkan envoy smart guy clear vision want move ahead said western official met kostunica new president also felt grip power strong enough leave country last weekend france attend european union summit received warm welcome eu united state lifted economic sanction decade kostunica native serbia associated many neighbour belligerence sent conciliatory signal dispatched ally croatia visited montenegro serbia estranged partner yugoslav federation plan attend summit regional leader macedonian capital skopje next week tribunal considered submission witness written submission provided others tribunal find unpleasant disconcerting experience recounted applicant would nature severity constitute convention persecution furthermore situation yugoslavia changed dramatically since claim made make likelihood occurrence similar experience future experience found persecutory convention sense remote view tribunal find real chance applicant persecuted convention reason return yugoslavia therefore fear persecution well founded conclusionhaving considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set 36 2 act protection visa decisionthe tribunal affirms decision grant protection visa adolfo gentilemember constituting tribunal

Grujic v Darebin CC [2016] VCAT 748 (11 May 2016).txt

grujic v darebin cc 2016 vcat 748 11 may 2016 last updated 12 may 2016victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1531 2015permit application 318 2015applicantradoslavka nikolic grujicresponsible authoritydarebin city councilrespondentspaul orfanos sandra karen cockburnsubject landrear 19 17 railway placefairfield vic 3078where held55 king street melbournebeforedalia cook memberhearing typehearingdate hearing29 february 2016 30 march 2016date order11 may 2016citationgrujic v darebin cc 2016 vcat 748orderthe decision responsible authority affirmed permit application 318 2015 permit granted cost reserved party wish make application cost must file serve application supporting submission later 10 june 2016 application must include following information amount detail cost claimed basis cost calculated example whether standard indemnity basis whether county court supreme court scale note rule 1 07 victorian civil administrative rule 2008 default scale cost standard basis county court scale reason cost awarded regard provision thevictorian civil administrative act1998 response application cost must filed served later 1 july 2016 party may request hearing consider application cost 7 july 2016 upon compliance order tribunal may decide application cost paper list hearing considers appropriate dalia cookmemberappearances radoslavka nikolic grujicms acreman counsel instructed aitken partner called following witness give evidence 1 mr radoslavka grujicms ana monissemr le brown valuer m3property strategistsmr ian oliveyra town planner network planning consultantsfor darebin city councilmr vasilopoulos counsel direct brieffor paul orfanosmr townsend counsel instructed russell kennedy called following witness give evidence 2 mr paul orfanosmr john kanellakosmr kyriakos orfanosmr robert milner town planner 10 consulting groupfor sandra karen cockburnms sandra cockburn person 3 informationdescription proposalremoval easement carriageway created favour adjoining property created instrument 723523 favour lot 1 tp899655snature proceedingapplication undersection 79of theplanning environment act1987

Smith v Blenkinsop & Ors [2009] QDC 124 (15 May 2009).txt

smith v blenkinsop or 2009 qdc 124 15 may 2009 last updated 19 may 2009district court queenslandcitation smith v blenkinsop or 2009 qdc 124parties michael paul smith applicant vaaron michael blenkinsop first respondent tony michael blenkinsop second respondent john charles forrest third respondent timothy kiernan fourth respondent file 207 2008proceeding application criminal compensationoriginating court district court cairnsdelivered 15 may 2009delivered cairnshearing date 1 may 2009judge everson dcjorder respondent jointly pay applicant sum 12 000 separately liable following amount first respondent 3 600 00 second respondent 1 200 00 third respondent 3 600 00 third fourth respondent 3 600 00catchwords criminal compensation psychological injury physical injury criminal offence victim act 1995criminal offence victim regulation 1995r v jones ex parte zaicov 2001 qca 442 2002 2 qd r 303at 310counsel solicitor legal aid queensland applicantno appearance respondent 1 application compensation order pursuant section 24 criminal offence victim act 1995 cova 2 injury giving rise application suffered result personal offence respondent convicted indictment 24 january 2007 namely one count burglary circumstance aggravation two count deprivation liberty one count common assault fact 3 offence occurred evening 14 february 2006 armed masked respondent forcibly entered applicant dwelling tied applicant colleague applying electrical tape hand foot threatened weapon carrying included knife baseball bat ordeal applicant feared life colleague incident ordeal brought end arrival police injury 4 applicant suffered following injury consequence incident ligature mark hand foot taped electrical tape psychological sequela relevant law 5 cova establishes scheme payment compensation victim certain indictable offence including suffer injury defined section 20 bodily injury mental nervous shock pregnancy injury specified compensation table prescribed regulation 6 pursuant section 25 cova compensation order may made scheme maximum 75 000 specified section 2 criminal offence victim regulation 1995 covr using percentage listed injury specified compensation table schedule 1 cova r v jones ex parte zaicov 1 home j described process following term thus examination section convinces two three stage process entailed one injury first step arrive amount respect injury second add amount together third arrive compensation order 7 relevantly compensation table prescribes 8 1 bruising laceration etc minor moderate 1 3 32 mental nervous shock moderate 10 20 9 section 25 cova also state court determining amount paid injury regard everything relevant including example behaviour applicant directly indirectly contributed injury furthermore process assessing compensation pursuant cova involve applying principle used decide common law damage personal injury maximum amount compensation provided reserved serious case amount provided case intended scaled accordingly 2 injury specifically listed compensation table court must decide amount compensation comparing injury injury injury listed compensation table regard amount may ordered paid injury 3 assessment 10 applicant record ligature mark took day go report dated 20 january 2008 dr richardson psychologist concluded applicant suffering post traumatic stress disorder moderate range major depressive disorder specifies mild moderate record applicant attribute responsibility distress feel first respondent third respondent fourth respondent 30 responsible second respondent 10 responsible sentencing remark dated 1 february 2007 griffin sc dcj concluded first third respondent significantly involved incident fourth respondent somewhat le involved involvement second respondent least involvement recorded untying applicant hand second respondent demonstrated compassion 11 pursuant 26 cova find respondent directly materially contributed applicant injury providing separate liability respondent amount scaled according respective contribution applicant injury find percentage nominated applicant appropriate broadly consistent finding made sentencing judge set 12 satisfied applicant contribute injury 13 regard evidence particular matter set ass compensation pursuant cova compensation table follows item 1 1 750 00item 32 15 11 250 00 12 000 00order 14 order respondent jointly pay applicant sum 12 000 separately liable following amount first respondent 3 600 00 second respondent 1 200 00 third respondent 3 600 00 third fourth respondent 3 600 00 1 2001 qca 442 2002 2 qdr 303at 310 2 25 8 referring 22 4 3 25 6

The Synagogue [1995] SALC 30 (25 August 1995).txt

synagogue 1995 salc 30 25 august 1995 last updated 6 april 2007in licensing court south australiaadelaidebefore honour judge b st l kellyin matterof liquor licensing act 1985andin matterof complaint pursuant section 114 liquor licensing act 1985 b w j h heaven respect premise situate synagogue place adelaide known asthe synagogue extempore reason decisiondelivered friday 25th august 1995counsel applicant mr g griffin phillips fox complainant mr mr heavenrepresenting liquormr e milogradlicensing commissioner assistant liquor licensing commissioner doubt mr mr heaven continue unduly seriously disturbed music escaping operation synagogue accept mr heaven say present disturbance supported independent licensing inspector licensee going cure problem considerable cost via service mr messer timing vitally important sooner work done better interim something must done alleviate cause complaint noise limiting device fitted date successful noise today dissimilar noise past simple answer seems limiter sufficiently limiting right require volume noise lowered may lowered extent annoyance thus negatived ceiling work done sound well nigh impossible without virtually turning music closing premise see viable alternative given talking limited interim period many case compromise fair way proceed balancing act like mr messer belief another form noise limiting device required set due regard interest licensee neighbour accept say week track feel sure improvement achieved upon undertaking licensee given proceed measure e installation noise limiter mr messer earliest opportunity structural work recommended mr messer earliest opportunity adjourn complaint sine die liberty party call matter advised licensee keep mr heaven advised progress dissatisfied may approach intervention licensee wish mr mr heaven object outdoor function decline become involved even could must sought commissioner doubt consider application merit

Minerals Resource Rent Tax Amendment (Protecting Revenue) Bill 2013 [2013] AUSStaCSBAD 55 (27 February 2013).txt

mineral resource rent tax amendment protecting revenue bill 2013 2013 ausstacsbad 55 27 february 2013 mineral resource rent tax amendment protecting revenue bill 2013backgroundminerals resource rent tax amendment protecting revenue bill 2013introduced house representative 11 february 2013by mr bandtbackgroundthis bill amends theminerals resource rent tax act 2012to protect revenue generated mineral resource rent tax eroded state government increasing royalty possible retrospective effectschedule 1 item 3item 2 schedule 1 would introduce new subsection 60 25 3 act proposed provision provides increase royalty 1 july 2011 disregarded calculating royalty credit mineral resource rent tax item 3 application provision state amendment made item 2 applies royalty credit mrrt year commenced 1 july 2012 later royalty year unfortunately explanatory memorandum contain explanation retrospective application item 2 amendment committee therefore seek advice rationale proposed approach pending private member reply committee draw senator attention provision may considered trespass unduly personal right liberty breach principle 1 committee term reference

Forsyth, Anthony; Stewart, Andrew --- "Fair Work: The new workplace laws and the Work Choices legacy" (The Federation Press, 2009) [2009] ELECD 20.txt

forsyth anthony stewart andrew fair work new workplace law work choice legacy federation press 2009 2009 elecd 20editor forsyth anthony stewart andrewtitle fair work new workplace law work choice legacyabstract book wide ranging collection authoritative accessible analysis profound change labour regulation howard rudd government author leading scholar practitioner examine nature legacy controversial work choice reform workplace relation set change new fair work legislation besides overview development separate chapter shifting boundary federal state regulation safety net enforcement process agreement making regulation bargaining industrial action trade union right dispute resolution unfair dismissal book must anyone grappling impact change publisher federation pressdate publication paperback 15 april 2009isbn paperback 9781862877368topic industrial relation eeo industrial employment lawlength hardback soft 288

Caligiore, Guiseppa [2003] MRTA 2368 (22 April 2003).txt

caligiore guiseppa 2003 mrta 2368 22 april 2003 last updated 23 may 2003 2003 mrta 2368catchwords review visa refusal return residence class bb subclass 155 information provided tribunal compelling reason absence close personal tie review applicant giuseppa caligiore aka zappula visa applicant abovetribunal migration review tribunalpresiding member megan hodgkinsonmrt file number v02 04269dept file number clf2002 028674date decision 22 april 2003at melbournedecision tribunal remit application made applicant return residence class bb visa department immigration multicultural indigenous affair reconsideration direction applicant meet following criterion subclass 155 visa clause 155 212 schedule 2statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate giuseppa zappulla caligiore applicant female national italy born 18 april 1918 applied return residence class bb subclass 155 visa 10 may 2002 d1 f 19 24 delegate decision refuse grant visa made 5 june 2002 d1 f 25 29 jurisdiction standing2 applicant lodged application review migration review tribunal tribunal 14 june 2002 t1 f 2 5 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa department reconsideration remittal may accompanied direction applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether applicant meet one essential criterion application remitted decision affirmed basis 5 criterion policy immediately relevant review legislation item 1128 schedule 1 regulationspart 155and157of schedule 2 regulationspolicy migration series instruction msi 356 resident return visas6 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence7 tribunal following document t1 mrt case file v02 04269 folio numbered 1 171 d1 departmental case paper folio numbered 1 31 8 applicant entered australia 15 october 1967 permanent resident 7 october 1991 departed australia staying 3 year visitor visa return 15 march 2002 holder electronic travel authority visitor subclass 976 visa expired 15 june 2002 applicant applied subclass 155 visa 10 may 2002 9 marisa caligiore applicant daughter law submitted applicant shared house husband departing 1991 left behind many personal belonging intention return soon possible applicant departed australia order assist daughter living italy child household duty whilst daughter attended business also bad flight back italy feared returning australia aeroplane 1997 98 daughter family moved rome business reason applicant left sicily family d1 f 8 14 18 marisa caligiore provided copy passport applicant three son residing australia 10 letter david bucknell justice peace former mayor city broadmeadows dated 8 may 2002 stated known applicant 20 year always found good neighbour friend citizen three son wife wished remain permanently australia prepared make accommodation available mr bucknell stated personally knew applicant son could vouch fine citizen people belonged close knit family deep love affection mother d1 f 15 letter kelvin thomson mp member will dated 3 may 2002 set applicant history stated three married son seven grandchild australia 84 year age quite healthy applicant son happy applicant remain australia mr giuseppe caligiore self contained flat home pascoe vale accommodate applicant wish return sicily lived public housing flat italian ministry housing asked applicant whether wished purchase flat italy could afford likely flat would sold happened applicant would housing italy whilst majority child resided australia applicant received italian australian pension financially able meet cost welfare family australia felt granted resident visa compassionate ground would one care sicily must le anyone return italy d1 f 16 17 11 delegate found applicant absent australia 5 year found compelling reason applicant absence australia application refused applicant failed meet requirement clause 155 212 also found applicant meet criterion subclass 157 visa decision refuse application class bb visa made 5 june 2002 d1 f 25 30 12 14 june 2002 applicant applied tribunal review decision t1 f 2 5 marisa caligiore submitted delegate failed consider number factor including applicant three son family care australia whereas daughter italy living rome unable care m caligiore submitted delegate also failed give due consideration applicant housing difficulty italy health financial independence t1 f 6 letter kelvin thomson mp dated 2 july 2002 stated informed applicant would suffer great hardship forced return sicily family member support daughter italy relocated rome work reason 3 married son 6 grandchild australia applicant 84 year age wish desperately remain australia wanted find comfort support remaining year life note documentation file applicant originally arrived australia october 1967 reason beyond control return italy number occasion last departure october 1991 away australia since three son family upset application residence return visa rrv rejected applicant family australia would appreciate sympathetic favourable consideration mother remain compassionate humanitarian ground t1 f 22 13 3 march 2003 applicant representative provided document support application review 14 statutory declaration dated 27 february 2003 giuseppe caligiore stated applicant eldest son applicant left australia 1991 order assist sister living sicily time applicant left many belonging australia clothing furniture expected return australia soon possible applicant terrible flight italy deeply affected made frightened flying fly italy assist return australia previous year giuseppe caligiore stated 4 mother return home town sicily would alone also uncertain whether mother able live flat lived palazzolo return ministry housing approached buy flat unable afford flat may sold someone else apartment totally inappropriate deteriorating osteoporosis apartment second floor mean many stair climb simple task going shopping difficult reliant neighbour also elderly apartment accommodate elderly person example bathroom separate shower required step bath tub quite high also handrail completely alone sicily wife brother australiado notwant mother return palazzolo acreide uncertainty well established member australian community able care assist elderly year 5 australia mother life pascoe vale self contained flat attached home pay rent food ideal place want live u surrounded immediate family australia willing able care becomes older 6 two brother wish mother able remain permanently australia close knit family would deeply worried mother return italy would support requires would devastated separated year 7 brother taken private health insurance mother willing able provide assurance support 8 mother made huge sacrifice returning sicily 1991 assist daughter elderly woman deserves live later year comfort surrounded family 15 statutory declaration dated 27 february 2003 applicant stated sister three son family seven adult grandchild also lived australia family member overseas apart daughter permanently based rome applicant stated 3 first arrived australia 16 october 1967 two youngest son death husband left behind daughter married time given birth first child eldest son giuseppe arrived australia one year prior arrival death father arranged brother come australia time australia visited italy approximately three four time solely visit daughter family 4 returned sicily 11 year ago daughter daughter family sicily main priority concern mother felt needed support daughter suffers depression drinking problem stable mentally always found difficult cope daughter needed italy asked join business needed assistance child household duty attended business 1991 decided must help daughter way could left australia october year left behind many belonging australia including clothing furniture intended return soon possible flight back italy terrible ill upon arrival trauma flight affected nerve badly even thought flying completely debilitating 5 initially lived pallazzolo sicily daughter lived bucchieri sicily town approximately 18 kilometre apart 6 daughter business go well 1997 1998 accepted another business offer rome family transferred family set family business continue today left alone pallazzolo however believed daughter left apartment bucchieri vacant would soon return afraid joining daughter new place elderly woman however due fear flying could face returning australia fear overwhelming despite desire return australia fear prevented could get plane alone also felt mother obligation country daughter case needed finally decided return australia last year son giuseppe travel italy order fly back australia 7 daughter return bucchieri couple year decided want live anymore approximately 2 year ago went rome see see could live time still thought hoped daughter would return bucchieri stayed rome four month lived apartment small adequate elderly person felt like prisoner room apartment small could easily walk flight stair apartment daughter family work family business left alone apartment work business meant daughter worked seven day week time mental state meant ability assist space apartment accommodate 16 applicant stated wished stay australia family overseas apart daughter permanently based rome unable assist applicant due work commitment unable accommodate applicant due lack space daughter would within daily commuting distance applicant lived alone pallazzolo applicant require urgent daily assistance daughter unstable mental state meant unable care assist applicant also uncertainty whether applicant would able return live housing commission flat sicily financial position buy apartment applicant returned italy relocate would difficult establish support network would need applicant stated 11 elderly woman limited day day activity also difficulty due osteoporosis australia well cared eldest son giuseppe caligiore daughter law live pascoe vale self contained flat attached home giuseppe registered builder run profitable business daughter law marisa caligiore work home profitable conveyancing business mc conveyancing service financially independent term daily need expense housing situation australia need pay rent household item bill 12 two son also live australia bricklayer business sister also life australia 13 tie australia strong family would suffer immeasurable pain forced return italy successful business making remarkable contribution australia would affect deeply forced leave would also disruptive business forced continually fly back italy visit 14 lastly australia surrounded immediate family member desperately want spend remainder day son family sister family willing able take care physically emotionally even financially required 17 translated statutory declaration applicant granddaughter italy maria lopizzo stated father applicant son law 76 year old suffering myocardiopathy result serious heart attack suffered 20 year previously required going care attention check ups admission hospital suffering glaucoma previous two year maria lopizzo mother paola caligiore applicant daughter suffered nervous breakdown due stress related husband general condition problem maria lopizzo brother carrying business brother concerned work 18 none family house facility take elderly person capable living independently house could accessed stair handrail bathroom facilitate use toilet space limited necessary nuclear family would sufficient provide satisfactory living condition small amount privacy applicant 19 tribunal convened hearing 5 march 2003 appearing person hearing applicant three son giuseppe salvatore vincenzo caligiore daughter law marisa maria lee caligiore seven adult grandchild one infant great grandchild applicant representative also attended hearing 20 applicant stated three son australia married seven grandchild also sister australia brother also lived australia passed away one daughter italy married three adult child one sibling italy died 21 applicant stated last returned australia 2002 originally arrived australia 1967 returned italy 1991 assist daughter daughter recently opened business highly strung nervous business going well needed applicant support applicant helped intending return australia afraid flying old 1997 1998 daughter moved rome needed support son applicant daughter well concerned son could assist applicant applicant remained palazzolo wanted return australia afraid travel aeroplane returned australia prior 2002 passport expired anyone assist son would visit australia could stay long time unable remain sufficient length time sort difficulty relation passport 1998 son giuseppe visited approached local council office assistance relation passport difficulty appointed person assist 22 applicant stated remained italy due fear flying near daughter even daughter moved rome applicant thought would return sicily left apartment vacant 23 marisa caligiore explained applicant passport renewed applicant decided return australia however afraid flying applicant also concerned would abandoning daughter paola caligiore problem marisa caligiore stated first met paola caligiore 1979 fragile state mind one point collapsed nervous rage highly strung anxious applicant also strong bond daughter felt responsible wanted close possible 24 finally managed applicant passport renewed taken approximately 12 18 month australian visa issued thought would able obtain visa applicant australia told visa would issued italy engaged agent applicant village obtain visa marisa caligiore contacted embassy told record application applicant marisa caligiore stated contacted australian embassy rome several occasion query delay occasion told everything would right waited finally applicant issued electronic visitor visa marisa caligiore know taken long time 25 marisa caligiore stated would best applicant remain australia return italy would alone would one help resident apartment building elderly struggle go even buy milk bread applicant would go outside apartment building palazzolo due osteoporosis road village cobbled difficult applicant walk anywhere even venture australia applicant self contained unit attached marisa giuseppe caligiore home appropriately fitted comfort family wanted comfortable happy australia 26 giuseppe caligiore stated unit australia especially built applicant two bedroom one applicant one vincenzo caligiore lived married unit held applicant furniture remained unoccupied whilst italy home giuseppe caligiore stated travelled italy several occasion see applicant remained italy due daughter circumstance applicant always thinking daughter italy however little applicant could anymore applicant could hardly walk unable venture outside apartment italy could stay longer returned italy 1998 2000 2002 accompany applicant back australia 27 vincenzo caligiore stated family australia wanted look applicant saw every second day child saw two three time per week travelled italy see applicant 1996 apartment second storey approximately 30 step difficult applicant manage salvatore caligiore stated also visited applicant 1996 confirmed difficulty apartment 28 tribunal requested evidence one applicant grandchild david caligiore eldest grandson nominated give evidence stated known applicant life looked grandchild australia kept constant contact provided link generation italian heritage told story grandfather provided link extended family without would see occasionally applicant kept extended family together cohesive unit 29 tribunal noted appeared reason applicant remain italy daughter moved rome also appeared delay renewing passport obtaining visa return australia however appeared remain approximately 1 ½ year applicant returned australia fall within either explanation 30 david caligiore added time applicant thought daughter would returning sicily want leave case assistance still required applicant uncertain whether return australia although family wanted 31 applicant stated family loved wanted australia italy one 32 hearing representative provided copy applicant passport issued february 1999 eta approved 20 january 2002 33 submission provided 12 march 2003 representative submitted compelling reason existed applicant absence australia 1996 2002 outlined statutory declaration marisa caligiore dated 11 march 2003 34 marisa caligiore stated applicant proud traditional kept much pain divulged marisa caligiore since living together since tribunal hearing applicant revisiting begun talk experience italy relation applicant daughter marisa caligiore described circumstance applicant migration australia death husband applicant remained plagued necessity leave daughter italy first child needed financial emotional support son marisa caligiore stated applicant daughter continued manipulate guilt felt applicant exploited emotionally financially returned italy 24 year feeling somehow needed make daughter life better remained end 1997 daughter went rome daughter constantly assured would return sicily business established apartment sicily remained vacant marisa caligiore stated anytime mother law mentioned daughter considering returning australia daughter went hysterical mother law sacrificed happiness belief good mother abandoning daughter second time however daughter mentally ill manipulative could see destructive towards mother law 35 2000 needed assistance tried live daughter rome treated well financially exploited returned palazzolo mentioned returning australia resulted argument increased tension accusation applicant abandoning since applicant returned australia daughter refused speak giuseppe caligiore blamed taking applicant away nervous breakdown unstable 36 marisa caligiore explained 1999 applicant brother sebastiano zappulla died close mourned death considerable time also prevented returning australia wanted sicily whilst dying also death order could properly mourn loss 37 2000 applicant brother law died condition deteriorating five year period applicant strong relationship greatly affected death last tie husband 38 marisa caligiore stated mother law unable return australia 1996 2002 several reason volatile guilt ridden relationship daughter illness death two important people life considerable length time took issue passport visa well fact utterly petrified travel believe reason compelling mother law elderly woman last year life considerable stress anxiety want remain australia stability family last year documentation provided evidence death applicant relative italy visit made applicant australian relative 39 maria caligiore also provided statutory declaration dated 11 march 2003 outlined reason delay 1999 2002 obtaining visa applicant return australia finding reasons40 time visa application lodged return residence class bb contained following subclass subclass 155 five year resident return subclass 157 three month resident return subclass respect claim advanced subclass 155 five year resident return 41 meet requirement subclass 155 visa applicant must satisfy criterion set subdivision 155 21 time application subdivision 155 22 time decision clause 155 212 requires 155 212 1 applicant meet requirement subclause 2 3 3a 4 3a applicant meet requirement subclause applicant australia minister satisfied applicant substantial business cultural employment personal tie australia benefit australia b absent australia continuous period 5 year since date grant applicant recent permanent visa unless compelling reason absence ii 42 tribunal must firstly consider whether applicant substantial business cultural employment personal tie australia benefit australia considering matter tribunal taken account guideline contained paragraph 4 4 23 4 4 27 msi 356 clear appearance family member tribunal hearing applicant substantial personal tie australia regard australia home home australia kept absence additionally tie australia stronger country despite obviously strong bond daughter italy considering whether tie benefit australia tribunal taken account paragraph 4 4 27 4 4 28 msi 356 state 4 4 27substantial personal tie may benefit australia sense applicant participating member australian community economy likely become participating member australian community economy future tie enrich life individual australian resident citizen 4 4 28it also relevant consider potential hardship applicant australian citizen family unit member travel australia australian citizen applicant close tie applicant granted rrv 43 applicant family gave strong evidence importance applicant life david caligiore gave evidence enrichment brought life generation applicant presence australia tribunal find applicant substantial personal tie australia benefit australia accordingly applicant meet requirement paragraph 155 212 3a 44 applicant arrived australia permanent resident 1967 would held permanent residence least first departure australia 1974 departmental record incomplete unclear information available recent permanent visa granted however applicant absent australia 7 october 1991 15 march 2002 clearly absent australia continuous period 5 year since granted permanent visa therefore order satisfy subclause 155 212 3a b applicant must show compelling reason absence assist determining whether applicant substantial personal tie msi 356 provides 4 4 33under policy require applicant demonstrate compelling reason entire absence australia compelling reason must exist date applicant absence australia reach 5 year date application 4 4 36an applicant australia lodge application rrv 155 212 3a b required demonstrate compelling reason continuous absence australia 5 year since last granted permanent visa date ceased australian citizen 4 4 37policy require applicant show compelling reason initial 5 year absence australia however must show compelling reason absence australia 4 4 38for people last departed australia without permanent visa last departed temporary visa holder policy intention compelling reason continuous absence 5 year since last departing australia permanent resident 4 4 39the term compelling defined legislation ordinary meaning applies 4 4 40this strong test reason person absence example compelling reason include limited severe illness death overseas family member applicant applicant accompanying family member acute medical condition requiring treatment preventing travel applicant involved legal proceeding sale property custody contractual obligation timing beyond applicant control applicant caught natural disaster political uprising similar event beyond control 45 macquarie dictionary 1988 defines compel include force drive especially course action 46 case tribunal must consider whether compelling reason applicant absence australia five year immediately prior lodgement application tribunal accepts analysis made msi 356 point considers first five year applicant absence australia disregarded thereafter 7 october 1996 15 march 2002 tribunal must satisfied compelling reason existed applicant absence australia 47 tribunal accepts evidence given tribunal hearing statutory declaration provided evident tribunal hearing applicant central figure family presence greatly missed time italy tribunal accepts applicant reluctant divulge information found distressing tribunal particularly presence son daughter law grandchild interpreter therefore tribunal consider information provided marisa caligiore statutory declaration undermined delay providing contrary light tribunal impression applicant hearing applicant reluctance divulge information strengthens compelling nature 48 regard evidence tribunal satisfied applicant left australia 7 october 1991 felt duty bound assist daughter emotionally physically financially may exacerbated feeling guilt daughter effect nevertheless tribunal satisfied applicant subjective view relationship daughter sufficient compel return italy assist tribunal find marisa caligiore description applicant relationship daughter highly plausible supported fact statutory declaration provided daughter italian granddaughter statement statutory declaration marisa caligiore well evidence given hearing tribunal satisfied daughter condition improve applicant compelled remain italy least daughter moved rome 1997 tribunal satisfied applicant remained italy reason time believed daughter would return sicily basis later evidence provided tribunal find compelling reason form death brother brother law tribunal accepts applicant close bond compelling reason absence australia 1999 2001 tribunal accepts event affected applicant unable leave italy time tribunal accepts delay renewing passport issuing visa constituted delay returning australia beyond applicant control accordingly tribunal considers applicant compelling reason absence australia continuous period 5 year immediately lodged application visa basis tribunal find satisfies requirement subclause 155 212 3a b satisfies subclauses 155 212 3a 155 212 1 therefore satisfies clause 155 21249 applicant satisfies relevant criterion subclass 155 visa tribunal need ass circumstance criterion subclass 157 three month resident return visa conclusion50 given finding made appropriate course remit application visa department consider remaining criterion visa tribunal position decide remaining criterion decision51 tribunal remit application made applicant return residence class bb visa department immigration multicultural indigenous affair reconsideration direction applicant meet following criterion subclass 155 visa clause 155 212 schedule 2

DPP v Jones [2018] VSC 329 (29 June 2018).txt

dpp v jones 2018 vsc 329 29 june 2018 last updated 29 june 2018in supreme court victorianot restrictedat melbournecriminal division cr 2017 0146director public prosecutionsvearl jones judge hollingworth jwhere held melbournedate hearing 12 16 19 21 february 18 june 2018date sentence 29 june 2018case may cited dpp v jonesmedium neutral citation 2018 vsc 329 criminal law sentence murder jury verdict fatal stab wound inflicted thigh course spontaneous fight intention cause really serious injury lack remorse non acceptance responsibility victim death prior conviction borderline intellectual functioning mental health issue long history alcohol substance abuse disadvantaged upbringing application ofbugmyprinciples guarded prospect rehabilitation sentenced 20 year imprisonment non parole period 15 year appearance counselsolicitorsfor dppmr grantoffice public prosecutionsfor mr jonesmr sala trial mr p chadwick qc plea emma turnbull lawyer trial ann valos criminal law plea honour 1 earl jones found guilty jury murder stephen lowry monday 1 august 2016 2 time mr lowry known several month living boarding house st kilda 3 early hour 1 august went balaclava hotel entered hotel around 2 20 played poky socialised woman hour cctv footage show acting apparently normal manner throughout time hotel left 3 16 4 made way regal boarding house mr lowry living cctv footage show jumping locked front gate regal 4 46 wearing clothes wearing hotel carrying backpack 5 keith baker lived regal acquaintance foyer time wandering around boarding house looking cigarette food mr baker recognised let front door building mr baker went upstairs cctv footage show entering mr lowry room 4 47 mr baker initially went room 6 shortly entered mr lowry room mr baker came room asked cigarette mr lowry told needed speak told mr baker would bring cigarette shortly mr baker observe sign animosity mr lowry mr baker left mr lowry alone mr lowry room 7 stage next 12 minute assaulted mr lowry unknown number time course attack picked one many knife mr lowry room stabbed upper left thigh two stab wound inflicted entry point thigh although known order inflicted one stab wound 12 cm deep lacerated thigh muscle although one penetrated 7 cm thigh cut femoral artery ultimately causing mr lowry bleed death 8 mr baker back room heard low groaning sound someone repeatedly calling name rang mr lowry phone answered stef fucked next 9 left regal 5 07 taking knife five minute later threw knife fence nearby property knife later recovered police 20 cm long blade bore sample dna mr lowry later fled st kilda area taxi 10 shortly left regal mr baker went mr lowry room knocked door checking mr baker alone mr lowry let room mr lowry sitting next door covered blood also considerable amount blood around room asked happened mr lowry said earl got got 11 mr baker called 000 5 13 police paramedic arrived shortly thereafter unable resuscitate mr lowry 12 prosecution case stabbed mr lowry intent cause really serious injury kill although mr lowry sort ongoing dispute property suggestion stabbing premeditated seemed good spirit earlier night first entered mr lowry room 13 exactly happened relatively brief period mr lowry alone room unknown clear almost two dozen bruise abrasion laceration different part mr lowry body must assaulted multiple time forensic pathologist performed autopsy accepted injury particularly one mr lowry head may caused mr lowry falling otherwise knocking body furniture item cluttered room fact none neighbour heard commotion tends suggest altercation relatively short duration 14 drug may played role occurred room autopsy revealed mr lowry consumed morphine methylamphetamine ice methadone although specific evidence usage 31 july 1 august 2016 likely given heavy daily usage ice heroin time substance affected extent stabbed mr lowry although drug use mitigating feature offending may help explain argument broke two judgment impulse control may poor time 15 said done room started assault mr lowry unknown court given account happened room rather denied police regal relevant time anything mr lowry death said evidence suggest acting self defence mr lowry physically attacked way 16 left mr lowry seriously injured bleeding heavily severed artery made attempt stop bleeding call help action callous fact attempted dispose incriminating evidence throwing away knife left crime scene aggravating feature offending 17 consider personal circumstance want say something effect action others stephen lowry 35 year old died 18 mr lowry three sister one brother provided victim impact statement court suffering greatly death speak feeling grief anger anxiety depression loss trust others loss enjoyment work socialising feel sense pain helplessness unable help protect mr lowry thought bleeding death alone room particularly difficult deal 19 nothing court say bring back mr lowry heal family grief pain sentence impose reflection value mr lowry life rather reflects large number factor judge required take account one victim impact statement 20 turn consider personal circumstance 21 born january 1987 mildura youngest three boy aboriginal family parent separated young initially moved melbourne father brother russell 22 6 7 year old father moved russell northern territory spent couple year primary school katherine father home town moved beswick small indigenous community located 120 km katherine unfortunately beswick community struggle issue poverty violence alcohol substance abuse although father working frequently away home problem alcohol abuse 23 attended primary school beswick year 7 attend high school would required four hour round trip day katherine left alone unsupervised day without structure school meaningful activity soon began abusing substance getting trouble law started using cannabis 13 sniffing petrol 14 24 aged 13 broke beswick store steal clothing sent dale youth detention centre darwin couple year later received similar sentence breaking store 25 age 15 starting looking mother moved melbourne assistance father social worker mother located came darwin visit custody upon release moved live mother melbourne 26 new stepfather get along living mother new family six month sent shepparton live maternal uncle uncle lived wife seven child overcrowded chaotic household unemployment substance abuse widespread 27 period 3 ½ year lived shepparton frequently ran away home refuge placed went melbourne would live street enrolled worawa aboriginal college secondary boarding college indigenous student lasted month throughout period desperate reconnect mother felt rejected interested new family 28 started using heroin 16 started binge drinking 18 sentenced two period youth detention victoria primarily theft robbery offence committed whilst living shepparton 29 moved back katherine area 7 year worked time labourer pastoral station would generally manage control drinking week would come town get involved drunken fight weekend served number separate sentence imprisonment adult prison nt sentence imposed relatively minor driving property offence however december 2010 sentenced 4 year imprisonment assault intent steal cause harm occasion became involved two others robbing seriously assaulting stranger early hour morning 30 final release darwin prison moved melbourne month met woman queensland moved townsville 31 relationship ended moved nsw met ashleigh mother two young son violence influence alcohol led sentenced nsw three separate occasion 2014 2015 domestic violence offence involving ashleigh 32 early 2016 released prison broken ashleigh returned melbourne started using ice heroin daily time offence unemployed mostly living brother room gatwick hotel 33 early childhood apparently diagnosed attention deficit disorder teenage year assessed iq 82 place close borderline intellectual deficiency range however history significant mental health issue 34 unfortunately spent formative year growing environment alcohol abuse violence social disadvantage featured prominently court recognised experience may compromise person capacity mature may leave mark last throughout life 1 35 30 conviction alcohol drug undoubtedly played major role much past offending numerous attempt made year engage treatment counselling without success perhaps surprising given circumstance living 36 although none past offending anywhere near serious current offence clear conviction prone engage spontaneous outburst violence particularly substance affected prospect future rehabilitation inextricably linked prospect addressing substance abuse issue remains clear need specific deterrence case well general deterrence punishment 37 arrested relation matter 5 august 2016 custody since much time remand held protection unit order protect prisoner threatened situation may well continue sentenced however large proportion victorian prison population held protection given time necessary consider particular condition held although able associate certain prisoner suggested protection status led serious restriction employment study leisure option amount time spent cell 38 although shown remorse killing mr lowry reason straightforward still deny regal relevant time killed mr lowry notwithstanding number different piece evidence clearly place believe lawyer court official involved case colluded police allowing change time cctv footage dr gunvant patel forensic psychiatrist assessed purpose sentencing think believe innocent constructed explanation police legal system operating concert prove guilty dr patel say around 30 homicide offender cannot recall relevant act psychological inability retain memory process distress caused taken somebody life circumstance regard lack remorse significant might otherwise 39 nevertheless failure inability accept responsibility killing mr lowry relevant assessing prospect rehabilitation 40 whilst custody weekly phone contact son aged 3 4 apart largely isolated family appear support within community 41 overall guarded prospect rehabilitation particularly regard long history substance abuse offending lack education steady employment history intellectual deficit lack community support 42 said 31 year old still relatively young furthermore reason unfortunate upbringing grown positive role model opportunity develop appropriate life skill setting non parole period hope allow adequate opportunity develop skill community supervision adult parole board community interest well given opportunity acquire skill order reduce likelihood offending complete sentence whether eligible parole doubt depend part behaviour custody 43 murder stephen lowry sentence imprisonment 20 year 44 fix period 15 year period must serve becoming eligible parole 45 declare period reckoned already served sentence 634 day including today date direct noted record court fact declaration made detail 1 bugmy v r 2013 249 clr 571

Isnuhandoyo, Adirini Tatiana [2001] MRTA 924 (9 March 2001).txt

isnuhandoyo adirini tatiana 2001 mrta 924 9 march 2001 last updated 11 may 2001 2001 mrta 924catchwords review visa refusal subclass 560 clause 560 224 financial ability undertake course relevance studyvisa applicant adirini tatiana isnuhandoyotribunal migration review tribunalpresiding member george haddadmrt file number n00 03974dima file number clf2000 41659date decision 9 march 2001at sydneydecision tribunal affirms decision review finding visa applicant entitled grant student temporary class tu visa statement decisionapplication review1 application review decision made delegate minister immigration multicultural affair delegate miss adirini tatiana isnuhandoyo visa applicant national indonesia born 30 may 1976 applied student temporary class tu visa 10 march 2000 delegate decision refuse grant visa made 24 june 2000 jurisdiction standing2 visa applicant lodged application review tribunal 20 july 2000 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject departmental policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural affair dima department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 legislation policy material immediately relevant review legislation item 1222 schedule 1 regulationspart 560of schedule 2 regulationsschedule 8 regulationsdirections section 499 act nildepartmental policy procedure advice manual 3 generic guideline g student visasprocedures advice manual 3 schedule 2 student visa 560procedures advice manual 3 schedule 8 visa conditionscases pradhan v minister immigration mutilcultural affair 1999 fca 12406 tribunal generally regard regulation regulation stood time visa application however subsequent amendment may apply circumstance evidence7 tribunal following document mrt case file n00 03974dima file clf2000 41659the tribunal also received evidence visa applicant another witness hearing held 9 february 2001 8 departmental file tribunal file disclose history application follows 9 visa applicant entered australia student visa 24 july 1993 visa valid 31 december 1993 visa applicant granted series student visa travelled several time outside australia holder student visa last student visa granted 11 march 1998 valid 15 march 2000 visa applicant since held bridging visa granted basis application visa subject review 10 visa application made 10 march 2000 time application visa applicant held substantive visa subclass 560 visa 11 arriving australia visa applicant studied bachelor commerce curtin university technology 1997 master commerce university new south wale 1999 visa applicant provided transcript academic record master commerce indicates achieved satisfactory result 12 visa applicant currently enrolled diploma information technology course supreme business college commenced 31 january 2000 proposed finish 31 january 2002 registered course cricos code 022604a 104 week duration tuition fee 8 000 13 delegate stated visa granted basis delegate satisfied visa applicant genuine student entry stay student delegate regard fact visa applicant provide evidence substantially complied condition condition 8202 applied visa last held visa applicant delegate concluded visa applicant meet requirement clause 560 21 560 22 14 tribunal received application review 20 july 2000 15 visa applicant provided tribunal following document credit card statement indicating amount expenditure visa applicant visa applicant stated credit card subsidiary father card pay expense incurs visa applicant highlighted expense said attributed total approximately 580 period 14 november 1999 1 december 1999 737 period 10 30 december 1999 777 11 march 1 april 2000 last amount included payment 290 dima statement visa applicant declaring name detail three person state visited australia brought cash family statement visa applicant dated 5 june 2000 outlining reason continuing study australia say completed master course july 1999 graduated october 1999 planning return indonesia closed bank account living money left using credit card go say 6 august 1999 however riot jakarta created problem family led fire destroyed building father office say father advised would safer stay australia continue study father could longer afford pay university tuition fee say decided undertake course information technology supreme business college located 15 minute walking distance home cite also development computer technology around globe necessary obtain better job requirement lot company hope open business future 16 visa applicant received letter tribunal dated 31 october 2000 inviting provide additional information relevant case 17 reply visa applicant provided following document interim attendance record interim academic result supreme business college period 31 january 2000 31 august 2000 letter employer declaring owner convenience store stating visa applicant employed employer since 1 september 2000 work 15 20 hour per week bank statement period 31 january 2000 27 july 2000 indicating closing balance 1 82 bank statement period 17 october 2000 1 december 2000 indicating closing balance 5 011 52 statement current financial ability stating weekly income 260 saving 5 014 53 weekly expense 348 18 visa applicant subsequently invited letter dated 25 january appear tribunal give evidence present argument relating issue relevant case 19 evidence given hearing summarised follows 20 visa applicant outlined history study undertaken since arrival australia 21 visa applicant relied much documentary evidence submitted tribunal prior hearing 22 regarding two specific deposit cash bank account subsequent application one sum 4 000 17 october 2000 sum 1 000 7 november 2000 visa applicant stated money brought cash indonesia friend travelled twice australia indonesia period 23 visa applicant explained source regular small cash withdrawal appear bank statement st george bank money earned part time work convenience store 24 visa applicant brought along witness claimed employer witness gave evidence regarding hour worked visa applicant 25 visa applicant told tribunal closing comment also supported boyfriend australian citizen said life help payment rent findings26 time visa application lodged class tu contained number subclass subclass respect claim advanced subclass 560 evidence suggest visa applicant meet key criterion subclass 27 criterion subclass 560 visa relevant tribunal consideration contained clause 560 212 held relevant visa time application 560 213 560 227 complied substantially condition visa 560 222 enrolled full time study registered course 560 224 genuine student 28 tribunal make following finding 29 time application visa applicant last held subclass 560 student visa circumstance visa applicant captured subclause 560 212 2 thus visa applicant satisfies requirement clause 560 212 30 visa applicant provided confirmation enrolment supreme business college pty ltd registered course thus meet criterion clause 560 222 31 tribunal ass whether visa applicant meet requirement clause 560 213 32 tribunal must regard visa condition applied visa granted pradhan visa granted 11 march 1998 33 time visa application visa applicant last held subclass 560 visa included condition 8202 stated follows 8202 holder must satisfy course requirement 34 detail must satisfy course requirement mean found current pam 3 14 4 4 state follows 14 4 4 student visa granted prior 1 december 1998 subject even earlier 8202 condition subject toregulation 2 43 2 b requires visa cancelled student comply condition guideline early version visa condition 8202 see 30 april 1997 issue 23 version pam3 genguide g 35 relevant paragraph 30 april 1997 issue 23 version pam 3 provide following respect condition 8202 condition 8202 course requirement loss student status11 11 condition 8202 state holder must satisfy course requirement 11 12 except certain student undertaking english course course non government institution see paragraph 11 16 generally policy envisage student comply condition coming attention unless student lost student status ie unless institution deetya ausaid formally withdraws revoke student student status action usually result student failed meet abide standard condition institution eg failed examination failed submit course work complete course assignment maintain valid enrolment satisfactory attendance record however may circumstance information may lead dima investigation 36 life visa last held visa applicant undertaking postgraduate course university attendance record kept visa applicant awarded master commerce university new south wale 1999 basis tribunal satisfied visa applicant substantially complied course requirement thus visa applicant meet requirement clause 560 213 37 remaining clause 560 224 must satisfied time decision subregulations 4 5 refer burmese citizen relevant case subregulations 1 2 3 set 1 subject subclauses 4 5 minister satisfied applicant genuine applicant entry stay student regard financial ability applicant undertake course without contravening condition visa relating work b subject subclauses 2 3 applicant comprehension english purpose course c whether applicant intends comply condition subject visa granted relevant matter 2 minister regard applicant comprehension english minister may require applicant undertake english language test conducted agency immigration 3 applicant required undertake test undertake pas minister grant visa 38 visa applicant australia studying since 1993 appears difficulty studying tribunal satisfied visa applicant comprehension english sufficient course 39 tribunal address whether visa applicant financial ability undertake course without contravening work related condition attached visa last held 560 224 1 condition 8105 condition 8105 stated follows 8105 holder must engage work australia relation holder course study training 20 hour week week institution holder studying session 40 bank statement provided tribunal show one account st george bank opened 31 january 2000 deposit 1 000 also show inter bank transfer 1 987 8 february 2000 three cash deposit 440 3 february 900 28 february 2000 1 000 19 may 2000 regular small withdrawal either eftpos purchase atm cash withdrawal demonstrate pattern withdrawal sometimes every day every two three five day one large withdrawal 2 200 14 february 2000 coincides date receipt payment tuition fee amount 2 748 supreme college date closing balance 1 82 27 july 2000 41 another account westpac bank opened cash deposit 4 000 17 october 2000 deposit 1 000 made 7 november 2000 closing balance 1 december 5 011 52 42 visa applicant made withdrawal period lack withdrawal six week period inconsistent bank transaction pattern demonstrated applicant statement period seven month january july 2000 visa applicant gave evidence closed st george bank account operates westpac bank account clear tribunal visa applicant supported period 43 visa applicant provided statement stating financially supported family father gave money every two month either came visit friend travelling australia indonesia claim amount 2 000 2 300 2 000 brought 23 december 1999 5 march 2000 1 june 2000 respectively however visa applicant say independent evidence provided support claim 44 hearing relied evidence stated cash amount deposited westpac bank account 4 000 27 october 2000 1 000 7 november 2000 brought person travelled australia indonesia twice period 45 tribunal evidence one money transfer overseas amount le 2 000 february 2000 apparent visa applicant meeting payment tuition fee living expense tribunal however satisfied source cash visa applicant demonstrated cash amount continue available visa applicant 46 hearing visa applicant also described typical weekly roster convenience store say employed follows 4 hour usually morning usually weekday sometimes weekend sometimes worked 20 hour time le 20 hour average 20 hour per week 47 visa applicant brought witness hearing m poppy indrianti claimed employer m indrianti earlier provided letter noted stating owner convenience store visa applicant employed 48 tribunal received evidence m indrianti asked confirm owner convenience store question said fact owned family work account hour visa applicant work visa applicant worked maximum 4 hour per day mostly 4 00pm 8 00pm usually thursday sunday always le 20 hour per week witness claimed visa applicant worked le 20 hour per week discrepancy account visa applicant regarding hour day worked regarded significant tribunal casting doubt visa applicant statement regarding income derives work 49 basis little evidence support visa applicant various claim source substantial amount cash coupled contradictory account hour day work given employer tribunal satisfied visa applicant demonstrated financial ability undertake course without contravening condition visa limiting work 50 tribunal also given regard statement elaborated upon hearing visa applicant tribunal regard relevant point father indicated cannot continue provide financial support university level higher cost university tuition fee 51 tribunal therefore find visa applicant satisfy paragraph 560 224 1 52 relevant case tribunal also address requirement paragraph 560 224 1 stated regulation follows 560 224 1 subject subclauses 4 5 minister satisfied applicant genuine applicant entry stay student regard relevant matter 53 tribunal note course visa applicant currently enrolled lower qualification level study already completed tribunal regard relevant matter pam 3 say issue relevance study 9 5 2 case regardless whether student applying outside australia factor may policy taken account include whether student seeking undertake course consistent appropriate current level education whether study relevant student past proposed future employment appropriate home country 9 5 5 nature academic level proposed course able demonstrate proposed course relevant appropriate current circumstance 9 5 6 even student looking new direction career course still relevance background level training 54 visa applicant studied bachelor commerce curtin university technology 1997 master commerce university new south wale 1999 th visa applicant currently enrolled diploma information technology course supreme business college post secondary level course two year duration 55 visa applicant stated statement dated 5 june 2000 development computer system believed would better job opportunity hoped open business apply expert knowledge 56 argued information technology relevant beneficial contemporary activity academic pursuit career prospect although visa applicant gave evidence may go undertake post graduate study information technology establish satisfaction tribunal present course may regarded relevant future career plan consistent level study already achieved 57 tribunal persuaded proposition put forward visa applicant regarding change direction study returning post secondary level course recently completed master degree different field 58 regard fact visa applicant australia since july 1993 gave evidence stating relationship australian citizen tribunal satisfied visa applicant motivated desire continue study order remain australia enhance potential future career consistent purpose student visa cast doubt whether visa applicant genuine applicant entry stay student 59 taking account factor paragraph 560 224 1 especially 560 224 1 560 224 1 tribunal satisfied visa applicant genuine applicant entry stay student thus fails meet requirement criterion clause 560 224 60 circumstance necessary tribunal consider criterion 61 considered material evidence given visa applicant another witness hearing tribunal find visa applicant fails meet requirement prescribed criterion clause 560 224 therefore entitled grant subclass 560 student visa accordingly application must fail appropriate course action affirm decision review decision62 tribunal affirms decision review finding visa applicant entitled grant student temporary class tu visa

Applicant: Mr Michael Duncan Principal: Mr Sammy Kam Hung Wong IRT Reference: N91_00886 #number 1128 [1992] IRTA 1128 (3 August 1992).txt

applicant mr michael duncan principal mr sammy kam hung wong irt reference n91 00886 number 1128 1992 irta 1128 3 august 1992 sammy kam hung wongdecision joseph metledge member delivered sydney 3 august 1992 extended eligibility economic temporary entry permit whether position opal buyer highly skilled whether would possible find suitably qualified australian citizen permanent resident whether employer made adequate plan train replacement legality employing company nominating employee also director companymigration regulation rr 51 128bretagv immigration review tribunal minister immigration local government ethnic affair unreported federal court 29 november 1991 minister immigration ethnic affairsv pochi 1980 fca 85 1980 4 ald 139immigration review tribunalstatement decision reason decisionirt reference n91 00886 1128 docapplicant mr michael duncanopal house pty ltdprincipal mr sammy kam hung wongtribunal mr j metledgepresiding memberdate 3 august 1992place sydneydecision tribunal adjourns review request department carry health character check principal reason decisionthis review decision refusing grant extended eligibility economic entry permit principal mr sammy kam hung wong application lodged sydney 15 march 1991 decision made delegate minister immigration local government ethnic affair 16 april 1991 application internal review decision made migration internal review office miro 22 april 1991 review officer affirmed decision 26 august 1991 application review decision made tribunal 11 september 1991 applicant mr michael duncan opal house pty ltd nominator principal principal born 15 november 1959 citizen hong kong principal arrived australia 11 march 1991 holding temporary resident visa arrival entry permit granted valid 15 march 1991 entry permit granted principal consequently became illegal entrant date principal travelled australia visitor visa 1976 1988 15 march 1988 travelled australia temporary resident visa order determine entitlement applicant visa entry permit tribunal must regard provision themigration act 1958and migration regulation regulation provide class visa entry permit prescribe criterion met applicant becomes entitled visa entry permit non citizen wish travel australia must hold valid visa holder valid visa may travel landing place australia airport may leave airport person require grant valid entry permit arrival enable enter remain legally australia regulation provide grant permanent visa entry permit temporary visa entry permit class temporary visa entry permit issued visitor preclude holder applying permanent residence arrival australia however person may eligible apply one number called extended eligibility entry permit class temporary entry permit preclude holder applying permanent residence prescribed criterion health public interest criterion apply class visa entry permit regulation also prescribe additional criterion applicable particular class visa entry permit tribunal generally first examine whether additional criterion particular class visa permit satisfied criterion satisfied need consider whether prescribed criterion satisfied determining fact existed date application tribunal may take account later fact far throw light situation existed earlier date inbretag v immigration review tribunal minister immigration local government ethnic affair unreported sg 72 1991 29 november 1991 federal court held tribunal may regard subsequent history determining question fact time application long tends logically show existence non existence fact relevant issue determined quoting fromminister immigration ethnic affair v pochi 1980 fca 85 1980 4 ald 139at 160 per deane j date application relevant criterion class entry permit contained migration regulation criterion regulation 128 public interest criterion health criterion applicant member family unit required assurance support must provided regulation 128 requires satisfaction number criterion including criterion requires applicant satisfy relevant criterion relation least one number class visa including employer nomination visa appropriate class visa satisfied principal primary decision maker miro officer found exception criterion employer nomination visa regulation 128 satisfied tribunal accepts finding accordingly proceed consider principal satisfied criterion employer nomination visa support application review tribunal received written submission tribunal also access relevant departmental file received oral evidence hearing considering evidence tribunal guided government policy set department procedure advice manual pam employer nomination scheme en make introductory comment en enables australian employer recruit highly skilled worker overseas unable fill need australian labour market training effort relevant criterion must met applicant may granted entry permit type include criterion specified regulation 51 regulation certain criterion represented symbol explained detail schedule 1 namely prescribed number visa granted relevant financial year exceeded assurance support may required applicant accompanying family member satisfy public interest health criterion applicant employed accordance relevant legislative wage work condition date original application regulation 51 provided 51 1 additional criterion relation employer nomination visa following criterion applicant nominated accordance approved form employer operating australia specified position position group specified position sought filled employer position filled permanent full time basis ii position respect highly skilled occupation b qualification experience applicant suitable position c employer satisfies minister employer acceptable record training employee committed training local employee employer satisfies minister possible time nomination find suitable applicant position australia e unless exceptional circumstance apply applicant turned 55 time application 1a citerion specified paragraph 1 apply minister satisfied need find suitable applicant within australia position referred paragraph 2 regulation highly skilled occupation mean occupation requiring formal training equivalent experience relating occupation period le 3 year b appropriate record employment occupation evidence discloses principal single man citizen hong kong travelled australia visitor visa 1976 1988 15 march 1988 travelled australia temporary resident visa occupation opal buyer started buying opal uncle 1976 1981 began working 1989 employed applicant opal house pty ltd appointed director commenced training opal cutting polishing 1974 year extensive experience field currently opal buyer applicant australia salary 48 000 per year plus commission tribunal requested submission federal department employment education training deet concerning case tribunal asked four question obtained answer follows 1 position relate occupation requires least 3 year formal training equivalent experience deet considers position opal buyer highly skilled term guideline en tr case instance formal training experience could include training experience opal cutting jewellery making asco classification position 3913 13 commodity buyer give precise definition minimum skill level rather experience 5 year required view job experience alone involved minimum period required reach skill level senior position occupation would excess 5 year complicating factor nomination en form m785 job title also includes occupation director discussed problem 2 mr wong qualification experience suitable position according documentation supplied nominee extensive qualification experience relevant position based 15 year working opal cutting buying processing satisfies department applicant skilled relation position 3 opal house pty ltd acceptable record training according information provided employer overall training record appears satisfactory also employer appears least attempted recruit train staff occupation question nonetheless deet note employer rejected applicant specific opal experience seems training position opal buyer assistant seems little reason applicant interest aptitude related training experience e g geology would acceptable also suggests company made adequate plan replace mr wong training local person event leaf company employ case referred deet previously supporting case deet would likely sought agreement sponsor train replacement advertising suitable personnel would require opal experience mentioned desirable essential requirement trainee occupation concerned 4 likely suitably qualified australian citizen permanent resident could found fill position given small size industry occupation highly specialised nature job view would difficult find local worker position australia time nomination however say would impossible fill position locally way establish would firm advertise local labour market indeed whole purpose testing unusual occupation involved hence deet view position advertised may seen answer deet satisfied position highly skilled principal qualification suitable position far training record applicant concerned deet although reluctance concludes employer overall training record appears satisfactory tribunal accepts submission find regulation 51 1 b c satisfied regulation 51 1 e satisfied principal turned 55 time application difficulty arise considering whether regulation 51 1 satisfied regulation 51 1 requires employer satisfy minister possible find suitable applicant position australia regard tribunal referred procedure advice manual pam guidance although policy guideline strictly binding tribunal followed unless cogent reason particular case depart relevant section pam state employer required provide documentary evidence tested labour market show able find suitable applicant position australia case include following lodgment vacancy commonwealth employmentservice ce national listing minimum four weeksduring eight week preceding lodgment nomination waiver lodgment requirement signed manager anoffice ce recent advertising vacancy least saturdayedition weekday edition metropolitan nationaldaily newspaper e least four separate advertisement recent advertising vacancy mean tradeor professional journal private employment agency unionconsultations advertisement local community languagenewspapers also appropriate case vacancy wherespecialised skill sought e g specialised language cooking skill deet opinion position advertised however later submission deet added sponsor satisfactorily test labour market correctly advertise sic position involved concern diminished awareness position unlikely filled locally time evidence employer placed four advertisement national newspaper november december 1990 opal buyer assistant employer claim 14 people applied position found unsuitable generally labour market cannot taken adequately tested unless sufficient advertising taken place according pam guideline requires placement position commonwealth employment service plus additional advertising happened case however view extremely small source labour closely knit industry view deet comment position unlikely filled locally time tribunal satisfied possible time nomination find suitable applicant position australia accordingly regulation 51 1 satisfied deet raised doubt regarding legality employer company nominating employee also director company deet view nomination give rise doubt sponsor seriously attempt find local replacement regardless labour market occupation however deet concluded case appear constitute attempt tribunal accepts danger find case appointment bona fide relationship strictly one employer employee principal minority shareholder company appointed director benefit company benefit company may terminate appointment time may different director majority shareholding company executive director paid employee company commonplace tribunal find appointment well within legal power company tribunal also find principal employed accordance standard wage condition provided australian law assurance support required case remaining criterion health public interest view long lapse time since application made interim decision published department requested carry health character check principal final decision made upon receipt result check decisionthe tribunal adjourns review request department carry health character check principal j metledgepresiding member

Healthscope (Tasmania) Pty Ltd & Anor v Australian Hospital Care Pty Ltd & Anor [2011] VSC 132 (7 April 2011).txt

healthscope tasmania pty ltd anor v australian hospital care pty ltd anor 2011 vsc 132 7 april 2011 last updated 7 april 2011in supreme court victorianot restrictedat melbournecommercial equity divisionno 9962 2008betweenhealthscope tasmania pty ltd acn 082 134 245 anorplaintiffsandaustralian hospital care pty limited acn 072 273 931 anordefendants judge sifris jwhere held melbournedate hearing 1 2 february 2011date judgment 7 april 2011case may cited healthscope tasmania pty ltd anor v australian hospital care pty ltd anormedium neutral citation 2011 vsc 132 contract construction term novation deed clause entitled first plaintiff recover first defendant liability debt incurred completion date meaning incur whether first plaintiff incurred liability debt paid second plaintiff contract construction whether second plaintiff recover second defendant guarantee debt paid behalf first plaintiff first plaintiff recovered first defendant amount whether second plaintiff prevented pursuing claim second defendant guarantor contractual time limit bringing claim principal creditor expired appearance counselsolicitorsfor plaintiffsmr osborneb2b lawyersfor first defendantmr n evansblake dawsonfor second defendantmr panna scherbert geerhis honour background1 healthscope tasmania finance pty ltd formerly hph development pty ltd hphd entered number agreement state tasmania 30 june 1998 20 november 1999 agreement concerned privatisation queen alexandra hospital royal hobart hospital st helen hospital 2 lease made 20 november 1999 state tasmania demised land building known queen alexandra hospital hphd lease 1 pursuant clause 5 4 f lease hphd undertook pay state tasmania cost relation reticulation service defined security service defined 3 previously 30 june 1998 party entered service agreement pursuant clause 4 service agreement 2 hphd undertook pay state tasmania various service defined agreement 4 convenience lease service agreement referred state document 5 addition 30 june 1998 hphd entered operating management agreement agreement australian hospital care hph pty limited ahc hph first plaintiff b australian hospital care pty limited ahc first defendant c perpetual trustee company limited relation operation management queen alexandra hospital st helen hospital together private hospital 6 pursuant agreement ahc hph appointed operator manager private hospital ahc guaranteed performance ahc hph obligation hphd agreement 7 pursuant clause 3 1 agreement ahc hph agreed perform hphd liability state tasmania state document included liability pay reticulation service security service lease various service service agreement 8 arrangement referred summary form continued beginning 2003 period hphd ahc hph effectively controlled ahc ultimately mayne group limited symbion health limited mayne second defendant 9 thing changed beginning 2003 ahc sold share ahc hph asset healthscope ltd healthscope second plaintiff proceeding transaction took effect pursuant share sale agreement dated 2 february 2003 share sale agreement separate agreement healthscope also acquired share hphd consequently effective control ahc hph hphd passed healthscope 3 10 settlement transaction took place 13 april 2003 11 day party proceeding others entered novation amending deed novation deed pursuant deed healthscope effect new ultimate controller replaced ahc guarantor ahc hph obligation agreement significantly clause 2 3 novation deed ahc undertook liable various party including ahc hph hphd claim debt paid suffered incurred liable respect agreement prior completion date 13 april 2003 ambit construction clause central proceeding brought ahc hph ahc next paragraph explains claim arises 12 settlement 13 april 2003 state tasmania issued tax invoice demanding payment hphd 282 557 05 reticulated service lease 29 130 75 service service agreement amount hphd entitled indemnity ahc hph agreement accordingly referred tax invoice party tax invoice related period prior completion ahc hph took view properly liability ahc pursuant clause 2 3 novation deed following time acrimonious correspondence party ahc declined pay amount consequence response increased pressure state tasmania amount paid ahc hph beneficiary undertaking clause 2 3 ultimate controller healthscope ahc hph claim ahc amount basis clause 2 3 novation deed even though payment actually made healthscope 13 healthscope party novation deed recipient undertaking given ahc consequently able sue ahc amount deed 14 however healthscope party share sale agreement alleges entitled recover amount mayne guarantor obligation ahc agreement 15 consequently claim plaintiff defendant separate distinct based different document defendant separately represented indeed first defendant commenced separate proceeding second defendant seeking indemnity second defendant liability case related proceeding proceeding claim based umbrella agreement entered defendant dealt determination defendant liability plaintiff present case

Soh, Jay Ho [2000] MRTA 932 (18 April 2000).txt

soh jay ho 2000 mrta 932 18 april 2000 last updated 26 may 2000 2000 mrta 932mrt reference n00 01691visa applicant jay ho sohpresiding member lucinda wrightdate decision 18 april 2000delivered sydneycorrigendum date decision covering page left blank error decision issued read18 april 2000 lucinda wrightpresiding member19 april 2000catchwords bridging visa whether abide conditionsvisa applicant jay ho sohtribunal migration review tribunalpresiding member lucinda wrightmrt file number n00 01691dima file number clf2000 10125clf1999 2555899 601318n98 600762n93 304362date decision 18 april 2000decision tribunal affirms decision refuse visa applicant grant bridging e class visa subclass 050 general application review1 application review decision made delegate minister immigration multicultural affair delegate mr jay ho soh visa applicant national south korea born 13 june 1964 applied bridging e class sub class 050 visa 3 april 2000 delegate decision refuse grant visa made 5 april 2000 jurisdiction standing2 visa applicant lodged valid application review tribunal 7 april 2000 decision reviewable tribunal application review validly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural affair dima tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa dima remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion tribunal review usually limited consideration whether visa applicant fails meet essential criterion whether basis remitting application visa dima 5 criterion policy immediately relevant review legislation part 050of schedule 2 regulationspolicy migration series instruction 219 bridging e visa subclass 050 legislative framework guideline issued 21 april 1999 6 tribunal generally regard regulation regulation stood time visa application however subsequent amendment may apply circumstance 7 applicant entitled grant visa act regulation make valid application visa specified class satisfies criterion prescribed act regulation visa class applicant bridging visa must eligible non citizen meaning applicant must immigration cleared must come within certain class person set regulation see section 72 73 andregulation 2 20 8 order application bridging e class visa subclass 050 general valid must made way required item 1305 schedule 1 regulation see section 45 46 andregulation 2 07 non citizen visa application refused cancelled undersection 501 501a 501b act may make application visa protection visa 9 applicant must satisfy primary criterion set inpart 050of schedule 2 regulation date application date decision secondary criterion visa 10 summary criterion met tribunal satisfied applicant unlawful non citizen holder bridging e class visa subclause 050 211 1 andthe applicant eligible non citizen kind set subregulation 2 20 7 8 9 10 11 subclause 050 211 2 andthe applicant meet requirement one subclauses 2 3 3a 4 5 6 7 8 clause 050 212 requirement clause 050 212 include following applicant making subject acceptable arrangement depart australia applicant made application apply within period allowed minister tribunal substantive visa kind granted applicant australia applicant outstanding application merit judicial review relation substantive visa applicant outstanding request minister one number prescribed request applicant criminal detention bridging e visa granted applicant abide condition imposed clause 050 213 condition mandatory condition found schedule 8 regulation anda security requested lodged clause 050 214 11 principal issue case whether visa applicant would abide condition bridging visa granted evidence12 tribunal following document t1 mrt case file n00 01691 folio numbered 1 40 d1 dima file clf2000 010125 folio numbered 1 42 d2 dima file 99 601318 folio numbered 1 200 d3 dima file clf1999 25558 folio numbered 1 200 d4 dima file n98 600762 folio numbered 1 187 d5 dima file n93 304362 folio numbered 1 202 13 according evidence file visa applicant migration history may summarised follows 14 official record visa applicant entered australia claim entered australia illegally april 1987 deserted ship 15 13 december 1993 visa applicant lodged application permanent residence spouse ground application refused 12 april 1994 26 november 1996 visa applicant prosecuted act using fraudulent material connection application convicted sentenced 3 month periodic detention commencing 6 december 1996 completed periodic detention 31 august 1997 16 9 may 1994 visa applicant applied protection visa department made decision refuse grant visa 30 march 1995 visa applicant lodged application review decision refugee review tribunal made decision affirm primary decision 3 december 1996 17 visa applicant made unsuccessful request minister undersection 417of act 1997 18 10 december 1997 visa applicant convicted assault sentenced 6 month imprisonment commencing 10 december 1997 expiring 9 june 1998 19 9 june 1998 visa applicant detained pursuant section 189 act following release criminal detention transferred villawood immigration detention centre 20 subsequent placed immigration detention visa applicant lodged following application bridging visa date lodged date refused date appeal date affirmeddima tribunal___________________________________________________________________9 june 1998 11 june 1998 12 june 1998 17 june 199823 july 1998 27 july 1998 28 july 1998 6 august 199815 february 1999 17 february 1999 19 february 1999 24 feb 199921 april 1999 22 april 1999 23 april 1999 29 april 199925 november 1999 29 november 1999 30 november 1999 9 dec 199921 13 july 1999 visa applicant became member lie class action still pending federal court earlier member previous class action kagi action dismissed 8 july 1999 22 also evidence file concerning visa applicant behaviour detention evidence disruptive behaviour transferred time vilawood detention centre remand centre also gone hunger strike month december 1999 protest lengthy detention since june 1998 following release prison mr soh ceased strike 28 january 2000 23 visa applicant represented course review mr christopher levingstone attend hearing 24 prior hearing visa applicant sent letter 12 april 2000 inviting visa applicant provide comment information tribunal considered would reason part reason affirming decision review visa applicant provided written comment 12 april 2000 25 hearing held 17 april 2000 oral evidence given oath visa applicant people attended hearing although visa applicant said expected several witness attend behalf faxed list name tribunal 26 hearing visa applicant confirmed migration detention history outlined referred written comment incident led prosecution imprisonment including breach previous bridging visa condition 27 visa applicant said detention twenty month thought released apologised previous breach turned new leaf would abide condition return korea latest class action ultimately unsuccessful although money offer support several member korean community supplied name address several people tribunal said people would also help pay ticket depart australia would also provide accommodation fund maintenance held valid passport adviser 28 would unable pay cost detention thought would close 100 000 could offer bond 5000 29 subsequent hearing tribunal received written statement following people mr bob chae sang cha korean sport council australia confirming could pay bond 5000 visa applicant provide pocket money 100 accommodation case finalised mr hyun bong kim 371 canterbury road campsie nsw described personal father visa applicant also offered accommodation food pocket money visa applicant outcome immigration decisionsmr dong seong kim 6 66 clissold parade campsie nsw offered shelter food 60 pocket money waiting outcome immigration decision30 tribunal also contacted visa applicant adviser concerning passport advised passport expired 22 march 2000 recovered korean consulate findings31 tribunal find visa applicant satisfies criterion 0505 211 0505 212 unlawful non citizen eligible non citizen kind referred subregulation 2 20 7 8 9 10 11 member lie class action applied judicial review decision grant visa thus satisfies 050 212 3 32 tribunal must therefore consider whether visa applicant would abide condition bridging visa granted considering tribunal decided visa granted visa applicant would appropriate impose following condition 8101the holder must engage work australia 84018401 holder must report time time b place specified minister purpose 8505the holder must continue live address specified applicant grant visa85068506 holder must notify immigration least 2 working day advance change holder address 85128507 holder must leave australia date specified minister purpose 33 tribunal noted written offer support listed mr dong seong kim presented similar offer previous occasion mr kim friend visa applicant shared flat detention however person concerned attend hearing tribunal able take evidence whether offer sincere realistic 34 tribunal regard considerable period visa applicant immigration detention addition period imprisonment lengthy period considerable cost taxpayer personal emotional cost applicant nevertheless visa applicant made attempt put affair order depart australia date may expect decision class action undetermined period may required obtain support maintenance correspondingly uncertain absence concrete convincing evidence visa applicant would accommodated maintained offering assistance indefinite period tribunal unable make positive finding visa applicant would abide condition outlined 35 moreover even offer genuine tribunal satisfied visa applicant would abide condition particular satisfied visa applicant would work making finding tribunal taken account visa applicant record non compliance previous bridging visa documented longstanding attempt prolong stay australia mean available lack fund support found guilty serious breach immigration law criminal law conclusion36 view finding satisfied visa applicant would abide condition imposed bridging visa granted tribunal find visa applicant unable satisfy criterion 050 213 failure satisfy one criterion prescribed subclass visa mean visa applicant entitled grant visa 37 tribunal note primary decision maker request security consider whether one requested view federal court decision intutugri v minister immigration multicultural affair 1999 fca 1785 17 december 1999 tribunal considered question 38 application deemed also application subclass 051 protection visa claimed apparent evidence fact case satisfy criterion subclass 051 visa therefore tribunal cannot make finding visa applicant eligible grant subclass 051 visa decision39 tribunal affirms decision refuse visa applicant grant bridging e class visa subclass 050 general

Gaigo and Minister for Immigration and Citizenship [2008] AATA 590 (9 July 2008).txt

gaigo minister immigration citizenship 2008 aata 590 9 july 2008 last updated 10 july 2008administrative appeal tribunaldecision reason decision 2008 aata 590administrative appeal tribunal 2007 5072general administrative division revalacie gaigoapplicantandminister immigration citizenshiprespondentdecisiontribunalhonourable dr b h mcpherson cbe deputy presidentdate9 july 2008placebrisbanedecisionthe decision review affirmed sgd deputy presidentcatchwordsimmigration citizenship citizenship application become australian citizen applicant experienced three different form national status applicant born papua 1948 pre independence applicant born british subject 1949 applicant became citizen australia independence 1975 australia ceased sovereignty papua applicant consequently became citizen papua new guinea applicant cease australian citizen operation law decision review affirmed australian citizenship act 1948 cth s 10 1 25 1 constitution independent state papua new guinea 65papua new guinea independence act 1975 cth 4 6papua new guinea independence australian citizenship regulation 1975migration act 1958 cth australian citizenship act 2007 cth australian citizenship transitional consequential act 2007 cth minister ex parte ame 2005 hca 36 2005 222 clr 439 2005 hcareasons decision9 july 2008honourable dr b h mcpherson cbe deputy presidentthis application review decision dated 28 august 2007 minister delegate refusing application valacie victoria gaigo become australian citizen least way department approached application substance however perhaps nature complaint australian citizenship existed papua new guinea became independent 16 september 1975 still attach whatever way formulated satisfied application cannot succeed mr gaigo born samurai island papua 1948 papua territory commonwealth australia placed administration 5 thepapua act 1905 cth earlier history papua traced inthe administration territory papua new guinea v daera guba 1 1 july 1949 papua administered australia union new guinea trust territory established united nation charter 2 born papua 1948 mr gaigo british subject state affair continued 26 january 1949 thenationality citizenship act 1948commenced later amendment altered title act theaustralian citizenship act 1948 cth old act 10 1 old act person born australia commencement act australian citizen birth 1 australia defined include territory trust territory included papua mr gaigo however born papua commencement old act satisfy 10 1 act however 25 1 provided person british subject immediately commencement old act became australian citizen born australia would australian citizen section 10 force time birth mr gaigo therefore combined effect 25 1 10 1 australian citizen virtue birth papua 1948 16 september 1975 independent state papua new guinea came existence followed extensive consideration committee house assembly papua new guinea reported conclusion together draft constitution 13 august 1974 report committee gave careful attention matter citizenship new state discussed analysed high court australia honour reason judgment inre minister immigration multicultural indigenous affair ex parte ame 3 independence papua new guinea brought two constitutional instrument one constitution independent state papua new guinea constitution 65 1 provided person born country independence day two grandparent born country citizen new state papua new guinea independence day fixed 16 september 1975 65 4 constitution 65 1 expressednotto apply someone right permanent residence australia mr gaigo born country papua new guinea independence day right permanent residence australia matter fell determined themigration act 1958 followed application ofs 65 1 excluded 65 4 constitution mr gaigo became citizen independent state papua new guinea 16 september 1975 thus became citizen operation law form 65 constitution shortly stated effect 65 16 september 1975 convert person born papua new guinea citizen papua new guinea least two grandparent born thereandif right permanent residence australia second two constitutional instrument referred thepapua new guinea independence act 1975 cth act passed australian parliament referred 1975 act section 4 1975 act provided expiration day 15 september 1975 preceding independence day australia ceased sovereignty sovereign right right administration respect papua new guinea several decision given great britain recognised american independence 1784 held declaration relinquishing sovereignty government another territory constituted surrender authority inhabitant territory recognition state free independent amounted declaring people composing state longer considered subject sovereign made declaration 4 hence effect 4 1975 act upon independence people papua new guinea ceased citizen australia 5 may described common law principle application provision form 4 1975 act matter left simply common law addition legislation also promulgated australia designed confirm change nationality flowing 1975 act took form thepapua new guinea independence australian citizenship regulation 1975 enacted reliance 6 1975 act substance effect reg 4 regulation person immediately independence day australian citizen b day became citizen papua new guinea virtue provision constitution papua new guinea thereupon ceased day australian citizen inre minister immigration multicultural indigenous affair ex parte ame 6 validity reg 4 1975 regulation challenged upheld high court case honour said 7 capacity acquire exercise sovereignty sovereign right right administration respect external territory necessarily includes capacity make provision bringing end right australia law authorised empowered reg 4 indirectly 65 papua new guinea constitution terminate australian citizenship person born papua new guinea 16 september 1975 two grandparent born provided right permanent residence australia mr gaigo one latter class person right themigration act 1958 lifetime mr gaigo experienced three different form national status first born british subject became australian citizen 1950 finally became citizen papua new guinea 1975 occasion people affected consulted individually change nevertheless valid effective result decision taken controlled political destiny people like mr gaigo represented papua new guinea house assembly people lost australian citizenship operation law 8 high court inre minister immigration multicultural indigenous affair ex parte ame 9 considered submission australian citizenship carried right permanent residence australia matter constitutional principle mr gaigo case might fulfil requirement 65 4 papua new guinea constitution took case 65 1 making citizen state however high court rejected submission honour concluded policy papua new guinea constitution antagonistic dual citizenship said 10 recognition policy new independent state australia reg 4 withdrew applicant citizenship withdrawal arbitrary consistent maintenance proper relation new independent state change occurred australia relationship inhabitant state would strange form independence insisted retaining citizenship people granted statement passage judgement withdrawal australian citizenship arbitrary relevant another submission advanced mr gaigo tribunal deprivation australian citizenship contrary article 15 universal declaration human right declares everyone right nationality one shall arbitrarily deprived inre minister immigration multicultural indigenous affair ex parte ame 11 kirby j also rejected submission australian papua new guinea legislation 1975 arbitrarily deprived papuan former australian citizenship speaking appellant person like mr gaigo honour said lose right nationality nationality status simply changed reason change sovereignty place birth place birth forbear mr gaigo distinguished lineage includes great grandfather officer british army another ancestor appears samoan missionary born country papua new guinea 1948 even time independent state external territory australia thus acquired australian citizenship old act 1949 65 constitution converted citizenship papua new guinea 1975 australia regulation 4 b declared person became citizen papua new guinea independence day ceased australian citizen case indistinguishable ofre songoro minister immigration multicultural indigenous affair 12 similar circumstance senior member constance decided person acquiring citizenship papua new guinea 1975 ceased australian citizen operation law mr gaigo feel aggrieved application dated 26 october 2006 resume australian citizenship dealt old act 1948 apparently deferred theaustralian citizenship act 2007 new act came force however mistaken legislation effect insofar bear matter old act repealed part schedule 1 theaustralian citizenship transitional consequential act 2007 transitional act came force day operative provision new act commenced 1 july 2007 evident purpose transitional act particular part 1 schedule 3 ensure right australian citizenship availed old act preserved favour someone australian citizen immediately 1 july 2007 date mr gaigo long since 16 september 1975 ceased australian citizen disadvantaged coming force new act delay failing process application old act nothing either old act new act would enabled resume pre 1975 status australian citizen neither act address case someone like lost australian citizenship operation law resulting effect state succession like papua new guinea place australia state nationality mr gaigo travelled way papua life order appear person tribunal hearing brisbane thank courtesy regret application review decision given 28 august 2007 cannot succeed ceased australian citizen 16 september 1975 qualify statutory provision either act 1949 2007 enable person become citizen decision minister delegate given 28 august 2007 accordingly affirmed certify 17 preceding paragraph true copy reason decision herein honourable dr b h mcpherson cbe deputy presidentsigned sgd research associate elizabeth young date hearing 27 may 2008date decision 9 july 2008for applicant applicant self representedsolicitor respondent tigiilagi eteuati clayton utz lawyer 1 1973 hca 59 1973 130 clr 353 380 382 413 4212seefishwick v cleland 1960 hca 55 1960 106 clr 186 1961 alr 147 3 2005 222 clr 439 2005 hca 36 4 seedoe thomas v acklam 1824 engr 605 1824 2 b c 779 796 per abbott cj 5 seere seaka kabua mahuru department immigration citizenship 2008 aata 464 6 2005 hca 36 2005 222 clr 439 2005 hca 7 2005 2005 hca 36 222 clr 439at 457 8 seere songoro minister immigration multicultural indigenous affair 2005 aata 774 20 9 2005 hca 36 2005 222 clr 439at 454 455 10 2005 hca 36 2005 222 clr 439at 435 11 2005 hca 36 2005 222 clr 439at 483 485 12 2005 aata 774

SZCZX v Minister for Immigration & Anor [2006] FMCA 786 (31 May 2006).txt

szczx v minister immigration anor 2006 fmca 786 31 may 2006 last updated 26 june 2006federal magistrate court australiaszczx v minister immigration anor 2006 fmca 786migration review refugee review tribunal decision refusal protection visa applicant claiming persecution china falun gong practitioner whether rrt gave sufficient notice rrt hearing deferred considered whether rrt breached 424a relation part reason delegate relied upon rrt considered practice procedure requirement respondent pay setting fee payable applicant unpaid federal magistrate court regulation r 6 4 migration act 1958 cth s 420 424 424a 425a 426a 427abebe v commonwealth 1999 hca 14 1999 197 clr 510minister immigration v namw 2004 fcafc 264 2004 140 fcr 572su or v minister immigration 2006 fmca 83szazy v minister immigration 2 2005 fmca 1635szcdh v minister immigration 2006 fmca 78szefm v minister immigration 2006 fca 78szexb v minister immigration 2005 fmca 1771szfhc v minister immigration 2005 fmca 1399szfih v minister immigration 2005 fmca 1847szfkf v minister immigration 2005 fmca 1152szfml v minister immigration 2 2005 fmca 1947szgwd v minister immigration 2005 fmca 1956wacw v minister immigration 2002 fcafc 155applicant szczxfirst respondent minister immigration multicultural affairssecond respondent refugee review tribunalfile number syg744 2004judgment driver fmhearing date 31 may 2006delivered sydneydelivered 31 may 2006representationthe applicant appeared personcounsel respondent mr j smithsolicitors respondent sparke helmoreorders 1 refugee review tribunal joined second respondent application 2 court directs word indigenous deleted name first respondent 3 writ certiorari shall issue quashing decision refugee review tribunal handed 19 february 2004 4 writ mandamus shall issue requiring refugee review tribunal redetermine application according law 5 first respondent pay sum 273 applicant respect filing fee paid applicant 6 first respondent pay sum 345 court unpaid setting fee otherwise payable applicant federal magistratescourt australia atsydneysyg744 2004szczxapplicantandminister immigration multicultural affairsfirst respondentrefugee review tribunalsecond respondentreasons judgment revised transcript 1 application review decision refugee review tribunal rrt decision handed 19 february 2004 rrt affirmed decision delegate minister grant applicant protection visa applicant china made claim persecution based upon practise falun gong relevant background fact set minister outline written submission filed 29 may 2006 adopt background paragraph 2 7 written submission purpose judgment applicant citizen people republic china arrived australia 14 december 2002 lodged application protection visa 24 december 2002 claimed fear persecution hand chinese authority basis adherence practice falun gong delegate first respondent made decision 18 february 2003 refuse grant applicant protection visa 17 march 2003 applicant applied rrt review decision letter dated 22 september 2003 rrt invited applicant attend hearing conducted 30 october 2003 10 30am however letter dated 29 october 2003 rrt informed applicant could longer hearing time instead hearing would held 12 00pm 30 october 2003 applicant attended hearing conducted rrt rrt handed decision affirm delegate decision 19 february 2004 application court review rrt decision made 18 march 2004 rrt decisionthe rrt satisfied applicant ever falun gong adherent practitioner also found even suffered harm claimed suffered convention reason reason rrt found applicant well founded fear persecution convention reason meet criterion grant protection visa 2 applicant relies upon amended application filed 3 september 2004 filed evidence support application evidence court book filed 19 july 2004 neither filed written submission although take opportunity make oral submission general term 3 amended application asserts three jurisdictional error particular first ground assertion error law reference reliance upon rrt country information applicant asserts breach ofs 424of themigration act 1958 cth themigration act although probably intended reference tos 424a secondly amended application asserts absence natural justice reference failure rrt obtain oral evidence applicant friend mr lo thirdly amended application asserts failure carefully consider applicant claim based procedure criterion prescribed unhcr handbook ground adequately dealt minister submission agree adopt purpose judgment paragraph 8 paragraph 12 written submission first ground amended application rrt failed provide applicant complete ici information breacheds 424a short answer information relied upon rrt specifically applicant fell withins 424a 3 minister immigration v namw 2004 fcafc 264 2004 140 fcr 572 second ground denial procedural fairness appear three particular ground first rrt use mean disposal produce necessary evidence support applicant claim secondly rrt failed seek oral evidence friend applicant thirdly rrt failed follow handbook procedure criterion determining refugee status 1951 convention 1967 protocol relating status refugee handbook first particular matter applicant put forward whatever claim evidence wished support application review matter rrt ass whether basis material satisfied applicant met criterion grant visa abebe v commonwealth 1999 hca 14 1999 197 clr 510at 576 187 per gummow hayne jj second particular face difficulty applicant indicated rrt want take oral evidence witness court book page 57 light well absence obligation act rrt obliged take oral evidence applicant friend handbook part australia domestic law failure follow give rise error law wacw v minister immigration 2002 fcafc 155at 17 4 paragraph 13 16 written submission mr smith minister raise issue raised applicant whether rrt committed jurisdictional error failing give requisite period notice respect adjournment hearing applicant invited submission although raised applicant issue concerning postponement hearing 10 30 12 00 p 30 october 2003 issue whether proper construction act tribunal required bys 425ato give applicant prescribed period notice changing time hearing namely 14 day date receipt regulation 4 35d question letter 22 september 2003 cb 55 complied withs 425a circumstance followed properly characterised adjournment hearing rather invitation new hearing first change matter 1 5 hour secondly applicant clearly difficulty attending thirdly objection change mean requirement give prescribed period notice szefm v minister immigration multicultural indigenous affair 2006 fca 78 appeal judgment court case turned broad meaning adjourn includes defer postpone future meeting body 12 construes 427as source power adjourn hearing unfettered bys 425adoes mean tribunal could give open invitation way discussed barnes fm szfkf v minister immigration multicultural indigenous affair 2005 fmca 1152at 47 essential part reasoning szfkf case inconsistent szefm must followed quite apart issue binding precedent szfkf wrong ought followed first construction favoured szefm gain support definite article in 426a 1 secondly consistent scheme ofpart 7and particular obligation tribunal pursue objective providing mechanism review fair economical informal quick 420 1 thirdly construction would require notice period would lead absurdity highlighted fact case change 1 5 hour would construction arrived szfkf require least 14 day notice 5 noted submission issue dealt court case ofszfkf v minister immigration 2005 fmca 1152per barnes fm particular paragraph 47 also noted minister submission issue dealt federal court appeal court inszefm v minister immigration 2006 fca 78 especially paragraph 12 unfortunate bennett j inszefmwas referred decision barnes fm inszfkf neither appear decision barnes fm referred nicholls fm first instance inszefm decision barnes fm comprehensively cogently reasoned considered length least nine later decision court nicholls fm distinguishedszfkfinszexb v minister immigration 2005 fmca 1771 smith fm also distinguished inszfih v minister immigration immigration 2005 fmca 1847 recently smith fm expressed doubt authority ofszfkfinszgwd v minister immigration 2005 fmca 1956and discussed decision context number decision court point insu or v minister v immigration 2006 fmca 83 6 decision barnes fm followed court number occasion raphael fm followed inszcdh v minister immigration 2006 fmca 78at 12 scarlett fm followed decision three occasion beingszazy v minister immigration 2 2005 fmca 1635at 28 szfhc v minister immigration 2005 fmca 1399at 32 szfml v minister immigration 2 2005 fmca 1947at 52 last case scarlett fm noted decision barnes fm subject appeal understand however appeal withdrawn unrelated issue also told mr smith notice issue reserved full federal court inszfml v minister immigration 7 given detailed consideration given decision barnes fm court approval honour decision number occasion inability distinguish case unencumbered binding decision federal court would inclined followszfkf however accept minister submission least pending decision full court inszfml bound decision bennett j inszefm matter whether consider decision right wrong see point awaiting outcome full court decision authority decision inszefm find failure rrt give requisite period notice respect adjourned hearing establish jurisdictional error 8 remain two issue raised mr smith course argument concern letter written rrt applicant dated 5 november 2003 reproduced page 72 73 court book letter rrt requested provision additional information applicant letter relevantly state tribunal request provide following additional information hearing said familiar detail finding minister delegate original protection visa application sent 18 february 2003 please find enclosed copy decision number aspect adverse claim please comment particular would helpful comment delegate statement quoting falun dafa bulletin board genuine falun gong practitioner seeking political asylum would obtain proof local family gong assistance centre local falun dafa society generally information material provide supporting claim falun gong practitioner explaining belief reason falun gong practitioner would helpful claim 9 information requested 28 november 2003 applicant warned provide additional information sought date rrt might make decision review without notice 10 clear whether rrt considered letter invitation pursuant tos 424of themigration actor invitation pursuant tos 424a warning end letter suggests rrt regarded one letter follow form come anticipate in 424anotices even relevant time letter would view meet requirement ofs 424ain relation unparticularised adverse information said contained delegate reason form content letter suggests probably regarded rrt invitation comment pursuant tos 424 among thing invitation restricted opportunity comment upon adverse material 11 applicant migration agent provided response dated 28 november 2003 attached statutory declaration mr pai ping lo stating relevantly knew applicant regularly practised falun gong mr lo knew applicant pious falun gong practitioner mr lo also ventured opinion applicant would face harm china return information provided applicant official falun gong information sought third paragraph rrt letter appears provided response general invitation set fourth paragraph letter event 424required rrt take information received account making decision first question whether rrt information referred page 89 court book discussion occurs page 95 court book relevantly rrt presiding member state tribunal accept applicant claim falun gong adherent written oral testimony included minimal material commitment falun gong movement evidence support statement falun gong activity china provided supporting information claimed falun gong activity australia apart statutory declaration person claiming fellow falun gong practitioner familiar applicant falun gong activity provided comment belief reason falun gong practitioner despite tribunal invitation letter 5 november 2003 address aspect claim tribunal satisfied basis limited evidence applicant ever falun gong adherent practitioner emphasis added 12 apparent reason presiding member aware material provided applicant took account considering whether applicant advanced sufficient material cause presiding member accept claim falun gong adherent presiding member found rrt satisfied basis limited material provided troublingly next paragraph presiding member go say tribunal find applicant claim falun gong member credible unable find harm claim experienced hand chinese authority resulted membership 13 appears adverse credibility finding sit well limited finding rrt satisfied applicant claim finding statutory declaration fabrication neither finding person made statutory declaration untruthful mistaken rrt actually making credibility finding would expected see finding relation worth statutory declaration mr smith pressed upon find statement presiding member applicant claim credible merely unfortunate expression accept court reviewing tribunal decision view eye finely attuned identify error fundamentally presiding member satisfied adequacy information provided applicant reference lack credibility troubling constitute substance rrt found contrary definitely arguable find statutory declaration provided applicant response thes 424invitation adequately dealt 14 remaining issue whether obligation upon rrt give applicant opportunity comment upon reason decision delegate opportunity provided letter dated 5 november 2003 excepting one particular adverse content delegate reason identified hence obligation unders 424awas met one page 94 court book presiding member say applicant acknowledged oral testimony applied australian visa person june 2002 led adverse consequence department commented reason rejecting applicant original protection visa application applicant would able leave china passport name adverse interest authority tribunal letter 5 november 2003 applicant invited comment assessment department along aspect department decision stated reason decision adverse applicant claim received response background tribunal find applicant claim adverse interest chinese security authority lack credibility 15 mr smith seek rely upons 424a 3 b themigration actin relation delegate reason per se seek rely ons 424 3 relation particular delegate decision disclosed letter 5 november 2003 present purpose information relevant relevant information contained delegate reason referred presiding member disclosed particularity letter information specifically applicant 16 mr smith made several submission directed proposition obligation arose undersection 424a 1 one submission passage quoted reflected merely rrt reasoning process following similar path delegate mr smith submits extent information determinative failure applicant respond letter 5 november 2003 failure properly regarded information provided applicant rrt purpose review extent minister rely upons 424a 3 b 17 understand submission accept apparent second paragraph letter 5 november 2003 rrt accepted statement reason delegate decision provided applicant rrt purpose review indeed rrt providing applicant inviting comment time letter sent presiding member appeared regard information statement reason adverse applicant claim open conclude time presiding member considered information delegate reason might reason part reason affirming decision anything reinforced statement quoted page 94 court book 18 true applicant failed respond invitation comment delegate decision failure also material adverse credibility finding made presiding member however failure respond cannot considered vacuum considered reference information comment sought information reasoning process adopted delegate relation issue whether applicant adverse interest chinese authority presiding member somewhat unusually chose use reasoning process information supporting decision review unusual circumstance find obligation arose disclose information applicant pursuant tos 424a 1 already found letter 5 november 2003 meet obligation disclosure required section relation information relied upon presiding member 19 therefore breach ofs 424a 1 constituting jurisdictional error call provision relief form constitutional writ mandamus certiorari 20 order writ certiorari shall issue quashing decision refugee review tribunal handed 19 february 2004 writ mandamus shall issue requiring refugee review tribunal determine review application according law 21 order refugee review tribunal joined second respondent application direct reference indigenous deleted name first respondent 22 applicant legally represented incurred legal expense paid filing fee 273 entitled recover minister also obliged pay setting fee 345 basis material correspondence file find paid thefederal magistrate court regulation 1 open require respondent pay fee order first respondent pay sum 273 applicant respect filing fee paid applicant order first respondent pay sum 345 court unpaid setting fee otherwise payable applicant certify preceding twenty two 22 paragraph true copy reason judgment driver fmassociate date 7 june 2006 1 regulation 6 4

EWL v Mental Health Tribunal (Human Rights) [2014] VCAT 1152 (25 August 2014).txt

ewl v mental health tribunal human right 2014 vcat 1152 25 august 2014 last updated 23 september 2014victorian civil administrative tribunalhuman right listvcat reference h158 2014applicant ewlfirst respondent mental health tribunalsecond respondent eastern health koonung clinicwhere held melbournebefore senior member proctorhearing type hearingdate hearing 7 august 2014date order reason 25 august 2014citationewl v mental health tribunal human right 2014 vcat 1152orderthe determination regarding ect application adult patient made respondent dated 7 july 2014 varied maximum number electroconvulsive treatment performed course electroconvulsive treatment eight andthe course electroconvulsive treatment must completed 1 december 2014 appearance applicant mr h mclachlan solicitorfor first respondent appearancefor second respondent m foy counselreasons decisionintroductionon 11 july 2014 vcat received application ewl unders 201of themental health act 2014 act ewl sought review mental health tribunal order electroconvulsive treatment ect approved 12 ect treatment within following 21 week 1 december 2014 vcat made procedural order joining eastern health koonung clinic koonung clinic party excusing mental health tribunal mht attending hearing 7 august 2014 heard application ewl dr dr b clinic gave evidence mr h mclachlan solicitor ewl m foy counsel clinic made submission reserved decision ewl subject community treatment order cto force 3 december 2014 cto made recently repealedmental health act 1986 1986 act force 2014 act issue vcat whether grant application perform course ect ewl 51 thevictorian civil tribunal act 1998 vcat may affirm vary mht decision set aside decision either make new decision remit matter consideration mht accordance direction recommendation vcat granted application varying mht decision legislative frameworkconcerning person 18 year old 92 1 act ect may performed patient given informed consent writing mht review vcat grant application made 93 93 authorised psychiatrist may make application mht perform course ect treatment patient young person view psychiatrist patient capacity give informed consent performance course ect psychiatrist satisfied circumstance le restrictive way patient treated section 96 say mht vcat review must grant application specifying 12 ect treatment longer six month satisfied patient capacity give informed consent andthere le restrictive way patient treated otherwise application must refused consideration issue must conducted mht vcat accordance thecharter human right responsibility act 2006 vic informed consentsection 68 act defines circumstance purpose making decision including whether agree ect person capacity give informed consent person must understand information given relevant decision andbe able remember information relevant decision andbe able use weigh information relevant decision andbe able communicate decision make speech gesture mean section 68 2 set principle intended provide guidance person required determine whether person capacity give informed consent act person capacity give informed consent specific decision person make person capacity give informed consent may change time assumed person capacity give informed consent based age appearance condition aspect behaviour determination person capacity give informed consent made person make decision could considered unwise assessing person capacity give informed consent reasonable step taken conduct assessment time environment person capacity give informed consent assessed accurately section 70 creates presumption person capacity give informed consent say treatment mental illness including ect see 6of act administered person accordance act informed consent person must sought person seeking informed consent another person must presume person capacity give informed consent however 70 3 also say despite assumption person seek informed consent another person treatment person form opinion person capacity give informed consent time informed consent would otherwise sought section 70 new provision seen 1986 act therefore parliament appears envisage circumstance person compulsory patient 2014 act retains capacity make decision particular treatment issue le restrictive alternativein deciding whether le restrictive way patient treated compared ect decision maker must regard factor set 93 2 act view preference patient relation electroconvulsive treatment beneficial alternative treatment reasonably available reason view preference including recovery outcome patient would like achieve view preference patient expressed advance statement view patient nominated person view guardian patient view carer patient authorised psychiatrist satisfied decision perform course electroconvulsive treatment directly affect carer care relationship andthe likely consequence patient electroconvulsive treatment performed andany second psychiatric opinion obtained patient given psychiatrist context ewl compulsory patient provision need addressed legislative context person must compulsory patient relevant case subject community treatment order application perform course ect may made follows see 5 act deemed current cto made themental health act 1986 person mental illness defined 4 illness person need immediate treatment prevent either serious deterioration mental physical health serious harm another person immediate treatment provided person person subject treatment order andthere le restrictive mean reasonably available enable person receive immediate treatment must considered subject purpose act stated 1 provide legislative scheme assessment person appear mental illness treatment person mental illness act objective address assessment treatment least restrictive way possible protection human right dignity promoting participation decision making providing oversight safeguard promoting recovery recognising role carers see 10 andthe mental health principle address least restrictive treatment best possible outcome involvement decision making according respect acceptance degree risk decision making person receiving treatment promoting right dignity autonomy recognising need recognising role carers see s11 section 11 3 say person must regard mental health principle performing duty function exercising power accordance act applies decision making proceeding regulation ect compared themental health act 1996while themental health act 2014brings significant reform including regarding ect noted provision ect without patient informed consent regulated themental health act 1986 section 72 1986 act permitted authorised psychiatrist authorise ect given patient incapable giving informed consent satisfied ect clinical merit appropriate regard benefit discomfort risk beneficial alternative treatment authorised psychiatrist also satisfied unless ect performed patient likely suffer significant deterioration physical mental condition reasonable effort made notify patient guardian primary carer proposed ect criterion large degree analogy criterion provided 2014 act significantly authorised psychiatrist must seek independent approval tribunal burden proof standard proofneither party proceeding bear onus proving case rather vcat stand shoe decision maker make considers correct preferable decision party submitted accepted case nature appropriate apply standard set inbriginshaw v briginshaw 1938 hca 34 1938 60 clr 336 standard proof balance probability bearing mind seriousness allegation p 361 2 dixon j said truth law requires proof fact tribunal must feel actual persuasion occurrence existence found cannot found result mere mechanical comparison probability independently belief reality doubt opinion state fact exists may held according indefinite gradation certainty led attempt define exactly certainty required law various purpose fortunately however common law third standard persuasion definitely developed except upon criminal issue proved prosecution enough affirmative allegation made reasonable satisfaction tribunal reasonable satisfaction state mind attained established independently nature consequence fact fact proved seriousness allegation made inherent unlikelihood occurrence given description gravity consequence flowing particular finding consideration must affect answer question whether issue proved reasonable satisfaction tribunal matter reasonable satisfaction produced inexact proof indefinite testimony indirect inference submission behalf ewl referred decision ofnom v dpp 2012 vsca 198andnigro v secretary department justice 2014 vsca 198wherebriginshawwas cited view assist proceeding concerned decision made theserious sex supervision detention act2009and thecrimes mental impairment unfitness tried act1996 act markedly different nature compared themental health act 2014 note recent decision federal court australia insullivan v civil aviation safety authority 2014 fcafc 93at 115ff flick perry jj rejected submission administrative appeal tribunal cwlth bound applybriginshaw however honour indicate error law evidencei summarise evidence given orally order given dr adr qualified psychiatrist 1998 worked eastern health since 2006 treated ewl time dr b available late 2013 recent time included making ect application giving evidence mht considered electroconvulsive treatment report adult patient form completed dr july 2014 part process applying mht approval perform ect dr gave comprehensive oral evidence focus said july report little dated opinion ewl suffers chronic treatment resistant schizophrenia primary symptom include hallucination usually auditory delusional thinking behaviour disturbance unwell ewl suffered profound distress absolutely consumed belief something terrible happen depressive manic elevated disinhibited symptom also discernible experience parkinsonian symptom experience tremor bad cannot feed suffers negative symptom social withdrawal able concentrate something unable enjoy activity symptom wax wane rarely ever symptom free received antipsychotic medication almost 30 year ewl also suffers tardive dystonia involving muscle spasm resulting posture abnormality experience spasm upper torso neck shoulder suffers awkward permanent posture neck twisted head bent spasm painful make difficult talk walk make susceptible fall time need walking frame ewl also suffers obsessive compulsive disorder time prevents caring washing getting dressed going community dining hall life eating available food dr said combination symptom make decision treatment terrible juggling difficult option risk ongoing permanent side effect however last month ewl health shown remarkable improvement coinciding last course ect hospital inpatient late 2013 maintenance ect since attempt made lengthen interval 6 week ewl relapsed improved administration ect twice week apart according dr ewl psychotic symptom attenuated large degree mood behaviour disturbance almost eliminated obsessive compulsive disorder decreased side effect antipsychotic medication decreased level medication decreased context ect provided dr opinion ewl capacity make informed decision ect treatment essentially due ewl accepting suffers mental illness able realistically weigh risk benefit various treatment dr spoke discussing ewl treatment number time year ewl clearly said believe suffers mental illness choice would refuse treatment dr attempted converse broad brush term advantage disadvantage different treatment modality taking pill injection ect hospitalisation dr recommended ect ewl however ewl want receive say cause mental illness make hard talk think ewl also attribute symptom neck injury also speaks ect causing experience visual disturbance ewl accept dr explanation benefit ect compared antipsychotic medication dr agreed ewl say take oral medication agreement previously accepted ewl failed take medication dr agreed ewl preoccupied fear ect treater attempt address reassuring benefit real risk however time tell whether assist concerning report suffering seeing black spot ect symptom known outcome treatment concerning risk ect dr agreed risk memory loss however balanced improvement mental health possibility remaining relatively well maintenance ect presented lower risk memory problem compared scenario mental health deteriorated requiring intensive ect inpatient dr noted ewl unwell required involuntary hospitalisation necessary treat lock unit hospital restrictive manner dr opinion ect approved real likelihood ewl would suffer serious relapse happened mid 2013 discharged hospital maintenance ect would ever present risk relapse make effective treatment recover previous level health difficult impossible could prove devastating option ect available would attempt treat ewl untested combination antipsychotic drug would evidence base make decision would matter administering medication period seeing happened would likely require hospitalisation extended time dr said treating ewl would flying blind antipsychotic medication increased every possibility postural difficulty parkinsonian side effect would worsen known way treat symptom medication remain increased dr asked whether ewl provided booklet concerning right patient receiving ect related dvd dr assumed would done ewl impatient normally done outpatient setting shown chief psychiatrist annual report 2011 12 page 34 discussed provision ect including saying commonly prescribed severe depression may also used type serious mental illness mania schizophrenia catatonia neuropsychiatric condition agreed case report commented ect procedure performed general anaesthetic modified seizure induced selective passage electrical current brain representation ect popular culture tended generate negative public perception treatment despite significant advance technology knowledge evidence recent year p 34 chief psychiatrist reported 2011 12 public private mental health service provided total 18 803 ect treatment 1 688 patient 3 565 treatment said administered treatment schizophrenia schizotypal delusional disorder sixty two percent treatment provided public mental health service dr understood eastern health provided 1 000 1 500 ect treatment per annum average six seven treatment per patient dr bdr b qualified psychiatrist 2000 employed eastern health hold position related psychiatry hospital university hold phd field treated ewl approximately seven year believed good relationship spoke suffering mental illness since 24 year old dr b confirmed dr description symptom ewl mental illness listened evidence added unwell ewl may barricade room present agitated irritable difficult manage past resulted required leave supported accommodation emphasised ewl scared ect previously scared treatment modality clozapine similarly scared admitted hospital however overnight admission required monthly ect treatment taxing distress experienced involuntary admission acutely ill outlined long treatment history first old style antipsychotic modecate injectable medication followed clozapine treatment choice treatment resistant schizophrenia 11 year taken orally however ewl poor compliance oral medication resulted strategy abandoned 2013 favour current treatment regime year 2012 2013 seen multiple voluntary admission significant period last admission 2013 three half month involved 14 ect treatment discharge interval maintenance ect reduced weekly four weekly following treatment 28 march 2014 attempt extend treatment interval resulted next treatment 9 may 2014 however ewl relapsed requiring treatment 20 june 27 june 2014 followed 11 july treatment next treatment scheduled week hearing date intention return 4 weekly interval maintenance ect treatment involve ewl presenting overnight hospital admission mainly ensure eat drink prior undergoing anaesthetic part ect treatment treatment morning followed discharge hospital later day seen ewl first time month tuesday hearing health dramatically improved level fear much reduced felt resident lived speaking could hear able go room calm looking eating well confirmed manager accommodation never seen able communicate dr b doubt improvement due monthly ect however dr b opinion remained case ewl accept suffers mental illness capacity weigh risk benefit ect said part explained likely cognitive impairment suffered result suffering mental illness many year able discus concern ect including view effect thinking vision commented difficult understand reported experience staff would attempt respond attempted discus depth pro con ect however view ewl limited ability understand conversation concerning current supported accommodation important provided bathroom rare accommodation given obsessive compulsive disorder able spend long time bathroom cause difficulty shared facility issue alternative current treatment regime dr b opinion practical alternative aware new untried medication would anticipate long term acute admission heavy medication treatment posed serious risk including severe bowel obstruction permanent movement disorder risk sudden death example due effect medication heart rhythm term lack alternative treatment option said psychiatrist magician ewlewl opinion part set statutory declaration dated 7 july 2014 written assistance interpreter said suffer schizophrenia given choice would accept treatment belief ect make sick complains problem sight ect commenced find ect completely scary strongly wish end say faced choice ect another treatment would accept treatment would prefer inpatient hospital care many week alternative ect confirmed view hearing assistance interpreter mainly used short english sentence gave oral evidence short time interpreter primary helped putting question described main medical problem neck injury said ctos sick people need one long doctor forced take medication would take view ect make sick head said ect stopped would feel good happy life agreed treating doctor good people decisionas already stated application perform ect granted address decision criterion ewl capacity give informed consent view ewl capacity give informed consent accept evidence point drs b ewl inability understand suffers mental illness weigh risk benefit either accepting rejecting ect accept ewl evidence demonstrates capacity give informed consent ewl say agree diagnosis suffers schizophrenia accepts treatment subject cto view ect cause illness report visual side effect following ect scared ect want stop say preference ect would accept new medication clozapine previously received even required hospitalised 12 week giving evidence ewl showed sign understanding mental illness suffers able discus comparative merit alternative treatment broad declaration would stay hospital 12 week take medication amount far able judge limited nature evidence due foreign environment vcat hearing turning definition informed consent at 68 satisfied ewl understands information given relevant receiving ect accept hesitation able remember information relevant decision satisfied ewl able use weigh information relevant decision andi satisfied ewl able communicate decision refuse ect turning principle intended provide guidance person required determine whether person capacity give informed consent act recognise ewl capacity give informed consent specific decision ect ewl capacity give informed consent may change time made assumption based ewl age appearance condition aspect behaviour determined ewl capacity give informed consent decision refuse ect could considered unwise andin view reasonable step taken conduct assessment context vcat hearing ewl capacity assessed accurately party reasonable opportunity present evidence make submission hearing reaching view considered submission put behalf ewl point address require separate comment first submitted vcat must grant application ect unless positively satisfied patient capacity give informed consent linked requirement person seeking informed consent treatment patient presumed person seeking consent capacity consent 70 2 however requirement positive satisfaction finding capacity may made within standard proof discussed section 70 speaks person seeking consent presuming capacity tribunal mht neither seek patient consent reaching decision add also reject submission similar vein standard evidence required particularly stringent ect regarded extraordinary form treatment discussed relevant standard proof evidence ect extraordinary form treatment act use term rather ect form treatment see 6 may administered person capacity consent without consent person capacity may administered without approval tribunal clear chief psychiatrist annual report regularly used treatment modality second submitted saying person lack capacity give informed consent analogous allegation person point appears moot stated basis invokingbriginshaw reject submission nowhere act concept allegation respect mental health appear third submission made given inter relationship s 68 69 act finding lack capacity made unless tribunal satisfied person question provided sufficient information base decision doubt merit submission express concluded view view theoretical case accept dr b dr striven provide information discus relevant issue ewl done opinion lack capacity consent comment appears necessary link capacity information provided medical practitioner often regard person capacity make decision concerning healthcare providing information proposed treatment situation mht reason decision concerning ewl took similar view apparently similar submission submitted section 68 section 69 act inherently intertwined phrase capacity give informed consent contains word informed consent therefore consideration section 69 imported section 68 effect submitted oblige tribunal determining whether patient capacity give informed consent conduct enquiry matter outlined section 69 1 b interrogate circumstance careful reading part 5 division 1 act support interpretation capacity give informed consent unitary phrase broken capacity informed consent criterion capacity give informed consent assessed set section 68 requires functional assessment clinical determination four domain must unimpaired person cognitive physical facility engage information may give rise grant informed consent capacity necessary precondition grant refusal consent must free informed much plain section 68 71 indeed relationship section 68 69 converse submitted rather section 68 requiring consideration criterion section 69 fact section 69 1 requires consideration section 68 1 fourth related third point accept submission dr b dr overly focused discussing ewl issue concerning ect side effect failed appropriately discus option evidence broad discussion time however would surprising limited discussion option given view realistic alternative fifth reject submission underlying lack understanding ewl regard mental illness need treatment displace ability make informed decision alternative compulsory treatment perhaps case person denied existence mental illness suffered yet could balance pro con alternative compulsory treatment however accepted evidence dr b dr case le restrictive way ewl treated view le restrictive way ewl treated accept medical opinion particular dr b opinion based treating ewl seven year current treatment regime including ect maintaining ewl best mental health experienced year balance achieving appears delicate evidenced deterioration even modest lengthening interval maintenance ect treatment attempted submitted ewl behalf evidence alternative treatment trial alternative medication inpatient 12 week however expert evidence fact alternative current regime experimentation medication based guesswork evidence likely involving hospitalisation significant risk alternative posed significant risk ewl health including likelihood resumption acute phase ect bring back current health may lose current difficult replace something equivalent accommodation deciding le restrictive way ewl treated regard factor set 93 2 act ewl opposes ect accept receiving scare however give limited weight given lack capacity discussed unfortunately ewl scared treatment related place limited weight statement would elect hospitalised 12 week rather receive ect discussed beneficial alternative treatment reasonably available ewl made advance statement nominated person put view treatment guardian appointed concerning view others relevant person sister would perhaps fall within concept carer 93 attend vcat hearing accept doctor evidence supported ect treatment likely consequence ect performed grave andno second psychiatric opinion obtained ewl reaching view considered submission put behalf ewl point address require separate comment first reject submission positive satisfaction required criterion found met second need decide whether tribunal may grant application ect satisfied treatment immediately performed patient would experience serious deterioration mental physical health cause serious harm another person evidence clear ect provided ewl likely experience serious deterioration mental health quite possibly physical health deterioration physical health may well result difficulty could experience self care dr b speaks serious potential side effect including sudden death third substantial effort put detailed submission necessity cogent evidence support finding le restrictive way patient treated le restrictive way given ewl given evidence agreed 12 week inpatient treatment alternative ect trialled dr b dr gave cogent evidence based significant clinical history efficacy current treatment lack real alternative carefully considered decided reasonably available option meaningful alternative successful treatment term symptom control cannot include mixture medication administered without reference evidence efficacy expectation ewl mental health deteriorate impatient care required risk never recover current level health fourth rejected submission question whether way treating patient le restrictive subjective must determined reference patient view preference put written submission act clearly requires view patient taken account accorded respect happened basis concluding subjective view determinative judicial comment quoted submission respect decision making reference issue arising theguardianship administration act 1986 1 great value expressing principle wish people disability given effect whenever possible greatly assist context specific treatment decision themental health act 2014 act requires consideration critical issue related point oral submission written submission refined two reasonable way compulsorily treat person act including one option ect patient subjective view determine provided reject submission clear act would require view given great weight treatment decision however act operate subjective view would decide issue reiterate regard hypothetical submission evidence ect time reasonable option fifth reject submission extent view play gravity consequence potential deterioration ewl mental health emphasise feasibility providing alternative treatment discussed sixth accept submission important recognise 11 1 act recognises person receiving mental health service allowed make decision assessment treatment recovery involve degree risk however aspect mental health principle must balanced principle importance recovery risk great objective act mental health principlesfor sake completeness note reaching decision considered objective act mental health principle set s 10 11 act regard decision properly made within requirement balance best available outcome context giving due weight right wish treated charter human right responsibilitiesin making decision also considered ewl right thecharter human right responsibility act2006

Borromeo, Jerric Randall Mari Reyes [2003] MRTA 4408 (26 June 2003).txt

borromeo jerric randall mari reyes 2003 mrta 4408 26 june 2003 last updated 8 september 2003 2003 mrta 4408catchwords review visa refusal subclass 676 genuine visitreview applicant jerric randall mari reyes borromeovisa applicant abovetribunal migration review tribunalpresiding member jennifer ellismrt file number v02 01932dept file number paper onlydate decision 26 june 2003at melbournedecision tribunal affirms decision review finding visa applicant entitled grant short stay visitor class tr visa statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate jerric randall mari reyes borromeo visa applicant national philippine born 25 november 1989 applied short stay visitor class tr visa 30 january 2002 d1 f 9 delegate decision refuse grant visa made 14 february 2002 d1 f 11 younger brother jason rafael borromeo born 6 october 1995 also refused visa jurisdiction standing2 visa applicant lodged application review migration review tribunal tribunal 18 march 2002 t1 f 1 7 decision reviewable tribunal application review properly made person standing apply review jason borromeo lodged separate application review tribunal legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa department reconsideration remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 criterion policy immediately relevant review legislation part 676of schedule 2 regulationsdirections policy direction 1 2 1996 issued minister section 499 actpolicy procedure advice manual 3 generic guideline h visitor visasprocedures advice manual 3 schedule 4 public interest criterion criterion 4011case law minister immigration multicultural affair v dunne 1999 fca 204 10 march 1999 6 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence7 tribunal following document t1 mrt case file v02 01932 folio numbered 1 105 t2 mrt case file v02 01971 folio numbered 1 51 d1 departmental paper folio numbered 1 20 d2 departmental paper folio numbered 1 56 d3 departmental paper folio numbered 1 51 8 11 october 2000 visa applicant mother racquel borromeo applied philippine short stay visitor class tr subclass 676 visa period 3 month visa applicant younger brother jason rafael borromeo included application m borromeo stated wished visit mother marilyn luberio two brother australian citizen said married john michael borromeo would travelling australia previously granted visitor visa june 1995 november 1998 refused visa october 2000 following information provided support application included copy australian citizenship certificate marilyn luberio visa applicant grandmother indicates became australian citizen 31 march 1994 d2 f 22 statutory declaration visa applicant grandmother dated 11 october 2000 stating would like sponsor daughter two grandchild visit australia d2 f 19 copy employment certificate president j r g construction dated 17 october 2000 state john borromeo visa applicant father regular employee since 31 january 1997 employed accountant construction material project bidder d2 f 18 letter visa applicant father addressed department social welfare development date included state allows child jerric randall mari jason rafael mari travel abroad australia mother racquel reyes borromeo claim unable join due current employment commitment d2 f 14 copy visa applicant birth certificate dated 4 october 1989 show father john michael del borromeo mother racquel jauer reyes d2 f 12 copy visa applicant parent marriage certificate dated 8 august 1992 show john michael borromeo married racquel reyes 8 august 1992 d2 f 11 9 23 october 2000 visa application granted visa valid 1 february 2001 racquel borromeo condition 8503 stay imposed visa condition imposed child visa 10 1 november 2000 visa applicant arrived australia holder short stay visitor class tr visa validity three month accompanied mother raquel borromeo brother jason rafael borromeo 11 29 january 2001 racquel borromeo applied waiver condition 8503 allow apply visitor visa onshore request subsequently refused 12 1 february 2001 visa applicant brother applied onshore family relationship class tl subclass 425 visa following information submitted letter visa applicant representative dated 1 february 2001 stated visa applicant currently australia visitor visa staying grandmother marilyn luberio wished extend stay d3 f 13 letter representative dated 10 april 2001 stated visa applicant brother australia mother visiting grandmother relative since 1 november 2000 father john borromeo gave written consent visitor visa application october 2000 representative claimed visitor visa granted visa applicant father made serious threat kill wife racquel borromeo visa applicant allegedly wanted kill visa applicant physical appearance appeared resemble mother alleged visa applicant father planned abduct visa applicant brother incident detailed submission supporting statutory declaration lodged department 29 january 2001 racquel borromeo request waiver condition 8503 representative claimed racquel borromeo suffered domestic violence throughout marriage witnessed child due severity recent threat visa applicant mother requested stay condition visa waived department request refused making arrangement depart australia visa applicant brother reside grandmother provide food accommodation expense including medical educational cost stay australia representative claim visa applicant brother experience life australia currently enrolled holy spirit primary school d3 f 30 13 8 march 2001 visa applicant mother departed australia application condition stay waived refused department 14 8 november 2001 visa applicant brother granted family relationship class tl subclass 425 visa valid 30 january 2002 15 30 january 2002 visa applicant brother applied subclass 676 visitor visa subject review following information submitted undated letter visa applicant mother raquel borromeo stated would like two son remain grandmother marilyn luberio short time safe return philippine ex husband continued threaten child resides brother sister law philippine visa applicant aunt informed mother worried safety racquel borromeo claimed hiding ex husband said visa applicant brother returned philippine father might find try harm claimed living boarding house owner refused two child residing searching alternative accommodation d1 f 1 undated written statement visa applicant parent stating decided end relationship 27 september 1997 agreed reside house sake child stated visa applicant mother sole custody two child d1 f 2 undated letter visa applicant father certifying give sole custody two son raquel borromeo d1 f 3 copy visa applicant grandmother bank account statement bank melbourne dated 4 february 2002 show 504 50 deposited account 22 october 2002 792 00 27 december 2001 794 60 8 january 2002 d1 f 13 letter visa applicant representative dated 6 february 2002 enclosing visa applicant grandmother bank account statement show income 2 095 10 27 december 2001 22 january 2002 stated visa applicant grandmother managed support child past twelve month held family relationship visa d1 f 16 16 14 february 2002 delegate refused visa application basis visa applicant failed satisfy subparagraph 676 221 2 g v paragraph 676 211 3 c 17 18 march 2002 visa applicant applied review tribunal visa applicant migration agent submitted delegate misinterpreted criterion subparagraph 676 221 2 g v although visa applicant australia 12 month held visitor visa 3 month also submitted visa applicant grandmother meant apply subclass 686 visa confused lodging visa application 18 tribunal convened hearing 12 march 2003 adjourned 16 april 2003 notification problem 19 hearing 16 april 2003 visa applicant grandmother marilyn luberio gave oral evidence advised visa applicant brother attended hearing tribunal required presence due age tribunal held hearing concurrently relation visa applicant brother 20 marilyn luberio told tribunal migrated australia 1991 worked full time shift supervisor crown casino 5 year earned 803 00 per fortnight husband also fully employed paid rent household bill allowed fully support visa applicant mother daughter philippine submitted copy bank account showed balance 932 36 1 995 71 respectively 21 m luberio told tribunal visa applicant currently aged 13 7 year old respectively said daughter visa applicant visited australia nearly every year since 1990 1991 said reason visa application problem visa applicant father said visa applicant needed safe place live philippine mother needed time find currently living variety bedsit type place manila said daughter many problem former husband paranoid terrified found philippine daughter work completely supported m luberio sent 322 per fortnight said could give visa applicant good life parent could give 22 m luberio claimed daughter former husband violent toward daughter marriage almost killed woman united state said daughter visa applicant scared tribunal asked circumstance changed since january 2002 visa applicant applied 3 month visa replied daughter needed time find visa applicant safe place live asked long thought would take replied 9 12 month may travel philippine help daughter said environment good child want suddenly take school australia jason grade one primary school visa applicant year 8 secondary college said believed responsibility give education always enrolled school came australia attended school australia since beginning 2001 soccer swimming gym school telephone mother philippine weekly basis also sends sm message mobile telephone contact father belief may working saudi arabia moment know sure may returning philippine soon sure asked father would deprive staying australia longer period 23 tribunal asked incentive visa applicant return philippine replied mother wanted back said daughter unable find place would accompany visa applicant back philippine make sure enrolled school said every time daughter saw friend husband would hide person ring mother say move another place jumped one suburb another tribunal queried tried live outside manila said gut tribunal noted visa applicant mother returned philippine two year ago asked yet found safe place live m luberio said daughter scared travel freely around manila case former husband friend saw made difficult find place stay said visa applicant understood mother situation younger brother think working philippine 24 m luberio asked compelling reason grant visa replied felt sorry grandchild simply needed time said focus visa applicant safety asked visa applicant wanted stay australia said child said wanted stay australia told could take computer playstations happy return philippine 25 conclusion hearing tribunal requested visa applicant representative forward material submitted department time visa applicant mother applied condition 8503 waived 26 7 may 2003 tribunal received following material lodged department visa applicant mother applied condition 8503 waived including statutory declaration racquel borromeo made 25 january 2001 stated former husband violent towards throughout marriage threatened kill jerric grab jason left australia stated reason needed stay longer period australia statutory declaration marilyn luberio made 29 january 2001 corroborated evidence daughter declaration stated dangerous daughter return philippine time statement made jannette domingo sister law visa applicant father stated visa applicant father still looking want kill racquel petition annulment marriage racquel john borremeo detailing physical verbal abuse suffered racquel borromeo hand former husband declaration west corvina police department dated 29 february 2000 stating john borromeo assaulted girlfriend 25 february 2000 findings27 class tr contains one visa namely subclass 676 tourist short stay visa order succeed application visa regulation necessary visa applicant satisfy criterion grant visa 28 subdivision 676 22 set criterion met time decision paragraph 676 221 1 b state applicant must meet requirement subclause 2 3 4 29 delegate referred subparagraph 676 211 2 g v decision however subparagraph omitted 1999 visa application lodged 30 january 2002 subparagraph longer applicable application 30 paragraph 676 221 2 c requires visa applicant satisfies decision maker expressed intention applicant visit australia genuine minister issued direction section 499 relevant criterion policy direction 1 1996 relation genuine visit policy direction 2 1996 relation adequate fund regard criterion set legislation consideration set direction issue raised matter discussed following heading purpose visa applicant visit duration stay proposed plan visa applicant made visit relative visa applicant personal responsibility financial mean earnings level support assistance available visa applicantthe visa applicant originally arrived australia visitor visa 1 november 2000 applied family relationship visa granted 30 january 2002 applied visitor visa remain australia 3 month stated purpose visa could return philippine father threatened kill return visa applicant mother claimed ex husband continued threaten child returned philippine father may find try harm returned philippine claim hiding ex husband visa applicant currently residing grandmother brother australia level personal financial employment commitment may induce visa applicant return circumstance may induce visa applicant returnthere number factor may induce visa applicant return philippine mother resides philippine seen since departed australia 2 may 2001 however claimed mother requires brother remain australia find safe accommodation philippine d1 f 1 number factor may induce visa applicant remain australia claimed upon arrival australia father made threat kill mother currently enrolled school appears settled life grandmother australia credibility visa applicant term character conduct information disclosed visa application otherwise obtained may indicate visa applicant abide visa condition history compliance breach immigration law visa applicant history dealing department person person australia usually resident australia support support visit visa applicantthere adverse information regard 31 time visa application lodged january 2002 stay period 3 month sought 17 month since application lodged visa applicant grandmother told tribunal daughter still needed time find safe accommodation visa applicant philippine could take another 9 12 month raise question whether visa applicant intention return philippine evidence presented tribunal satisfied expressed intention visa applicant visit australia genuine satisfy paragraph 676 221 2 c therefore cannot meet criterion subclause 676 221 2 32 visa applicant satisfy criterion paragraph 676 221 2 c cannot meet criterion paragraph 676 221 3 b furthermore relation paragraph 676 221 3 c visa applicant also required compelling personal reason grant visa expression defined legislation inminister immigration multicultural affair v dunne 1999 fca 204 10 march 1999 branson j considered meaning compelling reason context another provision act held compelling reason must involve something addition basic pre requisite criterion grant visa macquarie dictionary defines compel force drive especially course action oxford english dictionary 1989 defines compelling looking verb compel mean urge irresistibly bring force moral necessity 33 visa applicant representative argued necessary visa applicant brother granted visa dangerous return philippine much documentary evidence tribunal submitted 2001 time visa applicant mother applied condition 8503 waived two year passed since time tribunal convinced time possible visa applicant mother find stable safe residence child somewhere philippine would appear mother believe visa applicant brother would secure future australia whilst understandable circumstance taking relevant matter account tribunal satisfied reason given categorised strongly compassionate sufficient moral force constitute compelling personal reason therefore tribunal find visa applicant satisfy paragraph 676 221 3 c satisfy subclause 676 221 3 34 evidence visa applicant grandmother adequate fund support australia evidence suggestion visa applicant suffering financial hardship result change circumstance entering australia view paragraph 676 221 4 b apply criterion subclause 676 221 4 met 35 visa applicant satisfy subclause 676 221 2 3 4 satisfy subclause 676 221 1 therefore meet criterion clause 676 221 conclusion36 given finding made tribunal alternative affirm decision review decision37 tribunal affirms decision review finding visa applicant entitled grant short stay visitor class tr visa

G and G. [1988] FamCA 32; (1988) FLC 91-939; (1988) 12 FamLR 185 (25 March 1988).txt

g g 1988 famca 32 1988 flc 91 939 1988 12 famlr 185 25 march 1988 marriage g g 1988 flc 91 939other publisher citation 1988 12 famlr 185family court australia sydney judgment delivered 25 march 1988 elli j elli j husband proceeding born 31 october 1949 wife born 2 november 1951 married 5 december 1971 finally separated 9 february 1987 three child marriage k born 1 april 1977 j born 26 august 1978 l born 29 october 1982 proceeding party cross application custody child separately represented behalf order sought wife custody husband supervised access coming decision relation custody access child court must regard welfare paramount consideration pursuant sec 64 1 act court required proceeding consider wish expressed child sec 64 1 b take account matter referred sec 64 1 bb regard injunction set forth sec 64 1 ba particular importance case involving allegation child sexual abuse focus real issue court issue proceeding whether husband guilty serious criminal offence namely sexual abuse one child determined proper appropriate order make regard welfare child pointed full court inb b 1987 flc 91 855 p 76 462 allegation child sexual abuse easily made easily proved disproved nevertheless court primary concern protect subject child risk isnotbound make finding clearing anyone name 1987 flc 91 830 task promote best interest child propose focusing real issue date marriage party student subsequently completed respective course november 1974 separated period six month satisfied wife sexual relationship woman jc period separation time indeed accept evidence wife point 1980 wife suffered miscarriage result understandably extremely sad grieved loss child several month formed time close relationship female friend year standing one incident sexual nature involving wife friend satisfied although friendship continued one sexual encounter july 1980 party travelled united kingdom remained period approximately 12 month propose dealing reason conduct husband party united kingdom 1986 wife met one lc friendship developed two july august 1986 june 1987 two entered lesbian relationship continued wife depressed 1980 following miscarriage period 1982 1986 satisfied husband became period dominant partner marriage party involved time child husband view greater extent wife indeed prior final separation party satisfied husband prime caretaker child well dominant partner marriage psychiatrist dr b given evidence personality wife would always submissive partner relationship party separated 9 february 1987 wife left former matrimonial home moved home lc daily contact child l day k j school 16 february husband went abroad leaving child wife returning 28 february child returned remained 7 march wife collected girl k taken husband wife following day staying overnight 7 february friend 4 march 1987 department youth community service informed child may sexually abused 9 march two officer local community welfare centre interviewed wife two girl lc home 10 march wife lc three child went westmead hospital child examined dr report annexed affidavit sworn 26 march 1987 gave oral evidence reported follows k overall impression k significantly emotionally disturbed pre pubertal boy evidence past recent sexual assault j difficult draw accurate conclusion history presented physical finding small skin tag 2 3 clock suggests localised trauma past consistent definite evidence digital manipulation l finding anal haematoma anal fissure suggest recent within last 5 6 day trauma area trauma would likely resulted penetration anus large firm object regard oral evidence dr evidence dr would prepared find relation l trauma noted would likely resulted penetration anus large firm object indeed coming decision attached significance report dr 11 march husband informed child victim sexual abuse alleged perpetrator emphatically denied allegation 13 march wife child lc flew melbourne husband 17 march instituted proceeding court maxwellj ordered wife return child n w wife complied order 19 march honour ordered husband vacate former matrimonial home noon 22 march permit wife exclusive occupation property child order right wife conditional permitting lc reside property brought contact child order wife also ordered make arrangement ensure enrolment child former school 26 march 1987 lawriej ordered supervised access husband child apart period whilst dr b prepared report husband supervised access child commencement hearing clear wife belief husband sexually abused child allegation husband time denied hearing gave evidence believe k abused adult felt friend probably engaged sexual play believed statement j felt l abused adult adult probably lc much evidence hearing related allegation sexual abuse investigation thereof propose outlining whole evidence adduced hearing 23 witness filed affidavit gave evidence period 8 day addition husband wife additionally two family report admitted evidence application made cross examine author report prime witness called separate representative child dr b found dr b many respect unsatisfactory witness however interview three child number occasion husband wife lc criticism made dr b report methodology dr w submission dr w report annexed affidavit sworn 12 october 1987 also gave oral evidence view dr b report requires considered certain caveat outlined report oral evidence particular felt dr b weighted possibility false allegation child father excluding influence could still exerted lc notwithstanding contact child wife contact criticism made dr b reason advanced accept evidence matter propose repeating include allegation bias admitted pressuring child wife fairness dr b certainly satisfied biased witness attempted view deal problem confronted open professional manner nevertheless already said found many respect unsatisfactory witness notwithstanding criticism dr b satisfied observation including observation l demonstrating father doll male masturbation report child told accurately recorded evidence demonstration l view significance notwithstanding unsatisfactory manner dealt dr b cross examination pressuring child involving extent particularly whilst dr b seeing child purpose report wife welfare child uppermost mind clearly formed view husband sexually abused child wished child articulate view dr b however satisfied pressuring wife resulted child acting sexualised manner observed dr b indeed witness accept evidence dr w relating rearing child homosexual household evidence given mother wife accept evidence prior conversation set affidavit sworn 24 august 1987 believed husband sexually abused child accept child l confided grandmother grandmother recorded conversation another affidavit relating conversation child sworn mr h came germany purpose giving evidence case never met husband open desire wife succeed application view gave evidence open frank manner accept evidence also accept evidence therapist evidence one department youth community service officer child protection worker also gave evidence including evidence observation child husband generally various conversation accept evidence including evidence observation heard l say husband husband solicitor occupation specialised family law domestic matter commenced living mr k july 1987 presently reside together three mr k daughter four bedroom cottage successful application husband would propose interim measure reside mr k child former matrimonial home three child thereafter purchase suitable property area mr k know three child would undoubtedly assist husband caring would competently fulfil support role employed three day per week husband regard relationship permanent propose marrying husband presented rather shallow superficial although intelligent energetic parent love child enjoyed good relationship proposes continue practise profession tailor working hour degree give time child successful application fact obviously breached provision sec 121 act forwarding copy affidavit filed proceeding example mother wife matter take account coming decision however husband solicitor purport practise area family law obviously know ought know provision act relevant section cannot comment failure comply law live standard expected member profession higher standard conduct obviously expected however mentioned take factor account reaching decision prepared allow flagrant breach section go past unnoticed wife resides former matrimonial home sole occupancy since march 1987 pursuant order ofmaxwellj routine established since march 1987 set affidavit wife sworn 13 july 1987 proposes custody child remaining former matrimonial home area next 12 month thereafter may move proposes husband child continue present school proposes continue therapy therapist wife employment able devote full time care child since 1980 known described lesbian feeling two lesbian relationship one female friend one occasion lc wife ongoing relationship unlikely view least immediate future wife lc live together one household satisfied wife love child past feeling inadequacy mother accept evidence dr b marriage husband assumed role major caretaker child may 1987 wife adequacy mother yet proven date child developed close bond however since albeit shortish period wife benefit expert assistance accept evidence therapist including evidence three child relate well wife opinion feel safe care also accept evidence child expressed wish throughout last three session wanting live mother see father someone supervising notwithstanding receiving expert assistance inadequate mother view good relationship child come harm care desire live wish child however circumstance case regard age factor coming decision attached significant weight wife exhibited period observe party witness box warmth relation child detect husband better insight mr k need child believe interest wife child best served continue therapy session therapist child still view disturbed therapy may well assist wife establishing independence evidence given lc apparently good relationship child contact since march 1987 like husband would find impossible associate friendly basis belief abused child presented adult somewhat unconventional lifestyle whose main priority foster son necessity provide security see contact child place risk jeopardise welfare necessary determine whether child proceeding sexually abused husband submitted wife issue case task promote best order welfare child regard whole evidence standard proof enunciated inbriginshawv briginshaw 1938 hca 34 1938 60 c l r 336 satisfied element risk child husband given custody allowed unrestricted access conclusion reached lightly great significance outcome case regard conclusion character personality party observed perceive evidence present respective parenting ability present relationship child present wish child party respective capacity provide need child relevant history including lesbian history wife respective proposal child future satisfied present predictable future welfare child would better served custody mother follow conclusion element risk child husband allowed unrestricted access access however access must supervised period responsible adult independent husband agreed upon party subject submission counsel may wish make therefore propose ordering 1 wife sole custody child k born 1 april 1977 j born 26 august 1978 l born 29 october 1982 2 husband reasonable access said three child access order supervised responsible adult independent husband agreed upon party 3 liberty either party apply seven day notice unable agree upon reasonable access unable agree upon adult supervise access 4 condition contained order 19 march 1987 wife sole occupation former matrimonial home conditional upon allowing one lc brought contact child discharged 5 wife ensure far possible child continue therapy session therapist suitable therapist also concerned interpretation solicitor party order oflawriej 30 april 1987 appears yellow sheet following form henceforth matter listed initial g g solicitor gone far beyond order indeed affidavit sworn people aeg 6 propose ordering order oflawriej discharged submission relation form proposed order formally make order 1 6 indicated

Roidal v Galim Imports P_L [2006] VCC 1380 (18 October 2006).txt

county court victoria revised melbourne civil division business list commercial division case ci 06 00950 roidal l plaintiff v galim import pty ltd defendant honour judge anderson judge held melbourne date hearing 18 october 2006 18 october 2006 date judgment roidal v galim import pty ltd case may cited medium neutral citation 2006 vcc 1380 reason decision catchword summary judgment sale goo d consideration defence raised defendant pleading answering affidavit defendant principal witness ill health summons adjourned appearance counsel solicitor plaintiff mr j graham munro legal defendant mr h aizen jack sher associate county court victoria 250 william street melbourne undefined bookmark honour 1 plaintiff claim sum 183 154 46 defendant balance owing supply swimwear 2000 2004 plaintiff summons dated 6 july 2006 seek summary judgment sum 2 application made defendant counsel mr aizen adjournment summons enable instruction obtained michael munzer manager employed defendant mr munzer unavailable give instruction relation matter week ill health 3 determined appropriate adjourn hearing summary judgment proceeding one month give party opportunity file affidavit 4 matter extensively argued considerable quantity material filed application suggestion party agreed conduct mediation held within next two week indicated would provide written reason decision adjourn hearing summary judgment proceeding hoped summary evidence submission concerning matter raised proceeding might facilitate discussion mediation alternatively indicate matter need addressed court adjudicate summary judgment proceeding 5 order made today follows 1 adjourn hearing plaintiff summons dated 6 july 2006 friday 17 november 2006 10 00 2 proceeding entered commercial list pilot interlocutory step trial action heard honour judge anderson unless otherwise ordered 3 party leave file affidavit relation plaintiff vcc k 1 judgment roidal v galim import pty ltd summons affidavit must filed served 4 00 p 10 november 2006 4 proceeding referred mediation completed 3 november 2006 first instance cost mediation borne equally party 5 reserve liberty party apply matter including conduct mediation making application associate honour judge anderson fix time direction hearing telephone conference 6 plaintiff cost day reserved 7 order unless cost 800 ordered paid defendant plaintiff order honour judge morrish 6 september 2006 paid 25 october 2006 defence shall struck counterclaim dismissed plaintiff cause action 6 plaintiff claim sum 183 154 46 good sold delivered alternatively account stated 7 defendant pleading essentially admit swimwear value 948 972 10 supplied plaintiff defendant 2000 2004 payment made defendant plaintiff totalling 765 817 64 balance 183 154 46 issue raised defendant way set counterclaim 8 defendant pleading affidavit opposition summary judgment raised following matter way defence counterclaim swimwear supplied defective otherwise fit purpose supplied vcc k 2 judgment roidal v galim import pty ltd b advertising promotional material supplied season 2004 c late delivery swimwear 2004 plaintiff failed supply swimwear 2005 sold direct defendant customer e plaintiff breached agreement would supply sample nominal cost f plaintiff breached agreement good invoiced euro would provide price list various currency g plaintiff breached agreement would deduct 11 agent commission price charged defendant h plaintiff breached agreement would provide additional 4 5 discount good supplied account statement acknowledgement defendant plaintiff debt 9 plaintiff relies upon letter dated 23 august 2005 sent fax defendant plaintiff letter dated 29 november 2005 sent fax defendant accountant rado accounting service pty ltd plaintiff 10 facsimile dated 23 august 2005 exhibit jmrb 9 p 20 read follows requested meet demand banko pastor hereby acknowledge confirm company galims pty ltd current debt stand total aud 183 000 intention repay amount following instalment end november 2005 10 20 end december 2000 50 january february march 2006 balance debt 11 mr munzer paragraph 26 affidavit said letter admission vcc k 3 judgment roidal v galim import pty ltd rather assistance plaintiff placating banker exhibit jmrb 9 contains sequence document confirm plaintiff bank requesting letter sort however mr munzer affidavit directly address issue whether sum fact owing plaintiff certainly earlier correspondence contained exhibit jmrb 9 suggests defendant acknowledging debt offering repay best could providing reason liable debt suggest reason paid debt including moving exchange rate made plaintiff swimwear expensive australia therefore le competitive 12 unless defendant point correspondence suggesting indebtedness plaintiff earlier disputed conclusion drawn correspondence exhibit jmrb 9 defendant acknowledging indebtedness 13 paragraph 26 affidavit mr munzer say facsimile written time making claim roidal overcharging defective stock evidence claim plaintiff provided 14 29 november 2005 defendant accountant rado accounting service pty ltd wrote plaintiff follows debt owing galim import pty ltd writing behalf client mr munzer galim import pty ltd letter referred mr munzer ill health write later stage payment arrangement debt repaid earliest time hopefully early new year arrange payment meantime please assured company galim import pty ltd trying best pay debt owing company earliest possible time 15 letter followed earlier communication 19 september 2005 following mr munzer heart attack communication mr rado stated mr munzer involved day day running business time time please direct inquiry mr munzer accounting firm vcc k 4 judgment roidal v galim import pty ltd best maintain control business mr munzer recovered enough return work 16 mr rado sworn affidavit opposition plaintiff summons correspondence involving accounting firm including facsimile relied upon account stated referred mr munzer affidavit defence supply defective swimwear 17 defence counterclaim pleads large number item swimwear fit purpose resale defendant retailer australia paragraph 16 substantial part item swimwear shipped merchantable quality paragraph 23 substantial portion said item swimwear correspond sample paragraph 28 18 defence counterclaim dated 12 may 2006 particular alleged defect included defective strap incorrectly sized swimwear swimwear manufactured defective material swimwear delivered damaged condition could resold dye swimwear fast colour swimwear correspond sample beading became detached swimwear 19 affidavit sworn michael munzer 4 september 2006 exhibit mm 11 set defective feature different model swimwear defect included short body length backside narrow single halter neck strap rather two strap narrow back bad fit short body strap narrow hold bust bra top fit correct size bottom cut narrow back reference made affidavit defect alleged defence 20 mr munzer said affidavit defendant received complaint retailer swimwear defective least 1200 faulty item supplied year said faulty swimwear thrown sold nominal price said defendant still 200 faulty garment able sell despite request plaintiff solicitor vcc k 5 judgment roidal v galim import pty ltd 1 august 7 september 2006 inspect faulty garment permitted date 21 paragraph 26 michael munzer said affidavit 2005 making claim roidal overcharging defective stock written evidence claim produced 22 correspondence party may 2001 procedure adopted faulty garment referred mr munzer paragraph 19 20 affidavit exhibit mm 10 facsimile dated 10 may 2001 plaintiff defendant read faulty garment returned make credit note necessary returned roidal present material filed suggests credit note requested defendant defective garment 23 paragraph 4 c affidavit plaintiff solicitor mr munro based information m anna calull responsible plaintiff export department m calull say since 2001 2002 season plaintiff retained cut shape model number defendant complaint defect essentially relate cut shape swimwear procedure followed plaintiff supply sample model month advance following season enable defendant order swimwear needed defendant continued order swimwear model set exhibit mm 11 throughout whole period supply including 2005 24 material filed behalf defendant relating quantification loss alleged arisen result supply defective swimwear allegation breach raised defence counterclaim referred mr munzer affidavit 25 defence counterclaim dated 12 may 2006 alleged breach agreement party plaintiff provide advertising promotional material season 2004 paragraph 19 late delivery vcc k 6 judgment roidal v galim import pty ltd swimwear 2004 paragraph 20 failure supply swimwear 2005 sale made direct defendant customer paragraph 21 26 mr munzer affidavit paragraph 13 refers agreement reached relation matter initial arrangement made lyon france 1999 conversation mr munzer leah silver behalf defendant jose maria royd boronat anna calull behalf plaintiff although mr munzer refers conversation concerning matter affidavit refer breach alleged term quantification loss damage resulting breach 27 affidavit mr munzer describes manager employed galim import pty ltd m silver sworn affidavit support defendant application adjournment describes sole director secretary defendant mr munzer domestic partner affidavit say involved choosing stock imported sample catalogue also handled wholesale sale stock deposed meeting lyon 1999 term agreement plaintiff alleged defence counterclaim mr munzer affidavit sample supplied nominal cost 28 defendant paid invoice totalling 53 328 70 respect sample supplied plaintiff year seek repayment sum together import duty gst apparently paid consequence 29 invoice apparently discount sample 40 50 value mr munzer paragraph 17 c affidavit say arrangement exhibit mm 5 mm 6 mm 7 mm 8 invoice sample described distributor without commercial value sum aud 1 charged item vcc k 7 judgment roidal v galim import pty ltd 30 mr munro affidavit sworn basis information received m calull say paragraph 3 k invoice referred exhibit mm 5 mm 8 supplied defendant request apparently purpose deceiving australian taxation authority actual cost item amount import duty paid would reduced defendant opportunity comment assertion 31 defendant relies upon lyon conversation 1999 entitlement pay nominal price sample rather receive discount 40 50 m silver sworn affidavit relation discussion meeting 32 mr munro affidavit paragraph 3 l say 1 per item invoice never paid hand invoice discount 40 50 invoice sample paid defendant apparently without complaint latter invoice exhibited mr boronat affidavit transaction euro price list supplied various currency 33 matter raised defence counterclaim dated 12 may 2006 allegation transaction euro first raised mr munzer affidavit alleged par agraph 9 lyon conversation agreed price defendant would purchase swimwear denomination euro australian dollar paragraph 13 f affidavit mr munzer say agreed sale would denomination euro australian dollar linked prevailing exchange rate 34 proposed amended defence counterclaim dated 11 october 2006 paragraph 12c f alleges term arrangement swimwear supplied plaintiff would invoiced either u dollar euro explanation provided inconsistency 35 paragraph 12 affidavit mr munzer said since outset requesting roidal supply u price list spanish peseta euro u dollar australian dollar said price list never provided vcc k 8 judgment roidal v galim import pty ltd therefore unable check verify plaintiff charge said request made plaintiff verbal although two document referred exhibit mm 3 facsimile plaintiff defendant dated 16 september 1999 state part make price list need know money want peseta spanish money australian dollar wait answer soon possible response written bottom facsimile hand apparently mr munzer read please send nett nett fob price list australian dollar peseta possible 36 exhibit mm 4 facsimile dated 22 september 1999 defendant plaintiff thanking plaintiff faxed fob price list australian dollar expecting also official fob price list spanish peseta shown u lyon exhibit mm 1 facsimile plaintiff defendant dated 22 september 1999 response answer fax tell lyon show fob price list u dollar find attached nett fob spanish peseta mr munzer affidavit refer exhibit discussion claim 37 mr munro paragraph affidavit objected basis hearsay paragraph 3 g state euro introduced currency circulation spain european union 1 january 2002 exhibit page printed website european union exhibit sm 4 statement affidavit appears comply court rule stating source information although within personal knowledge deponent 38 mr munzer complaint affidavit without price list currency able check verify plaintiff charge affidavit evidence plaintiff suffering loss result act default part plaintiff failure deduct 11 agent commission price charged 39 defendant alleges price charged plaintiff include 11 agent commission contrary agreement party vcc k 9 judgment roidal v galim import pty ltd 40 exhibit mm 4 facsimile defendant plaintiff dated 22 september 1999 includes statement also told u price list included agent commission rate case must deducted act importer distributor product plaintiff facsimile defendant dated 22 september 1999 exhibit mm 1 state fob price list australian dollar send deducted 11 commission fob nett australian dollar 41 paragraph 3 c e mr munro based formation m calull said australian price list provided defendant include 11 agent commission u price list exhibited sm 2 australian price list sm 3 australian price list said mr munro include 11 agent commission plaintiff invoice defendant reflect australian price list price 42 issue raised defence counterclaim dated 12 may 2006 first raised mr munzer affidavit issue appears clarified correspondence party september 1999 extensive transaction took place following year offer additional 4 5 discount 43 issue raised defence counterclaim paragraph 11 mr munzer affidavit said plaintiff offered additional 4 5 discount price swimwear said discussion anna calull agreed total discount defendant would receive would 15 mr munzer refers exhibit mm 2 fa csimile m calull dated 28 september 1999 includes following passage price interested introduce roidal australia price exportation list sent like special affair make 4 5 discount 44 mr munro paragraph 3 e h record information m calull defendant invoiced accordance aud dollar price list vcc k 10 judgment roidal v galim import pty ltd agreement total discount 15 apparently 2003 2004 season plaintiff invoiced defendant price approximately 5 le shown aud price list season confirmed exhibit mm 12 facsimile dated 16 december 2003 defendant plaintiff mr munzer thanks m calull 5 reduction cost price whilst noting still strong competition u also european brand exhibit mm 14 defendant purport calculate loss including discount total 15 45 notwithstanding reference 4 5 discount m calull facsimile dated 28 september 1999 swimwear supplied following two season rate set aud dollar price list evidence present defendant made complaint absence 5 discount matter raised mr munzer affidavit certificate certify 11 page true copy reason decision honour judge anderson delivered 18 october 2006 dated 18 october 2006 clare ashby associate honour judge anderson vcc k 11 judgment roidal v galim import pty ltd

THE STATE OF WESTERN AUSTRALIA -v- GORHAM [2022] WASC 62 (25 February 2022).txt

state western australia v gorham 2022 wasc 62 25 february 2022 last updated 25 february 2022jurisdiction supreme court western australiain criminalcitation state western australia v gorham 2022 wasc 62coram hall jheard 18 february 2022delivered 18 february 2022published 25 february 2022file 18 2021between state western australiaapplicantandstewart sinclair gorhamaccusedhigh risk serious offender act 2020 restriction order application preliminary hearing whether reasonable ground believing court might find respondent high risk serious offender whether interim detention order made pending determination applicationlegislation high risk serious offender act 2020result order made pursuant tos 46 2 interim detention order madecategory brepresentation counsel applicant m f allenaccused m fedelesolicitors applicant state solicitor officeaccused legal aid wa case referred decision nilhall j judgment delivered extemporaneously 18 february 2022 edited transcript introduction1on 23 november 2021 state western australia applied restriction order respect respondent stewart sinclair gorham thehigh risk serious offender act 2020 theact preliminary hearing application came today 2the main purpose preliminary hearing decide whether reasonable ground believing court might find respondent high risk serious offender within meaning theact see 46 1 3the state seek order pursuant theact including order restriction order imposed unders 48of theact b respondent undergo examination psychiatrist qualified psychologist purpose preparing report c respondent subject either interim detention order interim supervision order theactuntil final determination application 4the respondent counsel accepts requirement ofs 46are met reason follow satisfied concession appropriately made 5i also satisfied desirable protection community interim detention order imposed pending final determination application respondent counsel also accepts appropriate cause law6the main purpose preliminary hearing decide whether court satisfied reasonable ground believing court might find respondent high risk serious offender 7a high risk serious offender person relation court satisfied acceptable cogent evidence high degree probability necessary make restriction order relation order ensure adequate protection community unacceptable risk person commit serious offence 8a serious offence within meaning theactis defined in 5and schedule 1 relevantly includes deprivation liberty sexual offence child sexual penetration without consent 9i satisfied restriction orderwillbe made sufficient stage proceeding reasonable ground believing ordermightbe made say something might occur say possible belief inclination mind towards assenting rather rejecting proposition reasonable ground belief requires existence fact sufficient induce state mind reasonable person evidence10in support application state relies affidavit james france bennett affirmed 23 november 2021 contains respondent criminal history dating back 1989 several report relation report include pre sentence report psychological report psychiatric report individual management plan recent psychiatric report dated 25 january 2004 11the state also relies affidavit heather applin affirmed 9 february 2022 affidavit relates respondent proposed accommodation upon release m applin state respondent advised accommodation option wish released 12the respondent 52 year age long history offending offending included offence abduction arson sexual penetration child theft assault threat kill 13the respondent recent offence incident held 12 year old boy committed sexual offence incident held another prisoner committed sexual offence first incident resulted charge deprivation liberty indecent dealing sexual penetration child assault threat kill 13 october 2006 sentenced total 14 year imprisonment offence second incident resulted charge deprivation liberty sexual penetration without consent indecent assault 25 october 2006 sentenced four year imprisonment offence sentence due expire 21 february 2022 14in psychologist report prepared sentencing relation incident involving 12 year old boy mr mercurio cicchini stated respondent strong disposition violence sexual physical pleasure derives nullifies feeling vulnerability impotence mr cicchini concluded respondent high risk sexual violent reoffending male 1 15in psychiatric report prepared year dr victoria pascu stated respondent history substance abuse tended minimise diagnosed severe antisocial narcissistic personality disorder respondent suffered abuse child contributed impulsivity limited frustration tolerance tendency act aggressive manner however evidence underlying psychiatric disorder would explain behaviour 2 16in psychiatric report prepared sentencing relating incident involving prisoner dr steven patchett stated respondent scored extremely highly sex offender risk appraisal guide violence risk appraisal guide meaning considered extremely high risk committing sexual violent offence also high risk range static 99 assessment tool dr patchett concluded respondent severe antisocial personality disorder narcissistic trait evidence psychiatric disorder 3 17the individual management plan dated 18 march 2021 state respondent refused participate recommended program current term imprisonment 4 18in july 2021 respondent wrote letter whilst remorseful offending would able abstain offending released wished returned society 5 assessment19i satisfied reasonable ground believe court might find respondent high risk serious offender 20the respondent significant history violent sexual offending offending often involved victim child much younger adult whilst recent offending 2005 risk factor existed time likely still persist personality character trait referred expert report time possibility enhanced fact respondent engaged treatment program intervening year recently confirmed letter belief offending risk high 21on basis respondent offending history previous assessment reoffending risk reasonable ground believe court might find high risk serious offender therefore make order hearing restriction order application interim detention order22the state submits make interim detention order pursuant tos 46 2 c theact alternatively state seek interim supervision order pursuant tos 58 5 theact 23the respondent subject pending proceeding whilst currently custody current sentence due expire 21 february 2022 given respondent expressed belief would commit offence released lack suitable accommodation identified high risk serious offending likely nature offence need ensure adequate protection community pending determination proceeding requires interim detention order made certify preceding paragraph comprise reason decision supreme court western australia jsassociate honourable justice hall25 february 2022 1 affidavit james francis bennett affirmed 23 november 2021 92 mr mercurio cicchini clinical psychologist report dated 6 december 2004 2 affidavit james francis bennett affirmed 23 november 2021 97 dr victoria pascu psychiatrist report dated 15 june 2004 3 affidavit james francis bennett affirmed 23 november 2021 103 dr steven patchett psychiatrist report dated 14 september 2005 4 affidavit james francis bennett affirmed 23 november 2021 108 individual management plan dated 18 march 2021 5 affidavit james francis bennett affirmed 23 november 2021 113 stuart gorham letter dated 29 july 2021

Dalwadi (Migration) [2018] AATA 2360 (22 May 2018).txt

dalwadi migration 2018 aata 2360 22 may 2018 last updated 20 july 2018dalwadi migration 2018 aata 2360 22 may 2018 decision recorddivision migration refugee divisionapplicants m priyankaben vipulkumar dalwadimr jaykumar bharatkumar sonicase number 1721636dibp reference bcc2016 4067897member mark bishopdate 22 may 2018place decision melbournedecision respect first named applicant m priyankaben vipulkumar dalwadi tribunal affirms decision grant applicant regional employer nomination permanent class rn visa respect second named applicant mr jaykumar bharatkumar soni tribunal jurisdiction matter statement made 22 may 2018 11 07amcatchwordsmigration regional employer nomination permanent class rn visa subclass 187 regional sponsored migration scheme direct entry stream requirement subject approved nomination applicant subject approved nomination decision affirmedpractice procedure requirement applicant migration zone time application second applicant migration zone time application tribunal jurisdiction relation second applicantlegislationmigration act 1958 cth s 5 1 65 338 347 359amigration regulation 1994 cth r 5 19 4 schedule 2 cl 187 233 3 casessingh v mibp 2017 fcafc105statement decision reasonsapplication reviewthis application review decision made delegate minister immigration border protection refuse grant applicant regional employer nomination permanent class rn visa unders 65of themigration act 1958 act applicant applied visa 2 december 2016 time application class rn contained one subclass subclass 187 regional sponsored migration scheme criterion subclass 187 visa set inpart 187of schedule 2 migration regulation 1994 regulation primary criterion must satisfied least one applicant member family unit applicant visa need satisfy secondary criterion applicant seeking satisfy primary criterion must meet common criterion well criterion one three alternative visa stream temporary residence transition stream direct entry stream agreement stream present case first named applicant applicant seeking visa direct entry stream work nominated position stream designed person never briefly worked australian labour market applying visa outside australia applying inside australia eligible temporary residence transition stream delegate refused grant visa applicant meet cl 187 233 schedule 2 regulation application appointment business nominator approved applicant represented relation review registered migration agent following reason tribunal concluded decision review affirmed consideration claim evidencethe issue present case whether applicant satisfies cl 187 233 requires nomination approved applicant priyankaben vipulkumar dalwadifor applicant direct entry stream cl 187 233 requires position application relates subject application approval nominated position r 5 19 4 h ii regulation direct entry nomination regional australia r 5 19 4 prior 1 july 2012 regional sponsored migration scheme nomination position must one subject declaration required made part current visa application addition associated nomination made 1 july 2017 position must position relation applicant identified nomination r 5 19 4 ii addition criterion also requires person employ applicant person made nominationthe nomination approved subsequently withdrawnthere adverse information known immigration person made nomination person associated person within meaning r 1 13a r 1 13b reasonable disregard informationthe position still available applicant andthe visa application made six month nomination position approved tribunal note decision insingh v mibp 2017 fcafc105 88 90 court held nomination relied satisfy cl 187 223 must nomination made time visa application judgment summary 7 may 2018 tribunal wrote applicant relation application review made respect decision refuse grant regional employer nomination permanent visa 7 may 2018 tribunal wrote applicant 359a requesting applicant comment potentially adverse information tribunal provided particular adverse information explained relevance outlined potential consequence tribunal regard potentially adverse information potentially adverse information related decision tribunal 7 may 2018 application review dulhan exclusive pty ltd tribunal affirmed decision review nomination applicant respond request outlined paragraph 13 14 applicant provide comment respond information writing 7 may 2018 tribunal wrote applicant relation application review made respect decision refuse grant regional employer nomination permanent visa tribunal invited applicant 359 2 provide writing information demonstrating subject nomination approved minister r 5 19 required cl 187 233 3 schedule 2 migration regulation 1994 applicant respond request information applicant request extension time respond request applicant provide information requested information tribunal suggests applicant subject nomination approved minister required cl 187 233 3 schedule 2 migration regulation accordingly requirement cl 187 233 3 met therefore tribunal must affirm decision review secondary applicant jayakumar bharatkumar sonithe named secondary visa applicant migration zone time lodgement visa application review applicationthe review application lodged tribunal 2 december 2016 following reason tribunal jurisdiction review decision application made accordance relevant legislation section 347 2 act specifies right apply review decision reviewable part 5 act case decision described 338 2 application review may made non citizen subject decision physically present migration zone application review made 347 2 3 migration zone defined 5 1 act generally speaking mean australian state territory department movement record show named secondary applicant departed australia 10 june 2012 accordingly applicant offshore lodged application review tribunal find applicant migration zone relevant time application review application properly made 347 follows tribunal jurisdiction matter decisionthe tribunal jurisdiction matter concluding paragraphthe applicant sought satisfy criterion subclass 187 visa direct entry stream claim made respect visa stream requirement must met person seeking visa direct entry stream met decision review must affirmed decisionthe tribunal affirms decision grant applicant regional employer nomination permanent class rn visa mark bishopmember

Stirling Dist Env Assn Inc v Adelaide Hills Cncl No ERD-97-320 Judgment No OE467 [1998] SAERDC 467 (2 March 1998).txt

stirling dist env assn inc v adelaide hill cncl erd 97 320 judgment oe467 1998 saerdc 467 2 march 1998 last updated 15 june 1998courtenvironment resource development courtdecision honour judge trenordenhearing23 01 98 catchwordswhether public notification accordance law effect s38 6 development act 1993in limiting nature third party appeal standing appellant raise issue planning merit role court relevant authority failed comply law court discretion excuse failure s33environment resource development court act 1993 held public notification defective unjust inequitable exercise discretion excuse failure material considereddevelopment act 1993 planning act 1982 environment resource development court act 1993 referred harrison harrison v city adelaide development committee12 sasr 593 district council willunga v rich 1987 62 lgra 132 owen v state south australia 1996 sasc 5574 1996 66 sasr 251 briggs others v corporation city mount gambier michielan 1982 30 sasr 135 r v corporation city salisbury ex parte burn philp trustee co ltd 1986 42 sasr 556 south australian planning commission wylie v mcneil others 1985 42 sasr 524 r v south australian planning commission ex parte corporation city unley 1986 44 sasr 100 scurr others v brisbane city council another 1973 hca 39 1973 133 clr 242 wilson v city mitcham 1986 61 lgra 126 kammerman v south australian planning commission district council mount barker 1986 42 sasr 394 considered representationappellant stirling district environment association inc represented mr murrayrespondent adelaide hill council counsel mr k tredrea solicitor norman waterhouserespondent ilario cavallaro golden summit spring water counsel mr v condello solicitor condello coerd 97 320judgment oe4672 march 1998e r c 320 1997stirling district environment association inc v adelaide hill council ilario cavallaro golden summit spring waterthe court delivered following decision appellant incorporated association appealed decision adelaide hill council council made capacity relevant authority 1 october 1997 whereby granted provisional development plan consent subject twelve condition ilario cavallaro trading golden summit spring water application made 26 march 1997 proposed development lot 2 crescent drive norton summit subject application development respect consent sought identified replacement existing shed planning decision notification form appellant lodged representation relevant authority respect subject development decision relation preliminary question whether public notification proposed development subject application given council accordance thedevelopment act 1993and regulation made thereunder issue expressed ground appeal jurisdictional question addition standing appellant raise argue preliminary question raised issue council appellant representative mr murray objected argument heard stage objection made strongly pursued issue go competency appeal therefore jurisdiction appropriate argument heard determined outset proceeding every adjudicative body entitled determine whether jurisdiction hear matter sought argued harrison harrison v city adelaide development committee12 sasr 593 party heard issue standing appellanton issue appellant standing argue ground appeal subject preliminary issue submitted behalf council right appeal person made representation limited right pursuant tosubsection 38 6 c thedevelopment act relevant part c appeal decision category 3 development person entitled given notice decision subsection 12 must limited following decision relevant authority provisional development plan consent disputed subject application respect category 3 development appellant duly entitled make representation brought within category person made representation appellant entitled given notice council decision subject application pursuant tosubsection 38 12 person within category person entitled appeal court council decision respect application subsection 86 1 b development act however right appeal expressed subject limitation imposed bysection 38 relevant provision set earlier mr tredrea submitted right appeal given person made representation relevant authority thedevelopment act contrasted right appeal given person made representation relevant planning authority planning act 1982 repealed subsection 53 7 planning act person category aggrieved decision relevant planning authority respect application right appeal appeal body planning appeal tribunal subject payment fee equivalent ofsubsection 38 6 thedevelopment act purporting limit nature appeal mr tredrea submitted comparison unfettered right planning act right appeal person made representation thedevelopment actwas limited enable appellant raise ground appeal way preliminary issue issue whether relevant authority failed give public notification accordance law noted planning act provided scheme deal application planning authorisation thedevelopment actprovides scheme deal application development authorisation including provisional development plan consent building rule consent consent necessary mr tredrea argument cannot succeed ground appeal appellant argues effect decision relevant authority consent application public notification proposed development properly given giving notification category 3 development pre requisite decision relevant authority appeal decision relevant authority provisional development plan consent accordance withsubsection 38 6 appellant argument successful failure council comply statutory requirement council refused consent rejected application scurr others v brisbane city council another 1973 hca 39 1973 133 clr 242 would follow court would jurisdiction entertain appeal would role court respect decision council mr murray appellant submitted court power bysection 88of thedevelopment act make order nature seek relation consent court power reverse decision consent quash order notice authority issued relevant authority accepted supreme court planning appeal tribunal power set aside decision relevant planning authority proper case part power reverse decision subject appeal case could include one planning authority failed comply law tribunal declined exercise power excuse failure district council willunga v rich 1987 62 lgra 132at page 138 139 reason court enjoy power supreme court considered tribunal enjoyed time basis power reverse decision relevant authority addition power quash notice authority thus court able deal appeal question raised appeal decision relevant authority provisional development plan consent although decide question appears effect limitation contained insubsection 38 6 thedevelopment actdiscussed herein preclude person made representation respect application development authorisation category 3 development appealing decision relevant authority grant consent excepting provisional development plan consent together provisional development plan consent would constitute development authorisation pursuant provision act come conclusion find support interpretation second reading speech development bill set hansard house assembly debate 10 march 1993 page 2433 2443 accepted court may permitted regard hansard second reading speech ascertain purpose parliament sought achieve amending substituted legislation owen v state south australia 1996 sasc 5574 1996 66 sasr 251 second reading speech minister housing urban development local government relation asserted purpose clause 38 bill described setting role third party relation development control decision restrict role third party assessment relation development plan technical construction requirement relating building subdivision public notificationit accepted past mandatory planning authority give notice accordance relevant legislation briggs others v corporation city mount gambier michielan 1982 30 sasr 135 r v corporation city salisbury ex parte burn philp trustee co ltd 1986 42 sasr 556 south australian planning commission wylie v mcneil others 1985 42 sasr 524and r v south australian planning commission ex parte corporation city unley 1986 44 sasr 100 provision requiring planning authority give public notification cannot construed mandatory merely directory planning authority event required substantially comply provision scurr page 255 266 cited wylie v mcneil 530 533 wilson v city mitcham 1986 61 lgra 126 whether notice comply question fact degree wylie v mcneil wilson section 38of thedevelopment actaddresses public notification subsection 5 provides follows 5 person applies development assessment category 3 development notice application must given accordance regulation person referred subsection 4 b owner occupier land according determination relevant authority would directly affected significant degree development proceed c public generally part 6of thedevelopment regulation 1993deals public notice consultation regulation 33provides follows 33 1 notice required section 38 4 5 act must describe nature proposed development b identify land development proposed c applicable state proposed development non complying development relevant development plan indicate relevant application may inspected time relevant representation may lodged 2 notice section 38 5 c act may given publishing copy notice newspaper circulating generally throughout area state relevant land situated least one occasion development application form described existing use cherry orchard spring water extraction processing distribution described proposed development replacement existing 32m2 shed new shed 64m2 notice prepared behalf council dated 9 april 1997 forwarded adjoining owner published courier identified applicant applicant address address subject land also identified section number certificate title reference zoning nature development described replacement 32 m2shed new shed 64 m2 new shed used conjunction existing cherry orchard land extraction processing distribution mineral water notice contained invitation examine application office council normal business hour invited person body affected make representation writing disputed extraction processing distribution mineral water carried subject land prior subject development application without development authorisation council staff treated application consent development including new use land purpose mineral water extraction processing distribution activity addition construction building used partly purpose mineral water processing business clear report mr r graf mrapi senior planner employed council dated 22 may 1997 supported comment m georgina house mrapi senior planner rust ppk pty ltd provided comment council request letter dated 8 may 1997 view planner proposed use land mineral water extraction business constituted light industry use therefore non complying kind development land located within mount lofty range primary production area applicant mr alexander rix planning consultant collier jardine planning consultant stated response representation dated 13 may 1997 applicant happy current proposed use considered approval council despite small scale nature operation past representation asserted current mineral water extraction process use previously approved council development application council supported statement effect prepared mr alexander rix dated march 1997 statement effect lodged basis application kind development non complying regulation 17 element development non complying mineral water extraction business basis constitutes light industry curiously statement effect heading nature proposed development directly address establishment new use land namely mineral water extraction business page 2 describes proposed development replacement existing shed proposed shed used purpose existing shed small scale processing bottling mineral water storage container b storage equipment fruit cherry orchard cover land heading degree compliance statement effect provides page 8 proposed shed represents extension mineral water extraction bottling distribution process accurately fall within definition light industry light industry use permitted council consent rural norton summit zone proposed use fall within exemption non complying development listed mount lofty range primary production area agreed land located within rural norton summit zone well within mount lofty range primary production area reading statement effect suggests application shed replacing smaller shed extension existing use namely mineral water extraction business thus although clear either perusal development application form statement effect application consent develop new use land namely mineral water extraction processing distribution replacement existing shed used mineral water extraction business existing cherry orchard use land council staff treated application development nature public notification notice make clear nature development included erection new shed use land mineral water extraction addition existing use regulation 33 requires notice describe nature proposed development question sufficiency notice required describe nature proposed development considered briggs page 143 potential objector must able learn notice essential character subject proposal feature give character notice frustrate legislature city unley page 112 frustrate defeat purpose regulation interest potential objector wylie v mcneil 535 view plain reading notice pas test however end matter notice referred reader application document council office thus interested person rely solely upon notice directed application amplify notice wylie v mcneil course assistance potentially interested person directed application interest drawn notice inquire inadequate description proposed development set notice view notice properly describe nature development therefore appropriate expect potentially interested person look application correct description nature development event interested person would greatly assisted application document fact proposed change use subject land absent development application form immediately obvious statement effect notice defective failed comply statutory requirement adequately describe nature proposed development discretion excuse failure councilthe question whether defect invalidates council decision grant provisional development plan consent applicant cavallaro mr tredrea council submitted even notice defective failure comply act regulation cured court exercising power set insection 33of theenvironment resource development court act 1993 relevant provision ofsection 33are follows 33 1 proceeding court act appeal supreme court decision order court act appears relevant court failure comply requirement act law affect matter application appeal relates b would unjust inequitable exercise power conferred subsection relevant court may excuse failure ordering subject condition may stipulated relevant court requirement dispensed necessary extent almost identical provision gave planning appeal tribunal power excuse failure comply requirement law pursuant section 35 planning act 1982 amended planning act amendment 2 1985 71 1985 city unley supreme court per jacob j said page 105 see reason section given wide ample benevolent construction according tenor designed intended inter alia dispense strict literal compliance procedural requirement act regulation would unjust inequitable order promote resolution planning issue ultimate aim purpose legislation even requirement council failed comply mandatory requirement failure may excused pursuant kind provision proper case rich page 139 proper case one would unjust inequitable excuse failure person seeking exercise power carry burden persuasion proper case term statutory criterion exercise power kammerman v south australian planning commission district council mount barker 1986 42 sasr 394at page 405 regard mr tredrea submitted term section 33 required look whether would unjust inequitable relation party proceeding addition made following point council matter fact treat application application among thing change use land representation made council respect development application included representation concerning proposed change use land representors invited attend council meeting 20 may 1997 appellant made submission upon proposed change use heard council meeting therefore cannot said suffered prejudice planning merit application court virtue subject appeal document show four representation made council respect subject application representation referred existing mineral water extraction business mr murray appellant urged court consider public interest nature legislation urged given intent legislature public notified true nature proposed development court must consider whether would unjust inequitable public interest excuse failure council comply law subsection 33 1 cannot limited mr tredrea submits court discretion fall exercised basis whether party proceeding suffered prejudice prejudiced power exercised proceeding court appeal court supreme court word would unjust inequitable qualified reference party court particular proceeding sought power exercised object thedevelopment actis set insection 3thereof provides 3 object act provide proper orderly efficient planning development state purpose establish objective principle planning development e provide appropriate public participation planning process assessment development proposal requirement respect content public notice act regulation expressed mandatory term even mandatory substantial compliance legislation word olsson j city unley page 112 relevant thedevelopment actas planning act apposite giving notice key feature legislative scheme failure comply necessarily gravely affect right person legitimate interest fact failure comply necessarily frustrated legislature important respect planning consent cannot allowed stand given importance public notification structure system development control essential element public participation assessment development proposal particularly category 3 development would either unjust inequitable public interest failure council excused matter council decision stand come conclusion notwithstanding four representation made respect subject application one person made representation exercised right appeal court decline exercise discretion excuse failure council comply public notification provision thedevelopment actand regulation make order reversing decision council effectively setting aside proper decision quashing planning decision notification circumstance court jurisdiction entertain appeal decision appeal could properly instituted appeal dismissed

In the termination of the Queensland Public Sector Certified Agreement (No. 10) 2019 [2023] QIRC 144 (26 May 2023).txt

termination queensland public sector certified agreement 10 2019 2023 qirc 144 26 may 2023 termination queensland public sector certified agreement 10 2019 2023 qirc 144 26 may 2023 last updated 2 june 2023queensland industrial relation commissioncitation termination queensland public health sector certified agreement 10 2019 2023 qirc 144parties state queensland queensland health andoffice health ombudsmanandhealth wellbeing queenslandandqueensland mental health commissionandqueensland nurse midwife union employeesandthe association professional engineer scientist manager australia queensland branch union employeesandthe australian worker union employee queenslandandtogether queensland industrial union employeesandtransport worker union australia union employee queensland branch andunited worker union industrial union employee queenslandcase cb 2023 40proceeding termination agreementdelivered 26 may 2023hearing date 26 may 2023member dwyer icheard brisbaneorder thequeensland public health sector certified agreement 10 2019is terminated catchword industrial law collective bargaining application termination agreement nominal expiry date requirement termination agreement terminatedlegislation industrial relation act2016

Kador & Ultramod [2009] FamCA 712 (27 July 2009).txt

kador ultramod 2009 famca 712 27 july 2009 last updated 12 august 2009family court australiakador ultramod 2009 famca 712family law consent order final 79 order 79 2 equitablefamily law act 1975 cth applicant m kadorrespondent mr ultramodfile number mlc11004of2007date delivered 27 july 2009place delivered melbourneplace heard melbournejudgment young jhearing date 27 july 2009representationcounsel applicant mr salamancasolicitor applicant kennedy wisewouldscounsel respondent mr dicksonsolicitor respondent kenna teasdaleordersit ordered consent husband pay wife sum 772 325 payment follows sum 12 381 first instalment forthwith upon making order first date balance 759 944 second instalment 31 august 2009 earlier agreement settlement date paragraph 1 order dated 24 october 2007 interim order discharged save arrears effect settlement date subject compliance husband paragraph 1 b hereof paragraph 2 interim order discharged effect settlement date subject compliance wife paragraph 3 b c 7 b hereof contemporaneously compliance husband obligation pursuant paragraph 1 b wife shall transfer husband expense husband right title interest property known situate e state victoria whole land contained within certificate title volume folio e property free encumbrance save except commonwealth bank australia home loan home loan secured registered mortgage e mortgage tender husband release personal guarantee granted husband behalf pty ltd acn family trust pty ltd trustee investment pty ltd acn wife save except personal guarantee granted husband respect home loan cba bbl loan wife act thing sign necessary document cause husband released said guarantee deliver vacant possession e property husband key remote control security code relating e property contemporaneously compliance wife obligation pursuant paragraph 3 b c husband expense cause discharged e mortgage husband expense wife transfer wife shareholding investment pty ltd assign transfer wife interest entitlement family trust trust including entitlement standing credit account trust renounce resign relinquish right title interest position office power prospective power including power appointment power joint appointment exercisable respect trust otherwise relinquish claim interest entitlement may respect trust pty ltd investment pty ltd entity cease signatory cba account name pty ltd transfer wife right title interest subaru motor vehicle registration number possession wife husband make available collection wife refrigerator possession husband entitled possession furniture chattel listed schedule hereto wife shall remove e property time wife delivers vacant possession e property pursuant paragraph 3 c vacation date wife shall pay fall due rate tax charge insurance outgoings including utility respect e property pro rata apportionment expense party vacation date upon receipt relevant assessment invoice account maintain e property reasonable state repair pending wife compliance obligation pursuant paragraph 3 b c wife servant agent capacity director pty ltd investment pty ltd hereby restrained divesting office shareholding control pty ltd atf family trust investment pty ltd divesting reducing value shareholding pty ltd investment pty ltd including limited following varying modifying changing amending power duty resigning office held selling transferring alienating encumbering share issuing permitting issued additional share appointing director office holder selling assigning encumbering otherwise dealing asset investment pty ltd family trust provided always wife may place real property known situate p victoria whole land contained within certificate title volume folio p property market sale upon condition proceeds sale held trust cba bank account pending full discharge wife obligation paragraph 3 b c directing causing direction rental income p property paid person save australian taxation office respect outstanding pty ltd tax payment payment tax accordance australian taxation office instalment arrangement dated 6thof june 2009 investment pty ltd bank account existing cba pty ltd bank account subject interim order selling assigning encumbering otherwise dealing e property husband hereby restrained distributing causing entity direction distribute income family trust respect financial year commencing 1 july 2009 subsequent financial year thereafter subject clause 9a wife pay cause paid indemnify keep indemnified save harmless husband respect claim action suit demand made husband person entity including limited entity listed iii australian taxation office creditor entity listed iii arising respect including husband use interest transaction relationship pty ltd family trust investment pty ltd except provided paragraph 14 p property except provided paragraph 15 e property referable period date compliance wife obligation pursuant paragraph 3 b c cba home loan resulting wife non compliance paragraph 2 interim order paragraph 7 b hereof cba bbl loan motor vehicle registration debt personally guaranteed husband respect entity property loan listed paragraph 9 ii iii iv v vi vii hereof amount owed husband claimed husband entity paragraph 9 ii iii hereof action proceeding cost claim demand respect thereof save otherwise provided unpaid direct indirect taxation including gst cgt assessed hereinafter assessed assessed name husband relation income salary wage payment fringe benefit taxation transfer benefit gain including capital gain derived otherwise deemed derived entity property paragraph 9 ii iii iv hereof transfer assignment rollover interest entity property paragraph 9 ii iii iv hereof amount owed husband claimed husband entity paragraph 9 ii iii hereof inclusive fine penalty interest cost claim demand proceeding respect thereof cost duty tax monies direct indirect taxation including gst cgt payable assessed hereinafter assessed assessed name husband relation income benefit payment gain including capital gain either derived pursuant operation enforcement order orotherwise deemed derived pursuant operation enforcement order orarising relation transfer assignment resignation waiver forbearance transaction agreement entered undertaken effected pursuant operation enforcement ordersinclusive fine penalty interest cost claim demand proceeding respect thereof rate tax charge insurance outgoings including utility respect e property date transfer e property husband 9athat indemnity pursuant clause 9 shall extend income tax penalty interest assessed assessed charged husband resulting solely action husband agent directly indirectly cause distribution income made behalf husband trust 2008 2009 financial year subsequently determined valid provided exclusion clause 9a shall apply pty ltd trust investment pty ltd taken continue take prudent necessary action within power required attempt substantiate verify distribution income trust validly made received husband pay cause paid indemnify keep indemnified save harmless wife respect claim action suit demand made wife respect e property referable period date compliance wife obligation pursuant paragraph 3 b c hereof family trust respect income tax assessed payable arising directly distribution husband family trust respect financial year commencing 1 july 2009 subsequent financial year party responsible payment shall mutually indemnify 50 claim action suit demand made husband wife jointly severally husband parent mr ultramod snr mr ultramod snr respect monies advanced loaned gifted husband wife jointly severally marriage wife instruct accountant investment pty ltd consult husband husband nominated accountant preparation 2009 income taxation return investment pty ltd provide husband husband nominated accountant copy 2009 draft income taxation return 2009 income tax estimate investment pty ltd 30 day prior lodgement said income tax return investment pty ltd husband acknowledge receipt within 7 day thereafter provide husband copy 2009 tax payment record investment pty ltd within 7 day receipt pay australian taxation office quarterly instalment pty ltd investment pty ltd fall due including forthcoming payment approximately 5 625 relating investment pty ltd sum paid account referred paragraph 7 b hereofthat party liberty apply 7 day notice respect dispute concerning preparation lodgement 2009 income tax return investment pty ltd provided wife complied obligation pursuant paragraph 12 b c applicable determination made court pursuant paragraph 13 husband pay cause paid australian taxation office later due date payment 50 income tax payable name investment pty ltd financial year ending 30 june 2009 event sale p property prior 31 december 2010 wife shall advise husband occurrence sale event sale proceeds subject capital gain tax name pty ltd beneficiary family trust including limited wife wife provide husband unqualified opinion qualified practising accountant addressed husband setting calculation capital gain tax payable upon sale p property confirming amount actual capital gain tax payable anticipated date capital gain tax payable opinion provided le 30 day prior said anticipated payment date husband pay cause paid australian taxation office later theanticipated date capital gain tax due set accountant opinion provided husband pursuant paragraph 15 48 500 50 capital gain tax payable whichever lesser taxation refund paid payable pty ltd atf family trust beneficiary trust income distributed financial year ending 30 june 2008 2009 including limited investment pty ltd divided equally husband wife wife shall act thing sign necessary document cause one half refund paid husband within seven 7 day receipt 16a event assessment taxation name husband arising distribution made behalf husband family trust financial year ending 30thjune 2008 30thjune 2009 wife shall pay cause paid husband consequential taxation refund interest payable family trust pty ltd investment pty ltd referable financial year ending 30thjune 2008 30thjune 2009 within 7 day receipt upon default husband payment first instalment first date interest shall payable upon much first instalment outstanding penalty rate interest prescribed family law rule first date date wife receives payment first instalment second instalment settlement date interest shall payable upon much second instalment outstanding penalty rate interest prescribed family law rule second date date wife receives payment second instalment upon default wife obligation pursuant paragraph 3 3 b 3 c excess 30 day default omission husband wife personally capacity director pty ltd act thing sign necessary document cause sold p property sale price agreed party failing agreement price nominated mr valuer property consultant shall instructed within 7 day party failing reach agreement sale price upon sale proceeds sale shall distributed following manner priority payment agent commission auction expense valuation fee legal cost sale payment apportionable outgoings payment sum required discharge cba mortgage registered encumbering p property payment sum required discharge cba business loan bbl loan payment monies required procure release husband personal guarantee pursuant paragraph 3 b payment outstanding obligation wife pursuant paragraph 6 payment balance proceeds wife may direct upon default husband excess thirty 30 day obligation pay first instalment wife first date pay second instalment wife second date default omission wife wife shall act thing sign necessary document cause sold e property price agreed party failing agreement price nominated mr valuer property consultant shall instructed within 7 day party failing reach agreement sale price upon sale proceeds sale shall distributed following manner priority payment agent commission auction expense valuation fee legal cost sale payment apportionable outgoings payment monies required discharge cba registered mortgage including cba loan applicable payment much first instalment outstanding together interest thereon wife payment much second instalment outstanding together applicable interest thereon wife payment balance proceeds husband liberty reserved party upon 7 day notice apply respect manner term condition sale pursuant paragraph 18 19 wife otherwise retain absolutely exclusion husband following fund standing credit bank account sole name wife superannuation entitlement furniture chattel situate e property except listed schedule wife shall cause removed real property settlement date entity asset entity subaru motor vehicle husband otherwise retain absolutely exclusion wife following e property partnership entitlement partnership business volvo motor vehicle registered sole name superannuation entitlement furniture chattel presently possession furniture chattel listed schedule fund deposited bank account sole name wife hold interest e property pty ltd atf family trust upon trust pursuant order party act thing sign necessary document give validity operation order party fail refuse sign document necessary give effect order registrar deputy registrar family court australia melbourne hereby appointed pursuant tosection 106aof thefamily law act 1975to sign document behalf name defaulting party order shall binding upon heir executor administrator assigns party respectively unless otherwise specified order save purpose enforcing monies due subsequent order party solely entitled exclusion real personal property including choses action registered name possession control party party legally beneficially entitled date order monies standing credit party joint bank account shall paid wife party shall cause account closed forthwith wife retain superannuation benefit belonging earned wife including wife entitlement amp customsuper husband retain superannuation benefit belonging earned husband including husband entitlement tower master fund vic super policy life insurance assurance remain sole property owner named thereon party solely liable indemnify liability encumbering item property party entitled pursuant order upon husband compliance full obligation pursuant provision child support agreement party dated 24 october 2007 interim child support agreement inclusive arrears wife immediately act thing sign necessary document direct request child support agency cease collect payment pursuant interim child support agreement hereby restrained directing requesting child support agency collect payment pursuant interim child support agreement pay indemnify keep indemnified save harmless husband respect claim action suit demand made child support agency husband result wife failure comply paragraph 28 b hereof application wife final order filed 3rd day october 2007 wife amended application final order filed 19th november 2008 husband response final order filed 18th day october 2007 husband amended response filed 28th day november 2008 otherwise dismissed document produced upon subpoena court shall forthwith returned subpoena clerk melbourne registry family court person organization providing court note pursuant tosection 81of thefamily law actthe party intend order shall far practicable finally determine financial relationship avoid proceeding b party day entered binding financial agreement respect spousal maintenance binding child support agreement respect child support c party intend interim order made honourable justice dessau 24 october 2007 remain effect pending implementation paragraph 1 4 inclusive paragraph 7 order notedthat publication judgment pseudonymkador ultramodis approved pursuant tos 121 9 g thefamily law act 1975 cth family court australia melbournefile number mlc 11004 2007ms kadorapplicantandmr ultramodrespondentreasons judgmentin matter kador ultramod minute consent order final property financial basis experienced counsel appear party solicitor experienced well known court final level knowledge client professional working well established respected business within melbourne order outlined provide equal division property asset party effectively balance husband extended financial contribution family superior income earns likely continue earn contrasted wife modest employment slightly greater responsibility child spend time party eight night four night basis fortnight background knowledge matter read file week ago assigned list thought might commencing today accurate assessment case became apparent going reach matter endeavour find judge hear matter possible listed defended list today basis would reached would afford counsel solicitor opportunity discus resolve issue good news party court matter settlement concluded minute order one exception deletion contingency providing joint tenancy arrangement real personal property party deleted make order notwithstanding concern necessity provide order paragraph 24 25 26 hereof specific request counsel solicitor party still understanding real need therefore 81 notation finality accompanying order note separately binding financial agreement provided leave party execute obtain schedule personal chattel annexed party understand document responsibility conclude undersection 79 2 thefamily law act 1975that order equitable relying predominantly upon consent time taken negotiate order informed position party indicate therefore make order consent matter removed list certify preceding paragraph area true copy reason judgment hereinof honourable justice young associate

R v Horsey [1999] VSC 224 (7 May 1999).txt

r v horsey 1999 vsc 224 7 may 1999 last updated 25 june 1999supreme court victoriacriminal jurisdictiondo send reportingnot restrictedno 1560 98rvmichael jason horsey judge eames jwhere held melbournedates hearing 14 16 19 23 26 28 april 1999date sentence7 may 1999media neutral citation 1999 vsc 224 crime manslaughter sentence appearance counselsolicitorsfor crownmr r elstonsolicitor dppfor defencemr wraithvictoria legal aidmr justice eames7 may 1999sentencemichael jason horseyhis honour michael jason horsey convicted jury manslaughter dylen andrew kevin jones two year old child born 31 july 1995 beaten death 15 december 1997 task pas sentence upon crime period approximately six month prior dylen death living de facto relationship mother wendy joy butler together elder son benjamin three year age time death dylen satisfied even commenced de facto relationship wendy butler already disliked dylen satisfied told three people various time month prior dylen death hated child antipathy arising part hatred dylen father believed stolen property time twelve month prior dylen death boarder dylen parent factor primary reason dislike dylen often unhappy child grizzled lot dylen mother took view commenced de facto relationship accept fact become part family two small child unfortunate history dylen life demonstrates mother also found child behaviour stressful time dylen undoubtedly difficult child many way development slow early 1996 brother come attention department human service child risk whilst care mother natural father thus time well involvement relationship m butler department officer concerned well dylen brother benjamin dylen first notified department 14 may 1996 report concerning safety exposure domestic violence physical abuse problem parenting skill thereafter department going involvement right day dylen death dylen mother natural father separated july 1996 department decided leave child mother maintain regular visit regular case meeting december 1996 case plan meeting held resolved child protection staff would continue supervise family day care worker broadmeadow family service would also become involved april 1997 protection application made respect child child removed mother 1 may 1997 hearing child court department requested child remain away home court ordered returned granted supervision order 12 month respect child thereafter department regular contact family attending home week fortnight many occasion mother sought granted respite care found difficult cope child 22 year old time dylen death june july 1997 commenced de facto relationship dylen mother thereafter lived home view street glenroy september 1997 breach protection order child placed new order supervision time time officer department concerned whether mark injury dylen brother result unlawful force suspected mother author suspect injury particular injury observed 10 october 1997 however led child ordered removed home placed foster care crown alleged author injury need examine matter detail history relationship dylen one repeated violence towards dylen mother said never seen inappropriately discipline child said admitted used unlawful violence dylen two occasion prior day death mother told jury november 1997 admitted 7 october 1997 slapped dylen face causing bruising side face swelling ear injury observed 10 october 1997 paediatrician dr dakin panch dr dakin also observed bruise back dylen shape adult hand injury investigated police officer community policing squad decided insufficient evidence issue proceeding either mother fact mother told time thatshehad caused injury back said accident head face injury mother denied police knowing injury caused innocent explanation face injury could excluded time committal proceeding june 1998 however mother said first time hadnotstruck child back 10 october 1997 done caused injury although disputed oath used unlawful force either occasion satisfied beyond reasonable doubt slap child 7 october causing face head injury time satisfied author injury back may indeed evidence jury admitted struck child backside relevant time described improbably light tap said administering light tap mother already smacked dylen presence caused cry allegation caused handprint child back proved requisite degree take account sentencing attendance hospital 10 october 1997 dylen brother dirty unkempt dr dakin observed dylen unruly mistrusting lacked normal social skill two year old offered rapport trust doctor observation dr dakin led believe child risk reported observation relevant officer department 10 october 1997 david clements glenroy department human service also telephoned community policing squad notified case possible physical abuse caused department issue breach order respect supervision order meant child taken care brought matter back court court ordered child placed foster care remained two month 9 december 1997 six day dylen die dylen benjamin returned home hearing child court know precise circumstance order made earlier pre trial conference mother sought return department opposed option seems likely department mother agreed term condition child could returned 2 december 1997 document known family contract jointly signed department mother also representative family first program document acknowledged department area concern well child obligation care giver fact could physically discipline child far aware child court called upon adjudicate upon contested hearing endorsed term condition agreed child could returned function sentencing explore broader issue might later relevant coronial inquiry whilst benefit hindsight wrong decision may well made various time dylen life need identified understood appropriate believe observe read heard case member medical profession community policing squad officer department staff various welfare organisation officer staff court role dylen supervision scrupulous integrity dedication people charged supervision well dylen required greater lesser extent make difficult decision incomplete information matter worthy examination appropriate authority department officer worked intensively family period whilst child foster care also involvement family centre reconnections programme dylen placed foster care mr mcswain woman ten year dedicated experience together husband role foster parent mr mcswain child placed 29 october 1997 said dylen presented child verbal skill could communicate extremely fearful time dylen learned respond word read book said based 10 year experience foster parent dylen showed sign neglected child severe case neglect seen child age mr mcswain said came dylen apparently learned smile received victim impact statement dylen grandmother aunt suggest occasion happy company mother others perhaps short sad life dylen rarely reason smile notwithstanding doubt genuine love mother best effort cope parenting demand pressure life child placed foster care child protection worker considerable contact mother also part process earlier noted required sign contract acknowledged child subject physical disciplining mother acknowledged evidence made clear dangerous physically discipline child age one occasion time foster care suspected dylen struck someone access visit medical practitioner unable conclude minor injury observed result assault event alleged crown occasion approximately two month foster care observation made might suggested assault occurred department officer impressed period foster care appeared calm capable child whereas mother easily stressed believed played positive parenting role provided support mother doubt notwithstanding dislike dylen offer support mother character evidence given behalf suggests past calm capable person caring child proud assumed role parent two child furthermore deeply regretted father deserted family believe important child receive considered proper parental support wish however came immaturity anger control problem imbedded personality lose sight fact 21 year age time dylen death 25 november 1997 mr clements spoke told wanted play role father figure child would attend parenting class mother due attend class queen elizabeth centre date told mr clements anger felt towards dylen father way treated dylen mother child nothing said time caused mr clements believe violent person accept sincere statement wished attend parenting class play role bringing child indeed would attended class fact first due commence january 1998 15 december 1997 morning dylen death mr clements officer attended house discussion mother told episode previous week become angry child benjamin wanted smack benjamin misbehaving said realised appropriate told mr clements knew discipline child physically said past received counselling anger stopped expense clear course referring probably reference counselling session received school assaulted another student whether financial constraint led cessation counselling know mother gave evidence previously learned involved episode school episode violence towards sibling early age acknowledged behalf morning dylen death told mr clements feel anger significant problem said felt future becoming would seek counselling mr clements asked got angry said dylen father way dylen father treated boy mother said learned handle anger going walk remove situation sit tree backyard felt becoming angry calm way mr clements made assessment time cause concern said tragically wrong sign reasonably led believe time terrible event might occur within matter hour approximately 7 30 pm 15 december 1997 dylen mother left house attend shopping leaving alone mind two child willingly minded child many occasion past placed dylen bed allowed elder child remain watching television dylen grizzling cry plainly want go bed cry increasingly annoyed told police sometime placed bedroom closed door made sound consistent repeatedly kicking door wall room satisfied became angry entered bedroom whilst rage finding dylen lying floor picked placed face across left arm struck firmly bottom kept cry struck approximately three heavy blow back head open hand placed back bed covered doona leaving room dylen continued cry told police later interview snapped rather leave room returned bed struck back head approximately six time firmly open hand left bedroom shutting door behind returned loungeroom child benjamin continued watch television whilst described evidence trying cool evidence said turned mind question whether used much force dylen whether might injured jury verdict mean satisfied beyond reasonable doubt struck dylen either intention causing really serious injury knew really serious injury would probably result understand verdict mean jury satisfied struck dylen time blind rage turn mind appalling dangerousness notwithstanding fact account struck many severe blow returned lounge room occurred blow might injured return bedroom check progress entered bedroom 15 minute later purpose placing benjamin bed time observed dylen showing sign severely injured much endeavoured deliver cpr took bedroom main bedroom telephoned triple 0 sought advice operator step taken revive dylen first found dylen slight heartbeat within short time ambulance officer paramedic attended scene found dead give honest account person seeking revive dylen happened cause unconsciousness although satisfied misleading account person fact reduce chance dylen surviving know concerned protecting interest providing reliable information may vital shortly arrival paramedic ambulance officer dylen mother returned home understandably hysterical saw dylen condition direct cause dylen death brain suffered trauma became swollen extent cause cease breathing dr matthew lynch pathologist gave evidence case indicated dylen suffered trauma head included three discrete distinct bruise head consistent mild severe force applied dr lynch said observation made consistent blow three view injury consistent account police striking dylen approximately 10 blow open hand back head cradled arm struck dylen angry wanted teach lesson wanted teach grizzle dylen small child weighing 11 kilogram death grotesque cruelty small child beaten death adult carer response child pitiful cry unfortunately uncommon event knew dylen death shaking assaulting small child could cause death important consideration general deterrence must acknowledged sentencing offence court must sentencing repeat warning made many time child dy circumstance severe penalty expected however factor militate favour sentence 21 year age time offence offered plead guilty manslaughter 17 september 1998 fact must treat indicating measure remorse would initially considered clear indication remorse case impressed evidence m margaret dahl uniting church minister prison chaplin port phillip prison despite fact held position year accept justified opinion formed remorse told although private withdrawn person number conversation left doubt fact depth genuine remorse death dylen prior conviction matter particular importance recognise anger problem enrolled participate prison course deal called character evidence person known since young attested positive aspect character indeed giving illustration caring compassionate conduct part mother identified absence father life matter caused anger young age attended school completion year 11 obtained computer qualification relatively uneventful youth however accept dislocated family upbringing bearing present situation received victim impact statement rebecca jones cheryl jones eloquently attest suffering sense loss death dylen regard view expressed report proceeding announce sentence want deal application made crown unders 464zfof thecrimes act 1958 section fact convicted offence known forensic sample offence manslaughter entitles make order directing undergo forensic procedure taking intimate body sample body considering application regard fact prior conviction reasonable basis believing involvement past criminal activity might exposed virtue sample taken given admitted anger problem could however discount possibility take step control anger might later involved criminal activity sample might contribute exposure opposed request crown sample whilst consider order made routinely consider circumstance order might appropriately made reason specified therefore make order provide intimate body sample namely blood sample required pursuant order obliged point notwithstanding fact oppose making order member police force may use reasonable force enable procedure conducted michael jason horsey sentence court imprisoned seven year order eligible parole expiration five year declare custody including today total 508 day pre sentence detention entered record court time served part sentence

Axedale Holdings Pty Ltd t_a Shaws Cartage re Transport Workers Union Shaws Cartage Contractors Enterprise Agreement 2011 [2011] FWAA 7331 (26 October 2011).txt

axedale holding pty ltd shaw cartage transport worker union shaw cartage contractor enterprise agreement 2011 2011 fwaa 7331 26 october 2011 fair work australiadecisionfair work act 2009s 185 application approval single enterprise agreementaxedale holding pty ltd shaw cartage ag2011 12551 transport worker union shaw cartage contractor enterprise agreement 2011road transport industrysenior deputy president harrisonsydney 26 october 2011application approval transport worker union shaw cartage contractor enterprise agreement 2011 1 application made approval enterprise agreement known thetransport worker union shaw cartage contractor enterprise agreement 2011 agreement application made pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 satisfied requirement ofss186 187and188as relevant application approval met undertaking concerning clause 6 11 20 provided employer taken term agreement copy undertaking attached annexure 3 transport worker union australia bargaining representative agreement given notice unders 183of act want agreement cover required bys 201 2 note agreement cover organisation 4 agreement approved accordance withs 54 1 operate 2 november 2011 nominal expiry date agreement 1 july 2013 senior deputy presidentannexure aprinted authority commonwealth government printer price code ae889069 pr516068

Brooklyn Village Estate [2009] QBCCMCmr 175 (5 May 2009).txt

brooklyn village estate 2009 qbccmcmr 175 5 may 2009 last updated 3 june 2009reference 0391 2009order adjudicatormade part 9 chapter 6body corporate community management act 1997number scheme 31184name scheme brooklyn village estateaddress scheme brooklyn village peninsula highway mt carbine qld 4870take notice pursuant application made abovementioned act byscott mahaffey owner lot 22 co owner lot 23 behalf body corporatei hereby orderthat 1 scott mahaffey 12 brady close brinsmead queensland appointed administrator call hold chair annual general meeting meeting brooklyn village estatewithin three 3 month date order purpose consideration motion included agenda meeting 2 administrator shall hold appointment period beginning date order close meeting ordered orderthat within seven 7 day date order administrator must give copy order person whose name appears roll owner lot scheme lot owner orderthat 1 purpose calling holding chairing meeting administrator shall power chairperson secretary treasurer body corporate committee exception following power delegate power another person orto incur expenditure apart necessary calling holding meeting except regard expense must necessarily met capable authorised incurred committee legislation 2 administrator must give least fourteen 14 day written notice inviting owner submit motion inclusion agenda meeting 3 meeting shall otherwise called held annual general meeting accordance act particularlysections 70and76of standard module provision relating meeting chapter 4 standard module 4 administrator must give notice meeting owner earlier twenty one 21 day date order furtherorder meeting shall deemed first annual general meeting scheme statement adjudicator reason decision ref 0391 2009 brooklyn village estate ct 31184background brooklyn village estate subdivision 25 lot common property building format plan regulation module applying scheme body corporate community management standard module regulation 1997 standard module applicant body corporate seeking order scott mahaffey authorised convene annual general meeting agm held 23 may 2009 applicant body corporate state body corporate contracted archer body corporate management manage affair due change management firm failure hold annual general meeting receive true figure body corporate scott mahaffey requested help private party sort issue within body corporate part process agm held body corporate able move forward signature owner representing half lot owner consenting application provided jurisdictionsection 276 1 act provides adjudicator may make order equitable circumstance including declaratory order resolve dispute context community title scheme claimed anticipated contravention act community management statement b exercise right power performance duty act community management statement c claimed anticipated contractual matter engagement person body corporate manager service contractor community title scheme ii authorisation person letting agent community title scheme order may require person act prohibit person acting way stated order section 276 2 adjudicator order may contain ancillary consequential provision adjudicator considers necessary appropriate section 284 1 specifically adjudicator may order body corporate call general meeting member deal stated business change date annual general meeting see schedule 5 adjudicator order alternatively adjudicator may order appointment administrator authorise administrator perform obligation body corporate committee member committee act community management statement administrator power given administrator order order appointing administrator may order adjudicator make application section 276 4 adjudicator order may contain ancillary consequential provision adjudicator considers necessary appropriate section 284 1 standard module provides agm first agm must called held within 3 month end scheme financial year general meeting whichincludes agm may called person authorised required call general meeting order adjudicator acting dispute resolution provision agenda first agm must include item set section 77 3 standard module subsequent agm agenda must include item set section 76 standard module determinationhaving regard point time propose make following order 1 scott mahaffey 12 brady close brinsmead queensland appointed administrator call hold chair annual general meeting meeting brooklyn village estatewithin three 3 month date order purpose consideration motion included agenda meeting administrator shall hold appointment period beginning date order close meeting ordered 2 within seven 7 day date order administrator must give copy order person whose name appears roll owner lot scheme lot owner 3 purpose calling holding chairing meeting administrator shall power chairperson secretary treasurer body corporate committee exception following power delegate power another person orto incur expenditure apart necessary calling holding meeting except regard expense must necessarily met capable authorised incurred committee legislation 4 administrator must give least fourteen 14 day written notice inviting owner submit motion inclusion agenda meeting 5 meeting shall otherwise called held annual general meeting accordance act particularly section 70 76 standard module provision relating meeting chapter 4 standard module 6 administrator must give notice meeting owner earlier twenty one 21 day date order 7 meeting shall deemed first annual general meeting scheme note possible comply legislative process required meet timeframe requested order sought agm held 23 may 2009 view imperative proper legislative process followed establish body corporate proper legal footing even though mean agm cannot held 23 may 2009

Fraser Re [2010] QSC 208 (27 May 2010).txt

fraser 2010 qsc 208 27 may 2010 last updated 18 june 2010supreme court queenslandcitation fraser 2010 qsc 208parties matter huan donald john fraser deceasedandin matter application stuart donald john fraser gina margaret murphy personal representative huan donald john fraser deceasedfile 4691 2010division trial divisionproceeding applicationoriginating court supreme courtdelivered 27 may 2010delivered brisbanehearing date 27 may 2010 reason delivered ex tempore judge ann lyon jorder court pronounces force validity last huan donald john fraser deceased late unit 113 501 admiralty two queen street brisbane state queensland dated 22 july 2008 copy exhibit sf1 affidavit stuart donald john fraser filed 7 may 2010 solemn form law probate dated 22 july 2008 solemn form granted deceased son daughter stuart donald john fraser gina margaret murphy named executor trustee clause 3 1 subject formal requirement probate registrar subject outstanding compliance requirement ucpr plaintiff deliver probate registrar original huan donald john fraser deceased dated 22 july 2008 applicant cost incidental application paid estate huan donald john fraser indemnity basis cost application today m poulsen paid estate indemnity basis part administration estate catchword succession will probate administration making revocation method revocation destruction mutilation striking portion general deceased crossed signature final page recent 2008 wrote word cancelled front son revoked previous will deceased indicated family member wished revert 2006 whether 2008 actually revoked whether 2006 valid counsel da skennar applicantsab fraser c poulsensolicitors mccarthy palethorpe blanch solicitor applicantsde groots will estate lawyer c poulsenann lyon j 1 application applicant seek order

Fawaz v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 317 (28 September 2022).txt

fawaz v commissioner police new south wale police force 2022 nswcatad 317 28 september 2022 last updated 28 september 2022civil administrative tribunalnew south walescase name fawaz v commissioner police new south wale police forcemedium neutral citation 2022 nswcatad 317hearing date 10 august 2022 12 september 2022date order 28 september 2022decision date 28 september 2022jurisdiction administrative equal opportunity divisionbefore emeritus prof g walker senior memberdecision 1 decision review affirmed 2 pursuant 64 1 c cat act publication confidential material confidential exhibit cr6 matter contained confidential material confidential exhibit cr 6 prohibited 3 pursuant 64 1 cat act disclosure confidential material confidential exhibit cr6 matter contained confidential material confidential exhibit cr6 restricted commissioner legal representative commissioner tribunal 4 pursuant s 64 1 b 64 1 c 64 1 cat act publication recording confidential hearing proceeding including confidential exhibit cr6 evidence given hearing prohibited content paragraph reason marked publication published released applicant catchword licensing firearm firearm prohibition order fitness public interest statutory interpretation presumption concerning common law right proportionality confidential evidence use made confidential evidence word phrase fit public interest legislation cited administrative decision review act 1997 nsw civil administrative tribunal act 2013 nsw firearm act 1996 nsw case cited barrow v commissioner police new south wale police service 6 september 2004 unreported briginshaw v briginshaw 1938 60 clr 316 bronze wing international pty ltd v safework new south wale 2017 nswca 42 coco v r 1994 hca 15 1994 179 clr 427 crowley v murphy 1981 fca 31 1981 52 flr 123 constantin v commissioner police new south wale police force 2013 nswadt ap 16 cusumano v commissioner police new south wale police service 2001 nswadt 50 dalziell v commissioner police new south wale police force 2018 nswcatad 79 drake v minister immigration ethnic affair 1979 2 ald 60 entick v carrington 1765 19 st tr 1029 grant v commissioner police new south wale police force 2020 nswcatad 158 hamid v commissioner police new south wale police force 2018 nswcatad 43 jones v dunkel 1959 hca 8 1959 101 clr 298 hill v commissioner police new south wale police service 2002 nswadt 218 kavalieratos v commissioner police new south wale police force 2014 nswcatad 117 kocic v commissioner police new south wale police force 2014 nswca 368 kruger v commonwealth 1997 hca 27 1997 190 clr 1 martin v commissioner police new south wale police force 2017 nswcatad 97 mccloy v new south wale 2015 hca 34 2015 257 clr 178 mcdonald v director general social security 1984 fca 57 1984 1 fcr 354 nakad v commissioner police new south wale police force 2014 nswcatap 10 neat holding pty ltd v karajan holding pty ltd 1992 67 aljr 130 olmstead v united state 1928 277 u 478 pyneboard pty ltd v trade practice commission 1983 hca 9 1983 152 clr 328 salter v commissioner police new south wale police force 2021 nswcatad 37 sterjovski v director general department transport 2002 nswadt 10 tolley v commissioner police new south wale police service 2006 nswadt 149 webb v commissioner police new south wale police service 2004 nswadt 110williams v r 1986 hca 88 1986 161 clr 278 wilson v commissioner police new south wale police force 2018 nswcatad 274texts cited pearce r geddes statutory interpretation australia thomson reuters 8th edition category principal judgmentparties mr hilal fawaz applicant commissioner police new south wale police force respondent representation counsel h el hage applicant douglas baker respondent solicitor yazbeck law applicant crown solicitor respondent file number 2021 00360395publication restriction pursuant s 64 1 b 64 1 c 64 1 cat act publication recording confidential hearing proceeding including confidential exhibit cr6 evidence given hearing prohibited content paragraph reason marked publication published released applicant reason decisionthe applicant mr hilal fawaz issued category ab firearm licence 27 march 2017 expire 18 may 2022 exhibit r1 p 8 firearm offence recorded section 73 1 thefirearms actstates commissioner may make firearm prohibition order person opinion commissioner person fit public interest possession firearm 21 august 2021 applicant made subject firearm prohibition order fpo unders 73 1 order stated based material held nsw police force issuing officer find following hilal fawaz fit proper person hold firearm licence antecedent enabled commissioner make determination relation fitness access firearm firearm part ammunition considered fit public interest time access firearm firearm part ammunition critical ensuring public safety firearm prohibition order issued exhibit r1 p 2 applicant firearm licence revoked 25 august 2021 fpo served applicant course execution search warrant 25 august 2021 time fpo served applicant also served weapon prohibition order wpo wpo subject review application applicant 23 september 2021 requested internal review fpo exhibit r1 pp 14 18 decision made request within time allowed request deemed refused 1 august 2020 respondent applied tribunal issuance summons produce document 22 august 2022 applicant applied order setting aside summons ground lacked legitimate forensic purpose application set aside succeeded fawaz v commissioner police new south wale police force 2022 nswcatad 296 confidentiality order pursuant tos 59of theadministrative decision review act 1997 adr act ands 64 1 c thecivil administrative tribunal act 2013 cat act made ransome sm 4 march 2022 applicable legislationsection 73 1 thefirearms actprovides commissioner may make firearm prohibition order person opinion commissioner review tribunal person fit public interest possession firearm effect fpo special power confers police set ins 74and74a 74 effect firearm prohibition order 1 prohibition person acquiring possessing using firearm firearm part ammunitiona person subject firearm prohibition order must acquire posse use firearm maximum penalty imprisonment 14 year firearm pistol prohibited firearm imprisonment 5 year case note reference pistol includes prohibited pistol 2 person subject firearm prohibition order must acquire posse firearm part maximum penalty imprisonment 14 year firearm part relates solely kind pistol prohibited firearm imprisonment 5 year case 3 person subject firearm prohibition order must acquire posse ammunition firearm maximum penalty imprisonment 5 year 4 prohibition supplying firearm etc person subject ordersa person must supply give possession firearm firearm part another person knowing person subject firearm prohibition order maximum penalty imprisonment 14 year firearm pistol prohibited firearm firearm part relates solely kind pistol prohibited firearm imprisonment 5 year case 5 person must supply give possession ammunition firearm another person knowing person subject firearm prohibition order maximum penalty imprisonment 5 year 6 prohibition person residing premise firearm etca person subject firearm prohibition order guilty offence firearm firearm part ammunition firearm kept found premise person residing maximum penalty 50 penalty unit imprisonment 12 month 7 defence prosecution offence subsection 6 defendant prof defendant know could reasonably expected known firearm firearm part ammunition premise b took reasonable step prevent firearm firearm part ammunition premise 8 prohibition person attending certain premisesa person subject firearm prohibition order must without reasonable excuse attend premise specified firearm dealer licence b shooting range c premise firearm club premise kind prescribed regulation maximum penalty 50 penalty unit imprisonment 12 month 9 membership firearm club reasonable excuse purpose subsection 8 10 exemptionsthe commissioner may order exempt person either unconditionally subject condition specified provision section 11 proof possession firearm part ammunitionfor purpose proceeding offence section reference insection 4ato firearm taken include reference firearm part ammunition 74a power police search firearm possession person subject firearm prohibition order 1 power police officer section may exercised reasonably required purpose determining whether person subject firearm prohibition order committed offence undersection 74 1 2 3 2 police officer may detain person subject firearm prohibition order b enter premise occupied control management person c stop detain vehicle vessel aircraft occupied control management person conduct search person premise vehicle vessel aircraft firearm firearm part ammunition 3 section premise includes place whether built issue application thus whether applicant fit public interest possession firearm applicant evidencethe applicant relied affidavit filed 13 may 2022 exhibit a1 prepared purpose proposed application review wpo matter proceed applicant relied affidavit purpose present review application mr hilal fawaz12 applicant affidavit begin outlining background including aged 33 born lebanon came australia 2009 age 21 married man dependent wife three child aged 10 7 5 currently company director principally concerned transport contractor activity undertaking delivery bunnings castle hill region done 13 year without incident company sole director shareholder nour corporation pty ltd address 779 back creek road b search premise conducted detective acting chief superintendent robert critchlow 25 august 2021 day detective senior constable jones telephoned premise said wanted applicant home within 20 minute time applicant shellharbour therefore said unable return home bankstown resided time within time d c jones said going conduct search whether applicant arrived house bankstown search progress course police took firearm gun safe together large number document either account receipt kept applicant connexion business household personal expense document recorded property seizure exhibit form date returned included purchase receipt ammunition firearm related purchase asked police taking document officer question identify said wanted gave reason affidavit attached video recording search exhibit hf 1 applicant also country property b caravan us property recreational shooting relax family friend police officer telephoned applicant b property 6 00 tell forcibly entered caravan searching property gave opportunity attend occurred police also took video search provided copy exhibit hf 2 property left state total disarray lock damaged security property compromised time firearm property gun safe bankstown applicant pointed reading problem difficulty reading comprehending english affidavit read affirmed basis referring d c jones statement dated 7 september 2021 exhibit r1 pp 42 53 stated property 705 back creek road belongs brother mohammed akram fawaz association interest spoke d c jones twice 25 august 2021 6 00 7 15 way home already agreed return home first telephone call 6 00 took hour travel shellharbour home bankstown search undertaken cooperated police time never interfered search personnel answered question truthfully accurately particularly volunteered information response d c jones telling looking time requires access receipt taken together documentation assist presenting case tribunal reference volunteering bolt said found farm correct told officer bolt found another property emma ville house rented shooting trip search found bolt kept garage also volunteered police officer apart bolt also found magazine property put garage volunteered information enable police locate item immediately without need rummage garage content never withheld anything police house nature firearm part never shown video unregistered person using firearm property 10 july 2021 shown photograph respondent bundle document exhibit r1 either p 150 p 151 photograph depicted rifle belong used female whose name know know came rifle circumstance came use rifle knowledge came possession information given belief brother wife know name brother estranged time attend wedding ever introduced wife also shown photograph man using pistol location familiar d c jones asked whether pistol denied never held pistol licence ever possessed pistol year customer gun shop named razorback outdoors buy ammunition purchased ammunition 44 magnum rifle 9 mm luger ammunition also rifle also customer braidwood outdoors time time purchased ammunition handgun rifle take 9 mm luger round ammunition handgun also usable rifle licence rifle never indicated anyone braidwood outdoors h licence bank statement exhibit hf 3 affidavit pp 1 075 corroborated evidence purchased ammunition accordance licence requirement criminal proceeding brother abdul fawaz matter concerning proceeding court matter referable applicant knowledge never questioned ever placed arrest purpose questioning activity brother spoken brother approximately 2 year estranged time contact true family attended mother birthday 10 july 2021 b farm 779 back creek road brother abdul brother mohammed property 705 back creek road activity depicting female holding firearm firing nothing wife child time none family member way using firearm licensed could responsible activity family member especially activity involving firearm undertaken knowledge matter using firearm depicted photograph never charged offence traffic record professional driver incident free nevertheless show matter extraordinary driving would warrant considered unfit person driver never lost driver licence equally criminal antecedent firearm licence holder since 2017 without incident offence registered ever subject proceeding respect firearm breach undertaken employment contributed community raising family living belief life without incident whatsoever enjoys shooting would suffer loss licence recreational shooter enjoys pastime understanding privilege observing obeying law whatever may problem brother matter face responsibility cross examined m douglas baker hearing applicant identified family member two photograph taken occasion mother birthday 779 back creek road exhibit r1 p 155 present occasion know planned function last spoke abdul maybe 2020 many argument spoke mohammed every day know whether brother subject fpos mother told abdul happened firearm seized fpo issued included bolt action rifle telescope camouflaged stock rifle shown held woman exhibit r1 p 150 similar obtained learner permit driver licence october 2009 exhibit r1 p 10 used international licence cease using obtained permanent residency l permit known could drive alone permit could international licence operated transport bunnings company name nour corporation pty ltd drive truck owned company company owns another truck employ driver mr orfali one driver owned mercedes benz amg purchased mazda liverpool sold mr orfali request agreed applicant would buy keep name mr orfali would make monthly payment 1437 latter owed another 2500 owed 7000 mr orfali toll tag accrued 3700 toll fine issued applicant owner vehicle fine thus name exhibit r1 p 63 registration truck cancelled mr orfali prosecuted drug charge lost licence resigned company applicant raised question fine matter orfali including applicant used 7000 loan applicant buy drug repay loan negotiate payment plan orfali unemployed relation event report e72136176 6 august 2019 ibid said could recall making threat orfali told could put toll fine applicant company good record taken possession car said orfali could recover repaid money owed never threatened glock never pistol never threatened go orfali family home discussion police 5000 debt owed exhibit r1 p 64 took place police station home contrarily narrative event report came house august 2019 asked question simply took possession gun also told police arranged orfali purchase mercedes name 55 000 plus option extra basis orfali would make monthly repayment although use car made two payment disappeared left total debt 74 000 something like applicant said never incurred toll fine stopped highway patrol told registration cancelled non payment fine accumulated orfali 35 owned back creek property since 2017 130 acre north b brother mohammed property 250 acre m nicole pearce mireille smith wife friend purchased manildra property two year ago could obtain loan made arrangement nicole could buy glenfield property lost 70 000 transaction needed raise money deposit paid nicole first sold property mireille previously paying 1800 month nicole enable make payment mortgage stood 192 000 sale raised needed 20 percent deposit although lost 74 000 want lose property auction examination witness said camouflaged finish rifle could obtained shop orfali used money applicant lent buy drug orfali problem police domestic violence served jail time regard purchase manildra paid nicole 1800 month mortgage pursuant agreement exhibit hf 3 affidavit exhibit a1 recorded p 31 one payment 1800 company account nicole pearce manildra 17 february applicant also tendered two character reference exhibit a2 content outlined respondent evidencethe respondent relied three affidavit affirmed detective senior constable nathan william jones first dated 22 february 2022 prepared support confidentiality application material present purpose detective senior constable nathan w jones39 second dated 14 july 2022 attache eight police statement respect execution search warrant arthur street bankstown 25 august 2021 crime scene warrant executed 779 back creek road back creek near b dated 27 august 2021 together note record relating search deponent stated contrarily applicant recollection detective acting chief superintendent critchlow present search bankstown property 25 august 2021 denied telephone conversation told applicant required return home bankstown property within 20 minute cannot recall word used asked applicant return soon could giving timeframe first met applicant person inside house time conversation served wpo fpo conversation asked mr fawaz key firearm safe saw applicant retrieve set key top doorway handed deponent key used open safe asked mr fawaz remain outside office dining room limited space near gun safe officer safety seized exhibit processed dining room applicant present occurred forced sit process standing dining room number document seized search relation purchase sale firearm ammunition located office bankstown property elsewhere house recall conversation applicant taking document kind alleged applicant aware request return document informed applicant police executing crime scene warrant back creek property returned bankstown property captured search warrant recording crime scene warrant executed 7 25 25 august 2021 almost simultaneously warrant bankstown applicant contacted crime scene warrant executed reason officer safety guard possible destruction evidence covid 19 restriction prohibited applicant travelling property time bankstown hot spot speak applicant 6 00 7 00 attending police briefing bankstown police station preparation executing search warrant spoke telephone applicant little 7 28 police admitted property mr zeinab abou ghnaim applicant account saying found bolt farm correct third affidavit dated 9 august 2022 exhibit r5 prepared following enquiry purchase firearm ammunition four sporting good store safari firearm bexley razorback outdoors richmond braidwood outdoors braidwood hawkesbury outdoors richmond course investigation police obtained tpg telephone service record abdul fawaz record disclosed following communication attempted contact abdul fawaz applicant 1 23 july 2020 5 53 p telephone call applicant abdul answered 2 6 11 p 6 42 p 27 july 2020 total 21 short service message sm abdul applicant first last 21 sent applicant d c jones required cross examination confidential evidence adduced confidential hearing pursuant 49 2 cat act 12 september 2022 confidential evidenceon adjourned date 12 september 2022 confidential hearing held pursuant 49 2 cat act publication publication publication publication publication publication publication publication publication applicant submissionsthe applicant made written submission dated 13 may 2022 prepared mr j stanton counsel began contending abject lack material fact identified matter couched covert consideration certainly consideration based upon covert factor revealed applicant respect public interest immunity provision rigorously resorted order deprive deny applicant basis assessment unfit improper made acknowledged brother abdul charged serious indictable offence fact charged relied upon extrapolate extend applicant person unfit improper outset extrapolation unwarranted without cause concerning applicant could seen bundle exhibit r1 document relied upon respect antecedent relate applicant applicant registered firearm holder without incident exhibit r1 p 8 traffic record main unremarkable although must accepted acknowledged relevant entry upon nothing would form matter seriousness would warrant concern serious consideration applicant person flagrantly flouted road rule new south wale relevantly equally remarkably criminal antecedent particularly lack one matter driving suspended dismissed 10 bankstown local court 18 march 2010 respect matter dated 16 february 2010 indicated early plea learned magistrate dismissed charge without recording conviction criminal infringement notice history record criminal infringement notice record found respondent primary evidence appeared statement d c jones made 7 september 2021 id pp 42 53 addition event report e59767652 14 january 2016 concerned one mohammed bazzi discernible relevance apart entry investigation 14 1 16 event report e311851694 merely refers successful safe storage investigation applicant bankstown residence led investigation event report e72136176 id pp 61 73 related zahir orfali claim applicant 4 6 august 2019 threatened gun connexion unpaid debt significance action taken charge preferred applicant critically p 67 appeared entry formal action applicant firearm returned id 72 event e74200550 10 april 2020 describes man named mohammed bassam presented bankstown hospital gunshot wound leg matter though serious possible bearing matter subject proceeding concerning applicant public place shooting said firearm related connexion applicant event e84227462 id 92 96 describes arrest applicant brother abdul 13 july 2021 charge attempted murder mohammed saab 26 august 2020 matter although serious irrelevant applicant neither charged offence brother court importantly denied applicant affidavit 13 may 2022 inasmuch maintains estrangement pre existing estrangement brother date alleged attempt equally indicative matter probative clearly met responded applicant abdul subject fpo issued 9 april 2015 circumstance applicant privy matter connected matter said relied event report relates fpo taken abdul rest exhibit r1 pp 116 149 matter relevant applicant brother way able relied upon matter able addressed resort public interest immunity rest material exhibit r1 pp 150 155 answered applicant affidavit attended birthday party family member participate use firearm displayed female family member party mother importantly female member association related marriage circumstance knew nothing estrangement applicant brother abdul nothing would disqualify applicant convicted offence would caught 11 5 cl 5 regulation therefore enlivening restriction tribunal jurisdiction applicable 75 1a outlining relevant law submission posed question incident said concern disclose trait within applicant character indicating inability hold firearm licence action preferred event report alleged argument 2016 prejudicial excluded pursuant 135 137 suggestion association outlaw motorcycle gang mental health concern unlike situation insalter v commissioner police 2021 nswcatad 37 conduct applicant concerning charge let alone firearm charge ability gauge found confidential material would give concern respect applicant character conduct association applicant unable present hear evidence make submission relevant issue applicant therefore seek fpo revoked basis applicant cannot required meet mount case albeit brought manner respondent sought rely upon material confidential covert circumstance deprived applicant ability able make assessment importantly realistically challenge consideration oral submission hearing applicant reiterated point commenting cop database report helpful term fit public interest explained tribunal inhamid v commissioner police new south wale police force 2018 nswcatad 43 53 broad concept extending matter going beyond applicant character including matter public safety phrase considered discretion exercised regard statutory context included 74a 2 provision conferred broad intrusive power police might exercised time repeated occasion without forewarning relevant person without need first obtain permission authorization warrant without requirement officer reach state satisfaction example person might committed breach exercising power clear whether 74a 1 restricted exercise power 74a 2 purpose specified 74a 1 power enabled official encroach fundamental common law liberty protection time consequently needed proportionality relevant circumstance exercise power issue fpo 73 1 see e g neat holding pty ltd v karajan holding pty ltd 1992 67 aljr 130 171 respondent submitted public interest also encompasses voluntary association person significant criminal history association may create danger public interest commissioner concerned seehamid supra dalziel v commissioner police new south wale police force 2018 nswcatad 79 case voluntary association relevant association relied applicant brother abdul voluntary association applicant hard working family man good character fit proper person must inferred least duration nearly 4½ year held firearm licence commissioner accepted case held firearm licence period without blemish abided applicable requirement never charged firearm related offence never convicted crime 10 dismissal driving suspended recorded interaction police cooperative forthcoming truthful search performed police two property identify infringement breach relevant firearm regulatory requirement fall within class person legislature intended encapsulate tribunal stated inwilson v commissioner police new south wale police force 2018 nswcatad 274 36 new south wale legislature indicated class people expected power apply included person engaged gun crime person access gun criminal record person involved drug use supply person police good reason believe member organized criminal group case inwilson applicant fall category inwilson tribunal made finding setting aside fpo despite applicant criminal history involved imprisonment 4 year non parole period two year applicant driving record fairly unremarkable especially professional truck driver 13 year last infringement 11 july 2019 one september 2016 hardly pattern non compliance asserted infringement covid 19 public health order made without particular version order tribunal making impossible test whether fact non compliance event unremarkable number traffic infringement infringement covid 19 order assuming true remotely within class consideration might enliven discretion 73 1 relation respondent reliance allegation zahir orfali noted unsubstantiated therefore rationality probative evidence particularly event report record provided several version incident changed story several time charge laid statement taken called give evidence giving rise inference underjones v dunkel 1959 hca 8 1959 101 clr 298 applicant denies making threat mr orfali applicant cross examination given credible evidence dealing mr orfali loaned money pay rent bond mr orfali called applicant evidence conduct shown photograph pp 150 155 exhibit r1 taken property 779 back creek road respondent contend rifle said shown belonged applicant identical evidence suitably qualified person called substantiate assertion evidence show applicant knowledge conduct basis submission applicant allowed family member use firearm photograph evidence show photograph taken applicant property applicant denies brother mohammed owns nearby property 705 back creek road d c jones never visited property position identify location respondent submissionsthe respondent filed written submission dated 13 july 2022 setting background chronology case together applicable law contended sufficient open material tribunal raise serious concern public interest applicant conduct relation firearm specifically relation allowing family member use rifle identical one rifle back creek road property circumstance family member permitted use posse firearm among family member applicant allowed use firearm applicant sister law maya tabbaa brother abdul wife abdul subject fpo therefore permitted acquire posse use firearm mr tabbaa relevant time hold firearm licence applicant visited back creek road property contravention travel restriction covid 19 public health order driving record also disclosed pattern disobedience condition driving license road rule applicant charged offence violence subject allegation threat violence firearm respect loan transaction zahir orfali applicant apparently contest material particular mr orfali allegation specifically applicant contest entered loan transaction pursuant mr orfali would make payment respect use mercedes applicant also contest mercedes registered name taken loan could apparently afford repay without mr orfali meeting loan repayment applicant brother abdul apparently estranged charged gun related violence specifically attempted murder circumstance abdul subject fpo period approximately 5 year presence applicant together brother subject fpo applicant back creek road property raised serious question public interest applicant conduct relation lawful use safe keeping firearm question specifically raised whether applicant gave permitted sister law access firearm permitted brother abdul least close proximity firearm suggested photograph obtained sister law telephone circumstance plain open material alone applicant conduct respect firearm open tribunal find applicant fit public interest possession firearm oral submission hearing m douglas baker respondent relied written submission pointed chapeau 74a 1 made clear power 74a 2 available police limited circumstance context investigation possible commission offence 74 1 2 3 relation photograph showing person firing rifle night evidence taken 10 july 2021 also evidence person photographed present applicant property 10 july considerationapproachunders 63of theadministrative decision review act1997

N98_25451 [2002] RRTA 139 (14 February 2002).txt

n98 25451 2002 rrta 139 14 february 2002 refugee review tribunaldecision reason decisionrrt reference n98 25451n98 25451n98 25451country reference nepalnepalnepaltribunal member kenneth northwooddate decision made 14 february 2002place sydneydecision tribunal affirms decision grant protection visa applicant claim citizen nepal arrived lodged application protection class az visa department immigration multicultural affair themigration act 1958 act applicant visa particular class entitled considered criterion subclass within class visa class az includes two subclass 785 temporary protection 866 protection delegate minister immigration multicultural affair refused grant protection visa applicant applied review decision19 november 200119 november 2001 summary applicant claim returned nepal suffer death serious mistreatment hand nepalese police known maoist known supporter present insurrection nepal labelled police terrorist applicant also claim continue suffer persecution inter caste marriage legislationunders 65 1 act visa may granted decision maker satisfied prescribed criterion visa satisfied subsection 36 2 act relevantly provides criterion protection visa applicant visa non citizen australia australia protection obligation refugee convention amended refugee protocol refugee convention refugee protocol defined mean 1951 convention relating status refugee 1967 protocol relating status refugee respectively 5 1 act criterion grant protection class az visa set inpart 866of schedule 2 themigration regulation 1994as force immediately 20 october 1999 australia party refugee convention refugee protocol subject certain qualification relevant present matter protection obligation people refugee defined definition refugee article 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return evidencethe tribunal department file includes applicant protection visa application application review primary applicationaccording application protection visa applicant nepalese national brahman ethnicity hindu faith applicant travelled australia legally nepalese passport name issued nepal australian visitor visa granted applicant permitting applicant remain australia one month date arrival applicant state married mid 1990s one child applicant completed degree university describes person concerned politics businessman give work history claim applicant contained response item 36 40 primary application applicant wish submit claim refugee statement apparently prepared applicant found folio 20 24 departmental file applicant say although brahman caste thus obliged follow traditional social religious custom ancestor ritual embraced communism got university breached caste social custom marrying girl lower caste met university marriage wife family made life intolerable time became involved university politics elected position campus unit nepal free student union annfsu party support communism later held higher position campus unit division among communist supporter according applicant became involved hard line faction samyukta jana morcha united people front group want unified nepal communist party marxist leninist ncp uml hardline faction applicant belonged initiated people war february 1996 parliamentary democracy established 1990 applicant supported communist party platform equality citizen rejection caste system opposition capitalism political view rejection caste system inter caste marriage led ostracised society targeted authority applicant say since initiation people war nepal february 1996 many killing war produced killing confrontation arrest throughout nepal insurrection waged torture killing bombing innocent people murder public official police response severe mistreatment person taken custody particularly member applicant party applicant involvement people war disclosed authority put life risk others instructed party flee nepal save family party applicant belief return nepal killed police fake encounter labelled terrorist delegate decisionin relation applicant particular claim delegate considered inter alia although applicant allied political faction responsible many murder delegate unable say whether charge applicant exist political criminal event described applicant ever took place circumstance delegate decided exclude applicant article 1f b current situation nepal one relative stability police exercising restraint credible evidence government holding political prisoner would appear impediment applicant availing protection nepalese authority event experienced harassment communist sympathiser evidence applicant would face persecution upon return nepal entered inter caste marriage delegate appears omitted adequately consider applicant feared persecution political opinion hand police rather considering mistreatment applicant communist sympathiser claim made primary application delegate found applicant fear persecution nepal well founded application reviewin section titled reason making application applicant stated loss read delegate decision claimed made haste without giving opportunity submit evidence support claim fear returning nepal current political situation deteriorating maoist killed police applicant included newspaper report dealing situation nepal said fear persecution well founded political involvement inter caste marriage apart matter detail provided support applicant claim hearingat hearing applicant assisted interpreter nepali language applicant said difficulty understanding interpreter adviser applicant also present began asking applicant said primary application true correct said asked correction wished make statement applicant said little involvement politics entering college date birth incorrect asked applicant briefly tell believed granted protection visa response college everyone opposed old system student joined one political committee another joined aanfsu thought change would come maoist joined time applicant still student wing party called committee going different part country connection party training activity applicant sent gurkha district purpose training program get village people support maoist cause time carried adult education work gurkha refused support maoist late 1990s applicant colleague arrested applicant found necessary leave applicant recalled gurkha market number police present applicant able board bus get back kathmandu maoist defeated party member leaving india time applicant married wife pregnant inter caste marriage applicant met friend decided leave nepal believing police looking applicant decided leave nepal made arrangement wife live aunt applicant working part time basis travel industry knew agent knew technique use get visa applicant believed went india might sent back nepal agent gave idea coming australia assisted applicant visa application course hearing asked applicant several question respect nepalese politics mid 1990s time departure demonstrated taken genuine interest nepalese politics asked applicant evidence member maoist said nothing australia general member asked applicant record kind police nepal said police looking nepal gone place wife living name appeared one medium arrived australia asked applicant charge pending alleged criminal activity nepal said know arrested charged anything asked describe involvement people war applicant referred training work gurkha asked would disclosed authority involvement people war applicant know said went countryside people knew name former colleague also detained number went applicant arrested applicant know happened simply disappeared asked applicant feared nepal said respect maoist know happening anything could happen respect inter caste marriage society changed much asked applicant thought would happen returned nepal said go back police arrest get protection people dead people get help anyone survive place go asked applicant summarise word persecution personally suffered nepal applicant said previously forgotten arrested two three time nepal said arrested upon return nepal would killed police put applicant found odd self confessed maoist committed communist seek protection democratic country australia suggested might felt home prc north korea cuba said australia famous human right involved communism need educate people press reform noted said statement member hardline faction sjm maoist faction started initiated people war acknowledged party supporter member responsible terror torture death innocent citizen murder politician queried whether fair police regard terrorist said fair say government harassing common people giving right something done people educated tried explain thing people opposition program would report people head office would remove government one terrorising people one person family joined maoist whole family punished drew attention applicant newspaper article kathmandu post newspaper article submitted application review stated quite clearly maoist underground rebel begun fourth phase violent two half year insurgency murdering police civilian addition article applicant asked take account support claim spoke armed robbery theft weapon still apparent human right group acknowledging security force guilty human right abuse noted rebel guilty gross violation human right reminded applicant party claimed member supporter said need weapon fight declared people war fighting government mean fighting police weapon need weapon get weapon somewhere weapon fight bank rob agriculture development bank give loan people put applicant asking accept persecuted government police trying deal terrorism criminal activity situation organisation part caused terrorism criminal activity first place said government rejected 51 point demand declare war war started fight put applicant difficulty seeing applicant described thing involved actually experienced seem amount persecution said ran away situation alive able talk anything could happened could dead go back think would alive get hold end asked applicant bearing mind australia number year went back long involve maoist activity could establish nepal said went people still knew done risk police friend knew run away fighting dying nepal would also want harm himi put applicant leader particular guerilla group guilty crime murder involvement student high profile person would police harm said word effect high profile people nothing fear little people would harmed suggested applicant impression high level involvement nepal several year police would leave alone said everybody know maoist would brand terrorist question inter caste marriage put applicant understanding inter caste marriage increasing becoming socially acceptable particularly urban area sort family mistreatment one might suffer amount convention persecution said agreed inter caste marriage increasing difficult socialise people boycott feel troubled time feel peaceful family welcome referred family wedding attended nepal relative made fuss presence made ceremony impure brought bad luck marriage ceremony referred problem child put applicant might suffered humiliation see conduct amounted convention persecution said know much needed amount persecution said appreciated family ostracism caste system broke could see describing amounted persecution asked applicant anything else wished put said wanted life went india might sent back go nepal killed detained killed safety cannot go back independent informationgeneral backgroundnepal constitutional monarchy parliamentary form government parliamentary democracy established 1990 election scheduled least every 5 year nepal extremely poor annual per caput gross domestic product approximately 242 80 percent 23 million person support subsistence agriculture see country report human right practice 2000 nepal released bureau democracy human right labor february 2001 introduction political partiesthere several communist party nepal include communist party nepal unified marxist leninist uml communist party nepal unified marxist leninist ml communist party nepal unity centre communist party nepal mashal communist party nepal united communist party nepal marxist cpn nepal worker peasant party see political handbook world 1999 editor arthur bank et al new york pp 690 1 also united people front upf upfn also known samyukta jana morcha sjm formed registered political party 1991 coalition leftist maoist group previously referred united national people movement see dfat cable km6620 17 march 1994 cx13447 united people front contested 1991 1994 general election 1991 secured 9 205 parliamentary seat making third largest party behind nepali congress nc communist party nepal united marxist leninist cpn uml unable retain seat 1994 election see political handbook world 1999 editor arthur bank et al new york p 691 suggestion political party including communist party nepal free promote political view accordance nepalese law see example country report human right practice 2000 nepal introduction however public security act authority may detain person allegedly threaten domestic security tranquillity law including public offense act permit arbitrary detention latter act cover crime disturbing peace country report human right practice 2000 nepal section 1 united people front leadership party splitin 1994 united people front samyukta jana morcha sjm split two one faction forming radical communist party nepal cpn maoist took allied sjm faction faction led maoist insurgency nepal 1996 cpn maoist launched people war insurgency proscribed year faction sjm oppose maoist insurgency also remains known united people front samyukta jana morcha sjm political electoral front communist party nepal unity center cpn see political handbook world 1999 pp 691 692 dfat cable km500006 discus division sjm two due internal party conflict two group identified sjm bhattarai group sjm vadiya group whose leader time dr baburam bhattarai niranjan govinda vadiya respectively see dfat cable km500006 nepal samukta jana morcha etc 8 february 1997 bhattarai faction allegedly responsible maoist insurgency maoist branch upf sjm function political arm rebellion centred district rolpa rukum west country current leader united people front nirmal lama amik serchan chairman sjm shyam pudel sjm current leader cpn maoist pushpa dahal general secretary buram bhattarai chairman sjm see political handbook world 1999 pp 691 692 people waron 13 february 1996 armed wing upf maoist declared people war government due government failure meet 40 point plan included demand establishment republic people war declared mid western nepal led violence 50 75 district resulted number death including innocent bystander committed police maoist activist see country report human right practice 2000 nepal introduction amnesty international report sharp increase human right violation since outbreak people war 10 march 1997 outline action group follows end november 1996 1 358 people arrested suspicion member cpn maoist sjm since people war started although many released approximately 600 people remained prison awaiting trial least 50 people killed nepal police call encounter armed confrontation cpn maoist activist amnesty international belief however police repeatedly resorted killing people situation force clearly unjustified alternative lawful arrest according dfat cable km7580 upf condemned action cpn maoist early stage declaration people war despite political wing organisation evidence suggest continues article guardian weekly dated week cable claim bhattarai leader upf belief armed struggle called state overthrown democracy established along marxist leninist maoist line see dfat cable km7580 nepal eruption maoist inspired agitation 1 march 1996 guardian weekly violence rock mountain kingdom 17 march 1996 political tactic used upf protesting government organise general strike orbandh rather mass demonstration strike usually involve general shut shop school bus taxi service etc central city area however number protester gather together sometimes violent standoff police resulting arrest case injury death example april 1998 upf called strike protest continued neglect 40 point demand covering variety issue nepal relation india distribution land establishment republican state two people killed 12 injured bus truck stoned police detained total 118 people vehicle seen street shop closed across country affecting normal life resident see reuters two killed nationwide strike nepal 6 april 1998 report indicate maoist extremist partaken particularly violent form attack report agence france presse state maoist group responsible hacking death nc candidate upcoming local election 1997 u department state country report claimed guerrilla usually armed homemade gun explosive knife stick attacked landowner civilian government official government facility number district see agence france presse nepal maoist step attack 7 may 1997 united state department state country report human right 1997 nepal february 1998 2 march 1999 total 1 440 incident reported police including 367 case looting 184 physical assault 143 explosion 80 arson attack 63 attack police unit 563 police encounter period maoist killed 38 police personnel 121 civilian mostly member political party maimed seriously wounded 242 police personnel 297 civilian 63 government ngo property attacked 14 telecommunication repeater station period maoist stole gun tourist 43 police rifle three police revolver 241 privately held gun raid irrigation canal construction project kota village 27 june 1998 maoist killed policeman guarding site looted weapon explosive see rohan gunaratna nepal insurgent balance politics violence jane intelligence review 1 october 2001 amnesty international annual report 2001 state according official figure november 1999 october 2000 221 people killed police context people war according country report human right 2000 maoist increased scope campaign frequently committing torture killing bombing abuse police insurgent continued killed maoist responsible numerous abuse towards police civilian including killing kidnap injury although activity focused police maoist continued kill injure kidnap civilian well february 14 maoist pulled two men political procession rukum beheaded front hundred onlooker believed victim targeted carrying nepali congress party flag bomb planted maoist behind police post dolpa killed 11 year old boy february 15 two person injured blast february 24 sindhupalchowk group rebel attacked local official tied tree hacked death khukuri large machete like knife since 1996 police killed 420 rebel 2150 people altogether killed security force rebel civilian also report police arrested illegally detained suspected maoist insurgent held incommunicado government committed human right abuse effort combat insurgency example january 2000 police opened fire maoist cultural program school killing nine person wounding numerous others police later admitted seven killed innocent bystander see united state department state country report human right 2000 nepal february 2001 introduction section 1 b c public security act authority may detain person allegedly threaten domestic security tranquillity amicable relation state relation citizen different class religion person government detains act considered preventive detention held 6 month without charged crime human right group allege police used arbitrary arrest detention people war intimidate community considered sympathetic maoist see section 1 b since insurgent began terrorist campaign police arrested 5 866 suspected maoist person arrested 1 654 tried 4 182 released however evidence suggest public security act aimed selectively enforced towards maoist indeed particular group see country report human right practice 2000 nepal section 1 1991 amendment public security act allow authority extend period detention submitting written notice home ministry police must notify district court detention within 24 hour may order additional 6 month detention authority file official charge law including public offense act permit arbitrary detention act many amendment cover crime disturbing peace vandalism rioting fighting human right monitor express concern act vest much discretionary power chief district officer cdo highest ranking civil servant country 75 district act authorises cdo order detention issue search warrant specify fine punishment misdemeanour without judicial review recent instance use public offense act come light since become common particularly maoist arrest person public security act however evidence suggest public offense act aimed selectively enforced towards maoist indeed particular group see country report human right practice 2000 nepal section 1 specific maoist target include rich class identified enemy singled maiming killing also seek disrupt legitimate government administration attacking public target police station local government office bank staff property non governmental organisation ngo foreign funded development project also designated legitimate target tourist facility part plan discredit destabilise present nepalese state spite stated aim attacking bourgeoisie aristocracy maoist also targeted poor including labourer farmer school teacher several school teacher murdered probably expressing opposition maoist campaign see rohan gunaratna nepal insurgent balance politics violence jane intelligence review 1 october 2001 26 november 2001 hearing result violence initiated maoist cease fire maoist government ended state emergency declared see nepal hit new rebel violence bbc news 25 november 2001 nepal emergency declared bbc news 26 november 2001 since 26 november 99 maoist killed see cx 60420 cx 61290 castenepali society based indian caste system introduced reinforced successive wave immigrant nepal ethnic diversity moulded unique form popular belief caste system introduced kathmandu valley king jayasthiti malla 1382 1422 classified newar subject 64 different occupational category codify numerous regulation right detail like forbidding outcaste sweeper wear shoe strengthening pattern already century old record licchavi period 300879 document existence caste system based classic fourfold indian division priestly brahman warrior ruling class kshatriya nep chhetri trading farming vaishya menial sudra servant laborer old occupational caste division incredibly specific among newars dyer red cloth belonged one caste dyer blue cloth another separate division wound dresser musician men painted eye wheel machhendranath chariot modern occupation demise old one somewhat confounded traditional system adapting taxi driver low caste computer operator high one legal punishment violating caste system eliminated early 60 caste still much alive nepal caste social religious determining marry eat drink even smoke together old taboo loosen serf mainly indicate political economic status uniting people dividing others understandably high caste member take matter seriously brahman chhetris look upon lesser hindu turn still feel superior yak eating e cattle eating bhotia rank outcaste scheme casteless buddhist ignore system outcaste still inseparable part society discriminates finding reasonsthe applicant claim national nepal presented evidence citizen country form certified copy nepalese passport evidence cast doubt evidence applicant posse nationality find applicant national nepal outside country required determine whether applicant well founded fear persecution convention reason although generally case applicant otherwise credible plausible unless good reason otherwise given benefit doubt case evidence applicant believed tribunal unless specifically disproved objective evidence tribunal rather tribunal decide fact find consideration evidence subjective objective requires tribunal consider inconsistency also determine evidence find credible nicholson j chen xin v minister immigration ethnic affair wag 124 1994 23 november 1995 unreported p 11 said tribunal required accept uncritically claim made applicant mere fact person claim fear persecution particular reason establish either genuineness asserted fear well founded reason claimed applicant persuade reviewing decision maker statutory element made miea v guo anor 1997 144 alr 567 596 also stated chan per mchugh 428 1951 convention unlikely state party expected grant refugee status person whose account although plausible coherent inconsistent state understanding condition country nationality applicant must fear persecution 91r 1 act persecution must involve serious harm applicant systematic discriminatory conduct expression serious harm includes example threat life liberty significant physical harassment ill treatment significant economic hardship denial access basic service denial capacity earn livelihood hardship denial threatens applicant capacity subsist s91r 2 act high court explained persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality however threat harm need product government policy may enough government failed unable protect applicant persecution persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor however motivation need one enmity malignity antipathy towards victim part persecutor persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason real chance one remote insubstantial far fetched possibility addition applicant must unable unwilling fear avail protection country nationality whenever protection applicant country available ground based well founded fear refusing person concerned need international protection refugee however context necessary government guarantee protection seemima v prathapan 1998 156 alr 672at 680 81 present case applicant claim return nepal face death hand nepalese police acknowledge pursuant section 91r 2 act fear applicant amount persecution whether amount persecution depends upon whether fear applicant well founded applicant claim member hard line maoist party fear persecution reason political opinion accept political opinion recognised convention reason may lead person recognised refugee well foundedness fearswith respect claim applicant number claim prepared accept follows applicant embraced communism nepal student joined maoist party applicant married lady lower caste led harassment ostracism family applicant wife child marriage continue reside nepal particular party applicant member initiated people war 1996 primary role applicant seek support maoist cause secondary role educate people applicant engage armed guerilla military style operation applicant genuine maoist belief support people war nepal apprehension disappearance colleague applicant decided flee nepal assistance contact agent nepal applicant able obtain australian visa andthe applicant left nepal legally find credible applicant claim prominent member sjm maoist hearing applicant admitted particular office responsibility evidence applicant hearing activity maoist particular locality endeavour gain support gurkha people living note primary application applicant made claim ever detained questioned arrested maoist activity nepalese authority applicant claim police seeking time left nepal recalled remembered towards end hearing arrested time identify reason arrest even applicant actively sought authority involvement people war light independent evidence would relation particular criminal action action support armed insurrection government may involved applicant fact involved suspected criminal action support armed insurrection government fact may therefore subject arrest authority reason would amount persecution welivita v minister immigration ethnic affair fca lindgren j ng958 1995 18 november 1996 unreported p 21 stated clearly mere fact person prosecuted penalised criminal offence establish existence well founded fear persecuted reason political opinion mere fact criminal offence politically motivated make difference given nature government response maoist insurgency outlined published evidence cited credible applicant known activist person whose involvement people war put high risk life would able leave nepal air legally accept dfat advise dfat country information report no239 01 14 august 2001 nepal exit procedure cx56049 nepalese law prominent activist able leave nepal air legally arrested exit point police add basically thing legal illegal nepal advising would difficult activist leave country legal mean unavailable eg change identity leave country bribing immigration official police noted primary application applicant response item 43 stated left nepal legally passport name fortifies conclusion applicant person adverse interest police nepal time departure first time hearing applicant claimed feared returned nepal may face retribution party fled nepal party accept claim applicant firstly matter real substance applicant would mentioned primary application also regard former political colleague note involved like minded people rejected violence preferred involved education program light find applicant claim people would harm implausible particularly absent country several year resentment would one might reasonably resume dissipated find claim applicant highest remote worst fanciful inter caste marriagei accept independent evidence constitution specifies state shall discriminate citizen ground religion race sex caste ideology however caste system remains discrimination lower caste remains common especially rural area however independent evidence also suggests kathmandu applicant wife resided significant period caste distinction greatly reduced recalled hearing applicant agreed intercaste marriage becoming acceptable urban area hearing general thrust applicant evidence family applicant boycotting intolerance came paragraph 43 refers satisfied independent evidence detail instance would lead conclude caste discrimination exists nepal constitutes amount serious disadvantage detriment lower caste satisfied evidence nepalese citizen persecuted basis caste therefore unable satisfied applicant well founded fear persecution convention reason arising actual imputed political opinion return nepal reasonably foreseeable future conclusionhaving considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set 36 2 act protection visa decisionthe tribunal affirms decision grant protection visa

Leslie Wills V, Registrar of Private Agents (1996_4523 and 1996_4230) [1996] VICCAT 709 (21 August 1996).txt

j administrative appeal tribunal victoria no 1996 4523 1996 4230 1996 4523 applicant respondent 1996 4230 applicant respondent decisionleslie will registrar private agent wimmera security service registrar private agent mr coghlan presiding member c2 day august 1996 decision tribunal decision respondent affirmed administrative appeal tribunal victorianos 1996 4523 1996 4230 general division melbourne 1996 4523 applicant leslie will respondent registrar private agent 1996 4230 applicant wimmera security service respondent registrar private agent mr coghlan presiding member reason decision application review 6 february 1996 deputy registrar private agent cancelled effect 20 february 1996 combined crowd controller security guard licence mr leslie will security firm licence wimmera 2 security service w business mr will partner wife mr christine will 13 february 1996 mr will w applied tribunal stay decision review stay apparently granted consent hearing merit took place 2 august 1996 convenience although two applicant shall refer decision mr will applicant mr will hold combined crowd controller security guard licence also partner business w legislation partnership concerned partner must satisfy certain criterion issue concerned whether mr will would meet certain criterion applicable legislation hearing tribunal heard oral evidence mr will mr christine will mr birkin psychologist sergeant donald frazer detective sergeant phillip nick filed tribunal applicant considerable number reference report including updated report respondent material filed prior hearing essentially material registrar however hearing detective sergeant phillip nick informant certain county court matter whose brief evidence formed part material registrar gave evidence fact evidence far wide ranging material filed tribunal usual practice tribunal evidence followed 3 evidence given applicant witness called matter raised put person objection taken counsel mr will evidence challenged 12 august 1996 presiding member received written submission dated 6 august 1996 mr simon counsel applicant stated filed consent submission stated follows 1 agreed applicant respondent would file statement intended rely hearing noted respondent would notify applicant witness required applicant call hearing cross examined 2 notice received applicant evidence filed accordingly evidence support application uncontradicted must given due weight 3 particular notification required inspector smith give evidence therefore statement uncontroverted evidence tribunal 4 therefore volume evidence mr will good character ability carry duty tribunal way filed statement oral evidence tom birkin sergeant frazer 5 attached page 1592 1593 page 1764 1768 parliamentary debate private agent amendment bill 1990 cover licensing private agent 6 submitted debate make clear objective bill prevent violent people operating 4 submission part concern weight given uncontradicted evidence filed support application note point taken submission way challenging evidence detective sergeant nick given hearing background mr will co proprietor wife mr christine will business trading wimmera security service w 1987 mr will purchased business called ss security service continued run business since initially partnership mr ough approximately three month bought bought business employed two people apart mr will mr christine will employ one full time person five casual basis business currently offer range service including 24 hour commercial private property surveillance patrol armed cash escort banking service static guard armed guard crowd control 24 hour alarm response mr will initially operated watchman licence completed security guard controller course late 1990 apart security guard crowd controller licence mr will hold pistol licence pistol carry licence 5 reviewed may 1996 w holder security firm licence corporate pistol licence county court horsham 27 october 1995 mr will pleaded guilty following charge horsham said state 1st december 1989 12th february 1994 unlawfully wilfully publicly exposed naked person kellie ann sedgman b horsham said state 1st april 1994 31st may 1994 unlawfully wilfully publicly exposed naked person joanne peta bird without conviction recorded placed 3 year undertaking good behaviour commencing 27 october 1995 special condition treated mr birkin nominee time period mr birkin nominee recommended matter gave rise hearing registrar private agent mr will attended material filed matter show deputy registrar decided cancel licence satisfied mr will good character capable carrying duty licence holder honestly fairly efficiently 6 legislative framework part iia private agent act 1966 pa act concern security licence licensing four category private agent category include inquiry agent security firm security guard crowd controller part iia introduced part private agent amendment bill debt collection bill october 1989 according second reading speech bill arose review private agent act victorian law reform commission conjunction regulation review unit far activity inquiry agent security firm security guard concerned amendment private agent act intended empower registrar private agent issue suspend cancel licence well requiring registrar maintain register private agent bill also established right review administrative appeal tribunal decision registrar section 19g relates processing application section 19k relates suspension cancellation existing licence section 19k 1 state 19k cancellation suspension licence 1 opinion registrar ground believing holder licence 7 improperly obtained licence b would meet criterion specified section 19g 3 4 holder apply licence c engaged conduct private agent unfair dishonest discreditable registrar may hold hearing determine whether holder licence cancelled suspended section 19g refers processing application sub section 3 4 state 19g processing application 3 case application natural person registrar satisfied application complies section 19e applicant good character b age 18 year c contravened failed comply provision act regulation extent warrant refusal licence convicted offence warrant refusal licence e capable carrying duty licence holder honestly fairly efficiently registrar must grant licence applicant 4 case application partnership corporation registrar satisfied application complies section 19e 8 partner partnership every officer corporation satisfies criterion listed sub section 3 b partnership corporation sufficient financial resource enable carry business private agent c partnership corporation bad repute case corporation corporation convicted offence warrant refusal licence registrar must grant licence applicant 5 8 inclusive relevant effect section registrar opinion licence holder would meet criterion specified section 19g 3 4 holder apply licence hearing held determine whether licence cancelled suspended case mr will hold combined crowd controller security guard licence partner business w concerned whether mr will would meet criterion section 19g 3 thus task tribunal consider whether would meet criterion whether suspend cancel licence discussion section 19g 3 list five criterion case two criterion issue criterion whether mr will 9 good character capable carrying duty licence holder honestly fairly efficiently seems little doubt mind evidence tribunal mr will capable carrying duty holder crowd controller security guard honestly fairly efficiently testimonial tendered number client attest conscientious reliable thorough co operative professional manner mr will w carry security service provided sergeant donald frazer recently stationed horsham seven year known mr will professional capacity owner operator w provided statement referring professional manner mr will conducted business stated great assistance police oral evidence tribunal confirmed inspector smith statement private agent registry provided mr will request regarding mr will suitability continue holding private agent licence stated inquiry member stationed horsham past nine year recently report indicate performance security guard anything excellent 10 detective sergeant nick called give evidence respondent said although far le mr will uniformed officer based told mr will generally run quite efficient night watching service whether mr will good character different matter good character defined legislation neither counsel produced case law meaning phrase mr simon submitted common law approach person known perceived community meaning good character remark dixon j davis 1947 75 clr 409 helpful considering contention upon fact case appellant time admission bar good fame character dixon j 426 said second contention depends part fact case part upon argument whether man good fame character question general reputation moral standard quality latter argument quite wrong come confusion rule criminal evidence allowing accused prove good character part defence question whether man fit enter one four traditional profession new south wale court appeal ex parte tziniolis v medical practitioner board 1967 1 nswlr 357 also considered ambit phrase good character holmes ja 377 response submission 11 term good character referred applicant reputation disposition referring case cited said think case relevant problem decide good character j particular sense developed criminal law law defamation good character j person seeking practise medicine registered medical practitioner concerned cf davis 1947 75 clr 409 p 426 reputation obviously relevant solution problem cannot exclusive test good used also sense moral strength went say good character j summation act alone relates rather quality person quality judged act motif say behaviour mental emotional situation accompanying behaviour however character cannot always estimated one act one class act much person known form evidence inference good character good character drawn case indicate one need consider deciding whether person good character circumstance case person general reputation includes quality person apart incident giving rise particular charge wilful obscene exposure pleaded guilty five county court october 1995 mr will evidence tribunal really idea many time deliberately exposed woman concerned 12 evidence also given tribunal detective sergeant nick regarding incident others aware one according detective sergeant nick mr will admitted interview following latest incident concerned complaint lady neighbour daughter mr will exposing gap adjoining paling fence backyard detective sergeant nick explained time spent unsuccessfully trying catch also aware couple occasion eight year ago people complained police one occasion allegedly exposed woman walking past car outside premise 1982 mr will charged certain offence concerning wilful obscene behaviour understand detective sergeant nick evidence matter adjourned twelve month 500 good behaviour bond according detective sergeant nick victim evidence matter mr will exposed laneway mr will evidence laneway relieve mentioned earlier evidence unchallenged detective sergeant nick also gave evidence believed mr will reputation good one lot respect said whilst lot people would say great bloke lot people say sleaze woman think highly said mr will topic lot gossip prior recent incident since incident 13 sergeant frazer gave evidence mr will well regarded man good character hardworking however cross examination hypothetical example probationary constable exposing staff put hesitation saying would high opinion person would defend matter would dealt severely found response odds sought evidence classify mr will character good explained earlier mr will full history put sergeant frazer note nothing sergeant frazer evidence indicated knowledge matter written reference prepared hearing refers matter concerning mr will work contains assessment character overall found sergeant frazer evidence little assistance regard whether mr will good character also found inspector smith written report prepared registrar hearing little assistance reason report addressed recent incident according detective sergeant nick charge investigation informant matter consulted inspector smith regarding report registrar seen amazed uniform member force would told inspector smith unaware rumour allegation amazed could say mr will lose customer 14 number testimonial filed tribunal difficult know person really aware make general observation business associate testimonial tony manzone store manager k mart purely business reference also testimonial mr david grigg proprietor north west totalizator mr daryl dower secretary manager horsham greyhound racing club mr brian murray camera world mr taylor orchard lane mr david lavithis manager client service vicroads region mr brett williams centre manager horsham plaza manager seven month january 1996 reference business reference also refers personal knowledge mr will many year football played opposing side context always found mr will good fair honest competitor always strived best much doe sic business mr geoff coutts manager resource service wimmera mallee water known mr will two year reference relates business includes observation observed 15 popular well known person wimmera mallee area doubt due long successful involvement football cricket number club many year mr stuart hobbs quantum distributor state known mr will adult life business sporting personal association personal level always demonstrated high degree integrity honesty dealing mr will business level since commenced business mr g dwan personal banking manager westpac horsham state known le ten year found honest reliable individual westpac utilized mr will service mr chris buwalda director owner harvey world travel horsham state known mr will 14 year sporting activity personally business activity emphasis mr will keenness participate social activity keenness help work needed make social event success mr keith wade city gym employ mr mill security business look premise known mr will personally 14 year particularly football state found le sound character way 16 derix managing director horsham hire service employ mr will security person personal side derix state know le person honesty integrity demeanour always pleasant courteous mr wayne anderson proprietor bleakley street handy shop associated mr will professional personal capacity four year state found honest trustworthy doubtless integrity apparently aware careless indiscretion mr dianne morrison owner 16 plus known mr will ten year personally employed security service nine year hesitation recommending le will character business ethic mr robert keating gaming manager horsham sport community club known mr will several year work related connection past two state year known le found responsible reliable person high integrity mentioned reference business associate also known mr will context particularly relating sport one mr anderson make reference matter gave rise registrar hearing reference careless 17 indiscretion mr anderson meant phrase unclear say least given mr will evidence given test good character merely reputation includes quality person testimonial limited assistance deciding whether mr will good character although several refer integrity evidence cannot accept man posse soundness moral principle character macquarie dictionary defines integrity given business context make clear author actually knew mr will giving reference hand faced unchallenged evidence detective sergeant nick range incident relate matter inappropriate behaviour confined incident mr will home mr birkin psychologist prepared report registrar hearing gave evidence hearing updated report filed mr birkin psychologist mr will started see allegation made march 1995 referred mr will local doctor mr birkin predominantly academic background private practice since 1990 member aps many year ago keep membership 18 first report prepared february 1996 stated mr will suffers essentially problem area impaired limit say deficiency internal limit leading difficulty respecting right others said mr will learning understand reason offensive behaviour acquiring discipline change behaviour everyday observed fortunately behavioural change required confined one circumscribed set situation widespread throughout life example problem involved occupational behaviour second report dated 2 august 1996 referred mr will ongoing treatment mr birkin stated treatment considered necessary simply private emotional difficulty involved mr will two wife friend understand caused distress behaviour sense condoned behaviour opinion relevant work performance fitness pursue occupation stated mr will treatment encouraging neither report give detailed history mr will make mention earlier incident indeed relevant significant first report simply focus general explanation behaviour evidence tribunal mr birkin stated saw reason mr will behaviour would repeated low probability impossible say possibility would 19 way hearing proceeded opportunity exploring whether mr birkin knowledge matter raised without canvassed given simply concerned incident two mr will wife friend others longer period home given lack detailed history report mean place considerably le weight otherwise might mr birkin evidence particularly relation evidence regarding progress potential recidivism far mr will ability perform job effectively concerned matter need considered tribunal according legislation one must also consider good character job crowd controller particular security agent one public place trust someone evidence much work done night unchallenged evidence mr will involved incident outside confines home behaviour recent phenomenon single aberration accept evidence considered evidence matter particular noting context reference given difficulty limitation inspector smith statement difficulty sergeant frazer evidence noting detective sergeant nick evidence 20 unchallenged accepted find mr will good character counsel applicant submitted bill introducing amendment private agent act showed clear objective bill prevent violent people operating far concerned intended submission restriction placed upon meaning good character accept submission speech parliament indicated whilst violence mind member nothing suggest clear meaning good character read way exclude everything except matter relating violence even circumstance section 19k 1 may provide discretion cancel suspend satisfied would appropriate circumstance cancel mr will wimmera security service licence therefore affirm respondent decision certificate certify preceding 20 page true correct copy reason decision mr coghlan presiding member administrative appeal tribunal registrar 22 appearance no 1996 4523 1996 4230 applicant mr michael simon counsel instructed power bennett solicitor respondent senior sergeant david helman date hearing 2 august 1996

Construction, Forestry, Maritime, Mining and Energy Union-Queensland Branch [2019] FWCA 455 (25 January 2019).txt

construction forestry maritime mining energy union queensland branch 2019 fwca 455 25 january 2019 last updated 7 february 2019 2019 fwca 455fair work commissiondecisionfair work act 2009s 185 enterprise agreementconstruction forestry maritime mining energy union queensland branch ag2018 5863 gerard flynn pty flynn builder cfmeu union collective agreement 2018 2022building metal civil construction industriesdeputy president massonmelbourne 25 january 2019application approval gerard flynn pty flynn builder cfmeu union collective agreement 2018 2022 1 application made approval enterprise agreement known thegerard flynn pty flynn builder cfmeu union collective agreement 2018 2022 agreement application made pursuant tos 185of thefair work act 2009 act made construction forestry maritime mining energy union queensland branch agreement single enterprise agreement 2 employer provided written undertaking copy undertaking attached annexure satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement 3 subject undertaking referred satisfied requirement ofss 186 187 188and190as relevant application approval met 4 construction forestry maritime mining energy union bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 5 agreement approved accordance withs 54of act operate 1 february 2019 nominal expiry date agreement 2 july 2022 deputy presidentprinted authority commonwealth government printer ae501467pr704291 annexure

Administrative Appeals Tribunal [2017] FWCA 3041 (2 June 2017).txt

administrative appeal tribunal 2017 fwca 3041 2 june 2017 last updated 2 june 2017 2017 fwca 3041fair work commissiondecisionfair work act 2009s 185 enterprise agreementadministrative appeal tribunal ag2017 1838 aat enterprise agreement 2017 2020commonwealth employmentcommissioner gregorymelbourne 2 june 2017application approval aat enterprise agreement 2017 2020 1 application made approval enterprise agreement known theaat enterprise agreement 2017 2020 agreement application made pursuant tos 185of thefair work act 2009 act made administrative appeal tribunal agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 cpsu community public sector union bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 4 agreement approved accordance withs 54of act operate 9 june 2017 nominal expiry date agreement 9 june 2020 commissionerprinted authority commonwealth government printer price code j ae424562pr593456

s.120 Appeal against decision ([185)[2008] AIRC 507] by J Davies and Australian Taxation Office - re Appeal against the decision by Commissioner Spencer at Brisbane on 5 June 2008 in DR2007_294 - Full Bench [2008] AIRCFB 676 (8 October 2008).txt

120 appeal decision 185 2008 airc 507 j davy australian taxation office appeal decision commissioner spencer brisbane 5 june 2008 dr2007 294 full bench 2008 aircfb 676 8 october 2008 2008 aircfb 676australian industrial relation commissiondecisionworkplace relation act 1996s 120 appeal full benchj daviesvaustralian taxation office c2008 2579 commonwealth employmentvice president watsonsenior deputy president hambergercommissioner hoffmanmelbourne 8 october 2008appeal decision 2008 airc 507 commissioner spencer brisbane 5 june 2008 dr2007 294 provision previous agreement jurisdiction commission determine dispute concerning event prior commencement current agreement whether entitlement preserved whether unresolved dispute superseded dispute settlement procedure introduction 1 appeal leave required m j davy decision made commissioner spencer 5 june 2008 1 determining commission jurisdiction hear appellant claim relation unresolved dispute arising superseded certified agreement background 2 4 december 2007 m davy made application unders 709of theworkplace relation act 1996 cth act settlement dispute employer australian taxation office ato arising theato general employee agreement 2006 2006 agreement 3 dispute arose m davy sought make claim restriction duty allowance clause 49 2006 agreement retrospectively 1 september 2001 ato rejected claim leading appellant make application commission pursuant clause 136 2006 agreement 4 ato lodged jurisdictional objection relation application submitting commission jurisdiction exist relation event prior 1 july 2006 date 2006 agreement came operation 5 m davy submitted operation provision previous agreement applied employment preserved clause 132 2 2006 agreement consequently dispute properly construed arising 2006 agreement 6 decision commissioner spencer noted 2006 agreement specifically provides clause 136 4 dispute arising previous certified agreement unresolved time 2006 agreement came operation progressed 2006 agreement commissioner found supported finding accordance provision clause 3 1 schedule 7 act agreement cease operate passed nominal expiry date replaced another agreement 7 paragraph 31 decision commissioner state applicant first raised dispute regarding claim restriction allowance 2006 agreement 23 february 2007 claim 1 september 2001 date dispute notification prior 23 february 2007 evidence applicant formally raised dispute various dispute resolution procedure previous ato certified agreement 8 accordingly commissioner found dispute raised prior operation 2006 agreement commission jurisdiction determine dispute extent related period prior 1 july 2006 9 appeal heard 28 august 2008 mr j murdoch senior counsel represented m davy mr lloyd counsel represented ato leave appeal 10 m davy sought leave appeal commissioner decision unders 120 f act submitted interpretation provision given decision effect accrued entitlement employee federal award consequently public interest grant leave appeal 11 ato submitted response employee right pursue entitlement via compliance provision act unaffected decision ground nature appeal 12 m davy primary ground appeal 2006 agreement preserved entitlement liability previous agreement therefore dispute matter amenable dispute settlement procedure 2006 agreement reference made specifically clause 132 2 state 132 2 however right obligation liability already accrued incurred provision superseded award agreement shall preserved benefit accrued shall subject operation agreement 13 second ground appeal commissioner made error fact finding dispute first raised m davy 23 february 2007 m davy submitted raised dispute accordance theato general employee agency agreement 2002 2002 agreement unresolved dispute time agreement came effect contended behalf agreement provision provide unresolved dispute progressed dispute resolution provision 2006 agreement provide authority commission determine dispute 14 well established appeal decision regarding jurisdiction need determined basis whether decision first instance error appeal bench need consider question jurisdiction determine whether decision appeal correct preservation 15 counsel m davy submitted plain meaning clause 132 2 preserve right obligation arising previous instrument statement benefit accrued subject 2006 agreement enlivens dispute settlement procedure agreement respect benefit 16 counsel ato submitted preservation entitlement clause 132 2 relates right certain benefit annual leave accrue taken time new agreement came effect said clause merely preserve sort entitlement 17 appears u interpretation arguable absence extraneous material might demonstrate intention party 2006 agreement primary attention given word section importance interpretation give effect likely intention party agreement 18 view narrow interpretation contended ato better interpretation clause expressed general term interpreted accordance ordinary natural meaning view preserve benefit previous instrument make compliance previous provision obligation 2006 agreement obligation enforceable 2006 agreement including application dispute settlement procedure 2006 agreement unresolved dispute 19 alternative argument behalf m davy dispute amendable operation dispute settlement procedure 2006 agreement unresolved dispute within meaning clause 136 4 2006 agreement reliance placed evidence matter raised team leader m king october 2003 20 ato submitted email sent m davy team leader 2003 amount invocation dispute resolution procedure 2002 agreement consequently unresolved dispute time 2006 agreement came operation ato note equivalent provision clause 136 4 earlier agreement providing unresolved dispute continued new agreement 21 ato submitted dispute relation period 1 september 2001 1 july 2006 dispute 2006 agreement agreement act provide dispute resolution conducted relation dispute current agreement 22 view dispute arose 2003 unresolved time 2006 agreement came effect even alleged entitlement preserved 2006 agreement would view nothing agreement prevent dispute alleged entitlement dealt dispute resolution procedure 2006 agreement conclusion 23 reason view decision commissioner error view commission jurisdiction determine dispute dispute settlement procedure 2006 agreement respect period employment predecessor agreement applied 24 grant leave appeal allow appeal remit matter commissioner spencer determine dispute accordance decision dispute settlement procedure 2006 agreement commission vice presidentappearances j murdoch senior counsel m davy lloyd counsel australian taxation office hearing detail 2008 brisbane august 28 1 2008 airc 507printed authority commonwealth government printer price code pr983005

Blundstone Australia Pty Ltd T_A Blundstone Australia Pty Ltd [2023] FWCA 2944 (13 September 2023).txt

blundstone australia pty ltd blundstone australia pty ltd 2023 fwca 2944 13 september 2023 last updated 13 september 2023 2023 fwca 2944fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementblundstone australia pty ltd blundstone australia pty ltd ag2023 3036 blundstone australia pty ltd melbourne site construction forestry maritime mining energy union manufacturing division enterprise agreement 2023clothing industrycommissioner connollymelbourne 13 september 2023application approval blundstone australia pty ltd melbourne site construction forestry maritime mining energy union manufacturing division enterprise agreement 2023 1 application made approval enterprise agreement known theblundstone australia pty ltd melbourne site construction forestry maritime mining energy union manufacturing division enterprise agreement 2023 agreement pursuant tos 185of thefair work act 2009 act blundstone australia pty ltd blundstone australia pty ltd applicant agreement single enterprise agreement 1 matter allocated chamber 7 september 2023 2 thenotification timefor agreement unders 173 2 24 april 2023 agreement made 18 august 2023 accordingly thegenuine agreementrequirements agreement assessed applying 6 june 2023 thebetter overall test boot applying 6 june 2023 1 3 construction forestry maritime mining energy union bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 act note agreement cover organisation 4 satisfied requirement ofss 186 187 188 190 193and193aof act relevant application approval met 5 agreement approved accordance withs 54of act operate 7 day date approval agreement nominal expiry date 30 june 2025 commissioner 1 thefair work legislation amendment secure job better pay act 2022 cth made number change enterprise agreement approval process inpart 2 4of thefair work act change broadly commenced operation 6 june 2023 subject various transitional arrangement included effect described printed authority commonwealth government printer ae521479 pr766159

COMMISSIONER OF STATE REVENUE -v- WESTNET RAIL HOLDINGS NO 1 PTY LTD [2013] WASCA 110 (26 April 2013).txt

commissioner state revenue v westnet rail holding 1 pty ltd 2013 wasca 110 26 april 2013 last updated 26 april 2013jurisdiction supreme court western australiatitle court court appeal wa citation commissioner state revenue v westnet rail holding 1 pty ltd 2013 wasca 110coram mclure ppullin janewnes jaheard 7 november 2012delivered 26 april 2013file cacv 22 2012between commissioner state revenueappellantandwestnet rail holding 1 pty ltdfirst respondentwestnet wa rail pty ltdsecond respondenton appeal jurisdiction state administrative tribunal western australiacoram justice j chaney president citation westnet rail holding 1 pty ltd commissioner state revenue 2012 wasat 45file cc 1605 2010catchwords tax duty stamp duty meaning land 76 1 ands 76ap 2 thestamp act 1921 wa whether right granted rail corridor minister corporation underrail freight system act 2000 wa use occupy rail corridor land railway infrastructure land unders 76 1 thestamp act whether minister power unders 42 1 therail freight system actto dispose interest corridor land includes granting contractual right relation corridor land relationship minister power unders 42 1 42 1 c ands 42 4 therail freight system act whether definition land estate in 5of theinterpretation act 1984 wa applicable whether railway track infrastructure fixed land purpose ofs 76 1 thestamp actlegislation acquisition land act 1967 qld act interpretation act 1931 ta government railway act 1904 wa 2 61interpretation act 1984 wa 3 5mining act 1904 wa property law act 1969 wa 7public transport authority act 2003 wa 13rail freight system act 2000 wa 3 4 5 6 7 8 11 12 13 14 16 22 23 24 31 32 34 35 36 42 43 44 47 48 58stamp act 1921 wa 76 1 b 76ap 2 result appeal dismissedcategory arepresentation counsel appellant mr r mitchell sc mr j wrightfirst respondent mr c l zelestis qc mr j davissecond respondent mr c l zelestis qc mr j davissolicitors appellant state solicitor western australiafirst respondent herbert smith freehillssecond respondent herbert smith freehillscase referred judgment alcan nt alumina pty ltd v commissioner territory revenue northern territory 2009 hca 41 2009 239 clr 27bacon v dea 1990 fca 406 1989 25 fcr 495epic energy pilbara pipeline pty ltd v commissioner state revenue 2011 wasca 228hancock prospecting pty ltd v wright prospecting pty ltd 2012 wasca 216henty house pty ltd v federal commissioner taxation 1953 hca 54 1953 88 clr 141hornsby council v road traffic authority nsw 1997 41 nswlr 151marshall v smith 1907 hca 33 1907 4 clr 1617mullane v mullane 1983 hca 4 1983 158 clr 436national provincial bank ltd v ainsworth 1965 ukhl 1 1965 ac 1175radaich v smith 1959 hca 45 1959 101 clr 209sorrento medical service pty ltd v chief executive department main road 2007 qca 73 2007 2 qd r 373stow v mineral holding australia pty ltd 1979 hca 30 1979 180 clr 295the queen v toohey ex parte meneling station pty ltd 1982 hca 69 1982 158 clr 327the state western australia v ward 2002 hca 28 2002 213 clr 1westnet rail holding 1 pty ltd commissioner state revenue 2012 wasat 45yanner v eaton 1999 hca 53 1999 201 clr 3511mclure p appeal concern application landholder provision inpt iiibaof thestamp act 1921 wa transfer share first respondent westnet rail holding 1 pty ltd westnet second respondent westnet wa rail pty ltd wwr part iiibaprovides imposition stamp duty sale share company landholder owns land western australia unencumbered value le 1 million represents 60 value property entitled 2 transaction issue connected disposal rail freight business western australian government railway commission commission thing associated business 3 material time railway network western australia comprised 3 800 km narrow gauge rail narrow gauge network 1 500 km standard gauge standard gauge network 27 october 2000 narrow gauge network standard gauge network railway related asset vested minister western australian government railway wagr constituted body corporate thegovernment railway act 1904 wa wagr act administration wagr act material time vested commission 4 8 june 2000 therail freight system act 2000 wa rf act came effect principal purpose provide disposal commission rail freight business identification railway land corridor 5 32 rf act rail corridor minister constituted body corporate 34 rf act different legal entity minister responsible administration rf act defined 31 act minister could order published government gazette designate land part government railway within 2 wagr act land used control commission corridor land 6 27 october 2000 act minister published order 34 rf act entitled rail freight system corridor land order 2000 corridor land designation order narrow gauge network standard gauge network land included within order corridor land 7 30 october 2000 act minister commission state treasurer another entered agreement awr holding wa pty ltd australian western railroad pty ltd purchaser westnet standard gauge pty ltd westnet sg westnet narrow gauge pty ltd westnet ng network lessee others sale certain asset assumption certain liability business carrying good rail road conducted commission wagr act business sale agreement bsa 8 contemporaneously business sale agreement rail corridor minister commission state treasurer entered two land use agreement rail freight corridor land use agreement narrow gauge railway infrastructure lease narrow gauge agreement inter alia westnet ng rail freight corridor land use agreement standard gauge railway infrastructure lease standard gauge agreement inter alia westnet sg 9 business sale agreement act minister commission agreed sell certain goodwill plant equipment property agree sell otherwise deal corridor land leased railway infrastructure defined land use agreement however completion business sale agreement conditional execution land use agreement substantially form annexed business sale agreement 10 land use agreement rail corridor minister granted respective network lessee right use occupy corridor land period 49 year completion business sale agreement commission rail corridor minister also granted respective network lessee lease leased railway infrastructure 11 party agreed neither land use agreement conferred network lessee person right exclusive possession corridor land part create lease common law corridor land 12 leased railway infrastructure included among thing railway track ballast sleeper track infrastructure track infrastructure substantially located corridor land 13 westnet formerly australian railway group pty ltd parent company westnet ng westnet sg holder share issued capital westnet sold share wwr formerly babcock brown wa rail pty ltd pursuant share sale agreement dated 14 february 2006 share sale agreement 14 30 august 2010 commissioner state revenue revenue commissioner disallowed objection dated 1 march 2010 westnet wwr duty assessment notice sum 71 345 520 assessment relating transaction subject share sale agreement respondent applied state administrative tribunal tribunal review revenue commissioner decision tribunal concluded decision disallow objection set aside 15 three component property westnet sg westnet ng wholly owned subsidiary westnet constituted land westnet landholder pt iiiba three component agreed value 1 right westnet sg westnet ng land use agreement use corridor land value 200 000 000 2 part leased railway infrastructure leased westnet sg westnet ng land use agreement constituted track infrastructure value 458 333 000 3 balance leased railway infrastructure leased westnet sg westnet ng land use agreement constitute track infrastructure value 263 425 000 16 accepted party whether network lessee proprietary interest corridor land depended upon proper construction land use agreement rf act relevant factual context contractual construction exercise 17 appellant claimed appeal network lessee proprietary interest corridor land land use agreement two alternative base first basis involves following three step first proposition 1 land use agreement entered exercise statutory authority rf act 2 rf act authorise rail corridor minister grant merely contractual right use occupy corridor land available power one dispose interest land 3 statutory background right land use agreement relation corridor land corridor land right construed proprietary interest corridor land 18 appellant accepts statutory context ignored land use agreement would proper construction give rise contractual licence corridor land 19 appellant second alternative basis even land use agreement give rise contractual licence corridor land right estate relation land within extended definition in 5of theinterpretation act 1984 wa second proposition 20 finally appellant contends corridor land right land basis one two leased railway infrastructure fixed land manner falling within definition land in 76 1 b thestamp act third proposition 21 purpose step 2 appellant first proposition party tribunal agreed relevant issue whether 42 rf act empowered rail corridor minister grant contractual licence corridor land 60 tribunal held 1 42 1 concerned disposal proprietary interest land 67 2 open rail corridor minister utilising power 42 1 c 42 4 rf act grant right respect corridor land falling short proprietary interest 69 73 3 land use agreement gave rise contractual licence corridor land 88 tribunal consider appellant second third proposition 22 respondent seek uphold tribunal decision additional basis statutory expression dispose 42 1 wide meaning includes conferral contractual licence corridor land also contend track infrastructure fixed land purpose definition land in 76 1 b thestamp act 23 appeal party maintained position 42 rf act sole source power dispose right interest corridor land necessary set legislative scheme detail statutory scheme rf act andinterpretation act24 concerned rf act stood 30 october 2000 act objective identified provide disposal rail freight business commission thing associated business assignment thing give effect disposal identification railway land corridor creation state agency body corporate manage 25 expression commission rail freight business defined 3 mean business operation commission involved carriage freight rail provision maintenance facility operation railway carriage freight includes carriage freight road activity commission business operation involve 26 term corridor land mean land designated corridor land pt 3 3 27 reference act land thing belonging state includes reference land thing held wagr commission state agency 4 28 section 5 explains reference disposal thing belonging state includes provides purpose act requiring land thing belonging state conveyed different holder way would still belong state regarded disposing accordingly power dispose land thing belonging state includes power give holder land thing requirement kind 29 definition exhaustive relevantly power dispose land thing belonging state includes power give holder land thing requirement would still belong state substance land thing belonging state may disposed even state retains ownership title land thing 30 section 7 alters common law fixture provides read 6 anything placed buried land interest capable disposed part 2 corridor land part land regardless whether nature fixture b capable assigned separately land c capable removed land authority owner thing 31 section 8 featured prominently construction argument relevantly provides 1 anything part government railway disposed part 2 cease part government railway right occupy posse pass 2 land becomes corridor land anything part government railway land thing cease part government railway upon land becoming corridor land unless minister order otherwise subsection 3 3 land becomes corridor land minister may writing order anything described order land cease part government railway land becoming corridor land 4 6 7 despite subsection 1 2 section 62 wagr act applies leasing corridor land 32 construction issue whether corridor land remain government railway 8 1 applies answer exception 8 2 confined scope power 8 3 relates thing corridor land 33 part 2 rf act 11 30 headed disposal related matter section 11 12 13 central construction exercise rf act separately empowers act minister rail corridor minister material time minister transport act minister rail corridor minister 34 section 11 relevantly provides 1 act minister may prepare submit treasurer proposal dispose commission rail freight business anything associated business whole part 2 power given subsection 1 extends commission rail freight business included earlier proposal subsection whether established earlier proposal made b anything associated business power extends c anything associated business disposed accordance earlier proposal subsection 3 power given subsection 1 limited thing belonging state 35 text 11 3 suggests power sub 1 extend land however broader context particular 12 13 2 35 unequivocally negative suggestion 36 section 12 relevantly provides 1 proposal dispose land cannot approved treasurer corridor land order published thegazetteunder part 3 2 proposal dispose land corridor land cannot approved interest disposed greater leasehold interest 37 section 12 source power dispose land limitation scope exercise power moreover 12 imposes limitation scope power proposal dispose standard gauge corridor land person approved person satisfies condition 12 3 c broad term person main business must operation railway person must involved providing train service defined 38 proposal dispose standard gauge corridor land nominated point network must ensure specified improvement railway track land 12 6 12 7 39 section 13 rf act provides 1 minister may enter agreement behalf state give effect proposal section 11 approved treasurer 2 agreement disposal person standard gauge corridor land defined section 12 contain provision ensure holding land person continues person respect approval could given section 12 3 subsection called eligible company b person holding land person successor assignee holding land continues eligible company 40 agreement 13 may deal inter alia anything necessary associated operation railway carriage freight 14 must include agreement disposal corridor land non corridor land thing 41 section 11 14 together provide source extent act minister power take first step towards disposal property land thing relevantly connected commission rail freight business first step entry agreement 13 42 nature extent act minister disposal power gleaned largely implication unsatisfactory work given contrast thepublic transport authority act 2003 wa 13 regard nature wide variety property encompassed within commission rail freight business statutory intent must disposal power pt 2 rf act wide flexible operation 43 function commission detailed 16 commission power enter agreement order provide commission person access anything disposed rf act sharing facility joint use service enable commission effectively perform function wagr act enable another party agreement effectively operate freight service agreement contemplates 16 2 c 44 division 2 pt 2 rf act deal part second step disposal process assignment necessary give effect agreement 13 23 act minister given power make transfer order relation asset liability defined 22 term asset widely defined include type property including non corridor land choses action transfer order 23 consequence provided 24 however 23 24 application corridor land power give effect disposal corridor land subject 13 agreement pt 3 rf act45 part 3 rf act 31 57 deal railway corridor expression government railway land defined 31 mean land part government railway defined 2 wagr act includes land belonging majesty upon railway constructed land used control commission 46 34 act minister may order published gazette designate government railway land identified order corridor land land corridor land thus land included 11 proposal must designated either corridor land non corridor land infer government railway land cease becoming corridor land see 8 2 land cease vested wagr remains state ownership 47 purpose assisting act minister prepare proposal 11 includes proposal dispose land commission give act minister description land sufficient identify 35 1 land land respect corridor land order published gazette pt 3 act minister order published gazette designate land corridor land land corridor land 35 2 thus 35 2 enlarges power act minister designate land corridor land land corridor land criterion exercise power proposal 11 dispose land even government railway land 48 section 36 provides state make land government railway land available corridor land rail corridor minister may order published gazette designate land corridor land section 36 would apply circumstance act minister course preparing proposal 11 includes proposal dispose land 49 division 3 pt 3 headed dealing corridor land thing section 42 rf act relevantly provides 1 rail corridor minister may purpose facilitating use corridor land carriage freight rail purpose compatible use dispose interest corridor land greater leasehold interest term term capable 50 year b c generally manage anything else relation corridor land 3 power given subsection 1 apply land thing belonging state even held rail corridor minister 4 without limiting else rail corridor minister may rail corridor minister may relation former government railway land anything associated provision rail freight service part government railway purpose thegovernment railway act 1904 anything act minister commission could done land become corridor land 50 section 43 provides rail corridor minister perform function given act may necessary fulfil state obligation agreement section 13 51 section 42 primary source rail corridor minister function power referred 43 rail corridor minister also power anything necessary incidental performance function 32 3 section 43 establishes beyond question disposal corridor land subject 13 agreement power implement agreement second step disposal process pt 3 rf act section 42 also apply corridor land part 13 agreement clear text structure 42 limitation 42 1 apply power 42 1 c 52 also significant 44 supplement 43 provides commission person holding anything disposed anything interest disposed part rail corridor minister convey rail corridor minister disposed 53 division 4 pt 3 rf act deal regulatory matter relating corridor land person construct anything corridor land unless rail corridor minister agreed writing regulation state rail corridor minister agreement required 47 1 54 section 48 detail restriction corridor land include corridor land used way inconsistent anything done land accordance right conferred rail corridor minister pt 3 48 2 55 58 1 agreement 13 instrument person hold interest corridor land may provide civil penalty respect breach agreement instrument 56 term land defined rf act definition theinterpretation actmust apply 3 land relevantly defined in 5of theinterpretation actto include estate interest easement servitude right land estate relation land includes legal equitable estate interest easement right title claim demand charge lien encumbrance respect land land use agreements57 land use agreement relevantly term reference minister rail corridor minister clause 2 grant network lessee certain right relation corridor land lease leased railway infrastructure clause relevantly provides 2 1 minister grant network lessee network lessee accepts right use occupy corridor land term term condition agreement 2 2 extent minister power reason native title provide right use contemplated clause 2 1 commission grant network lessee lease part corridor land affected native title term condition agreement 2 3 commission minister grant network lessee lease leased railway infrastructure term condition agreement term 2 4 minister commission reserve right respect corridor land railway infrastructure set agreement 58 clause 5 provides agreement continue term 49 year commencement date 59 agreement party tribunal proceeded assumption right conferred land use agreement granted cl 2 1 cl 2 2 60 clause 4 identifies right responsibility network lessee relevantly provides 4 1 agreement confers network lessee subject country passenger access agreement clause 8 5 9 10 12 14 2 23 access agreement passenger train right exclusion state commission person use corridor land leased railway infrastructure permitted us approved additional us 4 3 except extent clause 2 2 applies agreement intended create proprietary interest favour network lessee corridor land right network lessee respect corridor land intended contractual 61 permitted use defined mean use corridor land leased railway infrastructure incidental operation railway non exhaustive list matter provided approved additional us approved minister cl 8 6 62 network lessee right respect corridor land subject existing third party interest cl 4 10 third party interest described schedule 3 include property right listed schedule 13 bsa agreed given purchaser corridor land bsa 63 reference freight terminal staff house form part asset sold purchaser bsa clause 16 bsa contemplated relevant land would free holded transferred purchaser time freehold title transferred lease granted cl 16 4 minister cl 16 2 granted purchaser licence occupy freight terminal staff house exclusion commission 64 cl 8 1 land use agreement network lessee agrees use corridor land leased railway infrastructure permitted use approved additional use cl 8 2 minister commission agree state use corridor land leased railway infrastructure permitted use approved additional use except permitted country passenger access agreement cl 8 5 9 10 12 14 2 23 access agreement passenger train 65 clause 8 4 entitles network lessee grant third party right use occupy corridor land leased railway infrastructure permitted use approved additional use provided inter alia network lessee provide greater interest third party corridor land leased railway infrastructure agreement 66 clause 8 11 permit minister create interest land right use corridor land use permitted use provided interest right inconsistent extinguish defeat remove unreasonably interfere right network lessee use corridor land leased railway infrastructure permitted use approved additional use 67 turn specific provision referred cl 4 1 cl 8 2 clause 8 5 enables minister commission upon request network lessee grant right third party use occupy part corridor land permitted use approved additional use 68 clause 9 enables minister build structure corridor land install maintain service along across corridor land upgrade replace construct railway infrastructure 69 clause 10 provides payment compensation network lessee construction work unreasonably interfere network lessee use corridor land leased railway infrastructure permitted use approved additional use 70 clause 12 permit minister relocate railway line recognises minister power 36 rf act designate land new line situated corridor land event term land use agreement apply land new line constructed cease apply land old line constructed 71 clause 14 2 enables minister enter upon corridor land exercise certain right power without notice emergency otherwise upon five day prior written notice clause 23 default termination clause 72 bsa land use agreement part package noted earlier land use agreement annexure bsa completion bsa conditional execution however bsa 13 agreement giving effect approved proposal dispose corridor land leased railway infrastructure freight terminal staff house referred schedule 3 land use agreement cl 16 bsa part corridor land virtue 7 rf act 73 whether rail corridor minister entry land use agreement pursuant 43 rf act clear enough exercising 42 function effect disposal land use agreement appellant first proposition scope disposal power 4274 one significant qualification appellant accepts rail corridor minister power confer contractual licence corridor land 42 1 c rf act qualification power confer contractual licence corridor land associated 13 agreement giving effect approved proposal dispose commission rail freight business 75 appellant also contends rail corridor minister power dispose interest corridor land 42 1 necessarily sui generis statutory power rail corridor minister owner land disposal interest corridor land 42 1 interest kind known general law 76 persuaded correctness proposition unless 44 applies rail corridor minister virtue 42 43 power authority behalf owner relevant property state dispose interest general law view includes authority grant general law lease corridor land subject qualification 42 1 77 general law mere contractual licence contrast licence coupled grant give rise create proprietary interest land subject licence accordingly bind third party example owner land subject contractual licence sell lease land third party new owner lessee land take free right contractual licensee relevant property owned contractual licensee contractual chose action benefit burden assigned 78 turn meaning expression dispose feature prominently throughout rf act dispose natural ordinary meaning alienate pas another get rid mean including sale transfer assignment gift novation otherwise clearly primary meaning used connection legislative objective disposal commission rail freight business 79 however unequivocally clear particular 5 12 2 42 1 dispose also includes thecreationof interest property involves state remaining owner 80 statutory maximum extent interest corridor land leasehold interest term 50 year central issue whether legislative intention requiring disposal 42 1 proprietary interest corridor land statutory minimum 81 expression dispose wide enough include creation right respect property including contractual right however would include contractual right limited purpose example repair maintenance work unnecessary identify minimum scope determination appeal view land use agreement effected disposal non proprietary contractual right corridor land 82 appellant contends term expression rf act sit comfortably notion conferral non proprietary contractual right disposal interest particular reliance placed word interest expression interest corridor land leasehold interest 42 1 ii word interest expression interest disposed greater leasehold interest 12 2 iii word conveyed 5 convey 44 iv expression holder land 5 12 6 holding land 13 2 v expression interest corridor land 42 1 49 1 58 1 83 accepted language question ordinarily used context land proprietary interest land mullane v mullane 1983 hca 4 1983 158 clr 436 445 however term convey holder also used rf act apply myriad form property included commission rail freight business example commission holder contractual access right contract novated bsa 84 approach rf act use one size fit language cover type property including mere contractual right clearest example 5 language intended used technical sense central issue whether word interest interest relation land used technical sense 85 technical meaning interest land property right land estate inevitably meaning interest familiar compound statutory expression estate interest land absence reference estate 42 1 12 2 term interest wider non technical meaning balance satisfied rf act interest corridor land used non technical sense include contractual well property right relation land 86 non technical meaning interest consistent purpose rf act manifest intention statute disposal corridor land fixed term distinct terminable notice full right title interest land reverts state expiration 50 year intention would defeated contractual licence fixed term disposal land 12 disposal interest land 42 1 previously noted limitation 42 1 apply exercise rail corridor minister power 42 1 c rf act moreover 12 1 apply grant contractual licence restriction 12 3 9 would avoided 87 state contends obviously unintended outcome avoided denying act minister rail corridor minister power authority enter contractual licence corridor land least connection proposal pt 2 rf act outcome would constitute unjustified undesirable restriction scope pt 2 disposal power previously noted intended wide flexible operation linked power pt 3 88 indeed 8 1 rf act expressly recognises conferral right occupy posse land constitute disposal thus disposal right falling short proprietary interest relation non corridor land within act minister power pt 2 rf act act minister also power pt 2 enter agreement 13 disposal right relation corridor land made unequivocally clear 43 restriction minimum maximum scope disposal power relation land designated non corridor land 12 pt 3 act imposition maximum limit scope disposal power relation corridor land justify imposition minimum requirement proprietary interest evident case law radaich v smith 1959 hca 45 1959 101 clr 209 significant grey area involving fine judgment call whether instrument creates lease licence right exclusive possession hallmark lease 89 moreover disposal proprietary interest necessary meet express purpose power 42 1 facilitate use corridor land carriage freight rail compatible purpose hand confine disposal land 12 1 disposal proprietary interest land would avoid important restriction 12 13 2 90 indication disposal interest land includes contractual right corridor land fact rf act contemplates multiple user corridor land 48 2 11 2 c 91 obviously unintended outcome referred state avoided construing general power 42 1 c 42 4 subject specific power 42 1 42 1 cover field relation disposal within scope accordingly 42 1 sole source power dispose interest corridor land contractual proprietary appellant first proposition must fail 92 reason would dismiss ground appeal 1 2 2 b 2 c uphold respondent notice contention 1 appellant alternative basis interpretation act93 alternative basis accepts land use agreement give rise contractual licence corridor land 94 term land defined inpt iiibaof thestamp act 76to include relevantly estate interest land previously noted 5of theinterpretation actdefines estate relation land include legal equitable estate interest easement right title claim demand charge lien encumbrance respect land 95 appellant contends contractual licensee right land use agreement right respect land suggested land use agreement claim demand term consistent common law dower encompassed wife right relation land owned alienated husband lifetime constituted proprietary interest marshall v smith 1907 hca 33 1907 4 clr 1617 96 inhancock prospecting pty ltd v wright prospecting pty ltd 2012 wasca 216 court considered whether temporary reserve themining act 1904 wa estate interest land reliance placed extended definition in 7of theproperty law act 1969 wa pla defines land include easement right privilege benefit derived land court said word right privilege benefit definition land pla read ejusdem generis word easement easement interest land common law classically defined privilege without profit easement profit prendre also interest land commonly described right another person land right way right light right water right dig gravel cut turf take game fish harpum bridge dixon megarry wade law real property 2008 27 001 expression right privilege benefit in 7of pla construed narrowly cover myriad right give rise interest land common law narrow construction consistent approach similar legislation new south wale hornsby council v road traffic authority nsw 1997 41 nswlr 151 155 england lewisham borough council v maloney 1948 1 kb 50 57 58 shiloh spinner ltd v harding 1973 ac 691 720 see also cv davidge equitable easement 1937 53law quarterly review259 263 70 71 97 appellant distinguisheshancockon ground first definition theinterpretation actis materially different definition pla second definition applied word land pla thirdly expected definition land pla would confined proprietary interest 98 appellant sought support construction reference three case stow v mineral holding australia pty ltd 1979 hca 30 1979 180 clr 295 hornsby council v road traffic authority nsw 1997 41 nswlr 151 andsorrento medical service pty ltd v chief executive department main road 2007 qca 73 2007 2 qd r 373 99 high court instowconsidered meaning estate theacts interpretation act 1931 ta term western australian definition aickin j said word right definition mean individual right proprietary nature think word demand context extended meaning opinion ordinary meaning compound expression estate interest land estate interest proprietary nature land would include legal equitable estate interest eg freehold leasehold estate incorporeal interest easement profit prendre interest held person individual capacity 311 100 construction adopted high court inthe queen v toohey ex parte meneling station pty ltd 1982 hca 69 1982 158 clr 327 342 351 reading passage instow consistent narrow approach construction taken inhancock hornsbyis similar effect 101 insorrento medical service majority queensland court appeal held holder car parking right contractual licence entitled claim compensation theacquisition land act 1967 qld right power privilege relation land outcome consistent case construing legislation relating compensation compulsory resumption land interest land seehancock 66 68 102 function statutory definition including theinterpretation act provide aid construing statute proper course read word definition relevant provision construe latter alcan nt alumina pty ltd v commissioner territory revenue northern territory 2009 hca 41 2009 239 clr 27 epic energy pilbara pipeline pty ltd v commissioner state revenue 2011 wasca 228 42 meaning definition theinterpretation actdraw content context statute inserted 103 theinterpretation actdefinition estate incorporated forming part definition land in 76of thestamp act construed context ofs 76ap 2 thestamp act section 76ap 2 relevantly provides 2 corporation land holder purpose division time relevant acquisition entitled land situated western australia unencumbered value land le 1 000 000 entitled land situated western australia co owner freehold lesser estate land value whole freehold lesser estate le 1 000 000 b value land corporation entitled whether situated western australia elsewhere 60 value property entitled property directed excluded subsection 3 104 language ofs 76ap 2 including land holder land corporeal sense freehold lesser estate strongly point land property right land context demand word estate defined narrowly construed require right proprietary character would dismiss ground 2 whether leased railway infrastructure fixed land105 issue arise determination party accept thing fixed land fixed land relevant corporation beneficially entitled epic energy however deal sake completeness issue dispute relates track infrastructure 106 material time 76 1 thestamp actrelevantly provided land included b anything fixed land including anything purport subject ownership separate ownership land 107 meaning word fixed directly issue inepic energy party agreeing expression anything fixed land confined thing would constitute fixture general law 108 tribunal finding relating track infrastructure include relevantly f astenings component used interface sleeper rail collectively called jewellery component include bolt joint bar clip device keep rail secure sleeper held place ballast friction applied due weight rail weight weight train bottom sleeper due ballast friction side end sleeper ballast sits top capping ie sub ballast turn sits top earthwork sharp edge crushed rock ballast penetrate surface sleeper stop moving steel sleeper shape sleeper inverted u ballast void stop sleeper moving 116 117 109 tribunal concluded track infrastructure attached land weight albeit ballast fixing rail sleeper provides firm connection infrastructure land 133 110 tribunal found track infrastructure fixture common law 136 although appellant challenge finding critical outcome case 111 ordinary meaning fixed mean attached placed immovable carry notion continuity permanence distinct temporary short term function purpose ofs 76ap 2 focus nature extent physical connection thing relevant land 112 track infrastructure comprises ballast sleeper rail rail sleeper fastened however together constitute railway line virtue combined weight constituent part immovable remain life railway line indefinite period must immovable land placed order suitable intended function purpose safely carry freight passenger train track infrastructure fixed purpose ofs 76ap 2 notwithstanding fact minister network lessee power move necessary would uphold ground 2 e conclusion113 appeal dismissed 114pullin newnes jja appeal concern duty assessment notice issued appellant required respondent pay stamp duty approximately 71 million respondent objected assessment appellant disallowed objection 115 respondent applied state administrative tribunal tribunal seeking review appellant decision tribunal reviewed decision ordered appellant decision set aside respondent objection upheld tribunal made order directing appellant issue nil duty assessment refund duty paid 116 appeal appellant tribunal decision assessment relation share sale agreement117 assessment duty made relation share sale agreement whereby owner share agreed transfer share first respondent second respondent 118 assessment made unders 76ap 2 ofpt iiibaof thestamp act 1921 wa stamp act read corporation land holder purpose division time relevant acquisition entitled land situated western australia unencumbered value land le 1 000 000 entitled land situated western australia co owner freehold lesser estate land value whole freehold lesser estate le 1 000 000 b value land corporation entitled whether situated western australia elsewhere 60 value property entitled property directed excluded subsection 3 commissioner determines paragraph b would applied corporation time relevant acquisition transaction series transaction commissioner opinion purpose one purpose defeat object division assessment depended upon first respondent landholder119 whether stamp duty payable depends whether first respondent entitled land purpose 76ap 2 120 purpose proceeding party identified agreed property first respondent relevantly entitled agreed value party dispute three component property three component land within meaning 76ap 2 duty payable one three component land value land le 60 value property first respondent entitled duty payable value property component dispute121 tribunal inwestnet rail holding 1 pty ltd commissioner state revenue 2012 wasat 45said property westnet entitled date acquisition party agree total value relevant property 1 479 791 427 448 221 427 total value relates property land 109 812 000 total value relates land andthe remainder total value property westnet entitled namely 921 758 000 split three component party disagree whether component constituted land purpose 76 1 three component question agreed value right westnet sg westnet ng wholly owned subsidiary westnet land use agreement use corridor land agreed value 200 000 000 part leased railway infrastructure leased westnet sg westnet ng land use agreement constituted track infrastructure defined para 2 4 e statement agreed fact issue document agreed value 458 333 000 andthe balance leased railway infrastructure leased westnet sg westnet ng land use agreement ie constitute track infrastructure agreed value 263 425 000 light 60 requirement 76ap 2 agreed value described found three component constituted land westnet entitled westnet land holder applicant liable assessed stamp duty word found one three component constitute land westnet entitled assessed stamp duty payable much common ground 11 14 background government decision privatise rail freight system122 late 1800s narrow gauge railway constructed western australia 1960s standard gauge railway also constructed 2000 narrow gauge network standard gauge network railway related asset vested minister state body corporate railway became part narrow gauge network standard gauge network upon declared notice government gazette thegovernment railway act 1904 wa gr act gr act government railway included land railway constructed vested minister body corporate gr act provided commission management maintenance control government railway effect vesting government railway land converted crown radical title full dominion land state western australia v ward 2002 hca 28 2002 213 clr 1 384 administration gr act vested commission 123 2000 government decided privatise railway freight system via therail freight system act 2000 wa rail freight system act 2000 wa rf act 124 8 june 2000 rf act came effect 125 rf act preamble stated act provide disposal rail freight business commission thing associated business assignment thing give effect disposal andthe identification railway land corridor creation state agency manage 126 relevant provision rf act set tribunal reason president reason 127 evident rf act provision various minister instrumentality involved effecting transfer creation property right private owner two minister played important role minister responsible administration rf act act minister rail corridor minister rail corridor minister minister appointed 32 1 rf act governor minister body corporate named rail corridor minister perpetual succession common seal commission various relevant official also function perform facilitate privatisation process 128 broad term rf act contemplated process whereby act minister prepare submit treasurer proposal dispose commission rail freight business anything associated business whole part 11 1 treasurer authorised approve disposal land corridor land order published government gazette pt 3 rf act 12 1 proposal dispose land corridor land could approved treasurer interest disposed greater leasehold interest 12 2 proposal approved treasurer act minister authorised enter agreement behalf state give effect proposal 13 1 129 part 3 rf act related railway corridor part act minister authorised order notice published government gazette designate government railway land identified order corridor land land corridor land 34 130 division 3 pt 3 rf act concerned dealing corridor land thing corridor land function stated 42 1 rail corridor minister authorised purpose facilitating use corridor land carriage freight rail purpose compatible use dispose interest corridor land 42 1 manage anything else relation corridor land 42 1 c without limiting else rail corridor minister may anything act minister commission could done land become corridor land 42 4 section 42 set president reason power perform function 42 conferred 43 step taken privatise131 27 october 2000 rail corridor minister published order 34 rf act identified government railway land consisting narrow gauge network standard gauge network corridor land 132 30 october 2000 act minister party entered agreement private company including first respondent sale asset assumption liability relating business carrying good rail road conducted commission gr act relevant private company called network lessee agreement called business sale agreement business sale agreement involved sale goodwill plant equipment property 133 business sale agreement involve agreement sell otherwise deal corridor land leased railway infrastructure defined land use agreement referred next paragraph however upon completion hon murray criddle act minister rail corridor minister agreed deliver purchaser land use agreement cl 4 2 vi 134 also 30 october 2000 rail corridor minister others entered two land use agreement subsidiary first respondent first land use agreement relating narrow gauge network land use agreement relating standard gauge network 135 land use agreement contained following important clause 136 clause 2 1 read rail corridor minister grant network lessee network lessee accepts right use occupy corridor land 49 year term condition agreement 137 clause 4 1 read agreement confers network lessee right exclusion state commission person use corridor land leased railway infrastructure permitted us approved additional us 138 clause 4 3 read agreement intended create proprietary interest favour network lessee corridor land right network lessee respect corridor land intended contractual 139 view cl 4 3 little surprising appellant submits land use agreement created proprietary interest favour subsidiary right respect corridor land merely contractual right however appellant submission 140 clause land use agreement made clear minister authorised build structure corridor land structure corridor land install maintain service along across otherwise corridor land construct new railway infrastructure corridor land allow others interference network lessee use land provision payment compensation agreement land use agreement leases141 party agreed court neither land use agreement conferred network lessee person right exclusive possession corridor land part create lease common law corridor land party similarly agreed term tribunal see tribunal reason 50 142 proprietary interest created land use agreement doubt subject argument appellant effect theinterpretation act 1984 wa right network lessee use corridor land land mean first three component dispute land appeal must fail 143 appellant appeal rightly point land use agreement must construed context rf act effect appellant argues rf act authorise rail corridor minister grant contractual licence use corridor land right granted land use agreement suigeneris proprietary right notwithstanding cl 4 3 land use agreement appellant submission tribunal concerning corridor land144 appellant submitted tribunal network lessee proprietary interest corridor land result land use agreement see 89 90 145 party tribunal agreed issue whether 42 rf act authorised rail corridor minister grant contractual licence corridor land contractual licence le proprietary interest land see 60 61 tribunal decision regarding corridor land146 tribunal decided 42 1 concerned disposal interest land sense expression usually understood disposal proprietary interest 42 1 c 42 4 rf act conferred power grant contractual right opposed proprietary right corridor land explained tribunal 67 74 read follows applicant argue 42 1 empowers minister dispose right fall short propriety sic interest argue word interest capable broad meaning refer tocommissioner stamp duty q v livingston 1964 ukpchca 2 1964 112 clr 12at 22 andgartside v inland revenue commissioner 1967 ukhl 6 1968 ac 553at 617 referred joint judgment incpt custodian pty ltd v commissioner state revenue vic 2005 hca 53 2005 224 clr 98at 31 view however case assist properly construing 42 1 rf act view 42 1 concerned disposal interest land sense expression usually understood disposal propriety sic interest see examplemullane v mullane 1983 hca 4 1983 158 clr 436at 445 applicant contend broader construction 42 1 better serf attainment main purpose rf act namely disposal state rail freight business submit achievement purpose necessarily require disposal propriety sic interest corridor land furthermore note 8 1 rf act contemplates disposal thing part government railway thus necessarily including thing land therefore argue use word dispose 42 1 limited disposal interest land normal sense expression accept purpose rf act necessarily require disposal interest land view however necessary flexibility achieved 42 1 c particular open minister utilising power conferred paragraph grant right respect corridor land falling short interest corridor land respondent submits reference anything else found 42 1 c mean anything done 42 1 42 1 b argues circumstance 42 1 confers specific power dispose interest corridor land subject specific limitation e interest must greater leasehold interest longer 50 year 42 1 b confers specific power dispose interest thing corridor land general power 42 1 c must necessary implication read circumvent deal subject matter 42 1 42 1 b support argument respondent refers toleon fink holding pty ltd v australian film commission 1979 141 clr 672at 678 mason j barwick cj aickin j agreed observed statute confers general power subject limitation qualification special power subject limitation qualification general power cannot exercised subject special power limitation respondent refers limitation prevents grant interest land greater leasehold interest 50 year word 42 1 prescribes maximum interest might granted corridor land reason read 42 1 imposing minimum limit grant right relation corridor land namely right must minimum constitute proprietary interest accept generally managing anything else relation corridor land would open minister grant interest land exceeded limitation contained 42 1 anything else relation corridor land granting purely contractual right respect corridor land view clearly within power conferred 42 1 c way conflict limitation extent interest land might disposed 42 1 basis read 42 1 indeed provision rf act deal touch upon disposal interest land creating requirement disposing rail freight business minister must dispose interest land applicant also contend power grant contractual right corridor land found 42 4 rf act respondent argued 42 4 subject limitation 42 1 c reason limitation maximum interest corridor land limit capacity grant contractual right pursuant 42 1 c limit power minister grant contractual right pursuant 42 4 grant contractual right relation corridor land amount interest land open minister pursuant either 42 1 c 42 4 accordingly answer sub issue 5 2 1 yes appellant ground appeal concerning tribunal decision corridor land147 appellant ground appeal allege error tribunal basis tribunal erred concluding 42 1 c 42 4 authorised rail corridor minister grant contractual licence use occupy corridor land respondent notice contention concerning corridor land148 respondent seek uphold tribunal order contending tribunal erred law holding 42 1 empowered rail corridor minister dispose proprietary interest corridor land respondent contend 42 1 empower rail corridor minister dispose right falling short proprietary interest appropriate deal notice contention turning appellant ground appeal respondent submission support notice contention149 respondent submit tribunal erred rejecting submission made tribunal proper construction rf act 42 1 authorises disposal interest proprietary character see tribunal reason 67 respondent submitted many reason proper construction 42 1 disposal conferral contractual right interest relation corridor land authorised 150 respondent submission run follows section 42 1 assumes interest corridor land leasehold interest may disposed rf act intended proprietary interest land could disposed especially intended novel form statutory interest could disposed expected would expressly stated nature interest spelled b section 42 1 imposes limit maximum interest land may granted respect specify minimum interest may granted c neither verb dispose noun interest necessarily manifest intention refer proprietary interest relation verb dispose expression apt denote either act alienation creation new interest property henty house pty ltd v federal commissioner taxation 1953 hca 54 1953 88 clr 141 156 respondent accept appellant word interest often mean proprietary interest mullane v mullane 1983 hca 4 1983 158 clr 436 445 say word must considered construed particular context appears taking due account text context subject matter purpose relevant act e breadth meaning reference disposal 42 1 appears 8 1 5 f considerable significance fact word interest coupled word estate would colour meaning word interest association give proprietary connotation stow v mineral holding australia pty ltd 1979 hca 30 1979 180 clr 295 311 312 queen v toohey ex parte meneling station pty ltd 1982 hca 69 1982 158 clr 327 342 bacon v dea 1990 fca 406 1989 25 fcr 495 507 g power conferred 42 1 including 42 1 conferred purpose facilitating use corridor land carriage freight rail purpose compatible use necessary dispose proprietary interest order attain purpose contractual licence suffice h even though 42 1 contemplates disposal leasehold interest corridor land confers exclusive possession permitted use us land available lessee confined opening word 42 1 limited nature specified us consistent intention permit conferral exclusive possession proprietary right mean facilitating us disposition notice contention151 may accepted respondent submit word interest wide meaning always signifying proprietary interest however word interest refers coupled word land dispose interest corridor land mean right proprietary nature interest land land property inmullane mason acj wilson brennan deane dawson jj said 445 interest property right proprietary nature mere personal right stow v mineral holding aust pty ltd 1979 hca 30 1977 51 aljr 672 679 r v toohey ex parte meneling stationpty ltd 1982 hca 69 1982 158 clr 327 343 350 351 152 mason j said inmeneling station 345 question phrase estate interest ordinary natural usage proprietary connotation one merely personal right relation land said estate interest land right interest admitted category property right affecting property must definable identifiable third party capable nature assumption third party degree permanence stability national provincial bank ltd v ainsworth 1965 ukhl 1 1965 ac 1175 1247 1248 word property describes relationship owner object reference power owner deal object exclusion others except joint owner yanner v eaton 1999 hca 53 1999 201 clr 351 49 contractual licence attribute qualify described interest land 153 respondent submission significant word interest land used familiar phrase estate interest without merit word estate definite meaning word interest referring interest land referring indicated proprietary interest estate expression interest land well understood law mean interest proprietary nature amounting estate land contractual licence may give rise interest respect land cannot properly described interest land 154 concentration verb dispose help respondent question meaning expression interest corridor land 155 may accepted respondent submit necessary dispose proprietary interest order attain purpose 42 1 power conferred however overcome fact 42 1 confers power dispose interest corridor land contractual licence may suffice attain purpose power conferred contractual licence interest land 156 respondent reference opening word 42 1 assist respondent overcome conclusion 42 1 authorises disposal interest land proprietary nature 157 result respondent notice contention must dismissed tribunal correct conclude 42 1 authorises disposal interest land proprietary nature creation disposal right via contractual licence use corridor land appellant appeal158 appellant submits tribunal erred concluding 42 1 c 42 4 rf act authorised rail corridor minister grant contractual licence section 42 1 c rf act159 appellant submits 42 1 c construed authorising grant contractual licence would allow grant exclusive contractual licence perpetuity relation whole standard gauge narrow gauge network basis neither 12 2 42 1 would engaged wab 12 23 submission must rejected restriction term grant proprietary interest land le 50 year understandable legislature want title corridor land alienated interest disposed period 50 year wanted freehold retained state want proprietary interest assignable greater leasehold interest 160 grant contractual licence give rise need restriction left full freehold title land state reason consider appellant submits state intended 50 year limit term contractual licence seen 42 4 42 1 c make clear intention 42 1 c conjunction 43 authorises grant contractual licence rail corridor minister restriction grant licence 161 appellant also submits contractual licence may granted 42 1 c would circumvent qualification limitation set 12 3 8 see wab 12 13 24 however restriction relate proposal dispose land meaning disposal proprietary interest land none restriction apply contractual licence involve disposal proprietary interest land 162 section 42 1 c authorises rail corridor minister manage land anything else relation corridor land purpose facilitating use corridor land carriage freight rail broad power authorise disposal interest land authorise grant contractual licence 163 quite clear party land use agreement intend dispose proprietary interest corridor land intended contractual licence granted expressly said cl 4 3 agreement 164 tribunal conclusion 42 1 c authorised grant contractual licence 49 year correct appellant ground appeal contending error must dismissed section 42 4 rf act165 tribunal concluded 42 4 also authorised grant contractual licence 74 provision relevantly follows without limiting else rail corridor minister may rail corridor minister may relation former government railway land anything act minister commission could done land become corridor land 166 doubt commission power grant contractual licence parliament intended rail corridor minister could likewise clear commission power grant contractual licence relevant time 61 gr act entitled commission enter agreement grant contractual licence use lease railway land period exceeding 21 year power enter another agreement first agreement came end gr act 61 1 61 2 therefore rail corridor minister power 42 4 rf act grant contractual licence 21 year renew question whether 42 4 limit term contractual licence 21 year 167 42 1 rf act provides rail corridor minister may grant proprietary interest corridor land greater leasehold interest term exceeding 50 year rf act make express provision grant contractual licence use corridor land described power fall within term 42 1 c enables rail corridor minister anything else relation corridor land anything else includes power grant contractual licence without restriction length term 168 contrary submission appellant 42 4 effect limiting power rail corridor minister grant contractual licence 21 year term permitted 61 2 gr act submission would correct power grant contractual licence found 42 4 power grant contractual licence also found 42 1 c 42 4 operate limit scope 42 1 c opening word 42 4 accept word follow limit else rail corridor minister may relation former government railway land obvious purpose 42 4 expand power rail corridor minister limit moreover effect appellant submission accepted would rail corridor minister would entitled grant proprietary interest way leasehold interest term 50 year contractual licence 21 year could never intended parliament 169 however 42 4 authorise rail corridor minister grant contractual licence 49 year term extent tribunal erred appellant submission based theinterpretation act170 aspect appellant submission accepted purpose argument land use agreement gave rise contractual licence corridor land appellant relied upon definition land appears in 5of theinterpretation act appellant submission contractual licensee right land use agreement right respect land estate wab 16 39 must dismissed reason given president whether leased railway infrastructure fixed land171 issue arise determination party accepted thing fixed land fixed land relevant corporation beneficially entitled result172 result tribunal correct conclusion rail corridor minister authorised grant contractual licence use corridor land mean land use agreement create proprietary interest stated intention party cl 4 3 land use agreement create proprietary interest favour network lessee corridor land right network lessee respect corridor land contractual fulfilled result right two subsidiary first respondent land use agreement use corridor land constitute land within meaning 76ap 2 thestamp act consequence value land directly indirectly held first respondent le 60 value property held first respondent tribunal decision setting aside commissioner decision upholding objection determining duty payable correct 173 appeal must dismissed

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1303422 [2014] RRTA 569 (28 July 2014).txt

1303422 2014 rrta 569 28 july 2014 last updated 11 august 20141303422 2014 rrta 569 28 july 2014 decision recordrrt case number 1303422country reference lebanontribunal member ruth cheethamdate 28 july 2014place decision sydneydecision tribunal affirms decision grant applicant protection class xa visa statement made 28 july 2014 4 55pmany reference appearing square bracket indicate information omitted decision pursuant tosection 431 2 themigration act 1958and replaced generic information allow identification applicant relative dependant statement decision reasonsapplication reviewthis application review decision made delegate minister immigration refuse grant applicant protection class xa visa unders 65of themigration act 1958 act applicant claim citizen lebanon applied department immigration visa november 2012 delegate refused grant visa february 2013 theapplicant appeared tribunal august 2013 give evidence present argument tribunal also received oral evidence applicant sister australian citizen tribunal hearing conducted assistance interpreter arabic english language applicant claim evidencethe applicant claim advanced protection visa application written statement photocopy passport accompanied interview participated delegate decision record delegate accompanied review application review application hearing document provided tribunal hearing material including recording delegate interview tribunal hearing held relevant departmental tribunal file reproduce detail applicant claim comprehensively summarised delegate decision summary applicant agreed hearing accurate applicant provided copy decision record tribunal review application summary applicant say risk harm lebanon sunni muslim distant relative strong connection future movement member sunni political party ex wife family alawites want revenge divorcing ex wife hate sunni also claim risk harm political sectarian violence lebanon applicant claim one brother mr received telephone threat mr convinced supporter syrian government future movement opposes mr friend future movement member mr fled family home mid 2011 heard since applicant claim fear harm people say abducted mr claim extended relative another brother mr b killed bomb blast 1 claim sister killed 2012 family home gunshot pro syria militia jabal mohsen 2 applicant claim fear harm syrian hezbollah ex wife family say member ex wife family history crime tripoli known government extremely dangerous also pro syrian applicant claim risk harm lebanon civil unrest lived suburb 1 neighbourhood tripoli located sunni bab el tabbaneh various transliterated alawite jabal mohsen area tripoli militia two group engage fighting claim general unrest exacerbated civil war syria alawites generally supportive syrian government sunni generally oppose syrian government say fear harm sectarian violence neighbourhood elsewhere lebanon lebanese authority cannot prevent violence say fear forced join sunni militia harmed refuse evidence hearingat hearing discussed applicant claim also put comment independent information considered delegate decision concern credibility claimed fear harm applicant provided detail family member sibling lived australia many year parent australia visited australia many time another brother lebanon mr b life outskirt tripoli house father mr mr wife child moved house suburb 1 sustained major damage 2010 fighting militia jabal mohsen bab el tabbaneh brother still missing sister deceased shot fighting neighbourhood 2012 applicant said family home suburb 1 damaged used live either mr b house friend area tripoli beirut australia june august 2010 divorced former wife 2009 hated since asked incident first raised interview delegate ex wife asked come house return photograph attacked several alawite people said personal issue different religion take sharper aspect afraid people belief group support harm asked ex wife divorced four year previously still trouble family stated tried settle problem peacefully promised would leave alone later hearing described another incident grabbed men motorcycle pointed gun insulted religion physically assaulted run away said could alawites long beard could political party opposite sunni commented motive appear make sense political person know attacker religion applicant said suspect alawites one could identify asked attacked alawite revenge part ex wife applicant responded initially difference alawites sunni worse married alawite want harm said general situation tense harm get away father would tell people long beard coming house asking response go away asked reported assault police said would seen provocation police cannot protect anyway asked would go away threat happen could move away permanently said lebanon small country find anywhere relation disappearance brother mr applicant said reported policed police cannot anything believed mr kidnapped friend future movement member although mr member political could would contacted family two year missing put applicant concern claim whether genuinely feared harm return lebanon aspect circumstance might suggest motivation applying protection visa fear harm return lebanon order migrate australia matter put applicant response put applicant seek australia protection recent arrival march 2012 lodged protection visa application november 2012 delay almost eight month applicant said know right lodge protection visa application first said consulting solicitor come australia prospective spouse visa subclass 300 visa engagement marry work situation would return lebanon remembered problem death sister disappearance brother asked solicitor relieved solicitor told could apply put applicant said relationship prospective spouse australia broke month arrived australia discovered information fiancé may 2012 still seek protection return lebanon date november 2012 applicant responded time seeing sibling australia put applicant claim two reason fear returning lebanon related mr disappearance threat assault ex wife family alawites event predated arrival australia yet still waited eight month lodging protection visa application applicant responded know right known would applied straight away also put applicant comment independent information delegate put included decision record sectarian violence lebanon involves group politically active opposed targeted individual applicant responded tension include everyone described three friend standing street neighbourhood used stand man motorbike rode past shot dead explained applicant protection visa granted protect people risk generalised violence everyone country face protect people harm targeted personally noted politically active political belief appear elevate general population class people targeted deliberately harm basis religion politics applicant responded initially fear related problem ex wife getting risky difference alawites sunni applicant sister also gave evidence hearing recorded held tribunal file evidence general supportive applicant concerning disappearance brother mr also said sister killed fighting house damaged since father lived brother mr b even mr b move around unrest hearing applicant migration agent provided original translation death certificate applicant sister stating cause death bullet head due war date death 2012 anda letter dated september 2013 official el tabbaneh locality identifying applicant sister personally known writer killed house 2012 bullet jabal mohsen shabiha pro syrian government militia findingsfor following reason concluded decision review affirmed accept applicant claim fear harm return lebanon genuine applicant divorced alawite ex wife 2009 say march 2010 delegate note say divorce acrimonious ex wife family want take revenge time heightened tension neighbourhood alawites sunni use additional factor harming applicant twice returned lebanon since divorced ex wife australia returned august 2010 visit another country passport indicates undertook date july 2011 date august 2011 would return lebanon two occasion inconsistent genuine fear harm lebanon ex wife family friend associate applicant made effort depart lebanon august 2011 grant prospective spouse visa march 2012 long period time remain country claim assaulted twice feared harm people say could find anywhere lebanon applicant previously travelled australia sponsored visitor visa apparent reason could apply reasonable expectation success subclass visa sometime return country grant prospective spouse visa applicant arrived australia lodge protection visa another eight month delay inconsistent genuine fear harm applicant explanation delay get advice stay prospective spouse visa expired compelling since applicant claim reason fear return lebanon time arrived australia access solicitor time also connection prospective spouse visa applicant claimed father told threat mr arrived australia march 2012 discovered information fiancé month later still lodge protection visa application november 2012 also applicant relationship prospective spouse broke month arrived australia seek protection several month finally protection visa application lodged le month prior expiry subclass 300 visa factor delay timing suggest applicant genuinely fear return lebanon motivation lodging protection visa application extend stay australia avenue remaining marriage longer open satisfied applicant fear harm returned lebanon genuine accept applicant claim brother mr fled missing ever since threat related friendship future movement member extended family member killed bomb blast pro syrian hezbollah militant applicant given four different time say mr disappeared written statement say bomb blast spoke mr arrived australia march 2012 delegate interview said mr went missing 1½ year previously would make last quarter 2011 hearing told last spoken mr 2½ year previously mr disappeared 2 year previously would make august 2011 accept applicant would unable provide date brother disappeared especially since major basis applicant claim fear harm return lebanon date recent occurrence involves close member family significance applicant claim satisfied reason applicant provided significantly varying date occurrence event stage determination protection visa application occur mr future movement member supporter applicant say written statement mr never political man applicant claim mr friend future movement extended family member staffer person killed bomb blast pro syrian militant future movement anti syrian none factor persuade mr interest militant opposed future movement accept mr threatened anti future movement militant fled threat disappeared kidnapped anti future movement militant accept applicant harmed ex wife family friend risk harm return satisfied fabricated claim order strengthen protection claim thereby migration intention applicant provided corroboration event claim relation two assault mentioned applicant protection visa application first mentioned one incident delegate interview mention second hearing accept likely ex wife family friend would continue harass assault applicant several year divorced applicant continued live quite near ex wife seriously intent causing harm family associate ample opportunity several year serious doubt true fact surrounding death applicant sister since applicant also gave varying time event initially provided different explanation cause death appears death certificate evidence sister killed fit chronology family house died sectarian fighting rendered uninhabitable sectarian fighting however make finding applicant sister died dispositive review application circumstance would insensitive attempt make finding timing accept therefore applicant sister unfortunate victim fighting sectarian tension alawites jabal mohsen sunni bab el tabbaneh also resulted significant damage family home making uninhabitable however satisfied applicant risk threatened harm pro syrian militant hezbollah militant political sectarian militant group operating tripoli satisfied applicant risk forced join militia applicant political profile actively eschews political involvement none applicant family political profile none sectarian activist trouble occurs neighbourhood due political sectarian tension move away family home significantly damaged violence moved different neighbourhood rather remain become radicalised time applicant stayed friend including friend beirut demonstrating capacity willingness take step avoid becoming enmeshed elevated risk sectarian violence set accept one member family tragically killed violence accept consequence political sectarian profile activism part applicant member family reason satisfied chance applicant harmed convention reason far fetched remote find risk applicant might face return lebanon faced population generally satisfied ground certainly substantial ground believing necessary foreseeable consequence removed australia real risk applicant suffer significant harm conclusionsfor reason given satisfied applicant person respect australia protection obligation refugee convention therefore applicant satisfy criterion set in 36 2 concluded applicant meet refugee criterion in 36 2 considered alternative criterion in 36 2 aa satisfied applicant person respect australia protection obligation unders 36 2 aa suggestion applicant satisfiess 36 2 basis member family unit person satisfiess 36 2 aa hold protection visa accordingly applicant satisfy criterion in 36 2 decisioni affirm decision grant applicant protection class xa visa ruth cheethammemberattachment relevant lawrefugee criterionsection 36 2 provides criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention australia party refugee convention generally speaking protection obligation respect people refugee defined article 1 convention article 1a 2 relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return complementary protection criterionif person found meet refugee criterion in 36 2 may nevertheless meet criterion grant protection visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence applicant removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion section 499ministerial directionin accordance ministerial direction 56 made unders 499of act tribunal required take account policy guideline prepared department immigration theprocedures advice manual pam3 refugee humanitarian refugee law guideline refugee humanitarian complementary protection guideline country information assessment prepared department foreign affair trade expressly protection status determination purpose extent relevant decision consideration 1 citation deleted 2 tripoli applicant city area called jabal mohsen alawite area alawites supporter assad regime syrian bordering area bab el tabbaneh sunni area sunni supporter future movement opposed assad regime syria applicant family home location information provided

Knox v Wingecarribee Shire Council [2023] NSWLEC 1527 (14 September 2023).txt

knox v wingecarribee shire council 2023 nswlec 1527 14 september 2023 last updated 15 september 2023land environment courtnew south walescase name knox v wingecarribee shire councilmedium neutral citation 2023 nswlec 1527hearing date conciliation conference 22 august 2023date order 14 september 2023decision date 14 september 2023jurisdiction class 1before byrne acdecision court order 1 applicant granted leave rely upon amended plan documentation referred index annexure 2 appeal upheld 3 development consent granted da 23 0735 residential subdivision three lot 160 old south road bowral lot 7 dp786212 subject condition annexure b catchword development appeal residential subdivision conciliation conference agreement party orderslegislation cited environmental planning assessment act 1979 4 16 8 7environmental planning assessment regulation 2021 38land environment court act 1979 34state environmental planning policy biodiversity conservation 2021 ch 6 pt 6 5 s 6 6 6 7 6 8 6 9wingecarribee local environmental plan 2010 cll 4 1 7 10category principal judgmentparties jeff knox applicant wingecarribee shire council respondent representation counsel messenger solicitor applicant j king solicitor respondent solicitor messenger messenger applicant lindsay taylor lawyer respondent file number 2023 90857publication restriction nojudgmentcommissioner class 1 development appeal pursuant tos 8 7 1 theenvironmental planning assessment act1979

Gomes v Ministry of Transport [2008] NSWADT 303 (12 November 2008).txt

gomes v ministry transport 2008 nswadt 303 12 november 2008 last updated 1 december 2008new south wale administrative decision tribunalcitation gomes v ministry transport 2008 nswadt 303division general divisionparties applicantpaul gomesrespondentministry transportfile number 083242hearing date 4 november 2008submissions closed 4 november 2008date decision 12 november 2008before montgomery judicial memberlegislation cited administrative decision tribunal act 1997passenger transport act 1990passenger transport regulation 2007cases cited saadieh v director general department transport 1999 nswadt 68smith v ministry transport 2008 nswadt 136texts cited application passenger transport act taxi driver cancellation authoritymatter decision representation applicantin personrespondenta wozniak solicitororders 1 decision cancel applicant authorisation drive taxi cab set aside place make determination applicant authority suspended period three months2 pursuant clause 43 1 b thepassenger transport regulation 2007the applicant required undertake satisfactorily complete public passenger vehicle driver training refresher course approved director general ministry transport conducted registered training organisation reason decision reason decisionbackground1 applicant hold driver authority thepassenger transport act1990

Doherty & Ors v Port Phillip CC & Anor [2009] VCAT 2123 (13 October 2009).txt

doherty or v port phillip cc anor 2009 vcat 2123 13 october 2009 last updated 21 october 2009victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1550 2009permit application 125 2009applicantsfrank tsokas rebecca dohertyjonathan andersonresponsible authorityport phillip city councilrespondentjohn f taylor architectsubject land96 cobden street south melbournewhere heldmelbournebeforedalia cook memberhearing typehearingdate hearing7 october 2009date order13 october 2009citationdoherty or v port phillip cc anor 2009 vcat 2123orderthe decision responsible authority varied permit application 125 2009 permit granted directed issued land 96 cobden street south melbourne accordance endorsed plan condition set notice decision grant permit dated 27 may 2009 permit allows alteration addition including first floor rear addition existing dwelling dalia cookmemberappearances applicantsmr frank tsokas person behalf m rebecca dohertymr jonathan anderson personfor responsible authoritymr marc jayfor respondentsms emily porter counsel direct briefreasonsbackgroundthe owner land seek permission alteration addition existing dwelling planning permit required building work provision heritage overlay 1 port phillip planning scheme also extension dwelling lot le 300 square metre residential 1 zone 2 mr anderson life adjoining property mr tsokas m doherty live two door subject land originally opposed overall upper level extension hearing confined opposition proposed construction triangular deck upper level subject land accessed via proposed second bedroom considered inappropriate ground incompatibility neighbourhood character visual bulk potential overlooking area private open space subject land contains double storey single fronted attached dwelling narrow lot 3 proposalthe application proposes alter part rear upper level existing dwelling 4 include second bedroom bathroom also proposes deck approximately 3 square metre north east corner upper level deck would screened outward face height 1 7 metre timber screen 5mm gap proposed alteration include double door western elevation two skylight carried detailed site inspection subject land surround also objector property private open space consideration applicationthe key issue consideration whether proposal acceptable regard provision heritage overlay relevant planning policy andwhether proposal constitutes acceptable response rescode provision clause 54 specifically term wall boundary side setback overlooking overshadowing 5 first issue non controversial council heritage advisor considered application would affect heritage value subject land adjoining property agree assessment 6 similarly objector raise concern aspect proposal proposal comply standard a10 rescode relating side setback standard a11 relating wall boundary upper level extension would constructed eastern side boundary would approximately 500mm closer western side boundary provided standard notwithstanding agree responsible authority assessment part development acceptable extent construction eastern boundary would abut existing wall boundary along entire length would remote private open space area term western side scale extent extension generally consistent pattern existing development recognising limited width lot immediate area mr anderson concerned impact daylight existing window relative non compliance standard a12 rescode present glazed hallway leading rear private open space accessing bathroom explained proposes redevelop property recently submitted planning permit application redevelopment proposal intends reconfigure area living room agree m porter role planning situation consider reasonable amenity property stand certainty permit issue development applied neither certainty ultimately constructed setting small increase overshadowing hallway kitchen area principally 9 11 however regard designation room fact additional overshadowing would alleviated soon 11am equinox regard impact confined acceptable term overlooking provided screening front balcony face complies standard b15 consider would unreasonable overlooking either anderson tsokas doherty property accept submission made m porter rescode intended limit unreasonable overlooking may limited outward strained glimpse possible part parcel tolerance neighbour need one another built urban area site inspection also note extent overlooking subject land anderson residence would vastly reduced overall removal current little balcony within centre upper level open weave trellis western side currently facilitates view anderson kitchen glazed hallway private open space term visual bulk persuaded small triangular deck would overbearing term either objector property tucked north eastern corner furthest away objector property unroofed compact view deck vantage point within anderson rear yard numerous decision tribunal confirmed mere visibility necessarily equate unacceptability built form equally true site context term neighbourhood character accept effect submission made objector uniform rear building line sacrosanct start readily possible perceive uniform building line given angle view ground floor private open space height existing boundary fencing reality fair degree tolerance variety built form rear building particularly east true objector private open space currently provides reasonably open sky view consider notably changed result proposal conclusionfor reason consider proposal acceptable response site surround regard relevant planning provision policy support responsible authority decision grant permit agree objector extent application plan insufficiently dimensioned constitute plan submitted endorsement accordance condition 1 permit attended permit applicant normal way provide additional certainty respect approved development dalia cookmember 1 clause 43 01 1 2 clause 32 01 3 3 frontage approximately 5 metre total site area approximately 114 square metre 4 including partial demolition 5 assessing application also regard clause 21 22 01 22 04 22 05 addition clause 65 planning scheme 6 notwithstanding building assessed significant

Livermore and Secretary, Department of Social Services [2013] AATA 747 (18 October 2013).txt

livermore secretary department social service 2013 aata 747 18 october 2013 last updated 23 october 2013 2013 aata 747 ul none list style none divisiongeneral administrative divisionfile number 2013 0829rebrad livermoreapplicantandsecretary department social servicesrespondentdecisiontribunalsenior member j f tooheydate18 october 2013placesydneythe tribunal affirms decision review sgd senior member j f tooheycatchwordssocial security disability support pension back condition post traumatic stress disorder gallstone hepatitis c whether condition fully diagnosed treated stabilised decision review affirmedlegislationsocial security act 1991s 94social security administration act 1999s 42 sch 2social security table assessment work related impairment disability support pension determination 2011reasons decisionsenior member j f toohey18 october 2013backgroundmr brad livermore suffers disc prolapse lower back post traumatic stress disorder hepatitis c gallstone seek review decision refuse application disability support pension dsp mr livermore attended hearing tribunal 4 october 2013 carer m sarah meudell assisted hearing end hearing explained mr livermore agreed centrelink social security appeal tribunal qualify dsp written reason summarise reason gave end hearing mr livermore applied dsp 22 may 2012 application succeed qualify dsp 22 may 2012 within 13 week 21 august 2012 42and sch 2 thesocial security administration act 1999 refer period asthe relevant period qualify dsp relevant period mr livermore satisfy following criterion in 94of thesocial security act1991

RMH Cowie & GI Pearson v. Chief Executive, Department of Natural Resources and Mines [2001] QLAC 92 (4 September 2001).txt

land appeal court queensland v99 1308 appeal land court determination unimproved value valuation land act 1944 local government livingstone shire rmh cowie gi pearson appellant chief executive department natural resource mine respondent hearing rockhampton j u g e n delivered rockhampton fourth day september 2001 1 appellant allotment described lot 2 rp 615103 parish hewittville containing area 730 m² situated 50 esplanade lammermoor 3 5 km south easter ly yeppoon central shopping area 2 irregularly shaped long narrow lo angular street frontage 13 405 metre effective width 11 side boundary angle frontage north west ha lf depth lot northern boundary angle west rear boundary width reduces 9 746 metre four surveyed lot ad join land along south westerly boundary one adjoins rear another north 3 esplanade adjacent property bitumen sealed terminating cul de sac short distance northerly lot traffic 4 limited ocean view available ground level site obstructed degree planted vegetation beach front opposite shifting sandy soil required retention along side boundary lot 5 electricity water telep hone garbage service provided site one nine im mediate locality unsewered prospect connection council system 2 6 1 october 1998 chief execu tive unimproved valuation land amount 93 000 owner ppealed land court valuation estimating notice appeal unimproved value 81 000 7 mr j cowie registered valuer conducted appellant case land court gave evidence support valuation amount 75 000 valuation based direct comparison subject land two vacant lot situated respectively 342 nd 142 scenic highway statue bay lammermoor beach area south th e subject land ha subject sale scenic highway yeppoon emu park road section constructed beachfront esplanade carry relativ ely high traffic volume separate sale land beach 8 mr cowie analysed sale th e land 342 scenic highway show unimproved value 58 000 unimprove value applied chief executive relevant date 62 000 sale land 142 scenic highway analysed mr cowie show unimproved value 94 000 unimproved value applied ch ief executive land 98 000 9 land court chief executi unimproved valuat ion subject land supported oral written ev idence mr st larking registered valuer employed chief executive mr larking valuer made valuation appealed 10 evidence valuation represented 10 increase annual valuation previously force th e evidence five sale chief executive relied support varying increase applied various esplanade frontage land yeppoon locality introduced land court mr larking two hose sale lot significant distance north subject land kiama avenue bangalee third todd avenue yeppoon esplanade frontage unformed allowing direct pedestrian access sale lot beachfront factorised increase 20 applied previously existi ng valuation lot kiama avenue sale showed analysed uni mproved value increase 40 44 respectively todd avenue sale showed analysed unimproved value increase 21 11 fourth sale ra street lot situat ed short distance northerly subject land unobstructe ocean view also enjoyed direct 3 pedestrian access unformed esplan ade beachfront sale shown analysed unimproved value wh ich reflected 55 increase previously existing valuation howeve r 10 increase applied 12 fifth sale prospect street lot southerly subject land located two sale property upon mr cowie relied sale land separated beachfront th e scenic highway elevated high road commanded wide ocean view access available scenic highway access gained prospect street frontage sale showed analysed unimproved value reflecting 65 increase previously existing valuation however 10 increase applied chief executive 13 considering totality th e sale evidence learned member said record p 15 believe subject land best compared 142 scenic highway better direct acce s beach suffers disability lack connection public sewerage system 14 however found sa le supported mr larking conclusion balance appellant dem onstrated respondent made serious error adopted wrong principle persuaded appellant proved case appeal dismissed unimproved valuation chief executive affirmed 15 owner appealed court ground land court due regard evid ence presented spect number factor related sale evidence state market relativity valuation lack sewerage cost installation maintenance septic system difference residential sidential b zoning unstable soil narrow frontage irregular shape num ber immediately adjoining property effect construc ted road separation beach compared sale land unformed esplanade direct beach access 16 u mr cowie represented appella nt mr r paterson barrister appeared behalf respondent chief executive 17 mr cowie made application adduce new evidence general nature embodied within written submission specific new evidence 4 related various photograph existence multi unit development locality todd avenue 142 scenic highway sale information relating national plumbing code as3500 dopted queensland government 30 april 1998 investigation process estimated cost installation maintenance site sewerage e ffluent disposal system local government approval would required relevant date valuation absence sewerage scheme connection 18 objection taken respondent admission new evidence section 56 land court act 2000 provides 1 appeal land ppeal court must decided evidence record proceeding decision appealed made 2 however co urt may admit new evidence court satisfied admission evidence necessary avoid gr ave injustice b party applying evidence admitted give court adequate reason evidence previously given c application evidence admitted made hearing appeal 19 heard submission pa rties court accepted new evidence relation site sewerage installation requirement photographic evidence admitted issue 20 issue appeal analysis relatively narrow 21 learned member decided sale evidence presented subject land best compared 142 scenic highway 22 mr larking used 142 scen ic highway sale evidence value supporting chief executive valuation however u respondent submitted learned member correct identifying sale tendered appellant providing comparable evidence unimproved value subject property 5 finding 23 agree learned member correct identifying sale 142 scenic highway provided comp arable evidence unimproved value subject property 24 comparison process require consideration mr cowie opinion sale supported valuation 75 000 subject land basis various disability suffered also zoning consideration 25 subject land zoned reside ntial sale land zoned residential b dispute sale land lesser area minimum necessary allow individual multi unit development despite residential b zoning however mr cowie argument common practice smaller lot aggregated adjoining land purpose achieving permissible multi unit development premium value residential value attached residential b zoned land regardless size fact case however land purchased adjoining owner single unit dwelling occupied adjoini ng land single unit dwelling subsequently constructed purchaser unable accept mr cowie argument relates specific circum stance sale zoning land enhanced value 26 accept survey configura tion sale land immediate environment relative separation exis ting residential development adjoining land superior subject la nd suggestion error mr cowie contention soil structur e sale land stable subject land mr cowie eviden ce land court sale land sea view lammermoor beach new photographic evidence indicates available view existing light density vegetation adjacent beachfront sale land ha advantage sewerage connection negative feature site fr ontage busy scen ic highway separation beach road 27 compared unformed esplan ade frontage lot secondary road access sale evidence indicates clear discounting value marketplace lot separated beachfr ont scenic highway suffering disability associated hi gh traffic volume road 6 28 persuaded thing equal location subject land separated beachfront local road would appreciably desirable market place locati 142 scenic highway sale land 29 able accept comp arison sale land superior position subject land could largely offs et several demonstrable disability subject land including l ack sewerage connection 30 evidence indicate lack sewerage reflected monetary term valuati appealed assumed mr larking consequence learned member previous relativity valuation would taken specific disability subj ect land account evidence mr cowie estimated cost installation site sewerage effluent disposal system conclusive evidence deleterious effect market value attributable disa bility lack se werage connection conversely added value associated connection however prudent purchaser unsewered lot would expected fully informed specific development cost associated disability unable accept learned member based interpretation mr larking evidence additional allowance sewera ge current matter would merely slight weighting factor order resolve uncertainty favour appellant emphasis added record p 12 new evidence mr cowie regard considered 31 see relevance fact direct relativity basis chief executive relevant date found subject land 5 000 le valuable sale land le arned member compared two lot adopted unimproved value indicated sale rather valuation applied sale land chief executive basis comparison correct approach opinion conformity relevant legal principle adopted land appeal court grahn v valuer general 1992 14 qlcr 327 scougall v natural resource 1996 1997 16 qlcr 536 32 however mr larking found necessary assume previous relativity valuation reflected lack sewera ge subject land seems fair also assume lack sewerage one factor 7 influenced difference valuation ha applied th e chief executive 5 000 subject ite sale land 33 maintain differentia l find unimproved valuation 89 000 subject land comparison analysed unimproved value shown sale 142 scenic highway 34 one matter raised mr cowi e contention valuation applied chief executive inferi esplanade frontage lot bore incorrect relativity valuation applied superior lot saw opinion supported fact valuation applied scenic highway sale lot exceeded actual sale price value applied superior sale lot case conservative ca e conservative sale included evidence value logic mr cowie contention see assist case seems clear high esplanade sale accepted chief executive evidence true market value flow effect must e nhanced unimproved value subject land 35 following proposition see relevant matter concur found inter alia scougall supra p 543 544 desirable valuation made purpose valuation land act 1944 comparable land bear pr oper relativity one long valuation soundly based however untenable adopt value one parcel relativity another sound basis barnwell v valuer general 1989 13 qlcr 13 p 1 6 case cited best basis assessment unimpr oved value use sale vacant lightly improved parcel land fischer v valuer general 1983 9 qlcr 44 46 barnwell v valuer general 1989 13 qlcr 13 17 whilst maintenance correct relativity considerable importance rating valuation use principl e relativity preferred exclusion relevant eve n ideal sale evidence fischer v valuer general 1983 9 qlcr 44 46 possible chief executive shoul obtain uniformity different block land category type preferably reference sale comparable land correcting inaccuracy rather making inaccurate assessment order secure uniform error barnwell v valuer general 1989 13 qlcr 13 16 17 case cited 8 142 scenic highway sale provided best evidence assessment unimproved value subject land va luations lo t inaccurate suggested mr cowie inaccuracy require correction would untenable adopt value subject land based relativity valuation alleged inaccurate order 36 appeal allowed determin ation land court set aside unimproved value subject land determined amount eighty nine thousand dollar 89 000 1 october 1998 dutney j justice supreme court jj trickett president land court wenck member land court

Lafferty and Repatriation Commission [1990] AATA 576 (23 July 1990).txt

lafferty repatriation commission 1990 aata 576 23 july 1990 last updated 5 june 2008administrative appeal tribunalveterans affair whether applicant entitled payment pension rate general rateveterans entitlement act1986 24 1 decision reasonsre terence campbell laffertyapplicantand repatriation commissionrespondentq90 85aat decision 6090tribunal mr w muller senior memberdate 23 july 1990place townsvilledecisionthe tribunal decides decision underreview affirmed sgd w mullersenior memberadministrative appeal tribunal veteran appeal divisionq90 85re terence campbell laffertyapplicantand repatriation commissionrespondenttribunal mr w muller senior memberdate 23 july 1990place townsvillereasons decisionterence campbell lafferty applicant born 1 december 1909 served australian army 8 september 1942 16 march 1945 accepted disability osteoarthritis right wrist bum leg degenerative change lumbar spine obstructive airway disease also long list disability accepted war caused granted pension 100 general rate 29 may 1982 15 may 1987 77 year age made claim acceptance large number disability 26 october 1987 delegate repatriation commission decided none claimed disability war caused applicant sought review decision veteran review board 13 february 1989 veteran review board affirmed decision review decision conveyed applicant 17 march 1989 applicant applied administrative appeal tribunal review decision tribunal received application 2 march 1990 outside time within appeal made right within absolute time limit twelve month formally gave leave applicant extension time within lodge appeal 3 march 1990 hearing matter 23 july 1990 applicant represented friend mr lindsay soon emerged mr lafferty realty seeking payment pension rate general rate observed mr lafferty hearing clear qualify extreme disablement allowance mr lafferty worked bailiff retired age 64 told tribunal retired age date application increase pension 77 year age qualify higher rate pension must satisfy provision ofsection 24 1 theveterans entitlement act 1986which provide follows special rate pension24 1 section applies veteran veteran whomsection 25applies either degree incapacity veteran war caused injury war caused disease determined undersection 21ato least 70 determined determination force ii b veteran totally permanently incapacitated say veteran incapacity war caused injury war caused disease nature itselfalone render veteran incapable undertaking remunerative work period aggregating than8hours per week c veteran reason incapacity war caused injury war caused disease alone prevented continuing undertake remunerative work veteran undertaking reason thereof suffering loss salary wage earnings account veteran would suffering veteran free incapacity date application many reason mr lafferty working living war caused problem factor involved failure continue working clearly satisfy condition set insection 24above decision review affirmed hereby certify preceding four page true correct copy decision reason decision mr w muller senior member matter terence campbell lafferty repatriation commission date 6 8 90

Keith William Skinner v Jeogla Pty Ltd & Ors [2001] NSWCA 15 (20 February 2001).txt

keith william skinner v jeogla pty ltd or 2001 nswca 15 20 february 2001 last updated 20 february 2001new south wale court appealcitation keith william skinner v jeogla pty ltd or 2001 nswca 15file number 40517 99hearing date 6 february 2001judgment date 20 02 2001parties keith william skinner appellant jeogla pty limited first respondent richard bruce arundell wright second respondent barbara ann wright third respondent bald hill pty limited fourth respondent judgment spigelman cj powell ja ipp ajalower court jurisdiction supreme court equity divisionlower court file number ed 50219 98lower court judicial officer einstein jcounsel b cole qc r webb appellant officer qc j stephenson second third respondent solicitor r hilliard tress cock maddox appellant pro bono second third respondent catchword corporation lawcompany liquidationappeal receiverleave proceed refusedcorporations law s471b s420asupreme court act 1970 s101 2 c legislation cited corporation lawcompanies act 1862 uk company act 1955 nz receivership act 1993 nz company code 1981supreme court act 1970decision leave proceed appeal refused proceeding dismissed appellant pay respondent cost incurred 31 october 2000 judgment supreme courtof new south walescourt appealca 40517 99ed 50219 98spigelman cjpowell jaipp ajatuesday 20 february 2001keith william skinner v jeogla pty ltd orsthis appeal judgment einstein j honour found appellant receiver failed take reasonable care sell respondent mortgagor property le market value breach s420a 1 thecorporations lawwas established receiver appointed mortgagee bank party proceeding first instance appeal einstein j made order form short minute agreed party adjusted account bank receiver ordered receiver pay cost defendant proceeding first instance order receiver subsequent proceeding first instance appeal heard court made winding order corporate respondent appellant conceded leave proceed appeal s471b thecorporations lawwas necessary sought leave appellant also sought leave leave necessary unders101 2 c thesupreme court act 1970 heldsection 471b corporation lawper spigelman cj powell ja ipp aja agreeing1 reasonably arguable construction s420a thecorporations lawadopted einstein j error vagrand pty ltd liquidation v fielding 1993 41 fcr 550referred leave proceed appeal pursuant s471b refused reason particularly reason additional cost would incurred adjourning proceeding join bank successful appeal would require proceeding remitted consideration perpowell ja spigelman cj ipp aja deciding2 doubtful whether leave required s471b humber co v john griffith cycle company 1901 85 lt 141andbpm pty ltd v hpm pty ltd 1996 14 aclc 857referred section 101supreme court act 1970per powell ja spigelman cj ipp aja deciding3 leave required unders101 2 c thesupreme court actand refused orders1 leave proceed appeal refused 2 proceeding dismissed 3 appellant pay respondent cost incurred 31 october 2000 supreme courtof new south walescourt appealca 40517 99ed 50219 98spigelman cjpowell jaipp ajatuesday 20 february 2001keith william skinner v jeogla pty ltd orsjudgment1spigelman cj appeal judgment justice einstein commercial list equity division given 11 june 1999 reason honour left open form order make invited party bring short minute order appropriate address submission certain matter including form order appropriate order cost party agreed form order honour made 16 july 1999 2 appellant second defendant proceeding einstein j first defendant australia new zealand banking group limited bank bank mortgagee certain registered mortgage cattle land cattle operation conducted default bank security led bank appoint appellant receiver manager asset undertaking corporate plaintiff including property cattle two station known hernani jeogla latter consisting two property conducted single enterprise 3 first instance plaintiff challenged receiver conduct selling property known hernani cattle thereon well selling two property comprising jeogla station cattle thereon course trial einstein j claim respect hernani property abandoned honour judgment deal separately hernani cattle jeogla property jeogla cattle 4 reasoning einstein j turned application s420a 1 thecorporations lawwhich provides 420a 1 exercising power sale respect property corporation controller must take reasonable care sell property sold market value le market value b otherwise best price reasonably obtainable regard circumstance existing property sold 5 controller within term section appellant capacity receiver doubt practical matter possibly way usual kind indemnity mortgagee give receiver commercial consequence default part receiver would rebound disadvantage bank nevertheless law statutory duty honour concerned judgment duty imposed upon receiver none contractual arrangement dealing bank receiver court 6 honour common ground s420a appropriate basis plaintiff claim award damage written submission filed court appellant indicated wish agitate first time issue whether s420a could lead award damage doubt honour party mind provision s1324 10 thecorporations law however necessary reach concluded opinion substance issue ability appellant raise issue first time appeal 7 einstein j found jeogla property sold contravention duty imposed s420a however respect set cattle honour found breach duty case honour held applicable provision s420a 1 basis jeogla property cattle market value case two group cattle receiver failed take reasonable care sell cattle le market value honour consider situation s420a 1 b applied ie honour determine whether receiver failed take reasonable care sell cattle best price reasonably obtainable regard circumstance existing cattle sold construction s420a adopted honour necessary determine issue 8 respondent appeal mr richard wright wife mr barbara wright together two company jeogla pty limited bald hill pty limited two corporate plaintiff respondent owned two property together comprised jeogla station jeogla pty limited conducted cattle operation jeogla station trial corporation associated mr mr wright plaintiff conducted operation property 9 judgment appealed concerned property two corporate plaintiff respondent associated either right trustee wright family trust mr wright director company mr wright beneficiary trust however entirely clear joined plaintiff counsel appearing appellant acknowledged submission point proceeding appeal individual respondent alone relief appellant could seek available corporate respondent 10 31 october 2000 institution proceeding court made winding order respondent jeogla pty limited furthermore date shown material court appears submission appellant bald hill pty limited also ordered wound 11 hearing appeal commenced appellant made application court leave proceed company liquidation pursuant provision s471b thecorporations lawwhich provides 471b company wound insolvency court person cannot begin proceed proceeding court company relation property company except leave court accordance term court imposes 12 appellant accepted conduct appeal fell within meaning word proceed proceeding within meaning section 13 appellant rely case law suggests circumstance appeal decision favour company liquidation may proceed without leave pursuant s471b seehumber co v john griffith cycle company 1901 85 lt 141 bpm pty ltd v hpm pty ltd 1996 14 aclc 857 14 inhumbera preliminary objection appeal taken basis s87 thecompanies act1862 uk provided suit action proceeding shall proceeded commenced company except leave court formulation adopted australia see s371 2 thecompanies code1981 s471 2 thecorporations law1991 1992 amendment thecorporations lawinserted s471b extended scope protection addition word relation property company enforcement process relation tosuch property 15 appears sole report case three four law lord allowed appeal without reference preliminary point one lord davey gave reason rejecting submission lordship noted company registered ireland order made high court ireland submission leave required courtin ireland concluded respondent proceeded action winding order prosecuting appeal court appeal action company proceeded necessity defendant action obtain leave defensive proceeding part liquidator either party privy proceeding court appeal respondent successful appeal cannot object appellant defending consequence judgment ordinary mean appeal house 16 reasoning redolent language waiver rather statutory interpretation nevertheless state proceeding pursued company ordered wound party may take defensive proceeding without leave clear meant defensive proceeding encompasses prosecuting appeal 17 two point distinction present case first company liquidation time proceeding secondly significantly appears judgment lord davey house lord could grant leave appeal submission made lordship appeared accept court made winding order could grant leave practice 1862 act set jessell mr inin international pulp paper company 1876 3 ch 594at 598 9 jurisdictional limit statutory power understandable word proceeding would read encompass appeal reason exists thecorporations lawscheme australia seeacton engineering pty ltd v campbell 1991 fca 469 1991 31 fcr 1 18 inbpmthe full court supreme court western australia rejected submission leave required appeal decision refusing order security cost plaintiff corporation gone liquidation first instance decision anderson j kennedy ipp jj agreed adopted terminology lord davey inhumberand described application security defensive measure see 860 honour also characterised application procedural said 859 opinion application security cost proceeding company within meaning s471b referred authority directly point view section concerned proceeding initiated company procedural application defendant action initiated company intended section operate cut defensive procedural measure would otherwise available defendant action brought company thereby reducing defendant normal right litigation whilst leaving company right intact much clearer language would used legislation 19 significance procedural character application security cost also emphasised obiter remark finn j inpasdale pty ltd v concrete construction 1995 fca 1471 1995 59 fcr 446at 448 honour concerned s440d 1 equivalent provision respect proceeding company administration see alsosimoon pty ltd v renbay system pty ltd 1995 fca 1312 1995 13 aclc 1 792 1 794 per santow j 20 bothhumberandbpmare distinguishable instant case nevertheless humberand arguably bpm acceptance reasoning inhumber may stand general proposition sometimes referred authority proposition lodging appeal require leave see keaymcpherson law company liquidation 4th ed pp246 249 issue raised inargument court reason appellant accepting need leave necessary express final view issue 21 court raised counsel appellant prospect appellant may also require leave pursuant tos101 2 thesupreme court act1970

Studer v Boettcher Matter No 4900_92 [1998] NSWSC 524 (21 October 1998).txt

studer v boettcher matter 4900 92 1998 nswsc 524 21 october 1998 last updated 27 november 1998christian johann studer v uwe daniel boettcher4900 9221 october 1998young jthe supreme court new south wale equity divisionjudgmenthis honour action solicitor negligence heard equity division originally part complex litigation plaintiff purchased property upper main arm near mullumbimby byron shire 1984 mr hoskings prior plaintiff purchase property land subject informal development scheme processed mr smith local solicitor scheme seemed various part land question would leased purchaser period le five year avoid deemed subdivision local government act 1919 understanding lease would rolled would option purchase due course purchaser would end parcel land meantime title would remain owner whole plot subject lease caveat unfortunately scheme particularly well documented plaintiff person material time 1984 swiss national first visited australia came live permanently put contact one purchaser part property miss mirjam konig precise degree association plaintiff miss konig subject evidence party ad idem endeavour much possible reason avoid side track go matter miss konig built two room house associated work part land never would seem applied received planning permission building approval build house however doubt plaintiff aware house living plaintiff due course purchased land documentation dealing conveyance rather sloppy recording happened mr smith trust ledger would seem one look actual date various document deposit whole purchase money received disbursed vendor contract even exchanged however situation mr studer plaintiff purchased whole land 82 000 contract referring lease caveat miss konig another purchaser miss granich well lease given banana farmer mr studer purchased right miss granich arrangement made take land free interest banana farmer however still left miss konig possession lease rent 1 per year interest supported caveat happened next need looked closely broad brush effect relevant essentially miss konig said induced remove caveat allow mr studer become registered proprietor whole land representation believed claimed fraudulent claimed proceeding brought court registration mr studer set aside fraud alternatively constructed improvement acted detriment basis representation either given interest land justify equity alternatively given compensation mr studer firmly disputed miss konig right anything firmly view miss konig occupying illegal house illegal subdivision right indeed sought evict proceeding active court beginning 1991 likely last ten hearing day would seem april 1991 law society new south wale actively seeking suitable case new scheme mediation promoting called settlement week order showcase new scheme agent suggested konig v smith studer suitable case mediation settlement week plaintiff initially resisted eventually agreed mediation took place retired judge 17 may 1991 mediation far evidence discloses took form party counsel making opening statement case supported written document party went private session could discus matter retired judge circulated making suggestion trying resolve matter evidence show mediation took eight ten hour ended plaintiff agreeing pay miss konig 100 000 solicitor smith agreeing make contribution 100 000 plaintiff 100 000 paid instalment period secured mortgage would seem able keep instalment property due course sold plaintiff say never entered agreement settle miss konig undue pressure put defendant solicitor alternatively defendant negligently carelessly unskilfully conducted said mediation failed make proper assessment respective case mr studer miss konig result defendant advised plaintiff make settlement never made seems little doubt mediation last eight ten hour defendant gave evidence involved twenty five mediation said unusual mediation plaintiff hand said found matter pressured said went mediation believing offer 20 30 000 believed miss konig entitled anything sort licence remain land said use counsel word fought like tiger day life went capitulated pressure doubt long discussion party private defendant mr walmsley counsel mr studer mr walmsley originally sued along defendant morning sixth day proceeding settled need say nothing aspect case defendant say private session spoke mr studer german defendant spoke fluent german german mr studer primary language defendant said careful explain various concept dealt plain untechnical language admitted may never used word equitable interest indeed hard expression put german language german legal system equivalent say would conveyed sort concept best could plain language defendant agrees quite plaintiff interested moving beyond 30 50 000 however defendant say time retired judge said quite plain case going settle unless mr studer made offer least 100 000 defendant say barrister spoke plaintiff gave advice various passage defendant affidavit sum said p 238 transcript cross examination said took number factor account assessing credibility miss konig mr smith mr studer looked affidavit evidence looked miss konig behaviour see whether consistent inconsistent said affidavit observed miss konig demeanor day mediation defendant say transcript pp 259 261 also concerned conveniently summarised mr justice powell advice new barrister solicitor sum customer thus put mr studer miss konig legal aid appeared property matter go court would hearing least two week even mr studer litigation may well pocket 100 000 defendant put alternative would happen mr studer lost miss konig would even worse 100 000 really mr studer could win sense money pocket legal cost fact miss konig legal aid said p 260 lot mediation spent talking sort issue making mr studer understand situation mr studer say part pressure put told mediator available 4 clock studer accept recommendation solicitor solicitor barrister would withdraw mr studer say also mentioned mr forbes solicitor taken smith practice might need joined party happened mr walmsley may withdraw personal association accordingly mr studer say great pressure settle otherwise would deserted legal adviser say tell defendant wanted finish mediation withdraw defendant solicitor agrees mr studer say wanted terminate mediation talk practicality fighting two week case person legal aid also talk possibility mr forbes joined fact blowing issue far withdrawal legal representation concerned defendant said made clear planned long service leave three month august november mediation succeed would available august november conduct case said plainly put material time certainly threat withdraw representing plaintiff mediation successful mr studer evidence repeated claim signed pressure affidavit 31 july 1995 para 18 following put mainly inadmissible form negotiation lasted ten hour depended upon defendant translation going constantly refused sign defendant threatened withdraw felt terribly bewildered helplessly abandoned resistance finally collapsed signed evidence cross examined mr williams counsel defendant best part two day additional long cross examination mr hutley sc appeared mr walmsley repeated sort allegation cross examination instance pp 83 transcript following fair detail mr studer version say came victoria living day mediation stayed overnight evidence mr studer knew mediation said p 79 wife knew want come along however later evidence mr studer tried give impression mr studer thought matter getting together seeing case could proceed rather final determination said p 94 transcript said p 79 must mistake true important u say day offer went back forth sum money pay miss konig later put retired judge said unless offer 100 000 put would settlement p 95 mr studer said true mr boettcher told want get whole thing said agree would withdraw constant pressure mr williams put q knew mid afternoon unless offer 100 000 odd put plaintiff m konig mediation going unsuccessful true time afternoon rang wife first time q many time ring wife day far remember twice second time hard even allowed phone q spoke wife three time day possible case third time last time spoke wife mr boettcher told basically solution found would longer able act u mr studer denied offer 100 000 put approval said must said mr boettcher said think family may lose everything sum 100 000 sum everybody q following discussion agreed albeit reluctantly pay 100 000 mr boettcher continued threaten would withdraw q mr studer agreed offer 100 000 settle case agree forced q leaving aside reason agreement fact agreed offer 100 000 settle case want settle case basis said forced q offer made knowledge yes pushed knife put throat later p 98 agreed knew matter settled time said yesterday kind fog like zombie told q actively participating way settlement structured passive forced q told miss konig prepared delayed sale land delay payment long got mortgage property possible time long time longer capable understanding think passage flavour evidence mr studer generally case took six day hear mr pluznyk counsel appeared plaintiff already mentioned counsel defendant solicitor barrister admire job mr pluznyk plaintiff obviously lot pressure current legal representative succession barrister solicitor complaint made negligence incompetence pressure might next line obvious unfortunately defect presentation plaintiff case probably caused pressure question asked question mr pluznyk tried hard make unobjectionable fell reverse trap general aside mr pluznyk put everything could put behalf plaintiff thoroughly cross examined mr boettcher defendant whole day case put two main level attack seen mr pluznyk closing address first defendant put improper pressure mr studer mediation took eight ten hour mr studer speak english wife mr studer time person making lot running case must clear everybody mr studer fought like tiger day finally capitulated life went defendant forced situation mr studer would settled miss konig lost chance succeeding litigation second attack defendant failed ass strength mr studer case weakness miss konig case put particular came clearly cross examination defendant failed appreciate peculiar nature mr smith bookkeeping inconsistent statement made miss konig cross examination defendant denied failed appreciate matter said noticed taken account said addition solicitor keep sloppy record bad conveyancer unsound lawyer still experience likely honest likely accepted tribunal fact also say many factor needed taken account particular fact mr studer knew miss konig occupation land right day one mr studer bought miss granich aspect case light authority made mr studer case difficult also said set sum customer client advised whole litigation might end disaster even mr studer would pocket 100 000 accordingly lot practical reason recommend settlement stage rather go litigation despite assessment tribunal fact likely evaluate witness mr studer cross examined extensively said gave evidence interpreter fairly clear could understand question asked answered english interpreted uncommon phenomenon something court always pay attention though significance present case common answer question first five hour simply ask wife asking question nothing case told mr studer repeated answer may lead think hiding something sort answer got le frequent matter thought significance however continued give answer formula like zombie would sign anything get building agreed knife throat forced agree impressed whenever probing question asked got ritualistic response also inconsistency mr studer evidence quite instance earlier affidavit mi716 made statement completely contrary said witness box front impressed mr studer witness gave every impression man fixed idea mind going let go matter formed impression likely thoroughly convinced act agreeing settlement act free whole evidence clouded fact taken primary paradigm corroborative witness mr studer gave evidence fourth day hearing course present mediation able much assistance vital matter fact evidence became le le credible mr williams took contemporaneous document inconsistent evidence often endeavoured escape casuistry usual tenacity mr williams prevented escape witness give oral evidence defendant presented well must remember solicitor used public speaking would nervousness perhaps studers yet despite day cross examination untroubled gave every indicia experienced knowledgable capable solicitor able give credible account happened mediation mr boettcher evidence corroborated mr walmsley mr walmsley dropped litigation cross examined merely note fact trouble saying dispute version fact given studers one hand mr boettcher hand prefer mr boettcher evidence accordingly accept settlement miss konig brought undue pressure behalf mr boettcher must realised mr studer like zombie man lost whatever lawyer said would seem evidence mr studer understand perilous position although great reluctance settle eventually understood decision made way made whether liked however also quite clear told wife settlement agreement pleased may one reason later accepted must overborne mr williams put written submission preponderance evidence mr studer came rational decision end day albeit one particularly like like many litigant believe fervently position matter disappointment realise best interest served solving matter even particularly enamoured term come view fact unnecessary go question far solicitor even duty press reluctant client advantage settlement solicitor know going emotionally hard client accept certainly thirty forty year ago era legal adviser expected take paternalistic role clear duty counsel solicitor put pressure client lawyer believed sensible client interest see egharvey v phillips 1956 hca 27 1956 95 clr 235 whilst thing may little different le paternalistic age believe still rule proper appropriate solicitor put pressure client lawyer view client interest course must come point client behaving automation matter get point solicitor know proceed least without independent person speaking client make sure client understands however fact case far considering merit respective case court particularly reluctant review assessment made barrister solicitor advising settlement many subjective matter come assessment counsel solicitor need make assessment likelihood credibility client accepted judge jury bench trial experience particular judge well use knowledge way insurance company act assessment evidence consider result exercise sum customer court interfere unless seen view barrister solicitor took reasonable solicitor barrister could come circumstance seekarpenko v paroian 1980 117 dlr 3d 383 maillet v haliburton 1983 55 nsr 2d 311 315 andatwell v michael perry co 1998 4 er 65 could satisfied even accepted evidence plaintiff assessment made mr boettcher failed test clear problem konig case problem case factor mr pluznyk strongly put mr boettcher witness box needed considered well accordingly case liability consider awkward question damage make couple comment case matter go hope first strictly speaking loss chance type case case plaintiff chance getting something thwarted someone negligence second loss occurred result property sold remote negligence primary cause would impecuniosity party rather negligence indeed matter go assessment would extremely difficult evidence find much way damage accordingly verdict defendant plaintiff pay defendant cost proceeding exhibit may returned twenty eight day

WNB [2017] VMHT 1 (12 January 2017).txt

wnb 2017 vmht 1 12 january 2017 last updated 31 march 2017this edited version tribunal statement reason issued pursuant section 198 themental health act 2014 patient person attending hearing de identified allocated randomly selected pseudonym privacy reason detail may lead identification patient may also omitted tribunal omission detail affect decision reason decision statement reason 2017 vmht 11 detail hearingat time hearing wnb subject inpatient temporary treatment order made 16 november 2016 tribunal conducted hearing determine whether tribunal make treatment order whether wnb become voluntary patient wnb current temporary treatment order due expire 13 december 2016 time hearing wnb treated ursula frayne centre hearing held ursula frayne centre 8 december 2012 division tribunal conducting hearing comprised legal member m murphymedical member dr h mckenziecommunity member mr dickinsonattending hearing wnbdr td wnb treating doctor mr e smith wnb legal representative mental health legal centre rn staff nurse two student observers2 information provided tribunal hearingthe tribunal received following evidence hearing report wnb compulsory treatment prepared dr td dated 2 december 2016 report b wnb clinical file c oral evidence also provided wnb dr td statement reason intended detailed record material provided issue discussed hearing evidence accepted relied upon tribunal reach conclusion final determination identified part 4 3 issue considerationpursuant section 53 1 themental health act 2014 act tribunal must conduct hearing determine whether make treatment order wnb tribunal satisfied treatment criterion section 5 attached statement act apply wnb tribunal must make treatment order also decide length treatment order whether treatment community hospital tribunal satisfied treatment criterion section 5 apply wnb tribunal must revoke current treatment order meaning wnb becomes voluntary patient tribunal consideration issue must also conducted accordance thecharter human right responsibilitiesact 2006

Toll Transport v. WorkCover (No. 2) [2002] SAWLRP 10 (3 December 2002).txt

toll transport v workcover 2 2002 sawlrp 10 3 december 2002 last updated 29 may 2003 2002 sawlrp 10workcover levy review panelworkers rehabilitation compensation act 1986toll transport pty ltd employer e10263404 03 applicant v workcover corporation south australia respondent 2 panel president g g masonremarks adjournmentpublished 3rddecember 2002 application review maintenance workcover supplementary levy employer initial failure employer provide suitable employment supplementary levy later removed date requested employer matter proceed way written submission direction timing submission section 58b 67 72 worker rehabilitation compensation act 1986 case referred toll transport v workcover 2002 sawlrp 7appearances mr c j shopov counsel applicant employer mr g young section 58bofficer respondent corporation remark adjournment1 applicant employer letter dated 15 july 2002 sought review decision respondent workcover corporation south australia workcover maintaining assessment supplementary levy undersection 67of theworkers rehabilitation compensation act 1986 act decision appears incorporated workcover letter applicant dated 17 june 2002 although subsequent compromise relation element decision supplementary levy removed dispute closed period employer maintains applied 2 application review lodged purported pursuance ofsection 72of act panel exercise power delegated board workcover board sworkcover levy review determination 2002 seesouth australian government gazette 27 june 2002 page 2731 determination set full previous remark delivered 29 october 2002 seetoll transport v workcover 2002 sawlrp 7 need repeated brief history matter also set previous remark likewise need repetition 3 matter listed hearing today fully constituted panel adjourned consideration matter party indicated desire proceed way written submission criticism made lateness decision understand mr shopov briefed late piece 4 panel today received mr young workcover book document corporation wish rely purpose proceeding employer already lodged set document application letter course mr shopov liberty include document desire refer written submission 5 history matter today consultation mr shopov mr young devised timetable progressing case direction6 employer lodge written submission registrar panel copy mr young close business friday 20 december 2002 7 workcover lodge written submission reply registrar copy mr shopov close business friday 17 january 2003 8 employer close business monday 3 february 2003 lodge registrar written reply desire make one request opportunity address panel orally neither assumed panel may commence deliberation decide application review 9 workcover desire address panel orally written reply made employer request made employer workcover may make request close business friday 7 february 2003 10 process exhausted panel consider decide application 11 party reminded assist consideration matter panel four member appreciated written documentary material lodged quadruplicate gary masonpresident

Janos Hoey v Consumer Trader and Tenancy Tribunal and Anor [2002] NSWSC 1023 (30 October 2002).txt

janos hoey v consumer trader tenancy tribunal anor 2002 nswsc 1023 30 october 2002 last updated 15 november 2002new south wale supreme courtcitation janos hoey v consumer trader tenancy tribunal anor 2002 nswsc 1023current jurisdiction common law divisionfile number 11754 2002hearing date 25 october 2002judgment date 30 10 2002parties janos hoey pty limited plaintiff vconsumer trader tenancy tribunal first defendant boambee pastoral company pty limited second defendant judgment master malpasslower court jurisdiction consumer trader tenancy tribunallower court file number co 2001 4300lower court judicial officer mr david turley presiding membercounsel mr j wilson plaintiff n first defendant mr j motbey second defendant solicitor matthew williams plaintiff v knight crown solicitor submitting appearance first defendant carneys second defendant catchword appeal tribunalno transcriptdeficiency evidence support submissionsno error law demonstrated act cited fair trading act 1987 42 decision see paragraph 19 judgment supreme courtof new south walescommon law divisionmaster malpasswednesday 30 october 200211754 2002 janos hoey pty limited v consumer trader tenancy tribunal anorjudgment1master proceeding commenced summons filed 25 june 2002 proceeding bring appeal decision consumer trader tenancy tribunal tribunal presiding member mr david turley decision given 28 may 2002 2 second defendant brought claim tribunal seeking relief respect loss damage said arise misleading deceptive labelling direction label product known top feed rite feed rite label second defendant relied ons 42of thefair trading act1987

Wheeler v FSS Trustee Corporation as trustee for the First State Superannuation Scheme [2016] NSWSC 534 (29 April 2016).txt

wheeler v f trustee corporation trustee first state superannuation scheme 2016 nswsc 534 29 april 2016 last updated 9 may 2016supreme courtnew south walescase name wheeler v f trustee corporation trustee first state superannuation schememedium neutral citation 2016 nswsc 534hearing date 7 10 september 2015 22 26 february 2016decision date 29 april 2016jurisdiction equitybefore robb jdecision party bring short minute order give effect reason judgment see particular par 370 372 catchword insurance life insurance plaintiff member superannuation fund trustee fund effected insurance policy second defendant insurer totally permanently disabled tpd benefit payable insured proved satisfaction insurer incapacitated unlikely ever return employment reasonably qualified education training experience plaintiff sought declaration insurer constructively denied claim policy made decision certain date decision void effect insurer conducted investigation commissioned medical report plaintiff little opportunity put forward evidence access material gathered insurer procedural fairness letter sent whether rejection plaintiff claim reasonable consideration evidence date determination necessary reasonableness weight given varied opinion medical expert considered held insurer failed act reasonably accordingly rejection claim invalid whether breach good faith fair dealing insurer considered insurer refusal share material gathered plaintiff considered unnecessary delay insurer determining claim inadequate opportunity plaintiff put case forward despite onus prove satisfaction tpd definition held constructive denial insurer established court determine whether insured entitled tpd claim assessment varied opinion multiple expert medical report significance plaintiff disability consideration alcohol abuse marital breakdown held neither intervening factor held plaintiff satisfied definition tpd policy entitled receive tpd benefitswords phrase proper construction word unlikely ever legislation cited privacy act 1988 cth case cited birdsall v motor trade association australia superannuation fund pty ltd 2014 nswsc 632davis v rio tinto staff superannuation fund pty ltd 2002 fca 376 2002 118 fcr 170erzurumlu v kellogg superannuation pty ltd 2013 nswsc 1115folan v united super pty ltd 2014 nswsc 343hannover life australasia ltd v dargan 2013 nswca 57 2013 83 nswlr 246halloran v harwood nominee pty ltd 2007 nswsc 913hannover life australasia ltd v sayseng 2005 nswca 214 13 anz in ca 90 123ivkovic v australian casualty life ltd 1994 10 sr wa 325jeffrey guy baker v local government superannuation scheme pty ltd 2007 nswsc 1173kenan berk v westpac security administration ltd anor 2010 nswsc 28lazarevic v united super pty ltd 2014 nswsc 96sayseng v kellogg superannuation pty ltd 2003 nswsc 945baker v local government superannuation scheme pty ltd 2007 nswsc 1173nile v club plus superannuation pty ltd 2005 nswsc 55davis v rio tinto staff superannuation fund pty ltd 2002 fca 376 2002 118 fcr 170panos v f trustee corporation 2015 nswsc 1217shuetrim v f trustee corporation 2015 nswsc 464tal life ltd v shuetrim metlife insurance ltd v shuetrim 2016 nswca 68weber v ti pty ltd or 2005 nswsc 67ziogos v f trustee corporation 2015 nswsc 1385category principal judgmentparties joanne grindley wheeler plaintiff f trustee corporation first defendant metlife insurance ltd second defendant representation counsel b rayment qc dowd plaintiff j morris sc e elbourne n simpson second defendant solicitor slater gordon plaintiff de mestre company first defendant turk legal second defendant file number 2014 174195publication restriction nonejudgmentintroductionthe plaintiff m joanne grindley wheeler formerly member new south wale police force medically discharged hurt duty police force 2 february 2012 m wheeler unable work 21 september 2010 common ground party time ceased carry duty m wheeler suffered post traumatic stress disorder ptsd major depressive disorder result number experience whilst member police force end hearing also common ground m wheeler continued suffer psychological illness caused discharged police force time incapable engaging work reasonably qualified reason education training experience circumstance necessary set series frightening horrifying event m wheeler experienced member police force sufficient say although tragic competent committed member police force m wheeler developed serious psychological illness come suffer result action line duty consideration event make outcome readily understandable m wheeler 36 year age time second defendant metlife insurance ltd insurer rejected claim remaining work life 29 year based upon retirement age 65 year m wheeler relevant time member first state superannuation scheme fund first defendant f trustee corporation trustee trustee term trust deed governing fund trustee entitled insure obligation pay benefit member mean two insurance policy issued insurer two insurance policy respectively called group life insurance policy document group life insurance policy contract blue ribbon collectively policy 8 may 2012 m wheeler lodged claim total permanent disablement tpd benefit trustee shortly thereafter trustee made claim m wheeler behalf insurer m wheeler claim entitled benefit 170 100 basic cover insurance 625 451 alternatively 578 270 police blue ribbon insurance benefit claimed based upon m wheeler entitlement trust deed constitutes fund policy receive benefit totally permanently disabled within meaning document insurer concedes m wheeler succeeds proceeding entitled paid amount 170 100 alternative amount 578 270 sure whether m wheeler abandoned claim greater sum 625 451 leave issue resolved judgment m wheeler succeeds claim 11 june 2014 insurer made determination m wheeler claim date filed statement claim proceeding commenced essence m wheeler claimed insurer constructively denied claim court proceed determine entitlement tpd benefit claimed trustee 17 november 2014 filed cross claim claimed declaration liability m wheeler payment tpd benefit limited extent receives payment insurer policy trustee seek positive relief insurer oblige insurer pay tpd benefit m wheeler entitled member fund notwithstanding insurer determined application made behalf m wheeler period two year 4 september 2015 day commencement hearing m wheeler claim court insurer sent trustee letter stated rejected m wheeler tpd claim set reason rejection letter followed insurer sent m wheeler 13 august 2015 generally called procedural fairness letter insurer outlined effect material m wheeler claim insurer provided material upon proposed make determination m wheeler letter gave m wheeler 14 day make submission response 7 september 2015 first day hearing trustee filed consent party notice submitting appearance submitted making order sought m wheeler giving entry judgment respect claim made save cost proceeding m wheeler insurer conducted basis m wheeler personally entitled prosecute claim insurer order pay trustee amount tpd benefit trustee entitled policy respect m wheeler claim trustee insurer accepted court find point insurer constructively denied m wheeler claim rejection m wheeler claim invalid court proceed determine m wheeler entitlement sense determining whether insurer become obliged pay trustee policy tpd benefit m wheeler claim entitled member fund court appeal recently decided intal life ltd v shuetrim metlife insurance ltd v shuetrim 2016 nswca 68 shuetrim 188 insurer concession sound court find determination m wheeler claim invalid court decide whether m wheeler entitled tpd benefit also first day hearing court gave m wheeler leave file amended statement claim effect amendment remove claim trustee allegation fact relevant claim also delete aspect claim pleaded insurer legal representative m wheeler evidently thought surplus need insurer accordingly given leave file defence amended statement claim relevantly insurer asserted par 25 defence 2 september 2015 declined m wheeler tpd claim provided reason decision letter dated 4 september 2015 aspect insurer defence introduced significant new issue proceeding formerly issue whether insurer constructively denied m wheeler claim m wheeler entitled tpd benefit claimed reason obligation upon insurer pay amount benefit trustee policy insurer determined m wheeler claim rejecting additional issue whether insurer rejection claim invalid introduction new issue obliged m wheeler amend statement claim leave granted 9 september 2015 substance effect amended statement claim maintain m wheeler claim insurer constructively denied claim court ought determine evidence entitled tpd benefit claim m wheeler also claim circumstance insurer decided reject claim immediately commencement hearing constituted breach insurer duty m wheeler determination invalid alternatively even determination invalid insurer act reasonably making determination circumstance timing made determination nonetheless invalid involved breach insurer duty good faith fair dealing act reasonably considering determining validity m wheeler claim fund rulesas trustee submitted order court neither remaining party made issue requires consideration rule fund necessary consider rule detail however may noted rule define insured benefit rule 23 1 meaning amount payable trustee insurance policy respect death disability member rule 11relevantly provides 11 1 trustee may acquire hold vary dispose one insurance policy provide insured benefit member 11 2 insured benefit member limited extent trustee able effect cover insurance policy b payable extent trustee receives payment insurer insurance policy policiesas noted m wheeler made claim two insurance policy issued insurer trustee first policy called group life insurance policy document issue arises first policy whether m wheeler claim fall within definition tpd definition section policy wording relevant part par ii read covered person absent occupation injury illness 6 consecutive month provided proof satisfaction u covered person become incapacitated extent render covered person unlikely ever engage work reward occupation work reasonably qualified reason education training experience issue whether m wheeler relevant time covered person absent occupation member police force illness six consecutive month date assessing m wheeler claim accepted party six month 21 september 2010 21 march 2011 date effect m wheeler illness must determined purpose claim tpd benefit policy convenient point set term first policy deal making claim policy 13 claims13 1 policyowner must notify u writing soon reasonably practicable event entitling policyowner benefit 13 2 condition payment benefit covered person provide u evidence substantiate claim may reasonably require 13 3 covered person must submit expense medical examination conducted medical practitioner health professional appointed u deem necessary second policy upon m wheeler based claim called group life insurance policy contract blue ribbon criterion must established eligibility tpd benefit policy set item 6 b first schedule policy wording relevantly read follows insured member absent occupation employer injury illness six consecutive month provided proof satisfaction insured member become incapacitated extent render insured member unlikely ever engage gainful profession trade occupation insured member reasonably qualified reason education trading experience wording two tpd definition identical effect raise issue respect application purpose present case also set term second policy deal making claim 7 claims7 1 policyowner must notify u writing soon reasonably practicable event entitling policyowner benefit 7 2 accuracy timeliness claim investigation subsequent payment diminished notified writing within one year event giving rise claim 7 3 condition payment benefit insured member provides u evidence substantiate claim may reasonably require insured member must submit expense medical examination conducted legally qualified medical practitioner appointed u deem necessary number aspect clause may significance present case first tpd definition policy require insured member fund provide proof definition satisfied satisfaction insurer term lie heart dispute insurer ultimately rejected m wheeler claim basis provided necessary proof secondly term policy dealing claim appear contemplate insurer carry investigation fund member required provide evidence substantiate claim insurer may reasonably require term inconsistent tpd definition face however seen manner insurer carry investigation undertakes may real practical influence ability fund member provide proof required tpd definition thirdly claim term include provision deal claim made trustee case trustee must notify insurer soon reasonably practicable event entitling trustee benefit relevant event level incapacity fund member satisfies tpd definition event occurs end six month period absence work question arises reasonably practicable trustee notify insurer event raise subtle important issue case relevant injury illness clear immediate practical effect level incapacity fund member take time effect injury illness stabilise level incapacity become known timing notification insurer may significant effect insurer satisfied fund member unlikely ever employed work nature contemplated tpd definition practical issue ignored trustee policy owner policy require trustee make claim fund member provide proof required tpd definition reality manner m wheeler claim made determined consistent policy appear contemplate particularly relation provide proof satisfaction insurer tpd definition satisfied trustee required m wheeler make claim filling pro forma document form require even make provision ample evidence incapacity suffered m wheeler prospect gaining work remainder working life trustee provided document insurer constituted making claim trustee real way prosecute claim trustee acted conduit m wheeler insurer insurer carried investigation satisfaction insurer required m wheeler cooperate various way assist insurer obtain material thought relevant insurer felt obligation provide material gathered trustee m wheeler shortly made determination provided customarily called procedural fairness letter m wheeler directly included material upon trustee intended act summary information m wheeler claim offered receive additional material m wheeler m wheeler could perhaps obtained material time investigation refusal insurer share information inhibited ability m wheeler provide proof responsive material already hand insurer insurer determined claim made trustee behalf fund member happened short time delivery procedural fairness letter m wheeler given 14 day respond insurer rejected claim basis m wheeler provided adequate proof satisfy insurer even though almost proof gathered insurer m wheeler given real practicable opportunity provide responsive proof legal principlesthe publication court appeal decision inshuetrimhas intervened completion hearing publication reason judgment proceeding decision settle one issue dispute party issue meaning expression unlikely ever tpd definition particular degree probability involved determining whether fund member unlikely ever employed manner contemplated tpd definition happened reason largely complete time judgment inshuetrimwas handed revised reason appropriate accommodate reason inshuetrim principle laid court appeal altered decision reached judgment published nature problemit convenient consider number practical issue arise case legal principle relevant determination considered m wheeler physically able person present suffers chronic ptsd major depression disorder stated medical evidence unanimous present time unable work police officer employment reasonably qualified reason education training experience m wheeler date application tpd benefit rejected remaining expected working life 29 year issue whether unlikely ever engage relevant employment depends upon likelihood present psychiatric condition change balance working life way make sufficiently likely accordance true meaning term unlikely ever relevantly employed number feature m wheeler psychiatric disorder may relevant proper determination whether tpd definition satisfied case first course injury psychological physical immediately visible except extent may manifested behaviour realistically risk person consider consequence m wheeler psychological disorder may influenced honestly unintentionally societal attitude psychological disorder disorder manifested extreme form conduct may appear real secondly evidence case show may take considerable time measured year level incapacity caused ptsd comorbid major depression disorder stabilises way permit qualified psychiatrist determine whether disorder chronic stabilised symptom disorder likelihood improvement occur time way may give m wheeler capacity engage relevant work evidence literature show 30 person ptsd become chronic sufferer ptsd 143 considered expert evidence may taken indicative present purpose follows population ptsd sufferer 70 may recover although perhaps without residual disability understand evidence question whether particular sufferer recover whether person psychological illness become chronic answered passage time person given available treatment without success outcome readily predictable individual basis consequently expert psychiatrist asked give opinion early course illness experience 30 case become chronic might naturally cause psychiatrist say likelihood recovery however statistical approach applied ptsd sufferer said likely recover fact 30 case problem therefore correct determination whether psychological injury particular ptsd sufferer chronic may depend upon determination made course history treatment may take year chronicity illness may emerge treatment continually fail early determination whether illness permanent may produce false negative case psychological illness nature suffered m wheeler number source uncertainty relevant application tpd definition amplitude uncertainty may depend upon considered said particular time may uncertainty whether illness time stabilise known reasonable confidence true extent incapacity whether residual capacity work whether prospect future treatment spontaneous recovery improve capacity work residual capacity chance recovery capacity uncertainty real prospect sufferer gaining relevant employment balance working life noted m wheeler ceased work police officer 29 september 2010 discharged police force medically unfit 2 february 2012 meantime m wheeler received psychological treatment medical investigation undertaken order decision made police force whether m wheeler capable continuing undertake duty police officer shortly 2 february 2012 trustee provided m wheeler form necessary make application tpd benefit circumstance invited m wheeler make claim thought satisfied tpd definition claim made 8 may 2012 presumably trustee took view reasonably practicable notify insurer event occurred might entitle trustee benefit still possible m wheeler might capable continuing work police officer consequently timing application temporally connected decision made m wheeler incapacitated continuing police officer however time comprehensive consideration whether m wheeler permanently incapacitated engaging relevant occupation therefore necessary temporal connection timing application stabilisation m wheeler psychological disorder may necessary determine true nature incapacity relation form employment understand expert medical evidence symptom suffered person ptsd major depressive disorder constant like always visible behaviour sufferer illness number respect insidious affect employability undermines sufferer cognitive capacity reliability sociability energy motivation among disability possible person suffer ptsd major depressive disorder symptom fact entirely incapacitate engaging form employment result entirely unable engage ordinary day day activity albeit intermittently unreliably evidence sufferer engaging normal pursuit necessarily correlate capacity engage employment heightened risk error question whether sufferer satisfies tpd definition determined basis evidence would suitable physical illness injury exacting approach may required applicability tpd definition determined accurately insurer duty inshuetrimat 47 58 leeming ja made number observation subject whether member superannuation fund m wheeler position entitled sue insurer directly relief trustee fund entitled also nature duty owed insurer trustee latter issue raised consideration whether duty owed insurer part duty utmost good faith duty good faith honour said 58 necessary express final view subject insurer raise opposition mr wheeler claim could enforce trustee right policy insurer successful obtain order insurer pay tpd benefit trustee case conducted basis mr wheeler entitled make claim made amended statement claim par 30 32 33 mr wheeler dealt issue nature duty owed insurer alleging insurer failed act utmost good faith failed act good faith fairness failed act reasonably mr wheeler speak bet way issue whether duty involved requirement insurer act utmost good faith good faith nothing made distinction party proceeding seen reason follow adopted description duty owed requiring insurer act good faith fair dealing act reasonably considered duty imposed upon insurer determining claim nature made m wheeler inpanos v f trustee corporation 2015 nswsc 1217at 148 154 sufficient restate following extract judgment santow ja inhannover life australasia ltd v sayseng 2005 nswca 214 13 anz in ca 90 123 35 turning challenge hannover decision insurer matter issue appeal trial judge observed decision insurer challenged ground challenge generally similar applicable trustee court proceeds determine fact insurer actually failed form relevant opinion constructively failed proceeding wrong basis 77 red 55m 36 nature content hannover obligation vi à vi mr sayseng derived trial judge principle stated inedwards v hunter valley co op dairy co ltd 1992 7 anz in ca 61 113at 77 536 relevant principle said 81 red 57k 58z implied obligation hannover consider determine whether form opinion matter condition liability b obligation involved consideration determination correct question c hannover duty good faith fair dealing required due regard interest claimant meaning mr sayseng well trustee hannover also obliged act reasonably considering determining opinion e view taken hannover shown unreasonable material decision successfully attacked f hannover decision successfully attacked matter upon opinion required becomes one determination court g held unfair insurer act upon detailed adverse medical report obtained insurer without giving claimant opportunity balance report obtaining detailed report treating doctor giving claimant chance answer adverse element report 88 red 60l citingchammas v harwood nominee pty ltd 1993 7 anz in ca 61 175 hodgson j 78000 78001 wyllie v national mutual life association ltd hunter j 18 april 1997 unreported andbeverley v tyndall life insurance co ltd 1999 war 327 per ipp j 25 33 37 84 95 malcolm cj 6 12 13 14 15 anderson j agreed result appeal agree holding see 97 98 inshuetrim leeming ja beazley p emmett aja agreed said subject 60 regard following controversial first clause turn upon fact insured person unlikely ever undertake employment instead expressed turn upon state mind insurer 61 secondly considering matter reaching state satisfaction insurer required act reasonably worked series decision dating mid nineteenth century mclelland j referred inedwards v hunter valley co op dairy co ltdat 77 536 contract right liability depend upon subjective state mind party eg party approval opinion satisfaction something difficult question whether party subject implied obligation reaching state mind failing reach case may bound objective standard reasonableness however field insurance well established contract insurance element insurer liability expressed term satisfaction opinion insurer insurer obliged act reasonably considering determining matter 62 thirdly limit flow obligation act reasonably mclelland j added say insurer must act reasonably forming declining form opinion say court substitute view insurer north j pointed doyle 529 reasonable person may reasonably take different view unless view taken insurer shown unreasonable material insurer decision insurer cannot successfully attacked ground 63 fourthly word proof satisfaction u reflect obligation part insured person provide evidence support claim 64 fifthly clause turn insurer satisfied insured person never able resume employment lesser threshold unlikely ever clause thus readily satisfied language inmanglicmot v commonwealth bank officer superannuation corporation pty ltd 2011 nswca 204 282 alr 167regarded giles ja quite emphatic 88 65 sixthly foregoing subject obligation good faith part insurer well overlapping implied obligation act reasonably necessary enable party benefit agreement seemackay v dick 1881 6 app ca 251at 263 butt v donald 1896 7 qlj 68 70 71 andbyrne v australian airline ltd 1995 185 clr 410at 450 set passage edward reproduced number principle governing issue insurer determine whether tpd definition satisfied emerge number recent decision court first requirement definition fund member provide proof satisfaction insurer effect placing evidential burden insured person shuetrim v f trustee corporation 2015 nswsc 464at 43 ff andziogos v f trustee corporation 2015 nswsc 1385at 77 per ball j thing say fund member burden proof process determining claim judicial process secondly regard term policy insurer duty good faith fair dealing require insurer undertake investigation ziogosat 77 thirdly onus insured person bring forward adequate material obligation arises duty good faith fair dealing insurer give insured person reasonable opportunity bring forward material ziogosat 78 fourthly example case unrepresented person insured person put forward sufficient material enable insurer address substantive issue required address duty good faith fair dealing would require insurer say give applicant opportunity put forward additional material ziogosat 78 finally insurer statement reason declining claim understood practical document intended inform claimant basis decision rather detailed reason reference evidence relied upon comparable judgment court tribunal weber v ti pty ltd or 2005 nswsc 67at 8 true directed nature complexity required letter informing fund member reason insurer rejection application obviate way need insurer comply duty good faith fairness process determine application way reasonable circumstance said practice way evidence support claim tpd benefit gathered may entirely consistent expectation fund member provide proof practical term may insurer control undertakes almost whole investigation fund member may given relatively little opportunity provide proof convenient effective way support claim tpd definition satisfied fund member trustee behalf fact controlled process proof fund member could deal proactively many problem outlined concerning particular timing application relation stabilisation symptom injury illness possible reduction level uncertainty concerning satisfaction tpd definition flow assessment nature duration incapacity rather likelihood fund member particular level incapacity able engage relevant employment future time must tpd definition satisfied question arises time test entitlement tpd benefit must satisfied authority appear establish answer question tpd definition term applicable present case end six consecutive month absence work see decision brereton j inhalloran v harwood nominee pty ltd 2007 nswsc 913at 33 approved bathurst cj court appeal inhannover life australasia ltd v dargan 2013 nswca 57 2013 83 nswlr 246at 41 four judge appeal agreeing see alsoerzurumlu v kellogg superannuation pty ltd 2013 nswsc 1115 andfolan v united super pty ltd 2014 nswsc 343 speaking subject stevenson j inshuetrim v f trustee corporation 2015 nswsc 464 said 67 insured person cannot tpd within meaning metlife definition unless absent occupation illness injury six consecutive month opinion implicit definition incapacity must arise injury illness caused six month absence work definition thus requires consideration whether incapacity result injury illness tpd definition thus directs attention insured person capacity lack end period opinion time insurer must consider whether insured person incapacitated manner called definition otherwise would open insured person seek satisfy insurer time absent work six month perhaps many year later relevantly incapacitated reason injury illness led absence work according honour insured person capacity end period absence relevant call time assessment date would open insured person claim many year later become incapacitated manner required tpd definition result injury illness caused absence work even though insured person incapacitated relevant manner end period stated understand party present case disputed proposition issue whether tpd definition satisfied assessment date note court appeal inshuetrimdid deal submission time tpd definition applied confined assessment date extended subsequent time seeshuetrimat 155 question whether tpd definition satisfied determined assessment date subsidiary question evidence concerning level incapacity insured person taken account determination made answer question given previous authority clearly established decision court appeal inshuetrim leeming ja said 150 doubt medical psychiatric opinion expressed 2013 2014 relevant consideration tal probability mr shuetrim able return work july 2012 inmcarthur v mercantile mutual life insuranceat 74 muir j said medical report coming existence relevant time admissible provided pertinent determination appellant condition relevant time mcmurdo p agreed muir j mcpherson ja also agreed aspect muir j reason adding accorded principle court speculate may know 23 primary judge relied upon statement principle 151 recently high court decision infinch v telstra super pty ltd 2010 hca 36 242 clr 254at 18 confirmatory position materially identical clause trust deed high court said member entitled submit seen reason ceased telstra employee state affair making unlikely ever engage gainful work matter state affair arose telstra employee matter symptom state affair emerged clearly left telstra employment leeming ja found 153 tal breach duty act reasonably determining application based failure satisfied material around date assessment around end period absence work properly taken account recent material meant unlikely ever insurer made following submission omitting footnote 55 number single instance decision unlikely assessed separately first assessment balance probability 57 noted genesis reasoning decision ofwhite v board trustee 1997 2 qd r 659per white j 672 considered term unlikely ever separately found addition ever condition allows board look well future view affect degree unlikelihood regard must 58 effect disjunctive analysis lower evidential onus stage 2 assessment lower level satisfaction question probability 59 insurer submits treat word disjunctively resolve question unlikely balance probability error insurer submits use word unlikely ever conjunctive disjunctive composite phrase used commercial document issue principle decided court appeal inshuetrim leeming ja said 88 seems clear headnote white caused subsequent decision depart applied beverley well white j wiley accept tal submission case attempt express likelihood percentage term merely illusion mathematical precision also agree tal submission bracketed word tal policy tell construction headnote word confirm flow ordinary meaning language unlikely ever namely real chance person may return relevant work even though could said return relevant work probable insurer would satisfied definition applies unlikely ever context much stronger le 50 89 follows make assessment tpd sufficient insurer satisfied likely person never return relevant work hand merely remote speculative possibility person time future return relevant work insurer acting reasonably compliance duty able satisfied person tpd critical distinction possibility readily contemplatable even though may probable possibility remote speculative real chance person return relevant work even le 50 preclude insured person unlikely ever return relevant work 90 would reach conclusion independently authority note accord said beverley western australian court appeal 91 anticipate follows insured person unlikely ever return relevant work mean merely probable ever return relevant work primary judge understandably following stated headnote white two recent first instance decision applied incorrect test given nature probability inherent expression unlikely ever determined authoritatively need consider authority predateshuetrimin detail however issue require determination present case make necessary consider number additional question principle insurer relied decision hallen j inbirdsall v motor trade association australia superannuation fund pty ltd 2014 nswsc 632 upheld appeal 124 instance case word ever treated merely giving rise indication obligation look well future accept submission hallen j canvassed comprehensive way number authority dealt meaning expression unlikely ever see 109 118 apart rejected proposition unlikely required probability le 50 authority establish two proposition view survive decision inshuetrim first word unlikely set much lower test would posed insured establish absolute incapacity seeivkovic v australian casualty life ltd 1994 10 sr wa 325 351 anddavis v rio tinto staff superannuation fund pty ltd 2002 fca 376 2002 118 fcr 170 leeming ja repeated proposition inshuetrimat 64 second court must consider actual real possibility employment rather theoretical possibility seehalloran v harwood nominee pty ltd 2007 nswsc 913 nile v club plus superannuation pty ltd 2005 nswsc 55 jeffrey guy baker v local government superannuation scheme pty ltd 2007 nswsc 1173 sayseng v kellogg superannuation pty ltd 2003 nswsc 945 kenan berk v westpac security administration ltd anor 2010 nswsc 28 lazarevic v united super pty ltd 2014 nswsc 96 andfolan v united super pty ltd 2014 nswsc 343 sufficient set following extract authority sample view expressed judge innile brownie aj wrote 64 hodgson j pointed inchammas one must consider theory someone physically fit particular work also actual likelihood person obtaining employment meaning full time employment take substantially full time employment generally comparable plaintiff employment 1996 injury reasonably open plaintiff given plaintiff education training experience prospect actually obtaining employment job suggested dr innes brown remote perhaps non existent 65 notion employer might employ clerical work reconsidered light plaintiff affidavit one left wonder might realistically expected employ capacity given education training experience proposition might employed parking patrolman standing walking day equally unpersuasive given plaintiff statement affidavit medical evidence observe established permanent part time employment may sufficient seehannover life australasia ltd v dargan 2013 nswca 57 2013 83 nswlr 246 nicholas j said insayseng v kellogg superannuation pty ltd 2007 nswsc 583at 64 definition relates disability obtain future employment requires consideration whether evidence probable insured would actually obtain work reward e paid employment qualified education training experience whether condition disabled qualified court expected take realistic common sense approach assessment application definition directed reality affecting capacity insured consideration theory sayseng v kellogg superannuation pty ltd 2003 nswsc 945 per bryson j para 54 ivkovicp 351 nile v club plus superannuation pty ltd 2005 nswsc 55 para 64 65 68 court appeal expressly consider principle inshuetrim must taken continue operate stevenson j first instance inshuetrim 2015 nswsc 462 restated principle 39 specifically reference judgment innileandlazarevic court appeal make adverse comment aspect judgment leeming ja stated effect expression unlikely ever following term 89 hand merely remote speculative possibility person time future return relevant work insurer acting reasonably compliance duty able satisfied person tpd remote speculative possibility distinguished real chance may scope debate relationship leeming ja observation principle described immediately view entirely consistent merely different expression effect term unlikely ever leeming ja focused degree probability involved judge authority referred concerned required practical application unlikely ever test still necessary making determination whether tpd definition satisfied start medical evidence concerning nature fund member incapacity time determination prognosis recovery improvement level capacity necessary look forward date way real practical theoretical regard actual objective subjective circumstance fund member many case fund member residual capacity undertake work real chance recovery looking forward considerable number year justifies conclusion real chance fund member obtain relevant employment however decision inshuetrimdoes give licence case remains considerable number year potential working life immediate focus length period intuitive assessment real chance relevant employment basis anything might happen given long enough time happen practical term application unlikely ever test explained inshuetrim likely influenced substantially two factor first whether fund member may residual capacity relevant work time determination secondly whether symptom injury illness time stabilise time determination made factor limited application m wheeler case first expert psychiatric evidence contemporaneous rejection insurer m wheeler application incapacitated form employment time hearing insurer conceded position consequently m wheeler case residual capacity would justify enquiry likelihood would gain relevant employment balance working life question whether treatment natural spontaneous recovery m wheeler gain additional capacity question answered positively scope considering possibility gain relevant employment secondly although took number year happen time insurer rejected m wheeler claim five year elapsed since end period six month absence work m wheeler psychological disorder stabilised way enabled reporting psychiatrist conclude ptsd become chronic level incapacitation unlikely change balance working life accordingly problem actually arise present case determination made time substantial uncertainty m wheeler prognosis disorder yet stabilised therefore necessary case consider two factor refer detail merely observe relation first factor usually important distinguish case fund member currently totally incapacitated work fund member apparent residual capacity engage employment former focus must likelihood consequence recovery capacity latter focus likely likelihood real practical theoretical sense fund member capable undertaking work within relevant category actually likely obtain work nature relation second category number observation leeming ja inshuetrimwarrant note convenient recapitulate problem speaking generally doubt simplistically 70 person suffer ptsd likely recover least sufficiently give capacity relevant employment thirty percent sufferer likely become chronic may lose capacity relevant employment determination fund member entitlement tpd benefit made early treatment process medical conclusion fund member 70 chance recovery clearly cause fund member fail unlikely ever test even though 30 claimant may fact level incapacity employment satisfies tpd definition leeming ja 74 referred submission made senior counsel tal following term 74 mr jackman sc also made following submission n particular context clause reason appear definitional clause prefer stronger view real chance parenthetic word definition deal situation condition unclear something unclear scale finely balanced circumstance insurer ability defer assessment insurer come making assessment way definition operates proceeds assumption condition longer unclear clear one way clear one way one construe unlikely adding extra word sense unlikely clear difficulty applying test real chance confusion authority seems occasioned head note perhaps reasoning white j one point seemed proceed basis significant difference rightful formulation would submit honour correct ultimate conclusion reached submission based upon certain wording contained tal definition tpd present tpd definition policy relevant tpd definition insured person absent occupation illness injury 3 consecutive month insured person condition unclear reasonable defer assessment provided proof satisfaction u insured person become incapacitated extent render unlikely ever engage work reward occupation work reasonably qualified reason education training experience emphasis added tpd definition therefore expressly dealt least extent problem fund member condition unclear date application tpd benefit definition contemplates assessment may deferred condition become clear tal submission fund member condition unclear scale finely balanced insurer ability defer assessment assessment made fund member condition become clear difficulty applying test real chance right say uncertainty involved applying particular tpd definition may include first uncertainty nature incapacity secondly uncertainty prospect recovery thirdly likelihood obtaining relevant employment residual capacity tal definition deal appropriately first uncertainty accepted real commercial purpose policy give tpd benefit fund member fact incapacitated way satisfies tpd definition tal tpd definition remove uncertainty lead tpd claim rejected leeming ja responded tal submission saying 88 88 also agree tal submission bracketed word tal policy tell construction headnote word confirm flow ordinary meaning language unlikely ever namely real chance person may return relevant work even though could said return relevant work probable insurer would satisfied definition applies unlikely ever context much stronger le 50 head note referred head note report decision white j inwhite v board trustee 1997 2 qd r 659 necessary refer headnote point leeming ja accepted tal argument bracketed word tal tpd definition supported submission unlikely ever mean le 50 must involve acceptance argument tpd definition contemplated assessment would take place condition nature incapacity suffered fund member become clear appropriate equate unlikely ever real chance clearly leeming ja gave meaning unlikely ever insurer tpd definition term tpd definition blue ribbon policy present case gave term tpd definition tal policy inclusion bracketed word essential conclusion leeming ja reached however may respectfully wondered underlying assumption made leeming ja issue whether application tpd definition blue ribbon policy permitted assessment whether tpd definition satisfied time substantial uncertainty level incapacity caused fund member condition one possible pointer honour view observation made 111 response submission concerning likelihood return work would satisfy tpd definition might also warrant deferring assessment date peripheral observation may support proposition case assessment deferred give least reasonable time circumstance level incapacity suffered fund member become clear possible assessment made course unlikely illness injury neatly fall division allows period possible determine real long term incapacity caused fund member separately consider possibility partial recovery residual capacity work many illness injury lead substantial long term uncertainty outcome question whether insurer duty good faith fairness fund member require appropriate case insurer defer assessment fund member complaint least reasonable opportunity condition fund member caused illness injury stabilise least greatest extent reasonably possible give sound basis application tpd definition would involve attempt remove far reasonably possible degree uncertainty outcome caused uncertainty level incapacity suffered fund member would lead conscious attempt minimise possibility claim fund member genuine tpd wrongly rejected irrelevant uncertainty true level incapacity assessment date realism requires accepted consideration would need applied time claimant fund member likely demanding early assessment claim possible insurer determination m wheeler claimms wheeler applicationas stated last day m wheeler worked member new south wale police force 21 september 2010 m wheeler retired hurt employment 2 february 2012 5 march 2012 trustee sent m wheeler number form questionnaire completed order make tpd benefit application letter contained following insurer conducted initial review claim advise information required continue assessment may include obtaining copy relevant worker compensation file requesting information employer obtaining detailed report one treating doctor case may requested one independent medical examination insurer cover cost information request third party please note decision made insurer must reviewed trustee f outcome advised ensure outcome fair reasonable case accepted claim check correct amount insurance paid instruction may reflect term policy dealt making claim set term par 28 31 observed term contemplate insurer carry investigation m wheeler provide insurer evidence substantiate claim insurer may reasonably require fact remains tpd definition speak term insured person provided proof satisfaction practical matter process investigation appears governed claim term policy m wheeler made application tpd benefit completing hand pro forma document sent trustee signed application payment disabled benefit printed letterhead trustee 8 may 2012 also provided medical statement letterhead trustee insurer partly filled partly treating psychiatrist dr selwyn smith document completed 31 may 2012 8 may 2012 m wheeler also completed form called statement claim letterhead trustee insurer appears claim forwarded trustee insurer 2 july 2012 response question 5 medical statement please provide summary patient present condition including cause symptom diagnosis dr smith wrote three line made available m wheeler exposed significant number distressing traumatic event causing significantly decompensate symptom ptsd response question patient capability limitation totally incapable totally limiting stated m wheeler likely return work comment space provided comment simply capable working 12 july 2012 insurer wrote letter m wheeler sought provision certain information authority advised would request information directly dr smith m wheeler gp dr doan 2 august 2012 insurer wrote m wheeler requesting attend consultation dr richard burek purpose providing independent psychiatric opinion insurer 17 september 2012 insurer arranged m wheeler attend upon senior rehabilitation consultant 16 october 2012 purpose insurer given vocational assessment 19 november 2012 insurer arranged m wheeler participate factual interview conducted brooksight 10 december 2012 trustee wrote m wheeler 5 march 2013 requesting provide trustee tax return notice assessment year 2010 2011 instead insurer requiring m wheeler put forward material necessary satisfy insurer satisfied tpd definition assessment date accepted application based upon completion number form required m wheeler provide little information support application m wheeler unrepresented lawyer made application contrary entitlement make investigation insurer made nearly investigation made insurer investigation m wheeler claimbefore deal issue mention number matter affected ability determine insurer investigation proceeded manner first insurer called evidence claim manager explain reason course adopted insurer may usual course matter present limit ability court work really happening within insurer office secondly insurer file evidence sense sufficiently complete file enable court confident understand happened element insurer file evidence principally document insurer put forward basis implication document constituted whole material influenced insurer making determination assertion implication drawn supported evidence evidence also includes documentary communication received sent insurer case letter instruction expert provision report however correspondence disconnected claim material possible reconstruct file confidence insurer commissioned psychiatric report two psychiatrist shortly received m wheeler claim one dr selwyn smith m wheeler treating psychiatrist seen regularly least early 2011 date provided number medical report various correspondent well two report insurer psychiatrist dr richard burek provided two medico legal report insurer dr burek interviewed m wheeler one occasion 6 august 2012 ultimately insurer able rely upon evidence dr burek medico legal purpose proceeding discovered shortly date hearing began dr burek suffering dementia dr selwyn smith reportsas disclosed insurer 13august 2015 procedural fairness letter insurer obtained source assume probably worker compensation insurer number earlier report prepared dr selwyn smith relied upon making determination m wheeler claim convenient sake clear exposition deal dr selwyn smith report chronological order even though reflect order insurer received report report dated 24 march 2011 coincidently three day end six month m wheeler absent work dr smith reported allianz australia insurance ltd m wheeler opinion currently fit work within nsw police force m wheeler currently fit work externally nsw police force anticipate however time able engage productively work outside nsw police force opinion m wheeler prognosis returning nsw police force pre injury duty must viewed poor light chronicity symptomatologies stated treatment reintegrate m wheeler work policebut assist reintegrating alternative workoutside nsw police force emphasis added dr smith gave report employer mutual ltd 29 april 2011 said anticipate attendance post traumatic stress disorder sic considerably assist amelioration post traumatic stress disorder symptom difficult categorical regard m wheeler returning police force duty following attendance counselling therapy centre post traumatic stress disorder program would anticipate able engage alternative work shortly program completed guarded regard engaging pre injury duty emphasis added convenient interpolate reference report prepared dr graham george 29 august 2011 addressed employer mutual indemnity worker compensation ltd reason interpolation dr smith responded report next report considered dr george diagnosed m wheeler chronic ptsd major depression anxious mood gave opinion m wheeler capable participating employment life role however response question whether m wheeler symptom likely improve psychiatric treatment dr george responded hopefully symptom improve treatment dr george said m wheeler currently future able return work operational officer within nsw police force significantly response question substantial improvement m wheeler psychiatric condition since leaving work dr george responded improvement condition often case post traumatic stress disorder patient learn live ongoing symptom time often full recovery occur 23 september 2011 dr smith wrote report nsw police force asked respond dr george report dr smith said examined m wheeler 21 september 2011 report included 1 agree recommendation following dr george examination particular m wheeler unable return nsw police force capacity 3 opinion m wheelermay able engage work future outsidethe nsw police force previously worked nursing desire reintegrate nursing work exactly work could unable advise emphasis added dr smith wrote report employer mutual ltd 27 january 2012 included 3 m wheelermay capacity work alternative job new employer qualification enrolled nurse worked field since 1998 may require separate vocational evaluation determine 4 m wheeler avoid police related activity future occupation would supportive exploration regard alternative work within next week 5 believe m wheeler capacity participate vocational assessment approved rehabilitation providerin order establish new return work goal emphasis added 1 may 2012 dr smith wrote letter strategic rehab solution prepared vocational assessment report dated 10 april 2012 employer mutual ltd report found m wheeler capable working six occupation said suitable reference training experience qualification insurer relied upon vocational assessment report decided decline m wheeler application dr smith said generalshe would able undertake option suggested would however exclude undertaking work investigator engaging security working insurance investigator would probability difficult light previous adverse experience nsw police force advised m wheeler continues experience psychiatric symptomatology significance andmay able participate work trial job option may order emphasis added series report reflected dr smith professional understanding m wheeler capacity ability undertake work outside nsw police force time requested insurer provide report dr smith final word thought general m wheeler would able undertake work option identified strategic rehab solution may able participate work suggested trial job may order report prepared year assessment date reasonably clear basis evidence available incapacity caused m wheeler ptsd appear satisfy tpd definition insurer wrote letter instruction dr smith 12 july 2012 materially asked refer claimant total permanent disablement claim insurer assist u assessment claim would appreciated could provide u following information 2 current psychiatric diagnosis would please express dsm iv term make comment severity condition 3 please outline specific criterion satisfied make diagnosis 5 would please outline management plan including treatment frequency appointment please provide date treatment medication dosage 6 alternative strategy would consider current management plan unsuccessful 7 symptom preventing claimant returning work 8 claimant current work capacity 9 short long term prognosis including likelihood return previous work responsibility either full partial capacity 10 factor believe may contributing perpetuating condition e g relationship family medical substance abuse personality issue financial problem 11 claimant condition stabilising deteriorating improving information requesting primary purpose assessment investigation claim dr smith provided report insurer 31 july 2012 dr smith gave following psychiatric opinion opinion following initial examination m wheeler demonstrated diagnostic criterion post traumatic stress disorder association heightened level anxiety depression remained clinical care light ongoing symptomatologies opinion m wheeler could engage productive work nsw police force background supported discharge medical ground hurt duty accepted dr smith evaluated m wheeler dsm iv perspective chronic ptsd major depressive disorder current condition moderately severe relevantly response insurer question 8 9 11 dr smith answered 8 opinion m wheeler currently incapacitated work 9 short term prognosis must viewed poor may future return alternative work stated however present time possible 11 condition opinionhas stabilised emphasis added significantly dr smith advised insurer m wheeler condition stabilised currently capable working police officer alternative work may future return alternative work dr smith develop opinion relation likelihood m wheeler becoming capable alternative work considering circumstance might lead improvement psychological condition likelihood occurring provided opinion concerning whether real chance m wheeler able engage relevant work whether possibility remote speculative may noted insurer entirely failed ask dr smith treating psychiatrist likelihood mr wheeler gaining work future avenue employment previous work one year later 9 september 2013 dr smith provided psychiatric report m wheeler solicitor significant part report repeat dr smith already said earlier report insurer added 4 opinion m wheeler condition stabilised say injury become well settled static without treatment unlikely remit despite treatment m wheeler condition unlikely improve greater 3 ensuing 12 month 5 m wheeler engaged remunerative employment since leaving nsw police force difficulty engaging voluntary activity 6 likelihood m wheelerengaging work open labour market opinion must deemed poorgiven ongoing psychiatric symptomatologies limited educational experience outside nsw police force would difficulty focusing concentrating relating public large may able engage menial task 10 opinion m wheeler sprognosis must viewed guarded given length time experienced symptomatologies limited improvement date emphasis added course whole person impairment evaluation according workcover guideline dr smith said m wheeler suffered severe impairment relation adaptation m wheeler unable work 1 2 day time pace would reduced attendance would erratic course evaluation dr smith made observation relevant one ground upon insurer declined m wheeler application said relation social functioning m wheeler moderate impairment m wheeler reported strained relationship partner sexual interaction longer occurs relationship partner deteriorated significantly report begin show passage time failure m wheeler respond treatment dr smith becoming guarded whether would ever able engage employment 28 august 2014 dr smith wrote report agent insurer response letter dated 8 may 2014 dr smith asked respond strategic rehab solution vocational assessment report dated 10 april 2012 another report completed injury treatment dated 24 october 2012 significance report purpose present dispute dr smith expressed changed opinion whether m wheeler would capable engaging work kind future report considerable importance set relevant part detail highlight previous report m wheeler may capacity engage work outside nsw police force m wheeler intention undertake work discharged nsw police force supportive goal regard however express reservation pertaining psychiatric capacity undertake work noted m wheeler since discharge nsw police force progressed well psychiatric point view indeed experienced marked downturn mood point displayed diagnostic criterion major depressive disorder required readmission st john god hospital richmond light significant psychiatric symptom concern partially improved experienced marked symptom pertaining comorbid post traumatic stress disorder background arranged readmission st john god hospital richmond indeed time writing report remains clinical care st john god hospital richmond attending closed specialised post traumatic stress disorder program noted vocational assessment completed rehab strategy solution dated 10 april 2012 also noted time assessment m wheeler significantly improved residing husband two child noted relationship husband markedly deteriorated separated also noted mood also significantly deteriorated assessor highlighted m wheeler motivation go spending day inside required husband mother take appointment opinion consistent major depressive disorder noted employment history transferable skill suggested assessor also noted identified job option including administration assistant medical laboratory technician enrolled nurse inquiry clerk customer service officer office manager whilst vocation identified may theoretical point view deemed appropriate opinion assessor taken considerationms wheeler marked psychiatric disability view would prevent engaging occupation would lack self esteem self confidence sic undertake work would also lack ability focus concentrate relevant task required noted previously recommend m wheeler would able undertake suggested option exception investigative work involving security insurance subsequently light marked psychiatric deterioration recommended could engage work present time m wheeler incapacitated work noted hospitalised light psychiatric disorder response specific question raised letter 8 may 2014 would state follows 1 opinion m wheeler able perform abovementioned alternate occupation future full time part time capacity noted currently 36 year age 29 year remaining work based retirement age 65 year hopeful m wheeler would capacity engage work encouraging regard full compliance unfortunately deteriorated significantly point hospitalised st john god hospital partially improved guarded regard prognosis m wheeler continues demonstrate significantly low self esteem loss confidence marked impairment capacity concentrate retain information consistent comorbid major depressive disorder 2 main reason changed opinion relates significant downturn emotional state placing work situation feel cannot cope opinion would pose significant risk psychological harm remains markedly dependent others assist 3 m wheeler current psychiatric condition demonstrates significant symptom associated post traumatic stress disorder chronic induration well comorbid major depressive disorder current treatment includes hospitalisation ongoing cognitive behaviour therapy supportive psychotherapy pharmacotherapy 4 whilst noted recommendation vocational assessor also noted detailed psychological evaluation undertaken assessor regard m wheeler capacity undertake work appears clearly report dr smith changed position m wheeler prognosis particular capacity future engage work specifically occupation suggested strategic rehab solution m wheeler suffered marked psychiatric deterioration nothing report report prepared dr smith suggests m wheeler ptsd comorbid major depressive disorder caused factor experience caused leave work police force dr smith mentioned m wheeler marital problem context observation time rehab strategy solution vocational assessment completed m wheeler significantly improved residing husband two child noted relationship markedly deteriorated m wheeler husband separated dr smith provide opinion separation way new cause m wheeler psychological condition intervened cause symptom exacerbation symptom could directly traced experience working police force noted insurer provide dr smith comment investigation report insurer ultimately relied upon deciding decline m wheeler application seen view significant omission consequence insurer made determination expert psychiatric evidence whether activity m wheeler described investigation report much suggested m wheeler may capable operating normally inconsistent medical conclusion dr smith expressed concerning capacity employment evidence explain insurer sought expert psychiatric opinion conclusion reached vocational assessment report investigation report dr richard burek reportson 21 july 2012 insurer wrote letter psychiatrist dr burek seeking independent report different term letter written dr smith relevantly insurer said claimant 35 year old pre disability occupation police officer full time nsw police force reported date last worked 20 09 2010 ceased work due claimed condition claimant worked capacity since time claimant currently applying total permanent disability benefit would appreciated would perform examination furnish u written report report would like address following issue 1 brief description claimant including height weight hair colour distinguishing feature 2 diagnostic finding present diagnosis claimant condition 3 history please obtain provide comprehensive history aetiology chronology claimant past present difficulty treatment regimen employed date treat 4 treatment compliance treatment claimant currently receiving condition sic satisfactorily complying sic present treatment regimen please note area problem compliance may exist 5 treatment efficacy form treatment currently recommend opinion regarding efficacy claimant current treatment regimen please specific possible outlining alternative treatment recommendation indicate specific problem area circumstance may need addressed 6 motivation claimant motivated attempt return sic usual occupational work full time part time basis lack motivation problem attributable clinical symptomatology non clinical medical issue factor 7 secondary gain secondary gain either disability benefit factor circumstance playing role perpetuating claimant current presentation undermining sic willingness return gainful employment full time part time basis 8 work related ability limitation please kindly claimant describe sic duty previous role light information please advise whether consider role sedentary type work nature whether claimant currently medically fit type work part time full time basis condition illness currently present would render claimant partially totally incapable meeting duty responsibility required sic usual full time occupational work police officer please explain claimant presently able work capacity limitation restriction please specify degree type limitation would place sic also provide basis limitation note limitation may expressed term reduced number hour per day week percentage normal occupational duty may specified limitation restriction particular function within job description 9 prognosis claimant currently able return work full time part time capacity prognosis regarding claimant prospect recovery eventual return sic usual occupational work police officer full time 40 hour per week capacity medical opinion claimant might able return sic usual occupational work police officer full time basis foreseeable future estimated timeframe step would mr westwood sic need undertake many hour per week claimant would medically considered capable working medical opinion possibility claimant return work usual occupation type work suitable mr westwood sic view education training experience current condition consider claimant become incapacitated extent render sic unlikely ever age 65 engage gainful profession trade occupation reasonably qualified reason education training experience emphasis original dr burek apparently assessed m wheeler 6 august 2012 clear long consultation lasted provided report insurer dated 17 august 2012 dr burek agreed present diagnosis m wheeler condition chronic ptsd major depressive episode however gave following opinion concerning m wheeler treatment regime m wheeler testimony traumatic depressive symptom remain already described treated one antidepressant mood stabiliser m wheeler state mother going see dr selwyn smith next week possible may admitted inpatient consider need antidepressant reviewed antidepressant medication could trialled consider current treatment ineffective pharmacological point view one antidepressant lovan testimony 20 mg little impact improvement 40 mg ativan medication taking help sleep symptomatic treatment adequate another antidepressant trialled still significant symptom consideration could given mood stabiliser may help traumatic night time experience medication help sleep e g stilnox imovane phenergan dr burek said m wheeler lack motivation problem attributable clinical symptomatology also said evidence secondary gain playing role perpetuating m wheeler presentation dr burek also said m wheeler could currently work capacity relation crucial issue work m wheeler might capable possibility return usual occupation dr bureck said consider possibility m wheeler return work usual occupation trained enquiry whether could return nursing consider highly unlikely nursing work entail sort problem would deal emotionally confronted drownings suicide murder already exposed also state worked two year nursing ended 1999 consider m wheeler incapacitated extent never age 65 engage gainful profession trade occupation currently treatment could improved stated formulation permanently incapacitated emphasis added last opinion significant dr burek stated without explanation consider m wheeler incapacitated extent wouldneverengage gainful profession fact insurer asked dr burek express opinion correct question whether m wheeler unlikely ever age 65 engage relevant employment dr burek however answered different question said consider m wheeler never engage relevant employment question went heart tpd definition ought clear insurer dr burek precision required criterion never absolute stringent one criterion unlikely ever seeshuetrimat 65 former requires formation positive opinion zero chance event happening latter may satisfied even though fact real chance even though unlikely event occur seen observation involve mere splitting hair 4 september 2015 letter advising m wheeler reason denial application insurer specifically relied upon aspect dr burek report said report dated 17 august 2012 dr burek consider miss sic wheeler incapacitated extent never age 65 engage gainful profession trade occupation furthermore dr burek clearly linked conclusion m wheeler permanently incapacitated opinion currently treatment could improved follows use expression statement opinion currently treatment could improved stated formulation permanently incapacitated evidence court insurer relied upon statement opinion dr burek without following way either suggestion m wheeler condition would improved change medication appearance dr burek opinion m wheeler permanently incapacitated dependent upon doctor view condition would improved medication changed insurer ignored issue reason gave denying m wheeler claim one consequence insurer refusal provide dr burek report trustee m wheeler solicitor time procedural fairness letter m wheeler given real opportunity respond dr burek suggestion thought beneficial trial new medication see whether effect expected doctor 10 may 2013 insurer asked dr burek whether agreed finding vocational assessment report m wheeler would point capable performing identified work option either part time full time capacity dr burek response advise thatms wheeler would point capable performing identified work optionsin either part time full time capacity interviewed m wheeler 06 august 2012 seen since time able work due ongoing psychiatric symptomatology emphasis added even allowing practical commercial setting report written opinion given dr burek stated remarkably bald way supported reasoning whatsoever extremity dr burek response demonstrated fact seen m wheeler eight month previously dr burek also specifically asked comment whether perceived difference history m wheeler given single consultation material contained factual investigation report concerning enquiry made representative police force one hand history given m wheeler shown dr smith report relation information obtained police force dr burek observed gave information problem directly relating fellow officer problem denied promotion history apparently provided dr smith dr burek pointed statement dr smith report said compound emotional symptomatologies m wheeler also reported bullied harassed work colleague superior attempt mediation particular man distressing dr burek observed dr smith gained information gain important inconsistency information gained u perplexing apparently minor difference dr burek told m wheeler single consultation insurer learned enquiry representative police force history m wheeler apparently gave dr smith significance significance explained dr burek inconsequential matter letter reason declining m wheeler application insurer said dr burek asked insurer consider history given member dr smith dr burek dr burek noted dr smith taken history bullied harassed work colleague superior attempt mediation distressing dr burek noted dr smith gained information gain important inconsistency information gained u implication appears m wheeler frank history gave two doctor consideration must influenced insurer decision making process said importance information entirely unexplained one review history contained report two doctor becomes clear m wheeler gave complex comprehensive consistent history particularly given psychological condition expected would entirely exhaustive time required explain history new doctor dr robert wotton reportsdr robert wotton consultant psychiatrist provided medico legal report employer mutual nsw ltd 30 july 2014 12 november 2014 insurer referred report determined m wheeler application later report provided insurer mean m wheeler solicitor letter solicitor insurer 27 march 2015 dr wotton examined m wheeler 30 july 2014 12 november 2014 fair say dr wotton report appear well reasoned 30 july 2014 report dr wotton recorded february year m wheeler hospitalised four week treatment ptsd depression dr wotton set following result mental state examination carried mr wheeler appeared anxious beginning interview diminish throughout hour half saw although good historian able outline number traumatic event experience life police woman mr wheeler time unable give strict chronology event said outset memory longer accurate gave convincing account accumulated trauma workplace series either threat life close counter horrific tragic death others time tearful relation particularly loss identity police woman obviously distressed degree emotional restriction illness caused affect appropriate mood sign psychotic form thinking mr wheeler appeared genuine woman average intelligence good insight condition psychiatric diagnosis post traumatic stress disorder heading fitness work dr wotton said based review particularly treating psychiatrist dr smith assessment believe mr wheeler fit work significantly affected symptom struggle maintain household heading permanent impairment dr wotton opined unable determine whether condition reached point maximum medical improvement still treatment option open mr wheeler think would best evaluated following second attendance st john god adult trauma program agree assessment dr selwyn smith overall condition prognosis dr wotton provided 12 november 2014 report additional examination m wheeler benefit report st john god hospital m wheeler gave information dr wotton result four week spent inpatient st john god hospital m wheeler told dr wotton relationship husband broken subject raised time m wheeler earlier examination dr wotton dr wotton observed surprisingly emotionally unresponsive describing deterioration marriage husband leaving prospect life without emotionally numb unfolding event frank degree must underestimated impact illness husband capacity cope dr wotton conclusion m wheeler recent treatment st john god hospital change diagnosis m wheeler symptom relief period treatment st john god hospital still markedly symptomatic clinically impaired condition relation m wheeler fitness work given improvement overall occurred given mr wheeler may facing permanent separation husband highly unlikely ever fit work emphasis added dr wotton said m wheeler condition reached point maximum medical improvement made evaluation permanent impairment respect employability said still majorly impaired symptom day function adequately hour likely followed day unable function would totally unreliable reason work place setting vocational assessment reportsthe insurer relied upon two vocational assessment report rejected m wheeler application first prepared m lauren gow strategic rehab solution employer mutual ltd 10 april 2014 following meeting m wheeler 29 march 2014 report appears face professionally prepared identified m wheeler several transferable skill would permit undertake following occupation insurance officer welfare officer office manager investigator fraud security loss prevention control room alarm monitoring insurance investigator report noted m wheeler diagnosed ptsd anxiety also noted m wheeler said hopeful condition would improve future noted m wheeler description psychological function described number limitation ability function continued formal evaluation m wheeler psychological status conducted vocational assessment m wheeler reported advised sic psychiatrist nominated treating doctor dr selwyn smith unable return police force second vocational assessment report provided 24 october 2012 injury treatment insurer author m maura goonetilleke assessed m wheeler 16 october 2012 m goonetilleke benefit dr smith report dated 1 may 2012 well strategic rehab solution report dr smith report short report said general m wheeler would able undertake option suggested strategic rehab solution may able participate work trial job option may order apparently consideration m wheeler psychological condition undertaken m goonetilleke identified five potential area employment administration assistant medical laboratory technician enrolled nurse inquiry clerk customer service officer office manager investigation reportsin period 20 july 2012 28 may 2014 insurer obtained six investigation report advised procedural fairness letter proposed take account report cover many matter appropriate look procedural fairness letter identify information report insurer considered significant first report prepared ahc investigation 20 july 2012 reported m wheeler listed player 2012 camden district netball association benkennie booster m wheeler played last five eight game second report ahc investigation dated 12 september 2012 related surveillance five day 3 august 2012 31 august 2012 m wheeler seen active away residence day engaged matter shopping local shopping centre attending local hospital attending medical clinic departing netball game conversing various person appeared sustain injury playing netball 18 august 2012 brooksight investigation provided report insurer 17 december 2012 interview carried m wheeler 10 december 2012 procedural fairness letter insurer described information report support m wheeler claim following term provided history interpersonal conflict involving senior constable herman pereira girlfriend chris also worked local area command advised required participate mediation senior constable herman pereira unsuccessful mention unsuccessful job application role awarded senior constable pereira brooksight investigation also provided report dated 7 march 2013 concerning interview member nsw police force apparent significance report insurer also said support m wheeler claim m wheeler unsuccessful application promotion 13 march 2010 role awarded officer m wheeler made allegation bullying harassment report ahc investigation dated 22 may 2014 insurer advised m wheeler active member boston terrier club nsw dog shown number award various show held 23 march 2014 18 may 2014 dog also exhibited award 21 december 2013 dog nsw christmas show dog best show 2014 royal easter show also shown various location including wollongong blacktown goulburn liverpool report also identified m wheeler facebook smiling socialising friend insurer also referred report ahc investigation dated 28 may 2014 although state m wheeler sighted surveillance operation carried period 16 may 2014 24 may 2014 attempt trustee m wheeler obtain informationms wheeler present solicitor became involved matter first time 5 august 2013 day wrote trustee requested information concerning status tpd application whether trustee waiting information information also requested copy vocational report psychiatric report brookside transcript prepared response step insurer asked m wheeler take support claim also asked copy medical report held insurer trustee added appreciate sufferer post traumatic stress disorder ptsd mr wheeler anxiety regarding issue prompt response letter would great assistance reassurance 5 august 2013 m wheeler solicitor wrote letter insurer enclosed copy letter trustee date authority executed m wheeler 23 july 2013 document provided solicitor relation claim solicitor also said would obliged insurer could provide written confirmation status claim trustee provided certain technical information solicitor 21 august 2013 advised response received insurer solicitor would advised 4 september 2013 trustee wrote solicitor request privacy request form completed insurer could release copy report held file trustee advised insurer process completing full file review also sending dr smith request asking comment vocational assessment factual report interpolate insurer actually make request dr smith 8 may 2014 9 september 2013 solicitor wrote trustee questioning insurer need formal privacy authorisation given solicitor already sent trustee 23 july 2013 authority m wheeler deal solicitor solicitor asserted assert obligation trustee insurer insurer open transparent respect process leading determination client tpd claim obligation assert includes provision relevant documentation 11 october 2013 trustee asked solicitor provide completed privacy request form without responding solicitor 9september 2013 letter trustee responded letter 18 october 2013 advising forwarded solicitor letter insurer trustee wrote solicitor 4 november 2013 stated requested insurer release medical report solicitor requested trustee within 14 day 4 november 2013 trustee wrote letter insurer included following provided copy correspondence member solicitor insurer relation member request insurer release medical report hold possession connection assessment member tpd claim note insurer continuing ass member claim also note insurer advised member solicitor order consider request release medical report hold member need complete form entitled request access personal information pay fee 25 00 cover insurer administration cost trustee note following 1 member signed declaration authority authorises insurer disclose personal information sic fund trustee administrator 2 npp 6 requires insurer provide member access personal information request member unless one exception set npp 6 apply light correspondence recently received insurer privacy officer trustee anticipates insurer rely upon npp 6 1 f refuse provide requested medical report trustee view insurer approach request member solicitor way proper basis refuse member access requested medical report presently negotiation foot member claim assessment know trustee duty act best interest member everything reasonable pursue sic insurance claim claim reasonable prospect success trustee considers member request insurer released medical report hold possession connection assessment sic tpd claim reasonable request one insurer consider favourably regard please provide trustee medical report insurer possession connection assessment member tpd claim within 14 day trustee provide report member solicitor accordance request insurer agree provide trustee medical report member solicitor requested please provide trustee detailed reason supporting decision infer reference npp 6 1 f reference part national privacy principle found schedule 3 theprivacy act 1988 cth provision 6 1 organisation hold personal information individual must provide individual access information request individual except extent f providing access would reveal intention organisation relation negotiation individual way prejudice negotiation evidence show whether insurer relying upon provision respond trustee letter 25 november 2013 m wheeler solicitor wrote another letter trustee asked whether response received insurer asked copy vocational assessment psychiatrist report report brooksight investigation also said appreciate twelve 12 month since client undertook examination interview still awaiting determination claim please advise whether insurer awaiting documentation make determination trustee wrote insurer 26 november 2013 reiterated request made 4 november 2013 letter requested insurer provide detailed reason supporting decision decline provide trustee medical report requested m wheeler solicitor later thancob 28 november 2013 emphasis original trustee letter continued addition please find enclosed copy correspondence member solicitor addressed f trustee dated 25 november 2013 please note member solicitor requesting urgent update regard status member claim requesting advice whether insurer awaiting documentation order finalise determination please provide f trustee urgent response forwarded member solicitor trustee also take opportunity put insurer notice member solicitor litigates respect length time insurer taking finalise assessment claim excess sixteen 16 month trustee seek recovery defence cost insurer look forward urgent response trustee wrote insurer 11 december 2013 noted received response letter 4 28 november 2013 said call provide copy document obtained received respect claim except document sent u also call provide qualifying instructing letter sent respect claim letter refers described portal evidence explain portal however apparently enabled trustee identify insurer seven type information including medical report vocational assessment factual interview report letter state trustee call includes limited document letter continues properly answering call important incident duty contract consider claim reasonably form proper opinion whether satisfied insured member meet second limb total permanent disablement definition unless already determined pay benefit discharging contractual obligation properly inform requires provide material consideration trustee review u obtain comment insured member expert legal advice deem appropriate furthermore duty utmost good faith trustee cooperate trustee achieving contractual object includes duty give proper disclosure respect claim duty disclose limited evidence consider adverse claim intend rely includes evidence supportive claim read material capable supporting submission favourable claim persistent failure answer correspondence provide requested document actionable breach contract please let u response matter urgency 5 pm 13 december 2013 satisfactory response date refer matter solicitor action m wheeler solicitor wrote reminder letter trustee 16 december 2013 sought prompt response trustee wrote m wheeler solicitor 20 december 2013 say trustee raised concern insurer number occasion issue resolved requested documentation would promptly provided solicitor insurer respond trustee correspondence solicitor wrote trustee 11 april 2014 referred letter trustee dated 20 february 2014 appear evidence noted m wheeler claim consideration approximately 23 month said determination long overdue set detailed chronology correspondence balance letter included following remind mr wheeler suffering serious psychological injury continued delay serving exacerbate already significant anxiety matter note lodged claim dealing trustee insurer approximately fifteen 15 month mr wheeler psychological symptom acute compelled retain office act behalf assert delay likely significant impact client psychological well sic strengthen potential damage interest claim trustee insurer failing handle matter due dispatch due length time amount evidence presently insurer see determination made matter formally request matter reviewed determination reached matter urgency determination fail communicated u withintwenty eight 28 daysfrom date letter take constructive declination claim initiate proceeding supreme court seeking declarative relief including claim interest legal cost without notice confirm copy letter provided insurer emphasis original trustee wrote solicitor 5 may 2014 advised appreciated m wheeler frustration said trustee escalated m wheeler tpd claim insurer said trustee would defend claim made trustee also wrote insurer 5 may 2014 enclosed copy solicitor 11april 2014 letter necessary set term letter detail repeated complaint demand trustee made number occasion included ask provide u comprehensive status update respect insurer assessment tpd claim byno later close business thursday 8 may 2014 including whether insurer awaiting information considers information necessary enable make determination expected timeframe receipt please also address concern raised member solicitor enclosed correspondence event receive satisfactory response specified time may refer matter solicitor action emphasis original insurer responded 8 may 2014 response included acknowledge concern raised correspondence confirm matter referred dispute resolution officer provide substantive response within 45 day date date sic letter regarding status sic claim advise undertaken review claim written dr smith updated information expect response within 30 day date request continue follow request ensure timely completion appreciate member cooperation regard upon receipt information notify fund provide status update seems extremely likely trustee letter date prompted insurer initiate request seen request caused dr smith provide updated opinion explained experience treating m wheeler caused form following conclusion opinion m wheeler able perform mentioned alternative occupation future full part time capacity 26 may 2014 trustee wrote m wheeler solicitor inform insurer response m wheeler filed statement claim matter 11 june 2014 trustee defence filed 14 november 2014 insurer defence filed 18 march 2015 nothing happened far insurer communication trustee m wheeler solicitor concerned appears 2 march 2015 letter m wheeler solicitor solicitor insurer dated 27 march 2015 refers letter solicitor dated 2 march 2015 letter particular significance asked whether insurer entitled take account content affidavit served m wheeler proceeding m wheeler solicitor enclosed copy report dr robert wotton dated 12 november 2014 asked insurer take report account making determination m wheeler application tpd benefit five month elapsed 13 august 2015 insurer sent procedural fairness letter m wheeler deal term letter m wheeler response insurer letter dated 4 september 2015 declined m wheeler application present purpose note 4 september 2015 letter declining application contained following statement setting tpd definition policy member entitlement payment tpd benefit requires member provide proof satisfaction 21 march 2011 relation policy final conclusion stated insurer member provided proof matter insurer satisfaction required policy consequently tpd benefit payable pursuant relevant policy procedural fairness letteras stated insurer wrote procedural fairness letter m wheeler 13 august 2015 gave 14 day make submission response letter contained outline analysis evidence separately heading evidence support tpd claim evidence support tpd claim letter substance extracted material doctor report vocational assessment report investigation report summarised accompanying schedule extracted available material additional detail perhaps notable feature letter nearly information unfavourable claim came existence m wheeler filed statement claim 11 june 2014 almost information supported claim came existence afterwards m wheeler solicitor responsems wheeler solicitor sent response insurer solicitor 27 august 2015 said appeared coincidence procedural fairness letter written week case due heard suggested attempt insurer require m wheeler overcome new hurdle show reason insurer would give rejecting claim attended relevant error solicitor claimed insurer delay responding m wheeler claim amounted serious breach duty good faith fairness perhaps result limited time given response brief engage detail procedural fairness letter significant degree unlike situation inshuetrim present case m wheeler solicitor respond procedural fairness letter inviting insurer make decision immediately claim seeshuetrimat 104 insurer rejection plaintiff claimthe insurer pleaded defence made determination reject m wheeler application tpd benefit 2 september 2015 wrote trustee advising reason 4 september 2015 insurer made submission effect final submission point evidence actual determination made 2 september 2015 insurer call relevant claim manager documentary evidence actual determination find insurer proved determination occurred 4 september 2015 insurer wrote letter trustee informed trustee rejected m wheeler claim set reason decision necessary set insurer letter full refer member claim total permanent disability tpd benefit pbri policy f policy wrote fund member 13 august 2015 providing opportunity comment information metlife obtained assessment tpd claim received letter slater gordon addressed turkslegal dated 27 august 2015 providing member response letter 13 august 2015 received response fund deciding whether member tpd defined policy regard must unlikelihood return work date 6 month date last worked member last worked 21 september 2010 relevant date assessment 21 march 2011 member entitlement payment tpd benefit requires member provide proof satisfaction 21 march 2011 pbri policy absent occupation employer injury illness six month become incapacitated extent render unlikely ever engage gainful profession trade occupation reasonably qualified reason education training experience f policy absent occupation employer injury illness six month become incapacitated extent render unlikely ever engage work reward occupation work reasonably qualified reason education training experience purpose ascertaining whether member unlikely ever return work within term definition metlife regard retirement age 65 hence whether member date assessment incapacitated extent unlikely return work time prior reaching age 65 letter solicitor salter gordon dated 27 august 2015 member place reliance upon suffered post traumatic stress disorder ptsd major depressive disorder 2010 date letter slater gordon misconceives question metlife determine emphasising situation 2015 rather date assessment letter also misconceives question metlife required consider assessing claim solicitor describes plaintiff employable 5 year unemployability question metlife required determine respect pbri f policy set reason discussed letter 13 august 2015 metlife formed opinion member date assessment become incapacitated extent render unlikely ever engage gainful profession trade occupation work already reasonably qualified reason education training experience letter member solicitor dated 27 august 2015 persuaded metlife form opinion date assessment member become incapacitated extent render unlikely ever engage work already reasonably qualified reason education training experience age 65 report dr smith psychiatrist dr wotton psychiatrist dr richard burek psychiatrist pertinent member condition 21 march 2011 dr smith report dated 24 march 2011 considered member currently fit perform work external nsw policy force anticipated time able engage productively work outside nsw police force concluded treatment would assist reintegrating member alternative work outside nsw police force dr smith provided report shortly thereafter dated 29 april 2011 stating anticipated member would able engage alternative work shortly completing post traumatic stress disorder program dr smith noted later report 23 september 2011 27 january 2012 1 may 2012 31 july 2012 member may able engage work future outside nsw police force state opinion contingent time upon member response treatment report dated 28 august 2014 dr smith referring vocational option identified strategic rehab solution report discussed stated m wheeler able perform abovementioned alternative occupation future full time part time capacity dr smith opinion regarding member capacity work expressed well date assessment dr smith described downturn member emotional state well relevant date context current marital crisis report dated 17 august 2012 dr burek consider miss wheeler incapacitated extent never age 65 engage gainful profession trade occupation concluded currently treatment could improved stated formulation permanently incapacitated letter 13 august 2015 specifically drew attention report dr wotton consultant psychiatrist dated 12 november 2014 supportive tpd claim letter member solicitor dated 27 august 2015 alleges metlife appear taken dr wotton report consideration considering plaintiff tpd status incorrect member solicitor also asserts report dr wotton dated 12 november 2014 supportive plaintiff claim elaborate manner report supportive claim note dr wotton considered report dated 3 july 2014 early determine whether member obtained substantial benefit treatment recommended outpatient treatment later report 12 november 2014 dr wotton considered given improvement overall occurred given m wheeler may facing permanent separation husband highly unlikely ever fit work dr wotton opinion expressed date assessment m wheeler 12 november 2014 well date assessment dr wotton considered gain treatment member would receive would depend stress coming extraneous factor example impact member current marital issue marital issue described point time well date assessment member fact unlikely ever return work consequence marital issue situation arose well relevant date metlife assessment claim member solicitor asserts letter dated 27 august 2015 even plaintiff could work clearly cannot employment would available circumstance correct vocational assessment report dated 10 april 2012 24 october 2012 identify various work option suitable member within education training experience one report obtained member worker compensation insurer obtained metlife purpose tpd claim local labour market analysis report confirmed advertised position considered suitable member available around area resided dr smith dr burek considered member could undertake job identified vocational assessment dr smith indicated 1 may 2012 member could undertake least three job identified recommended trail job two month later 31 july 2012 dr smith reason explained expressed view member time incapacitated work investigation report dated 20 july 2012 revealed member continued play netball benkennie booster division 4 netball team harrington park around april 2012 august 2012 surveillance revealed member observed 18 august 2012 attendance local netball court wearing netball attire subsequently day leaving hospital right arm sling left knee bandaged member participation team netball contrary functionality reported member medical practitioner examined reported period dr smith recorded report dated 31 july 2012 history provided member remains markedly avoidant lack confidence experienced loss self esteem self confidence history inconsistent participation benkennie booster netball team member described medical practitioner certain barrier engaging work avoidant lack confidence loss self esteem self confidence inconsistent investigation report revealing member active member boston terrier club nsw dog winning number award including best show royal easter show 2014 member dog shown various show regional southern location new south wale investigation report dated 22 may 2014 includes photograph member facebook profile dated 15 april 2015 holding award dog member also active social medium since 2012 number photograph member posted facebook profile socialising friend dr burek asked metlife consider history given member dr smith dr burek dr burek noted dr smith taken history bullied harassed work colleague superior attempt mediation distressing dr burek noted dr smith gained information gain important inconsistency information gained u dr burek asked consider vocational assessment report dated 24 october 2012 role identified report administration assistant medical laboratory technician enrolled nurse inquiry clerk customer service office manager dr burek considered member would point capable performing identified work option either part time full time capacity noted time examination 6 august 2012 able work due psychiatric symptomology however dr burke opinion time member incapacitated extent unlikely return work within education training experience time prior reaching age 65 metlife decisionpbri policymetlife formed opinion member become incapacitated extent render unlikely ever engage gainful profession trade occupation reasonably qualified reason education training experience date assessment member provided proof matter metlife satisfaction required policy consequently tpd benefit payable pursuant pbri policy f policymetlife formed opinion member become incapacitated extent render unlikely ever engage work reward occupation work reasonably qualified reason education training experience date assessment member provided proof matter metlife satisfaction required policy consequently tpd benefit payable pursuant f policy dispute resolutionwe note matter presently subject litigation member require clarification information please direct request legal adviser noted insurer begin stating entitlement receive tpd benefit requires member provide proof insurer satisfaction 21 march 2011 satisfied tpd definition fact insurer took almost exclusive control investigation determine whether tpd definition satisfied significant aspect letter follows reference m wheeler solicitor statement 27 august 2015 response fact m wheeler placed reliance upon suffered ptsd major depressive disorder 2010 date insurer state letter misconceives question insurer determine emphasising situation 2015 rather date assessment letter also misconceives question insurer required consider assessing claim solicitor describes plaintiff employable 5 year unemployability insurer analysis turn various report prepared dr smith dr burek dr wotton dr smith insurer start referring observation dr smith 24 march 2011 29 april 2011 23 september 2011 27 january 2012 1 may 2012 31 july 2012 report admit possibility m wheeler might able engage work outside police force time future set relevant part report none report actually addressed question whether m wheeler real chance returning work occupation police officer whether chance really remote speculative issue dealt technical manner insurer refers dr smith report dated 28 august 2014 wherein explained changed opinion m wheeler able future undertake type employment identified strategic rehab solution crucial observation made insurer dr smith option regarding member capacity forwork expressed well date assessment dr smith described downturn member emotional state well relevant date andin context current marital crisis emphasis added insurer reliance upon dr burek report focused part report doctor stated m wheeler would never engage gainful employment currently treatment could improved stated formulation permanently incapacitated relation dr wotton report insurer noted dr wotton considered 3 july 2014 report early determine whether m wheeler obtained substantial benefit treatment recently received insurer focused statement dr wotton effect given improvement overall occurred given m wheeler may facing permanent separation husband highly unlikely ever fit work case dr smith last report insurer focused date assessment dr wotton reference m wheeler marital problem significant part letter state dr wotton opinion expressed date assessment m wheeler 12 november 2014 well date assessment dr wotton considered gain treatment member would receive would depend stress coming fromextraneous factor examplethe impact member current marital issue marital issue described ata point time well date assessment member fact unlikely ever return work consequence marital issue situation arose well relevant datefor insurer assessment claim emphasis added rejection m wheeler tpd claim reasonable convenient deal first issue whether insurer rejection m wheeler tpd claim invalid rejecting claim insurer breached duty act reasonably determining whether satisfied m wheeler satisfied tpd definition date assessment insurer reliance upon medical report dr smith dr wottonthe first question arises reasonableness process reasoning adopted insurer concern validity assertion question whether tpd definition satisfied end six month period absence work medical evidence m wheeler incapacity brought existence relatively contemporaneously date assessment prevail medical evidence suggests different result brought existence many year later fair reading insurer letter relied upon view concerning time preparation medical report separate reason rejecting m wheeler application follows statement concerning dr smith report dr smith opinion regarding member capacity work expressed well date assessment relation dr wotton report insurer said dr wotton opinion expressed date assessment m wheeler 12 november 2014 well date assessment case insurer preface subsequent reference significance m wheeler marital problem word suggests insurer considered marital issue additional separate one view report prepared dr smith 31 july 2012 report would stood alone superficially justified insurer forming view satisfied m wheeler satisfied tpd definition date assessment however even reasonably close reading report actually address crucial question whether m wheeler real chance engaging alternative relevant employment whether chance merely remote speculative possibility dr smith 9september 2013 report equivocal reflected fact insurer procedural fairness letter list extract report evidence support evidence support heading 28 august 2014 report dr smith explicitly rejected earlier opinion explained formed opinion m wheeler would able perform identified occupation either future expected date retirement reason given established whether determination made insurer court question whether tpd definition satisfied assessment date however inclusion tpd definition wording provided proof satisfaction effect matter language practical necessity relevant proof proof insured person able provide insurer period time insurer make determination whether satisfied error principle inconsistent proper construction tpd definition insurer discount later medical evidence way favour medical evidence contemporaneous date assessment tpd definition require fact insured person absent work six consecutive month b absence caused illness injury c insured person become incapacitated requisite extent authority establish required incapacity must exist end period however tpd definition require clear end period insured person required incapacity sense material available time demonstrates insured person unlikely ever engage relevant occupation question whether insured person fact incapacitated relevant way evidence probative question brought existence date assessment date determination must taken account much confirmed judgment leeming ja inshuetrimat 150 151 view unreasonable insurer discount principle final report dr selwyn smith also last report dr wotton relative remoteness time report date assessment comparison report insurer determination must found invalid essentially reason given leeming ja inshuetrimat 153 given dr smith particular changed medical opinion would reasonable insurer require doctor provide comprehensive justification change position however simply rejected dr smith opinion preferring opinion set earlier report significance m wheeler separation husbandif correct insurer must give proper weight evidence received time determination made regard possibility later evidence may accurate true state incapacity m wheeler suffered end period absence work earlier evidence must therefore remain open insurer ass whether later evidence pointing permanent incapacity truly reflects level incapacity assessment date whether new intervening cause exacerbated incapacity fair reading insurer 4september 2015 letter acted basis declining m wheeler claim final opinion dr smith dr wotton stated reason m wheeler permanent incapacity addition separation husband pre existing psychological condition implication insurer reasoned m wheeler incapacitated requisite degree assessment date later separation husband compounded psychological illness produced effect view reasonable insurer proceed upon basis dr smith dr wotton given opinion m wheeler separation husband separate cause incapacity made incapacity permanent permanent end period absence work true position appears clearly analysis change evident dr wotton 30july 2014 12 november 2014 report earlier report dr wotton stated february 2014 m wheeler hospitalised four week treatment ptsd depression conclusion report best m wheeler evaluated following second attendance st john god adult trauma program later report revisited m wheeler condition attended program dr wotton examination m wheeler 12 november 2014 advised separation husband view matter fact proper conclusion drawn reversal m wheeler psychological condition caused m wheeler hospitalised february 2014 occurred reason illness end period absence work result separation conclusion follows comparison content dr smith 9september 2013 28 august 2014 report former dr smith referred relationship m wheeler husband become strained deteriorated significantly say couple separated dr smith referred separation occurred 28 august 2014 report m wheeler hospitalisation february 2014 intervened dr smith suggest either report deterioration relationship new intervening event caused m wheeler suffer higher level incapacitation suffered assessment date dr smith said 28 august 2014 report m wheeler since discharged police force progressed well psychiatric point view referred marked downturn mood required readmission st john god hospital dr smith associate experience m wheeler separation husband insurer may entitled regard line reasoning set preceding paragraph equivocal insurer may entitled ask clarification two doctor whether meant give opinion m wheeler separation husband new cause led permanent incapacity incapacity permanent date assessment insurer reasonably entitled evidence determine m wheeler application basis doctor formed opinion separation intervening cause made m wheeler incapacity permanent reason given immediately concluding insurer act reasonably rejecting m wheeler claim based upon finding deterioration m wheeler psychological condition occurred separated husband two doctor express opinion separation caused m wheeler incapacity become permanent however would necessarily follow insurer rejection m wheeler claim reasonable breakdown m wheeler marriage factor caused incapacity become permanent occurrence marriage breakdown usually one lead either partner becoming incapacitated work possibility marriage becoming untenable may unfortunately natural incidence one partner suffering ptsd major depressive disorder unexplained refusal insurer communicate m wheeler fate application two year may well exacerbated psychological condition facilitated marriage breakdown view fact marital breakdown occurred may reinforced difficulty recovery m wheeler faced regarded intervening event purpose application tpd definition policy insurer reliance upon report dr bureknext view reasonable insurer rely upon extract dr burek report set 4 september 2015 letter given dr burek addressed question whether m wheeler would never capable engaging relevant occupation outside police force insurer ought appreciated although asked dr burek correct question fact given answer wrong one furthermore dr burek address issue whether likelihood m wheeler would able engage relevant alternative work real one remote speculative possibility reasonable insurer act upon dr burek opinion concerning possible effect change m wheeler medication without exploring question whether change would fact improve m wheeler employment prospect dr burek expressed opinion 17 august 2012 single examination m wheeler insurer rejected m wheeler application three year later ample time insurer advise m wheeler dr burek opinion step could taken see whether dr burek opinion correct enquire whether change medication explored effect might reasonable insurer rely upon dr burek unexplained opinion without first explored issue accordingly find insurer act reasonably forming opinion satisfied m wheeler satisfied tpd definition date assessment insofar insurer based determination medical evidence acted insurer reliance vocational assessment reportsit necessary consider insurer reliance vocational assessment report vocational assessment report appear properly professionally prepared albeit basis single interview m wheeler person prepared vocational assessment report competent conduct psychological assessment m wheeler condition purport dr smith provided report strategic rehab solution date report said agreed m wheeler might future capable undertaking occupation suggested report time injury treatment report prepared m goonetilleke available report dr smith accordingly time insurer initially received vocational assessment report would reasonable insurer act upon basis supported adequate medical evidence however effect dr smith 28august 2014 report remove medical basis underpinned two vocational assessment report dr smith changed medical opinion would reasonable insurer challenge dr smith require justify change position unreasonable insurer continue rely upon two vocational assessment report ignore change dr smith medical opinion insurer reliance upon investigation reportsthe next issue considered insurer reliance upon investigation report including m wheeler participation netball apparent showing boston terrier dog show apparent socialising facebook reasonableness insurer relying upon impression evidence sort must depend upon relationship symptom psychological disorder suffered m wheeler extent symptom likely impact m wheeler day day life take particular example builder claim permanently incapacitated working building trade related occupation suited reason back injury surveillance film show builder packing front row rugby scrum may sufficient evidence establish ordinary person eye builder claim false position may case many injury including psychological disorder question whether reasonable insurer rely upon assessment significance investigation report whether could reasonably submitting report consideration medical expert attempt exhaustive medical evidence suggests ptsd major depressive disorder insidious mental injury extremely detrimental sufferer ability hold regular employment whether full time part time symptom disorder permanently consistently manifested psychological injury may effect sufferer becomes unreliable disorganised unsociable lethargic realistically employable among disability however person suffering psychological disorder see necessarily get sufferer may various time period appear reasonably normal capable engaging many form employment presence psychological disorder necessarily inconsistent period happiness sociability indeed treating psychiatrist psychologist likely advise sufferer best get real world try live normal life remedial exercise short ordinary person cannot safely look evidence occasional day day activity person suffering ptsd major depressive disorder conclude person suffering disability may make person practically unemployable person able time time engage sort activity healthy people capable may accepted speaking broadly many activity engaged m wheeler depicted investigation report would reasonably support conclusion insurer m wheeler psychological disorder make permanently unemployable however reason explained insurer submit investigation report medical expert order obtain medical opinion proper conclude m wheeler activity inconsistent history given various doctor suffering level disability claimed suffer insurer submitted vocational assessment report doctor investigation report view reasonable insurer act upon assessment significance investigation report without first sought expert medical opinion concerning significance activity m wheeler depicted report therefore find insurer failed act reasonably deciding m wheeler provided proof insurer satisfaction m wheeler become incapacitated date assessment illness extent render unlikely ever engage gainful profession trade occupation m wheeler reasonably qualified reason education trading experience accordingly insurer determination m wheeler satisfied tpd definition invalid insurer breach duty good faith fair dealing issue remains whether insurer breached duty good faith fair dealing m wheeler reason manner investigated determined m wheeler application opposed reasoning deciding satisfied tpd definition satisfied insurer delay providing material m wheelerthe first question whether insurer breached duty m wheeler failing provide evidence collecting 13 august 2015 sent procedural fairness letter m wheeler insurer response repeated demand trustee issue one almost total silence insurer submission court issue repeated bare assertion insurer obligation provide material trustee m wheeler earlier reject insurer submission find circumstance present case insurer duty fair dealing obliged provide least primary doctor report vocational report transcript interview investigation report m wheeler much earlier time view conclusion could supported basis ordinary conception fairness however telling basis conclusion policy required m wheeler provide proof satisfaction insurer requirement tpd benefit satisfied assessment date insurer fact took control investigation contemplated term policy dealing claim notwithstanding insurer procured almost evidence upon acted rejected m wheeler claim basis supplied insurer necessary proof m wheeler carriage investigation insurer would required give time reasonably necessary provide adequate proof fact insurer took carriage investigation could deny claim basis m wheeler provided adequate proof circumstance given m wheeler adequate time supply proof insurer took three year complete investigation gave m wheeler 14 day respond procedural fairness letter fourteen day self evidently insufficient however m wheeler entitlement adequate time provide necessary proof insurer would afforded simply giving much longer time respond procedural fairness letter would unfairly prolonged even time taken insurer determine m wheeler claim way insurer could take carriage investigation way accommodated insurer obligation process claim reasonable expedition m wheeler entitlement adequate time provide necessary proof insurer provide material obtained earlier progressively course investigation short source unfairness term policy permit insurer conduct investigation still require m wheeler provide proof necessary satisfy tpd definition view would answer conclusion insurer suggest m wheeler time free obtain evidence support claim even done ignorance material collected insurer insurer taken aware time m wheeler substantially incapacitated person suffering severe mental disorder unemployed probably dependent upon worker compensation payment insurer ought appreciated would inefficient wasteful m wheeler required obtain material support claim without opportunity understand nature effect material obtained insurer material response would helpful claim one might compare situation party litigation prepare evidence ignorance evidence relied upon party week hearing one party disclose evidence advance case insurer erected impenetrable stone wall refused provide material trustee m wheeler shortly declined application therefore necessary consider detail exactly material provided sufficient say see justification course taken insurer justification proffered cannot see earlier comprehensive provision material could jeopardised investigation undertaken insurer last investigator report dated 28 may 2014 almost one half year claim denied think insurer desire applicant investigated numerous occasion two year period good excuse withholding result investigation applicant one half year manner insurer determined m wheeler claimin view proper deal issue whether insurer breached duty good faith fair dealing m wheeler considering conduct globally involve consideration fact insurer took three year process reject m wheeler claim considered insurer refused provide material gathered course investigation almost whole three year notwithstanding constant reasonable request trustee m wheeler given material purpose responding insurer provided material m wheeler gave 14 day respond even insurer rejected m wheeler claim day commencement hearing would artificial court consider aspect insurer determination m wheeler claim isolation others far issue bare delay processing m wheeler claim concerned case reason considered insurer could well justified considerable delay basis good faith fair dealing required allow reasonable time elapse m wheeler psychological disorder could stabilise success otherwise available treatment could become apparent consideration may justified delay reasonable short period elapsed insurer received dr smith 28august 2014 report time sufficient insurer obtain corroboration basis dr smith change opinion appear adequate justification insurer subsequent delay 4 september 2015 however special circumstance case considerable delay necessary interest m wheeler would hesitated find mere delay breach duty insurer absence factor listed far secrecy insurer conducted investigation concerned crucial factor absolutely refused provide material trustee m wheeler period three year might wrong court suggest insurer duty good faith fair dealing required conduct investigation open book basis speak trustee m wheeler insurer providednoinformation necessary explore finally ambit information provided would view term tpd definition required insurer approach issue basis even though efficiency self interest justified conducting investigation could determine application unless material upon going act reasonably satisfied description proof provided applicant insurer might entitled proceed commercially sensible practical way would least provide enough information trustee m wheeler enable satisfy investigation proceeding sound fair footing give sufficient time obtain evidence response material damaging application said would reasonable insurer provide primary medical report instruction given doctor provide transcript interview given m wheeler provide vocational assessment report synopsis surveillance activity least activity completed obvious relationship amount material insurer provided applicant time provision material one hand time applicant given receipt procedural fairness letter respond content letter present case relationship material provided three year period 14 day given response make response time derisory insurer call evidence try explain justify manner processed m wheeler application clear substance m wheeler claim one constructive denial could anything else determination m wheeler claim time statement claim filed position remained case year legal principle apply issue whether insurer taken constructively denied insured person claim quite different apply issue whether actual determination invalid former issue may many case easier insured person establish insofar depends principally actual length delay reason delay task facing insured person becomes much difficult insurer made determination well established way insurer determination prevail provided decided whether satisfied required matter manner conforms duty good faith fair dealing act reasonably making decision self evident case present strategic pendulum swing favourably towards insurer make determination hearing claim case conclusion inescapable determining make decision m wheeler application insurer counted back date fixed commencement hearing forward date application made conclusion must drawn absence satisfactory explanation contrary insurer dealt similar issue inpanos v f trustee corporation 2015 nswsc 1217at 235 least case present length time taken insurer determine m wheeler application cannot face justified justification offered proper view court find making determination close commencement hearing small number day full year complete inactivity breach insurer duty good faith fair dealing m wheeler plain require explanation defendant proceeding fundamentally change juristic basis proceeding close commencement hearing one month likely put plaintiff invidious position suffer delay consequence adjournment hearing put chance jeopardy going ahead hearing without adequate preparation exceptionally unsatisfactory plaintiff incapacitated person suing enforce entitlement insurance policy entirely within power defendant take step may change basis hearing early enough enable plaintiff adjust properly reason opinion factor taken together justify finding breach insurer duty good faith fair dealing m wheeler sufficiently serious consequence insurer wrongfully constructively denied m wheeler application actually rejected application 4 september 2015 would justified court forming view whether m wheeler satisfied tpd definition assessment date happened however court required form view issue anyway insurer act reasonably determining reject m wheeler claim reason given ignored fact mr wheeler gave particular insurer breach duty allegation wrongly failed take account content medico legal report dated 2 september 2015 prepared dr selwyn smith served mr wheeler insurer date decided reject mr wheeler application consider report detail considering issue whether mr wheeler established fact satisfied tpd definition assessment date accept mr wheeler established aspect case mr wheeler solicitor allowed 14 day response given procedural fairness letter elapse without warning insurer dr smith preparing report would served imminently said accepted insurer proved made decision reject application 2 september 2015 dated letter giving reason two day later nonetheless accept mr wheeler proved medico legal report served solicitor litigation 2 september 2015 actually brought attention person made decision reject application sufficient time insurer realise ought taken report consideration rejected application m wheeler satisfy tpd definition assessment date insurer determination m wheeler entitled tpd benefit claim invalid necessary court decide whether m wheeler satisfied tpd definition assessment date insurer conceded final submission m wheeler ptsd depression asserted alcohol abuse disorder also conceded following matter currently unemployable capacity relevant skill training experience requires treatment symptom incapable work police officer security investigation however understand insurer maintains unlikely m wheeler ever able engage occupation identified vocational assessment report accordingly insurer submitted notwithstanding concession made concerning psychological condition m wheeler present incapacity engage employment evidence satisfy test m wheeler assessment date incapacitated illness extent render unlikely ever engage work requisite description insurer evidencein final submission insurer relied upon evidence made decision reject m wheeler claim also certain additional evidence prepared come light rejection occurred insurer relied upon evidence activity undertaken m wheeler aware time rejected claim convenient adopt description evidence contained insurer written submission 25 m wheeler engaged volunteer work found rewarding year reading child marwarra public school 26 2012 became involved christmas festival narellan ended becoming committee member performing volunteer work 27 2012 2013 involvement marwarra public school increased march 2014 became president p c committee also involved organising fete number fundraiser 28 role president automatically ceased agm march 2015 nobody nominated position president two meeting nominated accepted position remains position told court intending nominate 2016 election 29 also one day work sackville primary school 30 told court feel could even hold part time job 31 evidence amount work performed voluntary capacity limited couple hour week marwarra public school p c committee public school document tendered exh 2 3 demonstrated involvement school gave indication type activity engaged plaintiff attended part weekly p c meeting march 2014 october 2015 32 m wheeler said enjoyed work found fulfilling like make contribution missed meeting felt unwell motivational issue evidence bear submission challenged m wheeler m wheeler freely acknowledged cross examination seen however evidence put different complexion activity insofar may bear likelihood ever gaining employment insurer also relied upon evidence given dr john sydney smith consultant psychiatrist first examined m wheeler initial hearing adjourned evidence called replacement expected given dr burek dr sydney smith prepared report 15 october 2015 1 february 2016 put simply dr sydney smith suggested m wheeler alcohol abuse disorder exacerbating consequence ptsd depression good prospect m wheeler current psychological disability ameliorated undertook available treatment alcohol abuse disorder insurer submitted apparent unlikelihood m wheeler would ever engage relevant employment ought displaced probability effect treatment would improve m wheeler condition way would make likely sense required term unlikely ever would gain employment dr sydney smith primary evidence 15 october 2015 report interviewed m wheeler 1 ¾ hour 6 october 2015 dr smith agreed cross examination m wheeler considerable stress time first hearing claim miscarried due adjournment become necessary dr burek illness dr smith engaged extensive review documentary evidence concerning m wheeler psychological illness treatment received five year since ceased work understandably approach imposed upon dr smith opportunity examining m wheeler time period general comment beginning report dr smith said m wheeler dated emotional decompensation event 2009 although later conceded suffered episode depression 2004 symptom anxiety early 2001 referred m wheeler related account significant alcohol abuse said could find little evidence document ever canvassed detail treating doctor important part history taken dr smith m wheeler set report page 8 record questioned alcohol consumption stated started drink 2010 escalated stopped working continued abuse alcohol since would drink every night help sleep would equivalent two bottle wine passed fell asleep admitted consumption extent often amnesic event previous night also found bruise body could account stated longest period abstinence alcohol one month st john god hospital 2004 one month following also claimed told dr selwyn smith abuse never suggested undergo drug alcohol counselling psychiatric assessment m wheeler dr smith focused page 37 39 event 2004 dr smith considered evidence m wheeler suffering major depressive disorder long began develop symptom ptsd dr smith expressed following conclusion page 45 available evidence thus indicates long suffered major depressive illness secondary ptsd feature complicated alcoholism alcoholism never addressed depression received optimal treatment tried antidepressant drug depression remained refractory attempt treated combination two antidepressant medication mood stabilising drug could also added seem potentiate effect antidepressant medication combination work would suitable candidate electrode convulsive therapy effort reduce depression combination drug alcohol counselling would best managed inpatient mood disorder clinic prince wale hospital believe never received appropriate treatment mental disorder prognosis recovery treatment remains high remission able take part return work rehabilitation program would probably prefer return police work similar consequently believe could classified eligible total permanent disability benefit either according police blue ribbon policy f group life policy criterion could classified 21 3 11 six month cessation work 21 9 10 dr smith said response dr selwyn smith 2september 2012 report page 50 report dr selwyn smith reiterates suffering ptsd major depressive disorder address issue chronic severe alcohol abuse state switching another antidepressant introducing mood stabiliser apart possibly contributing adverse side effect opinion improve current psychiatric condition statement totally disagree reason expressed even without change medication effective control alcohol abuse likely significantly improve current psychiatric condition trial antidepressant possibly combination possible without development adverse side effect addition mood stabilising drug would potentiate effect antidepressant regime dr sydney smith stated conclusion prognosis following term believe m wheeler likely respond appropriate treatment major depressive disorder alcohol abuse able enter workforce least part time capacity substance dr sydney smith took view m wheeler major depressive disorder primary ailment ptsd secondary depression acted belief m wheeler drank two bottle wine every day life point stupefaction except short month time left work 2010 took view medication available would diminish m wheeler depression step could taken reduce alcohol intake basis expressed opinion m wheeler able enter workforce least part time capacity cross examination dr sydney smith said last 10 year engaged medico legal practice treated patient time prior said treated possibly 20 30 police officer ptsd accepted treated insufficient police enable talk general term ability police recover ptsd accepted 30 person ptsd become chronic sufferer however cannot relate percentage police enough experience doctor accepted prepared report understanding m wheeler told every night last five year exception period two month drank two three bottle wine night dr smith response somewhat equivocal cross examination whether fact prepared report basis 144 145 dr smith gave following evidence cross examination 148 149 q agree dr smith understand saw lady totally unemployable time right yes q yes two hour saw right clinical sign presentation suggest likely go back work time future clinical sign presented seen going back work understand dr smith evidence give opinion support claim m wheeler marital problem new intervening cause result permanently incapacitated employment incapacitated assessment date m wheeler evidencethis appropriate point say found m wheeler transparently candid witness unhesitatingly gave prompt direct answer question put cross examination without apparent regard consequence answer prospect succeeding case gave immediate apparently truthful answer substantial number question concerning day day activity obviously interest accept evidence m wheeler gave insurer make submission m wheeler credit eye m wheeler distressed emotionally upset evidence although proper make clear result psychological condition counsel conducted cross examination care could expected circumstance one point faced possibility eventuate sit hour surveillance video activity m wheeler quite plainly suffered panic attack witness box observation m wheeler apparent symptom psychological condition take conclude appearance consistent evidence gave court must however rely upon evidence expert psychiatrist purpose determining likelihood m wheeler ever engage relevant employment mention dr burek first report found evidence secondary gain m wheeler part understand modern euphemism malingering m wheeler swore affidavit 29 january 2014 30 september 2015 first affidavit m wheeler substantially directed attention historical matter underlying fact required proved support case stated current symptom par 29 accept evidence m wheeler short second affidavit gave updating evidence concerning symptom described par 29 earlier affidavit accept evidence m wheeler cross examined alcohol consumption 11 12 follows q question took sick leave september 2010 alcohol consumption time recall bit hard recall exactly know stage drinking night time help sleep dream flashback stuff q saw dr sydney smith october last year told drinking heavy rate last six year recall telling really remember saying heavy rate really would said q fair say time previous six year drinking excessively correct yes q want clarify thing told dr sydney smith saw october would drink anything two bottle wine evening recall telling recall occasion every night q occasion would wake unable remember event night true occasion q would wake bruise explain past yes q told occasion saying well happened past actually ask many day happened many time said happened said yes q tell pattern drinking gone back six year correct know q whatever told october saying truth told october yes whatever told truth seen many doctor confused know remember anything q say remember anythinga remember date q best possible occasion drinking two bottle wine per night september 2010 october 2010 tell court understand asking confused q occasion drinking excessively september october 2010 occasion yes q outside occasional use september 2010 would drink every night september q september 2010 drinking every night recall drink night row go week without drink get stressed need another one best answer question q say pattern last six year yes accept evidence given m wheeler last five year consumed alcohol amount dr sydney smith understood done m wheeler definitely present witness box consumed extreme amount alcohol long period cause misunderstanding unclear likely misunderstanding occurred false impression unintentionally conveyed m wheeler short examination dr smith affected mental disorder increase anxiety suffered following adjournment first hearing m wheeler cross examined length response given question asked strategic rehab solution voluntary work done christmas narellan participation p c committee child school ability drive motor vehicle attending local shop grocery shopping shopping playing local netball team holiday took husband child london paris six week said view m wheeler responded question candid way holiday m wheeler said 51 q holiday feel drank much holiday drink lot lot panic attack uncomfortable away far home long return admitted hospital four week m wheeler cross examined circumstance participated showing boston terrier 55 56 q acquired small boston terrier actually show potential well actually bought pet took back breeder visit said turned really lovely show show showed q common enough owner shower dog show right show somebody show dog got friend show dog q ever involve showing rory q attended show time time time time went watch q travelled widely dog showing circuit correct say widely q canberra dog show went canberra yep q south coast right dog show yep drive day yep q queensland dog show yes went queensland last three year canberra show queensland show rory go go everywhere q something found satisfying activity enjoyed activity yep q interest may able help name entity easy dog entry mean anything enter dog show entry never done entry clear time time m wheeler able engage activity consistent behaviour ordinary psychologically healthy people activity consistently occasional relatively infrequent effect expert medical evidence ability m wheeler engage activity type inconsistent totally incapacitated engaging form ordinary employment effect ptsd major depressive disorder suffering view proper course court take rely upon expert medical evidence properly considering evidence make necessary finding concerning effect mental disorder m wheeler suffers m wheeler relied three additional medico legal report prepared dr selwyn smith 2 september 2015 15 october 2015 9 december 2015 response dr sydney smith first report opinion expressed dr selwyn smith encapsulated following extract 2 september 2015 report 2 m wheeler continues display significant psychiatric disability related post traumatic stress disorder chronic duration comorbid major depressive disorder significant change m wheeler condition would cause alter previously expressed opinion regard incapacitated undertake former career police officer remain opinion m wheeler continues incapacitated alternative work particular occupation suggested vocational capacity report namely insurance operator welfare officer office manager investigator security loss prevention control room alarm monitoring insurance investigator m wheeler would able muster ability undertake work ongoing psychiatric symptom lack ability focus concentrate extent self esteem self confidence markedly lowered psychiatric disability opinion would apparent public large well prospective employer 4 remain opinion m wheeler presently able return workforce capacity either full time part time basis psychiatric condition 5 time observed clinical sign indicate real chance return workforce whether full part time role future since leaving nsw police force m wheeler displayed significant improvement opinion accord closely dr robert wotton regard poor prognosis pertaining psychiatric disorder ability work 6 opinion m wheeler incapacitated extent render unlikely ever engage work occupation either full time part time basis reasonably qualified mean education training experience course lengthy response dr sydney smith primary report dated 15 october 2015 dr selwyn smith said 9 december 2015 report respectfully disagree dr smith conclusion m wheeler post traumatic stress disorder secondary depression post dramatic stress disorder primary psychiatric disorder clinical entity secondary post traumatic stress disorder stated dr smith opinion striking variance clinician examined m wheeler none suggested secondary post traumatic stress disorder dr sydney smith opinion also striking variance clinical personnel st john god hospital richmond treated m wheeler clinical personnel consistent emphasising extent post traumatic stress disorder comorbid major depressive disorder dr burek also quite clear opinion m wheeler suffers chronic post traumatic stress disorder major depressive disorder m wheeler demonstrate diagnostic criterion alcohol use disorder alcohol use disorder opinion secondary major depressive disorder post dramatic stress disorder alcohol intake fluctuated time directly related degree distress experiencing m wheeler alcohol utilisation discussed referred dr smith report m wheeler benefit inpatient stay detoxified reliance alcohol discussed noted comorbid major depressive disorder also addressed inpatient stay hospital xavier unit hospitalisation present time opinion m wheeler need addition antidepressant candidate electroconvulsive therapy need admission mood disorder clinic prince wale hospital difficulty accepting dr smith conclusion never received appropriate treatment mental disorder dr smith inexplicable reason dismissed significant impact post traumatic stress disorder instead emphasised major depressive disorder opinion currently partial remission opinion striking variance expressed experienced clinician significant broader knowledge m wheeler clinical state accord closely treating psychiatrist given length time m wheeler experienced psychiatric disorder deemed stabilised psychiatric perspective examiner considerable difficulty accepting dr sydney smith opinion introduction medication ameliorate symptom also marked difficulty accepting conclusion voluntary work child school transfer paid work dr smith considered addition m wheeler experiencing distinctive feature post traumatic stress disorder post traumatic stress disorder also resulted persistent exaggerated negative belief expectation experienced distorted cognition consequence traumatic event experienced continued experience fear guilt shame markedly diminished interest participation significant activity avoided stimulus including social interaction extent particularly interpersonal situation arouse recollection traumatic experience symptom also reinforced underlying depressive disorder clinical experience dealt large number police officer patient developed post traumatic stress disorder despite intensive treatment type m wheeler undergone nevertheless continue experience marked degree chronicity significantly intrudes capacity engage productive employment indeed clinical experience revealed minority police officer able return police work engage productive work role open labour market often remain unemployable socially avoidant expeience marked degree chronicity pertaining post traumatic stress disorder symptom many patient recover despite active psychiatric treatment best many undertake menial task respectfully disagree opinion dr sydney smith discounted extent m wheeler post traumatic symptomatologies impact together depressive symptom capacity reintegrate work fact remains patient respond panoply treatment suggested dr smith directed depressive component psychiatric condition addressed fact undergone extensive treatment post traumatic stress disorder highly regarded hospital program post traumatic stress partially ameliorated extent would opinion capable integrating open labour market conclusion nothing within dr smith report cause modify original opinion expressed found dr selwyn smith impressive expert witness cross examination although prepared number medico legal report m wheeler period leading hearing also treating psychiatrist period five year treated regularly period dr selwyn smith sometimes aware detail time aware outline day day activity formed basis insurer case m wheeler sufficiently capable present court find unlikely ever undertake requisite employment dr selwyn smith unmoved view occasional short term activity inconsistent basis opinion m wheeler realistic likelihood able engage form employment future doctor said encouraged activity likely ameliorate m wheeler suffering damaging people psychological disorder lock home essential point made dr selwyn smith aware sometimes specific term others generally activity m wheeler undertook day feeling hearty fact encouraged undertake activity good fact could engage activity type intermittently inconsistent permanently incapable employment dr selwyn smith said examination chief concerning awareness m wheeler alcohol consumption 99 alcohol intake fluctuated fluctuated wildly usually directly linked emotional state adverse experience view m wheeler alcohol intake secondary underlying predominant psychiatric program namely post traumatic stress disorder chronic duration association major depressive disorder alcohol predominantly used numb assist sleeping predominantly unusual experience q opinion proposal dr sydney smith sent drug alcohol counsellor stage rate see particular benefit m wheeler good rapport treating personnel seeing see open frank discus alcohol intake done three hospital program two inpatient programme judgment inpatient program efficient allowing cease reliance alcohol think far superior going drug counsellor experience broad experience psychologist psychiatrist deal co morbid condition q likely assist ptsd dr smith fundamental disagreement dr sydney smith opinion primary disorder ptsd 100 said clinical entity secondary ptsd dr smith explained detail 101 disagreed dr sydney smith opinion m wheeler condition would improved placed combination additional antidepressant said often time dangerous combine medication judgment really firm reliable scientific evidence effective dr smith refers stacking approach addition sic medication increasing dosage judgment likely result adverse effect m wheeler already experiencing adverse effect gained weight gain weight avanza 16 kg sexual dysfunction concerned weight carry risk metabolic syndrome diabetes serious condition particularly antidepressant one must always cautious serotonin syndrome particularly raise level antidepressant serotonin chemical attempting raise nerve ending synapsis brain careful raise level high patient would experience significant side effect death whole host adverse effect talking neuroleptic syndrome could go side effect drug significant cross examined m wheeler volunteering read son school dr smith said 104 encouraging m wheeler others engage activity get house becoming housebound volunteer activity involvement school key step one also emphasise importance also related need close child given background extremely concerned well child exposed number death involving child fearful child would harmed engaging school voluntary capacity p c committee method close child ensuring child safe sense helped encouraged questioned agreement arrangement suggested m gow strategic rehab solution m wheeler undertake voluntary work 10 hour week sackville road primary school dr smith said 106 clinical problem m wheeler confronted pertains markedly fluctuating picture day capacity make effort mobilise get supposed day quite immobile withdrawn isolated want move stay home pyjama recollection could engage school activity motivation drive possible asked whether enquired m wheeler alcohol consumption dr smith said 107 yes would enquire alcohol know dr sydney smith made issue enquired true would always ask alcohol intake frank question would ask patient important would reply accepted telling think distorting much sometimes tell drinking lot two three bottle time sometimes two three gin tonic varied put issue dispute dr sydney smith whether alcohol use exacerbated m wheeler ptsd vice versa dr smith said 109 fair comment look progression exposure traumatic event question mind prime diagnosis post traumatic stress disorder followed emerging depressive disorder major kind differ dr smith agreed presence alcohol abuse disorder complicate clinical picture asked knowledge m wheeler involvement child school dr smith said 117 knew involved school variety way reading near child serving committee minimal extent prime thrust near child put may told m wheeler activity engaged dr smith said 118 may well told reported may may irrespective activity mentioned chaired meeting went fete et cetera made point irrespective whatever activity volunteer would translate paid work problem still maintain dr smith cross examination ended investigation whether m wheeler may informed dr smith day day activity engaged m wheeler hoped make secondary gain dr smith responded stating 119 asking opinion consider m wheeler malingering prone secondary gain buy accept m wheeler called dr wotton give evidence relied upon report dr wotton provided worker compensation insurer dr wotton called witness box insurer made election cross examine dr wotton insurer challenge view expressed dr wotton report suggest opinion based upon unreliable history given m wheeler dr wotton put dr wotton m wheeler marital problem cause incapacity becoming permanent prefer evidence given dr selwyn smith dr wotton given dr sydney smith forming preference substantially influenced fact dr selwyn smith m wheeler treating psychiatrist period five year time given significant number report various different correspondent relatively recently qualified addition medico legal expert m wheeler case present regular long term exposure treating psychiatrist patient likely make treating psychiatrist evidence reliable valuable number reason first treating psychiatrist longitudinal perspective secondly reason substantial number examination treating psychiatrist dependent upon history given patient short examination treating psychiatrist opportunity witness symptomatology patient considerable period treating psychiatrist working understanding clinical note treating professional st john god hospital persuaded reasoning behind dr sydney smith opinion primary disorder suffered m wheeler major depressive disorder ptsd secondary accept dr selwyn smith opinion issue appears consistent stated medical report evidence consequently reject suggestion m wheeler prospect gaining relevant employment future enhanced given new regime treatment depression accept matter treating psychiatrist persuaded dr selwyn smith well aware risk involved increasing medication fact secondary disorder unlikely m wheeler treatment regime changed find dr sydney smith opinion alcohol abuse disorder substantial cause m wheeler symptomatology employment prospect improved receives additional treatment alcohol abuse based upon false assumption extreme level alcohol consumption m wheeler engaged period five year satisfied medical evidence establishes period five year since cessation m wheeler employment police force enough time elapsed enough treatment given m wheeler support medical opinion psychiatric condition stabilised unlikely substantially improved treatment medication unfortunately m wheeler turned one 30 odd person suffer ptsd whose condition becomes chronic also satisfied evidence put court show m wheeler capable irregular basis engaging activity would case psychologically healthy people medical reason inconsistent claim satisfied tpd definition assessment date shuetrimas decision court appeal inshuetrimappears brought change accepted meaning expression unlikely ever tpd definition decision contains guidance issue whether definition satisfied determined perhaps appropriate specifically address reason outcome m wheeler case different experienced mr shuetrim discussed heading meant unlikely ever question whether real chance applicant return relevant work balance applicant expected working life even le 50 real chance must possibility remote speculative leeming ja 89 likened real chance possibility readily contemplatable necessary address significance principle present case one similarity m wheeler mr shuetrim case former remaining expected working life 29 year latter 30 year applicant relatively young term leeming ja observation 208 relatively young people whose medical psychological condition uncertain find harder prove insurer court satisfaction unlikely ever return work reasonably fitted education training experience inshuetrim appears judgment stevenson j 21 83 99 100 mr shuetrim suffered lateral epicondylitis tennis elbow secondary anxiety adjustment disorder injury caused way treated fellow member police force suffered orthopaedic injury m wheeler case unanimous opinion psychiatrist called give evidence date hearing m wheeler totally incapable engaging occupation reason chronic ptsd major depressive disorder issue expert opinion prevail whether prospect recovering sufficiently able undertake form relevant employment reason additional therapy change medication instructive look leeming ja said concerning meaning relevant tpd definition also determining satisfied ultimately leeming ja found 209 consider evidence supplied mr shuetrim satisfied mr shuetrim relevant assessment date unlikely ever return relevant work say occupation qualified education training experience even part time basis honour reached conclusion following process reasoning 1 found mr shuetrim exaggerated physical mental condition evidence see 192 198 199 2 found thrust medical evidence mr shuetrim left elbow almost certain improve time see 200 honour noted bear mind question one unlikely ever requires opinion extent mr shuetrim recover use dominant left arm remainder working life 3 regarded evidence mr shuetrim general practitioner relatively powerful consideration preferred evidence general practitioner effect expressed view hope employment future see 201 203 4 noted evidence medical practitioner took form tender report without cross examination see 205 report therefore admissible purpose court weigh cogency competing opinion 5 dealing psychiatric evidence 207 honour noted mr shuetrim exaggerated claim extent history provided mr shuetrim exaggerated psychiatrist opinion proceed incorrect premise 6 noted ultimately onus mr shuetrim provide evidence sufficient support opinion required tpd definition opinion concerned remainder working life see 207 7 finally 208 honour noted difficulty extracted young people whose medical psychological condition uncertain difficulty satisfying insurer court satisfied tpd definition relevantly m wheeler case following consideration apply 1 insurer present case relied upon much sort evidence concerning m wheeler day day activity insurer mr shuetrim case successfully relied upon establish mr shuetrim exaggerated claim rejected submission effect m wheeler case found m wheeler exaggerate physical mental condition candid day day activity able achieve 2 importantly m wheeler case psychiatrist prepared report mental consequential physical condition prognosis recovery called give evidence cross examined one significant consequence established case psychiatrist opinion proceed upon incorrect premise particularly case dr selwyn smith treating psychiatrist alter expert opinion even aware activity upon insurer case relied upon m wheeler case risk lay opinion would misled unwarranted reliance upon evidence m wheeler capable engaging certain activity way healthy people dispelled positive expert evidence ability engage conduct inconsistent total incapacity employment caused m wheeler psychiatric condition 3 mr shuetrim suffered tennis elbow expert evidence supported conclusion disability almost certain improve time particularly time viewed term 30 year working life expert evidence accepted supported conclusion m wheeler injury chronic stabilised reason believe would improve time future consequently possibility improvement rationally matter speculation 4 m wheeler case equivalent evidence given mr shuetrim general practitioner evidence m wheeler long term treating psychiatrist dr selwyn smith evidence comprehensively supported m wheeler claim allowance made change opinion following failure treatment cause improvement m wheeler symptom 5 consequently m wheeler case would matter intuitive speculation draw conclusion real likelihood m wheeler capacity would improve remainder working life would sufficient give real chance obtaining relevant employment conclusioni conclude evidence justifies finding assessment date m wheeler incapacitated extent render unlikely ever engage gainful profession trade occupation reasonably qualified reason education training experience within meaning tpd definition policy m wheeler therefore entitled appropriate order ensure receives tpd benefit entitled together interest also entitled insurer must pay m wheeler cost proceeding party bring short minute order give effect reason judgment agreement reached make order chamber matter relisted arrangement associate

Bryer & Bryer and Anor [2012] FamCA 884 (31 August 2012).txt

bryer bryer anor 2012 famca 884 31 august 2012 last updated 26 june 2013family court australiabryer bryer anor 2012 famca 884family law cost estate second respondent sought order husband wife pay cost thrown away compromise reached relation 79 proceeding applicant first respondent order cost made favour estate second respondent party party basis husband wife equal portion family law act 1975 cth 79 117 2 117 2a applicant m bryerfirst respondent mr b bryersecond respondent estate late m c bryerfile number syc5342of2010date delivered 31 august 2012place delivered sydneyplace heard sydneyjudgment ryan jhearing date 31 august 2012representationcounsel applicant mr briensolicitor applicant delaney lawyerssolicitor first respondent diamond conway lawyerssolicitor second respondent paltos briggs family lawyersorders 1 pursuant rule 6 15 m appointed legal representative second respondent estate late m b bryer 2 husband wife shall forthwith serve upon solicitor second respondent copy agreement entered compromised proceeding 3 husband wife pay equal portion cost incurred estate party party basis proceeding cost agreed within twenty eight 28 day assessed paid within twenty eight 28 day agreement assessment 4 proceeding constituted response filed late m c bryer 17 february 2011 transferred supreme court new south wale notedthat publication judgment court pseudonymbryer bryerhas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth family court australia sydneyfile number m bryerapplicantandmr b bryerfirst respondentandestate late m c bryersecond respondentreasons judgmentintroductionthese reason delivered orally 8 august 2012 proceeding appearance behalf husband made order second respondent leave make oral application cost direction husband wife disclose second respondent term provide copy term settlement application adjourned hearing 9 30 31 august 20123 second respondent cost today reserved reason outlined solicitor second respondent satisfied copy agreement entered husband wife otherwise known term settlement provided second respondent estate late m c bryer application cost second respondentbefore court application estate late m c bryer late m bryer order husband wife pay second respondent cost late m bryer husband mother joined application wife proceeding brought pursuant tos 79of thefamily law act 1975 cth act proceeding compromised husband wife executing agreement detail court suffice say would appear common ground agreement deal entirety husband wife property purport deal property late m bryer issue husband wife estate understand interest asserted estate property legal ownership sits husband wife effect relation thes 79proceedings order made consequence joinder estate clear estate party agreement executed husband wife circumstance must follow wife wholly unsuccessful relief sought estate similar vein husband obtained relief estate wholly unsuccessful point estate joined matter necessity necessity arose asserted order made court estate happen section 117 2 act provides proceeding act party shall bear cost unless circumstance justify order cost find failure husband wife obtain order pursuant tos 79of act estate constitutes justifying circumstance contended wife consideration cost pressed estate premature alternatively estate sought exercise court accrued jurisdiction relief husband wife estate wholly unsuccessful thus would fail merit application cost incurred date must seen forming part claim made estate common ground transferred supreme court later submission initially attractive however balance accept submission made solicitor estate effect husband wife compromising thes 79proceedings mean estate must effect start action supreme court follows cost thus far incurred effectively thrown away consequence compromise reached relation thes 79proceedings circumstance lend support order cost favour estate weigh aspect matter adjourned turning balance matter must considered relation tos 117 2a matter would seem financial circumstance party although privy agreement apparent material filed thus far party people considerable wealth distinction respective financial position would influence whether order cost made proportion reference made counsel wife paragraph 46 agreement entered husband wife complete detail mentioned court gravamen paragraph 46 agreement husband wife uphold covenant agreement entered husband mother 2007 effect late m bryer would alter understand common ground altered however point agreement cost upholding term covenant shared equally husband wife issue underpinned step taken wife jurisdiction view would neither equitable wife husband benefit effort thus far achieve hope achieve relation mother estate contribute towards expense conclusionon basis persuaded whatever order cost made cost shared husband wife equally argument advanced consideration cost thes 79proceedings premature easily dispensed proceeding transferred supreme court would quite unfair transfer proceeding issue cost incurred court left unaddressed reason satisfied order cost made favour estate late m bryer husband wife equal portion certify preceding seventeen 17 paragraph true copy reason judgment honourable justice ryan delivered 31 august 2012 associate date 25 october 2012

Gray v R [2013] NSWCCA 169 (19 July 2013).txt

gray v r 2013 nswcca 169 19 july 2013 gray v r 2013 nswcca 169 19 july 2013 last updated 22 july 2013court criminal appealnew south walescase title gray v rmedium neutral citation 2013 nswcca 169hearing date 6 may 2013decision date 19 july 2013before bathurst cj 1 fullerton j 2 campbell j 46 decision 1 grant leave appeal 2 appeal dismissedcatchwords criminal law sentence appeal whether sentencing judge erred failing give practical effect finding special circumstance context total effective sentence served applicant whether sentencing judge erred manner identified pearce v queen 1998 hca 57 194 clr 610legislation cited crime act 1900 nsw crime sentencing procedure act 1999 nsw criminal appeal act 1912 nsw sentencing act 1989 nsw repealed case cited abbas v r 2013 nswcca 115attorney general application unders 37of thecrimes sentencing procedure act 1999no 1 2002 2002 nswcca 518 56 nswlr 146 137 crim r 180bugmy v queen 1990 hca 18 169 clr 525kalache v r 2011 nswcca 210muldrock v queen 2011 hca 39 244 clr 120pearce v queen 1998 hca 57 194 clr 610power v queen 1974 hca 26 1974 131 clr 623r v argent 2004 nswcca 270r v cicekdag 2004 nswcca 357 150 crim r 299r v hampton 1998 44 nswlr 729r v henry 1999 nswcca 111 1999 46 nswlr 346r v keen 2004 nswcca 86r v lwp 2003 nswcca 215r v moffitt 1990 20 nswlr 114r v sharrock 1999 nswcca 289r v simpson 1992 61 crim r 58r v street 2005 nswcca 139r v thornbury 2000 nswcca 526r v tran 1999 nswcca 109r v walker 2005 nswcca 109r v way 2004 nswcca 131 60 nswlr 168thorpe v regina 2010 nswcca 261veen 2 v queen 1988 hca 14 164 clr 465category principal judgmentparties christopher kevin gray applicant regina respondent representation counsel counsel francis applicant r herps respondent solicitor solicitor legal aid nsw applicant solicitor public prosecution respondent file number 2009 220092decision appeal judge solomon date decision 16 december 2010 court file number 2009 220092judgmentbathurst cj agree appeal dismissed reason given fullerton j fullerton j read draft judgment circulated campbell j agree appeal dismissed prefer express reason coming view applicant seek leave appeal sentence imposed district court 16 december 2010 plea guilty entered local court 28 september 2010 eight offence attracted discount 25 per cent two offence taken account form 1 offence indictment comprised six count armed robbery contrary tos 97 1 thecrimes act1900

Edwards and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 764 (14 April 2023).txt

edward minister immigration citizenship multicultural affair citizenship 2023 aata 764 14 april 2023 last updated 16 april 2023edwards minister immigration citizenship multicultural affair citizenship 2023 aata 764 14 april 2023 division general divisionfile number 2023 0067re rachel edwardsapplicantandminister immigration citizenship multicultural affairsrespondentdecisiontribunal senior member nikolic cscdate 14 april 2023place melbournethe tribunal affirms decision review sgd senior member nikolic csccatchwordscitizenship application conferral australian citizenship general residence requirement nature presence australia decision affirmedlegislationaustralian citizenship act 2007 cth australian citizenship special residence requirement instrument lin 21 069 2021caseslin v minister immigration border protection 2009 fca 494re drake minister immigration ethnic affair 2 1979 2 ald 634secondary materialsdepartment immigration border protection australian citizenship policy statement 27 november 2020 refugee citizenship multicultural program division department home affair revised citizenship procedural instruction 26 february 2021 reason decisionsenior member nikolic csc14 april 2023backgroundthe applicant seek review decision delegate minister dated 23 december 2022 refuse application australian citizenship conferral decision made unders 24 1 theaustralian citizenship act 2007 cth act basis applicant satisfy general residence requirement hearing held 12 april 2023 telephone applicant self represented respondent represented mr adam cunynghame solicitor sparke helmore lawyer following reason tribunal affirms decision review introductionthe applicant 57 year old citizen united kingdom first arrived australia 5 january 1972 five year old son also born january 1997 1 much last 25 year applicant son mostly lived indonesia bali united kingdom applicant holder resident return subclass 155 visa last granted 15 march 2019 year undertaken frequent relatively brief visit australia 2 approximately 20 year period 21 december 2000 last arrival australia november 2019 applicant physically present australia total 50 day follows ul none list style none datearrival departure21 december 2000arrive australia3 january 2001departed australia8 march 2001arrived australia12 march 2001departed australia13 october 2002arrived australia17 october 2002departed australia29 october 2011arrived australia4 november 2011departed australia26 december 2016arrived australia18 january 2017departed australia18 november 2019most recent arrival australiaon 22 november 2022 applicant applied australian citizenship conferral approximately three year since last arrival australia 23 december 2022 delegate respondent refused citizenship application basis applicant satisfy general residence requirement unders 22 1 act requires applicant present inaustraliafor period four year immediately prior day make application 3 5 january 2023 applicant asked tribunal review citizenship refusal decision 4 legislative frameworksection 24 1 act provides person make application undersection 21 minister must writing approve refuse approve person becoming australian citizen section 24 1a act provides minister must approve person becoming australian citizen unless person eligible become australian citizen undersubsection 21 2 3 4 5 6 7 8 unders 21 2 c act applicant must either satisfy general residence requirement unders 22of act special residence requirement underss 22aor22bof act time application section 22of act provides exercise discretion regarding general residence requirement providing certain condition met general residence requirement 1 subject section purpose ofsection 21a person satisfies thegeneral residence requirementif person present inaustraliafor period 4 year immediately day person made application b person present inaustraliaas anunlawful non citizenat time 4 year period c person present inaustraliaas apermanent residentfor period 12 month immediately day person made application overseas absence 1a person absent fromaustraliafor part period 4 year immediately day person made application b total period absence absence 12 month purpose ofparagraph 1 person taken present inaustraliaduring period absence section 22bof act provides special residence requirement person engaged particular kind work requiring regular travel outside australia 1 subject section purpose ofsection 21a person satisfies thespecial residence requirementif time person made application person engaged work kind specified undersubsection 22c 3 person required regularly travel outside australia work section 22c 3 act confers power minister specify kind work purpose ofs 22b 1 act theaustralian citizenship special residence requirement instrument lin 21 069 2021 enacted minister 11 october 2021 defines specified kind work purpose ofs 22b 1 act section 52 1 b act source tribunal jurisdiction review decision made minister delegate unders24of act australian citizenship policy statement policy issued 27 november 2020 revised citizenship procedural instruction cpi reissued 26 february 2021 provide guidance decision maker exercising power act although ministerial policy binding tribunal held indrake 5 decision maker undertaking merit review generally apply policy unless unlawful cogent reason contrary tribunal identified reason arising applicant circumstance policy cpi supplement policy applied however tribunal mindful exercise delegated power policy inflexibly issue tribunalthe issue determined tribunal whether applicant met residence requirement at 22 1 act whether discretion approve application become australian citizen evidencedocumentary evidencethe respondent provided bundle document numbering 171 page 6 applicant tendered following document taken evidence extract applicant resume 7 b decision senior member john longo tribunal dated 15 november 2022 setting aside decision chief executive centrelink recover family tax benefit debt applicant 8 c newspaper article regarding applicant involvement poetry competition 9 extract book written applicant regarding mental health issue 10 e certificate regarding applicant adoption dog 11 f email applicant respondent dated february 2023 screenshots online immigration account 12 g email letter applicant family member friend australia united kingdom 13 h letter former employer united kingdom 14 notice east sussex healthcare dated 22 september 2017 regarding surgical procedure 15 j medical letter dated 11 october 2018 regarding applicant right shoulder symptom assessed rotator cuff related shoulder pain 16 k three sick certificate united kingdom three month dated august 2018 january 2019 stating applicant unfit work variously due shoulder pain chest infection 17 l physiotherapy discharge summary dated 14 march 2019 regarding applicant attendance physiotherapy session since august 2018 right shoulder condition notice state applicant received steroid injection progressed well 18 four photograph applicant various setting claim assisting refugee greece 19 n letter office duke duchess sussex thanking applicant well wish gift book following son birth 20 applicant evidencein oral evidence applicant accepted travel record evidence accurate therefore satisfy four year general residence requirement submission instead centred close connection established australia schooling family friend applicant stated believe exception general residence rule asked identify provision act allows exception applicant applicant recounted early year australia always identified australian said father child british citizen lived worked predominantly indonesia spent six day total australia applicant referred past custody issue one reason lived overseas said son lived australia short time birth 1997 relocated bali indonesia commenced education lived bali several year prior 2008 united kingdom 2008 2019 applicant son undertook secondary university education applicant said always intended reside australia permanently prevented legal reason custody reason health problem covid 19 son education overseas applicant said returned australia care parent son completed degree son life work indonesia applicant said visited australia three time last six month applicant claimed several respondent employee unnamed lawyer told could qualify australian citizenship three year instead four advice witnessed parent referred period 2018 2019 hold australian visa attributed respondent delay processing visa renewal application said respondent asked additional information believed required unnecessarily delayed visa approval cross examination mr cunynghame applicant discussed life overseas referred working united kingdom including community nurse asked doctor certificate dated august 2018 october 2018 february 2019 three month stated unfit work applicant said related work injury received social security benefit british government also received physiotherapy support national health service considerationthe act requires person physically present australia four year immediately prior making citizenship application limited exception applicant spent childhood australia subsequently lived extended period prior mid 1980 retains close association particularly parent friend applicant evidence australia home characterisation absence 11 year 2008 2019 visit family united kingdom 21 difficult reconcile available evidence discloses frequent departure australia relatively short return visit example applicant physically present australia 50 day 20 year prior recent arrival 2019 instead lived predominantly indonesia united kingdom last 25 year eleven year prior 2019 lived worked raised child received medical treatment income support payment united kingdom son born australia became citizen united kingdom within month birth 1997 22 attended primary school indonesia undertook secondary tertiary education united kingdom continues live overseas present day 23 first four year prior making citizenship application applicant absent 361 day part total absence 1034 day dating back 2017 tribunal satisfied absence temporary periodic includes applicant hold visa 19 september 2018 reacquiring australian permanent residency 14 march 2019 applicant attribute unnecessary delay respondent processing application noteworthy however lodged visa renewal application within day visa expiry also appears contributing factor break visa status conclusionthe applicant satisfy general residence requirement 21 1 act prior recent arrival 2019 ordinarily resident united kingdom 11 year tribunal accept absent australia first four year prior lodging citizenship application within meaning 22 1a act absence temporary open ended arrangement encompassed life overseas much 25 year prior latest arrival australia fact present australia purpose general residence requirement 24 applicant make claim discretion available s 22 1c 2 4a 5 5a 6 9 10 11 act tribunal satisfied apply tribunal also satisfied applicant meet special residence requirement 22a act relevant schedule applicant satisfy 22b 1 act engaged permissible type work schedule c exhaustive instrument applicant referred work author satisfy provision instrument must employed chief executive officer executive manager p asx australian 200 listed company clearly case discretion expand permissible type work schedule c apply factor tribunal calculation applicant satisfy general residence requirement 18 november 2023 remains australia applies citizenship success application however turn eligibility criterion minister yet determine includes knowledge requirement s 21 2 f act close continuing association requirement s 21 2 g act good character requirement 21 2 h act decisionthe tribunal affirms reviewable decision certify preceding 30 thirty paragraph true copy written reason decision senior member nikolic csc sgd associatedated 14 april 2023date hearing 12 april 2023applicant self represented m rachel edwardsadvocate respondent mr adam cunynghamesolicitors respondent sparke helmore 1 exhibit r1 30 2 ibid 117 120 3 ibid 7 22 4 ibid 1 6 5 drake minister immigration ethnic affair 2 1979 2 ald 634 6 exhibit r1 7 exhibit a1 8 exhibit a2 9 exhibit a3 10 exhibit a4 11 exhibit a5 12 exhibit a6 13 exhibit a7 14 exhibit a8 15 exhibit a9 16 exhibit a10 17 exhibit a11 18 exhibit a12 19 exhibit a13 20 exhibit a14 21 ibid 42 22 ibid 30 31 23 ibid 69 110 24 lin v minister immigration border protection 2009 fca 494 60 72 74 78 106 foster j

Jackson v Jackson (Real Property) [2006] VCAT 693 (24 February 2006).txt

jackson v jackson real property 2006 vcat 693 24 february 2006 last updated 28 april 2006victorian civil administrative tribunalcivil divisionreal property listvcat reference w53 2005catchwordsapplicants william james jackson lois jean jacksonrespondent lesley ellen jacksonwhere held melbournebefore honour judge dovedate hearing 20 february 2006date ruling 24 february 2006 2006 vcat 693orders1 application respondent dated 15thdecember 2005 dismissed 2 applicant 21 day file serve amended point claim 3 respondent 14 day service amended point claim file serve point defence 4 liberty apply upon 72 hour written notice tribunal party 5 order cost judge dovevice presidentappearances applicant mr b gillie counselfor respondent mr scott counselrulingbackground1 respondent proceeding applied tribunal order either proceeding summarily dismissed 75of thevictorian civil administrative tribunal act1998

Bourke and Repatriation Commission (Veterans' entitlements) [2023] AATA 2007 (11 July 2023).txt

bourke repatriation commission veteran entitlement 2023 aata 2007 11 july 2023 last updated 12 july 2023bourke repatriation commission veteran entitlement 2023 aata 2007 11 july 2023 division general divisionfile number 2017 6176re simon francis bourkeapplicantandrepatriation commissionrespondentdecisiontribunal hon matthew groom senior memberdate 11 july 2023place hobartthe decision review set aside original decision delegate respondent dated 12 march 2015 reinstated sgn hon matthew groom senior membercatchwordsveteran affair diagnosis claimed condition whether applicant suffers meniere disease whether applicant suffers fromotitis medium otitic barotrauma vestibular migraine application statement principle whether meniere statement principle support connection applicant service decision set asidelegislationveterans entitlement act 1986 cth safety rehabilitation compensation defence related claim act 1988 cth casescox repatriation commission 2019 aata 2340kaluza v repatriation commission 2011 fcafc 97 2011 280 alr 621lees v repatriation commission 2002 fcafc 398 2002 125 fcr 331morales v minister immigration multicultural affair 1998 fca 334 1998 82 fcr 374rana v mrcc 2011 fcafc 80 2011 55 aar 300repatriation commission v gosewinckel 1999 fca 1273 1999 59 ald 690repatriation commission v bey 1997 fca 1347 1997 79 fcr 364re eylward comcare 2008 atta 63re marinov comcare 2006 aata 223re quinn australian postal corporation 1992 aatasecondary materialsstatement principle concerning meniere disease 60 2006statement principle concerning meniere disease 109 2015statement principle concerning migraine 8 2018reasons decisionthe hon matthew groom senior memberintroductionthis matter involves review decision veteran review board vrb dated 23 august 2017 decision review decision review set aside earlier decision delegate respondent dated 12 march 2015 appropriate diagnosis applicant claimed condition wasmeniere disease condition related applicant defence service backgroundthe applicant 74 year age previously served raaf pilot commenced 29 june 1973 resigned effect 30 november 1973 6 february 2015 applicant lodged claim disability pension seeking benefit theveterans entitlement act1986

Zuin, Re [2004] QLRT 144 (23 November 2004).txt

zuin 2004 qlrt 144 23 november 2004 last updated 9 september 2005land resource tribunalqueenslandcitation g zuin 2004 qlrt 144parties application mining lease 95484 silvia gumann zuinfile aml176 04proceeding application mining leasedelivered 23 november 2004delivered brisbanehearing date heard paperspresiding member koppenol porder 1 tribunal constituted president 2 2 hearing dispensed 3 3 recommendation made subject compliance pre grant condition ilua application mining lease 95484 applied applicant granted purpose area term applied 20 catchword mining mining lease application recommendationland resource tribunal act 1999 s 39 40mineral resource act 1989 s 245 252 1 269 4 270environmental protection act 1994native title act 1993 cth counsel n asolicitors n aagent n aapplication 1 application silvia gumann zuin applicant unders 245of themineral resource act 1989 act mining lease 16 6956ha area land situated approximately 17km south opalton near winton mining opal application lodged mining registrar winton mining district 18 august 2004 objection application lodged public objection period ended 24 october 2004 constitution tribunal 2 applicant requested single presiding member tribunal hear matter agreeable course accordance s 39 44 theland resource tribunal act 1999 direct tribunal constituted matter dispensing hearing 3 applicant requested additional information statutory declaration form aisd form application heard tribunal paper without oral hearing 270 act tribunal discretion dispense hearing 4 specified criterion satisfied reason appear satisfied provision part 7 mining lease act complied b objection grant application c restricted land involved reserve land involved regard appropriate case dispense hearing order accordingly tribunal statutory function 4 case tribunal statutory function 269 act take account consider number prescribed factor make recommendation minister natural resource mine whether application granted rejected considered material provided tribunal applicant mining registrar however reason refer evidence relevant necessary decision section 269 4 recommendation 5 section 269 4 provides follows 269 tribunal recommendation hearing 4 tribunal making recommendation minister application mining lease granted whole part shall take account consider whether provision act complied b area land applied mineralised purpose lease sought appropriate c land applied mineralised acceptable level development utilisation mineral resource within area applied land surface area land respect mining lease sought appropriate size shape e term sought appropriate f applicant necessary financial technical capability carry mining operation proposed mining lease g past performance applicant satisfactory h disadvantage may result right holder existing exploration permit mineral development licence ii existing applicant exploration permit mineral development licence operation carried authority proposed mining lease conform sound land use management j adverse environmental impact caused operation extent thereof k public right interest prejudiced l good reason shown refusal grant mining lease taking consideration current prospective us land proposed mining operation appropriate land use 6 deal turn factor set section 269 4 7 section 269 4 18 august 2004 mining registrar issued certificate application pursuant 252 1 act mining registrar satisfied applicant eligible apply mining lease complied requirement act respect application applicant lodged mining registrar statutory declaration certifying compliance statutory requirement notifying application note land subject application comprises land native title may exist however indigenous land use agreement ilua registered thenative title act 1993 cth deed grantee party signed applicant enables application granted subject prescribed native title condition restricted land reserved land involved satisfied provision act complied 8 section 269 4 b application seek grant mining lease open cut mining opal applicant aisd form said applicant knew proposed mining lease area mineralised surface trace located satisfied area mineralised purpose lease sought appropriate 9 section 269 4 c proposed mine open cut operation excavator tip truck used purpose area progressively mined backfilled rehabilitated satisfied acceptable level development utilisation mineral resource within area applied 10 section 269 4 application said area shape applied cover area showing surface trace evidence indicate size shape appropriate 11 section 269 4 e term 10 year sought term envisaged fully mine application area given mining occur winter month comply condition ilua satisfied term sought appropriate 12 section 269 4 f applicant involved hand mining within yowah mining area 3 year gained knowledge mining within winton mining district past 18 month access various mining equipment evidence applicant requisite financial technical capability 13 section 269 4 g applicant never notice rectify non compliance damage notice show cause tenure cancelled penalty imposed conviction act 14 section 269 4 h evidence indicates underlying tenure 15 section 269 4 current land use appears low intensity grazing apparently otherwise capable used opal mining purpose mining activity carried accordance draft environmental authority issued theenvironmental protection act 1994 mining land appropriately rehabilitated satisfied proposed mining operation conform sound land use management 16 section 269 4 j mining activity carried accordance draft environmental authority mining activity issued epa applicant must comply various environmental condition set document objection issue authority satisfied environmental impact caused proposed mining operation warrant unfavourable recommendation present application 17 section 269 4 k evidence indicated public right interest would prejudiced 18 section 269 4 l evidence indicated good reason application refused 19 section 269 4 basis evidence material referred consider proposed activity appropriate land use recommendation 20 taking account evidence material particular referred recommend honourable minister natural resource mine subject compliance pre grant condition ilua application mining lease 95484 applied applicant granted purpose area term applied

Construction, Forestry, Mining and Energy Union re 808 Design Glass and CFMEU (FFTS Branch) Enterprise Agreement 2011-2015 [2012] FWAA 3301 (18 April 2012).txt

construction forestry mining energy union 808 design glass cfmeu ffts branch enterprise agreement 2011 2015 2012 fwaa 3301 18 april 2012 fair work australiadecisionfair work act 2009s 185 enterprise agreementconstruction forestry mining energy union ag2012 1147 808 design glass cfmeu ffts branch enterprise agreement 2011 2015building metal civil construction industriescommissioner blairhobart 18 april 2012application approval 808 design glass cfmeu ffts branch enterprise agreement 2011 2015 1 application made approval enterprise agreement known the808 design glass cfmeu ffts branch enterprise agreement 2011 2015 agreement application made pursuant tos 185of thefair work act 2009 act made construction forestry mining energy union cfmeu agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188of act relevant application approval met 3 cfmeu bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 act note agreement cover organisation 4 agreement approved accordance withs 54of act operate 25 april 2012 nominal expiry date agreement 30 june 2015 commissionerprinted authority commonwealth government printer price code j ae893267 pr522535

Commonwealth of Australia v Calabretta, in the matter of Condura Pty Ltd (in liq) [2019] FCA 219 (25 February 2019).txt

commonwealth australia v calabretta matter condura pty ltd liq 2019 fca 219 25 february 2019 last updated 7 march 2019federal court australiacommonwealth australia v calabretta matter condura pty ltd liq 2019 fca 219file number nsd 2393 2018judge yates jdate judgment 25 february 2019catchwords practice procedure application reinstatement deregistered company original liquidator replaced company deregistered result administrative error former liquidator liquidation fully completed investigation former liquidator conduct necessary prejudice likely result reinstatement objection asic completion liquidation public interestlegislation corporation act 2011 cth s 509 601ad 1a 601ad 2 601ah 2 601ah 3 sch 2 s 70 5 70 6601ah 3 federal court rule 2011r 9 05 1 case cited australian competition consumer commission v australian security investment commission 2000 nswsc 316 174 alr 688date hearing 25 february 2019registry new south walesdivision general divisionnational practice area commercial corporationssub area corporation corporate insolvencycategory catchwordsnumber paragraph 15counsel plaintiff mr j giles sc mr j entwistlesolicitor plaintiff king wood mallesonscounsel first defendant first defendant appearcounsel second defendant second defendant appearordersnsd 2393 2018in matter condura pty ltd liquidation acn 002 874 660 commonwealth australiaplaintiffand domenico alessandro calabrettafirst defendantcondura pty ltd liquidation acn 002 874 660 second defendantjudge yates jdate order 25 february 2019the court order pursuant r 9 05 1 thefederal court rule 2011 australian security investment commission asic joined party proceeding originating process taken amended accordingly pursuant 601ah 2 thecorporations act 2011 cth theact asic reinstate registration second defendant effect date deregistration 25 january 2019 pursuant 601ah 3 act order 1 5 made 19 february 2019 apply second defendant second defendant registered date order made b plaintiff transfer m duggan liquidator second defendant property vested 601ad 1a act c asic transfer m duggan liquidator second defendant property vested 601ad 2 act order 3 made 19 february 2019 varied word later 4 00 pm 28 february 2019 substituted word later 4 00 pm 22 february 2019 order 3 b made 19 february 2019 varied word later 4 00 pm 4 march 2019 substituted word later 4 00 pm 26 february 2019 first defendant pay plaintiff cost incidental application cost fixed sum 4 000 inclusive gst within 30 day date order first defendant entitled indemnity asset second defendant cost order 6 cost connection application order lodged asic within 3 business day liberty apply granted note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgment revised transcript yates j commonwealth applies unders 601ah 2 thecorporations act 2001 cth theact reinstatement second defendant 19 february 2019 court made order first defendant appointed liquidator second defendant firstly member voluntary winding creditor voluntary winding removed office robyn duggan appointed place court made order designed facilitate transfer control book record second defendant first defendant m duggan order also made facilitate determination question cost application determination made paper without oral hearing reason commonwealth seeking first defendant removal office firstly concern first defendant conducted member voluntary winding due diligence care skill required liquidator secondly commonwealth concluded need consider affair second defendant 21 december 2017 transaction entered date footing second defendant likely insolvent date shortly thereafter thirdly given matter referred inappropriate first defendant liquidator investigate matter particularly conduct may caused loss damage second defendant event transpired neither first defendant second defendant contested commonwealth application order referred made consent however following making order came m duggan notice second defendant deregistered since 25 january 2019 reason appears form 5603 end administration return lodged first defendant asic 25 october 2018 form 5603 administration return 70 6 insolvency practice schedule act return section lodged external administration come end external administration includes creditor voluntary winding continuing appropriate return form 5602 70 5 insolvency practice schedule consequence filing form 5603 return asic considers affair company fully wound deregister company accordance 509 act present case seems 25 october 2018 first defendant lodged wrong form following conversion member voluntary winding creditor voluntary winding following creditor meeting 24 september 2018 lodgement form 5603 25 october 2018 resulted deregistration second defendant 25 january 2019 commonwealth submits deregistration second defendant frustrated continuation creditor voluntary winding appointment m duggan liquidator second defendant accordance court order 19 february 2019 present application supported affidavit natalie margaret tatasciore partner firm solicitor engaged commonwealth m tatasciore deposed 18 december 2018 prior filing principal proceeding 21 december 2018 caused asic current historical search obtained second defendant search indicated second defendant still registered 29 january 2019 18 february 2019 m tatasciore received le nine letter email solicitor first defendant second defendant concerning principal proceeding m tatasciore deposed none correspondence informed second defendant may deregistered commonwealth submits person aggrieved within meaning 601ah 2 act priority creditor second defendant time deregistration liquidation second defendant completed one object replacement first defendant liquidator allow investigation conduct relation winding second defendant certain transaction benefit unsecured creditor matter referred affidavit made henry foster carr behalf commonwealth mr carr affidavit dated 20 december 2018 read support order made 19 february 2019 support application today oral submission today commonwealth pointed additional matter submits investigated necessary go matter purpose reason satisfied deregistration second defendant affected commonwealth interest person aggrieved within meaning relevant provision section 601ah 2 act empowers court order asic reinstate registration company application person aggrieved deregistration court satisfied company registration reinstated inaustralian competition consumer commission v australian security investment commission 2000 nswsc 316 174 alr 688 austin j observed wording section 601ah 2 broad give court wide discretion honour noted court take account circumstance company came deregistered whether order reinstatement made good use could made order whether person likely prejudiced reinstatement honour observed hese matter factor weighed exercise court discretion limit court power 27 28 applying factor present case commonwealth submits second defendant registration reinstated dissolved result administrative error former liquidator first defendant circumstance extant application replace reason identified secondly commonwealth submits order reinstatement made allow new liquidator m duggan continue liquidation second defendant including importantly investigating conduct liquidation date transaction taken place thirdly commonwealth submits one likely relevantly prejudiced reinstatement fourthly commonwealth submits public interest strongly point favour reinstatement allow completion liquidation distribution second defendant asset accordance pt 5 6 div 6 act asic informed present application letter dated 22 february 2019 addressed commonwealth solicitor asic stated oppose application reinstatement provided certain condition satisfied condition order reinstatement term 601ah 2 requiring reinstate registration company b asic made party proceeding consent application relevant matter court consideration c second defendant ordered reinstated continue liquidation m duggan liquidator court order lodged asic second defendant may reinstated e m duggan notify asic upon conclusion second defendant winding informed seen evidence fact first defendant asked commonwealth mention appearance note first defendant agreed cost present application paid pursuant fixed cost order 4 000 inclusive gst entitled indemnity second defendant asset cost satisfied order sought commonwealth appropriate circumstance made reason canvassed commonwealth submission satisfied order also achieve substance condition asic letter 22 february 2019 proceeds therefore order made accordingly also grant liberty apply certify preceding fifteen 15 numbered paragraph true copy reason judgment herein honourable justice yates associate dated 7 march 2019

"Index" [2019] ELECD 1414; in Frankel, Susy (ed), "Is Intellectual Property Pluralism Functional?" (Edward Elgar Publishing, 2019) 463.txt

index 2019 elecd 1414 frankel susy ed intellectual property pluralism functional edward elgar publishing 2019 463book title intellectual property pluralism functional editor frankel susypublisher edward elgar publishingsection title indexnumber page 22extract indexaboriginal torres strait islander meeting information sessionssee australia traditional 60 61knowledge national ip strategy nip abrams v u 362 58 9accessible book consortium 319 322 plant variety protection 61 5addor felix 247 8 technical assistance educationafrica 58 9 61 4agriculture african intellectual propertyfood security 53 7 organization oapi 38 9 42 3 informal system 53 6 47 49 51ip policy 40 47 53 4 african ministerial conference 44 7plant variety right see plant african regional intellectual propertyvariety right organization aripo 38 40 r technological 42 3 47 50 54development policy 55 7 african union 40 44 7seed bank concern regarding agriculture see africa plant variety53 5 rightscommon african position 40 41 ahmed v india 90 9155 amazon 172 3copyright fair dealing exception appellation origin 242 244 516 17 see also geographical indicationsdakar declaration intellectual arfini filippo 239property africa 45 armstrong carol 30 31developmental agenda 37 8 ashby donald v france ecthr food security 40 42 44 6 53 64 358 9international law constitutional ashdown v telegraph uk 379 80conflicts 87 asiaplant variety protection protocol copyright 4 5 365 647 50 fair dealing exception 16 17public private partnership 60 freedom expression andregional agreement 2 38 365 6science technology traditional knowledge conflict 227innovation strategy africa ugc protection provision

Nguyen, Hunog Trinh [2004] MRTA 106 (9 January 2004).txt

nguyen hunog trinh 2004 mrta 106 9 january 2004 last updated 9 march 2004 2004 mrta 106catchwords review visa refusal subclass 676 genuine visit adequate fund clause 4011 risk factorreview applicant huong trinh nguyenvisa applicant huong lan nguyentribunal migration review tribunalpresiding member michael griffinmrt file number n03 05869dept file number 1618hc03date decision 9 january 2004at sydneydecision tribunal affirms decision review finding visa applicant entitled grant short stay visitor class tr visa application review1 application review decision made delegate minister immigration multicultural indigenous affair delegate m huong lan nguyen visa applicant national vietnam born 2 august 1964 applied short stay visitor class tr visa 19 may 2003 d1 f 5 delegate decision refuse grant visa made 6 june 2003 t1 f 1 2 jurisdiction standing2 miss huong trinh nguyen review applicant sibling visa applicant lodged valid application review migration review tribunal tribunal 30 july 2003 t1 f 4 7 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa department reconsideration remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 criterion policy immediately relevant review legislation part 676of schedule 2 regulationsclause 4011 schedule 4 regulationscommonwealth gazette notice 50 20 december 2000directions policy direction 1 1996 relation genuine visit policy direction 2 1996 relation adequate fund issued minister section 499 act policy procedure advice manual 3 generic guideline h visitor visasprocedures advice manual 3 schedule 4 public interest criterion criterion 4011cases minister immigration multicultural affair v saravanan 2002 fca 348 27 march 2002 ugochukwu v minister immigration multicultural affair 2000 fca 16026 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance 7 class tr contains one subclass subclass 676 tourist short stay visa criterion subclass 676 visa relevant tribunal consideration visa applicant seek visit australia purpose visiting australian citizen australian permanent resident parent spouse child brother sister visa applicant adequate fund access adequate fund personal support visit clause 676 211 paragraph 676 221 2 period stay australia proposed application exceed 3 month clause 676 212 paragraph 676 221 2 b visa applicant satisfies decision maker expressed intention visa applicant visit australia genuine paragraph 676 221 2 c 8 case visa applicant also required satisfy decision maker regard visa applicant circumstance visa applicant country usual residence little likelihood visa applicant remain expiry period visa applicant might authorised remain entry additional requirement applies visa applicant affected known risk factor national vietnam aged 20 year older see paragraph 676 221 2 e schedule 2 clause 4011 schedule 4 gazette gn 50 20 december 2000 9 minister issued direction section 499 relevant criterion policy direction 1 1996 relation genuine visit policy direction 2 1996 relation adequate fund tribunal regard direction decision evidence10 tribunal following document t1 tribunal case file n03 05869 folio numbered 1 72 d1 departmental case file 1618hc03 folio numbered 1 6 11 visa application made 19 may 2003 visa application seem available departmental paper 12 visa applicant wish visit sister family parent sibling 3 month review applicant indicates wish visa applicant participate wedding july 2003 13 delegate decision refuse grant visa made 6 june 2003 delegate satisfied based visa applicant personal circumstance risk factor would depart australia within period authorised stay delegate satisfied genuine visit intended visa applicant substantial incentive return vietnam subclause 676 221 d1 f 3 t1 f 1 2 14 review applicant stated lodging application review visa applicant property money bank account vietnam review applicant also stated willing provide security ensure visa applicant abide immigration law review applicant stated provide evidence visa applicant property bank account mrt request t1 f 4 7 15 tribunal held hearing 17 november 2003 review applicant visa applicant mother father brother review applicant husband gave oral evidence 16 regard legislation minister policy direction evidence tribunal departmental file evidence obtained hearing discussed following heading purpose visa applicant visit duration stay proposed plan visa applicant made visit relative visa applicant personal responsibility financial mean earnings level support assistance available visa applicant 17 visa applicant initially applied visit review applicant rest family australia 3 month review applicant wanted visa applicant participate wedding ceremony held 12 july 2003 review applicant claimed visa applicant property bank account vietnam level personal financial employment commitment may induce visa applicant return circumstance may induce visa applicant return 18 visa applicant 39 year old single woman majority sibling parent citizen australia visa applicant originally claimed business grocery store work assistant business claimed owned house bank account u 10 000 d1 f 3 visa applicant parent sister 2 brother reside australia australian citizen provided statutory declaration would provide financial support visa applicant 3 month t1 f 13 18 29 visa applicant sibling also provided tribunal evidence weekly income form pay slip t1 f 8 20 26 regard visa applicant circumstance visa applicant country usual residence little likelihood visa applicant remain period visa applicant might authorised remain entry19 tribunal received inconsistent evidence witness visa applicant circumstance review applicant said visa applicant high school teacher 5 6 year 1996 worked current job assistant manager auto repair business 3 4 year referred review applicant department record sister owned worked grocery shop said aware job auto repair shop suggested possible visa applicant work grocery shop owned cousin said perhaps mistake original application form mixed brother shop work weekend pointed said moment ago cousin shop said beginning cousin asked brother become partner 20 asked mother visa applicant employment history said school teacher currently work auto repair shop said stopped teaching 1994 1995 worked paper company 3 year said visa applicant began current job year asked son vietnam shop said said trader local market place said visa applicant sometimes help trade spare time 21 visa applicant gave evidence telephone said lived brother lived next door said currently work auto repair shop said began job 2000 said school teacher said left teaching 1998 stayed home commencing current job asked brother business said business trading house rent said trade fish local market asked shop said small stall market asked department record owning working grocery shop said still business registration bought business someone else run asked worked shop said asked relative look asked done work besides teaching auto shop said never done anything else two job drop grocery shop bit trading asked worked 3 year paper company said yes long time ago asked said back 1988 first graduated school put mother evidence time job paper company said remember exactly know worked one year accountant 22 visa applicant said longer ten thousand u dollar bank account used purpose could produce required could afford visit australia said intended visit see family credibility visa applicant term character conduct information disclosed visa application otherwise obtained indicates reasonable likelihood applicant abide visa condition history compliance breach immigration law visa applicant history dealing department person person australia usually resident australia support support visit visa applicant 23 review applicant arrived australia 14 november 1990 bf subclass k012 visa granted subclass 155 permanent visa 1 september 1995 departed australia 22 november 1995 arrived back 31 january 1996 review applicant parent brother also arrived australia bf subclass k012 visa k011 visa later became australian citizen adverse information tribunal visa applicant family member 24 visa applicant father want comment daughter employment history said could return vietnam participation war asked daughter allowed visit visa applicant brother said sister worked auto shop 6 month approximately said teacher review applicant husband said family would provide necessary financial support visa applicant visit finding reasons25 tribunal finding based material contained department file tribunal file well evidence obtained hearing tribunal benefit hearing oral evidence visa applicant several family member tribunal satisfied evidence visa applicant circumstance reliable significant inconsistency employment history business interest tribunal satisfied visa applicant circumstance sufficient interest commitment vietnam induce return tribunal make following finding tribunal satisfied expressed intention visa applicant visit australia genuine conclusion26 given finding made tribunal alternative affirm decision review decision27 tribunal affirms decision review finding visa applicant entitled grant short stay visitor class tr visa

R v CCE [2018] QCA 176 (2 August 2018).txt

r v cce 2018 qca 176 2 august 2018 last updated 23 august 2018 2018 qca 176court appealsofronoff phenry jbrown jca 37 2018dc 377 1997the queenvcce applicantbrisbanethursday 2 august 2018judgmentbrown j 23 february 2018 applicant filed notice appeal application extension time seeking set aside conviction alternatively claiming sentence imposed manifestly excessive applicant convicted plea guilty carnal knowledge anal intercourse child age 12 year sentenced 15 december 1997 sentenced life imprisonment sought leave appeal sentence imposed apparently ground manifestly excessive application unanimously dismissed 27 may 1998 copy judgment r v c 1998 qca 207 filed respondent present application present application made 20 year time prescribed appealing conviction sentence applicant therefore requires extension time granted court material provided applicant support application material court apart notice appeal application extend time transcript sentence hearing sentencing remark learned primary judge applicant criminal history factual backgroundthe offence related two year old child court appeal considered sentencing judge described offence accurately one almost unimaginable brutality complainant suffered significant injury result offence applicant nephew complainant grandmother seen grandmother climbing window room complainant found managed unlock door applicant initially denied involvement de facto partner provided false alibi claiming night agreed plead guilty committal forensic testing showed complainant blood penile swab taken psychiatrist report provided sentencing court find suffered psychotic neurotic disorder applicant criminal history violent conduct particularly associated alcohol learned sentencing judge court appeal found shown remorse plea guilty could go learned sentencing judge court appeal commented person least average intelligence davis ja mcpherson ja thomas j agreed stated submitted behalf u morning mr atkinson sentence life imprisonment aboriginal person applicant particularly value freedom crushing sentence submitted virtue indeterminate nature would afford goal aim plan hope future doubt correct though one may understand submission one must bear mind imposing life sentence learned sentencing judge said view case one worst example offence sentencing view honour justified reaching conclusion one regard previous violent conduct almost unbelievable brutality offence cannot disagree conclusion honour reached imposing sentence would therefore refuse application applicant represented counsel time pleaded guilty sentenced none fact disputed time sentence appear disputed time appeal offender 25 year age time offending 45 eligible apply parole since 15 may 2010 applicant represents hearing application extension timethe notice appeal application extension time identify following ground sentence manifestly excessive conviction overturned guilty plea set aside order retrial due flawed medical evidence given applicant previously applied unsuccessfully appeal sentence although conviction issue whether court jurisdiction hear application least relation sentence discussed boddice j inr v gopurenko 1 rest court agreed question presently remains unresolved court concluded respect application leave appeal extension time without merit necessary resolve present case application extension time applicant bear onus issue 2 reiterated ther v tait 3 court stated relevant approach application kind namely court examine whether good reason shown account delay consider overall whether interest justice grant extension may involve assessment whether appeal seems viable one expected case court able ass whether prospective appeal viable feasible court often find appropriate make provisional assessment strength applicant appeal take account deciding whether fit case granting extension first issue whether good reason shown account delay said application filed 20 year time delay unexplained applicant respondent submits significant unexplained delay sufficient basis upon court refuse application given applicant self represented appropriate briefly consider second issue namely whether interest justice grant extension time regard respondent relies ther v daq 4 keane ja honour stated fraser ja mackenzie aja agreeing applicant made deliberate decision appeal changed mind regard serving bulk sentence understandable discretion allow appeal proceed exercised favour applicant applicant present compelling demonstration serious injustice corrected appeal applicant also relies statement paragraph 10 case honour noted delay detracts public interest finality litigation applicant satisfy court viable case suffered miscarriage justice reason guilty plea accepted reason sentence imposed seeking set aside conviction applicant pleaded guilty principle relevantly set muir ja wilson aja agreed inr v wade 5 applicant must first persuade court go behind plea guilty miscarriage justice occurred must strong case exceptional circumstance warrant court setting aside convictionthe applicant raise 15 complaint handwritten submission relation application paragraph 8 submission seek raise issue connected plea guilty noted however oral submission applicant raised fact lawyer went back forth plea guilty guilty raised nothing could go question whether plea voluntary one freely given applicant complains conduct police interview submits aboriginal indigenous person low ability functioning lawyer support person 6 respondent submits complaint without proper foundation applicant represented experienced counsel time plea open court mature man apparently sound mind evidence suggest plea guilty entered exercise free interest 7 given applicant represented time sentencing time appeal even assumed lawyer friend present police interview support fact time sentence plea guilty made freely voluntarily sentencing court provided psychiatrist report dr richardson time plea sentencing hearing sentencing judge commented applicant intelligent man court appeal commented least average intelligence nothing court suggest position otherwise applicant understand nature charge significance plea entered circumstance nothing persuade court go behind plea guilty matter raised applicant go whether triable issue applicant suggests injury outlined prosecution court based upon dr kim evidence borne evidence provided court appears dr kim evidence tendered exhibit court event challenge made applicant counsel description medical evidence dr kim complainant injury outlined prosecutor court photographic evidence supporting injury tendered court applicant counsel indicated medical evidence available time hand committal suggestion available time sentence applicant seems argue evidence insufficient evidence link offence 8 applicant suggests people may committed crime appears compelling body evidence applicant outlined court inr v c included applicant identified complainant grandmother jumping window bedroom complainant found cry without nappy bleeding heavily forensic testing revealing complainant blood penile swab taken applicant eyewitness account applicant behaviour offending linking place offence occurred applicant admission police complaint made applicant lack direction jury compellability witness irrelevant given trial nothing raised applicant suggest real prospect establishing plea guilty accepted even set aside would arguable case miscarriage justice occurred reason conviction complaint sentenceas said court previously heard refused application leave appeal sentence imposed upon applicant judgment delivered may 1998 applicant make submission regarding previous application nothing suggest identifiable change circumstance contrary considered court appeal applicant submits learned sentencing judge failed take account mitigating factor applicant cooperated authority pleaded guilty saving court family child victim amount time 9 respondent concedes sentencing judge specifically stated applicant pleaded guilty honour required bys 13 3 thepenalties sentence act1992

Clark (a pseudonym) v The Queen [2015] VSCA 297 (17 November 2015).txt

clark pseudonym v queen 2015 vsca 297 17 november 2015 last updated 1 december 2015supreme court victoriacourt appeal apcr 2015 0142matthew clark pseudonym applicantvthe queenrespondent judge maxwell p priest kaye jjawhere held melbournedate hearing 29 october 2015date judgment 17 november 2015medium neutral citation 2015 vsca 297judgment appealed dpp v clark county court victoria judge coish 22 june 2015 criminal law appeal conviction indecent act child 16 4 charge tendency evidence admission whether significant probative value danger unfair prejudice prejudice lapse time whether judge applied statutory test cross examination victim hostility accused whether answer gave rise unfair prejudice whether direction adequate whether defence deprived reasonable opportunity cross examine prosecution witness application refused evidence act 2008ss 97 101 137 appearance counselsolicitorsfor applicantmr gillespie jones m e mckinnonmcnamaras lawyersfor crownms piekusisms v anscombe acting solicitor public prosecutionsmaxwell ppriest jakaye ja 1 applicant found guilty jury empanelled trial four charge committing indecent act former partner daughter r 16 year age period january 1977 january 1981 also acquitted jury four charge indecent assault relating r plea hearing applicant sentenced total effective term three year imprisonment non parole period 18 month applicant seek leave appeal conviction charge 2 applicant originally subject 12 charge presentment consisting nine count relating complainant r three count relating r younger sister b january 2014 judge county court ordered permanent stay 12 charge presentment dpp successfully appealed decision court appeal permanently stayed count 1 presentment 1 september 2014 presentment severed remaining charge relating complainant subject separate presentment separate trial 3 trial relating charge subject application concluded 24 november 2014 pronouncement jury verdict followed three abortive trial relating second complainant b including two trial jury failed reach verdict consequence dpp entered notice discontinuance presentment relating second complainant april 2015

Arthur John Walsh & Ors v Jan Jewell & Ors [1998] WASC 304 (2 October 1998).txt

arthur john walsh or v jan jewell or 1998 wasc 304 2 october 1998 last updated 21 july 1999jurisdiction supreme court western australiain criminalcoram murray jheard 30 july 1998delivered 2 october 1998file mcr 33 1998between arthur john walshapplicantandjan jewellrobert ockerbydouglas ockerbyrespondentscatchwords criminal law procedure application leave commence private prosecution criterion grant leave discussed leave refused criminal code wa s720representation applicant personrespondents appearancecase referred judgment case also cited nillibrary number 980580murray j application court unusual character brought applicant person leave present information respondent enable prosecution upon indictment applicant wish bring private prosecution jury indictable offence criminal defamation said committed respondent 21 may 1997 application made almost year later notice motion filed 18 may 1998 pursuant thecriminal practice rule wa oiv r1 provides application leave made motion court order calling accused person show cause leave granted thecriminal code wa s720 provides court may grant leave person present information another person indictable offence punishable strict security life imprisonment s721 leave granted exercise court discretion respondent called upon show cause information presented prosecutor required give security amount manner court giving leave present information may direct security required two purpose firstly secure prosecution information without delay secondly secure payment accused person cost incurred defence may ordered paid section 728 provides case cost may awarded accused person prosecutor liability arise institution proceeding private information accused person entry plea person brought trial within year attorney general informs court proceed information ie entry anolle prosequi accused person acquitted trial notice motion applicant seek order waiving giving security respect respondent cost doubt whether regard apparently mandatory term s721 court power decline make order security cost defence although note applicant ground part application upon general proposition mean give security shut capacity bring proposed prosecution upon ground impecuniosity tentative view would would provide sufficient ground exercise discretion make order s721 clearly designed protect position defendant may caused incur cost respect prosecution either proceed result acquittal trial policy law appears defendant exposed cost unless process private prosecution justified ultimate conviction however would appear determination application require final decision capacity order decline order security cost pursuant s721 turn s720 clearly involves exercise discretion note context process leading grant leave appears two part first part application making order calling upon proposed defendant show cause leave granted would seem event formerly proceedingex partebecomes proceedinginter partes second part process court deliver decision either refusing grant leave however view stage required consider matter would inform exercise final discretion grant refuse leave deciding whether call upon respondent show cause thecodes360 person unlawfully publishes defamatory matter concerning another guilty misdemeanour liable imprisonment 12 month fine 600 offender know defamatory matter false liable imprisonment two year fine 1 000 return later element offence misdemeanour clearly indictable offence kind may fall within capacity proceed way private information s720 codes3 capacity offence punished summarily codes5 person may initiate prosecution offence making complaint justice justice act 1902 wa s42 offence indictable offence may punished summarily procedure generally described thejustices actpart v division 2 leading committal defendant trial sentence followed committal trial prosecution thereafter upon indictment subject grant leave bring private information official character indictment signed presented court attorney general person appointed behalf governor codes578 prosecution indictment may halted time attorney general officer appointed present indictment presenting court anolle prosequi codes581 clear s581 speaks officer informing court writing crown proceed upon indictment pending court term indictment include private information see definition indictment thecodes1 1 section 581 provides upon entry thenolle prosequi accused person discharged proceeding upon indictment clear although court may grant leave present private information attorney general public official possessing power prosecution conferred law upon attorney general may intervene halt prosecution seen thecodes728 framed upon basis effect procedure remove process prosecution indictable offence procedural substantive constraint administrative process committal trial court petty session understandable leave required obtained court also case amply demonstrate process private prosecution upon indictment regarded one permitted exceptional circumstance inex p marsh 1966 qd r 357at 365 wanstall j described procedure unusual extraordinary ingouldham v sharrett 1966 war 129at 137 wolff cj said private prosecution become practically otiose history prosecution legislative enactment affecting process time time various jurisdiction usefully discussed case judge mentioned need repeat discussion sufficient say consideration ordinary process official prosecution concern person exposed private prosecution jury trauma expense may involve exceptional circumstance process required permitted interest justice going beyond particular interest prosecutor led court take highly restrictive approach grant leave approach recognises considering grant refusal leave court concerned private action damage compensation criminal proceeding directed finding guilt serious offence punishment state fine imprisonment ordinary way inex p marshthe view expressed wanstall j much concerned fact grant leave prosecute jury private information departed ordinary procedure referred honour said 365 upon consideration think exercise discretion circumscribed unless case present unusual extraordinary feature countenance procedure eliminate traditional safeguard inherent usual course obvious requirement finding aprima faciecase magistrate investigation accused may cross examine freely finding attorney general true bill committal evidence assistance preparing defence accused obtains committal proceeding giving judgment full court ingouldham v sharrettwolff cj 137 8 concluded considering whether grant leave s720 court guided following consideration 1 type offence grave character determination whether prosecute left attorney general eg prosecution offence non capital homicide perjury 2 admissible evidence support prosecution inherently credible sufficient found aprima faciecase 3 proceeding committal good reason usual proceeding committal justice resorted 4 accused already committed trial petty sessional court 5 attorney general entered anolle prosequior intimated file bill 6 administration justice likely impaired reason discreditable motive part prosecutor 7 situation leave refused grave injustice done applicant somebody standing close relationship although respondent solicitor served notice proceeding originally appeared appear represented hearing factual material upon affidavit applicant included document placed court particularly mind point 3 5 passage cited judgment wolff cj asked applicant place affidavit information history attempt made subject matter allegation investigated officially prosecuted material placed court 10 august evidence show 19 january 1995 19 january 1998 applicant tenant unit 7 442 canning highway attadale fortnightly rental 200 payable fortnightly advance 19 january 1995 three lease period 12 month letting agent company trading ockerby real estate although lease required payment advance fortnightly rental instalment document placed applicant show rental payment almost invariably made fortnightly period related rather commencement period nonetheless mr walsh say conformed spirit term three lease rental payment time consistent verbal written agreement dispute whether variation term lease accommodate payment rent made put shortly appears dispute payment rent hinged upon handwritten special condition second third lease apparently made initialled mr walsh understand case say resulted agreement orally made vary term lease position respondent condition never part lease always required payment rent advance fortnightly period effect condition applicant argues enable rent paid thursday fortnight coinciding date pension paid appears also term lease applicant owner premise became embroiled dispute owner alleged failure maintain premise good tenantable state repair applicant say owner related member firm managing agent proceeding appear involved agent respondent behalf owner theresidential tenancy act 1987in small dispute division local court held fremantle order made owner order made 7 may 1997 court sought resolve dispute party time agent might inspect premise behalf owner ordering applicant make premise available inspection specific hour specified date order made designed facilitate access premise workman employed owner effect repair repair made tenant pay rent court appears applicant seeking routine inspection conducted time fixed advance precision asserted required medical condition hand respondent asserted entitlement inspect reasonable time without tying way seems mr robert ockerby principal company trade ockerby real estate mr douglas ockerby said son manager real estate agency m jewell appears employee described organisation property manager owner apparently represented court 7 may 1997 mr douglas ockerby answer question learned magistrate process inspection declined court set particular time inspection premise carried said per theresidential tenancy act allow time go breach breach way end day honour everything put onto tenancy data base helping real estate agent although going bit hassle next till lease expires january next year name going tenancy data base cause u much problem find difficult get new rental premise one look tenancy data base two ring u say like subject matter alleged criminal defamation entry made data base applicant deposes maintained real estate institute wa deposes 21 may 1997 respondent published inserting data base information consistently day late rent tenant refused owner right inspect printout data base court evidence content hearsay character come form applicant entry upon relies constituting act criminal defamation wish leave prosecute asserts entry defamatory untrue say statement payment rent untrue relying upon term lease agreement argues respondent apparently dispute far right inspect concerned applicant position never refused right inspect argued precision fixing time inspection advance applicant say sought ockerby real estate real estate institute strike offending entry data base neither take course ockerby real estate publish retraction statement made applicant deposes inflammatory exchange mr robert ockerby say together m jewell co signed document required real estate institute verify accuracy information provided applicant complains document court applicant say possession institute upon document applicant say institute relies refusing amend data base applicant say first discovered existence entry october 1997 since say sought legal aid assist without success say contacted 10 12 legal firm view pro bono contingency type representation without success success otherwise obtaining legal advice say reluctantly reported matter police dissatisfied quality investigation ultimately complained police sought intervention commissioner advised complaint referred assistant commissioner professional standard investigation would contacted say expressly outcome process tenor affidavit effect police lay charge say referred director public prosecution place copy letter dated 18 march 1998 written official seeking interview 19 march 1998 director replied declining grant interview saying copy applicant letter forwarded assistant commissioner professional standard police force director public prosecution declined become involved principal investigative function state police wish submit brief office course consider applicant asserts effort official prosecution pursued come nought unable obtain legal assistance say attempted lay information criminal defamation perth court petty session say referred thecodes720 say made attempt say gave advice apparently deterred making complaint say conduct civil action person viable option say better equipped pursue criminal prosecution understand previously police officer say age 67 year ill health preclude pursuit civil litigation protracted complicated documentation would involved turning first nature case applicant wish present indictment observe direct evidence court substantiate precise information said placed data base given word applicant speaks would doubt information defamatory involves imputation reputation applicant would likely injured codes346 insertion information data base maintained real estate institute available member generally would think publication within meaning s349 conduct concerned would cause information shown view read seen person person defamed event publication defamatory matter unlawful unless publication protected justified excused law codes350 understand position could suggested absolute protection justification publication within meaning thecodess351 356 including reference lawful publication defamatory matter matter true public benefit publication complained made s356 could suggested think whether subject matter publication true public benefit within meaning thecodethat publication real estate institute made might however lawful excuse publication defamatory matter derived s357 3 5 section 357 3 provides lawful excuse publication defamatory matter publication made good faith protection interest person making publication person public good might argued given use could made information access data base apparently granted publication good faith information concerned protection real estate agent member institute might future called upon lease premise applicant similarly s357 5 lawful excuse publication defamatory matter publication made good faith purpose giving information person made respect subject person believed reasonable ground person making publication interest knowing truth make conduct making publication reasonable circumstance might argued company operating ockerby real estate made publication good faith give information institute believed reasonable ground reason responsibility clearing house information member interest knowing truth would make conduct ockerby real estate reasonable circumstance need discus aspect detail sufficient say unlawfulness publication absence lawful excuse would matter would need established beyond reasonable doubt applicant course criminal prosecution context publication information concern area relationship applicant respondent respect substantial dispute major portion three year period tenancy s357 3 5 note s358 expressly provides burden proof absence good faith would lie upon applicant standard proof circumstance would clearly beyond reasonable doubt suffice say would share applicant optimism regard substantive matter touched upon criminal prosecution would result conviction respondent question individual criminal responsibility would need addressed sufficient information enable know respondent publication real estate institute made 21 may 1997 perhaps proper view would publication made company operates business name ockerby real estate respect respondent question would arise whether might established aided enabled counselled procured act publication make criminally liable codes7 evidence would provide clear answer question arise known mr douglas ockerby made statement 7 may 1997 would show aware done real estate agency regard applicant spoke mr robert ockerby later fervently denied knowledge publication according applicant second affidavit document contains hearsay statement time publication mr robert ockerby m jewell co signed document certifying truth information applicant complains clear evidence could available applicant enable sheet home criminal liability respondent therefore view make order show cause sought present state evidence seems much admissible clearly insufficient found aprima faciecase criminal defamation respondent seems relevant note would even open applicant make complaint respondent proceed seek committal trial ordinary way would enable whatviva voceevidence may support claim brought forward given oath tested cross examination see reason case ordinary criminal process law apply seems nothing exceptional position applicant say whatever reason unable appears initiate official prosecution perceived incapacity fund manage civil litigation seems insufficient circumstance warrant authorisation private criminal prosecution opinion type case could conceivably suggested unusual exceptional remedy retained thecode application dismissed

Combis as liquidator of Seminars International Pty Ltd v Commissioner of Taxation [2009] FCA 1362 (13 November 2009).txt

combis liquidator seminar international pty ltd v commissioner taxation 2009 fca 1362 13 november 2009 last updated 23 november 2009federal court australiacombis liquidator seminar international pty ltd v commissioner taxation 2009 fca 1362corporations winding liquidator appointed voidabletransaction money paid company commissioner taxation antecedent liquidation constituted voidable transaction commissioner required pay money liquidator commissioner entitled indemnity pursuant 588fga 2 corporation act cth corporation act 2001 cth s 588ff 588fgataxation administration act 1953 cth harris v commissioner taxation 2006 qsc 108citedhillig v commissioner taxation 2001 2 qr 147 appliedcommissioner taxation v sims 2008 nswca 298appliednick jim combis liquidator seminar international pty ltd v commissioner taxation roger jeffrey daviesqud 145 2009logan j13 november 2009brisbanein federal court australiaqueensland district registrygeneral divisionqud 145 2009between nick jim combis liquidator seminar international pty ltdplaintiffand commissioner taxationfirst defendantroger jeffrey daviessecond defendantjudge logan jdate order 13 november 2009where made brisbanethe court order plaintiff first defendant pursuant tos 588ffof thecorporations act 2001 cth commissioner taxation pay plaintiff amount 131 428 02 inclusive 5 956 62 interest within 28 day full final satisfaction originating process filed 18 june 2009 andthere order cost first second defendant pursuant tos 588fgaof thecorporations act 2001 cth second defendant pay first defendant sum 68 544 94 plus 3 255 50 interest pursuant tos 588fga 2 thecorporations act 2001 cth andthe second defendant pay first defendant cost incidental interlocutory application fixed amount 622 00 note settlement entry order dealt order 36 federal court rule text entered order located using esearch court website federal court australiaqueensland district registrygeneral divisionqud 145 2009between nick jim combis liquidator seminar international pty ltdplaintiffand commissioner taxationfirst defendantroger jeffrey daviessecond defendantjudge logan jdate 13 november 2009place brisbanereasons judgmentseminars international pty ltd seminar international wound behest commissioner taxation commissioner following failure part comply statutory demand respect various revenue law debt owed commonwealth australia payable commissioner mr nick jim combis appointed liquidator seminar international liquidator 18 june year liquidator sought order commissioner pursuant tos 588ffof thecorporations act 2001 cth corporation act payment sum 125 471 40 occasion liquidator seeking relief claim money paid company commissioner pursuant repayment arrangement antedated liquidation voidable commissioner contest event transpired following repayment voidable transaction transaction arisen thus inclusive interest 5956 62 sum mentioned conceded part commissioner liquidator entitled order commissioner pursuant tos 588fffor payment amount 131 428 02 turn commissioner seek order pursuant tos 588fga 2 thecorporations actagainst director seminar international mr roger jeffrey davy mr davy mr davy become second defendant proceeding pursuant interlocutory process issued behest commissioner note practice subject approval mackenzie j inharris v commissioner taxation 2006 qsc 108at 25 earlier year made order providing substituted service respect mr davy material read morning behalf commissioner satisfies served accordance order mr davy appeared today evidence establishes sum 125 471 40 previously referred sum 68 544 94 applied commissioner pay go payg withholding liability company commonwealth subdivision 16b ofpt 2 5in sch 1 thetaxation administration act 1953 cth evidence establishes mr davy director company time payment made submitted correctly opinion loss suffered commissioner twofold namely amount court repayment order favour liquidator insofar relates payg withholding liability case 68 544 94 seehillig v commissioner taxation 2001 2 qr 147 b legal cost interest commissioner required pay liquidator consequence voidable preference claim brought commissioner seecommissioner taxation v sims 2008 nswca 298at 34 already referred amount interest payable commissioner liquidator addition basic conceded amount preference interest 5956 proportionately regard payg withholding component preference interest liability respect commissioner entitled indemnification therefore 3255 50 evidence establishes commissioner incurred following disbursement relation application brought mr davy namely filing fee 288 fee attempted personal service 46 anda fee filing substituted service application 288 total 622 commissioner therefore established basis upon opinion entitled indemnity sequel order shall make behest liquidator amount indemnity commissioner entitled 68 544 94 plus 3255 50 entitled order pursuant tos 588fga 2 thecorporations act commissioner entitled order respect disbursement mentioned commissioner appeared officer authorised behalf pursuant thetaxation administration act rather either australian government solicitor person entitled payment professional cost order respect professional cost therefore order term draft provided certify preceding ten 10 numbered paragraph true copy reason judgment herein honourable justice logan associate dated 20 november 2009solicitor plaintiff dibbs barkerappearance first defendant officer australian taxation office appearing pursuant tos 15 1 b thetaxation administration act 1953 cth counsel second defendant second defendant appeardate hearing 13 november 2009date judgment 13 november 2009

Steven Robert Jones v the Nominal Defendant [1994] ACTSC 33 (11 April 1994).txt

steven robert jones v nominal defendant 1994 actsc 33 11 april 1994 supreme court actsteven robert jones v nominal defendantno sc439 1988number page 7damagescourtin supreme court australian capital territorymaster hogancatchwordsdamages assessment personal injury motor vehicle accident fractured wrist issue principlehearingcanberra 23 march 199411 4 1994counsel plaintiff g strettoninstructing solicitor ken johnston bedford cocounsel defendant b hullinstructing solicitor crossin barker goslingorderthe court order judgment entered plaintiff sum 196 742 decisionmaster hogan assessment damage personal injury sustained plaintiff motor vehicle accident 18 january 1987 2 plaintiff born england 1958 came australia family 1960 left school age 14 part way year two secondary school 3 family fairly itinerant stayed year leaving school joining father various kind unskilled casual labouring work spent 18 month army returned labouring work 4 came canberra 1982 met lyndy stewart formed relationship 1983 two son born 1986 1992 working number different job january 1987 obtained job landscaping labourer mr eddie dunn job week accident occurred said enjoyed work intended stay job 5 18 january 1987 pillion passenger motorcycle overturned came ramp leading tuggeranong parkway cotter road driver collided air came cycle plaintiff hit road skidded distance along bitumen lose consciousness bleeding noticed wrist broken 6 short time side road taken ambulance canberra hospital 7 hospital record show examination multiple abrasion back upper torso arm cleaned treated gauze betadine x ray right hand showed comminuted fracture distal radius reduced ischaemic block anaesthetic back slab applied process painful given pethidine allowed go home 8 following day abrasion redressed also painful wrist appeared good position 9 returned home cared lyndy stewart district nurse came daily redress abrasion two week 10 19 february 1987 x ray showed wrist fragment good position fresh plaster cast applied 11 abrasion healed six seven week time always slept stomach 12 9 march 1987 fracture clinically united instructed begin mobilising wrist crepe bandage applied 13 25 march 1987 hospital noted wrist stiff dorsiflexion limited 25 degree palmar flexion 15 degree referred physiotherapy 14 first physiotherapy improve stiffness pain persisted given plastic brace support hand wrist eventually referred dr kitchin orthopaedic surgeon saw first 28 july 1987 15 complained dr kitchin wrist pain able work flexion dorsiflexion restricted 25 per cent 16 x ray showed healed fracture distal radius involvement joint separate ununited tip ulnar styloid process dr kitchin recommended physiotherapy found joint still painful 25 august 1987 gave plaintiff work certificate 18 september injury yet stabilised stage 17 accident noticed abnormality jaw recovered began notice loud clicking chewing yawning 18 23 september 1987 consulted dr greenman general practitioner mentioned clicking jaw gave certificate referred mr swanson dentist 19 dr kitchin reviewed 24 november 1987 found continuing pain 20 2 december 1987 mr swanson examined saw two occasion month prescribed constructed flat plane splint plastic device designed treat swelling temporo mandibular joint also advised treatment nature physiotherapy plaintiff return see said could afford continuing treatment 21 january 1988 dr kitchin found continuing pain wrist decided advise operation 7 march 1988 calvary hospital general anaesthetic excised ununited ulnar styloid process 22 plaintiff spent three day hospital discharged plaster slab bandage 23 plaintiff felt pain worse operation 24 19 april 1988 examined dr vance orthopaedic surgeon defendant told dr vance time accident wearing full face helmet hit road chin dental splint given benefit thought wrist worse accident 25 examination revealed significant clicking temporo mandibular joint though without apparent pain multiple scar back shoulder chest 26 recent operation scar distal portion ulna measuring five centimetre length swelling thickening underlying tissue area tender flexion wrist barely 20 degree direction finger movement normal 27 dr vance opinion plaintiff sustained relatively straightforward fracture right wrist type would usually cause continuing disability however long term effect operation remained seen long continued pain outlook satisfactory recovery good 28 underwent physiotherapy began use skateboard protector ease pain wrist 29 october 1988 dr kitchin found residual pain numbness region ulnar border hand thought still unfit work landscape gardener gave certificate 20 november 1988 expect wrist stabilise another year 30 time applied work driver murray coach able get job could provide satisfactory medical certificate 31 registered commonwealth employment service unable find work 32 dr greenman referred dr corry rehabilitation specialist thought job prospect limited 33 associate professor jones also rehabilitation specialist saw defendant 1 november 1989 concluded plaintiff suffered moderately severe fracture right radius involvement joint surface accepted discomfort right wrist heavy labouring duty would cause discomfort thought capable labouring work obvious limitation advised assistance vocational rehabilitation service understood plaintiff receiving 34 dr corry report suggests receive vocational service perhaps cost 35 dr vance found little change condition saw 13 december 1989 also thought wished could sort work 36 april 1990 admitted hospital fracture right zygoma sustained walked past people fighting think injury bearing case 37 dr vance professor jones speaking course physical capacity work satisfied effect plaintiff agreed actively sought work enjoy boredom work employment history lack formal education restriction use wrist however difficult find work 38 november 1990 employed handyman telopea park motel work physically able perform despite pain job terminated disagreement management remuneration 39 february 1991 obtained casual employment relief sorter document exchange employment ceased relief casual service longer required 40 obtained casual part time job using car delivery firm called optic express finished paid properly 41 became despondent inability obtain job continuing pain restriction placed relationship son dr greenman locum dr gibson advised psychiatric assistance solicitor referred dr tennant saw 15 october 1991 42 doubt depressed result injury extended period however clinically depressed time examination could become depressed attempt find work successful 43 dr corry saw january 1992 advised investigation employment capability later decided worth pursuing 44 dr kitchin saw august 1992 commented residual wrist pain restricted full physical activity removable splint useful condition stable dr kitchin expect improvement 45 dr vance reexamined december 1992 opinion minimal residual disability wrist treatment called 46 professor jones reviewed april 1993 opinion remained unchanged 47 towards end 1993 relationship lyndy stewart deteriorated left home went first nowra perth obtained employment march 1994 bricklayer labourer 48 none doctor whose report evidence required give oral evidence probably plaintiff really disagree say although vary emphasis accept genuinely still suffers pain wrist taking work bricklayer labourer demonstrates also genuinely want always wanted work make claim depressed could obtain credible 49 wrist cause pain swell end day treat swelling heat ice pack much happier back work 50 lyndy stewart confirmed depression work strain placed relationship preceded perth noticed change better working least possibility time relationship may improve 51 summary therefore plaintiff suffered multiple abrasion damage temporo mandibular joint fractured wrist abrasion healed normally leaving visible disfiguring scar significant 52 clicking jaw undertakes treatment needed take seven year heal 53 suffered moderately severe fractured wrist followed operation general anaesthetic left seven year later restriction movement pain heavy use condition permanent suggestion osteoarthritis develop suffered depression time result inability obtain work resulted injury 54 really fit heavy manual work employment choice limited prepared undertake get despite pain cause 35 year age 55 pain suffering loss amenity award 50 000 10 000 would relate future 56 interest past component 5 700 57 mr swanson paid time charged interest 20 per cent money owing think defendant responsible interest basis pocket expense conceded 3 342 58 plaintiff earned 166 four day work mr dunn week accident letter mr dunn exhibit state willing cooperative worker husband would continued employ casual basis often required 59 plaintiff told professor jones according report particular job finished bos going return look work whether accurate think clear arrangement mr dunn one would sure working full day five day week every week 60 estimate given professor jones would unemployed 40 per cent working career work evidence well year obtained job mr dunn cross examination plaintiff conceded accident occurred might well unemployment benefit substantial part time assessment gave professor jones 40 per cent time work unfair 61 hand think work would always earned little 166 earn four day week accident take mr dunn letter referring gross wage net figure must used even unskilled casual labourer earning capacity 200 nett per week excessive estimate moderate rate could earned 75 000 accident present time taking account occasional money earn 40 per cent estimate time might well work would give figure 45 000 62 counsel plaintiff suggested realistic approach would take account fact earning even injured order 120 day gross allowing would received mr dunn much le receiving suggested calculation based earning capacity 300 per week nett would give total possible earnings 113 000 allowing money earned discounting period might well worked give figure 67 000 figure mark area discourse 63 think figure awarded closer suggested plaintiff based figure much shown capable earning increasing family responsibility might well influenced must borne mind earnings period seven year issue matter discretionary judgment award 60 000 past economic loss interest element award eight per cent amount 34 700 64 future however earning ever problematical long able keep job finish find difficulty finding another past experience show 65 hand motivated look work accept work others would painful wrist choice still limited disability security job even uninjured would security would find much easier find work put must taken account period 30 year future working life present value 1 week 30 year three per cent 1 038 think award 40 000 future loss earning capacity moderate fair party 66 firm evidence cost future dental treatment would 3 000 much matter speculation part need expenditure dental treatment due deterioration teeth joint defendant responsible award 3 000 cost future dental treatment 67 total award therefore made follows pain suffering 50 000interest 5 700out pocket expense 3 342past loss income 60 000interest 34 700future loss income 40 000future dental treatment 3 000total 196 74268 direct entry judgment plaintiff 196 742

Deputy Commissioner of Taxation v V & V Investments (NSW) Pty Ltd [2006] FCA 787 (31 March 2006).txt

deputy commissioner taxation v v v investment nsw pty ltd 2006 fca 787 31 march 2006 last updated 26 june 2006federal court australiadeputy commissioner taxation v v v investment nsw pty ltd 2006 fca 787deputy commissioner taxation v v v investment nsw pty ltdnsd1528 2005emmett j31 march 2006sydneyin federal court australianew south wale district registrynsd1528 2005between deputy commissioner taxationplaintiffand v v investment nsw pty ltddefendantjudge emmett jdate order 31 march 2006where made sydneythe court order 1 winding defendant terminated 2 pursuant section 473 3 473 5 thecorporations act 2001 remuneration liquidator defendant steven nicols determined sum 15 250 inclusive legal cost gst 3 richard cusumano pay cost liquidator note settlement entry order dealt order 36 federal court rule federal court australianew south wale district registrynsd1528 2005between deputy commissioner taxationplaintiffand v v investment nsw pty ltddefendantjudge emmett jdate 4 april 2006place sydneyreasons judgment1 30 september 2005 registrar hedge made order v v investment nsw pty ltd company wound mr stephen nicols nicols brien official liquidator appointed liquidator company tax cost incurred plaintiff deputy commissioner taxation commissioner ordered reimbursed commissioner property company accordance withs 466 2 thecorporations act 2001 cth act order made basis company failed comply statutory demand 2 mr richard cusumano director company applied order winding company terminated mr cusumano filed evidence indicating statutory demand forwarded company accountant winding order made circumstance appearance company management company affair clearly leaf something desired circumstance arise however evidence indicate debt due commissioner paid full together cost cost liquidator date paid neither commissioner liquidator opposes termination winding 3 liquidator filed affidavit concerning affair company affidavit indicates principal asset company parcel real estate value 230 000 250 000 liability company director loan account approximately 165 000 party agree remuneration liquidator fixed sum 15 250 inclusive legal cost gst clear company surplus asset liability circumstance reason winding company terminated certify preceding three 3 numbered paragraph true copy reason judgment herein honourable justice emmett associate dated 23 june 2006solicitors plaintiff hunt huntsolicitors defendant gordon johnstonesolicitors liquidator craddock murray neumanndate hearing 31 march 2006date judgment 31 march 2006

Industrial Relations Commission Decision 1257_1994 [1994] AIRC 1063; (13 July 1994).txt

industrial relation commission decision 1257 1994 1994 airc 1063 13 july 1994 industrial relation commission decision 1257 1994 v0140 dec 1257 94 print l4314 australian industrial relation commissionindustrial relation act 1988s 170ma certification agreement victorian art centre trust state public service federation c 31687 1994 victorian art centre administration enterprise agreement 1994 various employee entertainment broadcasting industry senior deputy president polites melbourne 13 july 1994 condition employment certified agreement single business 170maindustrial relation act 1988 agreement certified decision following decision edited given commission transcript 28 june 1994 application certify agreement known victorian art centre administration enterprise agreement 1994 agreement applies employee administrative side victorian art centre trust employee bass read statutory declaration david bunn elizabeth margaret barrett nattrass basis material contained statutory declaration upon put consider requirement theindustrial relation act 1988in connection certification agreement complied accordingly certify agreement operate accordance term 28 june 1994 formal order print l4315 certifying agreement issued due course appearance n hughes kelly victorian art centre trust w townsend state public service federation hearing detail 1994 melbourne june 28 end text end text

Szekely, Ivan --- "Hungary" [2008] ELECD 402; in Rule, B. James (ed), "Global Privacy Protection" (Edward Elgar Publishing, 2008).txt

szekely ivan hungary 2008 elecd 402 rule b james ed global privacy protection edward elgar publishing 2008 book title global privacy protectioneditor rule b jamespublisher edward elgar publishingisbn hard cover 9781848440630section chapter 6section title hungaryauthor szekely ivannumber page 33extract 6 hungaryivan szekelyconstitutional democracy barely triumphed hungary january1990 scandal called budapest watergate better known hungarian duna gate broke duna hungarian name danube widelyregarded great national river country happened thatactivists belonging certain new political party used called dissenter distant day overthrown regime nowclandestinely entered office internal security agency filmedwhat found night footage presented pressconference proved infamous iii iii division kept inter nal enemy communist regime surveillance actuallysurvived symbolic date democratic turn 23 october 1989 andcontinued tapping phone line new party leader activist keepingtheir private life surveillance preparing report informationthus collected although several commentator later suggested nothing butthe aimless dysfunctional reflex apparatus left devicesafter collapse political system created employed thescandal hyped printed electronic medium contributedin good measure devastating defeat successor single partyin free election took place month later surviving reform communist party received 10 per cent vote new democraticparties

Hughes v Janrule Pty Ltd t_as Gregory's Ford [2010] ACTSC 5 (5 February 2010).txt

hughes v janrule pty ltd gregory ford 2010 actsc 5 5 february 2010 last updated 15 february 2010paul john hughes v janrule pty ltd gregory ford 2010 actsc 5 5 february 2010 negligence personal injury claim employer safety place system work plaintiff losing footing falling metal staircase whether surface step slippery whether maintenance adequate whether breach duty caredamages personal injury fall metal staircase injury back psychological sequela impairment earning capacity issue principlepractice procedure application plaintiff reopen case call evidence judgment reserved evidence took place view attended judge course hearing evidence permitted called would affect outcome event application refusedevidence act 1995ss 53 54makita australia pty ltd v sprowles 2001 nswca 305 2001 52 nswlr 705goldsborough v neill 1996 131 flr 104wilkinson v law court ltd 2001 nswca 196murray v figge 1974 4 alr 612smith v nsw bar association 1992 hca 36 1992 176 clr 256hines export pty ltd v mediterranean shipping company sa 2001 sasc 311 2001 80 sasr 268inspector general bankruptcy v bradshaw 2006 fca 22evans v r 2007 82 aljr 250 2007 hca 59no sc 261 2006judge master harpersupreme court actdate 5 february 2010in supreme court sc 261 2006australian capital territory paul john hughesplaintiffand janrule pty ltd gregory forddefendantorderjudge master harperdate 5 february 2010place canberrathe court order 1 judgment entered defendant2 plaintiff pay defendant cost

MELVA JEAN ROBERTS v SOUTH AUSTRALIAN TELECASTERS LTD No. SCGRG 93_2518 Judgment No. 4410 Number of pages - 2 Costs [1994] SASC 4410 (10 February 1994).txt

melva jean robert v south australian telecaster ltd scgrg 93 2518 judgment 4410 number page 2 cost 1994 sasc 4410 10 february 1994 court full court supreme court south australia king cj 1 bollen 2 mullighan 3 jj cwds cost appeal refusal suppression order pursuant 69bevidence act medium respondent appeal unsuccessful consideration governing cost evidence act 69b roget v flavel 1987 88 47 sasr 402 considered hrng adelaide 10 february 1994 date 10 2 1994 counsel appellant mr c ey solicitor appellant mangan ey associate pty ltd counsel respondent mr n j swan solicitor respondent finlaysons judge1 king cj appellant matter potential witness trial district court charge son applied judge district court order suppressing name information might lead identity including name accused judge refused application appellant appealed court 2 case called morning counsel appellant indicated appeal abandoned accordingly dismissed 3 counsel respondent applied cost application opposed counsel appellant contended special consideration apply appeal refusal suppression order relied upon decision cox j roget v flavell1987 88 47 sasr 402 cox j judgment although adverted special consideration may apply cost appeal section medium respondent applying cost pain make clear purport lay general principle respect appeal 4 ordinary principle appeal cost follow event discretion appellate court make different order say refuse cost make order something le full cost think proper regard circumstance matter 5 think hard fast rule laid cost unsuccessful appeal medium respondent necessary consider case merit 2 case potential witness mother accused sought secure suppression name name accused ground hardship ground would course open accused appeal without merit demonstrated fact abandoned argument expressed court support 6 think circumstance proper order order cost order appellant pay respondent cost appeal judge2 bollen j agree judge3 mullighan j agree

Kinghorn v The Queen & Ors [2022] HCATrans 80 (5 May 2022).txt

kinghorn v queen or 2022 hcatrans 80 5 may 2022 last updated 6 may 2022 2022 hcatrans 080in high court australiaoffice registrysydney s11 2022b e w e e n john alan kinghornapplicantandthe queenfirst respondentattorney general commonwealthsecond respondentattorney general new south walesthird respondentapplication special leave appealkeane jgordon jsteward jtranscript proceedingsat canberra video connectionon thursday 5 may 2022 9 30 amcopyright high court australia____________________keane j accordance court protocol sitting remotely announce appearance party mr b w walker scappears withmr j buchen scandms g e l huxleyfor applicant instructed king wood mallesons mr j c giles scappears withms h mannfor first respondent instructed commonwealth director public prosecution keane j submitting appearance second respondent third respondent indicated making submission yes mr walker mr walker may please honour mr h atkin appears u well honour submission appropriate case grant special leave following main reason first arises decision one attempt essayed court court explain relation important relatively recent decision court concerning fundamental aspect system administration criminal justice country particularly accusatorial principle companion rule second follows matter best court give full consideration court give proper resolution seen tension arising various interpretation court fundamentally important decision next matter worthy special leave particularly relation attempt court court distinct clear submission unsatisfactorily reasoned disagreement court criminal appeal new south wale court appeal queensland refer course decision ofleach 2019 1 qd r 459 submission reasoning apposite analogy different statutory text justice sofronoff court compellingly significant reason court give consideration matter solecism great respect could sensibly supposed found justice sofronoff approach certainly honour fit within long established critically important aspect case namely applying sometimes called canon interpretation principle legality interpretation statute case recalled number interlocking statutory provision outset section 264 theincome tax assessment actheld inde vonkto implicitly nonetheless course effectively abrogated privilege self incrimination significantly course implicit abrogation obviously induce usual explicit legislative consideration trade offs nature example use immunity gordon j mr walker sorry interrupt could identify reference paragraph 110 following application book 107 part analysis chief justice bathurst justice payne agree say reason right course refer tode vonk understood honour reason lot proposition dispute mr walker quite disagree anything said aboutde vonk far gordon j really concerned follows way probably maybe 145 error analysis paragraph mr walker go first page 113 paragraph 129 distinction producing critical difference submission erroneously simply case lawfulness pre charge conduct unlawfulness provides sensible discrimen understanding outcome reasoning case question court pain point one important source jurisprudence submission rendered controversial court criminal appeal reasoning including 129 inlee 2014 hca 20 253 clr 455 passage paraphrase briefly found paragraph 39 43 46 51 case questioning charge first court pain point critical question whether publication subsequent dissemination lawfully compelled questioning unlawful happened critical question critical question whether publication produced miscarriage justice prosecution armed accused evidence could court approach critical question whether lawful next court pain point concerned nature stress nature criminal trial requisite system next course held inleeto produced miscarriage conviction represented departure fundamental respect requirement fair trial prosecution armed accused evidence denied character requisite trial according system occurs matter obviously turned upon simply question dealt perhaps bybunning v cross next inlee court matter involving wrongful release possession evidence reference might given comfort notion court turned upon anterior illegality paragraph 51 court pain dispel notion demonstrating submission clear paragraph 129 court criminal appeal court inleesaid effect cannot equated use evidence illegally improperly obtained happened altered position prosecution vi à vi accused therefore affected trial fundamental respect way bookend inibac 2016 hca 8 256 clr 459 upon submission much misplaced emphasis found argument u reasoning sought thereby defended drawing particularly paragraph 28 honour recall description ofleeas turned non observance statutory provision directed preserving forensic balance prosecution accused protected common law formulation merely say common garden case illegality inibac dictum court making clear issue court inibac charge question raised availability plainly legislated power compelled self incrimination issue issue concerning balance prosecution accused protected common law issue raised case ofibac reason submission one see pivotal sorting binding authority court criminal appeal exemplified paragraph 129 wrongly based completely inapposite distinction paragraph 131 answer justice gordon seen put bluntly justice sofronoff criticised reached conclusion inconsistent withibac bearing mind drawn attentionibacsays drawing mind thatibacin way seen overruled even revisited produce modification holding reasoning inlee submission also seen paragraph 131 honour court criminal appeal mistaken proper relation jurisprudentially important authority aslee one hand quite different case asibacon hand keane j mr walker burden argument ink spilled case difference extraction evidence accused post charge extraction evidence pre charge basically waste ink mr walker honour great respect able tempt describe case would include much solee fashion waste ink simply case case according material feature case successively presented court according requirement therefore real concrete adjudication case general principle antecedent course jurisprudence derived common law concerning requisite fair trial seen emerge waste ink particular pointing lawful compulsion self incrimination pre charge matter entirely valid legislative creation perfectly proper therefore administration casting light one way matter arising thereafter different circumstance namely proposal say tender material charge trial person compelled case give support proposition clear anterior authority question produce effect open slather tender charge trial impossible understand relation tolee steward j mr walker sorry interrupt ask question clarification least contend disclosure made tax office prior charge breach thetaxation administration act mr walker remains open question aware pending stay application eager progress several time noted fact outstanding question sorry honour short answer yes arise reason adjudication question occurred date steward j say think must disclosure charged contend made illegally invalidly mr walker two part answer yes reason pointed yet adjudicated would court second event submit principle order permit effectuation adversarial rule companion rule accusatorial rule companion rule principle infringed use thereafter charge yes steward j case really matter whether tax office legal purpose application case really fetter power dpp something namely seek admissibility transcript mr walker ultimately yes point recognising double edge course impossible refer approach taken court instrickland outstanding thing aboutstrickland might even burst latin say egregious illegality permeated many turn including pre charge conduct case compulsory questioning accept keane j also mr walker instrickland statutory context made clear intent statute material obtained obtained circumstance statute contemplated use material forensically contrary intent statute mr walker absolutely honour intended capture thoroughgoing multiple stage breach explicit statutory safeguard accept aboutstrickland issue gordon j pick mr walker one come back statutory provision dealing face fact understood challenge lawfulness examination challenge transcript deal face express language adopted 3g well section 355 50 giving rise offence provision mr walker yes gordon j notstrickland thestricklandterritory mr walker introducedstricklandwith trepidation indicated cannot avoid take account pressing honour claim special leave matter remains term requisite resolution important matter principle done case case remains unfinished business court unsatisfactory feature sought identify court criminal appeal approach important exercise fundamentally determines course followed considering laying charge considering post charge assembly prosecution material course presenting prosecution material answering responsibility defending ultimately course responsibility judge conducting fair trial difficult overstate significance matter principle bearing mind frequent use word fundamental case concerning feature administration justice affected various provision provision various particular aspect one take example application book 167 paragraph 3g thetaxation administration actthus example subsection 5 subject matter following paragraph e following one see authorisation subsection 1 disclosure respect anything like plain word extend tender compelled self incriminatory material pick tender recalled spectrum accurately continuum conduct aimed u argument concerning nefarious nature prosecution intending continue without condition say temporary stay might impose respect access material matter whether material pre charge legally illegally obtained argument matter nothing plain word return justice sofronoff basic submission profoundly important foundation reasoning namely one requires plain word depart aspect accusatorial trial inforge 2006 hca 44 228 clr 45 paragraph 64 cited written submission chief justice gleeson pain counsel seeking single embracing statement defining characteristic court honour nonetheless equally pain specifically say however important element institutionalcharacteristics court capacity administer common law system adversarial trial accusatorial principle companion rule heart system hitherto plainly friend correctly point regarded course case none scrutiny jargon constitutionalised however submission case incremental fashion adding one case archive provides court proper opportunity taken consider whether fundamental alteration balance including tender pre trial compelled material person later charged countenanced statute say nothing justice sofronoff powerful point answered reasoning new south wale court criminal appeal may please honour keane j thanks mr walker yes mr giles mr giles may please recognise learned friend starting point important principle conceivably play correct however case ultimately arise matter statutory construction informing statutory construction honour court criminal appeal application book 115 paragraph 138 commence word assumption assumption accusatorial principle companion rule apply pre charge disclosure use reasoned conventional way submission language statute whether section 3g theincome tax assessment actor replacement effect albeit broader replacement section 355 50 355 175 permitted disclosure even viewed prism principle brought bear construction exercise section set clear could ask honour take page 90 application book convenient spot judgment section 355 70 commences foot page 90 supplying prohibition disclosure subsection 1 honour see form legislation adopted table item 1 relevantly identifying authorised law enforcement agency officer disclosure 2 purpose honour see b law enforcement agency defined foot page onto page 92 include relevantly afp office director public prosecution permission suggest disapplication prohibition permitted described disclosure 6 14 language clarity part company learned friend argument suggesting word read even bearing mind principle way meaning short express term similarly disclosure section 3g section 3g commences page 86 learned friend mr walker taken honour conveniently set page 87 book one see permission think perhaps 3g correctly described permission one see section 3g 1 permission subsection 3 disclosure two relevant agency purpose agency clearly carry purpose use disclosed material 5 c investigate 5 enforce law relating honour see universe subject matter e tax avoidance evasion g criminal activity nature fraud obtaining benefit concealing income asset apt sense permitted clarity permit done allow disclosure whether pre charge post charge use compulsorily acquired material consequently bearing mind principle importance accept common law principle learned friend relies deny case court criminal appeal correct matter construction statute gordon j clear mr giles paragraph 118 application book 109 following referring mr giles yes honour gordon j thank mr giles submission debate distinction pre charge application companion principle accusatorial principle comparison post charge alternative way framing argument also answered raise question suitable special leave answered court judgment inibac 2016 hca 8 256 clr 459in passage extracted plurality judgment paragraph 123 court criminal appeal judgment application book 111 honour see application book 111 quoted passage first sentence paragraph 48 reasoning follows keane j mr giles right thinking passage fromibac indeed provision section 355 25 following taken u adverted reason inleach mr giles one exception correct honour exception section 355 25 adverted keane j yes mr giles referred permission keane j yes exception mr giles exception quite similarly passage course accept one say degree embarrassment given commonwealth director inleach butibacdoes referred court appeal inleach referred adverted judgment reason substance judgment correct ultimately turn matter important principle rather construction bespoke section albeit repealed submission case warrant grant special leave saying said anything speak constitutionalisation argument say observe writing principle described repeatedly common law principle difficulty seeking find constitutional principle may fall correct common law principle speak demonstrated learned friend written submission identifying fair trial value expressed although defined may varied abrogated ultimately invitation adopt way speak constitutionalisation principle amorphous content expression unsupported authority submission finalground also raise point warranting grant special leave may please keane j thanks mr giles mr walker anything reply mr walker yes may please court inleach 2019 1qd r 459 paragraph 38 justice sofronoff concludes observing express provision legislation make question answer admissible evidence trial prove criminal guilt examinee course part intended use paragraph 79 inleach justice sofronoff recognise closing paragraph submission disclosure permitted would disclosure made provision schedule 1 section 355 70 referring specifically disclosure commonwealth director public prosecution word matter nature permission honour go say necessary consider last argument reasoning found throughout concerning lack sufficient noted paragraph 38 honour reason authorise tender compelled material submission though endorse learned friend said answer justice keane question concerning seen inleach make two comment hope churlishly join friend observation concerning adversarial role dpp obviously argument ofleach question raised byleach sfailure include consideration implication reasoning inibacmight argument presented surely proper question attention court first thing second thing one surely could go far say force reasoning inleach derives ultimately course frompotter v minahan matter shown per incuriam reason matter raised part argument clear way written recorded argument refers engagement accusatorial principle companion rule pre charge course one reason court instrickland paragraph 95 of266 clr 325 used emphatic clear expression unless describe effect charge upon application engagement fundamental feature submission critically text case entailed reasoning seems leave open way never presaged previous case notion deliberate timing matter much specific statutory provision would pick asis found universally sometimes trade provision would permit authority executive collectively tax authority commission dpp time use compulsory process remove fundamental feature proper balance prosecution accused proceeding commence shortly thereafter deliberately timed submission matter distinctly call court intervention case submission present fully concrete form may please court keane j thanks mr walker court adjourn consider course take matter adjourn court please 10 06 short adjournmentupon resuming 10 08 keane j given statutory context issue said warrant grant special leave arise case reason doubt correctness decision court criminal appeal new south wale accordingly application special leave dismissed adjourn court please 10 09 matter concluded

Applicant: Ian William Dorney IRT Reference: A97_00281 #number 10051 [1997] IRTA 10051 (23 July 1997).txt

applicant ian william dorney irt reference a97 00281 number 10051 1997 irta 10051 23 july 1997 immigration review tribunalstatement decisionand reason decisionirt reference a97 00281 10051 docreview visaapplicant ian william dorneytribunal steve karaspresiding memberdate 23 july 1997place brisbanedecision tribunal affirms decision review refusing grant visa applicant class 413 executive overseas entry permit enable remain australia application reviewon 1 august 1995 application made tribunal review decision made delegate minister immigration ethnic affair minister department immigration ethnic affair department 1 february 1994 refuse mr ian william dorney class 413 executive overseas visa enable remain australia 17 october 1994 application made migration internal review office miro review primary decision refuse mr dorney class 413 visa earlier applied decision affirmed miro 30 june 1995 mr dorney able apply review decision refuse application class 413 visa pursuant section 346 themigration act 1958 act tribunal affirmed decision refuse mr dorney entry permit applied seere dorneyirt decision 10 december 1996 decision appealed federal court australia appeal settled consent party matter remitted back tribunal reconsideration according law reconsideration tribunal therefore de novo reconsideration original application class 413 executive overseas entry permit entry backgroundmr ian william dorney visa applicant born 24 september 1962 british citizen married visa applicant last come australia 27 april 1992 holder class 414 visa granted permit stay australia 9 august 1992 entry permit extended 24 november 1993 21 july 1993 visa applicant applied class 413 executive overseas entry permit included spouse m southern son christopher dorney born 1989 form 2 completed visa applicant lodged department sydney visa applicant already held valid entry permit seeking stay 4 year 24 november 1993 sponsorship form 55 submitted department sherlock financial service pty ltd sherlock 21 july 1993 nominating visa applicant stay 4 year financial service consultant sherlock offered full time occupation annual salary 90 000 00 job description sponsorship form follows responsible overall management recruitment training staff development within organisation criterion person fill position required six year practical experience within house financial service five year management experience within recruiting training house various industry qualification job title form 55 read recruitment training officer time sherlock employed 90 people well indicated form 55 position would filled australian resident year 1997 attachment sponsorship form 55 indicated labour market testing undertaken currently australian person relevant practical experience running house operation totally new concept financial service australia person experience expatriate currently employed organisation 5 august 1993 department requested information regarding visa applicant sherlock financial service pty ltd 17 october 1993 davy associate wrote department regarding application noting part sherlock group described earlier submission committed intensive going training job external course program company belief able replace mr dorney australian resident citizen time come complete posting australia visa applicant interviewed department 30 november 1993 file note day indicated employed sponsor sherlock receiving salary company visa applicant advised department m southern separated 1 december 1993 sherlock wrote department 7 december 1993 information regarding application department contacted department education employment training deet regarding matter deet objected application 17 december 1993 part follows sponsor adequately explained house training specific skill unable undertaken qualified training professional training record sponsor sponsor indicated intend transfer nominee skill staff order replace nominee end sponsorship period deet also feel proposed length stay excessive term training local replacement labour market testing deet support sponsor request waiver lmt deet convinced skill unavailable local labour market department 20 december 1993 requested visa applicant employer comment deet finding requested information relation application 22 december 1993 visa applicant employer responded indicating part wished sponsor visa applicant state director training recruitment development sherlock financial service pty ltd information sent deet responded 23 december 1993 follows 1 deet convinced skill experience required unavailable local labour market mentioned first response sponsor undertaken labour market testing according sponsor system house training conducted australia since 1989 based description house system deet feel qualified training professional capable learning delivering training program within relatively short period time house system described appears largely consist module covered sale marketing related training course sponsor request four year sponsorship period appears excessive period time train replacement 2 sponsor indicated intend transfer nominee skill staff order dispense need expatriate area decision reviewon 23 december 1993 visa applicant employer informed department application class 413 visa sponsorship sherlock financial service refused decision maker found subclauses 413 721 413 731 satisfied well decision maker found visa applicant satisfy criterion visa group 2 1 temporary resident category 30 june 1995 decision affirmed miro miro review officer found inter alia visa applicant unable satisfy prescribed criterion visa sought legislative requirementsas result coming force themigration reform act 1992on 1 september 1994 australian migration law undergone significant change accordance withregulation 23of themigration reform transitional provision regulation visa applicant application case successful result grant transitional temporary visa new law purpose resemble visa would granted law force 1 september 1994 however application still decided according criterion applied visa application originally made regulation applicable case therefore migration 1993 regulation prescribed criterion class 413 executive overseas visa set part 413 schedule 2 migration 1993 regulation regulation far relevant part provides follows 413 71 application entry permit entry 413 711 application must made accordance approved form 2 413 72 criterion satisfied time application entry permit entry 413 721 applicant holder group 2 1 temporary resident entry permit class 426 domestic worker diplomatic consular entry permit 413 722 applicant complied substantially condition entry permit visa held last held applicant subject 413 723 entry permit visa held last held applicant subject condition applicant entitled entering australia granted entry permit entry permit holder remains australia 413 724 applicant intend become permanent resident australia 413 73 criterion satisfied time decision entry permit entry 413 731 applicant satisfies criterion grant entry primary person class 413 visa 413 733 applicant continues satisfy criterion specified clause 413 722 413 724 413 734 1 subject subclause 3 applicant time application temporary resident b grant entry permit would allow applicant total period stay australia 4 month temporary resident applicant sponsored intended employer 2 purpose subclause 1 person temporary resident time time person holder group 2 1 temporary resident entry permit b class 773 border entry permit 3 despite subclause 1 applicant meet criterion set subclause 413 321 2 need sponsored intended employer 413 335 sponsorship required subclause 413 321 3 4 sponsorship applicant approved minister b sponsorship fee specified regulation 7 27 paid413 321 1 applicant meet requirement one subclauses 2 3 4 2 applicant meet requirement subclause applicant intends establish australia branch overseas company b establishment branch provide australia substantial international trade economic benefit 3 applicant meet requirement subclause applicant appointed company operating australia national managing executive deputy national managing executive state manager b company operating business c case applicant intends stay australia 4 month applicant sponsored company 4 applicant meet requirement subclause applicant senior executive company operating australia national managing executive deputy national managing executive state manager applicant establishes position application relates carry substantial executive responsibility b applicant qualification position appropriate c position full time position position adequately paid regard australian level remuneration condition e company operating business f applicant intends stay australia 4 month applicant sponsored company g minister requires labour market requirement met 413 322 applicant produce statement company employing applicant satisfies authorised officer employment applicant australia would benefit australia 413 323 applicant intend become permanent resident australia 413 331 applicant continues satisfy criterion specified clause 413 321 413 323 evidence findingsthe department file matter made available tribunal contains visa applicant application supporting material well copy correspondence department visa applicant adviser hearing matter took place sydney 6 may 1997 visa applicant witness attended hearing gave oral evidence tribunal legal adviser registered migration agent also present visa applicant referred experience financial service industry began united kingdom 1987 came australia 1989 group decided expand internationally class 414 visa time company worked taken england new company formed australia held senior management role company changed employer continued build expand new product financial service industry early 1995 saw opportunity mortgage market set company australia referred set involving company working recruited organization worked labour market testing involved visa applicant stated another de facto relationship australia son earlier relationship mother 3 sibling resided united kingdom intends remain permanently australia stated referred salary bonus work involved mr gore referred business relationship involvement visa applicant associated company equity law financial service outset referred visa applicant role vision product development visa applicant train agent stated actively sought competent people financial service industry found visa applicant whose service well satisfied business expanded employ people stated legal adviser made submission visa applicant granted permit sought material submitted tribunal regarding application lengthy submission regarding interpretation part 413 schedule 2 regulation sent tribunal number reference produced attesting visa applicant competence industry tribunal note officer employment business entry section department approved visa applicant present employer application standard business sponsor 25 february 1997 however new sponsorship one involved applicant application 1993 nevertheless visa applicant adviser submitted new sponsor satisfy criterion visa question material submitted visa applicant tribunal note longer employed company sponsored entry permit applied july 1993 indeed least 2 employer since well tribunal note considerable experience financial service industry well thought others area tribunal note application visa applicant one class 413 entry permit 4 year see regulation 2 28 2 29 regulation granted visa applied visa applicant need satisfy requirement set part 413 schedule 2 regulation visa applicant unable satisfy requirement criterion visa sought application fail application made approved form 2 visa applicant satisfies clause 413 711 regulation held class 414 entry permit therefore satisfies clause 413 721 regulation tribunal note visa applicant stated intends remain australia permanently contrary clause 413 724 regulation tribunal note sherlock sponsored visa applicant july 1993 incorporated australia branch overseas company visa applicant therefore unable satisfy clause 413 321 2 regulation time application visa applicant sherlock incorporated operating business australia sponsored position financial service consultant sherlock tribunal note class 414 entry permit endorsed visa applicant passport granted 24 november 1992 stay 24 november 1993 contained following condition work limitation 33 4 c schedule 5 item 4 regs residence 33 4 tribunal note evidence material visa applicant worked freelance consultant ceasing work sponsor therefore appears visa applicant complied condition regarding work limitation endorsed class 414 visa consequently visa applicant satisfy clause 413 722 circumstance visa applicant sponsored new sponsor gele holding pty ltd equity law financial service obvious evidence material tribunal visa applicant original sponsor time application july 1993 sherlock financial service pty ltd longer sponsor indeed longer support application visa applicant employed company worked considerable period time submitted tribunal requirement class 413 entry permit contain sponsorship requirement need satisfied time application change sponsor application decision fatal application entry permit sought legal adviser submitted prescribed criterion must satisfied following time criterion satisfied time ofapplication1 413 721 413 724criteria satisfied time ofdecision1 413 732 413 321 413 323 b 413 331 413 335 2 413 732 413 737 basis company sponsorship required time decision applicant change sponsor fatal application however conclusion submission make reference clause 413 731 schedule 2 regulation clause referred earlier submission follows word regulation 413 73 clear clearly state applicant must satisfy criteriaas time decisionof application executive overseas entry permit entry however regulation 413 731does notspecify applicant must satisfy extra criteriaas time specified byregulation 413 32 413 33 wording regulation 413 731 regulation 413 321 413 737 expressly negative clear word regulation 413 73 submission extra criterion satisfiedas time decision pearce geddes book statutory interpretation australia 4th edition learned author note general principle court pointed liberty consider word sentence superfluous insignificant word must prima facie given meaning effect commonwealth v baume 1905 hca 11 1905 2 clr 405per griffith cj 414 beckwith v r 1976 12alr 333 per gibbs j 337 maddalozzo v maddick 1992 ntsc 46 1992 84 ntr 27at 34 chu kheng lim v minister immigration local government ethnic affair 1992 110 alr 97at 102 per mason cj trade practice commn v gillette company 2 1993 118 alr 280at 290 kp welding construction pty ltd v herbert 1995 ntsc 1 1995 102 ntr 20at 39 construction part 413 regulation adopted give effect word contains clause 413 731 provides applicant entry permit must satisfy criterion grant entry primary person class 413 visa clause effect requires applicant executive overseas entry permit entry must satisfy criterion executive overseas visa entry one requirement visa time application applicant sponsored intended employer see paragraph 413 321 4 f time decision applicant continued sponsored employer clause 413 331 sponsorship approved minister sponsorship fee paid clause 413 335 appears reading part 413 schedule 2 regulation whole criterion executive overseas entry permit entry somewhat repetitive relation employer sponsorship employer sponsorship required clause 413 734 413 735 also criterion executive overseas visa entry given wording part 413 regulation appear way limiting effect clause 413 731 clause seems used short hand way repeating certain requirement give effect clause 413 731 interpret way submitted visa applicant legal adviser make suggest clause superfluous yet included part 413 therefore effect given tribunal note pursuant clause 413 731 regulation visa applicant satisfy requirement referred regulation 413 32 regulation including clause 413 321 tribunal belief clause 413 321 4 read whole look substance purpose legislation indeed tribunal previously adopted approach see egre gloverirt decision 366 7 october 1991 case tribunal referred number decision high court adopting interpretation regulation promotes object purpose legislation conforms requirement 15aaacts interpretation act 1901 cth paragraph 413 321 4 f wording implies state visa applicant seek stay australia 4 month sponsored company reference company paragraph refers company operating australia time application july 1993 sponsored visa applicant sponsor company sherlock financial service pty ltd submitted application form 55 paid required fee requirement sponsorship carried clause 413 331 413 335 requirement time decision class 413 overseas visa class 413 entry permit entry requirement included inclusion clause 413 731 satisfied time decision clear evidence material sherlock sponsorship approved minister see earlier decision withdrawn sponsorship visa applicant worked sherlock year well tribunal note labour market testing carried sherlock time sponsorship intended visa applicant person position appear come within spirit intention regulation entry permit applied therefore tribunal find visa applicant unable satisfy criterion clause 413 321 4 schedule 2 regulation consequently unable satisfy clause 413 731 regulation see alsore levineirt decision 8305 10 december 1996 tribunal note visa applicant sponsorship gele holding pty ltd approved 25 february 1997 employment business entry section department however sponsorship assistance visa applicant review decision refuse application class 413 entry permit lodged july 1993 material evidence tribunal find balance visa applicant unable satisfy criterion class entry permit set group 2 1 regulation decisionthe tribunal affirms decision review refusing grant visa applicant class 413 executive overseas entry permit enable remain australia steve karaspresiding member23 july 1997

Linfox Australia Pty Ltd v National Union of Workers [2016] FWC 6797 (21 September 2016).txt

linfox australia pty ltd v national union worker 2016 fwc 6797 21 september 2016 2016 fwc 6797fair work commissiondecisionfair work act 2009s 418 industrial actionlinfox australia pty ltdvnational union worker c2016 5658 commissioner gregorymelbourne 21 september 2016alleged industrial action linfox introduction 1 decision deal application linfox australia pty ltd linfox unders 418of thefair work act 2009 cth act application made response industrial action alleges occurring bulk petroleum distribution centre altona north submits disrupting fuel delivery retail outlet matter listed short notice request linfox decision issued conclusion proceeding contains minor correction amendment intended change intent decision way 2 also noted due listing short notice fact hearing occurred late evening proceeding recorded transcribed mr richard west minter ellison granted permission appear behalf linfox unders 596 2 act matter involves degree complexity involvement might enable dealt effectively appeared mr darren jones employee relation manager linfox submission evidence 3 submission provided behalf linfox indicate employee concerned employed driver site lot 2 stuber road altona north victoria 3025 involved bulk petroleum delivery retail outlet covered linfox australia bulk petroleum agreement 2014 agreement nominal expiry date 30 june 2018 4 linfox submits 20 september 2016 allowed national union worker nuw conduct meeting site change shift prior commencement night shift variously begin 3 00pm 4 00pm however following meeting 23 employee scheduled begin work night shift refused commence work subsequently formed picket line outside gate 5 linfox continues submit advised nuw official site employee would returning work certain demand relating disciplinary issue met linfox submits also indicated action would extend involve employee due commence day shift 3 00am following morning 6 also indicated reasonable attempt made inform relevant nuw official employee involved alleged action application intention matter dealt short notice 7 mr wayne duffy employed linfox site manager altona north depot evidence indicates around 3 20pm 20 september 2016 noticed group driver due start night shift worker congregating gate reported work commencement shift said approached driver asked commence work however none responded positively remained outside gate since time 8 said also spoke nuw official several occasion requesting driver attend work informed refusing attend duty mr duffy said identified 23 night shift driver refusing attend work impacting 13 driver prevented performing duty able enter site also indicated believed refusal driver attend work organised nuw 9 linfox submits response evidence indicates industrial action happening site protected industrial action given agreement passed nominal expiry date accordingly submits appropriate commission make order unders 418that industrial action stop 10 however also responded suggestion commission one option circumstance would issue interim order linfox indicated response would oppose making interim order consideration 11 regard submission provided proceeding behalf linfox also regard witness evidence provided mr wayne duffy site manager linfox bulk petroleum depot altona north 12 understood linfox view relevant matter commission must satisfied make order 418 existence appropriate circumstance order made industrial action stop 13 however commission also regard fact matter listed short notice heard late evening understood reasonable attempt made advise relevant nuw official individual employee involved alleged action application satisfied circumstance limited opportunity position provide submission evidence response 14 accordingly satisfied absence submission evidence nuw employee involved necessarily appropriate determine application time 15 section 420 act deal circumstance interim order might made section relevantly state interim order etc application must determined within 2 day 1 far practicable fwc must determine application order section 418 419 within 2 day application made interim order 2 fwc unable determine application within period fwc must within period make interim order industrial action application relates stop occur organised case may 3 however fwc must make interim order fwc satisfied would contrary public interest 16 indicated satisfied appropriate determine application point reason indicated however regard submission witness evidence provided behalf linfox potential impact alleged action satisfied appropriate interim order issue also satisfied appropriate interim order binding linfox nuw delegate officer employee agent employee employed linfox altona north site covered agreement 17 interim order come effect immediately 10 30pm tuesday 20 september 2016 shall remain force period 48 hour unless order 418 issued meantime consequence application interim order effect issued conclusion proceeding however amended interim order containing minor formatting change also issued conjunction decision application also listed hearing 10 00am thursday 22 september 2016 comissionerappearances r westof minter ellison andd jonesfor linfox australia pty ltdhearing detail 2016 melbourne september 20printed authority commonwealth government printer price code pr585647 var _gaq _gaq _gaq push _setaccount ua 9592794 1 _gaq push _trackpageview function var ga document createelement script ga type text javascript ga async true ga src http document location protocol http ssl http www google analytics com ga j var document getelementsbytagname script 0 parentnode insertbefore ga

Michelle Jarman v HWC Pty Ltd T_A Buxton Balwyn [2018] FWC 7410 (5 December 2018).txt

michelle jarman v hwc pty ltd buxton balwyn 2018 fwc 7410 5 december 2018 last updated 31 december 2018 2018 fwc 7410fair work commissiondecisionfair work act 2009s 365 general protectionsmichelle jarmanvhwc pty ltd buxton balwyn c2018 5877 deputy president clancymelbourne 5 december 2018application deal contravention involving dismissal late application extension time refused 1 19 october 2018 mr michelle jarman filed application application pursuant tos 365of thefair work act 2009 act mr jarman alleges dismissed 26 september 2018 employer hwc pty ltd buxton balwyn buxton balwyn contraveneds 340of act 2 section 366of act provides person dismissed applies fair work commission commission deal general protection dispute pursuant tos 365of act must make application within 21 day dismissal took effect 1 however commission may allow period application made exceptional circumstance 2 3 decision concern whether exercise discretion allow mr jarman period time application made hearing 4 3 december 2018 hearing conducted relation mr jarman application extension time 5 m angela daniel flitner company pty ltd flitner co mr jarman lawyer sought permission represent mr jarman pursuant tos 596of act buxton balwyn objected considering oral submission party issue weighed circumstance consideration in 596of act granted permission mr jarman represented 6 mr jarman gave evidence support application extension time m daniel buxton balwyn presented submission office manager m kim bui also gave evidence mr william chen managing director buxton balwyn also gave evidence legislation 7 section 366of act set statutory requirement timing application made pursuant tos 365 366 time application 1 application undersection 365must made within 21 day dismissal took effect b within period fwc allows subsection 2 2 fwc may allow period fwc satisfied exceptional circumstance taking account reason delay b action taken person dispute dismissal c prejudice employer including prejudice caused delay merit application e fairness person person like position 8 clear statutory provision commission extend time lodging application unders 365of act satisfied exceptional circumstance assessing whether exceptional circumstance commission must regard certain matter unders 366 2 commission satisfied exceptional circumstance exercise discretion grant extension time 9 test exceptional circumstance establishes high hurdle person applying extension 3 10 principle well established set decision full bench fair work australia national tribunal called innulty v blue star group pty ltd 4 matter full bench held following relation exceptional circumstance 13 summary expression exceptional circumstance ordinary meaning requires consideration circumstance exceptional circumstance must ordinary course unusual special uncommon need unique unprecedented rare circumstance exceptional regularly routinely normally encountered exceptional circumstance include single exceptional matter combination exceptional factor combination ordinary factor although individually particular significance taken together seen exceptional correct construe exceptional circumstance unexpected occurrence although frequently correct construe plural circumstance singular occurrence even though one situation ordinary natural meaning exceptional circumstance includes combination factor viewed together may reasonably seen producing situation ordinary course unusual special uncommon 5 reference omitted relevant chronology event reason delay 11 buxton balwyn originally intended notify mr jarman dismissal 27 september 2018 meeting mr chen proposed conduct mr jarman discovered payment categorised etp payment lieu notice amounted two week pay accessed pay slip month september 2018 26 september 2018 mr jarman subsequently confirmed mr chen employment terminated short conversation advised going lunch would returning mr jarman left buxton balwyn premise hearing party advised dispute mr jarman dismissed 26 september 2018 satisfied case 12 therefore disputed mr jarman commenced employment buxton balwyn 14 may 2018 dismissal took effect 26 september 2018 andher period employment little four month duration 13 mr jarman firstly filed unfair dismissal application buxton balwyn relation dismissal thursday 11 october 2018 assigned commission matter number u2018 10565 theform f2 unfair dismissal application form f2 recorded began working buxton balwyn 14 may 2018 discovered employment going terminated 27 september 2018 dismissal took effect 10 october 2018 form f2 also indicated mr thomas flitner flitner co representative 14 next day friday 12 october 2018 commission attempted telephone mr jarman advise form f2 indicated met minimum employment period required order bring unfair dismissal application act mr jarman could reached voicemail left seeking return call commission emailed correspondence dated 12 october 2018 mr jarman mr flitner stated based information provided appear mr jarman satisfied minimum employment period act circumstance commission jurisdiction deal application commission also outlined option mr jarman obtain advice option available 15 mr jarman m daniel confirmed correspondence received friday 12 october 2018 m daniel case received flitner co mr jarman say see correspondence afternoon 16 mr jarman said first discussed commission emailed letter mr flitner monday 15 october 2018 said told application made wrong form whether 21 day time limit making general protection application discussed mr jarman thought advised mr flitner still within 21 day time limit recall mr flitner advising file general protection application straight away 17 mr jarman say completed page aform f8 general protection application involving dismissal form f8 monday 15 october 2018 sent ordinary post either 16 17 october 2018 said posted application post office open postage stamp ordinary mail form f8 date stamped received commission friday 19 october 2018 mr jarman say initially send form f8 email facility scan signed copy however 19 october 2018 mr jarman emailed unsigned form f8 included page received commission 3 49pm shortly mr jarman paid required application fee 18 mr jarman discontinued unfair dismissal application advising member commission staff telephone conversation 3 20pm 19 october 2018 6 19 mr jarman application comprising either form f8 document therefore made friday 19 october 2018 considerationsection 366 2 reason delay 20 dismissal take effect unless communicated employee dismissed 7 dismissal communicated orally 8 21 delay required considered period beyond prescribed 21 day period making application include period date dismissal end 21 day period however circumstance time dismissal must considered assessing whether credible reason delay part delay beyond 21 day period 9 indiotti vlenswood cold store co op society lenswood organic 10 full bench explained approach taken reference following example example applicant hospital first 20 day 21 day period would relevant consideration application filed 2 day time occurred matter 11 22 credible explanation entirety delay required make finding exceptional circumstance however considering taking account reason delay accordance withs 366 2 act relevant regard whether applicant provided credible explanation entirety part delay approach taken explained full bench instogiannidis v victorian frozen food distributor pty ltd richmond oyster stogiannidis 12 44 mentioned earlier reason delay factor taken account deciding whether exceptional circumstance statutory basis adoption decision rule whereby applicant provide credible explanation entire period delay matter in 366 2 tellsagainstthe finding exceptional circumstance common sense would suggest otherwise plainly question degree weight 45 period delay 30 day applicant credible explanation 29 day seems u circumstance may weigh favour finding exceptional circumstance course mentioned earlier credible explanation theentiretyof delay would weighmore heavilyin favour finding conversely applicant failed provide credible explanation foranypart delay would tend weigh finding exceptional circumstance 23 21 day time period mr jarman make general protection application pursuant tos 365of act expired wednesday 17 october 2018 13 given mr jarman made application friday 19 october 2018 application two day late 24 accordance principle summarised paragraph 20 22 delay required considered period beyond prescribed 21 day period lodging general protection application case period 17 19 october 2018 however circumstance time alleged dismissal 26 september 2018 must considered order determine whether acceptable reason part delay beyond 21 day period 25 mr jarman made unfair dismissal application 11 october 2018 15 day dismissal took effect period 26 september 2018 advised commission 16thday 12 october 2018 form f2 indicated met minimum employment period required order bring unfair dismissal application act pertinent confirm ignorance 21 day timeframe lodge general protection application involving dismissal exceptional circumstance 14 26 case satisfied even received advice 12 15 october 2018 still sufficient time mr jarman made general protection application within 21 day timeframe 27 received correspondence commission 12 october 2018 mr jarman discussed circumstance mr flitner monday 15 october 2018 time advised file general protection application straight away thing turned partially completed form f8 appears sent within 21 day dismissal took effect received friday 19 october 2018 23 day dismissal took effect second form f8 emailed commission 3 49pm friday 19 october 2018 28 relationship mr jarman flitner co described mr jarman m daniel one mr jarman initially received free legal advice flitner co without law firm retained advised flitner co retained tuesday 23 october 2018 mr jarman say told flitner co would represent matter proceeded m daniel demur 29 put mr jarman delay due representative error nonetheless useful bear mind applicant relying representative error explain delay relevant consider whether applicant blameless whether applicant act omission caused contributed delay 15 full bench australian industrial relation commission indavidson v aboriginal islander child care agency 16 davidson stated relation representational error depending particular circumstance representative errormaybe sufficient reason extend time within application relief lodged ii distinction drawn delay properly apportioned applicant representative applicant blameless delay occasioned conduct applicant iii conduct applicant central consideration deciding whether representative error provides acceptable explanation delay filing application example would generally unfair refuse accept application month time circumstance applicant left matter hand representative took step inquire status claim different situation exists applicant give clear instruction representative lodge application representative fails carryout instruction fault applicant despite applicant effort ensure claim lodged iv error applicant representative one number factor considered deciding whether time application accepted 30 full bench majority inmcconnell v pm fornataro tony plumbing serviceconsidered approach summarised full bench indavidsonremains relevant 17 31 representational error raised reason delay regard involvement flitner co concluded delay beyond 17 october 2018 apportioned 32 mr jarman received emailed letter commission friday 12 october 2018 stating appear satisfied minimum employment period act unfair dismissal jurisdiction outlining suggestion obtain advice available option mr jarman therefore notice may need something else wanted challenge dismissal monday 15 october 2018 mr jarman advised flitner co file general protection application straight away time mr jarman receipt advice could proceed unfair dismissal application proceed immediately lodge general protection application still inside 21 day timeframe incumbent upon mr jarman move quickly file application 33 reason mr jarman gave delay getting paperwork together new application find compelling mr jarman also gave evidence completed first form f8 monday 15 october 2018 done mr jarman end wednesday 17 october 2018 lodge general protection application 34 form f8 make clear cover page application must lodged within 21 day dismissal question took effect application lodged online using commission online lodgment service ols post fax email person mr jarman range option available therefore persuaded mr jarman evidence access scanner signed copy form f8 could emailed credible explanation delay case also noted evidence emailed commission second form f8 unsigned 19 october 2018 35 australia post website outline anticipated speed various delivery service 18 described regular letter delivery speed item sent metropolitan location said 2 3 business day posting posting first form f8 either 16 17 october 2018 mr jarman ran risk materialised application would made outside 21 day timeframe stated deputy president gostencnik incasey v guardian community early learning centre smith street childcare 19 view merely sending item ordinary surface post item delivered within australian post estimate provide acceptable reason delay matter entirely control applicant applicant wait late day send application commission ordinary surface post run real risk application delivered time extent agree observation made commissioner inwiggins sending item ordinary surface post fraught risk uncommon item delayed even lost provide acceptable explanation 20 36 satisfied delay beyond 17 october 2018 occasioned conduct mr jarman electing lodge first form f8 ordinary post rather using another method lodgment sending either 16 17 october 2018 37 reason set satisfied mr jarman provided credible explanation part delay filing application factor weighs finding exceptional circumstance granting mr jarman extension time section 366 2 b action taken person dispute dismissal 38 action taken employee contest dismissal lodging general protection application may treated favouring grant extension time 21 39 mr jarman submitted spoke mr chen 26 september 2018 challenged employment terminated dispute 40 mr jarman disputed dismissal initially filing unfair dismissal application 11 october 2018 41 therefore persuaded mr jarman conduct characterised taking action dispute dismissal circumstance weighs favour finding exceptional circumstance section 366 2 c prejudice employer including prejudice caused delay 42 prejudice employer weigh granting extension time 22 employer must produce evidence demonstrate prejudice 43 buxton balwyn submitted small business six permanent employee real estate agency busiest period typically month spring written material buxton balwyn submitted time resource respondent required dedicate formulating response applicant application circumstance disclosed existence exceptional circumstance justify extension time considerable continuing adverse impact respondent business 44 hearing m bui stated buxton balwyn commenced operation late march 2018 operating eight month said young small business human resource expertise buxton balwyn experienced negative impact financial position productivity level result seek professional advice need give priority matter operational requirement furthermore submitted entire buxton franchise undergoing major system change caused unprecedented increase workload 45 mr jarman submitted application two day late impact buxton balwyn cause disadvantage unfairness 46 acknowledge process respond mr jarman application impacted buxton balwyn however noting delay two day satisfied would greater prejudice buxton balwyn caused application dealt would made within 21 day time period 47 however mere absence prejudice employer insufficient basis grant extension time 23 accordingly consider factor neutral consideration case section 366 2 merit application 48 commission considered principle applicable extension time discretion former section 170ce 8 theworkplace relation act 1996 cth intelstra network technology group v kornicki 24 stating application merit would unfair refuse extend time period lodgment however wish emphasise consideration merit substantive application relief context extension time application require detailed analysis substantive merit would sufficient applicant establish substantive application without merit 25 49 evidence merit rarely called extension time hearing commission embark detailed consideration substantive case 26 purpose determining whether grant extension time applicant make application adopted reasoning 50 alleged contravention general protection provision act set within mr jarman application described buxton balwyn failure consult provide feedback review work performance course employment outlined negative feedback given mr jarman would able respond improve 51 hearing mr jarman contended workplace right informed mistake made employment opportunity improve performance asserted never notified mistake work comment made good job comment similar nature mr jarman position appeared workplace right performance review could informed mistake given opportunity improve occurred terminated 52 mr jarman also submitted made enquiry pay employment contract stated wage would paid around 15thof month staff paid around last first day month appeared submit reason employment terminated made enquiry 53 mr jarman alleged buxton balwyn breached general protection provision inpart 3 1of act unprofessional manner found dismissal 54 buxton balwyn submitted conduct performance review mr jarman one fallen due intention perform performance review staff six monthly basis moreover submitted attempt speak mr jarman alleged poor performance difficult often defensive difficult approach conflicting evidence regarding nature one particular discussion occurred mr jarman mr chen 55 mr chen said decision reached mr jarman good fit buxton balwyn described mr jarman rude abrupt manner failed exhibit professionalism front client example mr jarman alleged behaviour outlined buxton balwyn written material 56 became clear hearing party held different view concerning whether mr jarman given feedback performance attitude mr jarman displayed carrying duty andthe standard mr jarman performance 57 issue payment mr jarman mr chen gave evidence buxton balwyn firstly adopted practice stipulated buxton group corporate employment contract contain default provision salary paid 15thof month said decision made change buxton balwyn pay run 15thof month end month based advice accountant reason change appeared felt new timing would practical term making commission payment mr chen said communicated staff orally writing following change payment usually made promptly end month occasion upon payment made 1 2 day late mr chen said attributable fact payroll function outsourced external accountant 58 m bui gave evidence mr jarman discriminated workplace contended granted many privilege staff office including given use car space behind office usually reserved senior staff sale staff permitted finish work 30 minute earlier tuesday thursday full pay 2ndand 3rdschool term 2018 permitted finish work early occasion full pay opportunity created ensure could participate social activity 59 whether mr jarman dismissed reason contended contested issue fact able determined full hearing merit including cross examination relevant witness also apprehend argument relating general protection provision breached would certainly developed 60 circumstance satisfied merit application neutral consideration relation whether extend time application made section 366 2 e fairness person person similar position 61 full bench inperry v rio tinto shipping pty ltd 27 considered criterion said case kind generally turn fact however consideration concerned importance application consistent principle case kind thus ensuring fairness appellant person similar position consideration may relate matter currently commission matter previously decided commission 28 62 satisfied issue fairness mr jarman person similar position relevant consideration matter regard submission party made asked consideration submission going merit application relevant matter find factor neutral consideration determining whether grant extension time conclusion 63 task determining application laid full bench instogiannidis 38 mentioned assessment whether exceptional circumstance exist requires consideration ofallthe relevant circumstance noonefactor reason delay need found exceptional order enliven discretion extend time even though noonefactor may exceptional combinationwith factor circumstance may regarded exceptional 39 much clear structure ofs 366 2 matter need taken account assessing whether exceptional circumstance individual matter might viewed isolation particularly significant necessary consider matter collectively ask whether collectively matter disclose exceptional circumstance absence explanation part delay usually weigh applicant assessment similarly credible explanation entirety delay usually weigh applicant favour though mention later question degree insight however ultimate conclusion existence exceptional circumstance turn consideration relevant matter assignment appropriate weight 29 64 considered matter specified in 366 2 act weighed considered collectively satisfied combination factor viewed together may reasonably seen producing situation ordinary course unusual special uncommon 65 persuaded exceptional circumstance warranting granting period making application unders 366 2 decline exercise discretion extend time mr jarman make application 66 accordingly application dismissed order effect issued decision deputy presidentappearances m danielfor mr jarman m k buifor hwc pty ltd buxton balwyn hearing detail 2018 melbourne 3 december pr702887 1 section 366 1 act note 21 day lodgment include date dismissal took effect reason operation theacts interpretation act 1901 cth 36 1 item6 period time expressed begin specified day period include day 2 section 366 2 act 3 lombardo v commonwealth australia represented department education employment workplace relation 2014 fwcfb 2288at 21 4 2011 fwafb 975 2011 203 ir 1 5 ibid 13 6 rule 10 2 b thefair work commission rule 2013 7 ayub v nsw train 2016 fwcfb 5500at 35 41 48 49 8 plaksa v rail corporation nsw 2007 airc 333 unreported cartwright sdp 26 april 2007 8 citingbarolo v centrum hotel melbourne print q9605 unreported airc whelan c 10 december 1998 9 shaw v australia new zealand banking group limited anz bank 2015 fwcfb 287at 12 ozsoy v monstamac industry pty ltd 2014 fwcfb 2149at 31 diotti v lenswood cold store co op society lenswood organic 2016 fwcfb 349at 29 31 10 2016 fwcfb 349 11 ibid 31 12 2018 fwcfb 901 13 21 day 26 september 2018 including 26 september 2018 17 october 2018 14 nulty v blue star group pty ltd 2011 fwafb 975 2011 203 ir 1at 14 15 clark v ringwood private hospital 1997 74 ir 413at 418 420 robinson v interstate transport pty ltd 2011 fwafb 2728at 25 16 print q0784 12 may 1998 17 mcconnell v pm fornataro tony plumbing service 2011 fwafb 466at 35 18 http auspost com au sending send within australia delivery speed coverage 19 2014 fwc 4002 20 ibid 35 21 brodie hanns v mtv publishing ltd 1995 67 ir 298at 299 300 22 ibid 23 ibid 24 telstra network technologygroup v kornicki 1997 140 ir 1 print 3168 22 july 1997 25 ibid 11 26 kyvelos v champion sock pty ltd print t2421 10 november 2000 14 27 2016 fwcfb 6963 28 ibid 41 29 2018 fwcfb 901 printed authority commonwealth government printer

Industrial Relations Commission Decision 420_1992 [1992] AIRC 360; (11 May 1992).txt

industrial relation commission decision 420 1992 1992 airc 360 11 may 1992 industrial relation commission decision 420 1992 dec 420 92 print k2853 australian industrial relation commissionindustrial relation act 1988s 99notification industrial dispute candec construction australian worker union another c 30311 1992 building metal civil construction employee construction industry commissioner simmonds melbourne 11 may 1992 industrial union union coverage alledged dispute concerned cfmeu claim coverage certain labour jacana tunnel project place existing awu coverage concerned work directly involving laying stone rock wall face concrete embankment stonemason tool used work properly covered classification wall builder awu construction maintenance award 1989 work restricted trade qualified recognised stonemason although capable decision 27 february 1992 victorian employer chamber commerce industry vecci notified commission alleged industrial dispute involving member candec construction construction forestry mining employee union cfmeu australian worker union awu alleged dispute concerned ban imposed cfmeu support claim coverage certain labour jacana tunnel project place existing awu coverage two conference matter held 3 17 march 1992 two union accepted appropriate basis determination dispute two agreement involving union another concerning demarcation first agreement known 1986 agreement developed following deregistration australian building construction employee builder labourer federation 1 subsequently agreement developed supplementary 1986 agreement known 1990 agreement background 1990 agreement dealt statement honour justice ludeke issued 23 april 1990 2 agreed without prejudice party commission presently constituted would arbitrate dispute consistent clause 10 1986 agreement difficulty imposed current wording clause 1990 agreement inspection site number site involving broadly similar work carried 26 march 1992 matter proceeded formal hearing 13 14 april 1992 cfmeu called two witness mr frank gasparini mr george cannon grace awu also called two witness mr frank curran mr charles simmonds harris vecci called one witness mr james hollis minson _______________________________________________________________________________ 1 1986 301 car 23 2 print j2322 work subject dispute undertaken part construction roadworks known western ring road project tunnel constructed railway line jacana melbourne northern suburb north south embankment eastern side tunnel series terrace made concrete wall faced stone placing stone subject dispute 1986 1990 agreement provide work civil construction project generally work awu dispute work question undertaken part civil construction project also appears question labourer engaged work also covered awu tradesman employed engaged constructing building clause 4 c iii 1986 agreement provides labourer engaged sub contractor directly assist bricklayer mason plasterer carpenter building defined ii hereof concrete work shall member bwiu fedfa definition building referred subclause extend type work question therefore work dispute consists work directly involving laying stone rock wall face concrete embankment evidence mr harris principal company carrying work established method construction wall similar adopted building wall backing onto earth embankment company generally engaged rock wall building job question rock broken size labourer using sledge hammer builder select stone place eye minimal dressing stone tool used trowel shovel mixer sledge hammer traditional tool mason described mr gasparini mr grace used stone placed gap stone concrete wall varies 30 100 mm rubble filled one employee engaged placing stone completed apprenticeship stonemason however skill required trade beyond stone walling learnt school job evidence mr gasparini mr grace qualified stonemason went nature trade type tool used nature work undertaken clear evidence stone wall building taught part apprenticeship curriculum also carried tradesman also evidence large proportion people practising trade received formal training worked assisting stonemason improver proficiency trade led recognised stonemason australian worker union construction maintenance award 1989 3 contains within classification wall builder defined following term _______________________________________________________________________________ 3 print j0179 a516 mean employee cutting facing placing stone position responsible line direction awu rule also provide coverage person engaged road building landscaping well non trade worker involved civil engineering project hand national building construction industry award 1990 4 application trade classification others engaged construction work defines stonemason following term mean employee construction work defined engaged dressing setting fixing coping drilling boxing kind stone including terrazzo composition reconstituted stone hand machine cut mould template proven square straight edge set line level includes worker fixed manufactured stone facade building building stone veneer random ashlar restoration colouration decayed stone including preparation use material liquid sort necessary work cfmeu rule give union coverage stonemason doubt mind whether work question amount veneer mr harris evidence expressed view rock facing went structural well decorative purpose mr minson project manager prime contractor project stated work described rock facing drawing specification confirmed constructed free standing wall gap rock concrete filled construction rubble work question veneer since stone dressed set line level would fall outside definition stonemason contained national building construction industry award 1990 however evidence allow reach concluded view point tool used particular job traditional stone mason tool described mr gasparini pitching tool punch string line stone wall broadly similar kind dispute constructed wall builder defined awu award referred number derivative award stonemason mr grace however conceded wall building sort work firm usually performed although occasion done mr harris hand testified regard stonemason apart work bluestone pitcher kerb channel work undertakes stone wall building light factor especially fact stonemason tool used consider work question properly covered classification wall builder australian worker union construction maintenance award 1989 reason see work restricted trade qualified recognised stonemason although clearly capable 4 print j4733 n122 appearance mason j minson candec construction bukarica medina construction forestry mining employee union p elliott f curran rix australian worker union date place hearing 1992 melbourne april 13 14 end text end text

Australian Municipal, Administrative, Clerical and Services Union v Sydney Water Corporation t_as Sydney Water [2011] FWA 1894 (5 April 2011).txt

australian municipal administrative clerical service union v sydney water corporation sydney water 2011 fwa 1894 5 april 2011 fair work australiadecisionfair work act 2009s 739 dispute resolutionaustralian municipal administrative clerical service unionvsydney water corporation sydney water c2010 272 deputy president samssydney 5 april 2011dispute relation clause 48 sydney water enterprise agreement 2009 job evaluation creation new position restructure jurisdictional challenge whether dispute concern matter arising agreement background 1 decision arises result challenge sydney water corporation sydney water jurisdiction fair work australia fwa deal dispute mean arbitration dispute settlement procedure cl 48 thesydney water enterprise agreement 2009 agreement application fwa deal dispute unders 739of thefair work act 2009 act filed australian municipal administrative clerical service union union 13 may 2010 2 since time seven conciliation conference fwa resulting procedural recommendation issued essence dispute concern proposal sydney water restructure evaluate 51 administrative position business support service unit resulting reduction 21 pre existing position addition conference fwa numerous meeting party exchange correspondence document think fair say union oppose restructureper se complained process consultation evaluation new job pressed two amended question determination fwa 1 part implementation sydney water business support service restructure pay point assigned newly created position business support adviser pursuant clause 7 1 3 schedule 2 thesydney water enterprise agreement 2009 sydney water conducted evaluation assigned position pay point level 6c asu dispute evaluation proposes position assigned pay point 7c mid sydney water correctly conducted job evaluation position ofbusiness support advisor way consistent skill authority accountability value position ii sydney water procedure job evaluation b answer 1 1 ii appropriate pay point assigned position business support adviser ii alternative position business support adviser referred back party evaluation 2 part implementation sydney water business support servicesrestructure pay point assigned newly created position businessexecutive support pursuant clause 7 1 4 schedule 2 thesydney waterenterprise agreement 2009 sydney water conducted evaluation hasassigned position pay point 7c asu dispute evaluation proposesthat position assigned pay point 9b sydney water conducted job evaluation position businessexecutive support way consistent skill authority accountability value position ii sydney water procedure job evaluation b answer 2 2 ii appropriate pay point assigned position business executive support ii alternative position business executive support referred back party evaluation 3 party initially agreed would arbitrate question direction filing evidence commenced complied moreover party filed agreed statement fact follows 1 sydney water statutory corporation wholly owned nsw government responsible providing water wastewater stormwater service sydney blue mountain illawarra 2 rate pay sydney water administrative staff established pursuant clause 7 thesydney water enterprise agreement 2009 schedule 2 agreement identified range pay level position assigned pay level job evaluation 3 position analyzed following factor complexity job activity analytical creative requirement education experience independence guideline constraint supervision managerial scope communication requirement impact result physical environment responsibility staff4 sydney water conduct training course job evaluator 5 upon position approved general manager job evaluation information collected job includes position description may include position analysis questionnaire paqs position submitted job evaluation panel panel conduct evaluation completes ajob evaluation result sheet thejob evaluation result sheetidentifies job evaluation point allocated panel job evaluation factor together total work value point tally 700 6 work value point tally allocated pay level referred schedule 2 enterprise agreement 2009 reference awork value point ip translation sheet recommended pay level position identified reference thesydney water enterprise agreement 2009 pay translation table table translates sydney water ip level pay level provided schedule 2 thesydney water enterprise agreement 2009 recommended pay level referred general manager approval prior position filled job evaluation new positions7 1 april 2010 sydney water referred several new position job evaluation copy position analysis questionnaire position business executive support business support advisor attached agreed statement fact 8 attachment h page 69 identified point score awarded job evaluation panel job evaluation factor position together total point score evaluated ip rating 9 attachment page 70 identified organisation structure reference pay ip level pay level new position information summarised table position titleno ofpositionsips levelea levelbusiness support service manager1team manager3ips 5611bbusiness executive support2ips 427cbusiness support advisor31ips 366c10 job evaluation panel awarded position business support advisor total 140 point translating ip level 36 ea pay level 6c next highest ip level ip 42 commencing 146 point translating ea pay level 7c assessing position business support advisor 140 point position fell 6 point short ip level 42 11 job evaluation panel awarded position business executive support total 150 point translating ip 42 ea pay point 7c next highest ip level ip 47 commencing 163 point translating ea pay level 8b thereafter next highest ip level ip 50 commencing 181 point translating ea pay point 9b assessing position business executive support 150 point position fell 13 point short ip level 47 31 point short ip 50 level organisation12 conducting job evaluation level position hold organisation structure relevant assessing range job evaluation factor senior position lower level organisation number attached page 71 marked j table entitledbusiness support service job evaluation score impact result table identified point awarded evaluation panel factor impact result related information level position hold organisation structure 13 historical data concerning administration role evaluation impact result factor reference position title level organisation outlined table attached page 72 marked k 4 however 16 december 2010 mr ray ferrier sydney water industrial relation manager wrote tribunal follows fwa c2010 272 asu sydney water corporation potts hill administration review question arbitrated honour refer matter particular question determination submitted fair work australia asu 11 november 2010 attached letter sent asu 10 december 2010 outline concern regarding jurisdiction fair work australia arbitrate matter scope question discussed concern asu persuaded change approach matter significant impact preparation case view sydney water seek listing direction hearing jurisdictional issue prior either party finalise submission sincerely r ferrierindustrial relation manager 5 appropriate point refer precise term step 5 agreement dispute resolution grievance procedure sydney water maintains prevents fwa exercising arbitral function otherwise available agreement clause 48 6step 5 involvement fair work australiaif dispute grievance remains unresolved exhausting step 1 4 andrelatesto matter arising agreement emphasis national employment standard either party may refer matter fair work australia provided provide party least three working day notice writing intention refer fair work australia may deal dispute two stage fair work australia first attempt resolve dispute considers appropriate including mediation conciliation expressing opinion making recommendation b fair work australia unable resolve dispute first stage fair work australia may arbitrate dispute ii make determination binding party fair work australia arbitrates dispute may also use power available thefair work act subject right appeal party dispute agree bound decision made fair work australia accordance subclause 48 6 6 clause must also read conjunction fwa power unders 739of act expressed follows 739 dispute dealt fwa 1 section applies term referred insection 738requires allows fwa deal dispute 2 fwa must deal dispute extent dispute whether employer reasonable business ground undersubsection 65 5 or76 4 unless party agreed contract employment enterprise agreement written agreement fwa dealing matter b determination thepublic service act 1999authorises fwa deal matter note prevent fwa dealing dispute relating term enterprise agreement substantially effectassubsection 65 5 or76 4 see alsosubsection 55 5 3 dealing dispute fwa must exercise power limited term 4 accordance term party agreed fwa may arbitrate however described dispute fwa may note fwa may also deal dispute mediation conciliation making recommendation expressing opinion see subsection 595 2 5 despite subsection 4 fwa must make decision inconsistent act fair work instrument applies party 6 fwa may deal dispute application party dispute 7 act model dispute resolution clause found reg 6 01 sch 6 1 follows model term 1 dispute relates matter arising agreement b national employment standard term set procedure settle dispute 2 employee party dispute may appoint representative purpose procedure term 3 first instance party dispute must try resolve dispute workplace level discussion employee employee relevant supervisor management 4 discussion workplace level resolve dispute party dispute may refer matter fair work australia 5 fair work australia may deal dispute 2 stage fair work australia first attempt resolve dispute considers appropriate including mediation conciliation expressing opinion making recommendation b fair work australia unable resolve dispute first stage fair work australia may arbitrate dispute ii make determination binding party noteif fair work australia arbitrates dispute may also use power available act decision fair work australia make arbitrating dispute decision purpose div 3 part 5 1 act therefore appeal may made decision 6 party trying resolve dispute using procedure term employee must continue perform work would normally unless reasonable concern imminent risk health safety b employee must comply direction given employer perform available work workplace another workplace unless work safe ii applicable occupational health safety legislation would permit work performed iii work appropriate employee perform iv reasonable ground employee refuse comply direction 7 party dispute agree bound decision made fair work australia accordance term 8 readily apparent agreement dispute resolution grievance procedure clause relevantly identical act model term dealing dispute enterprise agreement 9 shortly stated sydney water contends matter proposed question posed union determination fwa matter arising agreement national employment standard course latter jurisdictional limitation apply present dispute however sydney water correct former limitation would prevent fwa dealing dispute arbitration apprehend jurisdictional impediment relevant provision dispute settlement clause grievance procedure advanced sydney water evidence 10 party provided extensive documentary material evidence also adduced mr ferrierand mr hatter union organiser 11 mr ferrierhas employed sydney water since 1990 held present position since 2001 employed human resource industrial relation 30 year mr ferrierattached statement various document relating exchange correspondence party relevant dispute mr ferrierdeposed general practice sydney water would always agree participate conciliation dispute raise issue jurisdiction however dispute resolved sydney water reserved right raise jurisdictional objection done case mr ferrier stated sydney water job evaluation process never subject arbitration binding determination industrial tribunal court describing sydney water job evaluation process mr ferriersaid since late 1980s model proprietary system owned external consultancy firm mercer australia ltd model detailed sydney water manual policy annexed mrferrier sstatement 12 mr ferriersaid new position created job evaluation process ass position assign one 17 pay level set agreement describing process mr ferrieradded dispute process outcome internal review mechanism alternatively stage 1 4 agreement dispute settlement grievance procedure clause utilised provision limited resolving dispute matter agreement 13 mr hatter sstatement dealt detail agreement pay structure pay translation process job evaluation noted review position evaluated following factor complexity job activitiesanalytical creative requirementseducation experienceindependence guideline constraintssupervisory managerial scopecommunication requirementsimpact resultsphysical environmentresponsibility staff 14 also referred process red circling significant issue dispute relevant become evident later instant preliminary issue determined tribunal 15 mr hatterdealt specific business service restructure traced history dispute said member concerned restructure declared pre existing position redundant new structure substantially smaller term job number raising prospect significant number employee would lose job redeployed redeployment pool lower job evaluation outcome new position substantially decreased rate pay comparison equivalent job new structure andthe rate pay large number employee would subject absorption future general wage increase way red circling provision 16 mr hatteroutlined union objection process outcome job evaluation process matter also go merit dispute become relevant jurisdictional challenge succeed submissionsfor union 17 mr bkrusesubmitted application validly made accordance act sydney water dispute resolution grievance procedure empowers fair work australia arbitrate make binding determination dispute concerning position business administration adviser business support officer assignment pay level job evaluation matter arising enterprise agreement application neither frivolous vexatious prospect success case answer regardless jurisdictional finding concerning pay level dispute alternative cause action exists concerning ip remuneration rate red circling matter arising agreement applicant granted leave amend pleading incorporating alternative cause action 18 mrkruseoutlined step agreement dispute resolution grievance procedure put procedure closely follows act model term referred 737 term comprehensive facilitates hearing dispute way arbitration seewoolworths ltd trading produce v recycling distribution centre 2010 fwafb 1464 19 mrkrusesubmitted present dispute relates matter arising agreement namely assigning pay level pay point pursuant cl 7 expressed follows 7 pay7 1 pay structure7 1 1 17 pay level 7 1 2 pay level includes number pay point specified schedule 2 agreement 7 1 3 position assigned pay level job evaluation orb pay band accordance competency program orc either undergraduate graduate pay scale accordance subclause 7 3 ord senior manager pay band 7 1 4 competency program introduced relation position previously assigned pay level job evaluation work value assigned position competency program verified job evaluation process 20 mrkrusedistinguished case authority relied sydney water union matter sought use arbitration process create new rate pay entitlement seesydney ferry corporation v australian maritime officer union 2007 aircfb 909 mrkrusesaid union application seek vary agreement create new entitlement establish new pay level added job evaluation mechanism assignment pay level reasoned logical process 21 mrkrusesubmitted sydney water consented dispute arbitrated fwa represented position affected employee referred email 20 october 2010 business change manager m ira williams said time evaluation determination fwa pay rate job increased sydney water must pay new rate job pay rate equal level employee red circled employee longer red circled receive new pay rate case stage future bs role evaluated 7b ips42 anyone currently 7b lower paid 7b red circled please rest assured acceptance position currently evaluated change entitlement paid higher rate outcome fwa coming month light representation mrkruseput sydney water cannot withdraw consent arbitration fwa 22 mrkrusedealt sydney water alternative submission irrespective jurisdiction fwa would matter discretion arbitrate dispute said union application frivolous vexatious reasonable prospect success relied principle strike motion seedandaven v harbeth holding pty ltd 2008 fca 955 23 mrkrusealso dealt substantive merit application said earlier relevant stage proceeding mrkrusesubmitted agreement specifically refers job evaluation available mechanism assignment pay level nothing remarkable tribunal receiving evidence job evaluation result process proprietary model make system immune review 24 alternative pleading mrkrusesaid dispute exists present context red circling provision agreement matter arising directly agreement red circling defined sch 1 cl 3 cl 4 3 12 agreement sch 1 cl 3red circled employee remuneration frozen remuneration new position reach remuneration paid displaced sch 1 cl 4 3 12the redeployee paid remuneration level new position except remuneration new position lower currently paid case salary red circled 25 put safeguard designed protect employee may disadvantaged absorption general wage increase positioned lower pay level safeguard also found cl 4 2 sydney water remuneration policy title regression regression employee applies role lower grade pay level pay band trp band rate pay new role apply employee permanently moved role lower work value result poor performance willnormallybe red circled rate pay frozen equalled exceeded hourly rate pay new position case judged merit exceptional circumstance may dictate grandfathering pay rate pay level maintained continue receive increase remained original position appropriate emphasis added 26 mrkrusesubmitted present case individual circumstance reviewed merit union disputed one size fit approach rather sought grandfathering approach issue remains dispute 27 oral submission mrkruseaccepted term agreement fwa discretion arbitrate dispute mrkrusesaid clear relationship pay level sch 2 agreement assignment position level mean job evaluation plainly contemplated party dispute matter would subject arbitration point historically job evaluation process applied rationally 28 mrkruserelied onnational tertiary education union v victoria university 2008 fca 1630 authority proposition dispute matter given wide meaning relating controversy proper application industrial instrument mrkrusesubmitted case essentially involved private arbitration necessary tribunal ascertain character dispute determine whether matter dispute application agreement seemaritime union australia v australian plant service pty ltdpr908236 2001 airc 898 3 september 2001 construction forestry mining energy union v australian industrial relation commission 2001 hca 16 203 clr 645 75 aljr 670 178 alr 61andaustralian municipal administrative clerical service union new south wale act service branch v qantas flight catering limitedpr939695 pr923623 2003 fwa 22 october 2003 29 finally mrkrusesaid case multiple clear reference job evaluation agreement foundation stone agreement relationship pay level ip level support namely job evaluation process assigning rate pay mrkruseput even tribunal find power arbitrate dispute sydney water event consented arbitration sydney water 30 written submission put fwa jurisdiction determine dispute job evaluation term enterprise agreement dispute dispute application sydney water sjob evaluation manualandjob evaluation policyand term enterprise agreement job evaluation process occurs occurred 20 year outside term industrial instrument including enterprise agreement objectively intention party job evaluation would amenable step 5 dispute resolution process enterprise agreement mere reference job evaluation clause 7 1 3 enterprise agreement sufficient invest jurisdiction fair work australia arbitrate theamended proposed question determination alternative respondent submits exercise discretion fair work australia would arbitrate theamended proposed question determinationgiven breadth question disconnection notified dispute term enterprise agreement 31 outlining relevant term agreement fact case submitted fwa may deal dispute relates matter arising agreement requires connection dispute agreement see ansett pilot association v ansett australia limitedpr8525 30 august 1999 theansettdecision andnational tertiary education union v victoria university 2008 fca 1630 job evaluation manual policy referred incorporated agreement completely separate matter agreement deal methodology process job evaluation contrasted competency program dealt comprehensively agreement including reference dispute referred fwa highlighted question sought answered fwa referred contained agreement 32 sydney water also argued jurisdictional objection strengthened regard objective intention party consideration given term agreement whole reliance also onsydney ferry corporation v australian maritime officer union 2007 aircfb 909 full bench held dispute new roster within commission power arbitrate considering agreement whole context put enterprise agreement dealt job evaluation including methodology process stipulates detail job evaluation enterprise agreement explicitly conferred dispute resolution power fair work australia deal dispute job evaluation safely inferred intention party job evaluation amenable step 5 arbitration fair work australia emphasise dispute resolution process clause 48 6 enterprise agreement apply job evaluation dispute fact sydney water internal appeal process job evaluation process union exercised appeal process 33 alternative sydney water submitted even fwa found jurisdiction tribunal matter discretion arising use word may 739 4 act cl 48 6 agreement would determine question proposed union breadth question reflective term enterprise agreement breadth question connected notified dispute dispute dealt conciliation given specialist nature job evaluation system need specialist training proprietary system appropriate fair work australia determine job evaluation two position hence question 1 b 2 b 1 appropriate 34 oral submission m eraper counsel put sydney water application strike motion purely jurisdictional issue said dispute tribunal conciliation limited dispute pursued union msrapersaid nowhere agreement reference process undertaken job evaluation permissible rely earlier agreement may reference although remains clear distinction dispute competency program agreement addition reliance reference ip rate description current rate pay internal referencing link job evaluation msrapernoted agreed statement fact even mr hatter sstatement comprehensive detail job evaluation process work demonstrates nothing agreement msrapersubmitted case managerial prerogative step 1 4 dispute settlement procedure utilised party internal review mechanism 35 msrapersaid classification agreement pay point four possible choice assignment pay structure may form basis dispute assignment recourse arbitration except respect competency program msraperrelied theansettdecision exactly sought assigning new rate pay new position evaluation work would contrary party intention job evaluation 36 msraperfurther submitted notwithstanding sydney water willingness discus matter union employee party cannot consent fwa jurisdiction exist even intention party permit arbitration matter agreement would plainly said union brought evidence ever intention msrapersaid even one took blinkered view cl 7 clause must informed cl 6 say specific position assessed job evaluation internal referencing job evaluation 37 msrapermade detailed examination legislative provision conjunction term agreement demonstrate tribunal event discretion determine matter would decline case consideration 38 difficult imagine important matter relevant relationship employee employer rate pay determined work performed employee perhaps matter important existence employment relationship follows corollary matter must vital significance employment relationship manner process rate pay determined sydney water case rate pay employee referred cl 7 agreement viewed light cannot comprehend circumstance process outcome job evaluation determine employee sits ip could properly fairly said matter arising term agreement seems finding sits comfortably ordinary industrial notion process setting wage rate dispute process setting wage rate invariably arise time time settled arbitral process notwithstanding global analysis fortified conclusion job evaluation matter arising term agreement following 39 view appropriate authority applied matter ofnational tertiary education union v victoria university 2008 fca 1630 whereryanj said common similar provision industrial instrument cl 63 concerned provide mechanism settlement dispute matter arising agreement although accept word matter capable wide connotation confined context controversy party agreement award properapplicationof instrument extend controversy resolved making award agreement new dispute party arisen subsequently 40 consider term agreement construed beneficially therefore given wide meaning consider authority relied msraperare applicable fact circumstance case tribunal asked set rate pay assigning appropriate pay point business support adviser business executive support tribunal firstly asked find fault process rate pay determined job evaluation process may well tribunal would refer dispute back job evaluation process finding made process invalid produced unfair result hasten add make conclusive finding regard point number outcome might flow discretionary finding merit dispute 41 course job evaluation directly referred agreement appears cl 7 1 3 follows 7 1 3 position assigned pay level job evaluation orb pay band accordance competency program orc either undergraduate graduate pay scale accordance subclause7 3 ord senior manager pay band 42 conversely reference agreement job evaluation policy cl 3 1 3 3 given cross referencing see logically possible argue direct reference job evaluation agreement relevant consideration whether dispute job evaluation matter arising term agreement opinion fact reference made mention paramount importance employment relationship must result conclusion job evaluation term agreement applying ordinary english meaning word clause 43 addition note sydney water job evaluation policy sydney water submitted distinct separate agreement defines work value result job evaluation point score known work value cl 3 1 would thought uncontroversial work value traditional function industrial tribunal given juxtaposition policy agreement direct relationship job evaluation work value would seem difficult sustain leg sydney water case 44 seems pellucidly clear party historically accepted job evaluation important concept underpinning agreed industrial instrument one need refer wording cl 5 thesydney water agreement 2004 immediate predecessor present agreement clause expressed follows rate pay position except position covered competency scheme agreed party subclause 6 4 special movement clause 57 water service division civil maintenance production employee skill development programme determined job evaluation 45 note job evaluation policy includes following question job evaluation used sydney water one answer part ofsydney water award surely answer demonstrates unequivocal term view party job evaluation integral component industrial instrument time 46 evidence either party expressly impliedly eschewed intended expunge job evaluation industrial matter negotiation 2009 agreement fact referred different contextual setting change believe true historical intent party many year 47 observation fortified fact sydney water plainly represented affected employee union fwa would ultimately resolve dispute job evaluation process outcome view m ira williams referred email 20 october 2010 see para 21 cannot dismissed mere misunderstanding unintended error m williams insignificant player dispute manager directly responsible restructure express unequivocal word limit fwa conciliation even true intention sydney water incumbent senior manager say clear precise term 48 moreover undertaking given m williams expressly designed encourage employee accept result process knowing dispute would ultimately resolved third party fwa given force commitment context given consider appropriate reasonable sydney water withdraw undertaking addition note sydney water cooperated without demur setting direction fwa arbitration matter 49 one argument advanced sydney water never arbitration binding determination issue job evaluation view point presume argument really relates discretionary decision tribunal rather jurisdictional objection event fact matter subject arbitral proceeding sufficient basis presume dispute would ever arise requiring third party determination readily acknowledge respect competency program dispute process outcome expressly referable fwa able determined conciliation arbitration said inclusion reference contrasted similar reference dealing dispute job evaluation said therefore party must intended arbitration would apply dispute job evaluation however given history party industrial regulation representation made senior manager contrary consider inference available 50 turn alternative submission sydney water tribunal would matter discretion proceed arbitrating dispute mrkrusedescribed submission strike motion msraperdisagreed opinion msraper sconclusion amount distinction without difference doubt practical effect accepting sydney water alternative submission would dismiss union claim dispute unilaterally view prematurely evidence presently would permit fwa form preliminary view merit dispute would lead refusal arbitrate matter positively conclude point union obvious serious issue tried respect rely comment ofgilmourj indandaven v harbeth holding pty ltd 2008 fca 955 honour said par 6 success 31a require demonstration case hopeless bound fail following principle general application application 31a court must cautious party injustice summarily dismissing proceeding b court ought dismiss claim based predictive assessment prospect possible claim went trial may succeed c case evidence give colour content allegation question fact degree important court reluctant dismiss proceeding face pleading parliament intention require court engage lengthy elaborate trial interlocutory basis purpose determining whether proceeding reasonable prospect success may necessary opposing party provide outline evidence sufficient show genuine dispute prevent summary application becoming trial e real issue fact law decided right party depend upon obviously appropriate matter go trial cannot said real factual disputeandthat factual dispute must resolved determine whether claim succeeds reasonable prospect success g ought used shut proceeding proposition law may room doubt question law inquiry merit purpose resolving also simply determine whether argument hopeless order decide sufficiently strong warrant trial h evidence ambivalent character usually sufficient amount reasonable prospect determining real issue fact issue preclude summary judgment court must draw reasonable inference favour non moving party 51 would stress however considering evidence submission matter fwa might well decide matter discretion would decline arbitrate dispute answer question posed union either affirmative otherwise view use word may 739 4 act must construed mean fwa would choose arbitrate dispute claim dispute obviously untenable unlikely succeed patently beyond fwa jurisdiction exclusion national employment standard see 55 act 52 finally consider inappropriate stage decide whether additional pleading union form basis future arbitration dispute said obvious red circling essential component range issue dispute invite party consider agreement additional question posed context dispute default agreement tribunal consider application regard preliminary matter 53 aforementioned reason find determine job evaluation matter arising term cl 48 thesydney water agreement 2009 follows amended question posed union par 2 decision competently tribunal accordance 739 act term agreement 54 shall relist matter direction friday 8 april 2010 9 30am deputy presidentappearances mr b kruse unionms e raper respondenthearing detail 2011sydney17 februaryprinted authority commonwealth government printerprice code g pr507922

SZCWF v Minister for Immigration & Anor [2006] FMCA 30 (31 January 2006).txt

szcwf v minister immigration anor 2006 fmca 30 31 january 2006 last updated 13 april 2006federal magistrate court australiaszcwf v minister immigration anor 2006 fmca 30migration refugee application reinstatement applicant must given opportunity deal adverse information information fall within exception 424a complaint non essential part tribunal decision error operative tribunal reasoning jurisdictional error application dismissed migration act 1958 s 91s 424a 1 422b 424a 424a 3 424a 3 b federal magistrate court rule 2001 rr 21 02 2 13 03a c 16 05szcsx v minister immigration multicultural indigenous affair 2005 fca 520minister immigration ethnic affair v wu liang 1996 hca 6 1996 185 clr 259kioa v west 1985 hca 81 1985 159 clr 550minister immigration multicultural indigenous affair v applicant s194 2002 2003 fcafc 273minister immigration multicultural indigenous affair v namw 2004 fcafc 264qaac 2004 v refugee review tribunal 2005 fcafc 92tang vminister immigration multicultural affair 2000 fca 1746applicant szcwffirst respondent minister immigration multicultural indigenous affairssecond respondent refugee review tribunalfile number syg 582 2004judgment nicholls fmhearing date 21 november 2005date last submission 09 november 2005delivered sydneydelivered 31 january 2006representationcounsel applicant nilsolicitors applicant nilcounsel respondent mr mcinerneysolicitors respondent sparke helmoreorders 1 application dismissed federal magistratescourt australia atsydneysyg 582 2005szcwfapplicantandminister immigration multicultural indigenous affairsfirst respondentrefugee review tribunalsecond respondentreasons judgment1 application filed court 5 march 2004 seeking review decision refugee review tribunal tribunal made 20 january 2004 handed 11 february 2004 affirming decision made 13 december 2001 delegate respondent minister refuse protection visa applicant tribunal joined second respondent proceeding 2 background matter coming today first court date 17 june 2004 order made consent amongst thing applicant file serve amended application giving complete particular ground review relied upon 15 july 2004 matter also set hearing 1 february 2005 5 november 2004 heard application respondent sought matter summarily dismissed way interlocutory application notice motion arising applicant non compliance order court file amended application circumstance application put forward contained absolutely ground review applicant attend hearing provided explanation circumstance satisfied applicant reasonable notice respondent notice motion dismissed application pursuant r 13 03a c thefederal magistrate court rule 2001 therules 21 january 2005 heard application applicant time represented firm solicitor made pursuant r 16 05 rule order order made previously set aside applicant application reinstated applicant solicitor appeared time proposed amended application face word madgwick j inszcsx v minister immigration multicultural indigenous affair 2005 fca 520 appeared pas muster basis made order setting aside order dismissing application granted leave applicant file amended application also made order date applicant file serve written submission later 14 day hearing date listed matter final hearing note subsequently written submission filed applicant applicant filed evidence support application applicant affidavit 19 january 2005 went issue applicant previously filed amended application applicant also asserts intention file evidence beyond contained court book filed respondent solicitor paragraph 6 3 applicant national albania arrived australia on29 november 2000 applied protection visa 12 january 2001 refused 20 december 2001 applicant sought review tribunal 20 december 2001 claim protection australia pursuant refugee convention ultimately put tribunal well founded fear persecution convention reason return albania reason membership social group first described family citizen albania subject customary law code lek dukagjini kanun applicant also made claim ground religion basis family catholic majority population albania muslim applicant claim variously set application first respondent department reproduced court book cb 1 cb 25 particular statutory declaration copied cb 26 cb 29 application tribunal reproduced cb 77 cb 80 hearing tribunal conducted applicant 15 january 2004 cb 94 tribunal account occurred hearing set decision record cb 106 3 cb 110 5 applicant adviser made supplementary submission relation applicant application tribunal reference cb 105 decision record tribunal finding reason set cb 111 cb 119 4 relevantly tribunal made following finding 1 accepted applicant claim identity identity passport applicant used travel australia cb 111 3 2 relatively recent reactivation earlier tradition blood feud albania particularly north country applicant claimed originated cb 114 3 3 albanian authority recognised problem presented blood feud put place police judicial procedure address problem cb 114 4 4 accepted applicant brother killed 14 august 1998 haka family manner described applicant innocent unintended victim attack specifically directed towards brother friend cb 114 5 5 accepted motivation brother murder neither revenge killing existing blood feud haka family applicant family convention related reason cb 114 6 6 tribunal satisfied result brother murder applicant father subsequently murdered three member haka family son murderer come stressed convention related reason rather act revenge father killed cb 114 7 7 tribunal also satisfied motivation hostile action may future directed applicant haka family would act revenge father occurred would undertaken convention reason cb 115 7 8 tribunal found regard 91smigration act 1958 theact must disregard fear persecution applicant may family member person killed three people killed member family fear non convention reason cb 115 8 9 tribunal concluded regard found event claimed applicant gave rise claimed fear persecution member family motivated convention related reason 91sof theactrequires tribunal disregard prevents applicant coming within scope convention basis therefore satisfied applicant well founded fear persecution convention reason basis membership social group described family cb 116 4 10 tribunal also satisfied applicant well founded fear serious harm convention reason basis member social group described citizen albania subject customary law code lek dukagjini kanun cb 118 8 11 tribunal accepted applicant family catholic haka family majority population albania muslim satisfied applicant well founded fear serious harm amounting persecution religion cb 119 8 12 tribunal satisfied real chance applicant would subject serious harm amounting persecution convention reason returned albania foreseeable future cb 119 9 5 amended application court drafted assistance solicitor set following ground 1 tribunal made jurisdictional error erred finding applicant family cordial relationship haka family prior death applicant brother on14 august 1998 persecution alleged applicant could based upon religious ground orb erred finding death applicant father 3 haka family member originally due family feud started unintended killing applicant brother persecution applicant alleged suffered would suffer compelled return albania could based religious ground orc erred relying upon publication international religious freedom report 2002 albania disclose applicant intention provide copy said report applicant give applicant opportunity respond said report consequence tribunal exceeded authority power 2 tribunal made jurisdictional error identified wrong issue asked wrong question relied irrelevant material asked question put proposition applicant relation question identity particular whether assumed name indeed assumed name applicant department completed due enquiry satisfied issue true identity applicant tribunal exercise purported exercise power thereby affected consequence tribunal exceeded authority power 6 applicant unrepresented hearing solicitor ceased act notice filed 27 october 2005 participated hearing telephone audio link applicant melbourne sought previously participate hearing way arranged assistance asylum seeker resource centre melbourne assisting applicant limited capacity hearing assisted interpreter albanian language m rayment appeared respondent hearing applicant stated wanted right wished accepted refugee stated understand allowed stay australia know tribunal refused case beyond applicant able offer anything substance support case 7 applicant first complaint amended application tribunal erred finding applicant family cordial relationship haka family prior death brother persecution alleged applicant could based upon religious ground similarly second related complaint tribunal erred finding death applicant father three haka family member originally due family feud started unintended killing applicant brother persecution applicant feared compelled return albania could based upon religious ground m rayment submitted applicant misstated effect finding fact made tribunal respect issue tribunal considered evidence evidence satisfied applicant well founded fear serious harm amounting persecution religion cb 119 9 8 applicant claim regard predominantly made hearing tribunal applicant made reference linking family haka family religion application first respondent department example affidavit lodged protection visa application cb 28 3 applicant said haka family large family quite aggressive incident family acquainted haka family particularly friendly muslim whereas family catholic could lead bit divide albanian society notwithstanding applicant claim hearing tribunal revealed material court book show pressed applicant ground religion fear persecution based membership particular social group first described family later group people subject kanun application tribunal applicant stated cb 79 reason disagreed department decision department fund sic found refugee told truth situation regarding blood feud albania agree department decision well founded fear persecution albania membership particular social group family clear tribunal unchallenged account occurred hearing note regard applicant brought evidence whatsoever challenge tribunal account occurred hearing applicant introduced claim specifically asked change make claim already made replied would like add religious difference muslim family would take revenge cb 106 4 9 finding reason tribunal dealt applicant central claim put applicant problem stemmed blood feud family haka family beginning unintended killing brother cb 111 1 cb 118 10 cb 119 1 tribunal noted applicant claim raised first time said hearing family bad relation muslim family religion also reported later hearing made clear relationship catholic family muslim haka family prior death brother cordial close confining greeting tribunal noted gave several opportunity applicant elaborate claim hearing note applicant original description relationship haka family particularly friendly bit divide clearly contrasted initial description hearing added first time family relation tribunal view entitled see added claim event applicant subsequently changed description cordial close 10 tribunal accepted independent information relating religious makeup albania noted u state department report subject separate complaint albanian constitution provided freedom religion government generally respected right practice generally amicable relationship among religion society contributed religious freedom clear tribunal finding relation applicant claim fear persecution basis religion dealt view properly context applicant claim tribunal finding applicant claim death brother father three haka family member march 2000 difficulty caused anyway religious difference result blood feud started unintended killing brother compounded father act murdering three haka family revenge tribunal also found applicant claim family ever experienced harassment detained tortured persecuted religion even difficulty whatsoever tribunal finding applicant well founded fear serious harm amounting persecution religion clearly open based view comprehensive analysis applicant claim weight gave claim context nonetheless accepting applicant family catholic haka family muslim majority population albania muslim clearly weighing evidence matter tribunal minister immigration ethnic affair v wu liang 1996 hca 6 1996 185 clr 259at 291 292 tribunal make finding regard open material relation therefore specifically first part applicant claim tribunal erred found persecution based upon religious ground applicant family cordial relationship haka family misrepresentation tribunal actually done ultimately applicant reported described relationship two family clearly open tribunal find feud started unintended killing applicant brother based religious ground tribunal finding regard open material see error part tribunal relation complaint 11 applicant also complains tribunal erred relying upon publication international religious freedom report 2002 albania disclose applicant intention applicant complains provided copy report given opportunity respond report although precisely stated appears complaint tribunal obligation put material applicant presumably context common law rule procedural fairness pursuant tos 424a 1 theact regard note respondent submission thats 422bof theactapplies case also note however application review tribunal made 20 december 2001 prior 4 july 2000 whens 422bof theactbecame operational 12 event clear general situation common law opportunity given applicant deal adverse information credible relevant significant decision made kioa v west 1985 hca 81 1985 159 clr 550 per brennan j 629 every failure provide adverse information amount breach procedural fairness critical issue whether information credible relevant significant decision made indeed whether substance information may characterised important plank tribunal reason minister immigration multicultural indigenous affair v applicantss194of 2002 2003 fcafc 273at 17 circumstance substance information must provided applicant opportunity comment 13 report referred applicant amended application appears referred tribunal decision record cb 119 5 described tribunal decision record international religious freedom report 2002 albania released bureau democracy human right labor 7 october 2002 report reproduced court book later version dated 31 november 2003 appears cb 132 cb 144 specific explanation offered failure include actual report referred tribunal court book hearing made order first respondent file report referred provide applicant opportunity make subsequent written submission affidavit bernadette marie rayment sworn 23 november 2005 filed day annex relevant report submission received applicant 14 extent tribunal referred report set cb 119 4 looking information contained report clear term ofs 424aof theactthat extract report page 2 2 annexure affidavit relied tribunal applicant another person clearly fall within exception contained in 424a 3 theactfrom requirement put information applicant pursuant tos 424a 1 minister immigration multicultural indigenous affair v namw 2004 fcafc 264andqaac 2004 v refugee review tribunal 2005 fcafc 92 term common law procedural fairness also clear tribunal decision record relation issue applicant claim based religion tribunal decision turned applicant put tribunal perhaps accurately applicant claim context finding source applicant problem tribunal found difficulty arising family blood dispute caused anyway religious difference open tribunal find consistent applicant reported ultimately claimed hearing tribunal tribunal noted applicant pointed religious difference family haka family open tribunal weigh evidence evidence provided tribunal applicant reason led difficulty two family regard open tribunal find result religious basis finding dependent relevance tribunal noting u state department report spoke constitutional provision government position found dispute two family religious reason issue government attitude constitution presumably term adequate state protection relevant tribunal use information clearly background information albanian constitution government attitude freedom religion note applicant made claim whatsoever problem government religious belief anyone else tribunal clearly found regard cb 119 6 applicant claim family ever experienced harassment detained tortured persecuted religion even difficulty whatsoever clearly open tribunal make finding applicant put forward claim catholic predominantly muslim country faced discrimination persecution beyond arose dispute haka family regard cannot see information relied tribunal significant decision made tribunal would regard important plank reason clear applicant claim added hearing tribunal way set feud haka family religious element dealt tribunal clear information referred tribunal appear rise general background information event said issue clearly effectively dealt tribunal finding applicant put tribunal difficulty family blood feud absence applicant claim religious based problem extent tribunal relied applicant said information provided applicant tribunal statutory context fall within exemption contained at 424a 3 b theactfrom requirement put applicant pursuant tos 424a 1 context common law procedural fairness cannot see obligation tribunal put applicant information relied supplied applicant tribunal event according tribunal account discussed hearing see particularly cb 107 9 tribunal asked applicant family haka family religious difference 15 applicant also complains amended application tribunal committed jurisdictional error asking wrong question relied irrelevant material asked applicant question put proposition applicant relation question identity particular applicant complains tribunal done circumstance first respondent department made enquiry satisfied issue true identity applicant respondent submitted complaint non essential part tribunal decision could considered anything gratuitous aside referred totang vminister immigration multicultural affair 2000 fca 1746at 13 17 submission complaint alleged error operative tribunal reasoning made difference outcome tribunal decision agree latter part submission would characterise tribunal done gratuitous aside clear issue applicant identity given used passport real name travel australia issue minister department minister department may made enquiry indeed may satisfied applicant identity mean tribunal entitled satisfy applicant identity nothing oblige tribunal accept uncritically finding department delegate issue identity circumstance relevant tribunal consideration applicant claim tribunal entitled turn mind issue tribunal account hearing conducted applicant indeed relevant part finding reason cb 111 1 clearly show turned mind issue quickly said accepted finding applicant claimed person whose identity appeared passport used come australia clear circumstance tribunal action regard contains error accepted applicant claim true identity event issue identity operative tribunal reasoning ultimately relevant tribunal final decision conclusion 16 tribunal looked applicant claim put applicant discussed added hearing tribunal provided opportunity applicant support claim give evidence tribunal took account submission made applicant behalf dealt applicant claim made finding material open gave reason finding see error let alone jurisdictional error tribunal decision application dismissed certify preceding sixteen 16 paragraph true copy reason judgment nicholls fm associate wagma azizadate 31 january 2006

1111277 [2012] RRTA 190 (21 March 2012).txt

1111277 2012 rrta 190 21 march 2012 last updated 2 april 20121111277 2012 rrta 190 21 march 2012 decision recordrrt case number 1111277diac reference clf2011 113270country reference bahraintribunal member shahyar roushandate 21 march 2012place decision sydneydecision tribunal remit matter reconsideration direction applicant satisfies 36 2 migration act person australia protection obligation refugee convention statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant protection class xa visa unders 65of themigration act 1958 act applicant claim citizen bahrain arrived australia date deleted unders 431 2 themigration act 1958as information may identify applicant may 2010 applied department immigration citizenship visa july 2011 delegate decided refuse grant visa september 2011 notified applicant decision delegate refused visa application basis applicant person australia protection obligation refugee convention applicant applied tribunal october 2011 review delegate decision tribunal find delegate decision rrt reviewable decision unders 411 1 c act tribunal find applicant made valid application review unders 412of act relevant lawunders 65 1 visa may granted decision maker satisfied prescribed criterion visa satisfied general relevant criterion grant protection visa force visa application lodged although statutory qualification enacted since may also relevant section 36 2 act provides criterion protection visa applicant visa non citizen australia minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention criterion grant protection class xa visa set inpart 866of schedule 2 themigration regulation 1994 definition refugee australia party refugee convention generally speaking protection obligation people refugee defined article 1 convention article 1a 2 relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v miea 1989 169 clr 379 applicant v miea 1997 190 clr 225 miea v guo 1997 191 clr 559 chen shi hai v mima 2000 hca 19 2000 201 clr 293 mima v haji ibrahim 2000 hca 55 2000 204 clr 1 mima v khawar 2002 210 clr 1 mima v respondent s152 2003 2004 222clr1 html class autolink_findacts 222 clr 1

Litigation Manage Pty Ltd [2020] ATMO 184 (1 December 2020).txt

litigation manage pty ltd 2020 atmo 184 1 december 2020 last updated 5 january 2021trade mark act 1995decision delegate registrar trade mark reasonsre trade mark application 2084024 35 36 reddebtor stylized filed name litigation manage pty ltd delegate debrett lyonsrepresentation applicant rose prendergast accomplish legaldecision 2020 atmo 184section 38of thetrade mark act 1995 revocation acceptance whether reasonable revoke acceptance acceptance revokedbackgroundlitigation manage pty ltd applicant applied register trade mark provision thetrade mark act 1995 act current detail trade mark application appear application number 2084024filing date 29 april 2020services class 35 business information compilation directory publishing internet search relating company information providing business information via web site compiling index information commercial advertising purpose computerised business information service compilation business information commercial information service provided access computer databaseclass 36 collection debt debt collecting debt recovery debt recovery agency national debt collection organising debt collection recovery debt debt collection agency service debt collection agency bailiff service debt collection trade mark trade mark application filed via assisted filing service 1 applicant elected file underpt 4of act trade mark examined required unders 31of act application passed examination without adverse report 14 may 2020 accepted registration publication acceptance theaustralian official journal trade marksoccurred 30 september 2020 10 august 2020 office received correspondence king wood mallesons solicitor requesting revocation acceptance basis ofs 44of act earlier conflicting trade mark register letter drawing registrar attention client application registration 1496548 trade mark red note yesterday 30 november 2020 notice intention oppose final registration trade mark filed king wood mallesons solicitor request revocation acceptance considered office 25 august 2020 notice intention revoke acceptance noir sent applicant noir examiner state come attention trade mark accepted noir recitess 38of act concerned revocation acceptance provides precis ofs 44 go follows attached detail trade mark registration 1496548 red filing date 15 june 2012 client trade mark reddebtor stylised stylisation showing word red debtor distinct albeit conjoined element given descriptive connotation debtor context service claimed red dominant distinctive component client mark also identical earlier registered mark red reddebtor therefore considered deceptively similar trade mark registration cover inter alia business administration compilation provision online directory compilation directory publishing internet business commercial information service class 35 service considered identical similar client business information information compilation service also class 35 earlier registration cover range financial service including financial service provided part conjunction relation supply wholesale retail gas electricity class 36 service could encompass therefore identical similar debt recovery debt collection service included client application class 36 application 1771232 red filing date 17 may 2016 application also cover red solus consideration deceptive similarity set application cover inter alia service business management business administration advertising promotion marketing business management business consultancy business information provided online computer database internet class 35 service identical similar client business information information compilation service class 35 application cover broad term class 36 monetary affair financial service encompass therefore identical similar debt recovery debt collection service covered client application class 36 given similarity trade mark identity similarity service risk consumer would confused trade origin service bearing mark therefore asection 44ground rejection raised client mark examination happen next one month respond letter respond within one month acceptance application revoked application returned examination new report sent detailing precise nature ground rejection accordance reason outlined given 15 month bring application order acceptance alternatively one month date letter apply heard matter submit request decision written record request heard decision written record must accompanied appropriate fee applicant requested heard paid appropriate fee delegate registrar trade mark matter proposed revocation acceptance allocated heard decided hearing occurred 4 november 2020 applicant represented rose prendergast accomplish legal prior hearing received written outline submission applicant representative also taken account coming decision discussionsection 38of act provides 38revocation acceptance 1 trade mark registered registrar may revoke acceptance application registration trade mark satisfied application accepted taking account circumstance existed application accepted whether registrar knew existence b reasonable revoke acceptance taking account circumstance 2 registrar revoke acceptance application taken never accepted b registrar must examine report application necessary undersection 31 c section 33and34again apply relation application wording 38is discretionary power limb test in 38 1 must satisfied registrar may revoke acceptance registrar delegate inglobalscope pty ltdstated avoidance doubt would also add element must satisfied registrar issue letter intention revoke 2 current iteration ofs 38was result amendment act heralded theintellectual property law amendment bill 2006 theexplanatory memorandumto bill stated thatparagraph 38 1 clarifies registrar able take account circumstance existed prevented acceptance may include error judgement omission part examiner information trade mark available registrar time examination example examiner may overlooked discounted information would lead properly considered examiner rejecting application thetrade mark office manual practice procedurestates may reasonable revoke acceptance decision accept one cannot reasonably supported accepted defined test decision made examiner manifestly wrong clearly difference opinion 3 taking account circumstance find reasonable revoke acceptance trade mark word find 38 1 b satisfied reaching decision consider examiner manifestly wrong accepting application opposition period running owner purportedly conflicting mark filed notice intention oppose trade mark examiner original search report located registration 1496548 trade mark red annotated different good service however search also located application 1771232 red annotated mark sufficiently different incongruous annotation may appear understood context examiner search strategy located 895 active record exact word red class 35 36 related class report show examiner investigate record would think good reason indicative commonality term relevant service observe though letter king wood mallesons cited registration 1496548 examiner entry concerned good service comparison examiner search also considered exact mark application 1771232 perspective direct comparison trade mark consideration thus applies mark noir show reversal attitude taken original examination application reason unclear cannot identify record explaining reversal attitude towards trade mark noir relevant circumstance known examiner noir indicates view debtor descriptive term relation relevant service red element declared distinctive putting one side implication 895 active record red relevant class two statement noir hard reconcile since debt colloquially red find examiner original decision accept trade mark one reasonably supported accepted defined test 44 certainly manifestly wrong certainly scope difference opinion arise particular assessment 44 took place examination good basis find reasonable revoke acceptance decisionfor reason exercise discretion revoke acceptance application 2084024 application returned examination debrett lyonshearing officeroppositions hearings1 december 2020 1 trade mark regulation 1995 cth pt 3a 2 2016 atmo 14 12 16 20 21 3 atpart 38 2 4

Lazovic v Brisbane City Council & Ors [2011] QPEC 68 (6 May 2011).txt

lazovic v brisbane city council or 2011 qpec 68 6 may 2011 lazovic v brisbane city council or 2011 qpec 68 6 may 2011 last updated 20 may 2011 2011 qpec 68planning environment courtjudge robin qcp e appeal 3561 2010zoran lazovicappellantandbrisbane city council orsrespondentbrisbane date 06 05 2011ordercatchwordssustainable planning act 2009s 367 369 371 376appeal behalf long established church development approval waste transfer station council required development application made considered use unauthorised appellant mention date sought order prevent curtail use pending determination appeal circumstance court considered order regard made upon formal request notice supported appropriate evidencehis honour court make order term initialled draft includes direction conduct appeal calculated lead hearing september amended deference concern expressed appellant represents serbian orthodox church operating richlands since early 1970s court hears contended inappropriate condition co respondent operating perhaps near 50 metre away waste transfer business business operated development approval council granted subject appeal development application made consequent upon enforcement procedure undertaken council apparently took view use go back number year long church activity us authorised complaint hour operation understandable notice appeal specifically refer aspect court hears bar table special concern sunday refer issue noise air quality understood appellant seeking court make order would prevent co respondent carrying use appeal remains undetermined perhaps restricted carrying use way would impact greatly church activity may unusual approval acted upon appeal unresolved application far aware court authority start use however circumstance unusual given appeal concern business operating time would doubtless difficult co respondent customer employee operation curtailed order court certainly closing appellant seeking special order advance hearing determination appeal view order cannot conveniently sought mention today sought liberty apply order notice basis application supported evidence affidavit similar form respondent co respondent consider respond exhibit 1 document appellant tendered asks court make declaration routinely made respect public notification giving notice appeal like matter refer public interest democratic representation natural justice appellant operating close proximity site environmental value like matter party opportunity consider today hearing face inappropriate court make statement absence appropriate opportunity party understand got make submission matter mentioned yet lack restriction operating hour perhaps explained co respondent site zoned industrial use apparently zoning followed establishment church remains seen whether basis special condition apprehend appellant might like imposed order per initialled draft

Re AZ [2023] VSC 648 (26 October 2023).txt

az 2023 vsc 648 26 october 2023 last updated 10 november 2023in supreme court victorianot restrictedat melbournecriminal division ecr 2023 0249in matterof thebail act 1977 vic andin matterof application bail az judge elliott jwhere held melbournedate hearing 26 october 2023date ruling 26 october 2023case may cited azmedium neutral citation 2023 vsc 648 criminal law bail applicant 15 year old child prior conviction charge armed robbery aggravated assault theft committing indictable offence whilst bail support youth justice bail support service whether exceptional circumstance whether unacceptable risk bail granted condition bail act 1977 vic s 1b 3aaa 3b 4aa 4a 4d 4e 12 child youth family act 2005 vic s 3 346 356i 534 appearance counselsolicitorsfor applicantd zajdvictoria legal aidfor respondentk mcgregoroffice public prosecutionshis honour introductionthis application bail made 15 year old child 13 october 2023 applicant az 1 arrested charged 1 count armed robbery 1 count aggravated assault 1 count theft 2 count committing indictable offence whilst bail charge relate incident occurred 11 october 2023 pakenham victoria b backgroundb 1 alleged offendingat approximately 2 57pm 11 october 2023 victim alleged offending sitting outside group shop henry street pakenham 2 male wearing hooded jumper face mask approached victim demanded hand mobile phone closed circuit television footage nearby shop show victim refused hand mobile phone 2 male kicked victim several time head body repeated demand male later identified police az demanded victim logout apple icloud account mobile phone perpetrator produced large kitchen knife concealing pant victim subsequently handed mobile phone perpetrator fled scene 13 october 2023 search warrant executed az residence police seized several item clothing matched clothing worn perpetrator identified az closed circuit television footage obtained az arrested conveyed narre warren police station interview az charged senior constable lyon listed charge 2 remanded custody b 2 procedural historyon 19 october 2023 az made application court grant bail denied bail child court victoria dandenong day bail originally refused basis az presented unacceptable risk reoffending az currently held melbourne youth justice centre parkville proceeding next listed mention child court victoria dandenong 9 november 2023 az criminal record however time alleged offending bail relation 8 matter involved numerous charge charged summons relation several matter number charge subject agreed application diversion also listed 9 november 2023 child court victoria dandenong az co accused entered consolidated plea 77 charge diversion considered respect charge faced az co accused b 3 outstanding mattersas date hearing az 14 outstanding matter child court 10 listed diversion application 9 november 2023 diversion granted az completes diversion program court must discharge without finding guilt 3 charge subject agreed application diversion follows 1 relation informant senior constable mulvaney 3 count burglary 3 count committing indictable offence whilst bail theft theft shop 4 count theft motor vehicle 2 count handling stolen good 2 relation informant detective senior constable tucker theft motor vehicle committing indictable offence bail 3 relation informant detective senior constable lyon burglary theft criminal damage 4 relation informant detective senior constable vallas theft motor vehicle 5 relation informant senior constable gray affray theft theft motor vehicle 6 relation informant detective senior constable budge theft motor vehicle committing indictable offence whilst bail 7 relation informant constable radunic theft motor vehicle 2 count theft theft shop 2 count committing indictable offence whilst bail 8 relation informant senior constable matthew theft motor vehicle 9 relation informant senior constable bennett theft motor vehicle unlicensed driving committing indictable offence whilst bail 10 relation informant first constable cassidy theft motor vehicle theft az facing charge relation 3 contested matter also listed mention 9 november 2023 child court victoria dandenong 1 23 october 2022 az 2 associate allegedly stole myki card mobile phone member public pakenham train station police arrived scene shortly incident az returned stolen item victim az charged robbery 2 approximately 4 00am 12 february 2023 az allegedly entered home man asleep bedroom wife 6 month old child beaconsfield victoria victim observed male going bedroom drawer confronted perpetrator male believed az allegedly exited house got vehicle waiting outside handbag removed inside house found police nature strip neighbouring property latent fingerprint found handbag identified belonging az az charged aggravated burglary 3 approximately 5 10am 4 may 2023 az 4 accused allegedly attended residential address glen waverley victoria entered property stole 2 motor vehicle whilst victim sleeping closed circuit television footage obtained police show az vehicle date az charged 11 offence including home invasion 5 count committing indictable offence whilst bail addition az facing charge relation 1 matter subject application diversion listed contested hearing 6 december 2023 az charged 2 count assaulting emergency worker duty following welfare check conducted residence 13 january 2023 b 4 personal circumstancesprior date alleged offending subject application az resided father older brother transitional housing management home funded westernport accommodation youth support service mother currently inpatient medical facility compulsory mental health treatment 30 june 2023 az placed interim accommodation order reside father extended 11 august 2023 returnable 2 november 2023 conciliation conference protection application issued child protection service following report az increasing contact police family significant housing concern 29 july 2023 az victim stabbing resulted requiring hand surgery contrary account whether attacker known az az sought refuge child court victoria dandenong incident occurred immediately taken hospital az requires ongoing medical attention injury including rehabilitation az also recently consented assessment mental health care treatment plan az second time custody previously spent 9 day remand melbourne youth justice centre parkville april 2023 first time az custody since stabbing incident care team expressed concern ability cope remand environment given recent experience trauma c legal principlespursuant thechildren youth family act thebail act 1977 vic applies present application except insofar inconsistent act 4 az charged offence schedule 2 thebail act 5 alleged committed whilst bail schedule 2 offence common ground az must therefore demonstrate exceptional circumstance exist justify grant bail 6 court satisfied must consider whether applicant present unacceptable risk kind referred insection 4e 1 thebail act court satisfied unacceptable risk az released bail would relevantly endanger safety welfare person commit offence bail court must refuse bail notwithstanding az satisfied exceptional circumstance test 7 burden proving az pose unacceptable risk rest prosecution 8 considering whether exceptional circumstance exist whether az pose unacceptable risk kind referred court must take account surrounding circumstance including limited insection 3aaaof thebail act 9 namely nature seriousness alleged offending including whether serious example offence b strength prosecution case c accused criminal history extent accused complied condition earlier grant bail e whether time alleged offending accused bail another offence ii subject summons answer charge another offence iii large awaiting trial another offence iv released parole order v subject community correction order made respect otherwise serving sentence another offence g accused personal circumstance association home environment background h special vulnerability accused including child aboriginal person ill health cognitive impairment intellectual disability mental illness availability treatment bail support service j known view likely view alleged victim offending grant bail amount bail condition bail k length time accused likely spend custody bail refused l likely sentence imposed accused found guilty offence accused charged assessing risk court must take account whether condition bail may imposed mitigate risk 10 addition interpreting applying thebail act court required take account guiding principle set insection 1bof actincluding importance maximising safety community presumption innocence right liberty c 1 exceptional circumstancesthe phrase exceptional circumstance defined thebail act held order exceptional circumstance relied upon must take case normal justify admission bail applicant 11 however impossible standard reach observed inwoods v director public prosecution 12 thebail actdoes define exceptional circumstance reflecting ordinary natural meaning word held must something unusual ordinary circumstance relied upon applicant circumstance characterised exceptional category closed held warren j hurdle high one set high impossible accused person presently custody ever achieve virtually ever achieve bail individual circumstance combination circumstance constitute exceptional circumstance seen oft cited view vincent j inmoloneythat court must persuaded viewed whole circumstance exceptional extent taking account serious nature charge making order admitting person bail would justified appears question degree individual case c 2 unacceptable riskthe notion unacceptable risk contained within thebail actdoes concern merelyanyrisk reoffending rather question whether risk unacceptable 13 inha v queen 14 victorian court appeal observed period time remand would likely exceed sentence ultimately imposed factor particular significance determination whether exceptional circumstance unacceptable risk test made 15 nevertheless consideration significant importance deciding whether exceptional circumstance exist justify grant bail considering whether risk offender would present released bail acceptable conceded unlikely custodial sentence would imposed given appellant age disability nature offence charged continued incarceration pre trial would akin form preventive detention would held custody solely risk might commit offence future absence specific statutory provision preventative detention alien fundamental principle underpin justice system issue particular concern relation young offender denied bail c 3 childrenaz child 16 court also required take account matter listed insection 3b 1 thebail act namely need consider option remanding child custody b need strengthen preserve relationship child child family guardian carers c desirability allowing living arrangement child continue without interruption disturbance desirability allowing education training employment child continue without interruption disturbance e need minimise stigma child resulting remanded custody f likely sentence child found guilty offence charged g need ensure condition bail onerous necessary constitute unfair management child outlined forrest j inre jo 17 age applicant significant factor establishing exceptional circumstance 18 whilst burden demonstrating exceptional circumstance said stringent one age applicant weighs heavily favour child rightly afforded special status act assessment exceptional circumstance case child must viewed prism ofs 3b 1 case adult combination circumstance may fall short constituting exceptional circumstance combination considered case child may achieve wholly different outcome suite consideration enumerated in 3b 1 make evaluation determination act including exceptional circumstance test different exercise case child making determination relation child court may take account recommendation information contained report provided bail support service 19 bail must refused sole ground child adequate accommodation 20 bail refused court must remand child custody appear court later date must longer period 21 clear day 21 analysisthere real contest party exceptional circumstance exist case taking account surrounding circumstance satisfied exceptional circumstance exist justify grant bail without exhaustive factor establish exceptional circumstance include 1 az child 15 year age 2 az criminal record 3 az experienced significant trauma result dysfunctional neglectful family life 4 real possibility charge subject bail application contested az found guilty receive custodial sentence 5 contested matter listed hearing 9 november 2023 resolved 22 likely contested hearing date least february 2024 6 condition currently experienced youth custodial environment due staffing issue le satisfactory 7 az supported youth justice application report youth justice dated 25 october 2023 provided court confirmed az assessed suitable youth justice supervised bail service provided plan 8 victoria police confirmed ongoing support az application diversion listed 9 november 2023 23 thus real question determine today whether az present unacceptable risk committing offence whilst bail endangering safety welfare person said onus prosecution establish az pose unacceptable risk allegation made az serious nature alleged offending subject application bail includes violence theft use weapon involvement co offender time alleged offending az subject 8 grant bail take account considering degree confidence court might az comply condition bail addition number matter elevate nature risk involved az attended school entirety 2023 realistic prospect attending local school immediate future light previous history lateness school year also immediate prospect employment however outlined 24 required consider whether condition bail may imposed mitigate risk unacceptable risk virtue az status child required consider option remanding custody 25 recent development arrangement made az attend ignatius learning centre specialist secondary school boy involved youth justice system opportunity available time az applied bail child court victoria dandenong 19 october 2023 relation curriculum ignatius learning centre imogen cowan head engagement centre gave evidence diversionary approach education taken order keep boy age 15 17 custody centre describes providing safe holistic therapeutic school environment promotes development young person including intellectual physical social emotional cultural spiritual development school said employ highly skilled registered teacher multidisciplinary staff provide high quality senior secondary education assist student completing victorian certificate applied learning m cowan informed court discussion az attending ignatius learning centre prior giving evidence deposed based assessment az suitable enrolment ignatius learning centre could start almost immediately letter principal ignatius learning centre confirmed az could start tomorrow released custody today although significant distance campus richmond az residence pakenham m cowen confirmed transport could arranged required outreach measure could also made available evidence given m cowan az agreed attend ignatius learning centre least 2 day week initially az indicated willingness participate range supervised activity activity include attending appointment youth justice twice per week 26 enrolling short vocational training course facilitated youth justice increase prospect employment namely white card construction induction course traffic management course first aid training course participating youth crime prevention program known pivot support young people aged 10 23 year age repeated contact justice system engaging regular physical activity attending local gym az also supported child protection service regional education child court liaison officer whilst bail az previously offered level intensive bail support service place considerable weight youth justice report az proposed enrolment ignatius learning centre reaching decision furthermore recent time az experienced difficulty custody accept time az spent custody increase risk normalisation criminal behaviour stigmatisation well disruption already disrupted education 27 az real incentive comply bail condition avoid risk returned custody breach bail circumstance view appropriate condition risk presented az substantially ameliorated unacceptable risk condition bail place significant restriction az condition necessary ensure risk offending whilst bail endangering safety person minimised 28 e bail conditionsaccordingly admit az bail undertaking subject following condition namely must 1 reside redacted residence 2 remain residence 8 00pm 7 00am curfew hour day duration bail unless company father youth justice worker nominee youth justice 3 present front door residence curfew hour called upon member victoria police 4 9 00am 27 october 2023 attend ignatius learning centre attend ignatius learning centre least 2 day per week thereafter hour 9 00am 3 30pm 5 at3 40pm 30 october 2023 long thereafter attended attend general practitioner room obtain mental health care plan 6 4 00pm 3 november 2023 provide court evidence attendance general medical practitioner obtain mental health care plan 7 4 00pm 1 november 2023 provide court evidence enrolment vocational training course facilitated youth justice 31 october 2023 1 november 2023 9 november 2023 8 attend meeting youth justice twice per week hour 9 00am 5 00pm monday friday directed youth justice 9 attend comply lawful direction youth justice supervised bail service 10 use drug dependence listed thedrugs poison controlled substance act 1981 vic 11 consume alcohol 12 drive motor vehicle 13 present stolen motor vehicle 14 company redacted 15 contact directly indirectly witness prosecution respect charge subject application save prosecution 16 attend child court victoria dandenong 10 00am 9 november 2023 surrender depart without leave court leave given return time specified court surrender custody 1 pseudonym used ruling protect identity applicant comparechildren youth family act 2005 vic 534 1 ii 2 see par1above 3 child youth family act 356i 1 b 4 section 346 6 5 namely armed robbery theft alleged committed whilst bail indictable offence seebail actsch 2 item 1 22 6 bail act s 4aa 2 c 4a 1 7 ibid 4e 1 8 ibid 4e 2 9 ibid s 4a 3 4e 3 10 ibid 4e 3 b 11 brown 2019 vsc 751 65 lasry j citingre sam 2017 vsc 91 22 beach ja 12 2014 238 crim r 84 97 98 38 39 bell j case cited substantial reform thebail actwere introduced 1 october 2018 however expression exceptional circumstance remains 13 hall v pangemanan 2018 vsc 533 25 croucher j 14 2021 vsca 64 15 ibid 63 64 maxwell p kaye ja 16 pursuant tos 3of thebail act child meaning definition found thechildren youth family act case person alleged committed offence child defined person time alleged commission offence age 18 year age 10 year seechildren youth family act 3 17 2018 vsc 438 18 ibid 14 relation child seeking bail basis exceptional circumstance see also ga 2022 vsc 148 foxj 2020 vsc 569 tinneyj tp 2018 vsc 748 championj 19 bail act 3b 2 20 ibid 3b 3 21 ibid 12 4 22 see par9above 23 see par8above 24 see par19above 25 ibid 3b 1 see alsore ga 2022 vsc 148 61 fox j citingdpp v se 2017 vsc 13 38 bell j 26 previous bail plan az required attend appointment youth justice per week 27 bail act 3b 1 e 28 ibid 3b 1 g

Egan & Egan [2011] FMCAfam 1059 (11 February 2011).txt

egan egan 2011 fmcafam 1059 11 february 2011 last updated 11 november 2011federal magistrate court australiaegan egan 2011 fmcafam 1059family law parenting rebuttal presumption equal shared parental responsibility consideration parent attitude responsibility parenting finding serious psychological abuse hurt mother order father sole parental responsibility order consultation total absence communication specific time child spend time mother ongoing risk harm abuse family law act 1975 s 60b 1 60ca 60cc 2 2 b 3 3 f 3 f ii 61da 4 65daaapplicant mr eganrespondent m eganfile number csc 962 2007judgment coker fmhearing date 10 february 2011date last submission 10 february 2011delivered cairnsdelivered 11 february 2011representationcounsel applicant m wilsonsolicitors applicant williams graham carmanrespondent personorders 1 previous parenting order discharged 2 father sole parental responsibility decision relating long term care welfare development child x born 1996 born 1999 including limited child education current future ii child religious cultural upbringing iii child health iv child name v change child living arrangement make significantly difficult child spend time parent 3 within 48 hour decision finally reached father addressing issue defined order 2 herein father writing email post advise mother decision 4 mother spend time child may able agreed mother child father facilitate time spent child mother 5 child spend time arranged mother mother communicate father email letter time arranged confirmed father child 6 time father absent cairn work related purpose unable provide care supervision child event father able make arrangement child stay paternal grandparent 7 mother forthwith deliver father passport child held 8 reason judgment published notedthat publication judgment pseudonymegan eganis approved pursuant tos 121 9 g thefamily law act 1975 cth federal magistratescourt australiaat cairnscsc 962 2007mr eganapplicantandms eganrespondentreasons judgmentthese proceeding relate arrangement regard parenting two child x born 1996 therefore little over14 year age born 1999 therefore little 11 year age child child mr egan applicant proceeding shall convenience refer father m egan respondent proceeding convenience shall refer mother party proceeding separated 2006 divorced 12 june 2008 order made consent relation arrangement regard parenting child provided general term party equal shared parental responsibility relation long term decision made went provide perhaps normal parent sole parental responsibility relation decision made child living went provide definition respect least broadly could described major long term issue relation child life order provided arrangement regard child spending time father quite comprehensively set arrangement relation taking account work father took away australia order quite comprehensive providing specific arrangement relation special time occasion might arise outside day day performance activity within child life order provided communication email parent relation issue regard welfare child went provide perhaps normal arrangement regard provision information two household detail change address telephone number change work roster issue order like generally acceptable nature mean sense common type order made sensible resolution party facilitate future care provision child relationship one would hoped one always would end litigation party financial emotional toil take parent importantly provides settled stable environment child entitled unfortunately case relation proceeding whilst order made june 2008 within little year proceeding brought court father instituting proceeding finally led determination required made relation matter instituted proceeding 20 august 2009 result institution proceeding order made consent relation variation earlier order 12 june 2008 variation follows order made family court australia cairn 12 june 2008 varied follows clause 4 6 thereof deleted place following clause inserted 4 child shall live mother follows child shall live mother follows period end school day monday 26 october 2009 commencement school day friday 6 november 2009 ii period end school day monday 16 november 2009 commencement school day friday 27 november 2009 iii period end school day monday 7 december 2009 commencement school day friday 18 december 2009 iv alternate week commencing end school day friday 5 february 2010 alternate week thereafter b child x shall live mother follows completion school day friday 30 october 2009 commencement school monday 2 november 2009 ii completion school day friday 20 november 2009 commencement school monday 23 november 2009 iii completion school day friday 11 december 2009 commencement school monday 14 december 2009 iv alternate weekend end school friday commencement school monday commencing friday 5 february 2010 alternate weekend thereafter c child shall live mother follows second half christmas holiday period 2009 child shall live father time father shall away cairn time 31 december 2009 work related purpose period child live continue remain care control permitted stay father parent mr e m e court order party act thing sign document ensure child x born 1996 enrolled forthwith attend upon child psychiatrist relationship australia child counselling mother father provide counsellor copy affidavit material including affidavit mother brother forthwith m c permitted discus litigation particular interview child child psychologist counsellor upon x attend party attend upon m c conference november date advised m c pursuant tosection 62gof thefamily law act 1975the party child attend upon family consultant directed manager child dispute service date time advised butno earlier february 2010for purpose preparation family report family report deal following matter view expressed child factor child maturity level understanding would affect weight court place wish matter set inss60cc 61daand65daaof thefamily law act 1975 andany matter family consultant considers important welfare best interest child upon release family report matter listed mention on29 march 2010 10 30 amin federal magistrate court australia cairn notation mother father guided counsellor attendance party agreed follow recommendation counsellor father resigning employment given 8 week notice basically differentiated occur two boy x included order agreement understandably step taken regard preparation report relation proceeding requirement party course child participate preparation report unfortunately development relation matter shall course comment upon progress reason relation matter final position taken party relation proceeding far apart unfortunately come situation mother stance relation matter say would generally accept proposed m c relation arrangement regard ongoing future parenting child m c prepared two report relation proceeding first released 7 april 2010 second released 30 september 2010 m c second report indicates would propose relation child boy live father boy given option visiting mother time negotiated boy mother failing visit mother least month weekend m c go make recommendation regard boy able communicate mother way mobile telephone unfortunately reflection relationship party go recommend father mother little possible go think unfortunately shall comment upon later also recommend mother give x well personal item important say interview said asked stuff ipod phone charger thing think give m c previously recommended earlier report released 7 april 2010 equal shared parental responsibility mother say commented upon m c subsequent report appropriate course follow relation proceeding said huge difference though fundamental issue dispute party father position relation matter finally detailed perhaps circumstance relation matter developed outline case filed 8 february 2011 father say quite simply shared parental responsibility something work sole parental responsibility relation long term decision made regard welfare best interest x perhaps understandably quite properly say would advise mother long term decision made relation child within period seven day say child live father spend time mother choose course reflects recommendation m c adopt fallback position specific arrangement event able arrangement made regard time spent two issue dispute relation proceeding arrangement made regard parenting child though obviously issue significant nature matter need commented upon length obviously address issue respect law issue generally respect proceeding consider appropriate apply law relation matter need comment upon evidence came number source always case primarily came party proceeding mother father evidence obviously significant perhaps telling relation determination proceeding also assisted evidence given two witness called relation proceeding included father perspective paternal grandfather mr e senior mother perspective partner mr v also assisted already made comment course relation two report provided m c m c required cross examination though clear mother address relation matter certainly issue relation m c reported relation matter mother said accurate reflection outcome discussion interview led preparation report comment relation particular aspect matter little later reason turning primary evidence course mother father important however comment briefly upon evidence two witness appeared mr v mr e senior insofar mr v concerned great opportunity consider observe witness box got impression decent honest honourable reasonable man except couple circumstance obviously come moment took thought appropriate stance relation matter whilst support said mother realised issue relation parenting decision made regard parenting child matter properly decided mother father perfectly sensible perfectly proper approach taken relation proceeding troubled raised cross examination relation matter query mr v relates one particular issue troubled enormously apparent change circumstance experienced within household mother prior commencement mother mr v living together circumstance thereafter whilst accept course must change respect issue get distinct impression radical least perspective change within household certainly affected directly relation relationship mother one obvious example fact restriction child able open front door commented somewhat incongruous able open front door stranger whilst perhaps real determined way disciplined criticised mr v opening door school friend mother issue troubled child speaks m c report made incongruity course asked mr v child able open door quite properly indicated obviously protective measure one related issue regard knowing might side incongruity two three week unfortunately made decision made regard living father able key house required wait outside mother emphasised time occurred occasion perhaps three four time two three week period troubling child able open door security issue could locked home home mother mr v home must enormously troubling disciplinary issue well good troubled thought inconsistency relation particularly troubled fact seemed little appreciation might affect little boy fact mr v response relation child kept outside troubled perhaps anything else said protect property whilst understand fully course obligation tenant relation property suggested child kept outside le important protection property therefore inherent risk child outside obvious effect matter troubled much issue played throughout matter gained distinct impression least respect particular aspect matter mr v see long term consequence action taken mother relation child unfortunately one number example mother failed appreciate way effect action upon child whilst give pleasure something must comment upon relation reason also opportunity seeing paternal grandfather relation evidence gave respect matter mr e thought one impressive gentleman ever seen decade bench honest frank every respect one could hope relation supportive loving generous grandfather importantly however gave distinct impression grandchild son also recent time mother asked number question relation cross examination whether always polite quite immediately responded course case asked whether put paternal grandmother pedestal indicated case asked whether grandfather thought person fact indicated thought rather intuitively unfortunately case thing happened recent time grandfather concerned grandchild also concerned mother asked sit period three hour listen concern relation disciplinary issue particularly mother experiencing relation child x may difficult mother accept experience span nearly 30 year family law many parent one party would provide nature support party following separation mr e senior enormously impressive witness made number comment thought absolutely telling relation matter asked change attitude spoke fact troubled boy told mother asked believed asked help said disbelieve heard conflicting view relation matter course instance x taken police station occurred extent entirely final straw relation support could bring bear said listened took 12 year old child police station child threatened put cell mother present time relation denied occurred find certainly inappropriate threat made police officer intimidating harassing statement made police officer relation matter horrified record publicly horror action juvenile aid bureau child protection investigation unit relation matter end happened little boy x result action mother subject serious comment mr e senior said following mother shattered child could agree happened relation boy nothing short serious psychological emotional abuse could ever imagine without shadow doubt mother need serious reconsideration entire attitude parenting expectation relation child moment see unfortunately little prospect child real relationship whilst attitude remain entirely right entitled act exactly plea relation growth development two child parenting dictatorship understandably child grown feel little gained relationship mother one else fault mother trouble enormously even last minute matter mother could lay blame foot person rather look mirror see blame responsibility breakdown relationship lie mr e senior said example effect child taken police station comment made x believe god troubled reaction mother father father broke cried entirely understandable appropriate though doubt little embarrassing stance take relation matter mother cry saw harm child telling piece evidence seen long time relation determination proceeding mr e senior enormously impressive man every respect child blessed grandparent side child forefront child wish father mother best interest child agree final comment made mother relation matter paternal family better maternal family opportunity see paternal family best little opportunity see maternal family situation troubled enormously turn evidence report writer much contained within material enormous assistance relation proceeding particular order intend note comment made m c report paragraph 22 first report speaking cd taken x attendance police station police station room upstairs distinction could possibly drawn child fact might standing desk police station one issue thought troubling relation mother attitude approach matter m c say paragraph 22 following writer subsequently listened cd recording police interview mother request recording end paternal grandfather respectfully firmly insisting police ignoring context x signed documentation x continued assert acted defensively mother hit head paragraph 23 also enclosed writer perusal copy caution signed x refer attachment b countersigned maternal grandfather mr person previously rejected x recording second interview given writer ass already commented assessment action police instigated mother catastrophic destabilising relation child without doubt one distressing piece evidence ever seen effect child mother insisting charged belief mother action statement father absolute tragedy something trouble enormously relation issue respect child possible future relationship mother little boy protested innocence paternal grandfather person wished left little boy subject abuse nothing else could led signing document categorically acknowledge wish sign people protected people forced upon maternal grandfather mother without doubt horrifying abusive act people nothing best interest child hand mother served purpose relation proceeding may sought assistance guidance police end gave bad advice rather acting responsibly protectively child allowed abuse occur horrified ever arisen mother attitude relation matter continued reflected much comment m c relation proceeding child made numerous comment observation relation household commented relationship mother child interestingly clearly recognised altercation led police interview already referred one way street evidence m c first interview second interview saw mother attempting strangle child mother categorically denies say hearsay find exchange mother x appalling instance child mother acting irresponsibly like giving good got course huge distinction drawn relation matter one person adult one person little boy little boy excuse immaturity child like behaviour mother excuse relation occurred occasion intended get way relation everything respect parenting child child without consideration might best interest child similar circumstance arose unfortunately short time later latter part 2009 instance arose nonsensically cartridge printer apparently could found mother accused child ifs buts maybes may said stolen may said taken may used word nature every respect disbelieved child accused tragically think tellingly yet wrong wrong refused admit failing child could absolutely shattered inconsistency demand put upon something trouble enormously continuing theme report matter commented upon child m c gain comfort horrendous finding relation mother situation clear enormous hurt caused child result mother action said already result one else determination get way relation proceeding m c recommends arrangement child involved discussion limited contact mother father m c say paragraph 36 second report boy clearly troubled relationship mother experience punitive rejecting hurt upset unable establish healthy relationship present time could agree could restate often already one fault mother realises accepts damage relationship nothing lack communication rejection father improvement relation exists mother boy continued deterioration tragically unfortunately view accept word others relation matter continue insist right everyone else wrong easily able explain lack relationship boy saying someone else fault troubled enormously turn briefly evidence father like u fault acknowledged made denigrating comment presence boy fact boy relation mother said frustration obviously said circumstance inappropriate occur father like mother adult relation proceeding restrained responsive best interest issue existed boy unfortunately also complaint made x prior x finally coming live permanently care latter part 2009 listen child closely course father deal emotional issue arise also arisen x result continued abusive circumstance existed child mother otherwise however enormously impressed father man battled doubt various pressure balance met relation parenting child also opportunity provide financially child blessed indicated already support nurturing caring parent boy doubt benefit doubt father genuine desire child relationship mother text perhaps last piece evidence sent relation matter relating christmas eve christmas day time child cry response mother say accept unconditionally know might might arranged boy mother parent making arrangement relation proceeding asked arrangement made way text sent christmas eve asked arrangement discussed sought response mother reason totally beyond comprehension failed said father prevented seeing child christmas day simply one multitude self serving statement part mother easily lead able justify perhaps others everybody else fault regard relationship relation child absolutely doubt father genuine wish child beneficial proper relationship mother also protect child ensure proper opportunity relationship fostered developed obviously clearly indicated enormously troubled mother relation matter rarely seen witness lack insight cause difficulty relation relationship exists child everyone else fault thought overnight matter long hard course take relation proceeding end come view mother actually unable see happening relation relationship child honestly belief look mirror see something different actually occurring relation child see every action boy reflection undermining relationship father others rather simply look occurring child firmly view mother would benefit enormously appropriate counselling deal demon whilst psychological psychiatric qualification relation matter skerrick doubt mother approach relation parenting child demand support father wish rejection much father attitude relation matter boy wish relation matter troubled capacity deal future parenting doubt developing maturing child challenging already relation parenting mother trust father communicate asks opportunity arrange brace child go another dentist evidence sought information father simply believe sought legal representative obtain information would assist obtaining italian passport lawyer explains wish seek advice trust whole essence proceeding mother issue lead mother taking stance relation proceeding intend speak incident little boy little boy taken police station could rarely imagine abusive action taken mother abused child child cry clearly paternal grandfather left subject approach maternal grandfather support person child want hard imagine relation effect upon child mother abused boy horrendously action last six month taking immediately grandparent withholding possession order court property personal item made available reflects poorly mother respect speechless actual view relation matter would perhaps appropriate fully express damage believe mother caused child intend obviously therefore go point point matter one issue must comment upon relation evidence given annexed second report m c copy poem child x written find x written particularly mother told repeatedly evidence question directed relation matter one primarily responsible care support child knew writing sheet x suited find fact relation matter longer matter hearsay poem one direct cry help could ever imagine poem little boy emphasise still child follows whywhy see meevery time fight get worse worse month go get sick sick sick way treat sick way control need way get takeyou anymore day go theknife look friendlier pick havemy easy way go deed weak strong end start see curtain liftfor whole world watch put fake smile hope remember mother dayas spend without doubt telling cry help child ever seen mother response relation simply ignore say hearsay denies cry child evidence mr e senior present child wrote evidence father best could say writing word child mother still accept could get mother hurt child experienced doubt anything finally break curtain x refers relation poem serious sad statement child even mind issue self harm take knife end pain something least find horrifying tragic turn law long paramount consideration set insection 60caof thefamily law actis welfare child first paramount consideration guidance provided act many matter must considered relation parenting section 65daaheaded court consider spending equal time substantial significant time parent certain circumstance significant issue flow requirement consideration provision ofsection 61da section 61dais headed presumption equal shared parental responsibility making parenting order law say requires understandably say instance best interest child parent involved decision made regard long term care welfare development perfect world course case understandably unfortunately circumstance best interest child occur m c recommended equal shared parental responsibility commencement first report make comment second understandably therefore mother say continuity occur course given opportunity see whether still view relation matter many respect unnecessary whilst make recommendation heard evidence relation matter order made court appropriately appointed instance responsibility fall upon presumption equal shared parental responsibility rebutted circumstance family violence abuse word obvious imbalance power party mother suggests throughout material throughout statement m c subject domestic violence abuse within relationship abuse least psychological emotional nature continues subsequent separation inclined think case respect note boy specifically rebutted statement rebutted said relation matter told m c apart one occasion think x said saw father push mother away never experienced issue memory would vivid vivid memory say violence perpetrated upon mother indicated find something occurred one way street little boy lashing without intention without reason course also another basis upon presumption equal shared parental responsibility rebutted arises pursuant provision ofsection 61da 4 term 4 presumption may rebutted evidence satisfies court would best interest child child parent equal shared parental responsibility child need say great deal respect limited opportunity communication recommendation m c clearest indicator could equal shared parental responsibility report writer experience m c recommend dot point 4 second report father mother little possible telling extreme parent cannot communicate trust respect little common two little boy subject dispute relation proceeding appears clearly little upon properly communicate indicated even recent time father tried raise mother issue significant christmas day mother response even respond communication possibility equal shared parental responsibility mother acknowledges perhaps two day month holiday opportunity child live father obviously course followed relation matter obviously father sole parental responsibility comment respect also would normally order consultation consideration parent even though one might sole parental responsibility relation decision made instance disturbed lack respect lack trust lack civility lack courtesy party two way street impossibility father proposal set finally outline effect sole parental responsibility ensure mother made aware decision made regard long term care welfare development child assessment best interest child intend make order big issue relation matter opportunity mother spend time child perhaps limited relevance relation matter mother seek recommended m c limited time understandable submitted part father put place particular order regard time spent mother child intent purpose recipe disaster set child father litigation factor considered relation determination proceeding boy spoken unfortunately spoken foot often anything else live father care support also paternal grandparent suggest arrangement could made mother boy time exactly submitted counsel father recipe disaster mother boy cannot make arrangement say boy go already repeatedly acted manner absented mother care mother home clearly opportunity litigation relation proceeding intend make order relation matter intend make certain order regard possibly relationship child mother hopefully fostered developed turning order intend make relation matter required obviously comment upon statutory framework relation decision made respect proceeding necessary said go provision ofsection 65daaof thefamily law act clear equal shared parental responsibility appropriate therefore statutory direction consider equal time substantial significant time fall wayside say still consideration relation arrangement made already commented confidence whatsoever specific order made relation mother opportunity time spent child proper communication child boy least form written communication mother father confirm corroborate arrangement put place turn object principle act consideration set insections 60bandsections 60ccand particular subsection 2 3 thefamily law act section 60bheaded object part principle underlying least relevant term section 60b 1 object part object part ensure best interest child met ensuring child benefit parent meaningful involvement life maximum extent consistent best interest child b protecting child physical psychological harm subjected exposed abuse neglect family violence c ensuring child receive adequate proper parenting help achieve full potential ensuring parent fulfil duty meet responsibility concerning care welfare development child object followed consideration set insection 60ccand intent purpose least assessment checkpoint reflects object act section 60cc 2 headed primary consideration term primary consideration benefit child meaningful relationship child parent b need protect child physical psychological harm subjected exposed abuse neglect family violence would think counter balance perfect world question benefit child meaningful relationship parent parent provide counter balance bring quality positive sometimes negative child child grows develops particular consideration obvious need also circumstance reject suggestion meaningful relationship best interest child primary issue arises pursuant provision ofsection 60cc 2 b factor considered need protect child physical psychological harm already commented length relation matter harm mother brought bear upon child something find almost overwhelming incident involving police station without shadow doubt one troubling piece evidence ever seen abuse child nothing short abuse action mother father relation matter minded refer reason commissioner police cjc happened occasion abuse involved police officer tragedy end inclined however simply lead exaggeration least mind little boy x trauma consider best interest child child subject horrendous psychological abuse action mother particular instance course already referred relation x regard cartridge accusation unreasonably unjustifiably made particularly apologised tragic clearly instance able open door school friend feeling confident speak mother locked home happened need protect property child abuse highest order view cannot ignored child right relationship parent child also assessment overriding right protection protected time likelihood near future protected mother home unfortunately said feel little expectation change within mother lead protective nature relationship father additional consideration set insection 60cc 3 court required give consideration view expressed child factor child maturity level understanding court think relevant weight give child view child cried long hard want relation matter want stability want peace father grandparent household mother household child wish particular wish x need given significant weight relation matter perhaps obvious already said given significant weight nature relationship child child parent significant factor child relationship person including grandparent relative commented great length relation maternal grandfather action relation matter noted course annexed material relation proceeding regard email passed would seem maternal grandfather mother may taken surreptitious way child x doubt mother disturbed behaviour far disturbed content email suggestion fighting dirty using child relation proceeding note mr called witness relation matter able law draw conclusion nothing positive could drawn evidence matter would detrimental mother case relation matter child relationship mother horribly scarred doubt whether ever able fully restored one would hope would case come first foremost serious consideration mother action behaviour relation proceeding time review positive change little hope real beneficial relationship child mother requirement consider willingness ability child parent facilitate encourage close continuing relationship child commented criticism made parent regard father least past made comment inappropriate relation mother whilst may said frustration said improper inclined however believe father perhaps willing simply bite tongue relation gone child mother willingness indicated text sent christmas eve attempt encourage continuing fostered relationship mother child unfortunately obvious much already said respect matter little confidence mother capacity totally self centred approach unfortunately exists relation attitude child father reviewed radically reviewed little opportunity little hope mother would able way foster relationship already positive father unfortunately gained little confidence heard relation proceeding significant also issue regard capacity attitude party section 60cc 3 f term court must give consideration capacity child parent ii person including grandparent relative child provide need child including emotional intellectual need subsection read assessment conjunction term attitude child responsibility parenthood demonstrated child parent intend rehash already said simply need say father assessment met obligation relation meeting emotional intellectual need child shown proper capacity provide need father shown think appropriate attitude child child responsibility parenthood demonstrated action taken continues take mother evidence overwhelmingly clear regard need say relation particular aspect matter required consider issue family violence find past family violence least mother father though doubt cross word anger particularly leading final separation party accept boy evidence relation matter saw one occasion father pushed mother away could view issue family violence would give rise concern respect proceeding however violence within household involved mother least child x enormously troubled evidence relation proceeding repeat two occasion report writer six month apart saw mother strangling brother yet mother denies categorically thing occurred suggests fabrication brought manipulation father staggering extreme intend indicated make order provides fallback position event mother boy able arrange time relation proceeding recipe disaster recipe litigation relation proceeding course one factor considered relation final order might made court whether would preferable make order one form another would least likely lead institution proceeding relation child order set regime nature relation child spending time mother obvious opportunity proceeding present time little confidence cooperation boy unless something negotiated boy mother certify preceding ninety one 91 paragraph true copy reason judgment coker fmdate 4 october 2011

Priority One Home Loans Ltd and Anor v. Amplitude Investments Pty Ltd and Ors [2007] NSWSC 845 (26 July 2007).txt

priority one home loan ltd anor v amplitude investment pty ltd or 2007 nswsc 845 26 july 2007 last updated 6 august 2007new south wale supreme courtcitation priority one home loan ltd anor v amplitude investment pty ltd or 2007 nswsc 845jurisdiction equity divisionfile number 3519 07hearing date 26 july 2007judgment date 26 july 2007ex tempore date 26 july 2007parties priority one home loan ltd first plaintiffgerd rolf mertes second plaintiffamplitude investment pty ltd first defendantproperty solution 4u pty ltd second defendantrichard albarran third defendantblair pleash fourth defendantjudgment palmer jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel southwick plaintiffsb f katekar 1st 2nd defendantsj e sullivan 3rd 4th defendantssolicitors north shore lawyer plaintiffsetienne lawyer defendantscatchwords interlocutory order receiver manager removal receiver manager appointed charge securing debt disputed serious question trued whether debt payable plaintiff offer undertaking preserve fund whether balance convenience requires removal receiver legislation cited case cited decision upon certain undertaking plaintiff receiver removed judgment 3519 07 priority one home loan ltd anor vamplitude investment pty ltd orsjudgment ex tempore26 july 20071 statement claim filed 6 july 2007 priority one home loan pty ltd priority mr mertes commenced proceeding amplitude investment pty ltd amplitude mr lynch director company claiming amplitude repudiated consultancy agreement priority mr lynch dated 23 october 2006 2 statement claim also sought declaration effect priority accepted repudiation terminated consultancy agreement 1 june 2007 priority ceased liability amplitude certain deed charge entered party also dated 23 october 2006 whereby obligation priority amplitude consultancy agreement secured 3 ancillary relief sought including order damage amplitude breach consultancy agreement damage mr lynch trespass wrongful detention asset priority 4 slightly le two week filing statement claim defence entered amplitude purported appoint receiver manager priority pursuant deed charge secured obligation priority consultancy agreement 5 priority mr mertes notice motion filed 19 july seek order receiver manager appointed amplitude priority joined defendant proceeding order restraining receiver manager taking step proceeding order mr southwick counsel appears plaintiff also seek order removal receiver manager pending determination proceeding upon basis certain undertaking plaintiff offer come shortly 6 circumstance application made may briefly recounted priority carried business mortgage broking sole shareholder second defendant mr lynch also director priority entitled certain trail fee lender respect mortgage loan brokered 7 23 october 2006 company controlled mr mertes sc investment finance pty ltd sci entered share acquisition agreement mr lynch whereby mr lynch agreed sell share priority sci completion transfer share deferred term agreement upon completion mr lynch retire director 8 appears day share acquisition agreement entered priority entered consulting agreement amplitude company controlled mr lynch agreement priority agreed engage amplitude consultant term four year clause 3 agreement provided payment consultancy fee accordance item 4 schedule fee provided schedule follows 4 feepayment monthly arrears 1 85 net trailer fee received contractor loan book contractor 30th september 2006 period 4 year 2 10 net trailer fee received contractor new loan written forming part contractor loan book 1st october 2006 period 4 year net trailer fee mean gross trailer excluding gst received contractor le fee payable agent broker introducers third party entitled commission respect loan upon trailer fee paid third party payment third party payment shall made upon agreement consultant contractor 9 clause 3 2 3 3 consultancy agreement provided 3 2 contractor shall provide consultant registrable fixed floating charge asset contractor security payment consultancy fee 3 3 event contractor fails pay consultancy fee consultant reason within 14 day receipt contractor contractor default hereunder outstanding fee together interest 10 per annum thereon forthwith become due owing consultant 10 clause 7 6 consultancy agreement provided event termination reason contractor continue make fee payment set item 4 schedule 1 11 party fell dispute time early 2007 sci mr mertes allege march 2007 mr lynch broke premise business priority conducted without authority removed large number item equipment property property priority sci thereafter ceased make payment amplitude pursuant consultancy agreement 12 20 june 2007 amplitude solicitor purported terminate share acquisition agreement non payment consideration thereunder priority took position action mr lynch taking equipment premise priority action amplitude constituted fundamental breach consultancy agreement accepted breach terminated consultancy agreement thereby bringing end say obligation make payment fee provided schedule 4 agreement 13 context dispute constituted evidenced pleading priority statement claim filed 6 july 2007 without notice priority amplitude purported appoint receiver priority resulting application 14 question determination may summarised thus whether serious question tried breach consultancy agreement committed amplitude entitle priority terminate fundamental breach whether serious question tried even priority validly terminated consultancy agreement nevertheless fee payable schedule 4 continues remain payable accrued obligation failure pay priority breach consultancy agreement entitling amplitude exercise right security appoint receiver balance convenience lie whether receiver permitted continue office removed pending determination suit upon undertaking damage security fund plaintiff proffer 15 note although evidence alleged unauthorised entry mr lynch premise priority somewhat abbreviated form nature broad allegation precise particular nevertheless seem substance reason fact 22 april 2007 mr lynch consented without admission order proceeding 2429 07 brought sci would deliver possession premise priority conducting business would also deliver certain item property removed behalf premise 22 april 2007 16 neither amplitude mr lynch put evidence application endeavouring explain justify came mr lynch removed item property priority premise 22 april 2007 mr katekar counsel appears amplitude submits asic record show time mr lynch still director amplitude director entitled think somewhat simplification bearing mind existence share acquisition agreement consultancy agreement fact property priority property mr lynch even still director 17 seems sufficient evidence find serious question tried whether mr lynch 22 april 2007 amounted fundamental breach consultancy agreement amplitude priority 18 second question consequence breach mr sullivan counsel appears receiver manager mr katekar draw attention provision clause 3 3 7 6 consultancy agreement set say even consultancy agreement validly terminated fundamental breach amplitude nevertheless clause make clear fee set paragraph 4 schedule remain payable appointment receiver properly made order secure payment 19 think matter quite simple seems serious question whether provision consultancy agreement dependent upon continuance completion share acquisition agreement must forgotten mr lynch purported terminate share acquisition agreement termination valid course time sole control priority circumstance would need priority service amplitude consultant carry business person going provide service behalf amplitude mr lynch time remained director still sole director priority 20 seems circumstance capable founding argument continued obligation priority consultancy agreement co extensive obligation sci acquire share priority share acquisition agreement foundation consultancy agreement disappears share acquisition agreement terminated consultancy agreement least far operation future concerned may also disappear 21 necessary canvas question transaction complex also argument trial think sufficient purpose say view serious question tried whether assuming termination consultancy agreement valid continuing obligation part priority nevertheless continue pay trail fee amplitude provided consultancy agreement 22 final question balance convenience lie begin noting priority present director mr mertes offer undertaking court ensure payment amplitude claim consultancy agreement paid bank account controlled jointly solicitor party abide outcome proceeding dealt pursuant agreement writing party 23 claim amplitude payment money sum continuing income stream undertaking proffered mr mertes priority ensure money amplitude claim entitled preserved amplitude benefit money pending determination suit neither priority party await determination respective entitlement money due course matter come final hearing 24 evidence filed behalf amplitude retention fund controlled money account pending determination suit produce particular hardship conduct business hand mr mertes given evidence continuation receivership adverse effect ability priority continue business mortgage finder mortgage broker mr mertes given evidence effect seeking new business priority necessary disclose lender accredited fact receivership likely serious impact possibility loan application proceeding 25 seems view fact evidence particular hardship amplitude one hand hand evidence continuation receivership would damage continuing business priority balance convenience lie favour preserving present status quo least damaging method accepting undertaking part plaintiff preserve disputed money controlled money account permitting priority continue business generate income part must remembered payable amplitude amplitude found correct assertion trial 26 reason view balance convenience favour interlocutory order removing receiver manager 27 note regard appointment receiver made priority commenced proceeding amplitude made without prior notice priority charge require amplitude give prior notice appointment receiver however note mean plaintiff discovered amplitude make appointment receiver would stood fair chance success view obtaining interlocutory injunction restraining exercise power applied power exercised proffered undertaking proffered 28 note priority mr mertes prepared offer usual undertaking damage addition undertaking controlled money account referred 29 stand matter tomorrow 2pm enable party bring short minute order reflecting reason judgment 30 cost reserved 31 undertaking given third fourth defendant previously noted extended tomorrow afternoon 4pm ooo last updated 3 august 2007

1002364 [2012] MRTA 1656 (14 June 2012).txt

1002364 2012 mrta 1656 14 june 2012 last updated 25 june 20121002364 2012 mrta 1656 14 june 2012 decision recordapplicant swann communication pty ltdmrt case number 1002364diac reference bcc2009 395804tribunal member lucasdate 14 june 2012place decision melbournedecision tribunal set aside decision approve application substitute decision applicant approved standard business sponsor statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship approve applicant standard business sponsor r 2 59 themigration regulation 1994 regulation applicant applied minister approval standard business sponsor unders 140eof themigration act 1958 act r 2 61 regulation 16 october 2009 delegate decided approve application 11 march 2010 notified applicant decision review right letter dated 11 march 2010 applicant applied tribunal 1 april 2010 review delegate decision tribunal find delegate decision mrt reviewable decision unders 338 9 act r 4 02 4 regulation tribunal find applicant made valid application review unders 347of act relevant lawthe regulation provide approval person business sponsor nomination occupation undertaken australia prospective holder subclass 457 business long stay visa scheme involves three stage person employer seeking approval standard business sponsor approved business sponsor seeking approval nomination occupation individual proposed employed australia anda person applying temporary visa subclass 457 ground visa applicant proposes employed approved business sponsor occupation subject approved business nomination application approval standard business sponsor made r 2 61 regulation regulation 259 regulation prescribes criterion must satisfied minister approve application person approval standard business sponsor criterion must satisfied regardless application approval made regulation 2 59 provides follows criterion approval standard business sponsorfor subsection 140e 1 act criterion must satisfied minister approve application person theapplicant approval standard business sponsor minister satisfied applicant applied approval standard business sponsor accordance process set regulation 2 61 b applicant standard business sponsor ii standard business sponsor application subclause 45 2 part 2 schedule 1 themigration legislation amendment worker protection act 2008 c applicant lawfully operating business whether outside australia applicant lawfully operating business australia traded australia 12 month applicant meet benchmark training australian citizen australian permanent resident specified instrument writing made paragraph e applicant lawfully operating business australia traded australia le 12 month applicant auditable plan meet benchmark specified instrument writing made paragraph f applicant lawfully operating business australia applicant attested writing applicant strong record demonstrated commitment employing local labour ii non discriminatory employment practice g either adverse information known immigration applicant person associated applicant ii reasonable disregard adverse information known immigration applicant person associated applicant h applicant lawfully operating business outside australia lawfully operate business australia applicant seeking approved standard business sponsor relation holder applicant proposed applicant thevisa applicant subclass 457 business long stay visa applicant intends visa holder visa applicant establish assist establishing behalf applicant business operation australia overseas connection ii fulfil assist fulfilling contractual obligation applicant section 140g 2 act provides term approval must kind prescribed regulation regulation 2 63 provides kind term approval standard business sponsor duration approval duration approval may specified period time ending particular date ending occurrence particular event present case delegate satisfied requirement r 2 59 relate training requirement met claim evidencethe tribunal department file relating applicant tribunal also regard material referred delegate decision material available range source including publicly available information concerning applicant applicant represented relation review solicitor also registered migration agent application department applicant provided evidence incorporation australian security investment commission registration company thecorporations act2001

Inspector Clampett v Eveready Plumbing & Maintenance Pty Limited [2005] NSWIRComm 138 (27 April 2005).txt

inspector clampett v eveready plumbing maintenance pty limited 2005 nswircomm 138 27 april 2005 last updated 4 may 2005new south wale industrial relation commissioncitation inspector clampett v eveready plumbing maintenance pty limited 2005 nswircomm 138file number irc 4774hearing date 01 04 2005decision date 27 04 2005parties prosecutorinspector clampettdefendanteveready plumbing maintenance pty limitedjudgment staff jlegal representativesprosecutormr jordan counselsolicitor m f millerworkcover authority nswdefendantms p mcdonald counselsolicitor mr plummermoray agnewcases cited capral aluminium limited v workcover authority new south wale inspector mayo ramsay 2000 49 nswlr 610 99 ir 29corinthian industry sydney pty ltd v workcover authority new south wale inspector wilson 2000 nswircomm 46 2000 99 ir 159fisher v samara industry pty limited 1996 82 ir 384fletcher construction australia limited v workcover authority new south wale inspector fisher 1999 91 ir 66lawrenson diecasting pty ltd v workcover authority new south wale inspector ch ng 1998 90 ir 464morrison v powercoal pty ltd anor 3 2005 nswircomm 61morrison v powercoal pty ltd 2003 nswircomm 416 2003 130 ir 364r v thomson r v houlton 2000 49 nswlr 383sydney county council v coulson 1987 21 ir 477tyler v sydney electricity 1993 47 ir 1warman international limited v workcover authority new south wale 1998 80 ir 326workcover authority nsw inspector ankucic v mcdonald australia ltd 2000 nswircomm 277 2000 95 ir 383workcover authority nsw inspector tyler v abigroup contractor pty ltd 2000 99 ir 196workcover authority nsw v wonar pty ltd unreported industrial court nsw 1214 1990 fisher cj glynn cullen jj 30 june 1992workcover authority new south wale inspector barbosa v newstart 150 pty ltd style wise interior 2002 nswircomm 64 2002 113 ir 78workcover authority new south wale inspector glass v kellogg aust pty ltd 2000 101 ir 261workcover authority new south wale inspector olive v transfield pty limited 2001 nswircomm 295workcover authority new south wale inspector page v walco hoist rental pty limited anor 2 2000 nswircomm 39 2000 99 ir 163workcover authority new south wale inspector penfold v fernz construction material ltd 2 2000 nswircomm 99 2000 100 ir 23legislation cited crime sentencing procedure act 1999occupational health safety act 2000judgment 1 industrial relation commission new south walesin court sessioncoram staff j27 april 2005matter irc 4774 2004inspector clampett v eveready plumbing maintenance pty limitedprosecution 8 2 occupational health safety act 2000judgment 2005 nswircomm 1381 4 december 2002 mr graeme richardson apprentice plumber assisting mr matthew campbell qualified plumber employed eveready plumbing maintenance pty limited defendant repair leaking water pipe residential town house complex 16 hillcrest drive quaker hill new south wale mr richardson defendant direction supervision employed defendant 2 leaking water pipe located excavation dug driveway premise mr richardson using oxyacetylene equipment excavation explosion comprising eruption air dust followed fireball emanating excavation 3 mr richardson sustained burn face back right elbow leg 4 defendant pleaded guilty prosecuted inspector clampett 8 2 theoccupational health safety act2000 act 5 judgment deal penalty imposed upon defendant 6 amended application order prosecutor alleged 4 december 2002 defendant employer failed ensure health safety person defendant employee particular graeme richardson exposed risk arising conduct defendant undertaking defendant place work contrary section 8 2 occupational health safety act 2000 particular 4 december 2002 defendant directed matthew campbell graeme richardson repair leaking water pipe 16 hillcrest drive quaker hill nsw premise matthew campbell plumber employed defendant richardson apprentice plumber defendant direction supervision employed defendant b repair leaking water pipe excavation dug driveway premise excavation excavation approximately 0 8 0 8 metre wide surface depth excavation around 1 2 metre variable beneath surface excavation 1 5 metre width c live service including electricity communication particular gas exposed within excavation within vicinity leaking water pipe service isolated commencing work repair leaking water pipe matthew campbell supervision graeme richardson entered excavation used oxyacetylene equipment cut solder water pipe e richardson using oxyacetylene equipment excavation explosion comprising eruption air dust followed fireball emanating excavation f result explosion graeme richardson sustained burn face back right elbow leg g circumstance defendant failed properly ass risk using oxyacetylene equipment cut solder water pipe excavation ii failed ensure exposed service excavation including communication electricity particular gas properly isolated oxyacetylene equipment used 7 agreed statement fact tendered provided following information 7 4 december 2002 richardson working direct supervision campbell 8 4 december 2002 richardson campbell directed defendant undertake plumbing job 16 hillcrest avenue quaker hill new south wale premise residential townhouse complex job required repair water pipe driveway excavation 9 repair leaking water pipe excavation dug driveway premise excavation another employee defendant prior richardson campbell attending premise excavation approximately 0 8 0 8 metre wide surface depth excavation around 1 2 metre variable beneath surface excavation 1 5 metre width 10 live service including electricity communication particular gas exposed within excavation vicinity leaking water pipe 11 approximately 8 30 4 december 2002 campbell richardson attended premise located excavation covered barricaded driveway premise 12 removed barricade cover assessed job discussed possible risk involved job noted electrical gas water telstra service excavation considered could cut weld water pipe without cutting service located excavation 13 following richardson assessment site campbell completed risk assessment form identify live service excavation potential risk health safety need isolate service within excavation whilst repair work water pipe undertaken risk assessment form completed campbell generic document site specific document include section titled need lock tag today isolate energy source however section completed campbell document also contained general reference fire protection electrical isolation 14 whilst campbell completing risk assessment richardson prepared job site excavated around part water pipe repaired allow better access 15 campbell richardson advised resident premise water would turned whilst fixed pipe turned water prior commencing repair however isolate service commencing work repair leaking water pipe 16 supervision campbell allowed richardson conduct repair water pipe exposed excavation involved carrying oxyacetylene welding 17 richardson entered excavation cut damaged section water pipe campbell prepared replacement section water pipe gave richardson install 18 richardson commenced using oxyacetylene equipment silver solder replacement section water pipe place richardson completed silver soldering section water pipe turned oxyacetylene equipment used mirror check integrity underside silver soldered joint determined needed place silver solder underside pipe richardson reignited oxyacetylene equipment proceeded recommence silver soldering pipe point explosion comprising eruption air dust followed fireball emanating excavation 19 richardson suffered burn face back right elbow leg result explosion following incident richardson assisted campbell excavation placed toddler pool front premise whilst campbell sought assistance 20 noticed campbell following incident flame coming gas line campbell isolated gas line flame ceased 21 richardson stated time flame oxyacetylene equipment pointing away gas pipe considered enough distance pipe work would affect gas pipe 22 workcover notified incident shortly occurred inspector adam clampett attended site day incident issued prohibition notice 146978 improvement notice 255233 upon defendant notice required defendant ass risk associated working excavation around existing service implement maintain control measure isolating service undertaking work notice also required control measure incorporated revised safe work method statement 23 richardson six week work result injury returned work full duty 24 prior incident defendant provided staff occupational health safety handbook documented generic work procedure followed employee whilst document included procedure working excavation welding equipment provide detail safe work method procedure relating safe work isolation working excavation around essential service gas electricity 25 defendant procedure work method statement working excavation place time incident identify risk working vicinity live service including risk electrocution shock electricity risk explosion asphyxiation gas risk flooding water risk assessment carried campbell identify potential risk 26 prior incident campbell received confined space training 27 following incident defendant revised sic safe work method statement working excavation contain domestic service include requirement isolate service defendant issued notice employee subcontractor relation assessing risk working excavation around existing service notice included requirement service exist excavation area must isolated 28 following incident defendant also revised manner treated work excavation excavation person head stage surrounding surface treated confined space person appropriately trained confined space allowed undertake work work also undertaken direct consultation management defendant 29 defendant prior conviction 30 defendant time co operated fully workcover authority 8 following document exhibited agreed statement fact annexure factual inspection report prepared inspector clampett dated 5 december 2002 annexure b seven colour photograph area incident occurred burnt oxyacetylene line burnt glass hammer handle close top pit base excavation mr richardson working showing water pipe service gas line service communication service annexure c eveready plumbing safe work method statement dated 4 december 2002 annexure eveready plumbing maintenance pty ltd occupational health safety handbook annexure e work method statement number 8 eveready plumbing maintenance pty ltd annexure f risk associated working excavation around existing service dated 9 december 2002 eveready plumbing maintenance pty ltd procedure document subsequent incident risk associated working excavation around existing service notice employee subcontractor work method statement number 9 working excavation around existing service eveready plumbing maintenance pty ltd safety folder updated since incident annexure g prior conviction certificate indicating defendant prior conviction 9 defendant tendered affidavit matthew james kelton managing director defendant graeme alfred richardson injured apprentice employed plumber defendant neither witness required cross examination defendant also provided 18 testimonial 10 four director defendant present court 11 affidavit mr kelton addressed following matter defendant established 1983 family company owned operated kelton family apart mr kelton wife mother father director company b defendant general plumbing drainage gas fitting repair maintenance business provides service residential property managed real estate agent stratum building including home unit townhouse complex various manufacturing industry call emergency service 24 hour seven day week basis provided defendant customer c time incident defendant employed six tradesman excluding mr kelton member family employed business training two apprentice present time defendant employ three tradesman training one apprentice upon work booked tradesman allocated work required complete standard eveready plumbing job sheet job sheet stipulates work commence job specific work method statement completed ii written risk assessment job completed iii hazard inspection check list completed check list identifies following high risk task require special consideration 1 working confined space 2 working height 2 metre 3 working excavation 1 metre deep 4 hot work around existing service 5 working excavation working around existing service 6 demolition work around existing service and7 high risk task e defendant policy high risk task identified work must start management eveready notified specific instruction given exception high risk task identified mr kelton contacted appropriate course action safety measure determined implemented f procedure referred development system place time incident documentation referred amended incident g respect incident 4 december 2002 mr kelton stated prior commencement work mr campbell compliance system place mr campbell completed eveready safe work method statement eveready plumbing hazard inspection checklist risk assessment h time incident mr campbell tradesman approximately nine year experience trained confined space work well use oxyacetylene torch task repairing water pipe assigned mr campbell mr richardson part ongoing job training apprentice j time incident defendant developed written safe work method statement specific task performing oxyacetylene work excavation instead relied upon separate work safe procedure hot work contained defendant occupational health safety handbook safe work method statement job k five day incident 9 december 2002 notice employee sub contractor issued amending expanding defendant existing procedure assessing risk associated work excavation around existing service l notice followed release work method statement 9 referred earlier reiterated issue raised notice formalised incorporation procedure occupational health safety policy incident following change made occupational health safety management system procedure change referred ii standard eveready plumbing job sheet amended incorporate detail company standard oh requirement included direction think safety identify eliminate risk hazard iii defendant inspection check list expanded identify gas pipe fire hazard requires service working area isolated check list completed determine area work confined space iv defendant job specific work method statement upgraded include additional item high risk task express question need isolate service e g gas electricity water incorporated confined space checklist assist clear identification confined space confined space high risk task identified company policy requires management contacted commencing work v daily run sheet issued tradesman day week safety first reminder stating job urgent important compromise safety employee eveready plumbing maintenance pty ltd general public h policy cannot complied job must start circumstance n general oh training conducted defendant employee every six month occupational health safety committee average last three financial year defendant spent approximately 13 845 readily identifiable safety related matter expenditure includes training course attendance oh meeting employee training preparation use manual handbook producing compiling oh safety manual safety handbook document hire safety equipment p period defendant spent estimated 4 200 per year capital item significant safety component new safer tool safety equipment fire extinguisher safety harness equipment electrical safety switch personal protection equipment safety clothing q defendant undertakes regular audit ensure compliance oh management system statutory requirement audit conducted every six month r audit conducted mr kelton attends number different job prior tradesman attending completes job specific work method statement risk assessment hazard inspection checklist mr kelton document compared tradesman paperwork ensure safety issue listed correctly addressed similar exercise undertaken mr kelton respect completed job defendant ceased working stratum management company managed accident site reviewed high risk work carried client decided perform certain type work including working roof guttering renewal limited gas work confined space work working height hot work certain situation defendant contributes community organisation legacy carry plumbing repair war widow without including service call charge rate kept minimum u mr kelton expressed sorrow incident involving mr richardson injury suffered striving ensure incident never occurs v incident mr richardson visited hospital mr roslyn kelton advised could contact defendant day night needed anything whatsoever w defendant maintained regular contact mr richardson whilst work x mr richardson returned work approximately six week paid worker compensation payment mr richardson returned pre injury work duty 16 january 2003 defendant made available additional protective clothing 12 mr richardson evidence summarised follows employed defendant full time plumber b several service running le parallel base excavation c yellow plastic gas pipe embedded opposite wall excavation mr richardson ultimately worked 4 december 2002 gas pipe approximately 900 1000 millimetre away mr richardson working oxyacetylene torch gas pipe also raised approximately 200 300 millimetre height working e gas pipe ran across excavation angle 90 pipe submission parties13 mrd jordanof counsel appeared prosecutor commenced submission conceding mitigation available defendant matter 14 counsel submitted due regard must objective seriousness matter emphasising defendant failure properly ass risk isolate gas service 15 submitted risk obviously foreseeable potentially grave consequence could simply avoided 16 mrjordanacknowledged worst category case nevertheless amounted serious offence 17 respect ofs 21a 2 thecrimes sentencing procedure act1999

Gollin & Co Ltd v Karenlee Nominees Pty Ltd [1983] HCA 38; (1983) 153 CLR 455 (13 October 1983).txt

gollin co ltd v karenlee nominee pty ltd 1983 hca 38 1983 153 clr 455 13 october 1983 high court australiagollin co ltd v karenlee nominee pty ltd 1983 hca 38 1983 153 clr 455landlord tenanthigh court australiamason 1 murphy 1 brennan 1 deane 1 dawson 1 jj catchwordslandlord tenant rent review new rent percentage mean sworn valuation obtained party obligation appoint valuer within reasonable time whether time essence failure appoint whether waiver right valuation valuer employed party failure notify appointment whether valuer appointed lease hearing1983 may 17 18 october 13 13 10 1983appeal supreme court victoria decisionoctober 13 court delivered following written judgment appeal relates liability gollin company ltd gollin karenlee nominee pty ltd sheralex nominee pty ltd lessor purchased premise gollin 1972 contract sale provided ten year lease back gollin became tenant premise upon completion sale two year lessor gollin renegotiated lease new lease term eight year 29 september 1974 drawn executed subsequently necessary refer detail provision lease lease relate rent suffices moment say annual rent payable monthly advance 144 000 first three year amount determined rent review procedure le 144 000 remaining five year premise comprised three main section gollin required one activity sub let two p460 2 1976 gollin financial difficulty provisional liquidator appointed scheme arrangement gollin creditor accepted creditor approved supreme court victoria became effective 1 march 1977 time appointment provisional liquidator approval scheme arrangement gollin ceased physically occupy part premise considerable difficulty experienced obtaining retaining sub tenant total rent gollin receiving sub letting totalled substantially le 144 000 lease fixed rent first three year term p460 3 discussion party regarding amount rent paid gollin first three year lease agreement reached 29 september 1977 fourth year term commenced time lessor informed gollin considered appropriate rent last five year 240 000 per year part gollin adopted approach opposed increase rent continued pay rent rate 12 000 per month advance october 1977 rent receipt indorsed without prejudice rental increase due 1 10 1977 november december 1977 receipt indorsed subject rent review thereafter receipt rent contained express qualification p460 4 29 september 1977 discussion correspondence party relating rent one stage gollin threatened disclaim lease alternative rent increase raised particular proposal made behalf lessor party agree rent increase would remain abeyance basis gollin would pay lessor surplus resulting sub letting proposal recorded draft letter dated 1 march 1978 forwarded cover letter 3 march 1978 director lessor gollin solicitor solicitor gollin wrote reply suggestion amendment drafting draft letter thought appropriate first seek client instruction subsequently wrote confirming still seeking instruction proposal apparently instruction never received event gollin failed agree proposed arrangement monthly payment 12 000 continued p461 5 may 1978 gollin received detailed valuation premise jointly prepared request baillieu allard real estate pty ltd richard elli sallmann seward pty ltd valuation baillieu allard valuation like valuation evidence speaking one sense set factual consideration involved valuation process valued premise 29 september 1977 1 550 000 gollin disclose lessor valuation sought obtained lessor first learnt course present proceeding gollin obtained two subsequent valuation one messrs richard elli sallmann seward acting alone elli valuation obtained november 1980 apparently amount 1 270 000 evidence eastwood valuation made new south wale valuer mr h w eastwood obtained august 1981 valued premise 1 4 million first valuation obtained lessor october 1980 question rent review last five year lease raised valuation jepson valuation made messrs peter jepson associate stated prepared rental determination purpose valued premise 29 september 1977 2 million p461 6 april may 1980 discussion party relating proposal gollin pay 150 000 privilege allowed prematurely surrender lease firm offer behalf lessor accept 150 000 accepted gollin within time lessor allowed acceptance 1 july 1980 lessor solicitor wrote gollin solicitor letter referred discussion taken place july november december 1977 asserted agreement reached regarding rental payable gollin last five year lease letter stated lessor considered appropriate rental 240 000 per annum requested advised within seven day name valuer nominated gollin pursuant provision rent review clause 27 october 1980 lessor solicitor wrote gollin solicitor noting gollin still yet appointed valuer pursuant rent review clause advising lessor obtained jepson valuation 2 million letter dated 3 november 1980 gollin solicitor asserted lessor waived right may rent review pursuant lease advised gollin event obtained valuation presumably elli valuation indicated current value property warrant review shortly thereafter lessor invoiced gollin surplus rent basis rent payable reviewed annual rate 200 000 period 29 september 1977 2 december 1980 gollin solicitor wrote solicitor lessor enclosing copy elli valuation letter stated copy valuation forwarded without prejudice basis repeated assertion lessor waived right rent review p462 7 15 december 1980 lessor served notice 222 2 thecompanies act 1961 vict upon gollin respect claimed surplus rent associated charge gollin instituted present proceeding supreme court victoria injunction restraining lessor presenting winding petition lessor part counterclaimed sum representing rent management fee calculated basis annual rental 200 000 per year 29 september 1977 alternative calculated basis annual rental equal 10 per cent mean jepson valuation 2 million elli valuation 1 27 million amendment made lessor became aware baillieu allard valuation alternative counterclaim added rent management fee calculated basis annual rent 10 per cent mean jepson valuation 2 million baillieu allard valuation 1 55 million action heard first instance mark j found implied agreement party annual rent remain 144 000 last five year lease alternatively honour found lessor estopped alleging implied agreement made honour also concluded event jepson valuation upon lessor relied wholly erroneous basis vitiated error ought received result mark j granted injunction restraining lessor presenting winding petition based 222 notice dismissed lessor counterclaim 1982 vicrp 50 1982 vr 493 p462 8 lessor appealed full court supreme court victoria full court lush murphy jenkinson jj upheld appeal dissolved injunction 1983 1 vr 657 honour held evidence implied agreement party representation lessor could found estoppel precluding denying agreement honour also held lessor entitled judgment amount calculated basis annual rental 29 september 1977 177 500 represented 10 per cent mean jepson baillieu allard valuation gollin appeal court judgment order full court p463 9 main provision lease defining liability pay rent contained reddendum clause cl iii vii marred poor drafting obvious error reddendum clause provided demised premise held lessee tenant term eight year 29th day september one thousand nine hundred seventy four yearly rental one hundred forty four thousand dollar 144 000 00 payable equal monthly instalment twelve thousand dollar 12 000 00 first three year term hereby created thereafter yearly rental agreed determined manner provided cl iii vii b hereof paid lessor lessor agent monthly advance first day month said term subject covenant condition stipulation proviso hereinafter appearing reference cl iii vii discloses consisted one paragraph numbered neither b read vii annual rental payable lessee hereunder shall reviewed three month period immediately preceding commencement third year term lease shall annual rental shall agreed party hereto failing agreement lessor lessee prior commencement third year term hereby created amount annual rental paid lessee lessor last five year term hereby created shall determined equivalent ten per centum per annum sic mean two sworn valuation made demised premise one sworn valuation made sworn valuer appointed cost lessor one sworn valuation made sworn valuer appointed cost lessee sworn valuer member commonwealth institute valuer provided however annual rental determined shall le 144 000 00 common ground reference commencement third year term read commencement fourth year term reference commonwealth institute valuer reference australian institute valuer also common ground relevant valuation satisfied requirement sworn valuation sworn valuer member institute p464 10 apart cl iii vii lease contained provision relating amount rent paid last five year term reference 144 000 clause fix amount rent last five year pending default determination equivalent ten per cent mean designated valuation obtained party merely provided minimum amount could result determination see booker industry pty ltd v wilson parking qld pty ltd 1982 hca 53 1982 149 clr 600 pp 606 607 submitted behalf gollin period commencement fourth year term without agreement time reviewed rent determined gollin obligation pay anything account rent construction lease advanced court something commend ground literal interpretation word used little commend ground commercial efficacy common sense involves conclusion intention party derived lease obligation pay rent monthly advance devoid content period involved obtaining valuation ascertaining rent accordance cl iii vii notwithstanding agreement party rent determined last five year term must least equal rent fixed first three year preferable construction lease obligation pay rent monthly advance application circumstance would exist interim period required continued payment monthly instalment advance minimum annual amount 144 000 account rent finally determined p464 11 four distinct ground attack decision full court pressed behalf gollin first submitted full court error overruling learned trial judge finding implied agreement estoppel secondly submitted held lessor delay appointing valuer lost right invoke provision rent review clause thirdly submitted held neither lessor gollin ever effectively appointed valuer purpose clause finally submitted learned trial judge correct holding reliance could properly placed upon jepson valuation full court accepted basis judgment counterclaim shall consider submission turn shall occasion refer two lessor single party lease implied agreement estoppel p465 12 basis implied agreement estoppel must found action lessor failing effectively activate rent review clause two half year time provision become applicable accepting without continued qualification way reference rent review monthly payment 12 000 account rent action viewed context party common awareness number related fact plainly force view provide basis inferring agreement rent would increased finding representation lessor reached agreement effect fact gollin opposed increase rent inconclusive discussion agreed arrangement avoiding invocation rent review clause gollin financial difficulty given consideration repudiating obligation lease gollin ceased use part premise activity gollin outgoings lease consistently significantly exceeded receipt sub letting discussion possible premature surrender lease proceeded basis annual rent payable gollin respect last five year would 144 000 p465 13 fact stood alone would probably little difficulty concluding either agreement inferred party effect rent review clause would applied lessor conduct represented gollin agreed rent would remain unchanged last five year term however stand alone contrary strong body evidence militating conclusion thus 25 october 1977 lessor real estate agent written gollin giving notice monies received property 1 october 1977 shall accepted without prejudice rental increase due 1 october 1977 yet determined notice never countermanded withdrawn letter 13 december 1977 written lessor context discussion proceeding gollin expressly affirmed understanding rent review lease agreed determined manner provided cl iii vii lease draft letter 1 march 1978 set proposal increase rent remain abeyance term accepted gollin expressly record lessor claim annual rent 240 000 proposed period abeyance limited time lessor sic could let vacant part premise baillieu allard valuation obtained gollin may 1978 stated valuer understanding party lease failed agree revised rent connection finalising rent review accordance lease term valuation required perhaps important evidence general manager gollin group company mr foster upon member full court placed particular reliance evidence chief included following believe possibility 1978 1979 limit say second half calendar year 1978 1979 believe time possibility rent could increased pursuant term rent review clause contained lease rent review clause yes passed time communication mr brand always believed get valuation wesubsequently could complied lease honour follow mean would mind explaining well received letter asking u enter agreement first clause referred landlord belief value annual value rental value 240 000 per annum rent review understood landlord need get valuation went forward obtained one 1978 evidence mr foster unchallenged inconsistent agreement party rent review clause invoked representation lessor acted upon gollin agreement made also mentioned lessor finally invoked rent review clause gollin suggest agreement rent remain 144 000 representation agreement either made lessor acted upon gollin p466 14 primary fact relevant issue implied agreement estoppel largely dispute real dispute concerned inference properly drawn fact regard issue case one learned trial judge enjoyed significant advantage seeing hearing witness give evidence member full court entitled required examine evidence conscious force consideration led mark j contrary conclusion first instance consider conclusion member full court evidence support finding either implied agreement estoppel correct attack gollin conclusion must rejected waiver etc p467 15 argument lessor even absence implied agreement estoppel lost right rely rent review clause failure appoint valuer otherwise activate provision within reasonable time 29 september 1977 propounded gollin behalf basis described doctrine waiver acquiescence laches abandonment also argued matter construction lease circumstance existed lessor required appoint valuer purpose cl iii vii within reasonable time commencement fourth year term regard reasonable time performance essence sense failure appoint valuer within time resulted loss right make appointment thereby rely thereafter rent review clause p467 16 clause iii vii term impose obligation upon either lessor gollin appoint valuer obtain valuation provided formula determining rent last five year reference valuation two valuer appointed respectively lessor gollin party doubt implied obligation whatever necessary give efficacy term rent review clause required party included obligation appoint valuer within reasonable time required see e g reid v moreland timber co pty ltd 1946 hca 48 1946 73 clr 1 p 13 follow either party guilty breach obligation cl iii vii failed appoint valuer circumstance party neither given notice requiring appointment otherwise invoked provision clause appointing valuer advising intended appoint one would unattractive construction clause required rent review procedure invoked party still endeavouring reach agreement amount rent may however clear even lessor implied obligation appoint valuer within reasonable time commencement fourth year term neither condition availability procedure cl iii vii essence contract implied obligation performed within reasonable time p468 17 provision cl iii vii cannot treated solely benefit lessor constituted agreed procedure ascertaining rent last five year lease application procedure result minimum rent 144 000 amount would represent determination rent procedure distinct amount nominated default circumstance even lease contained provision expressly requiring gollin lessor respectively appoint valuer activate rent review procedure within specific time performance obligation within particular time could without properly seen either condition applicability cl iii vii essence contract see generally united scientific holding ltd v burnley borough council 1978 ac 904 position even clearer present case express obligation express provision time seen difficult enough imply lease unqualified requirement party appoint valuer obtain valuation otherwise activate rent review procedure within reasonable time commencement fourth year term without agreement reached rent last five year plainly impossible imply provision implied time performance implied obligation essence contract performance implied obligation within implied time condition operation clause contract made provision amount rent paid last five year term follows delay lessor invoking provision cl iii vii appointing valuer circumstance involve breach essential term contract failure comply requirement condition operation cl iii vii involved breach serious question would arisen whether circumstance gollin purported rescind contract consequence breach lessor lost right invoke procedure party agreed applied determine annual rent last five year term p469 18 conclusion provision cl iii vii cannot properly seen solely benefit lessor effectively disposes argument lessor waived right rely provision clause seen clause provided agreed mean ascertaining rent last five year term provision clause capable unilaterally waived one party cf george v roach 1942 hca 22 1942 67 clr 253 even capable waived lessor delay appointing valuer invoking provision clause could circumstance present case properly construed involving either actual imputed election treat matter rent review clause applicable involving actual imputed intention give right rent determined accordance agreed procedure clause see generally craine v colonial mutual fire insurance co ltd 1920 hca 64 1920 28 clr 305 p 326 conduct lessor deprive right rely provision clause reason doctrine acquiescence laches abandonment appointment valuer p469 19 determination rent last five year pursuant formula contained cl iii vii required seen two sworn valuation one valuation required made sworn valuer appointed cost gollin full court held baillieu allard valuation satisfied description required made sworn valuer appointed cost lessor jepson valuation held satisfied description p469 20 requirement valuation made sworn valuer appointed one party carried implication valuer must appointed purpose clause making valuation common ground case valuation notice given party valuer appointed valuation sought valuation completed valuer received party commissioned question arises whether circumstance valuer effectively appointed purpose clause time made valuation lease provides explicit answer question provision contain express reference would constitute effective appointment p470 21 edmund davy l j pointed tradax export v volkswagenwerk g 1970 1 qb 537 p 546 meaning word appoint appointed varies according context used case appointment person fill particular role perform particular task require nothing communication appointor prospective appointee ordinarily case one party contract entitled required appoint third person something consequence contractually binding upon party party case absence contrary provision contract appointment ordinarily effective prospective appointee clothed requisite authority identified person appointed purpose contract communication identity party entitled required appoint party party p470 22 tew v harris 1847 engr 817 1847 11 qb 7 116 er 376 case involving nomination referee contract held lord denman c j coleridge wightman erle jj effective nomination till notice given party reason given erle j conclusion related provision particular contract reason member court confined coleridge j 1847 11 qb p 11 116 er p 378 commented seems effective nomination till notice given party though one party might hearing referee party satisfied referee selected yet meaning agreement must include case know referee otherwise might nominated person one might nominated person valid objection wightman j judgment read 1847 11 qb p 12 116 er p 378 opinion agreement could hardly mean party name without communicating party referee would opportunity appointing new referee case one selected appeared objectionable indeed opportunity knowing appointment taken place lord denman c j said 1847 11 qb p 12 116 er p 378 clearly bind one party respect opposite party something take place authorising one consider made nomination successive edition russell arbitration see e g 20th ed 1982 p 123 tew v harris accepted establishing appointment arbitrator party complete without communication thereof party see also thomas v fredricks 1847 10 qb 775 116 er 294 case involving appointment valuer cox v johnson 1914 14 sr nsw 240 p 250 tradax export v volkswagenwerk g 1970 1 qb pp 544 545 546 lord denning r salmon l j expressed view three thing necessary constitute effective appointment arbitrator clause charter party stated dispute referred arbitration two arbitrator one appointed party word lord denning r 1970 1 qb p 544 first necessary tell side plain tew v harris second necessary tell appointee obvious often start acting third necessary willing act intimated willingness accept appointment p471 23 argued behalf lessor case involving appointment arbitrator distinguishable appointment valuer purpose cl iii vii arbitrator appointed one party contract need co operate arbitrator appointed party party contract entitled involved actual arbitration proceeding distinction however peripheral relevance reasoning underlying proposition absence contrary intention appearing contract definition constitutes effective appointment notice party contract ordinarily element effective exercise right appoint stranger perform function contract reasoning appears extract judgment tew v harris encompasses following four related consideration appointment involves exercise contractual right appoint exists party contract ii purpose appointment action person appointed binding upon party iii party ordinarily entitled object purported appointment comply requirement contract vitiated conflict interest part purported appointee fraud corruption iv opportunity object available party appointee embarks appointed task p472 24 nothing lease present case effect dispensing ordinary requirement notice party element appointment valuer purpose cl iii vii contrary strong reason insisting upon requirement lessor submit party free appoint valuer without notifying party party could left uninformed procedure clause set train coleridge j pointed tew v harris would denied opportunity raising legitimate objection proposed appointee case party intended appoint different valuer risk attempting appoint valuer importantly situation common ground apart case initial appointment miscarries clause intended authorize party appoint one valuer distinct shopping around lowest highest valuation conclusion party could effectively appoint valuer purpose clause without notifying party valuation received would place party situation would ordinarily mean knowing whether valuation produced fact valuation made valuer appointed e valuer first appointed purpose clause p472 25 none valuation present case obtained valuer whose appointment notified party contract consequence failure notify party none valuation made valuer appointed purpose cl iii vii necessary basis operation formula clause exist verdict lessor theircounterclaim must set aside jepson valuation p472 26 conclusion jepson valuation valuation made valuer appointed purpose cl iii vii make unnecessary consider whether full court error failing hold event disregarded reason identifiable error mistake however appear desirable indicate agreement conclusion reached member full court none suggested error mistake jepson valuation nature would mr jepson effectively appointed precluded valuation satisfying requirement cl iii vii conclusion p473 27 follows foregoing lessor entitled give notice purported pursuance provision 222 thecompanies act 1961or present petition winding gollin basis notice order mark j granting injunction restraining presentation winding petition restored hand gollin entitled resist determination rent last five year lease pursuant procedure contained rent review clause fact lessor wrongly maintained entitled rely jepson valuation relevant question cost question whether order specific performance made stage however deprive lessor right rely clause time invoked make inappropriate grant relief way declaration existence right indeed followed argument common ground lessor lost right invoke provision cl iii vii time sought invoke declaration made effect p473 28 appeal upheld judgment order full court supreme court victoria varied restore injunction granted mark j first instance substitute judgment order lessor counterclaim declaration provision cl iii vii lease applicable determine rent payable last five year term gollin lessor respectively obliged obtain valuation complying requirement clause question cost caused u difficulty gollin obtained injunctive relief sought lessor substantial success central issue would seem u appropriate course order cost proceeding mark j appeal court order full court supreme court cost proceeding certificate given court allowed stand court however reserve party liberty apply within fourteen day date hereof order varying order full court cost proceeding p474 order1 appeal allowed 2 order numbered 2 3 judgment full court supreme court victoria set aside lieu thereof order follows 2 order numbered 2 3 made honour mr justice mark 10 september 1981 set aside lieu thereof ordered2 declared provision cl iii vii lease applicable determine rent payable plaintiff period 29 september 1977 29 september 1982 3 declared plaintiff defendant obliged obtain valuation compliance requirement cl iii vii lease 3 order cost proceeding honour mr justice mark court 4 liberty reserved party apply within fourteen day date hereof order varying order full court supreme court victoria cost proceeding full court

1300444 [2014] MRTA 1169 (7 May 2014).txt

1300444 2014 mrta 1169 7 may 2014 last updated 20 may 20141300444 2014 mrta 1169 7 may 2014 decision recordapplicants mr shuo shaoms miao sunmaster michael shaomrt case number 1300444dibp reference clf2012 134734tribunal member alison mercerdate 7 may 2014place decision melbournedecision tribunal affirms decision grant first second named applicant employer nomination residence class bw visa tribunal find jurisdiction respect third named applicant statement decision reasonsapplication reviewthis application review decision delegate minister immigration 31 december 2012 refuse grant visa applicant employer nomination residence class bw visa unders 65of themigration act 1958 act applicant applied visa 29 june 2012 class bw visa contains two subclass 856 employer nomination scheme 857 regional sponsored migration scheme nominated position visa sought subject employer nomination made basis meeting requirement r 5 19 2 themigration regulation 1994 regulation relevant visa subclass subclass 856 criterion visa subclass set inpart 856of schedule 2 regulation include cl 856 213 relevantly requires applicant must meet certain age english language proficiency requirement unless exceptional circumstance apply present case delegate refused grant visa basis first named applicant satisfy cl 856 213 c vocational english exceptional circumstance case reaching conclusion delegate found first named applicant nominated dental technician anzsco 411213 acknowledged limited english delegate noted first named applicant nominating employer dentec ceramic pty ltd submitted adequate english transfer skill junior dental technician perform duty dental lab moreover submitted completed occupational health safety oh training course therefore understood obligation workplace delegate noted claimed first named applicant undertaken training improve english however also noted independent evidence provided verify submission satisfied nominated position required specialised unusual expertise suggest would suitable employee australia evidence provided show local recruitment effort made nominator first named applicant meet cl 856 213 c satisfy cl 856 213 whole could granted subclass 856 visa delegate found second third named applicant wife infant son first named applicant member family unit person held subclass 856 visa evidence met primary criterion right also could granted visa tribunal received review application applicant 9 january 2013 accompanied copy delegate decision authority applicant appointed registered migration agent mr chao liu representative authorised recipient correspondence purpose review matter constituted tribunal member 6 february 2014 17 february 2014 tribunal wrote applicant via agent seek comment issue whether third named applicant made valid application review tribunal noted review application named three applicant department electronic movement record indicated third named applicant outside australia review application made tribunal advised relevant decision refuse subclass 856 visa reviewable 338 2 act decision 347 3 provided review application valid review application migration zone australia time lodgment third named applicant australia time tribunal preliminary view jurisdiction legal power review department decision refuse visa tribunal noted sent earlier letter three applicant acknowledging receipt review application formed review incorrect included third named applicant letter reason given tribunal invited applicant make comment wished issue whether third named applicant validly included review application within 14 day receiving tribunal letter advised response received would considered presiding member would ultimately determine issue validity tribunal received response letter 14 march 2014 tribunal wrote applicant via agent advise material alone unable make favourable decision therefore invited attend hearing 6 may 2014 applicant also invited advise tribunal soon possible could attend provide written submission prior hearing addressing criterion dispute namely whether first named applicant vocational english time visa application whether exceptional circumstance case tribunal received response hearing invitation letter direction presiding member tribunal officer rang applicant agent 5 may 2014 clarify whether applicant intended attend hearing following day agent confirmed forwarded hearing invitation letter applicant unsure whether appointed new agent whether would attend hearing tribunal officer rang first named applicant using mandarin interpreter first named applicant confirmed received hearing invitation letter neither second third named applicant would attending hearing following day applicant agent subsequently telephoned tribunal advise longer acting applicant applicant attend tribunal hearing 6 may 2014 tribunal note first named applicant confirmed aware hearing invitation elected attend hearing circumstance tribunal consider appropriate schedule another hearing considered reasonable determine matter upon available evidence following reason tribunal concluded decision review relation first second named applicant affirmed find jurisdiction relation decision relating third named applicant consideration claim evidencejurisdictional issuesas set letter applicant 17 february 2014 tribunal considered jurisdiction relation third named applicant although department made decision refuse subclass 856 visa third named applicant record indicated third named applicant australia time review application including lodged tribunal 9 january 2013 tribunal find decision refuse subclass 856 visa applicant reviewable decision tribunal 338 2 act section 347 3 act set condition validity review application made pursuant 338 2 one review application valid respect applicant migration zone time lodgment review application tribunal find third named applicant present migration zone australia time lodgment review application thus cannot validly included review application accordingly tribunal find jurisdiction respect third named applicant considers jurisdiction respect second third named applicant therefore turn consider substantive issue respect review application substantive issuesthe remaining issue present case whether first named applicant meet requirement cl 856 213 c requires must meet certain age english language proficiency requirement time application unless exceptional circumstance apply subparagraph ii made certain skilled visa application subparagraph first named applicant time application made valid application class vb class skilled visa cl 856 213 c applicable present case english language requirement met unless exceptional circumstance apply cl 856 213 c ii b requires first named applicant vocational english defined r 1 15b person vocational english achieved international english language testing system ielts score least 5 4 test component test conducted 12 month date visa application processing application alternatively person vocational english person relevant score period minister tribunal review determines reasonably necessary practicable tested using ielts satisfied person proficient standard le ielts standard mentioned first named applicant provided evidence undertaken ielts test achieved result set r 1 15b indeed claim done conceded visa application limited english tribunal find first named applicant vocational english defined r 1 15b consider ground determine practicable necessary first named applicant tested undertaking ielts test accordingly tribunal find order meet cl 856 213 c ii b must satisfied exceptional circumstance case phrase exceptional circumstance defined act regulation department guideline decision maker procedure advice manual 3 pam3 provides follows 18 exceptional circumstances18 1 defining exceptional circumstancesexceptional circumstance defined act regulation delegate must therefore consider term common usage policy exceptional circumstance relate applicant personal circumstance relevant nominated position ordinary unusual special uncommon exceptional circumstance need unique unprecedented rare cannot regularly routinely normally encountered 18 2 assessing exceptional circumstancesthe assessment exceptional circumstance two aspect whether nominated position critical employer operation requires specialised skill applicant suitable candidate despite meeting benchmark requirement age english language ability relevant work experience claim employer may make context nominated position could include nominated position important strategic financial direction business nominated position necessary engage new existing client niche unconventional market business suffer financial hardship business entirely dependent income generated nominated position work duty require specialised unusual skill nominated position differs similar position elsewhere australia within industry claim applicant employer may make context suitability applicant nominated position may include applicant skill qualification particularly suited nominated position applicant skill qualification unusual different skill qualification person occupation similar occupation employer unable find person relevant skill qualification also meet benchmark requirement age english language ability relevant work experience case may exceptional circumstance assessed context age applicant must demonstrate considered suitable nominated appointment despite satisfying benchmark age requirement exceptional circumstance assessed context english language ability applicant must demonstrate able perform function nominated occupation despite satisfying benchmark english language requirement exceptional circumstance relate 3 year work experience requirement applicant employer must able demonstrate applicant able perform function nominated occupation without relevant work experience 18 3 information support applicant claimsgiven assessment relates suitability applicant context nominated position information applicant employer would relevant case employer already provided information may support applicant claim exceptional circumstance part nomination information taken account deciding whether exceptional circumstance exist may case nomination approved exceptional appointment nomination approved normal appointment submission addressing nature nominated position context business would generally required support exceptional circumstance claim additional information sought employer delegate request visa applicant obtain requisite information employer claim made applicant employer must supported appropriate evidence example claim relating employer inability recruit australian citizen permanent resident appropriate skill supported evidence show recruitment effort tribunal note case ofsakhno v minister immigration citizenship 2007 fmca 1492 scarlettfm 6 september 2007 55 federal magistrate court stated policy matter clearly set procedure advice manual 3 department cannot change amend migration regulation set policy document accordance migration regulation wrong regulation must preferred policy document summarised first named applicant agent submitted exceptional circumstance case first named applicant employer view adequate english transfer skill junior dental technician perform duty dental lab completed occupational health safety oh training course therefore understood obligation workplace andhe undertaken training improve english although informal time due full time work commitment organisational structure chart provided department nominating employer indicates senior dental technician permanent resident three dental technician reporting temporary resident including first second named applicant unrelated third party document titled employee profile provided department indicates senior dental technician worked senior ceramicist first named applicant described senior technician worked business 3 year holder subclass 457 temporary visa 10 year experience field reference letter general manager nominating employer dated 20 june 2012 refers first named applicant hard working skilled trustworthy set duty tribunal considered information carefully considers available information fall short establishing number example exceptional circumstance set pam3 paragraph extracted however mindful pam3 binding tribunal relation interpretation phrase otherwise legally defined act regulation particularly one exceptional circumstance potentially broad scope tribunal view exceptional mean unique however considers mean something ordinary competent regard definition contained macquarie dictionary online provides following 1 forming exception unusual instance unusual extraordinary 2 extraordinarily good performance product 3 extraordinarily skilled talented clever tribunal considers evidence provided suggests first named applicant capable skillful appropriately qualified experienced employee nominating employer several year commendable tribunal consider establishes something unusual case take case ordinary reason tribunal find requirement cl 856 213 c ii b met tribunal satisfied first named applicant meet requirement cl 856 213 c therefore cl 856 213 criterion grant visa decision review must affirmed relation consequence tribunal also affirms decision refuse grant subclass 856 visa second named applicant find satisfy secondary visa criterion cl 856 321 member family unit person hold subclass 856 visa evidence meet primary criterion right tribunal find applicant indicated application applying 856 subclass made claim satisfy criterion subclass 857 regional sponsored migration scheme visa noted tribunal find jurisdiction respect third named applicant decisionthe tribunal affirms decision grant first second named applicant employer nomination residence class bw visa tribunal jurisdiction respect third named applicant alison mercermember

1008043 [2010] RRTA 1131 (20 December 2010).txt

1008043 2010 rrta 1131 20 december 2010 last updated 6 january 20111008043 2010 rrta 1131 20 december 2010 decision recordrrt case number 1008043diac reference clf2010 65028country reference zimbabwetribunal member tony caravelladate 20 december 2010place decision perthdecision tribunal remit matter reconsideration direction applicant satisfies 36 2 migration act person australia protection obligation refugee convention statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant protection class xa visa unders 65of themigration act 1958 act applicant claim citizen zimbabwe arrived australia date deleted unders 431 2 themigration act 1958as information would identify applicant may 2006 applied department immigration citizenship protection class xa visa may 2010 delegate decided refuse grant visa august 2010 notified applicant decision review right letter date delegate refused visa application basis applicant person australia protection obligation refugee convention applicant applied tribunal september 2010 review delegate decision tribunal find delegate decision rrt reviewable decision unders 411 1 c act tribunal find applicant made valid application review unders 412of act relevant lawunders 65 1 visa may granted decision maker satisfied prescribed criterion visa satisfied general relevant criterion grant protection visa force visa application lodged although statutory qualification enacted since may also relevant section 36 2 act provides criterion protection visa applicant visa non citizen australia minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention criterion grant protection class xa visa set inpart 866of schedule 2 themigration regulation 1994 definition refugee australia party refugee convention generally speaking protection obligation people refugee defined article 1 convention article 1a 2 relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v miea 1989 169 clr 379 applicant v miea 1997 190 clr 225 miea v guo 1997 191 clr 559 chen shi hai v mima 2000 hca 19 2000 201 clr 293 mima v haji ibrahim 2000 hca 55 2000 204 clr 1 mima v khawar 2002 210 clr 1 mima v respondent s152 2003 2004 222clr1 html class autolink_findacts 222 clr 1