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Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Knauf Plasterboard Pty Ltd [2021] FWC 3645 (24 June 2021).txt

communication electrical electronic energy information postal plumbing allied service union australia v knauf plasterboard pty ltd 2021 fwc 3645 24 june 2021 last updated 24 june 2021 2021 fwc 3645fair work commissiondecisionfair work act 2009s 459 protected actioncommunications electrical electronic energy information postal plumbing allied service union australiavknauf plasterboard pty ltd b2021 460 vice president catanzaritisydney 24 june 2021application extend 30 day period relation b2021 236 1 22 june 2021 communication electrical electronic energy information postal plumbing allied service union australia applicant made application fair work commission commission pursuant tos 459 3 thefair work act 2009 cth act extend 30 day period protected action authorised protected action ballot order pr728561made 13 april 2021 order applies certain employee knauf plasterboard pty ltd respondent 2 ballot result majority relevant employee endorsed proposed form protected industrial action declared 25 may 2021 pursuant 459 1 act 30 day period protected action commenced date declaration result ballot therefore expired midnight 23 june 2021 3 23 june 2021 respondent advised commission via email oppose communication electrical electronic energy information postal plumbing allied service union australia application extend 30 day period protected industrial action accordingly determined matter basis documentation filed 4 addressing 459 3 act application made communication electrical electronic energy information postal plumbing allied service union australia applicant protected action ballot order issued furthermore period specified 459 1 previously extended 5 basis material satisfied relevant requirement 459 act met 30 day extension appropriate 30 day period expired midnight 23 june 2021 extension period operate 23 june 2021 6 order separately issued inpr731019 vice presidentprinted authority commonwealth government printer pr731020

Richani v Andin Pty Ltd & Xenophou No. DCCIV-02-1266 [2003] SADC 181 (23 December 2003).txt

richani v andin pty ltd xenophou dcciv 02 1266 2003 sadc 181 23 december 2003 richani v andin pty ltd xenophou dcciv 02 1266 2003 sadc 181 23 december 2003 last updated 11 january 2004courtdistrict court south australiajudgment honour judge ricehearing15 10 2003 17 10 2003 21 10 2003 22 10 2003 catchword material consideredcontractssecond defendant undertaking development project known botanic apartment east terrace adelaide unable secure finance project hand written agreement plaintiff second defendant whereby second defendant would give plaintiff unit development plaintiff could arrange construction loan fulfilled certain criterion plaintiff nothing introduce second defendant bank construction agreement whether introduction sufficient fact case plaintiff entitled commission held sufficient whether causal connection introduction offer finance eventually accepted held sufficient causal connection despite protracted negotiation whether second defendant entering agreement acting agent eventual development company first defendant held agency proved plaintiff entitled value unit second defendant judgment plaintiff second defendant 200 680 inclusive interest judgment first defendant plaintiff hospital product limited v united state surgical corporation others 1984 hca 64 1984 156 clr 41 codelfa construction proprietary limited v state rail authority new south wale 1982 hca 24 1981 1982 149 clr 337 royal botanic garden domain trust v south sydney city council 2002 hca 5 2002 76 aljr 436 hydra pty ltd v holmes holmes 2002 sasc 14 abram anor v v jennings ltd 2002 sasc 417 kowalski v lochlee pty ltd 2003 sasc 95 moneywood pty ltd v salamon nominee pty ltd 2001 hca 2 2001 177 alr 390 willing another v baker another 1992 58 sasr 357 considered representationplaintiff harry richanicounsel mr p scragg solicitor peter scragg associatesdefendant andin pty ltdrepresented mr xenophou later mr r brookdefendant theodore xenophourepresented mr xenophou later mr r brookdcciv 02 1266judgment 2003 sadc 18123 december 2003 civil richani v andin pty ltd xenophou 2003 sadc 181judge ricecivilintroductionthis action plaintiff defendant upon contract circumstance whereby contract least second defendant theodore xenophou mr xenophou plaintiff harry richani mr richani came existence subject significant dispute mr xenophou undertaken development apartment city adelaide apartment known botanic apartment site behind botanic hotel certain building faced east terrace adelaide mr xenophou referred development 9 east terrace adelaide proposed mr xenophou 93 luxury apartment constructed within eight storey complex mr xenophou purchased site name obtained council building approval however mr xenophou considerable difficulty raising 14 15 million necessary finance project mr richani known mr xenophou number year fact according mr richani denied mr xenophou mr richani generally promoting botanic apartment mr xenophou request one occasion met chance adelaide casino inability mr xenophou obtain necessary finance subject discussion mr richani said mr xenophou said would give mr richani unit new development mr richani able arrange finance development discussion referred detail following meeting mr richani arranged mr xenophou meet representative st george bank mr richani previously obtained finance st george bank much smaller development far evidence discloses mr xenophou previous dealing negotiation st george bank project st george bank new player area lending commercial development state meeting mr richani mr xenophou signed agreement written mr xenophou agreement dated 16th september 1996 reproduced discussed although expressly say confirm agreement mr xenophou mr richani treated purpose pleading trial representing embodying agreement party subject certain condition essence mr richani could arrange st george bank construction loan 14 400 000 mr xenophou would give unit development full final commission fair say evidence mr richani arranged meeting little followed protracted negotiation mr xenophou st george bank proposed builder although point taken st george bank merged advance bank subsidiary bank sa mr xenophou continued negotiation bank sa bank made number offer finance subject certain pre condition pre condition could met others substituted varied although time acceptance certain offer lapsed mr xenophou bank continued negotiation eventually letter dated 15th december 1997 pre condition bank offer finance project met money advanced botanic apartment completed mr richani claim commission pursuant agreement time thought nothing eventuated meeting saw construction commence unsuccessfully approached mr xenophou commission mr xenophou said mr richani entitlement commission plaintiff casethe plaintiff mr richani put case either two way first manner put entered agreement mr xenophou acting agent first defendant andin pty ltd andin whereby plaintiff agreed arrange finance alternatively plaintiff say mr xenophou authority enter agreement concerning finance plaintiff behalf andin mr xenophou breach warranty authority mr richani cannot enforce contract company thereby caused loss claim damage defendant casemr xenophou appeared andin neither defendant represented counsel permitted mr brook solicitor defendant address reply mr xenophou absence time broadly speaking defendant answer claim way first said case put forward basis agency flawed least andin never mentioned discussion casino written agreement mr xenophou never held way representing andin defendant say agreement certain pre condition none proved met defendant say mr richani arrange construction loan agreement void uncertainty frustrated various matter also dealt relationship mr richani mr xenophou meeting 16th september 1996mr richani said evidence known mr xenophou period time visited home regular basis mr richani said mr xenophou asked endeavour sell land agent two property gorge road newton tp28 9 p4 importantly mr xenophou asked attempt sell botanic apartment project going concern difficulty experienced obtaining finance project see p2 p3 offer finance made mr richani come fruition tp29 independently dealing mr xenophou mr richani seeking finance development meeting mr john blunt mr blunt st george bank mr richani said st george bank new bank adelaide wanted finance big development said approach aggressive eager look development mr richani could bring although time frame given dealing clearly 16th september 1996 probably early part 1996 stage long 16th september 1996 casino mr xenophou put proposition mr richani latter expressed way tp31 q proposition proposition could assist way obtain finance introducing perhaps financial institution finance project would pay way commission arranging finance q commission originally talking asked 100 000 plus unit would total going rate finance brokerage bartered sort haggled bit say come cash pay cash willing pay unit freehold accepted asked specifically write way contract come layman contract whatever bring meeting arranged straight discussion casino q initial discussion occurred casino q part casino sitting bar ground floor q result struck bargain would look finance botanic apartment yes following discussion mr richani spoke mr blunt made appointment following monday 16th september mr richani mr xenophou see mr richani said asked mr xenophou bring proof agreement meeting significantly mr richani said tell mr xenophou advance meeting take place monday morning mr richani met mr xenophou hindmarsh square adelaide took mr blunt office st george bank although mr richani certain left meeting stage retrieve various plan specification boot car tp32 mr richani said conclusion meeting asked mr xenophou letter agreement signed witnessed mr blunt tp33 mr blunt called defendant confirmed signature witness document know anything content document mr blunt know whether prepared meeting prior tp97 merely asked witness signature seen text letter number reference st george bank already mentioned mr richani account tell mr xenophou advance going st george bank finance accept mr richani evidence point find mention advance name financial institution want mr xenophou going behind back depriving mr richani fee tp47 8 likelihood mr xenophou prepared agreement mr richani collecting item car doubt available mr blunt witness signature end meeting also accept mr richani evidence meeting lasted considerable time tp32 mr blunt said meeting arranged mr richani lasted two hour mr blunt said general detail loan proposition discussed present meeting messrs richani xenophou blunt plus mr joe jackson mr jackson also st george bank mr blunt acknowledged st george bank entering market keen business competitive lending proposition tp98 doubt find mr richani arranged meeting st george bank find meeting lasted least couple hour mr richani participated discussion concerning funding proposal find practical term mr richani anything although prepared involved nothing substance expected asked mr xenophou tp34 37 essence case mr richani claim entitled fee commission got two party together finance able secured tp37 8 albeit considerable negotiation term pre condition condition term agreement 16th september 1996before moving consideration followed initial meeting mr blunt appropriate time reproduce text written agreement make certain observation already mentioned although document expressed confirm agreement case fought basis embodied contract party signed agreement mr xenophou handwriting letterhead castle building co builder estate developer theodore xenophou principal handwriting follows 16 9 97to harry richani26 liberator driveparalowie 5108this letter confirm agreement theodore xenophou harry richani relation development known 9 east tce adelaide harry richani arrange st george bank construction loan minimum 14 400 000 interest capitalized construction period ruling rate interest approx 10 5 prepared give unit level three 3 free charge harry richani full final commission offer subject offer st george bank coming earlier sic offer baulderstone hornibrook negotiating adelaide bank dresdner bank also subject acceptable term st george bank strict confidentiality acceptable approval must confirmed xenophou solicitor signed xenophou witnessed byh richani john blunt16 9 96 number observation need made first number copy agreement best appears exhibit p9 original produced examination document reveals everything except signature mr richani mr blunt photocopy signature mr richani mr blunt original must document written mr xenophou mr richani absence also photocopied secondly reference first defendant andin pty ltd indeed mention person entity construction loan offered construction loan obviously relation development known 9 east terrace adelaide thirdly mr richani became entitled commission assuming certain condition fulfilled could arrange construction loan particular type meant arrange defined specified much depend upon party intended use word fourthly leaving one side condition construction loan four condition offer st george bank come another offer upon mr xenophou waiting acceptable term st george bank strict confidentiality acceptable approval must confirmed xenophou solicitor last writing entirely clear appears xenophou solicitor solicitor mr xenophou le likely xenophon solicitor firm solicitor mr xenophou son principal four discrete condition apart construction loan also discussed however able observed stage offer finance st george bank came offer finance fact offer finance although provision finance actually came advance bank australia ltd bank sa bank merger term offer st george bank eventually acceptable yet suggestion defendant strict confidentiality observed finally concerning acceptable approval although time mentioned obtaining approval mr xenophou acknowledged seek approval negotiated term acceptable see need legal advice tp225 fifthly mr xenophou mr richani signed personal capacity finally assuming condition loan fulfilled agreement signed mr xenophou recites prepared give unit harry richani word face mr xenophou agreed personal capacity give unit development mr richani plaintiff arrange construction loan although action plaintiff needed relate construction loan specified type nothing said word agreement meant word arrange therefore necessary determine meaning word used party determination must undertaken objective assessment intention hospital product limited v united state surgical corporation others 1984 hca 64 1984 156 clr 41at 62 word arrange capable range meaning context contract could mean formulate proposal finance needed together search lender attendance participation meeting prospective actual lender following correspondence negotiation ensuring pre condition imposed lender fulfilled loan actually secured although list may exhaustive represents range activity could encompassed word arrange word arrange could also embrace sort activity main question whether arrange mean getting borrower lender together construction loan thereby secured proceed upon assumption present purpose loan obtained result introduction construction agreement necessarily involves consideration factual setting made context rely upon oft quoted word mason j stephen wilson jj agreed point codelfa construction proprietary limited v state rail authority new south wale 1982 hca 24 1981 1982 149 clr 337at 352 true rule evidence surrounding circumstance admissible assist interpretation contract language ambiguous susceptible one meaning admissible contradict language contract plain meaning generally speaking fact existing contract made receivable part surrounding circumstance aid construction unless known party although seen fact notorious knowledge presumed difficulty arises respect evidence prior negotiation obviously prior negotiation tend establish objective background fact known party subject matter contract extent tendency admissible far consist statement action party reflective actual intention expectation receivable point statement action reveal term contract party intended hoped make superseded merged contract object parol evidence rule exclude prior oral agreement party inadmissible aid construction though admissible action rectification consequently issue two possible meaning given contractual provision look actual intention aspiration expectation party time contract except far expressed contract objective framework fact within contract came existence party presumed intention setting take account actual intention party good reason investigation matter would time consuming would also unrewarding would tend give much weight factor expense actual language written contract position confirmed majority high court royal botanic garden domain trust v south sydney city council 2002 hca 5 2002 76 aljr 436at 439 para 10 10 incodelfa mason j whose judgment stephen j wilson j agreed referred authority indicated even respect agreement seal appropriate regard internal linguistic consideration consider circumstance reference word question used circumstance discern objective party view particular appreciation commercial purpose contract reardon smith line ltd v yngvar hansen tangen 1976 1 wlr 989at 995 996 1976 3 er 570at 574 presupposes knowledge genesis transaction background context market party operating statement exemplify point made brennan j judgment incodelfa 1982 hca 24 1982 149 clr 337at 401 meaning written contract may illuminated evidence fact writing refers symbol language convey meaning according circumstance used see alsohydra pty ltd v holmes holmes 2002 sasc 14at para 64 65 abram anor v v jennings ltd 2002 sasc 417at para 46 50 andkowalski v lochlee pty ltd 2003 sasc 95at para 40 proceed apply principle understand position parol evidence rule excludes extrinsic evidence antecedent negotiation disregarded negotiation however much gleaned context situation mr xenophou found mid 1996 accept evidence mr richani mr xenophou told mr xenophou trying obtain finance bank nobody adelaide would even look project tp32 already touched upon evidence accept mr xenophou request mr richani tried sell apartment project start going concern financial situation tp29 mr richani put one would finance situation time mr xenophou acknowledged much tp222 3 allied difficulty obtaining finance apartment mr xenophou personally difficult financial situation december 1993 mr xenophou mortgaged land comprised certificate title register book volume 5060 folio 100 land upon apartment development take place plus certain shop faced directly east terrace mortgage security 1 500 000 interest 15 per cent interest repayable 10th june 1995 land mortgaged dallwitz trust pty ltd security made allowance advance see exhibit p1 319 mortgage 7626525 although year later land ct volume 5176 folio 161 shop facing east terrace subject mortgage party time amount 3 721 000 2 756 075 already advance memorandum mortgage 7626525 later mortgage substitution earlier one referred exhibit p1 335 even though little spelled document infer advance first mortgage accumulated interest led increased consideration later mortgage important point find prior agreement september 1996 mr xenophou unsuccessful effort obtain finance project sell going concern agreed desperate get project ground tp169 doubt mr xenophou viewed project tp52 evidence discloses mr xenophou knew mr richani another property developer know financier really someone type work mr xenophou extent mr xenophou said mr richani entitled commission mr richani financier reject evidence view objectively viewed particular circumstance development term arrange meant get borrower lender together construction loan specified type came mr richani became entitled commission introduction bore particular type fruit entitled mr richani agreed fee said mr xenophou behalf reward introduction disproportionate consideration provide make plaintiff case implausible circumstance case nothing implausible arrangement mr xenophou keen personal commercial perspective see development fruition hand unable secure offer finance source prepared give mr richani unit could successfully introduce source would agree provide construction loan obviously mr richani stood gain significantly relatively little effort nonetheless agreement expect mr richani negotiated good deal knowledge knew potential source finance known mr xenophou mr richani dealing st george bank aware desire enter commercial development market competitive term therefore view sufficient mr richani introduced found st george bank mr xenophou course done mr richani entitled commission fee introduction must caused st george bank offer construction loan fulfilled certain criterion introduction cause st george bank offer construction loan already touched upon fact st george bank merged advance bank australia limited bank sa also merged advance bank australia limited seebank merger banksa advance bank act 1996 41 1996 affidavit d5 mr osborne put january 1997 st george bank limited purchased advance bank australia limited also thereby acquired bank south australia practical result merger purpose case bank sa took commercial property lending previously undertaken st george bank seen initial negotiation st george bank construction loan taken bank sa view taken mr richani introduction caused construction loan offered accepted point taken loan came bank sa rather st george bank earlier reason dealt meeting st george bank 16th september 1996 although mr richani arranged meeting little mr richani prepared involved nothing substance asked practical sense nothing advance negotiation participating meeting 16th september 1996 followed quite protracted negotiation mr xenophou st george bank stage negotiation follows 1 st george bank made indicative offer 18th september 1996 offer really basis discussion starting point borrower special purpose vehicle company however facility 8 225 000 10 75 per cent builder providing balance indicative offer acceptable negotiation took place mr xenophou discussion adelaide bank prior involvement mr richani 16th september agreement p26 make reference offer st george bank coming offer baulderstone hornibrook baulderstone negotiating adelaide bank dresdner bank letter dated 24th october 1996 p1 41 adelaide bank said unable continue application 2 25th october 1996 st george bank made another indicative offer 15 153 000 10 75 per cent p1 42 facility divided two part 10 000 000 5 153 000 second part facility supported irrevocable guarantee bank acceptable st george bank 5 153 000 first indicative offer borrower company time andin pty ltd specifically referred indicative offer also many condition particularly relating adequacy proof pre sale contract unit discussion followed 3 19th november 1996 st george bank made first offer loan facility andin pty ltd p8 original p1 58 copy total amount 14 903 000 10 25 per cent divided two facility one 9 603 000 5 300 000 amongst many condition guarantee provided mr martin dallwitz 2 000 000 supported guarantee national bank favour st george bank another condition irrevocable guarantee bank acceptable st george bank 5 300 000 support second part facility drawing guarantee may made cover un budgeted cost run default part builder mr xenophou also required provide guarantee indemnity acceptance borrower offer facility made st george bank within seven day offer lapsed p1 66 find andin pty ltd accepted offer facility acceptance dated 29th november 1996 common seal company applied mr xenophou signed director secretary p1 68 find mr xenophou mr dallwitz signed guarantor acceptance undated p1 67 one would expect two document signed mr xenophou occasion noted borrower acceptance dated 29th november 1996 letter dated 28th november 1996 st george bank confirmed mr xenophou date acceptance offer extended 6 december 1996 p1 69 borrower acceptance appears page 10 offer st george bank dated 19th november exhibit p8 guarantor acceptance page 11 borrower acceptance bear form typed word borrower hereby accepts offer facility set letter dated 19th november 1996 term condition stated therein found andin pty ltd accepted borrower mr xenophou accepted guarantor fact mr xenophou said look like signature document said accept offer referred document refused offer within two day tp83 86 132 144 145 reject evidence mr xenophou denied signature acceptance offer condition purpose attempt avoid personal corporate liability case acceptance offer finance secure finance mentioned offer required fulfilment number pre condition required bank bound provide finance letter dated 13th december 1996 st george bank indicated still original letter offer 19th november 1996 executed party tone text letter however indicates party proceeding basis acceptance offer p1 70 4 memorandum dated 3rd june 1997 mr joe jackson senior manager st george bank wrote mr steve osborne bank sa project memorandum commences paragraph sponsor project theo xenophou solicitor justyn peter called appointment today meet steve osborne writer purpose meeting update bank progress achieving pre settlement condition letter offer dated 19 november 1996 effect hand control file bsa amongst discussion concerning meeting pre condition noted p1 79 mr dallwitz guarantee unable supported national bank guarantee favour st george bank inability andin pty ltd mr dallwitz meet pre condition became subject yet negotiation working 5 letter dated 8th july 1997 bank sa wrote director andin pty ltd making offer facility substitution st george bank offer 19th november 1996 opening paragraph read follows p1 92 result recent discussion bank south australia division advance bank australia limited c n 002 953 335 bank pleased offer facility set facility facility substitution facility offered st george bank limited letter offer dated 19 november 1996 st george letter bank standard facility condition attached letter condition incorporated letter form part agreement result acceptance offer contained letter agreement st george letter referred later p1 102 customer guarantor hereby acknowledge agree st george letter expired customer shall attempt make drawing utilisation st george letter various pre condition still required mr dallwitz provide irrevocable bank guarantee cash amount 2 000 000 pre condition continued problem second part facility amount 5 300 000 supported irrevocable guarantee builder baulderstone drawing respect cost overrun building contract cost default builder work bank guarantee p1 97 see also memorandum 16 7 97 various party bank sa p1 108 document dated 17th july 1997 andin pty ltd accepted offer customer borrower mr xenophou mr dallwitz guarantor bank sa reason unexplained seems copy acceptance p1 109 mr xenophou produced original document marked p19 doubted whether signature mr dallwitz tp178 179 reject evidence whereby express doubt mr xenophou expressed doubt purpose namely endeavour avoid evidential basis mr richani claim 6 touched upon provision irrevocable guarantee 2 000 000 mr dallwitz continued problem bank sa asked consider variation pre condition whereby requirement would deleted favour proposal mr dallwitz would provide 900 000 foundation laid thereby complying development approval timeframe event total facility would reduced 14 903 000 14 003 000 acceptance mr xenophou mr dallwitz variation p1 112 119 7 letter dated 8th august 1997 bank sa made another offer facility introductory paragraph read follows result recent discussion bank south australia division advance bank australia limited c n 002 953 335 bank pleased offer facility set facility letter facility substitution facility offered st george bank limited letter offer dated 19 november 1996 st george letter bank letter offer dated 8 july 1997 first bank letter p1 120 offer accepted andin pty ltd mr xenophou 15th august 1997 virtue matter referred preceding paragraph mr dallwitz longer guarantor 8 surprisingly scheme negotiation variation facility variation dated 29th october 1997 also accepted andin pty ltd mr xenophou p1 149 151 9 amongst pre condition guarantee provided builder baulderstone amount 5 300 000 security performance design construction phase 8 storey apartment block 9 east terrace adelaide security provided p1 248 249 mr xenophou seems completely misunderstood pre condition thought said thought baulderstones putting finance amount 5 3 million tp79 82 simply incorrect p1 248 249 10 letter dated 15th december 1997 bank sa notified andin pty ltd pre condition met construction fund available full text letter follows refer bank letter offer dated 8th august 1997 subsequent variation facility dated 29th october 1997 advise pre condition met bank satisfaction construction fund 11 751 000 available drawing cost complete basis line letter offer variation facility facility agreement p1 251 although made clear letter offer facility total amount 14 003 000 rate interest 9 40 per cent common ground apartment built customer borrower andin pty ltd mr xenophou personal capacity guarantor discussioni return question whether introduction caused st george bank bank sa offer construction loan fulfilled certain criterion point taken essential construction loan concerning amount interest rate capitalization interest construction period met assessment evidence met properly understood introduction cause construction loan arranged st george bank clear least two indicative offer subject negotiation indicative offer led offer loan facility 19th november 1996 offer accepted within time acceptable bank pre condition fund made available met pre condition negotiated worked fact offer lapsed determinative matter another offer facility made 8th july 1997 offer accepted 17th july one significant pre condition unable fulfilled related mr dallwitz providing bank guarantee amount 2 000 000 mr dallwitz could however offer 900 000 towards foundation done comply development approval time frame acceptable bank mr xenophou offer worked bank made another offer facility 8th august 1997 also accepted offer although subject yet another variation october 1997 offer pre condition fulfilled hence bank indicated letter 15th december 1997 fund available commence project fact offer made special purpose company affect matter bank rightly assumed regular acceptance offer twist turn difficulty arriving acceptable pre condition condition construction loan mean causal link initial introduction final loan think party effectively purpose loan remained constant total finance required fluctuated little discussion negotiation ongoing genuine attempt side reach agreement continuity initial introduction indicative offer offer facility last acceptable would surprising context development formula acceptable party could struck first attempt mr xenophou able achieve adelaide bank case failed attempt reaching right formula party continued work work pre condition condition eventually negotiation came acceptable formula view initial introduction 16th september 1996 led caused construction loan fulfilling certain stated criterion offered accepted part agreement met case tend depend upon individual fact regard authority particularly moneywood pty ltd v salamon nominee pty ltd 2001 hca 2 2001 177 alr 390 support approach taken remaining condition agreement 16th september 1996as touched upon earlier agreement offer referred agreement subject additional condition stated follows 1 offer finance construction loan st george bank come offer baulderstones negotiating adelaide bank dresdner bank 2 offer construction loan acceptable term st george bank 3 strict confidentiality observed mr richani 4 acceptable approval must confirmed xenophou solicitor first offer st george bank come baulderstone adelaide bank offer adelaide bank proceed application make offer offer st george bank bank sa offer finance second strictly speaking additional condition included sake completeness dealt major part reason term eventually acceptable offered st george bank third concerning strict confidentiality evidence suggest mr richani treated matter anything strict confidentiality find mr richani observed strict confidentiality fourth evidence disclose positive term acceptable approval confirmed mr xenophou solicitor approval must refer loan condition agreement mr richani mr xenophou firm solicitor advising xenophon co principal mr xenophou son mr n xenophon evidence disclose however mr xenophou advised mr j peter represented solicitor see p16 p18 importantly mr xenophou acknowledged evidence sought legal advice perhaps detailed advice acceptability condition knowledge experience work agreed need go solicitor agreeing term actually accepted tp225 sense term approved solicitor election clear condition included safeguard protection therefore solely benefit power waive condition find see willing another v baker another 1992 58 sasr 357 view condition whereby mr richani became entitled full final commission fulfilled remains consider whether unit level 3 mr richani take whether equivalent damage flow judgment unit level 3 damagesthe initial indicative offer 18th september 1996 stipulated borrower special purpose vehicle company detail yet advised although andin pty ltd proposed borrower preliminary negotiation adelaide bank initial discussion st george bank specific fact requirement borrower special purpose vehicle company would seemingly precluded andin pty ltd company incorporated 1991 mr xenophou director holding one two issued share p1 256 264 mr xenophou described andin pty ltd family company got company family tp196 historically andin pty ltd fact become borrower unit apartment registered name andin pty ltd company sold unit various purchaser basis one argument advanced behalf mr xenophou second defendant even enforceable entitlement shown accrued contract frustrated mr xenophou longer ability transfer unit mr richani bank insisted argument go development special purpose company andin pty ltd mr xenophou deprived ability transfer unit thereby contract frustrated whilst correct bank required development undertaken special purpose company way mr xenophou able avoid personal civil liability agreeing bank requirement furthermore acceptance mr xenophou requirement bank could subject mr xenophou civil liability mr xenophou aware possibility requirement noted bank required development undertaken special purpose company although andin nominated adelaide bank potential borrower known mr richani reason suppose st george bank would prepared use company especially seemed want company new unused without adverse financial history nothing discussion mr xenophou mr richani suggest mr xenophou acting agent anyone else fact agreement 16th september 1996 specifically refers personal agreement undertaking reliance upon agency plaintiff made also note time agreement mr xenophou owner site upon development take place sale site andin take place time view taken matter proved mr xenophou way acting agent andin pty ltd agreement 16th september 1996 signed mr xenophou intention wording agreement would personally undertake pay form unit condition fulfilled although deprived ability transfer unit mr richani level pay value unit level third level third floor second floor third level quantification damagesmr xenophou pay damage amount equivalent value unit level 3 calculated time mr richani entitlement accrued time december 1997 pre condition fulfilled bank sa made fund available commence project also clear evidence unit level varied value value proposed sold built different lay out different view different position agreement void uncertainty specific unit nominated purpose proceed basis cheapest unit level basis upon mr xenophou would proceeded tp185 mr xenophou would make election even mr xenophou remains owner unit level 3 would appropriate transfer unit least would expect greater value case december 1997 value cheapest unit upon initial offering 145 000 tp194 view appropriate use value later time interest supreme court scale calculated december 1997 145 000 interest used average period namely 6 4 per cent per annum interest component 55 680 judgment plaintiff second defendant mr xenophou amount 200 680 inclusive interest judgment first defendant andin pty ltd plaintiff hear party question cost

Loevski v Jacobs (Human Rights) [2017] VCAT 362 (14 March 2017).txt

loevski v jacob human right 2017 vcat 362 14 march 2017 last updated 21 march 2017victorian civil administrative tribunalhuman right divisionhuman right listvcat reference h274 2016catchwordswant prosecution abuse process strike dismiss proceeding vcat proper respondent bias necessity applicantyakov loevskifirst respondentanthony jacob acting principal registrar victorian civil administrative tribunalsecond respondentrita torelli acting registrar human right division victorian civil administrative tribunalthird respondentben human right division registry officer victorian civil administrative tribunalwhere heldcounty court victoria melbourne 250 william st melbourne beforevice president judge hampelhearing typehearingdate hearing8 march 2017date order14 march 2017citationloevski v jacob human right 2017 vcat 362orderpursuant tos 60a 1 b thevictorian civil administrative tribunal act 1998 vic vcat removed respondent proceeding pursuant tos 60 1 c thevictorian civil administrative tribunal act 1998 vic anthony jacob acting principal registrar vcat rita torelli acting registrar hrd ben hrd registry officer added respondent proceeding pursuant tos 76of thevictorian civil administrative tribunal act 1998 vic proceeding dismissed honour judge hampelvice presidentappearances applicantno appearancefor respondentms r ellyard counselreasonsintroductionmr yakov loevski applicant proceeding a310 2009 following hearing 15 21 july 2010 proceeding dismissed order senior member megay 26 august 2010 following dismissal proceeding cost order made senior member megay 9 february 2011 17 24 october 2016 mr loevski attended human right registry attempted lodge document seeking order made proceeding a310 2009 set aside registry officer refused accept document letter dated 24 october 2016 addressed principal registrar human right division hrd mr loevski complained conduct registry officer alleged treated rudely would accept document sought file specifically complained mr ben rough manner refused lodge document flinged face chief executive officer vcat responded mr loevski letter 24 october letter dated 7 november 2016 advised vcat authority change set aside decision member advised appeal right contained in 148of thevictorian civil administrative tribunal act 1998 vic vcat act provided contact detail self represented litigant coordinator supreme court far complaint manner treated said also raised concern manner treated member staff visited tribunal william cooper justice centre vcat customer service policy treat enquiry respectful courteous manner although satisfied staff member spat disappointed manner treated apologise response received distress caused incident discussed staff member concerned reminded responsibility assist customer enquiry importance treating member community respect time appreciate taking time bring concern attention tribunal mr loevski lodged application hrd dated 1 december 2016 sought order overturning original decision a310 2009 alleged discriminated ground age disability employment status alleged dishonesty part rita torelli acting registrar hrd team raise claim discrimination theequal opportunity act 2010 vic eo act document dated 6 december 2016 signed mr loevski alleged m torelli meeting 25 november 2016 refused give ben detail also filed file document access request form however apply access document file sought instead appointment ceo document asserted incorrect order made hearing take relating original claim proceeding a310 2009 letter dated 25 december 2016 mr loevski president vcat mr loevski requested president correct offence alleged senior member megay committed respect original proceeding help receive 684 400 payslip refers original proceeding letter dated 3 january 2017 acting president honour judge jenkins advised mr loevski vcat jurisdiction reconsider decision proceeding a310 2009 declined address allegation conduct acting registrar registry staff subject proceeding lodged vcat letter dated 6 january 2017 addressed acting president mr loevski complained m torelli refused give ben detail alleged m torelli organised criminal group intention receive income frightening client hooligan method ben spittled face despite knowing holocaust survivor 86 year old professor legislation 13 january 2016 officer vcat contacted mr loevski telephone offered opportunity participate mediation conducted person independent vcat place vcat building declined offer 7 february 2017 deputy president nihill made following procedural order chamber proceeding listed 1 day hearing commencing 10 00am 8 march 2017 county court victoria 250 william st melbourne vic 3000 time applicant shall produce evidence intends rely prove claim evidence may include evidence given applicant witness document applicant presented evidence intends rely respondent may one following present evidence request adjournment suitable period time order prepare defence application make application undersection 75of thevictorian civil administrative tribunal act 1998 act application dismissed struck seek adjournment order make application section 75 1 act state tribunal may make order summarily dismissing striking part proceeding opinion frivolous vexatious misconceived lacking substance otherwise abuse process order named vcat respondent complaint concerned conduct acting registrar registry staff hrd matter referred vice president vcat place record exercising power vice president vcat last year commence sitting vcat 6 february year occupied chamber sat hearing william cooper justice centre wcjc hrd registry located hearing convened deputy president nihill order recited county court building legal precinct diagonally opposite corner william lonsdale street intersection wcjc vcat named respondent instruction acting principal registrar mr jacob retained victorian government solicitor office vgso act behalf hearing fixed 8 march 2017 also arranged service russian speaking interpreter mr loevski indicated application required one mr loevski present time hearing listed commence m ellyard counsel retained vgso rang mr loevski spoke using service interpreter came hearing room phone speaker using service interpreter presence m ellyard instructing solicitor mr jacob spoke mr loevski told judge hampel vice president vcat hearing room county court 250 william street melbourne lawyer vgso representing vcat mr jacob acting principal registrar told present hearing deputy president nihill directed held today asked intending attend hearing said repeated number occasion intention coming believe hearing conducted court said court address asserted address office hired private party said sent letter relation hearing deputy president phillips could show falsified document m ellyard intervened tried ascertain mr loevski referring letter sent vgso acting president judge jenkins letter 3 january 2017 said could come home would show falsified document would come 250 william street believe court told refused come hearing today would proceed absence said intention coming nominated address asserted court address nominated order alleged interested giving advantage vcat said would like know education complained audacity speaking told would proceed hearing absence refused attend said would attend number occasion threatened terminate call eventually last exchange invited m ellyard make submission m ellyard submitted proceed claim dismissed however submitted two preliminary matter resolved could proceed first substitution acting principal registrar two individual named mr loevski application vcat proper respondent secondly consideration whether member vcat could hear matter given complaint concerned conduct vcat official matter resolved submitted could determine whether accede substantive application dismiss proceeding unders 76or 75 vcat act identification proper respondentsms ellyard submitted matter law vcat could respondent proceeding body sue sued intowie v state victoria or vice president judge bowman held vcat creature statute incorporated constituted member group individual collectively responsible naming vcat party simply incorrect action unsustainable law 1 agree honour reasoning although conduct complained conduct alleged engaged vcat staff exercise duty conduct member vcat correct respondent proceeding proper respondent proceeding m ellyard submitted two individual m torelli ben principal registrar vcat mr anthony jacob pointed original application mr loevski identified m torelli ben name party whose conduct complaining also nominated mr nelms principal registrar vcat relevant contact person vcat although would appear mr loevski legal training mr loevski made reference filed material fact professor law legislation russia self represented filed complaint addition also pointed filed material command english poor although able express complaint conduct person employed vcat exercise duty cannot expected define precision expected skilled administrative lawyer trained practising victorian law law cannot party proceeding involving complaint conduct vcat staff execution duty satisfied desirable principal registrar two named party m torelli capacity acting registrar hrd ben capacity hrd registry officer joined respondent proceeding satisfied power make order 60 1 c vcat act m ellyard advised instruction act mr jacob m torelli ben event direct joined respondent consent added party note one matter subject mr loevski complaint m torelli would provide ben personal detail complaint ben concern discharge duty registry officer satisfied sufficiently named identified purpose circumstance consider necessary appropriate include last name section 60a give tribunal power order person cease party tribunal considers person proper necessary party proceeding reason given satisfied vcat proper necessary party proceeding order pursuant 60a 1 b vcat removed respondent proceeding order pursuant 60 1 c anthony jacob acting principal registrar vcat rita torelli acting registrar hrd ben hrd registry officer added respondent proceeding bias necessityalthough vcat removed party mr loevski complaint concern conduct person employed vcat capacity registrar registry official substituted proper respondent give rise next preliminary issue raised m ellyard namely threat perception impartial justice complaint discrimination based conduct person employed vcat heard determined vcat m ellyard submitted raised clear case reasonable apprehension bias test reasonable apprehension bias whether fair minded lay observer might reasonably apprehend lack impartiality respect decision made 2 inisbester high court confirmed question whether reasonable apprehension bias largely factual one necessary consider legal statutory factual context decision made 3 court confirmed correctness two step approach identified inebner v official trustee bankruptcy 4 first step identify said might lead decision maker decide case legal factual merit said decision maker interest litigation nature interest must spelt second step articulate logical connection interest feared deviation course deciding case merit 5 adopt characterisation hayne j inminister immigration multicultural affair v jia legeng essentially fear expressed assertion apprehended bias whatever source deviation true course decision making 6 accept m ellyard submission fair minded lay observer might reasonably apprehend member vcat member vcat even step taken quarantine people subject complaint might reasonably apprehend lack impartiality respect decision concerning conduct officer tribunal member whose service depend order discharge function member however end question well accepted decision maker might otherwise disqualified ground reasonable apprehension bias may determine case person also disqualified available sit 7 rationale described rule necessity provides exception rule disqualification bias prevent failure justice accept m ellyard submission member vcat able hear matter operation doctrine reasonable apprehension bias would failure justice court tribunal jurisdiction entertain complaint eo act unless member vcat able hear determine proceeding neither applicant respondent obtain justice satisfied applying doctrine necessity member vcat must hear matter reasonable step taken vcat list matter member direct contact mr jacob m torelli ben hrd registry period covered complaint contact m torelli ben contact acting principal registrar limited participation two management meeting one rule committee meeting number member vcat administration present discussion matter mr jacob member hrd registry consider circumstance reasonable step taken find presiding member history limited association named respondent whilst satisfied therefore reasonable apprehension bias exists reason identity respondent application satisfied doctrine necessity requires member vcat hear determine matter order avoid failure justice satisfied doctrine necessity permit judicial member vcat limited contact party disclosed hear determine matter application summary dismissal want prosecutionthat brings substantive matter raised m ellyard 76 tribunal may make order summarily dismissing striking part proceeding want prosecution m ellyard submits dismiss proceeding 76 mr loevski aware date fixed hearing adequate notice telephoned morning hearing made clear aware matter listed prepared attend county court time fixed hearing order deputy president nihill described place hearing county court victoria 250 william st melbourne asserted 250 william street court private office county court order recited located 250 william st diagonally opposite wcjc house registry mr loevski attended number occasion late last year filing attempting file document relating attempt litigate complaint subject proceeding a310 2009 county court signage outside 250 william st large prominent building four corner william st lonsdale street intersection prominently signed court case wcjc supreme court wcjc simple address search show 250 william st indeed county court address room mistake mr loevksi accept statement judge vice president vcat asserted letter deputy president phillips falsified even letter existed shown false bear denial existence county court building 250 william street asserted belief judge vice president vcat conducting private hearing private office reliance belief conducting private hearing support refusal come county court building address 250 william st sits odds assertion would show letter came home believed private contractor vice president vcat showing letter home would advance case showing place nominated deputy president nihill order mr loevksi warned number time hearing would proceed absence attend satisfied mr loevski made conscious choice attend explanation advanced justify refusal satisfied therefore basis dismissing striking proceeding want prosecution made although based finding respect want prosecution solely mr loevski conscious refusal attend participate hearing considering whether appropriate order dismissal strike come view dismiss matter satisfied made conscious choice attend material basis refusal fortified view dismissal strike correct order view proceeding misconceived lacking substance prospect success application summary dismissal proceeding misconceived lacking substancealthough therefore strictly necessary consider whether dismiss strike proceeding 75 taken view correct course 76 dismiss set reason come view proceeding misconceived lacking substance section 75 1 term time tribunal may make order summarily dismissing striking part proceeding opinion frivolous vexatious misconceived lacking substance b otherwise abuse process satisfied term order deputy president nihill 7 february 2017 specifically regard paragraph 2 c mr loevski given reasonable notice order may made proper opportunity regard term paragraph 1 order present evidence submission sought rely support claim considering application 75 regard following document order senior member megay 26 august 2010 dismissing complaint proceeding a310 2009 b letter dated 24 october 2016 mr loevski mr nelms principal registrar vcat c handwritten document dated 27 october 2016 mr loevski name headed claim typed document dated 28 october 2016 addressed mr nelms mr loevski headed claim e letter dated 7 november 2016 m negri ceo vcat mr loevski f typed document dated 23 november 2016 mr loevski m torelli g application order vcat human right division application form dated 1 december 2016 signed mr loevski h typed document dated 5 december 2016 mr loevski name addressed matthiew howe manager william cooper justice centre headed claim vcat file document access request form dated 5 december 2016 signed mr loevski seeking meeting ceo j typed document dated 25 december 2016 addressed president vcat signed mr loevski k letter dated 3 january 2017 honour judge jenkins acting president vcat l letter dated 6 january 2017 mr loevski honour judge jenkins acting president vcat vcat file note dated 13 january 2017 detailing telephone call made vcat mr loevski offering opportunity participate mediation n order deputy president nihill dated 7 february 2017 save order senior member megay 26 august 2010 document document filed proceeding filed proceeding file correspondence passing vcat mr loevski relation complaint although reason decision senior member megay 26 august 2010 available search publicly available vcat decision database regard purpose application start reason set short history matter history based material identified mr loevski aggrieved decision senior member megay proceeding a310 2009 wish overturned alleges engaged criminal activity respect decision complains vcat refusal allow apply seek overturn decision specifically vcat refused allow file material support attempt overturn decision alleges registry officer ben refusing allow file document sought file treated rudely spat face demanded mr nelms m torelli sack complained ben wrongly protected complained m torelli refusal provide ben personal detail complains m torelli engaged criminal behaviour using hooligan method intimidate deter seeking redress entitled application order form filed 1 december mr loevski identified relief sought right decision accordance law clearly regard material filed claim overturn decision senior member megay litigate original claim substituted relief belief entitled application form alleges discriminated age employment activity disability dishonesty rita torelli team important understand discrimination prohibited eo act seek frame claim within term eo act act discrimination area activity set part 4 eo act basis attribute listed 6 prohibited discrimination relevantly purpose defined 7 1 direct indirect discrimination basis attribute direct discrimination defined 8 1 treating proposing treat person attribute unfavourably attribute indirect discrimination defined 9 1 imposing proposing impose unreasonable requirement condition practice likely effect disadvantaging person attribute area activity set part 4 employment division 1 employment related area division 2 education division 3 provision good service disposal land division 4 accommodation division 5 club club member division 6 sport division 7 local government division 8 thus seen conduct people engage attribute people may thought subject prohibition discrimination contained eo act assume purpose application vcat could fall within definition provider service relation acceptance claim adjudication although making assumption purpose application basis may open argue making affirmative finding vcat provider service within meaning eo act vcat provider service would obliged reason 44 division 4 part 4 eo act discriminate person refusing provide service term service provided subjecting detriment connection provision service face claim possible area activity could cover mr loevski claim even 44 apply satisfied conduct complains would give rise arguable case discriminated reason age employment activity disability dishonest conduct acting registrar hrd team age employment activity disability defined attribute 6 eo act say eo act prohibits discrimination basis certain attribute including age disability employment activity area activity set part 4 act fourth matter alleged dishonesty m torelli team fall list attribute 6 various document filed vcat proceeding mr loevski refers age 86 fact holocaust survivor identify specific condition suffers could fall within definition disability 4 1 eo act identify treatment account age disability would fall within extended definition discrimination basis attribute 7 2 far employment activity concerned take refer back nature original proceeding senior member megay detailed mr loevski letter president vcat several claim document filed proceeding original proceeding complaint discrimination predecessor eo act respect employment related claim taking highest treat reliance employment activity attribute referring fact mr loevski want litigate original employment related claim aggrieved refusal vcat permit file material attempt two fundamental problem mr loevski claim first vcat jurisdiction review decision thus obligation accept application review decision proceeding a310 2009 could said required provide service accepting application respect claim outside jurisdiction party aggrieved decision vcat avenue redress 148 vcat act party proceeding may seek leave appeal supreme court question law order tribunal proceeding secondly simply nothing material would provide basis finding refusal accept filing application alleged rudeness ben alleged behaviour m torelli basis mr loevski age disability suffers might thought suffers employment activity even allegation m torelli team engaged dishonest conduct refusing attempt file application made could give rise claim discrimination eo act accept 75 power exercised cautiously serious matter deprive litigant chance claim heard ordinary course however satisfied claim obviously hopeless reasonable view succeed misconceived lacking substance appreciate mr loevski attend present evidence submission accordance paragraph 1 order deputy president nihill 7 february 2017 must assiduous draw distinction complaint evidence given support two fundamental problem identified apparent face material identified satisfied therefore proceeding misconceived lacking substance prospect success fortifies view correct order 76 dismissal strike proceeding therefore dismissed honour judge hampelvice president 1 2002 vcat 1395at 13 2 isbester v knox city council 2015 hca 20 2015 255 clr 135at 20 isbester 3 ibid 21 4 2000 hca 63 2000 205 clr 337 5 ibid 345 6 2001 205 clr 507at 181 7 seelaws v australian broadcasting tribunal 1990 hca 31 1990 170 clr 70at 88 see alsometropolitan fire emergency service board v churchill 1998 vsc 51at 147 150

Sky Shine Pty. Limited v Lenjade Pty. Limited [2001] NSWSC 56 (12 February 2001).txt

sky shine pty limited v lenjade pty limited 2001 nswsc 56 12 february 2001 last updated 19 february 2001new south wale supreme courtcitation sky shine pty limited v lenjade pty limited 2001 nswsc 56current jurisdiction equity divisionfile number 1409 01hearing date 12th february 2001judgment date 12 02 2001parties sky shine pty limited plaintifflenjade pty limited defendantjudgment hodgson cjineqlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel mr scheib plaintiffmr sahade defendantsolicitors nicholas g pappa co sydney plaintiffcomino prassas bondi junction defendantcatchwords environmental lawinjunctionslandlord tenantunlawful use land tenant apparent expiry development consent knowledge council council take action requiring development application landlord forcibly retake possession whether injunction granted tenant condition injunction act cited environmental planning assessment act 22 124 125decision see end judgmentjudgment supreme courtof new south walesequity divisioncoram hodgson cj eq monday 12th february 2001no 1409 2001sky shine pty limited v lenjade pty limitedjudgment1 since january 2000 plaintiff sky shine conducted hand car wash cafe business 1010 king george road blakehurst lessee premise 2 end january 2001 defendant lenjade became owner premise night friday 9 february 2001 early morning saturday 10 february 2001 defendant caused lock premise changed excluded plaintiff premise 3 10 february 2001 ex parte injunction granted simos j restoring possession plaintiff preventing defendant taking possession including today 4 heard contested application continue injunction commence brief outline fact 5 14 april 1997 kogarah council granted development consent permitting use premise car wash ancillary confectionary shop condition 29 consent following term duration consent limited period twelve month date endorsement consent regard continued use premise beyond 12 month period require separate approval council 6 19 june 1998 defendant predecessor title simoon pty limited granted lease premise sydney car wash pty limited five year commencing 21 february 1997 number term lease relevant application 7 clause 5 01 b ii provided tax including land tax levied building rate payable lessor certain exception included outgoings reimbursed lessee 8 clause 6 02 c provided lessee shall assign lease subject certain condition including condition prior assignment existing unremedied breach term lease 9 clause 7 04 g provided lessee shall lessee expense comply statute etc affecting premise 10 clause 7 08 dealt development application made council following term 7 08 lessee made development application application relevant council approval use premise accordance lease b application approved 21st march 1997 approved term acceptable lessee lessee may immediately written notice lessor terminate lease excepting existing breach term hereof party obligation termination neither party liable 11 clause 9 01 provided lessee use premise otherwise purpose stated item 5 appendix lease namely hand car wash ancillary use light refreshment room 12 clause 9 02 provided lessee warrant premise suitable purpose lessee 13 clause 10 04 gave lessor right enter premise certain circumstance paragraph b clause stated one circumstance default lessee respect obligation payment rent default continued seven day service notice lessor requiring default remedied 14 19 january 2000 plaintiff purchased business conducted premise sydney car wash pty limited 550 000 lease assigned plaintiff consent simoon consent including consent lessor use premise purpose carrying business hand car wash cafe 15 appears 28 august 2000 plaintiff solicitor mr pappa inspected council file matter discussed one council planning officer effect original consent appears occasion mr pappa told council aware continuing use requirement original consent separate approval necessitate development application 16 appears 31 august 2000 mr pappa advised simoon pty limited e mail kogarah council confirmed current development consent premise relates use car wash ancillary confectionary shop milk bar appears response inquiry whether plaintiff made application council seeking extension renewal development approval 17 appears contract sale premise simoon defendant entered 1 september 2000 18 20 september 2000 mr pappa wrote letter council following term act skyshine pty limited owns operates sydney car wash premise client acquired business took assignment existing lease january year 14 april 1997 council granted development consent development application number 29 97 use premise car wash ancillary confectionary shop milk bar one condition consent consent expressed limited period 12 month date approval subsequently 3 december 1997 council also granted development consent application owner business erection illuminated flash wall sign respect car wash business subject certain condition since business continued trade established part district client informed prior owner necessary step taken extend council consent respect use premise beyond initial 12 month period indeed vendor covenanted client premise may lawfully used car wash purpose letter seek confirmation approved use premise continuing one position please inform immediately arrange client lodge appropriate application council bring matter date regard would grateful could advise whether extension approved use would unlimited duration merely defined period look forward hearing appears council reply letter 19 1 january 2001 simoon made demand upon plaintiff payment land tax 1999 year 7 000 appears plaintiff paid simoon land tax year 2000 appears previous lessee sydney car wash pty limited paid simoon land tax 1999 year 20 sale premise defendant completed 30 31 january 2001 2 february 2001 defendant solicitor wrote letter plaintiff solicitor following term act lenjade pty limited new owner lot 17 18 dp 262240 known 1010 king george road blakehurst understand act current tenant sky shine pty limited advised tenant operating car wash site without council approval therefore breach environrnental planning assessment act nsw also breach lease please advised owner way consent breach law land requires tenant remedy default lease immediately tenant therefore cease desist activity lodge development application default continue seven day lease may put jeopardy result please note nothing herein taken waiving right owner may lease 21 plaintiff solicitor responded letter 5 february 2001 relation allegation plaintiff operating car wash without council approval mr pappa wrote inquiry correspondence kogarah municipal council indicated client operating car wash lawfully full knowledge council regard please refer provision lease client claim client currently breaching operating car wash business 22 defendant solicitor responded letter 5 february 2001 alleging breach clause 7 04 g 23 6 february 2001 kogarah council wrote plaintiff letter following term recent sale abovementioned property review council file revealed current use premise car wash ancillary confectionary shop milk bar isoperating without council approval review council file reveals development consent 29 97 copy attached granted approval 14th april 1997 noted condition 29 consent read follows 29 duration consent limited period twelve month fromthe date endorsement consent regard continued use premise beyond 12 month period require separate approval council council file indicate separate approval granted council continued use premise premise operating without development consent please find attached development application form checklist enable submit application council consideration requested submit application within twenty eight 28 day date shown hereon information regarding matter please contact mr darryll quigley council development health department 9330 9433 business hour 24 plaintiff solicitor responded behalf plaintiff letter dated 8 february 2001 expressing willingness lodge development application asking confirmation whether separate development application required regard previous communication council referred letter 25 stated earlier appears defendant forcibly took possession premise night 9th early morning 10 february 2001 26 10 february 2001 defendant solicitor sent facsimile plaintiff solicitor alleging failure cease carrying car wash business apply council consent purporting terminate lease 27 circumstance mr scheib plaintiff submits serious question tried whether defendant entitled take possession submitted breach waived landlord consent assignment lease plaintiff submitted letter defendant solicitor dated 2 february 2001 notice satisfying either cl 10 04 b lease 129 conveyancing act submitted regard circumstance plaintiff would event entitled relief forfeiture 28 balance convenience mr scheib submitted plaintiff paid 550 000 business employed several people would plainly suffer serious damage excluded premise 29 response contention behalf defendant plaintiff carrying illegal activity permitted continue mr scheib referred 124 environmental planning assessment act discretion given land environment court refuse grant injunction prevent breach planning law discretion given adjourn proceeding permit development application made referred case ofwarringah shire council v sedevcic 1987 10 nswlr 335andacr trading pty ltd v fat sel pty ltd 1987 11 nswlr 67 case court appeal plainly contemplated illegal activity would continued yet grant injunction prevent activity 30 mr scheib submitted council relevant prosecuting authority required activity cease invited submission development application evidence intend bring prosecution submitted circumstance breach could regarded technical one activity carried impermissible one one respect consent period evidence condition approval breached development consent contemplated erection car wash building carried approved council evidence harm community 31 mr sahade defendant submitted grant injunction would condone continuance serious criminal conduct referred 125 environmental planning assessment act pointed conduct question carried fine 1 100 000 plus 110 000 day continued submitted council prosecuting authority prosecution could brought director public prosecution private person submitted 124 environmental planning assessment act invite court grant injunction permit encourage unlawful use land 32 submitted case ofbotany municipal council v tsolkis holland j land environment court 30 november 1988 showed defendant permitted unlawful use continue defendant could subject injunction proceeding taking action done landlord landlord ought according decision 33 mr sahade submitted also failure pay land tax required breach justifying termination lease 34 opinion question possible illegal conduct plaintiff would little doubt injunction granted opinion reason given mr scheib serious question tried opinion question illegal conduct balance convenience much favour plaintiff 35 however force mr sahade submission court anything encourage illegal conduct hand submitted mr scheib 124 environmental planning assessment act contemplate court may permit conduct breach planning law continue least sense declining grant injunction adjourning proceeding permit development application made two case refers case course either taken decided open land environment court relevant principle set declining grant injunction circumstance court plainly leaf defendant subject possibility prosecution effect say illegal conduct defendant acceptable court circumstance simply refuse remedy injunction 36 case put defendant plaintiff asking positive help court grant injunction permitted continue illegal conduct think fair characterisation proceeding defendant indulged forcible self help dispute opinion general policy law encourage dispute resolved negotiation court resolution case genuine dispute matter rather landlord position resorting forcible self help although unlawful landlord 37 plaintiff effect seeking reverse effect forcible self help indulged defendant court determine right party rather matter pre empted forcible action landlord 38 court take stance give rise situation plaintiff able continue conduct material probably unlawful however situation contemplated said 124 two court appeal case referred 39 consideration seems development approval le clear required expiry twelve month could even grant building approval satisfied requirement condition 29 matter taken council middle last year taken council letter sent september last year appears material council time fully aware situation yet apparently middle last year indicated problem september last year even reply letter sent 40 opinion appropriate grant injunction taken saying plaintiff permission continue may unlawful conduct plainly would open council appropriate person apply injunction plaintiff seek prosecute plaintiff heard relevant evidence matter indeed heard enough come final conclusion plaintiff illegal although proceeding basis material seems probable 41 nothing say hearing taken giving permission plaintiff anything unlawful discourage prosecution plaintiff imposition penalty plaintiff 42 think reason appropriate impose condition plaintiff plaintiff cease car wash activity however would impose condition plaintiff submit development application defendant consent within seven day also plaintiff notify defendant written requirement receives council relation premise intention relation requirement within 48 hour receiving requirement 43 would reserve liberty either party apply two day notice case plaintiff defendant consent development application case defendant requirement council plaintiff comply 44 present view cost cost proceeding 45 plaintiff counsel giving court usual undertaking damage continue existing injunction order 46 condition injunction plaintiff pay sum claimed respect 1999 land tax account land tax plaintiff submit defendant consent appropriate development application within seven day plaintiff within 48 hour receiving written requirement council relation premise notify defendant requirement plaintiff intention relation requirement 47 give liberty either party apply two day notice 48 cost application cost proceeding last updated 19 02 2001

Gracey and Registrar of Trade Marks and Unilever Australia Ltd (party joined) [2000] AATA 354 (5 May 2000).txt

gracey registrar trade mark unilever australia ltd party joined 2000 aata 354 5 may 2000 last updated 25 may 2000decision reason decision 2000 aata 354administrative appeal tribunal n1999 545general administrative division nicholas dyne graceyapplicantand registrar trade marksrespondentand unilever australia ltdparty joineddecisiontribunalsenior member allendate5 may 2000placesydneydecisionthe decision review affirmed sgd allen senior membercatchwordstrade mark application review decision applicant failed lodge application priority registration trade mark within time document faxed united kingdom 29th received australia 30th 29th last day application extend time permitted application priority date filing date time australia date time faxed united kingdom trade mark act 1995 ss6 29 and224trade mark regulation 1995 regs 19 21 2 21 28acts interpretation act 1901 cwth scaniainventor v commissioner patent 1981 fca 84 36 alr 101minister immigration ethnic affair v teoh 1995 hca 20 183 clr 273re thermos ltd registrar trade marks17 ald 595reasons decision5 may 2000 senior member allen1 application lodged tribunal 14 april 1999 applicant sought review decision delegate respondent refusing request applicant pursuant tos224of thetrade mark act1995

Scrutiny of Standing Appropriations - Report 14 of 2005 [2005] AUSStaCSBRp 47 (30 November 2005).txt

scrutiny standing appropriation report 14 2005 2005 ausstacsbrp 47 30 november 2005 scrutiny standing appropriationsaccountability standing appropriationsthe standing committee scrutiny bill ass bill set accountability standard focus effect legislation individual right liberty obligation maintaining proper safeguard delegation exercise legislative power seek draw attention senator measure appears infringe upon right liberty appears delegate legislative power inappropriately allow exercised without sufficient parliamentary oversight standing appropriation increasing problem parliamentary accountability hundred act parliament contain standing appropriation often misleadingly called special appropriation provision appropriate money usually indefinite amount indefinite duration often consist simply sentence consolidated revenue fund appropriated necessary purpose act word effect standing appropriation enable entity spend money commonwealth revenue subject meeting legislative criterion significance accountability perspective enacted expenditure involve require regular parliamentary approval therefore escape parliamentary control subject approval standard annual appropriation process number special appropriation amount expenditure involved steadily grown life commonwealth amount 80 commonwealth government expenditure following figure show growth year 1909 10 10 1929 30 38 1949 50 49 1969 70 56 1992 93 74 2002 03 80 2002 03 authorised 223 2 billion expenditure continued grow 12 month since beginning 41stparliament 16 bill standing appropriation introduced list bill attached report financial management special standing appropriation november 2004 australian national audit office found widespread illegality lack accountability control management appropriation half appropriation properly reported department agency annual financial statement 1 audit office concluded many important consideration appropriate accountability including transparency relation parliament report continued 10 given fundamental importance appropriation parliamentary control expenditure change need made secure proper appropriation management commonwealth 11 achieving necessary improvement management special appropriation require greater understanding increased care attention legislative requirement appropriation management practice 2 report subject debate senate 3 one measure may improve transparency accountability management appropriation would parliament considering legislation give greater attention question whether standing appropriation appropriate purpose proposed enacted particular scrutiny given parliament bill containing standing appropriation provision bill normally pas without comment scrutiny proposed standing appropriationsthe executive government empowered spend money accordance appropriation undersection 83of theconstitution use standing appropriation limit accountability scrutiny denying parliament opportunity approve expenditure annual appropriation process appropriation money commonwealth revenue legislative function committee considers allowing executive government spend unspecified amount money indefinite time future provision establish standing appropriation may depending circumstance legislation infringe upon committee term reference relating delegation exercise legislative power committee therefore determined part standard procedure reporting bill draw senator attention presence bill standing appropriation provision 1 iv v term reference require committee report whether bill iv inappropriately delegate legislative power v insufficiently subject exercise legislative power parliamentary scrutiny accordance usual practice committee look explanatory memorandum bill explanation reason standing appropriation circumstance warrant committee also seek responsible minister explanation justifying inclusion provision exclusion appropriation subsequent parliamentary scrutiny renewal ordinary appropriation process follows approach committee took relation theasbestos related claim management commonwealth liability bill 2005 4 remain senate determine whether circumstance particular legislation standing appropriation appropriate purpose proposed open senate amend bill remove provision standing appropriation restrict amount duration depending purpose intended standing appropriation provision removed bill money could appropriated annual appropriation bill subject usual level parliamentary scrutiny involved process brett masondeputy chairbills introduced standing appropriation clause 41st parliamentp appropriation regional telecommunication service bill 2005 2006 clause 13pasbestos related claim management commonwealth liability bill 2005 subclause 8 2 pasbestos related claim management commonwealth liability consequential transitional provision bill 2005 subclause 5 3 p australian technical college flexibility achieving australia skill need bill 2005 clause 23p financial framework legislation amendment bill 2004 schedule 1 item 397 paragraph 124 1 b c item 422 subsection 235 2 also schedule 1 item 58 63 82 86 95 99 114 135 136 145 153 164 169 182 197 205 218 261 293 317 324 370 419 437 448 484 493 crf appropriated virtue ofsection 21of thefinancial management accountability act 1997 phuman service legislation amendment bill 2005 schedule 2 subitem 720 4 indigenous education targeted assistance amendment bill 2004 schedule 1 item 3 subsection 14a 1 p national water commission bill 2004 crf appropriated virtue ofsection 21of thefinancial management accountability act 1997offshore petroleum bill 2005 clause 56p school assistance learning together achievement choice opportunity bill 2004 clause 133p skilling australia workforce bill 2005 clause 40psuperannuation bill 2005 subclause 29 4 psuperannuation consequential amendment bill 2005 schedule 5 item 1 subsection 4aa 5 schedule 6 item 1 subsection 12a 5 ptelecommunications legislation amendment future proofing measure bill 2005 schedule 1 item 1 subsection 158zo 4 158zp 7 158zq 5 schedule 3 item 1 subsection 136c 4 p textile clothing footwear strategic investment program amendment post 2005 scheme bill 2004 schedule 1 item 12 section 37zh subsection 37zj 3 pwater efficiency labelling standard bill 2004 crf appropriated virtue ofsection 21of thefinancial management accountability act 1997other relevant appropriation clausesp auslink national land transport consequential transitional provision bill 2004 schedule 2 item 3 special appropriation clause finite amount finite period time psocial security legislation amendment one payment carers bill 2005 schedule 2 item 1 special appropriation clause finite period time e circumstance arising particular financial year _____________________________pindicates bill passed senate 1 australian national audit office audit report 15 2004 05 performance audit financial management special appropriation 2 ibid p14 3 see senate hansard 29 november 2004 pp 74 76 4 fifth report 2005 pp 96 99

State of New South Wales v Davison (Final) [2019] NSWSC 1140 (30 August 2019).txt

state new south wale v davison final 2019 nswsc 1140 30 august 2019 last updated 4 september 2019supreme courtnew south walescase name state new south wale v davison final medium neutral citation 2019 nswsc 1140hearing date 27 march 10 april 2019date order 18 june 2019decision date 30 august 2019jurisdiction common lawbefore fullerton jdecision extended supervision order imposed 2 year catchword high risk offender final hearing application extended supervision order assessment whether defendant pose unacceptable risk extended supervision order imposedlegislation cited crime act 1900 nsw crime high risk offender act 2006 nsw crime high risk offender amendment act 2017 nsw case cited attorney general state new south wale v tillman 2007 nswsc 605cornwall v attorney general new south wale 2007 nswca 374lynn v state new south wale 2016 nswca 57state new south wale v colquhoun 2018 nswsc 1012state new south wale v conway 2011 nswsc 976state new south wale v fernando 2016 nswsc 1665state new south wale v groom final 2019 nswsc 353state new south wale v simcock final 2016 nswsc 1805state new south wale v dk preliminary 2018 nswsc 1947state new south wale v holscheir 2 2018 nswsc 1921state new south wale v sotheren preliminary 2018 nswsc 754state new south wale v veeran 2015 nswsc 75category principal judgmentparties state new south wale plaintiff kieron davison defendant representation counsel h el hage plaintiff f graham defendant solicitor crown solicitor new south wale plaintiff legal aid nsw defendant file number 2018 293380judgmenther honour summons dated 25 september 2018 state new south wale seek order pursuant toss 5b 5iand9 1 thecrimes high risk offender act 2006 nsw act defendant kieron davison subject extended supervision order eso period two year date order order also sought pursuant tos 11of act directed comply range proposed condition itemised schedule summons duration order preliminary hearing convened 5 december 2018 state sought order defendant subject interim supervision order iso 9 january 2019 date upon supervision parole due expire period 28 day directed comply condition sought respect eso pending final hearing summons plaintiff also sought order pursuant tos 7 4 act appointment two qualified psychiatrist registered psychologist expert conduct separate examination defendant furnish report court result examination order made effective 12 december 2018 seestate new south wale v dk preliminary 2018 nswsc 1947 preliminary hearing defendant accepted counsel m graham met statutory criterion ins 5aand5bof act invoke jurisdiction court act state application iso eso made within period specified ins 5b c and5iof act maintained position final hearing 27 march 2019 successive listing date also acknowledged compliance withs 6 1 act application state made within nine month expiration sentence document identified in 6 3 act filed support summons 18 year age born april 1993 26 year age following conviction serious offence provided in 4 1 serious violence offence defined in 5a 1 act sentenced imprisonment offence index offence laid unders 33 1 thecrimes act 1900 nsw offence wounding intent cause grievous bodily harm conviction defendant sentenced imprisonment 3 year 9 month commencing 10 april 2015 expiring 9 january 2019 non parole period 2 year 6 month expiring 9 october 2017 defendant granted parole effective date defendant conduct course multiple grant parole subject detailed consideration preliminary judgment warrant repetition judgment contrast conduct whilst subject iso imposed december 2018 need considered defendant breached iso three occasion related drug use impact fact question whether eso made condition subject subject detailed submission party filed advance hearing oral submission final hearing 10 april 2019 subject submission filed defendant 24 april 2019 first breach iso defendant arrested charged 8 february 2019 pursuant tos 12of act related methamphetamine use 21 january 2019 26 february 2019 sentenced fixed term one month offence released 7 march 2019 14 march 2019 one week later tested positive methamphetamine 28 march 2019 arrested charged breach iso 9 april 2019 proceeding local court relating offence adjourned 17 april 2019 allow defendant assessed merit program assessment subsequently overtaken defendant returning another positive drug test result 11 april 2019 day proceeding court reserved judgment constituting third breach iso arrest occasion bail refused 30 april 2019 day initially listed judgment subsequently vacated defendant pleaded guilty local court second third breach iso 15 may 2019 sentenced partly concurrent term imprisonment 7 month non parole period 2 month subsequently filed release application refused severity appeal district court dismissed released parole 17 june 2019 18 june 2019 defendant appeared solicitor court made final order extended supervision period 2 year date day follows reason decision condition defendant subject order annexed judgment reason imposition condition also reflected judgment statutory frameworkthe critical question determination state application eso whether court satisfied high degree probability defendant pose unacceptable risk committing another serious offence defined kept supervision provided 5b act legal principle engaged court assessment risk recently summarised hoeben cj cl instate new south wale v holscheir 2 2018 nswsc 1921at 23 24 meaning phrase unacceptable risk case law establishes following 1 word unacceptable mean relevantly far required standard norm expectation etc allowed one requires context parameter unacceptable risk measured seelynn v state new south wale 2016 nswca 57at 50 2 court must find unacceptable risk offender committing serious violence offence kept supervision seelynnat 51 3 act specify precise parameter standard norm determination made determination whether defendant pose unacceptable risk case committing serious violence offence determination whether something unacceptable evaluative task evaluative determination require context determination made seelynnat 51 4 determination whether offender pose unacceptable risk understood context object purpose act 5 statutory object act in 3are considered 1 primary object act provide extended supervision continuing detention high risk sex offender high risk violent offender ensure safety protection community 2 another object act encourage high risk sex offender high risk violent offender undertake rehabilitation 6 section 9 2 act introduced thecrimes high risk offender amendment act2017

Corcoran Coad Real Estate t_as Richardson and Wrench Port Macquarie v State Bank of NSW [1996] NSWSC 264 (10 July 1996).txt

corcoran coad real estate richardson wrench port macquarie v state bank nsw 1996 nswsc 264 10 july 1996 corcoran coad real estate richardson wrench port macquarie v state bank new south wales40178 95 dc39 9410 july 1996the supreme court new south wale court appealclarke ja sheller ja cole jacatchwords occupier liability causationex tempore reserved ex temporeallowed dismissed dismissedjudgmentcole ja mr horton slipped fell suffered injury 8 30a saturday morning 2 january 1994 walking dalhunty arcade run short street horton street port macquarie slipped end arcade near horton street footpath ownership arcade spilt centre line premise left owned occupied respondent right leased occupied appellant finding made trial judge regarding occupation arcade sinclair dcj found overnight unknown person vomited urinated front wall window appellant premise mr corcoran arriving office saturday morning observed instructed employee hose away mess gutter done employee sweeping excess water gutter straw broom nonetheless tiled floor surface remained wet mr corcoran knew wet tiled surface slippery sinclair dcj found slippery characteristic tile wet confirmed expert evidence mr tapner mr horton fell shortly tiled floor hosed saturday morning bank premise closed bank thus unaware incident although established creation mess arcade requiring cleaning fashion occurred unusual occurrence sinclair dcj found verdict mr horton favour appellant dismissed appellant fourth party claim bank dismissal appeal brought honour reason dismissing fourth party claim follows find relatively short time tiled floor hosed plaintiff slipped fell time tile still wet fact come conclusion law defendant negligent failing warn person using busy arcade tile likely wet slippery persuaded bank guilty negligence contributed plaintiff accident accept bank premise owned occupied bank legally owned centre line arcade fact side arcade plaintiff fell part side obstructed advertising boarding outside real estate office bank open time even though soiling area arcade isolated incident danger led plaintiff fall created soiling area person unknown hosing defendant employee soiled area circumstance satisfied point view action hosing real cause plaintiff fall 1 appeal contended substance sinclair dcj applied test contrary tomarch v e h stramare pty limited anor 2 argument mr tapner unchallenged expert evidence established tile used floor surface inappropriate coefficient dynamic friction made clear would become slippery wet end arcade area exposed weather thus bank liable permitting floor covered potentially slippery tile found mr horton fact slipped area owned bank made wet hosing appellant employee respondent bank foreseen exposing person risk tile floor must known tile could become wet variety reason accordingly held liable fourth party claim trial judge apportioned liability appellant respondent opinion argument fails potential danger cause injury damage mr horton trial judge found tile slippery wet liability attach potential risk attache potentiality realised realisation brought floor made wet act making floor wet responsibility appellant fact tile may become wet rain penetrated irrelevant claim rain penetrate create danger mr horton danger created warned appellant hosing tile owned respondent application test decide rendering tile wet without warning created danger causing injury indeed properly said appellant seeking apply test contending use tile potential become slippery wet accident would happened obligation upon court determine said inmarch v stramare 3 deane j matter ordinary common sense experience whether injury mr horton caused act appellant leaving tiled surface wet slippery without warning danger whether caused whole part use tile floor area potential become slippery wet opinion sinclair dcj correct determining former cause purpose attribution fault responsibility 4 follows opinion appeal dismissed cost clarke ja agree wish add short observation another aspect appeal case appellant sought run court based upon report mr tapner tendered evidence case respondent negligent removing slippery tile arcade undefined area said replacing non slip tile grit finish alternatively said strip placed top tile regard location mall floor placed tile throughout self evident respondent able taken step said necessary opinion case negligence made asserting particular flooring removed unless also established party said negligent capacity take necessary action plain case run trial certainly honour refer notwithstanding appropriate deal absence proof element referred counsel appellant submitted honour made finding appellant favour fact honour finding persuaded bank guilty negligence contributed plaintiff action honour went say accept bank premise owned occupied bank legally owned centre line arcade area plaintiff fell counsel submits finding finding justifies inference respondent capacity take necessary step part would regard statement one honour indicating prepared purpose judgment accept fact regard finding regarded finding little material support find appeal book could said support statement counsel appellant trial respondent owns side premise appear express concurrence statement counsel respondent one turn evidence one find establish fact indeed evidence read follows quote q mentioned mr dulhunty owns site building occupying cannot recall mentioning directly mr dulhunty q situation site occupying shop occupies owned mr dulhunty right transit hill pty limited think yes q mr dulhunty principal company yes q site state bank occupies arcade owned state bank far know q property divided middle arcade seen survey understand reciprocal right way something yes 5 would tend suggest contrary statement appellant counsel nonetheless even one accepts present purpose respondent owned section tiled flooring defined evidence agreement outside premise would even prima facie convey circumstance case right respondent take suggested step reiterate tiled area outside respondent premise part uniform large tiled area mall regard evidence given highly unlikely either occupier mall company mentioned transit fuel pty limited would allowed situation develop one tenant occupier could dig portion flooring mall order place flooring surface however unnecessary determine whether could evidence silent question point state evidence respectful opinion open conclude respondent power carry suggested step much le negligent failing carry step reason also would agree order proposed cole ja sheller ja reason given member court agree appeal dismissed cost clarke ja order court appeal dismissed cost application made indemnity cost clarke ja cost payable appellant respondent indemnity basis 5 june 1996 1 appeal book p 225q 226k 2 1991 171 clr 406 3 1991 171 clr 406 4 1991 171 clr 406at 522 per deane j 5 appeal book p 80q

Horsnell v Allworth Constructions [2016] NSWSC 1700 (1 December 2016).txt

horsnell v allworth construction 2016 nswsc 1700 1 december 2016 last updated 19 april 2018supreme courtnew south walescase name horsnell v allworth constructionsmedium neutral citation 2016 nswsc 1700hearing date 1 december 2016decision date 1 december 2016jurisdiction common lawbefore adamson jdecision 1 grant leave plaintiff amend interrogatory 15 16 17 18 notice answer interrogatory ordered 22 june 2016 substituting word stumble word lose footing 2 direct second defendant make answer interrogatory 11 15 16 17 18 notice answer interrogatory ordered 22 june 2016 amended 1 verify answer affidavit served plaintiff 16 december 2016 3 order cost plaintiff notice motion filed 12 august 2016 cost cause 4 grant liberty party restore matter three day notice associate question arises concerning sufficiency answer notice answer interrogatory ordered 22 june 2016 amended catchword practice procedure claim damage arising bodily injury plaintiff injury deprive capacity prove accident happened notice motion seeking order examination deponent ground answer interrogatory insufficient insufficiency demonstrated reference statement deponent obligation deponent answering interrogatory behalf corporate party make enquiry answer best information knowledge belief interest justice favour order second defendant provide answer interrogatory original answer insufficient rather make order examination direction second defendant provide answer interrogatorieslegislation cited civil liability act 2002 nsw 56uniform civil procedure rule 2005 nsw rr 22 1 22 3 22 4 1 22 4 1 b 22 6 1 case cited horsnell tutor horsnell v allworth construction pty ltd 2016 nswsc 844lyell v kennedy 3 1884 27 ch 1texts cited simpson bailey evans discovery interrogatory 1990 2nd ed category procedural rulingsparties kenneth david horsnell tutor david james horsnell plaintiff allworth construction pty limited 1st defendant teswor pty ltd 2nd defendant representation counsel c barry qc j davidson plaintiff r perla 2nd defendant solicitor ac lawyer plaintiff moray agnew 2nd defendant file number 2014 256188judgmentintroductionby notice motion filed 12 august 2016 kenneth horsnell plaintiff tutor david horsnell seek order examination pursuant touniform civil procedure rule 2005 nsw r 22 4 1 b basis application plaintiff contends certain answer interrogatory given behalf teswor pty ltd second defendant insufficient relevant factsin principal proceeding plaintiff claim damage arising accident occurred 2 september 2011 basis following allegation plaintiff employed atlas crane pty ltd delivered frame truss use construction two storeyed dwelling house built allworth construction pty ltd first defendant assistance second defendant performed carpentry work unguarded void measuring 2ms x 1ms first floor stair constructed first defendant site supervisor ian adamson done risk assessment 1 september 2011 identified area fall zone ordered void protection booked installation 7am 5 september 2011 plaintiff came first floor spoke alfred tesoriero ben wormald director second defendant working site time plaintiff fell void floor suffered catastrophic injury including head injury consequence recollection accident happened workcover investigated accident result charge laid second defendant failed ensure premise safe without risk health contrary tos 10 1 theoccupational health safety act 2000 nsw ultimately plea guilty entered plaintiff access sworn statement mr tesoriero mr wormald prepared course workcover investigation statement agreed fact sentence statement mr adamson recollection version given mr tesoriero mr wormald shortly accident happened several particular negligence one particular j permitting plaintiff participate movement frame vicinity void question whether second defendant implicated plaintiff fall presence site void present squarely raised pleading second defendant defence filed 17 june 2015 amended statement claim filed 5 june 2015 specifically alleges 7 injury suffered plaintiff causally connected act omission second defendant pursuant 5d civil liability act mr tesoriero version given workcover investigator 5 march 2012the version accident given mr tesoriero interview conducted workcover 5 march 2012 signed day true accurate record interview relevantly ken arrived approximately 12 clock ken set crane vacant block adjacent lifted 3 pack frame top flooring lifted 3 pack ben started removing cleat nailed along edge frame keep everything together keep sliding ken packed crane standing front job removing cleat ken came approached sign docket signed docket noticed flooring left asked could said yes ben walked frame next stairwell talked going move first frame heavy steel decided going approached frame ben one side end frame close stairwell probably 2 foot away stairwell ben went move frame ken walked stairwell frame corner frame asked could give hand sort moved frame like said happened quick went move frame ken corner asking could give u hand knew lost footing q42 either ben answer asked could lend hand a42 q43 started assist point a43 one moment ben started moving asked could lend hand started moving slightly would couple inch heavy coz steel lost footing fell back stairwell ben rushed aid mr tesoriero affidavit sworn 12 june 2014 sentence hearing workcover prosecutionin affidavit sworn relied sentencing hearing charge brought second defendant inspector robert moore mr tesoriero said 22 2 september 2011 mr horsnell climbed ladder first floor void came u invoice signed horsnell also asked u could take left flooring site 23 refer paragraph 39 soaf statement agreed fact time mr wormald ask mr horsnell assist u work matter moment mr horsnell assisted holding frame mr wormald moving mr horsnell quickly lost footing fell void happened quickly reference 23 mr tesoriero affidavit soaf reference statement fact mr wormald pleaded guilty 40 41 said 40 mr tesoriero mr wormald began moving timber steel frame position time mr horsnell offered commenced assist timber steel frame measured approximately 2 4ms height 4ms length 41 mr horsnell holding frame together mr tesoriero mr wormald mr horsnell lost footing fell unprotected first void impacted concrete slab 2 9ms left side face mr wormald version given workcover investigator 5 march 2012mr wormald also interviewed 5 march 2012 version signed day true accurate record interview follows q34 tell day incident a34 normal day went work usual layed sic floor finished floor 11 30 cleaned lunch ken plaintiff got around 12 set crane lifted first floor wall pack upstairs finished come upstairs talked alf tesoriero getting flooring undid frame pack alf come help move one wall ken finished conversation alf come help wall ken asked give hand went grab wall fallen stairwell mr adamson version given workcover investigator 7 march 2012mr adamson also interviewed workcover 7 march 2012 said relevantly q78 remain site a78 yes ben alf conversation happened explained happened said ken finished job packed crane wrote invoice got crane walked job ladder handed invoice ben alf whilst ladder asked ben alf could cut flooring needed job said yes stayed minute conversation gather must felt obliged start help lift frame pack whilst loosening frame pack ken fell stairwell felt obliged needed help alf given piece flooring said help required insisted mr tesoriero witness statement dated 5 march 2016on 20 october 2015 direction made present proceeding filing defendant lay witness statement evidentiary statement dated 5 march 2016 mr tesoriero said present relevance 36 ben wormald moved towards one frame located near stair void discussed going move heavy recall precise conversation 37 frame side near stair void 38 ben stated move frame ken plaintiff walked stair void frame said word following effect ken give hand 39 ken fell stair void happened fast within matter second 40 ken assisting u time accident second defendant answer interrogatory sworn mr tesoriero 19 july 2016by motion filed 23 november 2015 plaintiff sought leave administer interrogatory leave ultimately granted button j 22 june 2016 horsnell tutor horsnell v allworth construction pty ltd 2016 nswsc 844on ground plaintiff injury prevented knowing occurred immediately fell answer provided defendant present relevance second defendant answered follows 11 interrogatory time immediately prior plaintiff falling void plaintiff engaged alfred tesoriero ben wormald moving timber frame located near void answer second defendant understand meaning word engaged interrogatory immediately prior falling void plaintiff said word following effect give hand best second defendant recollect engaged moving frame second defendant ask plaintiff assist mr wormald see plaintiff attempt assist move frame mr tesoriero 2016 unable recall plaintiff touched frame relevantly second defendant believe plaintiff materially assist movement frame 13 interrogatory answer question 11 negative plaintiff immediately prior falling void answer best second defendant recollection plaintiff walking frame void towards mr tesoriero mr wormald process moving timber frame 15 interrogatory plaintiff stumble fell void answer second defendant know 16 interrogatory caused plaintiff stumble fell void answer see answer 15 17 interrogatory plaintiff stumble backwards void answer see answer 15 18 interrogatory plaintiff step backwards void answer see answer 15 referred present motion filed plaintiff contended certain answer given second defendant insufficient party submissionsmr barry qc appeared mr davidson behalf plaintiff contended answer 11 15 16 17 18 insufficient one examined statement mr tesoriero mr wormald set relied principle obligation person answering interrogatory particularly behalf company make appropriate enquiry regard available relevant material answering ensure answer given best information knowledge belief contended plaintiff entitled admission oath accorded sworn statement made mr tesoriero workcover investigation mr barry submitted second defendant answer insufficient court ought order mr tesoriero examined plaintiff could obtain desired admission could tender case chief also contended could assumed mr tesoriero would give evidence second defendant case realistic expect plaintiff call principal second defendant case mr barry emphasised forensic importance answer relevant identification relevant risk harm thecivil liability act 2002 nsw question whether risk obvious submitted interrogatory 11 18 specifically designed obtain admission would deal issue whether plaintiff fell void walking towards mr tesoriero whether fall caused manner plaintiff mr tesoriero mr wormald attempting move heavy frame one end foot back void circumstance mr wormald mr tesoriero moving end way cause fall void mr perla appeared behalf second defendant submitted second defendant answer interrogatory 11 sufficient interrogatory event defective used word engaged ambiguous contended would appropriate order examination since order would made rarely case warrant additional expense examination submitted matter inconsistency credibility matter germane sufficiency context answer interrogatory relied onlyell v kennedy 3 1884 27 ch 1at 16 course argument raised party might preferable make order pursuant ucpr 22 4 1 namely second defendant required give answer interrogatory 11 15 18 rather order examination pursuant ucpr 22 4 1 b mr barry accepted order would appropriate wish heard making submitted order made would appropriate cost motion cost cause mr perla opposed order ground answer given sufficient apparent insufficiency product ambiguous wording interrogatory rather deficiency answer submitted order made appropriate cost order would plaintiff pay second defendant cost argued plaintiff sought answer rather examination cost hearing might avoided mr perla also submitted second defendant ought cost reflect plaintiff failure obtain order accordance notice motion considerationthe relevant legislative provisionsucpr 22 1 provides interrogatory ucpr 22 3 relevantly provides 2 statement answer interrogatory must deal interrogatory specifically setting interrogatory followed answer b must answer substance interrogatory without evasion c extent manner order requires must verified affidavit ucpr 22 4 1 provides 1 party ordered answer interrogatory rule 22 1 fails answer interrogatory sufficiently within time specified order time specified within 28 day served order court may order party make answer verify answer affidavit b may order party case requires person kind referred rule 35 3 1 attend orally examined ucpr 22 6 1 provides 1 party may tender evidence one answer interrogatory without tendering others b may tender evidence part answer interrogatory without tendering whole answer section 56of thecivil procedure act 2005 nsw provides summary court must seek give effect overriding purpose facilitating quick cheap resolution real issue civil proceeding whether answer sufficientthe relevant principle determining sufficiency answer interrogatory summarised indiscovery interrogatory simpson bailey evans 1990 2nd ed 149 follows answer provide information interrogating party entitled insufficient party must answer personal knowledge obliged answer best knowledge information belief rationale order ensure usefulness interrogation procedure party interrogated must answer three inadams v dickeson full court supreme court victoria referred approval following dictum lord watson inlyell v kennedy 2 personal knowledge according understanding expression notlimited man see taking place deed done event occurring eye extends knowledge derived evidence calculated induce reasonable belief apparent review extract earlier version given statement made mr tesoriero mr wormald answer interrogatory 11 insufficient may state mr tesoriero current belief based current recollection fails take account earlier statement made mr wormald knowledge information available second defendant light material concluded answer reflect address knowledge information belief deponent although said may reflect current belief matter semantics regard forensic importance interrogatory admission particularly case present plaintiff able recollection resource say accident happened answer interrogatory 15 18 though strictly speaking insufficient perplexing light material may uncertainty arose reason use word stumble rather word used mr tesoriero statement lose footing consider practical way dealing apparent conundrum direct second defendant answer interrogatory 15 18 amended form substitute word stumble word lose footing could said plaintiff need prove case sought put behalf since sworn statement mr tesoriero director second defendant admitting accident happened accord plaintiff best case helping second defendant time fell however time making point passed since notwithstanding availability admissible material could tendered plaintiff admission second defendant button j granted leave administer interrogatory order made honour must respected complied furthermore law unsympathetic position plaintiff personal injury case fault cannot ascertain precise mechanism cause injury present case example situation patient anaesthetised undergoing surgery alleged negligently conducted interrogatory enable facilitate obtaining admission proof negligence trial apt overcome initial disadvantage suffered plaintiff cannot reason injury sustained accident subject proceeding give version occurred although question whether wrong done context breach duty care question trial important requirement answer interrogatory sufficient enforced lest defendant permitted take advantage breach would interest justice put plaintiff position resort cobbling together narrative various respect inconsistent version given second defendant seek tender part admission case chief order establish case answer better course insist answer interrogatory sufficient note relevant privilege self incrimination applies case since alleged wrong civil wrong obligation defendant go evidence rely evidentiary statement filed served compliance practice note direction made court rather making order term prayer 1 notice motion consider preferable course order second defendant pursuant ucpr 22 4 1 make answer interrogatory 11 order answer 15 18 word stumble amended say lose footing order incorporate wording mr tesoriero statement course benefit quicker cheaper ordering examination even accepting mr barry assurance examination would last half hour could conducted registrar duty judge order term would also benefit cross examination mr tesoriero would take place first time trial indeed called trial judge relevant tribunal fact coststhe evidence support notice motion reveals plaintiff solicitor wrote second defendant solicitor 28 july 2016 setting apparent inconsistency answer interrogatory 11 statement referred second defendant solicitor answer letter although four month passed motion heard second defendant apparently made forensic choice resist order examination sought without addressing plaintiff solicitor concern sufficiency interrogatory whether could addressed practical way circumstance consider second defendant entitled cost motion consider would order mr perla submitted alternative party pay case may cost motion accept mr barry submission appropriate order cost motion cost cause liberty applyit undesirable inefficient issue present determined different judicial officer issue arises sufficiency answer provided interrogatory party ought liberty apply restore matter dealt context hearing present motion ordersi make following order direction 1 grant leave plaintiff amend interrogatory 15 16 17 18 notice answer interrogatory ordered 22 june 2016 substituting word stumble word lose footing 2 direct second defendant make answer interrogatory 11 15 16 17 18 notice answer interrogatory ordered 22 june 2016 amended 1 verify answer affidavit served plaintiff 16 december 2016 3 order cost plaintiff notice motion filed 12 august 2016 cost cause 4 grant liberty party restore matter three day notice associate question arises concerning sufficiency answer notice answer interrogatory ordered 22 june 2016 amended

Santos Mendonca (Migration) [2020] AATA 3024 (7 May 2020).txt

santos mendonca migration 2020 aata 3024 7 may 2020 last updated 19 august 2020santos mendonca migration 2020 aata 3024 7 may 2020 decision recorddivision migration refugee divisionapplicant m tatiane santos mendoncacase number 1913661home affair reference bcc2018 928708member alan mcmurrandate 7 may 2020place decision sydneydecision tribunal remit application regional employer nomination permanent class rn visa reconsideration direction applicant meet following criterion subclass 187 regional sponsored migration scheme visa cl 187 233 schedule 2 regulation statement made 07 may 2020 2 50pmcatchwordsmigration regional employer nomination permanent class rn visa subclass 187 regional sponsored migration scheme direct entry stream child care worker application submitted incorrect trn departmental request new application case law rectification error application nomination correct trn approved decision review remittedlegislationmigration act 1958 65migration regulation 1994 schedule 2 cl 187 233statement decision reasonsapplication reviewthis application lodged 30 may 2019 review decision made 10 may 2019 delegate minister home affair refuse grant applicant regional employer nomination permanent class rn 187 visa unders 65of themigration act 1958 act applicant citizen federal republic brazil applied visa 27 february 2018 time application class rn contained one subclass subclass 187 regional sponsored migration scheme criterion subclass 187 visa set inpart 187of schedule 2 themigration 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 two alternative visa stream thetemporary residence transitionstream thedirect entrystream present case applicant seeking visa thedirect entrystream work nominated position ofchild care worker backgroundon 10 april 2019 department sent natural justice letter applicant containing information response follows visa application linked entirely unrelated nomination application lodged ymca northern territory ltd azenha de oliveira juliana 22 06 1991 f rid 25609407 therefore even though tatiane nomination rid 1420610430 approved visa application unable assessed therefore visa applicant santos mendonca tatiane 21 12 1987 f option withdrawing visa application lodging new visa application linked correct nomination 10 april 2019 applicant representative responded department follows dear case officer updated system form incorrect answer typing error submit treated incorrect information note information provided support correct nomination however reference number submitted incorrect treated incorrect answer question thank care consideration matter applicant simultaneously lodged form 1023 correct error form explained error thus beginning application incorrect trn provided follows incorrect trn egoh205amqthe correct trn provided correct trn egohf4vas2typing error migration agent note document submitted support correct trn including work experience employment contract reference incorrect information trn assessed mistake intentional staff type wrong trn sic 11 april 2019 representative wrote department request follows hope accept change information applicant 3 year experience withdraw relodge new 187 requirement require 3 year experience changed 18 march 2018 would catastrophic effect applicant life childcare working refused 12 april 2019 representative wrote requesting issue case new 187 law require 3 year experience requirement client working whilst studying reached 1 year post qualification experience could find transitional law nomination lodged change march 2018 lodge visa previous law therefore request use discretion accept incorrect answer form typing error please let know accept request insight provide withdraw relodge predicament 10 may 2019 delegate refused grant visa applicant meet cl 187 233 schedule 2 regulation nomination application linked trn 1 entirely different nominator nominee delegate decision say part main applicant lodged visa application linked nominationapplication entirely different nominator nominee visa applicant santos mendonca tatiane 21 12 1987 f employed nominated enfant de terre pty ltd however nomination application visa application linked show ymca northern territory ltd nominator azenha de oliveira juliana 22 06 1991 f nominee natural justice letter sent visa applicant advising even though hernomination rid 1420610430 approved visa application unable assessed option withdrawing visa application lodging new visa application linked correct nomination however registered migration agent representing visa applicant responded stating provided form incorrect answer typing error submit treated incorrect information treated incorrect answer question circumstance department able simply treat occurrence typing error incorrect answer question application form visa application linked entirely different nominator nominee delegate found possible link visa application another nomination notwithstanding admitted error transcription trn offered solution department accordance policy application lodged indicated agent response longer possible change law authoritiesdepartment policy serf guide law based strict reading regulation effect nowhere regulation stated permissible link one visa application different nomination application lodgement quite logically trn used define nature applicationas lodged accompanying information support applicationas lodged information incorrect application must lodged 2 objective prevent application relying upon specific information used adifferentnominated occupation changed lodgement nominator nominee occupation interchangeable appears clear answer case law question however whether acknowledgedmistakein nominated occupation matter nominee example name misspelled rectified authority say mistake canneverbe rectified new applicationmustbe filed every instance example correction might accepted provided mistake may shown merely typographical inadvertent 3 distinguished application changed lodgement due circumstance e g change heart nomination change factual anomaly distinction changed application cannot corrected applicant mistake might depends upon factual finding contextual circumstance explanation provided tribunal view fact submitted must lead inevitably view nomination occupation intended stated promptly explained corrected logically nomination application processed tribunal view taking approach inconsistent preserving integrity visa program may apply small number case instance lead irreversible outcome tribunal applicationon 5 may 2020 agent asked tribunal deal application priority basis recent submission say part mistake client suffering dearly work childcare granted 187 soon may lose job childcare may eligible job seeker payment tribunal considered available information department home affair 4 tribunal file tribunal agreed give matter priority based information without request response sought applicant considering information available tribunal determined decide review without proceeding hearing 5 applicant represented relation review registered migration agent following reason tribunal concluded matter remitted reconsideration consideration claim evidencethe issue present case twofold firstly whether applicant fact made mistake innocent error secondly whether error corrected application processed based information provided related corrected trn findingsin present circumstance tribunal make following finding fact applicant submitted wrong trn application mistake mistake inadvertent typographical error information submitted application related nominated application occupation ofchild care worker referenced different trn applicant attempted rectify mistake without prevarication lodged immediately form 1023 department accept notification change due mistake capable remedying defect caused typographical error trn nomination related visa application using corrected trn approved department information visa application accepted criterion visa otherwise met tribunal also find information contest error trn genuine mistake typographical appears accepted also department mistake rectified regard competing authority opinion expressed tribunal prefers view may consider examine evidence 6 provided instance explain precisely application nomination occupation intended specified related visa application order determine whether possible correct incorrect answer lodged visa application tribunal view serve overall objective procedural fairness dealing application integrity process threatened applicant representative clearly admitted clerical mistake caused human error well matter decided reading application form lodged clear acknowledged department connection whatsoever nomination applicant another nomination concerning theymca northern territory fact lead inevitably conclusion mistake caused typographical error intended visa application always achild care workeras nominated nominating employer consider application otherwise lead outcome disproportionate applicant term nominated occupation longer available reason human error responsible tribunal note reasoning aligns finding another tribunal member similar fact anticipates consistency decision making process 7 nomination positionclause 187 233 applicable case set full attachment decision essentially requires position application relates subject application approval nomination direct entry stream located regional australia position must one subject declaration made part current visa application addition associated nomination made 1 july 2017 must identify applicant relation position 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 available information reason set tribunal satisfied person employ applicant person made nomination using corrected trn tribunal satisfied department approved nomination subsequently withdrawn tribunal find adverse information known immigration tribunal nominator nominee person associated applicant 5 may 2020 position remains available applicant tribunal find application made 6 month following approval position nominated therefore cl 187 233 met given finding appropriate course remit visa application minister consider remaining criterion visa decisionthe tribunal remit application regional employer nomination permanent class rn visa reconsideration direction applicant meet following criterion subclass 187 regional sponsored migration scheme visa cl 187 233 schedule 2 regulation andalan mcmurranmemberattachment a187 233 1 position application relates position nominated application approval seek meet requirement subparagraph 5 19 4 h ii ii subregulation 5 19 4 force 1 july 2012 aa relation applicant identified application subparagraph 5 19 4 ii b relation declaration mentioned paragraph 1114c 3 schedule 1 made application grant visa 2 person employ applicant person made nomination 3 minister approved nomination 4 nomination subsequently withdrawn 4a either adverse information known immigration person made nomination person associated person b reasonable disregard adverse information known immigration person made nomination person associated person 5 position still available applicant 6 application visa made 6 month minister approved nomination 1 transaction reference number 2 see examplepatel v miac 2011 fca 1220 2011 198 fcr 62 nicholls fm chen v miac 2011 fmca 859 lloyd jonesfm 8 november 2011 3 seepavuluri v mibp 2014 fca 502 mortimerj 4 file bcc2018928708 5 section 360 2 6 see example reasoning obiter mortimer j inpavuluri 7 quach migration 2020 aata750

0808120 [2009] MRTA 750 (27 January 2009).txt

0808120 2009 mrta 750 27 january 2009 last updated 8 may 20090808120 2009 mrta 750 27 january 2009 decision recordreview applicant mr rewand amadvisa applicant mr luqman mustapa ahmedmrt case number 0808120diac reference clf2008 159165tribunal member alan gregorydate 27 january 2009place decision melbournedecision tribunal jurisdiction matter statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant visa applicant sponsored visitor class ul visa unders 65of themigration act 1958 act visa applicant applied department immigration citizenship sponsored visitor class ul visa 16 september 2008 delegate decided refuse grant visa 22 october 2008 notified visa applicant decision review right letter dated 22 october 2008 posted 22 october 2008the review applicant applied tribunal 26 november 2008 review delegate decision question arises case whether tribunal jurisdiction whether depends whether application lodged 26 november 2008 application properly made unders 347of act review delegate decision tribunal formed preliminary view jurisdiction prescribed application fee paid within reasonable period review applicant notified fee waiver application rejected tribunal wrote review applicant 5 december 2008 informing fee waiver request refused requiring pay fee within 14 day request additional time pay fee consider 14 day reasonable period particular circumstance tribunal receive response letterrelevant lawthe tribunal jurisdiction arises application properly made unders 347of act review mrt reviewable decision 348of act section 338of act r 4 02 4 themigration regulation 1994 regulation set various decision mrt reviewable decision decision refuse grant sponsored visitor class ul visa 65 act covered 338 7 section 347 set requirement application review section 347 1 requires application made approved form 347 1 b requires application given tribunal within prescribed period prescribed period set r 4 10 regulation start visa applicant notified decision section 347 1 c requires application accompanied prescribed fee prescribed application fee payable 1 400 r 4 13 1 regulation must paid within prescribed period kirk v mima 1998 87 fcr 99 however r 4 13 4 provides registrar deputy registrar another officer tribunal authorised registrar may determine fee application review paid satisfied payment fee caused likely cause severe financial hardship review applicant review applicant asked tribunal waive prescribed application fee pursuant r 4 13 4 made request within prescribed period application review valid prescribed application fee either waived paid within reasonable time fee waiver request refused braganza v mima 2001 fca 318 2001 109 fcr 364 matter policy tribunal generally regard 14 day reasonable period invite considers request additional time review applicant consider 14 day reasonable particular circumstance finding reasonsthe tribunal department file relating visa applicant tribunal find review applicant seeking review mrt reviewable decision covered 338 7 prescribed fee application 1 400 review applicant asked tribunal waive prescribed application fee 26 november 2008 prescribed period expired authorised tribunal officer decided 5 december 2008 refuse request fee waiver officer satisfied payment fee would cause review applicant severe financial hardship tribunal wrote review applicant 5 december 2008 advising decision asking pay prescribed application fee within reasonable period tribunal advised regarded 14 calendar day reasonable period making last date payment fee 30 december 2008 invited review applicant contact tribunal make arrangement pay fee consider set period reasonable particular circumstance review applicant contact tribunal subsequently payment received prescribed application fee paid waived r 4 13 4 prescribed period expired application review valid application tribunal jurisdiction matter decisionthe tribunal jurisdiction matter alan gregory 27 january 2009member

V97_06750 [1998] RRTA 3977 (21 August 1998).txt

v97 06750 1998 rrta 3977 21 august 1998 refugee review tribunaldecision reason decisionrrt reference v97 06750country reference philippinestribunal member m kerry bolanddate decision 21 august 1998place melbournedecision tribunal affirms decision grant protection visa catchword philippine election vote riggingbackgroundthe applicant citizen philippine arrived australia early 1996 6 march 1996 lodged application protection visa department immigration multicultural affair themigration act 1958 act 22 march 1997 delegate minister immigration multicultural affair refused grant protection visa 21 april 1997 applicant sought review decision issue arises case validity application review tribunal jurisdiction review delegate decision legislationa criterion protection visa time decision minister review tribunal satisfied applicant person australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee s 5 1 and36 2 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 definition considered high court inchan yee kin v miea 1989 hca 62 1989 169 clr 379 applicant anor v miea anor 1997 142 alr 331 354 andmiea v guo anor 1997 144 alr 567 575 6 federal court number case notablyram v miea anor 1995 fca 1333 1995 57 fcr 565 case established following general principle inguo case court observed definition contains four key element first applicant must outside country second applicant must fear persecution inapplicant gummow j 375 referred primary meaning term persecution ordinary usage action persecuting pursuing enmity malignity esp infliction death torture penalty adherence religious belief opinion view repression extirpation every threat harm interference person right convention reason constitutes persecuted mason cj referred persecution requiring serious punishment penalty significant detriment disadvantage chanat 388 harm threat harm part course selective harassment person whether individually member group subjected systematic harassment amount persecution done convention reason appropriate case may include single act oppression serious violation human right measure disregard human dignity 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 reason persecution must found singling one convention reason 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 object convention provide refuge lost thede jureorde factoprotection government unwilling return country nationality follows whenever protection country nationality available ground based well founded fear refusing person concerned need international protection refugee whether applicant satisfies convention definition assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future mere fact person claim fear persecution particular convention reason establish either genuineness asserted fear well founded reason claimed applicant persuade tribunal statutory element made guo caseat 596 claim evidencethe applicant claim set written submission department written submission tribunal oral evidence given tribunal follows applicant male citizen philippine born 1959 travelled australia early 1996 passport issued late 1995 initial application give previous address 1980 onwards manila employment 1987 within tourism industry claim made initial applicationthe applicant claim involved election campaign local suburb may 1995 received death threat incumbent mayor campaigned previous mayor consequence invovlement campaign became target election victor elected mayor gave instruction eliminate political opponent municipality friend named killed mayor aide applicant claim return philippine assassinated mayor military aide bodyguard refusal co operate demonstrated support mayor political opponent claim made tribunala submission attached application review applicant adviser behalf submits evidence applicant harrassed mayor supporter 1992 1996 applicant lived various place time trying evade men hired enemy liquidate submitted distinction must made domicile place abode applicant enemy knew lived aware workforce employer time applicant claimed first time oral evidence tribunal ballot box tampered time may 1995 election applicant colleague found video tape showed ballot box tampered applicant colleague report matter police supporter mayor applicant received threat telephone people would drive along street shooting gun air report incident campaign ombudsman response question tribunal role campaign ombudsman said role receive complaint conduct election decide action take response question tribunal next mayoral election local area said sure every three year know current mayor evidence tribunalinformation independent source confirms local provincial national election philippine typically marked incident violence allegation fraud vote rigging eighty death reported lead 1995 national election alone united state department state country report human right practice 1996 march 1995 europa publication limited far east australasia 1994 london politics often dominated elite traditional ruling family exert tremendous influence entire political leglislative process post maroc state philippine politics democracy aquino regime 1986 1992 contemporary south east asia vol 14 2 september 1992 result line harassment directed person reason political opinion essentially criminal act directed individual part attempt assert personal power may difficult determine finding reasonsthe independent evidence establishes election philippine marked varying degree fraud violence number case killing noted always easy determine motivation harm case however whatever actual motivation satisfied applicant well founded fear persecution accept purpose review applicant may involved mayoral election local area may 1995 way describes accept applicant may received theats following disclosure evidence election result rigged however evidence ever intention carry threat satisfied applicant involvement election led adverse consequence account applicant continuous employment tourism company manila time departure depart philippine early following year despite passport issued late 1995 apparent reason delaying departure contrary submission made applicant adviser behalf run enemy reside residential address given initial application applicant made mention initial application oral evidence tribunal despite ample opportunity view implausible enemy knew lived aware workforce employer time fact enemy allegedy knew lived indicates enemy wanted punish ample opportunity notable obtain passport late 1995 depart philippine early 1996 made attempt report election rigging despite existence campaign ombudsman report threat police police local area corrupt could reported higher authority friend killed claim satisfied evidence killing connection friend participation election aftermath applicant face similar fate nothing evidence suggests incumbent mayor anyone else interest applicant time australia account involvement election 1995 nothing evidence support conclusion well founded fear future reason involvement conclusionhaving considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set in 36 2 act protection visa decisionthe tribunal affirms decision grant protection visa

Capic v Ford Motor Company of Australia Limited (No 5) [2018] FCA 8 (12 January 2018).txt

capic v ford motor company australia limited 5 2018 fca 8 12 january 2018 last updated 12 january 2018federal court australiacapic v ford motor company australia limited 5 2018 fca 8file number nsd 724 2016judge perram jdate judgment 12 january 2018catchwords practice procedure representative proceeding auxiliary application primary interlocutory application 33x 5 33y 3 offederal court australia act 1976 cth notice given group member applicant intention seek common fund order consideration method providing notice group member proposed method involves use national exchange vehicle driver information system nevdis data obtained first respondent second respondent application order compelling first respondent provide nevdis data second respondent use disseminating noticeshuman right privacy whether court order compelling production name email postal address purchaser certain model ford vehicle incompatible australian privacy principleslegislation federal court australia act 1976 cth s 33x 5 33zf 1 privacy act 1988 cth s 6 6c 14 1 15 sch 1 australian privacy principle cl 6 1 6 2 7 7 1 7 2 7 3 7 4 7 5cases cited carter v audi australia pty ltd 2 2017 fca 1042hearne v street 2008 hca 36 2008 235 clr 125date hearing 21 22 december 2017registry new south walesdivision general divisionnational practice area commercial corporationssub area regulator consumer protectioncategory catchwordsnumber paragraph 22counsel applicant mr g sirtes sc mr r white m avery williamssolicitor applicant bannister lawcounsel first respondent dr thompsonsolicitor first respondent sparke helmorecounsel second respondent m k andersonsolicitor second respondent allensordersnsd 724 2016between biljana capicapplicantand ford motor company australia limitedrespondentin interlocutory application biljana capicapplicantand austroads ltdfirst respondentford motor company australia limitedsecond respondentjudge perram jdate order 12 january 2018the court directs applicant solicitor inform firm conducting mail notification reason obligation underhearne v street 2008 hca 36 2008 235 clr 125 note entry order dealt rule 39 32 thefederal court rule 2011 reason judgmentperram j another interlocutory application class action involving allegedly defective automatic transmission certain vehicle imported australia second respondent application ford australia listed trial 3 december 2018 three week applicant m capic applied common fund order application yet heard matter procedure necessary class member notified application given opportunity oppose wish common fund application listed hearing 16 march 2018 friday 22 december 2017 made machinery order designed facilitate hearing one settled form notice sent class member mailing house another dealt difficulty m capic lawyer know mailing address class member problem confronts regard insignificant pleading define class follows consumer time period january 2011 11 may 2016 inclusive relevant period acquired including purchase lease australia ford motor vehicle fitted dp 6 speed dry dual clutch powershift transmission powershift transmission particular following model affected vehicle modelbuildyearfocustitanium lw2011 2012sport lw2011 2012trend lw2011 2012ambiente lw2011 2012sport lw mkii20122013 2015titanium lw mkii20122013 2015ambiente lw mkii20122013 2015trend lw mkii20122013 2015fiestazetec wt2010 2013lx wt2010 2013cl wt2010 2013sport eco boost wz2012 2015trend wz2013 2016ambiente wz2013 2016fiesta cl wt2010 2013eco sporttitanium bk2013 2016trend bk2013 2016ambiente bk2013 2016 emphasis original apparent definition class potentially large told applicant likely around 70 000 vehicle involved also obvious obtaining address class member notified common fund application straightforward task m capic present application concern problem first respondent application austroads ltd corporation limited guarantee peak association australian road transport traffic agency one function managing national exchange vehicle driver information system nevdis nevdis database australian driver road vehicle information includes subdatabase national vehicle identification number vins nevdis allows seamless transition vehicle registration driver licence information state territory boundary includes information linking registered road vehicle owner least owner individual information m capic lawyer wish tap notwithstanding relates purchaser new rather second hand affected vehicle ford australia access information purpose product recall case involve austroads resists required provide address information time application heard ford australia indicated could provide austroads vins vehicle class vins austroads provide least address registered owner nevertheless resisted required produce information basis court lacked power order produce information alternatively power existed decline exercise hearing indicated accept primary submission would give reason later reason first step argument information nevdis personal information within meaning ofs 6of theprivacy act 1988 cth act accept contention disputed secondly said austroads organisation within meaning 6c body corporate within meaning provision dispute followed thirdly austroads app entity within meaning ofs 6 definition includes organisation dispute fourthly 15of act required austroads something would breach australian privacy principle app 15 app entity must comply australian privacy principlesan app entity must act engage practice breach australian privacy principle bys 14 1 principle set schedule 1 austroads submitted fifthly matter governed app 7 deal direct marketing relevant prohibition cl 7 1 organisation hold personal information individual organisation must use disclose information purpose direct marketing sixth step argument observe whilst app 7 subject exception none included circumstance ordered court produce information exception set cl 7 2 7 5 need set point contain accept exception app 7 required produce material court order assume austroads favour consequence court power order production information context direct marketing removed making assumption offer comment whether assumption sound even assuming app 7 cannot lifted court order satisfied app 7 apply case short process contacting class member inform common fund application 16 march 2018 direct marketing notice sent seek sell class member anything merely tell federal court receive objection wish make common fund application 16 march 2018 form direct marketing app 7 therefore application say act irrelevant contrary information held austroads regulated legislation relevant principle app 6 app 7 without setting provision great detail cl 6 1 app 6 prohibits release app entity personal information held without person consent austroads submitted providing nevdis data ford australia would contravention clause however cl 6 1 subject exception set cl 6 2 include b use disclosure information required authorised australian law court tribunal order court otherwise power order production personal information question app 6 therefore prevent production order raise three question court power order information produced exercise power condition first issue power subject failed app 7 argument submitted court lacked power context class action order production facilitate mail common fund application may notified class member court given express power order notice sent group member 33x 5 thefederal court australia act 1976 cth fcaa consider grant power carry implied grant whatever necessary make exercise power effective would include obtaining address information class member third party similar source power 33zf 1 fcaa authorises court make order court think appropriate necessary ensure justice done proceeding similar conclusion issue power reached foster j incarter v audi australia pty ltd 2 2017 fca 1042at 98 100 fact court power mean exercise two relevant discretionary issue said intrude first austroads submitted would involve breach contract complied order produce information agreement question entitled nevdis participation agreement exists austroads eight participating jurisdiction dated 7 july 2015 cl 10 2 agreement face bind austroads disclose confidential information participant assume information question generally nature however expression confidential information defined cl 1 1 agreement way includes carve information required law disclosed accordingly order made cl 10 2 longer bind austroads disclose information subject order cl 12 2 also bind austroads comply act however explained compliance act prevent disclosure court order reference also made austroads cl 13 1 13 2 schedule 2 schedule 5 agreement way qualify said breach contract occur therefore austroads complying court order reliance also placed safety recall agreement ford australia austroads agreement nothing issue hand particular speak topic austroads may information say anything ford obligation respect vins may put aside turning confidentiality remains important issue discretionary level example one astute ensure confidentiality information preserved far possible case party subject implied undertaking use information obtained court compulsory process purpose litigation hearne v street 2008 hca 36 2008 235 clr 125 hearne v street 131 3 145 56 158 160 107 case concerned discovery inter partes court reasoning explained also extended document information obtained compulsory process third party see 154 155 96 particular way information used noted ford australia provide vins austroads austroads provide address information third party mailing house send notice high court explained inhearne v street undertaking use information generated compulsory process extraneous purpose extends third party see 131 3 160 109 include mailing house make absolutely clear make additional direction applicant lawyer inform mailing house send notice confidentiality obligation subject additional direction reason order made 22 december 2017 certify preceding twenty two 22 numbered paragraph true copy reason judgment herein honourable justice perram associate dated 12 january 2018

Fastline Logistics Pty Ltd [2015] FWCA 847 (5 February 2015).txt

fastline logistics pty ltd 2015 fwca 847 5 february 2015 2015 fwca 847fair work commissiondecisionfair work act 2009s 185 enterprise agreementfastline logistics pty ltd ag2014 7977 fastline logistics pty ltd tcfua enterprise agreement 2014textile industrydeputy president gostencnikmelbourne 5 february 2015application approval fastline logistics pty ltd tcfua enterprise agreement 2014 1 application made approval enterprise agreement known thefastline logistics pty ltd tcfua enterprise agreement 2014 agreement application made pursuant tos 185of thefair work act 2009 act made fastline logistics pty ltd agreement single enterprise agreement 2 basis material contained application accompanying statutory declaration satisfied requirement ofss 186 187and188as relevant application approval met 3 textile clothing footwear union australia bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 based statutory declaration provided organisation note agreement cover organisation 4 agreement approved 5 february 2015 accordance withs 54 operate 12 february 2015 nominal expiry date agreement 30 june 2016 deputy presidentprinted authority commonwealth government printer price code g ae412499pr560722 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

Federal Court Rules (Amendment) 1993 No. 225.txt

federal court rule amendment 1993 225federal court rule amendment 1993 225explanatory statementstatutory rule 1993 225issued authority judge federal court australiaamendment rule federal court australiasection 59 thefederal court australia act 1976permits judge court thirty four 34 including chief justice majority make rule court inconsistent act making provision relation practice procedure followed court including practice procedure followed registry court relation matter thing incidental practice procedure necessary convenient prescribed conduct business court section 59 act also provides section 48 48a 48b 49 50 theacts interpretation act 1901apply relation rule court made section reference section act regulation reference rule court present federal court rule came operation 1 august 1979 reviewed regularly since amendment provide service judicial document overseas non convention country order 8 minor amendment existing order 71 corporation law rule form schedule 1 rule 1provides rule made come operation 16 august 1993 order 8rule 2provides rule amended set rule rule 3inserts order 8 new rule 1a applies service abroad judicial document subrule 2 provides definition section referring convention country non convention country rule 4 5 6 7these rule amend existing rule inserting reference applicable service either convention non convention country minor amendment necessary insertion new rule 1a rule 8this rule also amends existing rule relation requisite document amendment require document filed duplicate english official language translation also provided together undertaking party pay expense incurred relation request rule 9this rule insert new division 3 service non convention country previously provided federal court rule new rule 13applies new division service judicial document non convention country new rule 14provides request service division must made form 14a set requirement document transmitted another country e g passed secretary attorney general department registrar leave given court new rule 15this rule set requirement proof service example certification declaration document personally served served accordance law country new rule 16provides document served way substituted service effort serve document without effect order made court subrule 3 provides copy order document must passed secretary attorney general department registrar leave court given order 71rule 10substitutes new paragraph 36 3 b requesting recent balance sheet profit loss account statement available company filed application winding order 462 rule 11inserts paragraph 36b b reference 459j provides power order made set aside statutory demand defect reason rule 12omits reference item 51 substitute reference item 43a correct item number rule 13this rule amends existing rule 47 transitional provision winding application pre 23 june 1993 amendment refer date make clear transitional provision apply application winding 460 461 made 23 june 1993 rule 14this rule amends existing rule 47 power provisional liquidator 472 providing purpose enabling provisional liquidator take letter administration estate deceased contributor debtor paragraph 477 2 h money due company deemed due provisional liquidator subrule 2 provides application may made notice motion proceeding winding order rule 15omits word corporation paragraph 81 7 b substitute correct word commission rule 16this rule make various minor amendment form first schedule rule 17inserts reference 459a 459b item 38 third schedule dealing power function court may exercised registrar rule 18omits existing form 13 14 schedule 1 federal court rule new form 14a 14b 14c inserted correspond amendment order 8 provide documentation service non convention country form 129 also amended provide notice respondent direction hearing time date place hearing together applicant address service form 129 form required order 73 representative proceeding

Adelaide Airport Curfew Bill 1999 [1999] AUSStaCSBAD 107 (31 March 1999).txt

adelaide airport curfew bill 1999 1999 ausstacsbad 107 31 march 1999 adelaide airport curfew bill 1999appointment person authorised officersubclause 22 1 adelaide airport curfew bill 1999this bill introduced house representative 22 march 1999 mr gallus private member bill bill proposes establish curfew adelaide airport 11pm 6am impose penalty breach curfew impose penalty 22 000 breach curfew provide certain aircraft movement curfew allow minister grant dispensation certain circumstance empower authorised officer request certain information provide penalty relation false information allow minister delegate power grant permission give dispensation provide appointment authorised person provide guidance court prosecution offence body corporate appointment person authorised officersubclause 22 1 proposed subclause 22 1 permit secretary department transport appoint person authorised officer purpose act however bill give indication qualification attribute appointee posse since establishment committee consistently drawn attention legislation allows significant wide ranging power delegated person generally committee like see limit placed potential delegate whether reference holder nominated office member senior executive service reference possession special qualification attribute therefore committeeseeks advice member sponsoring billas whether subclause 22 1 provide limit otherwise unfettered discretion secretary appointing authorised officer pending member advice committee draw senator attention provision may considered make right liberty obligation unduly dependent insufficiently defined administrative power breach principle 1 ii committee term reference

Eggers & Taine [2015] FCCA 242 (3 February 2015).txt

egger taine 2015 fcca 242 3 february 2015 last updated 24 february 2015federal circuit court australiaeggers taine 2015 fcca 242catchwords family law child parenting order interim order parental responsibility equal shared parental responsibility best interest child two child aged 4 6 year family law injunction father seek injunction restrain mother removing party child outside shire sydney relocation unilateral relocation mother relocated residence child whilst father commencing proceeding restrain removing child legislation family law act 1975 cth s 60b 60ca 60cc 61da 65daa 68bcases cited adamson adamson 2013 famcafc 157goode goode 2006 famca 1346 2006 36 fam lr 422 flc 93 286applicant mr eggersrespondent m tainefile number woc 805 2014judgment judge scarletthearing date 2 february 2015date last submission 2 february 2015delivered sydneydelivered 3 february 2015representationcounsel applicant m murphysolicitors applicant kells lawyerssolicitor respondent m sosnersolicitors respondent brander smith mcknight lawyersordersuntil order 1 respondent mother restrained removing child x born 2009 born 2010 outside area shire sydney 2 respondent mother must return child x reside address within said shire within fourteen 14 day 3 respondent mother must act thing necessary enrol child x h school within fourteen 14 day 4 respondent mother must act thing necessarily enrol child l kindergarten omitted new south wale 5 previous parenting order discharged 6 applicant father respondent mother equal shared parental responsibility said child x 7 child x live mother 8 child spend time father follows alternate weekend immediately school preschool friday 5 00 pm sunday b first half autumn winter spring school holiday period commencing 9 00 first saturday last day school term concluding 5 00 pm following saturday c 9 00 christmas eve 12 noon christmas day 2015 9 00 2 january 5 00 pm 16 january 2016 e 9 00 5 00 pm father birthday birthday fall day child attend school immediately school birthday fall school day f 9 00 5 00 pm father day g child birthday immediately school preschool 8 00 pm birthday fall school preschool day ii 11 00 4 00 pm birthday fall day child required attend school preschool 9 notwithstanding provision immediately preceding order father time child suspended mother day b mother birthday 10 purpose changeover child go care one party care father collect child school preschool father time child commences school day preschool day mother nominee responsible adult known father collect child father residence conclusion time 11 case child time father commence school pre school day father nominee responsible adult known mother collect child mother residence commencement time mother nominee collect child father residence conclusion time 12 child communicate father telephone monday thursday afternoon hour 4 00 pm 4 30 pm mean mother calling father mobile telephone number 13 party restrained injunction abusing criticising denigrating presence hearing child permitting third person b making abusive critical derogatory comment party telephone text facebook twitter form social medium 14 provided bysection 62gof thefamily law act 1975 party attend upon family consultant time date place specified director child dispute service sydney registry court purpose preparation family report matter relevant care welfare development child x notedthat publication judgment pseudonymeggers taineis approved pursuant tos 121 9 g thefamily law act 1975 cth federal circuit courtof australiaat sydneywoc 805 2014mr eggersapplicantandms tainerespondentreasons judgmentthis matter heard application injunctive order interim parenting order yesterday applicant father two child x born omitted 2009 almost six year age born omitted 2010 four year age father seek injunctive order requiring mother restrained relocating child shire area requiring return child residence area indeed within 15 kilometre h school also seek order whereby child would continue live mother would spend time weekend school holiday somewhat uncontroversial arrangement mother opposes order wish remain living also seek relatively uncontroversial parenting order relating child living spending time father backgrounda brief background party commenced living together may 2008 elder child x born omitted 2009 younger child born omitted 2010 separated apparently one roof 16 march 2014 father physically moved home 2 april 18 april mother moved home went child stayed maternal grandmother father moved back home mother moved may series communication sm text message party much vitriolic term relating new arrangement neither party wasted much time forming new relationship indeed early april last year father placed facebook page notification interest lady m maintained relationship although evidence live together however indicated sm text message intention stage going holiday child new female friend well received mother described father new friend derogatory term mother indicated early intended move shire area communication took place party seeing solicitor father indicated opposition mother moving child home area seems occurred relatively early may june father already instructed solicitor write mother express opposition moving shire northern beach area sydney distance estimated party either 59 kilometre 63 kilometre father living distance great fact city sydney middle distance created great difficulty mother certainly aware father opposition proposed move various message father sent message annexed father affidavit 16 september 2014 message appears sent 26 june mother said two choice either let u go without hassle everyone including child spend next year court spending fortune going cost cent dragging kid everyone else hell choice father response choose court believe strongly kid worth father indeed commenced proceeding mean application supporting document filed wollongong registry court 17 september sought parenting order injunctive order restrain mother moving stage already moved appears taken residence omitted northern beach moved man name mr c child living set affidavit describes relationship man supportive relationship child might comment neither father new friend mother new friend yet affidavit information people come affidavit party proceeding transferred mother application wollongong registry court registry 16 december party entered certain interim consent order relating child living mother spending time father clear order intended party merely tide father interim application could dealt detail party directed attend child dispute conference family consultant 16 january appears child dispute conference memorandum party agreed equal shared parental responsibility family consultant recorded mother said receives legal advice would unable enter discussion arrangement father application father listed hearing yesterday father filed amended application 29 january conclusionsthe fact court unilateral relocation mother elected move area child involved removing child school preschool time well aware father opposed application intention commencing legal proceeding order restrain true parenting order existence view particularly relevant situation occurs court quite frequently indeed similar matter came court year two ago matter calledadamson adamson 1 mother knowledge father commencing proceeding commenced proceeding restrain moving sydney metropolitan area nevertheless went ahead move order made relocate back sydney metropolitan area appealed full court family court appeal unsuccessful relevant lawthe party seeking opposing injunctive order undersection 68bof thefamily law act 1975 cth seeking interim parenting order mean course legislative pathway well described ingoode goode 2 need followed court need consider matter set section 60b set object principle ofpart viiof act section 60ca provides best interest child must paramount consideration section 60ccwhich set way court determines child best interest section 61dawhich deal presumption equal shared parental responsibility andsection 65daa deal circumstance order providing equal shared parental responsibility court must consider whether would best interest child reasonably practicable spend equal time parent failing whether would best interest reasonably practicable spend substantial significant time parent considered matter considered factor insection 60ccof act insofar relevant equal shared parental responsibilityeach parent seek order equal shared parental responsibility issue violence abuse would suggest presumption best interest child parent equal shared parental responsibility would apply section 65daaof thefamily law actin view child best interest reasonably practicable spend equal time parent interim order proposed go towards substantial significant time parent order best interest childrenit certainly clear mother action unilaterally moving away setting another relationship live relationship child precipitate say least would difficult court make determination final order party formed significant relationship people court know virtually nothing seem mother action removing show little regard desire stability child true separation child father removing child entirely area opposition father moving household person living would highly destabilising involved child removed school preschool accordingly view best interest child require court act bring stability child life may final hearing evidence considered perhaps benefit family report mother wish live northern beach friend mr c may seen best interest child however court act status quo established appropriate way make arrangement best interest child father clearly expressed opposition mother appears precipitate move view matter need resolved somewhat calmer considered view best interest child paramount consideration certify preceding twenty three 23 paragraph true copy reason judgment judge scarlettassociate date 6 february 2015 1 2013 famcafc 157 2 2006 famca 1346 2006 36 fam lr 422 flc 93 286

DPP v Griffith (Sentence) [2023] VSC 218 (27 April 2023).txt

dpp v griffith sentence 2023 vsc 218 27 april 2023 last updated 27 april 2023in supreme court victorianot restrictedat melbournecriminal division eapcr 2021 0091director public prosecutionscrownvgene griffithaccused judge kaye jawhere held melbournedate hearing 14 april 2023date sentence 27 april 2023case may cited dpp v griffith sentence medium neutral citation 2023 vsc 218 criminal law sentence jury verdict manslaughter unlawful dangerous act unprovoked assault involving multiple punch head innocent victim victim older smaller offender substantial criminal record including multiple conviction offence violence limited mitigating circumstance delay difficult circumstance custody due covid 19 restriction limited remorse guarded prospect rehabilitation general deterrence specific deterrence appearance counselsolicitorsfor crownms moranms hogan solicitor public prosecutionsfor accusedmr j desmondrainer martini associateshis honour 1 gene griffith found guilty jury empanelled trial manslaughter alan james wain june 2019 plea also pleaded guilty one charge possessed drug dependence namely cannabis l related summary charge committing indictable offence bail 2 direct evidence concerning circumstance alan wain sustained injury died consisted description incident given mr wain witness died particular wife patricia ambulance officer attended home two police member also attended home incident doctor examined hospital interviewed police 13 june said memory incident subsequently also told mother recorded conversation august october 2019 recollection incident also wrote letter friend november 2019 confirmed memory incident 3 trial prosecution conducted basis statement police mother friend truthful lack recollection due fact ingested excessive quantity drug morning incident however trial gave evidence recollection subsequently returned gave account claimed alan wain attacked contact head self defence 4 unsurprisingly jury satisfied beyond reasonable doubt account gave evidence trial untruthful description incident alan wain gave various witness referred truthful reliable accurate shall therefore sentence based account given alan wain circumstance sustained injury subsequently died 5 incident alan wain fatally injured occurred midday 1 00 pm 2 june 2019 front garden home lived wife patricia boronia road boronia 6 time alan wain wife home mr wain heard someone trying open front door locked went door told wished enter house responded know told previously lived repeated know turned walked towards caravan front garden premise alan wain told get caravan ignored walked step caravan told get leave premise response turned around expression face totally changed punched alan wain number time head 7 point patricia wain made way front door house observed husband standing foot step house blood pouring left hand side face standing near caravan three metre away dancing around toe maintaining boxing stance mr wain told alan wain come inside started walk step house point ceased assuming boxing stance went sat bottom step house asked cigarette enquired name road house located patricia wain went back inside house telephoned police alan wain told police summoned went back inside caravan collected jacket bag left walked boronia road 8 police arrived premise shortly 1 00 pm spoken alan wain ambulance summoned time mr wain fully conscious observed laceration left forehead bruised lip precaution conveyed ambulance angliss hospital remained observation ten hour transferred knox private hospital ongoing management surveillance late following day 3 june conscious state deteriorated ct scan taken shortly midnight revealed large subdural haemorrhage right hand side brain also three site intracranial bleeding result subdural haemorrhage midline brain falx shifted right left 9 result ct scan mr yi yuen wang neurosurgeon undertook urgent operation mr wain early hour 4 june performed craniotomy enabled remove subdural haemorrhage noted sagittal sinus large draining vein surface brain torn repaired tear using muscle graft 10 surgery initially improvement mr wain conscious state however condition deteriorated transferred st vincent hospital ct scan 7 june revealed large subdural haemorrhage mr wang operated mr wain drained haemorrhage however mr wain never regained consciousness following consultation medical practitioner family 19 june decision made withdraw medical treatment life support withdrawn alan wain passed away 11 one issue trial whether blow struck mr wain head substantial operating cause death three expert medical practitioner including mr wang pathologist dr bouwer neuropathologist dr iles gave evidence issue evidence demonstrated assault perpetrated alan wain caused significant irreparable damage brain result initial subdural haemorrhage significant permanent damage occasioned brain due pressure occluded supply oxygen glucose vital survival brain addition capillary vein brain sheared pressure brain removed result first operation capillary vein bled resulting second subdural haemorrhage medical evidence also demonstrated addition cascade medical effect resulted initial trauma head combination led death alan wain 12 based evidence jury satisfied beyond reasonable doubt blow struck alan wain head substantial operating cause death 13 plea issue arose conclusion form concerning number blow struck alan wain head 14 immediately incident alan wain told wife patricia struck four time head gave account two member police paramedic m allen attended upon significantly also told dr navaratnam examined angliss hospital 2 30 pm date intruder tried get house stepped outside speak man response punched four time face fact alan wain gave account police also paramedic medical practitioner attending purpose treating lends strong credibility account taking matter account satisfied beyond reasonable doubt fact strike alan wain four time head 15 noted result blow four site bleeding brain mr wang evidence explained bleeding could occur absence high velocity impact head explained common cause head injury kind suffered mr wain high velocity motor vehicle accident specifically mr wang stated order rupture sagittal sinus would need significant amount direct trauma head similar term dr heinrich bouwer forensic pathologist conducted autopsy considered severe degree force would required order tear superior sagittal sinus 16 therefore clear based evidence trial verdict jury alan wain told truth person spoke reason entirely unprovoked forcefully punched four time head least one blow struck significant amount force also clear verdict jury evidence conduct punching alan wain four time head dangerous sense reasonable person circumstance would readily understood assaulting alan wain way exposing mr wain appreciable risk serious injury attacked punched alan wain apparent reason exercising right ask leave home cease trespassing 17 circumstance came attend premise alan patricia wain entirely clear three month previously sister close passed away unexpectedly state grief ceased take medication prescribed longstanding epileptic condition result saturday 1 june suffered epileptic episode conveyed ambulance maroondah hospital treatment however later day voluntarily discharged hospital contrary firm advice given time medical practitioner treating picked hospital friend driven home happened next door home alan patricia wain proceeded abuse medication prescribed epileptic condition taking large dose clonazepam well smoking cannabis later evening disagreement friend left premise uninvited slept overnight caravan front premise mr mr wain awoke attempted enter home 18 noted result heavily intoxicated state memory incident notwithstanding evidence gave trial plea counsel mr desmond submitted mr wain approached caravan told leave premise intoxicated state might misinterpreted conduct erroneously believed physically assault 19 accept submission persuaded balance probability assaulted alan wain acted misapprehension contrary satisfied beyond reasonable doubt specifically satisfied beyond reasonable doubt account given alan wain wife truthful correct namely told get caravan leave premise expression face totally changed punched four time head conduct entirely unprovoked totally gratuitous struck alan wain assuming boxing stance sat step premise asked cigarette conduct inconsistent perception alan wain physical threat 20 circumstance relevant time significantly affected consumption illicit drug mitigate seriousness offending shall shortly discus long significant criminal record offence involving violence number committed affected consumption illicit drug abuse medication prescribed treat epilepsy reason intoxication medication drug may provide explanation conduct time offending mitigate seriousness culpability engaging violent dangerous conduct resulted tragic death defenceless innocent victim alan wain 21 offence manslaughter convicted serious criminal offence discussed involves causing death another person unlawful dangerous act maximum sentence manslaughter 25 year imprisonment reflects fundamental seriousness offence value society properly place individual human life 22 plea submitted behalf regard offending lower end range seriousness offence manslaughter 23 certainly offending relatively spontaneous short duration use weapon assault carried company however hand significantly younger taller alan wain reason struck four punch head least one inflicted substantial degree force assault entirely gratuitous unprovoked opportunity defend evade blow struck attacked killed alan wain safety security front garden circumstance persuaded offending regarded lower end range manslaughter case come court 24 violent action taken life fellow human time death alan wain wife patricia looking forward planned retirement together holiday around australia camping member family simply enjoying daily life criminal action deprived alan wain opportunity experience enjoyment fulfilment sharing retirement year wife family 25 read read victim impact statement alan wain wife patricia daughter tracey son steven violent crime taken alan wain family much beloved cherished husband father grandfather action resulted deep enduring pain anguish life significantly diminished loss circumstance occurred 26 victim impact statement relevant appropriate reminder tragic effect crime committed sentence based rational analysis fact case application relevant sentencing principle important keep mind impact crime committed significant grief irreparable loss occasioned family direct consequence 27 long extensive criminal record dating back 25 year 18 year age 28 majority offence convicted consist crime dishonesty theft burglary robbery however also convicted number occasion crime involving violence including multiple conviction assault police served number sentence imprisonment past offending include following 29 september 1997 melbourne county court charge included intentionally recklessly causing injury theft burglary attempted armed robbery sentenced term 3 month imprisonment also placed community based order two year march 2001 sentenced 2 month imprisonment ringwood magistrate court charge assault police resist police january 2004 melbourne county court charge recklessly causing serious injury recklessly causing injury trafficking cannabis sentenced total effective sentence 18 month imprisonment non parole period 12 month 30 march 2009 melbourne magistrate court multiple charge including reckless conduct endangering serious injury assault police robbery theft going equipped steal failing answer bail offence court imposed total effective sentence 2 year 6 month imprisonment january 2015 sentenced melbourne magistrate court total effective sentence 6 month imprisonment respect charge involving dishonesty also one charge recklessly causing injury following year february 2016 sentenced 12 month imprisonment seymour magistrate court number dishonesty charge also charge recklessly causing injury assault weapon finally 10 august 2018 sentenced total effective term 10 month imprisonment ringwood magistrate court charge included aggravated burglary committing indictable offence bail criminal damage theft 31 respect personal circumstance born may 1977 almost 46 year age brother sister sister since deceased spent early childhood year eastern suburb nine year age parent moved home olinda 32 initially attended jordan south primary school transferred olinda primary school remained end grade 6 attended monbulk high school childhood early teenage year considerable conflict parent father violent towards mother one point attending monbulk high school ran away home lived grandparent time attended ashwood college six month subsequently returned monbulk high school completed education year 10 level 15 year age time parent separated father subsequently moved manila 33 left school commenced work apprentice butcher year ceased employment argument employer commenced apprenticeship fitter turner however started abuse drug result lost employment following employment butcher also welder however criminal history reveals spent substantial part last two decade custody result unemployed time married serious long term relationship time 34 life dominated use illicit drug commenced consuming alcohol using cannabis age 12 year age 14 year indulging use substance daily basis 17 year age introduced amphetamine later year regularly used methamphetamine addition used heroin ghb cocaine abused benzodiazepine upon release custody early 2019 using cannabis methamphetamine daily basis well engaging occasional use heroin ghb ecstasy 35 age 14 year commenced experience seizure diagnosed suffer epilepsy currently medication treat condition 36 purpose sentence examined via video conference mr warren simmons consulting psychologist 28 december 2022 mr simmons took detailed history unsurprisingly formed view cannabis stimulus use disorder considered probable would also meet criterion substance use disorder involving drug mr simmons considered prospect rehabilitation guarded view length time spent custody lack stable relationship regular employment life long term history offending mr simmons expressed view might cognitive impairment suggested full neuropsychological assessment undertaken 37 reason assessed dr loretta evans clinical neuropsychologist 1 march year dr evans took detailed history conducted testing directed ascertaining whether acquired brain injury summary dr evans found capable engaging day day communication normal level verbal non verbal intellect within normal functioning range processing verbal visual information within normal range reasoning ability low average average range capacity engage new learning low average range dr evans noted brain imaging consistently normal produce valid reliable neuropsychological profile 38 specifically dr evans concluded cognitive functioning well within normal limit neuropsychological profile consistent intellectual disability pervasive neurodevelopmental disorder underlying neurodegenerative process appreciable substance acquired brain injury normal intellect psychometric evidence suggest presence form brain injury compromise contributing factor action caused death mr wain cognitive perspective none skill within defective range generally function within low average average range 39 dr evans noted lengthy history criminal offending illicit drug abuse suggested may constitute maladaptive way addressing psychological distress caused conflict parent younger accordingly dr evans recommended undertake program custody address underlying depressive stress symptomatology event childhood grief loss issue following recent death mother sister tendency repeatedly quickly relapse drug use upon release custody 40 finally dr evans considered view significant history offending absence proper therapeutic intervention assistance procuring appropriate housing released custody extremely high risk offend 41 report mr simmons dr evans assistance sentencing identify particular psychological neurological basis upon culpability offending might mitigated identify clear term pathway must undertake order successfully rehabilitate society dr evans noted unless appropriate step taken direction high extremely high risk reoffend upon completion term imprisonment impose would seem term custody date managed large access comply appropriate treatment epileptic condition circumstance positive indication future accordingly prepared accept prospect rehabilitation may bleak concluded dr evans may regarded guarded 42 matter take account mitigation first arrested respect present matter 13 june 2019 custody since time sentenced 19 september 2019 term imprisonment six month offence robbery committed offence present case sentence completed 17 march 2020 period 180 day addition 20 july 2020 opted serve two day imprisonment respect infringement notice 182 day count pre sentence detention respect offence sentence order comply principle totality take account addition period pre sentence detention credited sentence impose also undertaking two term imprisonment 43 addition take account mitigating circumstance difficult condition imprisonment applied since early 2020 result step taken prison authority prevent spread covid 19 virus within prison population step included cessation personal visit suspension access program course number lockdown procedure significantly reduced hour permitted spend outside cell consequence period time spent custody early 2020 burdensome restriction largely removed take account reasonable possibility ensuing year required implemented order protect prison population result circumstance custody may become burdensome 44 also take account mitigating circumstance delay almost four year since arrest delay consequence appeal interlocutory decision concerning admissibility hearsay statement made alan wain also due need obtain psychological neuropsychological report conviction nevertheless fact remains substantial period time date arrest sentence 45 submitted behalf expressed remorse mr simmons dr evans examined particular mr simmons reported feel horrible taken life another person accept action led mr wain death dr evans considers capable empathy expression remorse regret genuine reservation whether remorse genuine sincere evidence gave trial effect accept responsibility causing death alan wain hesitation considerable reservation satisfied balance probability experience form regret done albeit feeling regret limited heavily qualified 46 determining sentence offence manslaughter necessary sentence impose adequately express condemnation court community serious wanton degree violence took life alan wain also necessary sentence sufficient severity provide clear lesson others might minded engage violence kind perpetrated case important person understand choose engage gratuitous act violence expect deprived liberty live society substantial period time addition important sentence sufficient order ensure personally deterred engaging act violence 47 summary offending committing offence manslaughter serious conduct involved violent wanton assault smaller older man home justification long criminal record including series term imprisonment act violence offence hand accepted relevant mitigating circumstance including onerous circumstance detained fact period served term imprisonment count part pre sentence detention delay conclusion matter degree remorse albeit particularly limited 48 addition sentencing offence manslaughter convicted also required sentence two offence pleaded guilty time offending bail respect charge armed robbery subsequently sentenced september 2019 offence possession drug dependence concerned quantity 147 gram cannabis found person arrested present matter 13 june 2019 circumstance case appropriate sentence impose two charge served concurrently sentence impose offence manslaughter order total effective sentence exceed fair circumstance 49 taking account matter discussed sentence follows 50 charge manslaughter sentence 10 year imprisonment 51 related summary offence committing indictable offence bail sentence 14 day imprisonment stated make order cumulation respect sentence accordingly served concurrently sentence imposed offence manslaughter 52 charge possession drug dependence sentence 2 month imprisonment similarly make order cumulation respect sentence served concurrently sentence imposed offence manslaughter 53 accordingly total effective sentence 10 year imprisonment fix minimum non parole period 7 year pursuant tos 18 4 thesentencing act 1991 declare 1232 day including today date reckoned served sentence shall cause declaration noted record court 54 pleaded guilty related offence offence possession cannabis required make declaration unders 6aaaof thesentencing act plea guilty would imposed sentence one month imprisonment respect related offence committing indictable offence bail term 4 month imprisonment offence possession drug dependence

Metro Region RL41(PSA) [1989] PPV 17 (6 February 1989).txt

report panel appointed hear consider submission amendment rl 41 metropolitan region planning scheme j gaye mckenzie b r p melb r p february 1989 1 knox planning scheme amendment rl 41 report independent panel appointed minister planning environment accordance provision planning environment act 1987 1 amendment amendment rl 41 prepared ministry planning environment included number change regional section planning scheme metropolitan region local section planning scheme number municipality metropolitan region amendment exhibited period 1 month 2 submission received ministry respect proposed rezoning land known part lot 2 lp 114102 burwood highway wantirna south knox rural zone knox special peripheral business zone site f proposed amendment table clause 22x 3 contained clause 22x 10 increase maximum gross leasable floor area number specified us two written submission lodged respect amendment summit knox support rezoning city knox pty ltd owner objecting rezoning land submission considered minister determined refer independent panel consideration report 2 letter dated 21 november 1988 minister appointed mr gaye mckenzie one person panel hear consider submission amendment rl 41 metropolitan region planning scheme appendix b 3 panel hearing ministry planning 1988 submission conducted environment heard office monday 19 december following person mr r guest town planner ministry planning environment mr g garde barrister instructed corrs pavey whiting byrne summit knox pty ltd mr mcf pitt solictor city knox copy report exhibit presented panel retained ministry along report panel made inspection site adjacent area 2 4 submission panel 4 1 ministry planning environment mr guest presented report panel provided detail amendment included description site background knox district centre adjacent peripheral sale centre consideration relating proposed expansion peripheral sale centre objection raised amendment city knox namely information provided consultant report inadequate slow rate development take indicates need peripheral business floor space site f rezoned permit office development supporting amendment ministry considered proposed expansion knox special peripheral business zone consistent government urban policy activity centre providing maximum flexibility zone accommodate wide variety retail service recreational us ministry dismissed council view land rezoned office development stating information advanced support request 4 2 proponent mr g garde presented submission behalf owner site requested rezone lot 2 l p 114102 parish scoresby zone knox special peripheral business zone proponent ministry knox rural course presention mr garde called expert witness area traffic site parking economic social matter town planning dealt turn 4 2 1 traffic parking mr n english nelson english loxton andrew pty ltd gave evidence concerning access arrangement site parking requirement occupancy may establish access subject land via two existing access point burwood highway onto site adjoining subject land west road construction road traffic authority raised objection proposed rezoning road traffic authority noted access provision burwood highway provided developer would require agreement r r c city knox 3 cost parking required provided site specified within planning scheme survey conducted existing adjacent peripheral sale zone consultant two occasion concluded application car parking ratio could expected provide level parking would exceed demand consultant survey showed sharing carparking present survey conducted prior opening cinema site city knox object rezoning either traffic parking ground although cross examination mr english mr pitt raised matter le carparking provided site specified ordinance accounted shared parking reference drawn decision aat upholding appeal permit additional deck added multi level carpark site required condition permit cinema complex although number carspaces provided subject appeal tribunal drew attention concern regarding adequacy carparking provided site use patron cinema copy appeal decision p87 1895 supplied panel information 4 2 2 economic social matter mr p mclennan mclennan magasanik pearce pty ltd called mr garde give evidence directed economic social benefit eminating proposed rezoning mr mclennan presented written report copy retained part record hearing mr mclennan report panel effect summary material forming part original submission ministry made support rezoning land company conducted survey patron existing knox peripheral sale zone site used information obtained estimate net benefit consumer would derived development subject site site f assumed development site f would similar site adjoining therefore survey result obtained site could used ass benefit derived site f determined estimated area spending peripheral type good met actual trading space currently provided site therefore spending occurring location either knox city shopping centre 39 shopping centre 59 development additional peripheral sale floor area site f would assist stemming flow capital area consultant stated existing zoned sufficient size accommodate development proposed f particularly compatibility existing 4 land site adjacent development fully 250 person 1 taken account estimated developed site f provide employment 120 fulltime 130 part time refurbishment extension knox shopping centre emphasis department store small speciality shop primary use site f would peripheral trading complementary adjacent retail centre far office space concerned indicated objection city knox consultant view would conflict market reality suburban office development planning policy total 10 000 sq metre gla office ancillary parking could accommodated site suburban office growth substantial eastern suburb consultant opinion trend slow prospective tenant become increasingly discriminatory choice space offered proposed rezoning increase office floor space provided site f 1 200 sq metre give total 5 200 sq metre additional area sit f adequate given significant portion existing 4 000 sq metre site still unlet concept district centre one major activity centre includes among thing office component feature accessibility public transport available 1n case knox knox yet designated district centre argued rezone site f large scale office development would inappropriate also fact site highway frontage reduces attractiveness prospective occupier office floorspace cross examination mr mclennan mr pitt asked survey carried ass impact extension knox special peripheral business zone include site f would various named surrounding shopping centre including nearby district centre mr mclennan replied survey conducted survey carried company limited patron existing establishment site assessment dollar term net benefit knox community expansion mr pitt stated survey showed customer came given day accurately define overall benefit derived fact benefit accredited centre would impact nearby centre included similar type occupancy 5 mr mclennan conceded initial stage operation consumer often travel long distance new centre necessarily become regular shopper however allowance made phenomenon including lower upper figure benefit derived assist rockcliffe called matter relating questionaire mr n involved format questionnaire mr rockcliffe explained fact benefit derived format questionaire two part travel cost saving people le distance travel facility provided greater attractiveness consumer reply mr garde examination mr mclennan stated observable decline operation nearby centre since occupation site objection trader centre occupation various building site steady lapsed tenancy whereas district centre may peripheral sale nearby none adjacent purpose built zone mr garde stated interest shown possible major tenant hardware 10 pin bowling alley possible expansion existing tavern 4 2 3 town planning mr e zagami provided town planning evidence support rezoning copy form part record proceeding mr zagami detailed history total parcel land includes part occupied knox shopping centre area developed peripheral sale area occupied city knox work depot alongwith land subject hearing summary referred various negotiation city knox extract committee agenda council 10 nov 1987 includes part report relating rezoning request subject land recommendation council agrees principle rezoning although considered premature survey shopper existing peripheral us floor space survey justification development term ministerial guideline extension knox shopping centre commenced committee report council stated issue acquisition part land needed resolved prior rezoning site 17 nov 1987 16 sept 1988 city knox advised ministry objected rezoning corresponding provision included planning scheme 6 town planning consideration addressed mr zagami site part comprehensive development considered whole site suitable office regard location adjacent council work depot industrialuses site street nearby residential us objective office frontage zone mr pitt stated absence specific control definition peripheral sale contained regional section planning scheme would apply zone including minimum permitted floor area shop permitted provided conflict condition specifying floor area mr pitt alleged smaller tenancy occupying building site competed within knox shopping centre departure original intention zone response mr zagami stated cinema centre brash relocated adjacent shopping centre peripheral sale zone need larger floor area could provided shopping centre brashs retained area within knox centre taken space peripheral sale zone display sale larger musical item 4 3 objection amendment mr pitt appearing city knox tendered written submission copy record part panel hearing support objection city knox contended proponent amendment failed establish net community benefit derived proposed rezoning fact failed meet guideline set ministry supply required information support proposed rezoning mr pitt stated impact assessment carried existing centre around knox centre ascertain effect proposed rezoning existing shop peripheral sale consumer satisfied service currently provided centre would change shopping habit site developed peripheral sale could existing deficiency met existing centre deficiency existed impact employment existing shopping centre satisfaction existing need alternative site available general area 7 ascerted adequate information supplied concerning nature proposed development type prospective occupancy information forming part rezoning application infers use zone comply objective zone namely ensure retailing zone consists primarily large scale single purpose shop even zone otherwise appropriate premature development mix us knox shopping centre peripheral sale area completed analysis number retail centre including district centre highway frontage occupied peripheral sale within immediate area ascertain appropriateness proposed rezoning copy development panel planning note policy provided copy retained record 5 consideration 5 1 traffic parking 13 sept 1985 information retail specific objection raised regarding matter access primary arterial road work must accordance requirement r c parking provided site detail determined provision planning scheme 5 2 economic social issue planning note 13 set guideline assist applicant preparing documentation submitted part rezoning request commercial development item c state information lodged assist responsible authority establishing whether within public interest change zoning occur including location content existing centre area assessment existing potential customer need including customer attitude deficiency established centre feasibility meeting need deficiency within existing area contended mr pitt required information clearly provided accordingly panel recommend rezoning approved noted ministry submission panel guideline furnished assist applicant making responsible authority assessing 8 appropriateness proposal relevant authority satisfied information supplied onus rest request detail provided instance ministry fully support request rezone subject land accepted information provided satisfying government urban policy activity centre part submission proponent commissioned survey adjacent existing peripheral sale centre estimated benefit community would development site site f even though survey conducted comparison made surrounding centre panel concurs consultant similarly zoned located land centre surrounding area site specific zone providing mix commercial us located adjacent regional shopping centre area shop requiring large floor area nature business either locate within shopping centre complying definition peripheral sale industrial zone location site highway frontage attract business require high exposure wide range us permitted zone provide opportunity large number potential occupier including service industry garden supply timber yard sporting good sale enquiry made hardware type premise bowling alley evidence interest shown date site 5 3 town planning historically us classified peripheral sale occupied building within retail centre change market place demand larger floor area display certain product especially household good meant became increasingly difficult find suitable site traditional shopping centre meant alternative location found operator business turned industrially zoned land highway frontage land excellent access high visibility lower value commercial property sufficient size accommodate display sale bu lky product since establishment quasi retail us industrially zoned land pressure expand definition peripheral sale include retail us wish operate larger premise lower rental date request change definition peripheral sale unsuccessful 9 knox special business peripheral sale zone cover site site specific zone allowing wider range retail sale permitted definition peripheral sale setting lower upper floor area permitted us addition service type premise eating establishment entertainment facility office permitted subject either limitation floor area condition permit required responsible authority providing large lot increasing range retail us may establish operator wishing occupy larger floor area catered example current trend video hire premise larger floor area premise selling sporting good prefer larger display area lack supply large shop traditional shopping centre increasing rent forcing large single purpose shop relocate specific zone demand matter planning principle site appropriate method catering band aid approach allowing us industrial zone encroachment retail case existing peripheral sale zone complement adjacent retail zone allowing specified larger retail us establish association smaller service type us eating entertainment facility ratio floor area used method retaining balanced development amendment increase maximum three category us zone floor area permitted combination site f namely 1 2 bank office 4000 sq 5021 sq shop peripheral sale 27500 sq 34518 sq 3 shop 1000sq 1255 sq floor area limitation small service type shop type premise dominate occupancy site weighted favour peripheral type us ensures overall larger panel familiar commercial centre area peripheral sale vicinity subject land many peripheral sale occupy industrially zoned property highway frontage generally well established considered unlikely proposed rezoning major impact us wider range us permitted subject zoning fact planned estate major part direct frontage highway prospective occupier reliant total planned use site customer familiarity advertising 10 access onto site established change improvement need comply requirement various responsible authority carparking ratio permitted us included within planning scheme matter responsible authority considering application objection proposed rezoning city knox stated land rezoned office information advanced support statement event matter considered panel 1 appropriateness otherwise exhibited rezoning change planning scheme provision 6 finding recommendation conducted panel hearing considered written verbal submission inspected locality panel opinion proposed rezoning meet objective knox special peripheral business zone special provision clause 22x 10 w lil ensure orderly development zone proposed rezoning allow extension purpose built zone within us establishing complementary adjacent knox city shopping centre nature zone range permitted us floor space control directly comparable industrial area peripheral us usually locate zone specifically designed accommodate preferred occupancy appropriate method land use planning exception office floor space take tenancy site good site f extension existing peripheral sale area could expected attract appropriate tenant zone appropriate regard industrial occupancy adjacent panel recommends amendment rl41 applying rezoning lot 2 lp 114102 burwod highway wantirna south knox special peripheral business zone amendment provision zone allow extension peripheral business centre approved exhibited 11 dated 0a day 1989 j g mckenzie chairwoman panel appointed consider submission amendment rl41 metropolitan region planning scheme 12 appendix person appeared panel mr r guest representing ministry planning environment mr g garde representing summit knox ptd ltd expert witness called company mr p mclennan mr n rockcliffe mr n english mr e zagami mr mcp pitt representing city knox planning environment act 1987 metropolitan region planning scheme amendment rl41 appendix b prov ons section 153 planning environment act appoint mr gaye mckenzie one person panel hear consider submission amendment rl41 metropolitan region planning scheme date 21 nov 1988 tom rop minister planning ji nd 1 nvironme 1iit

Seeview Pty Ltd v. Chief Executive, Department of Lands [1996] QLC 62 (17 May 1996).txt

land court brisbane 17 may 1996 matter appeal valuation valuation roll 5186 72200 local government caloundra av95 225 seeview pty ltd v chief executive department land e c n matter arises valuation land act 1944 involves appeal landholder company unimproved value 91 000 placed subject land chief executive 1 january 1995 appellant contends value 67 000 mr colin gordon frank director th e appellant company appeared gave evidence behalf appellant whilst chief executive valuation supported registered valuer andrew gram employed department natural resource includes previous department land subject land comprises residential block 673 2 located 5 anderson street dicky beach city caloundra anderson st reet bitumen sealed road concrete kerbing channelling providing good access land property irregular shaped allotment gentle fall rear elevated mr gram language restricted sea view matter view impact feature value subject land main issue party useful stage make referen ce matter general principle law guide certain important aspect consideration section 45 4 valuation land act provides respect notice appeal notice shall state ground ppeal appeal shall limited ground stated burden proving every ground shall upon owner emphasis added section 3 1 b valuation land act provides definition unimproved value applicable subject case relation improved land caput l sum fee simple land might expected realise offered sale reasonable term condition bona fide seller would quire assuming time value required ascerta ined purpose act improvement exist manner improvement treated piece land valued purpose new south wale legislati included provision similar 3 1 b 2 mentioned described tooheys ltd v valuer general 1925 ac439 page 443 case privy council said valuer consider land would fetch date valuation impr ovements made made word could scarcely clearer show th e improvement left entirely view taken non existent never existed stated principle matter applying evidence presented statement tendered court mr frank wrote prior valuation date new home built directly behind property built right back onto rear bounda ry property 2 story construction pitched tile roof e ffectively 3 story sic height enclosed photo show home complete ly block ocean view n e view property house referred mr frank lo 250 split roof line western part low eastern part high mr frank said evidence patio highset house constructed subject land one see view west kawana northerly direction roof line house constructed land rear lot 250 5 metre gap house lot 250 adjoining house revealed view ocean described lovely view good lot next door 7 anderson street photograph tendered mr frank limited assistance appeared taken adva ntageous position view subject land might evaluated mr gram te ndered photograph greater assistance provided sense pe rspective position subject land mr gram photograph oral evidence lead conclude would possible construct house subject land would take better advantage site house currently constructed view north would enhanced new structure would situated closer western boundary current house however view north east would still interrupted high roof portion house constructed lot 250 accept mr frank evidence would necessary construct house three storey height height would approved local authority take advantage available view deciding question view manne r however dispose appeal real question sale evidence app lied arrive value subject land mr frank mr gram referred sale property adjoining subject 7 anderson street dicky beach sold price 110 000 august 1994 mr gram analysed unimproved value 108 000 applied 95 000 mr gram saw subject inferior sale slightly smaller area though longer 3 frontage similar aspect elevation sale superior term view sale block refer sale 1 unrestricted ocean north easterly view lowset house constructed block rear house constructed sale block positioned take advantage available view mr frank opinion price paid parcel land high purchased zealous person price may influenced fact land last vacant block street sold mr frank ge nerally agreed comparison made sale block subject land excepting th thought sale block preferable shape allowance made larger size sale area 710 2 compared subject 673 m2 defer moment consideration comparison sale 1 subject deal mr frank suggestion sale high support opinion mr frank referred sale lot 274 enfi eld crescent sold 60 000 presumably time far removed rele vant date mr fra nks view sale 1 would value 25 000 enfield crescent sale view available sale 1 therefore sale price 85 000 would argues appropriate mr gram gave evidence enfield crescent subject noise nearby intersection impact anderson street property southerly aspect compared unfavourably northerly aspect anderson street support sale 1 mr gram referred sale 2 located russell street shelly beach comprising area 668 2 applied value 92 000 sale 2 view speak superior location subject nearer beach facility area developed older style home located anderson street mr gram view sale 2 support level value indicated sale 1 mr frank aware sale 2 property however agree cross examination superior locati shelly beach area sale located would offset older home l ack view sale block basis shelly beach sale may use considering value anderson street accept evidence mr gram sale 1 adjoining subject market sale suitable basis comparison subject also accept mr gram comparison sale 1 subject supporting ch ief executive applied value 91 000 subject land agree value supported comparison shelly beach sale mr gram referred also sale enfi eld crescent applied value 60 000 sale together comparison enfield crescent area anderson street mentioned indicate figure 67 000 mr frank suggests placed subject land clearly wrong result appeal dismissed valuation placed subject land chief executive affirmed 4 rp scott member land court

DeGrey Civil Pty Ltd T_A DeGrey Civil re DeGrey Civil Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement [2012] FWAA 8253 (28 September 2012).txt

degrey civil pty ltd degrey civil degrey civil pty ltd bhpb iron ore growth project stage 1 awu greenfields agreement 2012 fwaa 8253 28 september 2012 fair work australiadecisionfair work act 2009s 185 enterprise agreementdegrey civil pty ltd degrey civil ag2012 8035 degrey civil pty ltd bhpb iron ore growth project stage 1 awu greenfields agreementbuilding metal civil construction industriesdeputy president mccarthyperth 28 september 2012application approval degrey civil pty ltd bhpb iron ore growth project stage 1 awu greenfields agreement 1 application made approval enterprise agreement known thedegrey civil pty ltd bhpb iron ore growth project stage 1 awu greenfields agreement agreement application made pursuant tos 185of thefair work act 2009 act agreement greenfields agreement 2 satisfied requirement ofss 186and187of act relevant application approval met 3 agreement contain flexibility term model flexibility term taken term agreement 4 agreement include consultation term model consultation term taken term agreement 5 agreement approved accordance withs 54of act operate seven day date decision nominal expiry date agreement four year date decision deputy presidentprinted authority commonwealth government printer price code g ae897115 pr529525

One Design Constructions v Moonee Valley CC & Ors [2009] VCAT 2049 (5 October 2009).txt

one design construction v moonee valley cc or 2009 vcat 2049 5 october 2009 last updated 12 october 2009victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1210 2009permit application mv 19447 2008catchwordssection 77 planning environment act 1987 moonee valley planning scheme residential 1 zone three storey building neighbourhood character relationship heritage overlay relationship activity centre urban village amenity impact applicantone design constructionsresponsible authoritymoonee valley city councilrespondentk sullivan otherssubject landno 65 maribyrnong road ascot valewhere heldmelbournebeforemargaret baird senior memberhearing typehearingdate hearing23 september 2009date order5 october 2009citationone design construction v moonee valley cc or 2009 vcat 2049orderleave granted substitute application plan plan dated july 2009 decision responsible authority permit application mv 19447 2008 affirmed permit granted permit issued margaret bairdsenior memberappearancesfor councilmr g testro lawyer applicantmr eccles town planner respondentms v carter mr l couisenery mr p mccormick mr w ramadan m c wilson person m kernan ascot vale resident action group inc informationdescription proposalconstruction five dwelling within three level building plus basement building entry would bayview terrace setback ground level range 2 475 3 25 metre along bayview terrace minimum 3 435 metre along maribyrnong road building would 9 metre high measured floor level ground floor peak small section pitched roof 10 2 metre level basement seven car space bicycle parking storage would accessed rear laneway would provide one space two bedroom unit one space three bedroom unit one visitor car space also proposed zone overlaysresidential 1 zone maribyrnong road within road 1 zone 1 permit trigger moonee valley planning schemeclause 32 01 development five dwelling clause 55 applies relevant scheme policy provisionsclauses 11 12 14 15 12 16 02 18 02 19 03 21 22 06 ascot vale character area 65 land descriptionthe review site south east corner maribyrnong road bayview terrace 419 6 square metre abuts lane rear south 2 land fall north east south west 3 metre abutting property south developed single storey detached dwelling heritage overlay ho18 applies property bayview terrace street east double storey dwelling 61 maribyrnong road single storey dwelling rising crest hill railway line west medical clinic single storey building north west evanswood property ho15 north east double storey unit high feature brick wall edgar street corner inspectioni advised party commencement hearing inspected locality 22 september 2009 revisited area 27 september 2009 reasonswhat proceeding one design construction proposes three storey apartment building corner site ascot vale moonee valley city council failed determine permit application within prescribed time one design lodged proceeding requesting tribunal grant permit 3 based issue raised submission must find whether proposal meet neighbourhood character requirement would acceptable term impact abutting property would acceptable term traffic parking impact andsatisfies requirement clause 55 rescode considered submission inspected site locality decided grant permit although site suitable redevelopment aspect design appropriate proposal achieve acceptable outcome term neighbourhood character impact amenity abutting property reason decision follow noting recited submission presented written material retained tribunal file proposal meet neighbourhood character requirement mr eccles submitted review site suitable medium density development agree land zoning main road corner location rear laneway access lack overlay factor influencing conclusion however consideration lot width slope different residential context presented maribyrnong road bayview terrace policy scheme respect neighbourhood character require carefully crafted design response prospect unit site issue however appropriate intensity development addressing matter mr eccles placed weight site good access public transport proximity union road activity centre around 300 metre moonee pond activity centre 400 metre support submission proposal responds positively state local policy supporting higher level development around commercial transport node urban village referred contradiction application moderate infill potential neighbourhood facilitation urban village specified clause 22 06 12 mr eccles also acknowledged site relationship heritage overlay area mr testro submitted proposal enjoy level policy support intensive development beyond reasonably expected residential area ascot vale relied two tribunal decision support submission 4 addition council respondent objector referred site context respect heritage overlay area ho18 ho15 said tribunal entitled take account impact proposal area even though site within heritage overlay mr testro resident submitted restrained approach required interface heritage overlay site good access service facility essentially reason set member hewet inturner 5 persuaded strategic imperative much higher intensity development review site factual circumstance ofturnerare different current proceeding lack clarity certainty respect urban village nomination relating union road strong influence case cannot assumed type urban village pursued elsewhere city moreland envisaged moonee valley would obviously help strategic planning work underpinning concept advanced articulated prepared second guess outcome might time policy framework applicable control make clear review site well placed medium density housing form would represent significant departure outcome expected application local policy scheme today main road corner location might allow wider variation hinterland intact case character policy 6 emphasise maintenance enhancement streetscape quality limiting development moderate form find relevant site interface maribyrnong road bayview terrace even though robust form possible along main road given corner location double storey dwelling east presence fewer heritage building unit development north eastern corner edgar street bayview terrace quality clearly linked heritage fabric building although element contribute character development around site western side terrace includes block two storey cream brick flat side property fronting maribyrnong road parade relationship heritage overlay area relevant area develop time site cannot treated though actually within overlay ho18 extends south edge lane rear site ho15 cover maribyrnong road north west site property north evanswood overlay well ho252 accept policy aim make efficient use site also find aspect development acceptable mindful many numerical standard clause 55 satisfied however non compliance numerical standard b8 site coverage b9 permeability b17 side rear setback b18 wall boundary 7 although objective standard refer within neighbourhood character test clause 55 02 objective decision guideline clause 55 03 3 site coverage 55 04 1 side rear setback clause 55 04 2 wall boundary include consideration existing preferred neighbourhood character moreover matter relevant assessing neighbourhood character turn main feature proposal find acceptable unacceptable contemporary architectural response acceptable location proposed height similar double storey dwelling east achieved setting northern elevation low ground find height along maribyrnong road streetscape problematic mindful high cream brick wall opposite design able achieve daylight access bedroom unit 1 overall form along elevation limited scope planting unlike setback brick development corner edgar street deep front setback good planting front landscaping strong feature part maribyrnong road dwelling unit tend setback giving sense openness would achieved boundary development sunken front setback treatment opaque glazed screening design included basement appropriate minimise visual impact parking area make efficient use land access rear lane contentious however think workable would better urban design outcome creating void bayview terrace streetscape basement ramp entry building bayview terrace appropriate design endeavoured achieve transition single storey dwelling south ground level along southern elevation however find setback sufficient achieve acceptable neighbourhood character outcome given three storey built form development would sit well forward 24 bayview road although laneway provides separation palm tree 24 provides visual break form prominent 3 metre ground level setback cantilvered upper level balcony 2 5 metre street contribute prominence form third level would also prominent given position site higher others south west another major concern relationship land east design includes narrow side setback ground first second floor eastern elevation would significantly impact 63 maribyrnong road massing along elevation reasonable expectation outcome regard character outcome clause 22 06 spacing building achieved much sought borrowed abutting site much emphasis placed presence low rise structure western boundary 63 maribyrnong road without due consideration visual impact three storey form would balance open space property summary dispute multiple dwelling possible site contemporary design form satisfied response achieves neighbourhood character outcome sought scheme much built form sought accommodated small site insufficient setback ameliorate impact building mass consider proposal would complement streetscape character bayview terrace particular given finding intend summarising conclusion respect key question provide guidance party future permit application acceptable term impact abutting property main issue raised submission visual bulk overshadowing winter well noise people site vehicle using lane accept submission respect visual bulk eastern elevation present adjacent property addressed accept submission respect unreasonable overshadowing winter equinox test prescribed clause 55 proposal complies also consider noise occupation dwelling would reason reject proposal use lane give rise potential impact dwelling 24 bayview road habitable room window onto lane could exposed noise possibly headlight glare westerly shift basement entry might resolve concern width lane questioned mindful downpipes service attached wall 24 bayview terrace potential damage wall related matter think concern could addressed bollard style treatment wall would probably require southern wall development bedroom 1 unit 2 setback would proposal give rise inappropriate access parking outcome major concern identified respondent objector relate adequacy parking within development given pressured street parking also referred concern respect operation intersection bayview terrace maribyrnong road ground relied upon council would find proposal reason amount parking proposed site accord standard b16 clause 55 resident visitor find need direct additional site parking even though parking may seem pressured use lane acceptable principle addition also need consider limitation visibility car departing lane pedestrian using footpath resulting wall north western corner 24 bayview terrace resident visitor may park street persuaded sufficient reason require site parking matter warrant rejection proposal number matter raised submission none would cause proposal fail matter included insufficient open space site wider area impact foundation devaluation property conclusionfor reason persuaded proposal represents acceptable outcome tested provision policy moonee valley planning scheme application allowed permit issued margaret bairdsenior member 1 permit application referred vicroads undersection 52of theplanning environment act1987

R v. Fursey [2008] QCA 324 (17 October 2008).txt

r v fursey 2008 qca 324 17 october 2008 last updated 17 october 2008supreme court queenslandcitation r v fursey 2008 qca 324parties rvfursey andrew leonard applicant appellant file ca 190 2008dc 1043 2006dc 3252 2006dc 3254 2006division court appealproceeding sentence applicationoriginating court district court brisbanedelivered 17 october 2008delivered brisbanehearing date 13 october 2008judges keane holmes fraser jjaseparate reason judgment member court concurring order madeorders 1 application leave appeal sentence granted 2 appeal allowed 3 vary sentence imposed district court extent relates commonwealth offence indictment 3252 2006 ordering applicant sentenced six month imprisonment direct order applicant released 23 october 2008 served period imprisonment 4 july 23 october 2008 upon applicant giving security recognizance sum 200 conditioned applicant good behaviour period five year 4 record court accepts undertaking applicant counsel give applicant explanation required bys 16f 2 thecrimes act 1914 cth 5 vary sentence extent relates state offence indictment 1043 2006 3254 2006 setting aside parole release date 21 december 2008 fixed district court instead fixing parole release date 23 october 2008 6 vary sentence ordering federal sentence state sentence served concurrently sentence imposed brisbane magistrate court 23 april 2008 varied district court 29 september 2008 7 otherwise confirm sentence imposed district court

Brazilian Butterfly Pty Ltd v Alissia Charalambous - PR968915 [2006] AIRC 521; (25 August 2006).txt

brazilian butterfly pty ltd v alissia charalambous pr968915 2006 airc 521 25 august 2006 pr968915australian industrial relation commissionworkplace relation act 1996s 45 appeal full benchbrazilian butterfly pty ltdandalissia charalambous c2005 4463 commissioner simmonds alissia charalambousandbrazilian butterfly pty ltd u2005 4207 vice president lawlerdeputy president hamiltoncommissioner hingleysydney 25 august 2006appeal award cost pursuant 170cj 2 admission fresh evidence appeal relevant principle section 170cj 2 b proper test applied appeal dismissed decision 1 application leave appeal leave granted appeal decision 1 order 2 commissioner simmonds made 8 august 2005 requiring appellant brazilian butterfly pty ltd pay respondent cost arbitration application pursuant 170ce 1 theworkplace relation act 1996 act numbered convenience refer appellant employer respondent employee 2 appeal heard commencement theworkplace relation amendment workchoices act 2005which inter alia effected renumbering act given primary decision argument decided reference number used pre reform act interest minimising confusion refer relevant provision reference old number unless otherwise specified 3 appeal full bench lie leave full bench 120 1 renumbered act full bench must grant leave appeal opinion matter importance public interest leave granted 120 2 renumbered act otherwise grant leave governed conventional consideration grant leave appeal appellate court include whether decision attended sufficient doubt warrant reconsideration whether substantial injustice may result leave refused appeal 45 pre reform act 120 renumbered act properly described appeal way rehearing power 120 7 renumbered act exercisable error part primary decision maker 3 4 power award cost conferred 170 2 clearly discretionary nature provides commission satisfied certain matter commission may make order cost 4 incoal allied operation pty ltd v australian industrial relation commission 5 high courtobserved 6 discretion notion signifies number different legal concept general term refers decision making process one consideration combination consideration necessarily determinative result rather decision maker allowed latitude choice decision made latitude may considerable example relevant consideration confined subject matter object legislation confers discretion hand may quite narrow example decision maker required make particular decision form particular opinion value judgment footnote omitted 5 subject appeal involves exercise discretion appellant must demonstrate error within principle inhouse v king 7 manner appeal exercise discretion determined governed established principle enough judge composing appellate court consider position primary judge would taken different course must appear error made exercising discretion judge act upon wrong principle allows extraneous irrelevant matter guide affect mistake fact take account material consideration determination reviewed appellate court may exercise discretion substitution material may appear primary judge reached result embodied order upon fact unreasonable plainly unjust appellate court may infer way failure properly exercise discretion law repose court first instance case although nature error may discoverable exercise discretion reviewed ground substantial wrong fact occurred 6 failure give sufficient weight relevant consideration may also involve error corrected appeal noted full bench recent decision offarquharson v qantas 8 relevant principle stated gibbs cj inmallet v mallet 9 meaning statement found authority appellate court may interfere exercise discretion reach clear conclusion weight sufficient weight given relevant consideration explained latham c j lovell v lovell 1950 hca 52 1950 81 clr 513 p 519 follows completely irrelevant consideration taken account really affected decision case clear order though made exercise discretion set aside similarly relevant consideration plainly ignored result follows appellate tribunal considering question weight regard position learned trial judge absence exclusion relevant consideration admission irrelevant consideration appellate tribunal set aside order made exercise judicial discretion unless failure give adequate weight relevant consideration really amount failure exercise discretion actually entrusted court see also per kitto j pp 533 4 gronow v gronow 1979 hca 63 1979 144 clr 513 principle similarly expressed stephen j pp 519 520 aickin j pp 534 537 8 see also per mason wilson jj p 525 present case clear bell j overlook factor full court referred said nothing indicate give adequate weight conclusion reached full court failed give proper weight explained fact honour disagreed conclusion however mere fact would made liberal provision wife justification substituting exercise discretion primary judge emphasis added 7 noted gibbs cj ingronow v gronow 10 principle similarly expressed stephen j said 11 serve little purpose refer numerous authority varying language unvarying emphasis describe principle applied appellate court appeal decision founded upon exercise judicial discretion judgment majority dissenting judgment fogarty j present case refer appropriate authority cite relevant passage principle doubt application principle particular case difficulty arise constant emphasis case reversal appellate court must well satisfied primary judge plainly wrong decision proper exercise judicial discretion authority teach error proper weight given particular matter may justify reversal appeal also well established never enough appellate court left would arrived different conclusion error law mistake fact present arrive different conclusion justify reversal due little else difference view weight follows disagreement matter weight mean necessarily justifies reversal trial judge assessment weight particularly liable affected seeing hearing party trial judge appellate court slow overturn primary judge discretionary decision ground involve conflicting assessment matter weight present case done emphasis added leave appeal 8 become apparent appeal raise tension binding decision full court federal court line full bench authority commission relation proper operation 170cj 2 given practical importance 170cj 2 resolution tension matter importance public interest leave appeal granted accordingly grant leave appeal required 120 2 renumbered act accordingly appeal proceeds rehearing background 9 27 june 2005 simmonds c upheld employee application relief termination employment 170ce act 12 summary found following fact applicant employed beauty salon receptionist employment applicant terminated wore open toed footwear sometime previously employer written note whiteboard used staff noticeboard indicating open toed footwear prohibited sometime employer introduced written policy specified closed footwear must worn bytherapists applicant therapist although occasionally assisted therapy room written policy superseded whiteboard note extent policy commissioner referred called policy applicant previously received written warning private use internet written warning prepared communicated applicant relation one authorised access confidential computer disk applicant receive written warning wearing open toed footwear however issue raised informally conversation could said constitute warning 10 primary decision liability commissioner determined would make order requiring company pay applicant amount equivalent 6 month pay le amount earned period termination 9 june 2005 end six month period addition amount holiday pay received termination also deducted 13 11 party directed confer view reaching agreement proper amount unable agree commissioner determined proper amount compensation pursuant 170ch 6 4 377 24 employee pressed application cost pursuant 170cj 2 filed previously relied inter alia offer settlement sum 4 800 facsimile dated 19 january 2005 12 paragraph 7 commissioner adopted statement principle inabbey v daycare management pty ltd 14 abbey 15 section 170cj 2 remedial provision apparent explanatory memorandum second reading speech parliament intended provision effective deterrent party continuing action face offer settlement ought reasonably accepted note inblagojevch v australian industrial relation commission marshall lehane jj observed doubt view section 170cj arm commission power designed discourage frivolous vexatious application encourage genuine participation conciliation reasonable genuine negotiation reference 170cj 2 acting unreasonably indicates action party application made judged reference standard reasonable person issue whether reasonable person position party cost application made would reasonably regarded offer question insufficient justify agreeing term settlement could lead discontinuance application certainly full hearing issue determined reference party version fact rather reference true fact party knew ought taken known distinction must drawn fact reasonably susceptible objective specification fact turn matter impression interpretation relation fact reasonably capable objective specification cost application determined reference fact found case fact turn matter impression interpretation commission ought proceed basis fact reasonably perceived party application made 13 commissioner concluded 9 applying reasoning present matter clear reasonable person would noted company written policy respect wearing open toed footwear date later claimed writing white board written policy applied therapist m charalambous therapist reasonable claim white board notice displaced later written policy also light company approach warning least one previous warning provided writing reasonable rely informal conversation later characterised warning justify termination breach called policy 10 much respondent least ought known notwithstanding went ahead terminated applicant summarily understand m storey submission made counter offer put forward behalf applicant senior deputy president certificate generally supported m charalambous position 11 circumstance consider unreasonable respondent agreed term settlement would led discontinuance matter therefore consider appropriate make order cost company cost limited cost necessarily incurred preparation conduct arbitration excluding proceeding 25 july 2005 order effect published separately ground appeal 14 employer sought lead fresh evidence appeal challenging factual conclusion paragraph 10 counter offer employer employer submitted evidence admitted factual basis commissioner decision would fall away 15 employer nevertheless maintained even application admit fresh evidence refused appeal still allowed ground set notice appeal evolved written oral submission summary employer submits commissioner erred failing identify unreasonable act omission employer extent act identified enliven operation section 170cj 2 failing take account give sufficient weight relevant consideration namely fact amount compensation ordered le amount employee offer settlement taking account paragraph 9 reason irrelevant matter bear upon whether employer acted unreasonably including alleged date written policy white board notice together employer approach warning andby misapplying test set paragraph 7 reason determining employer knew ought known circumstance set paragraph 9 effect employer submitted reasonable employer act perception particular matter decline settle perceived strength case light perception application admit fresh evidence 16 employee filed application cost decision liability quantum compensation ordered determined application formally pressed commissioner order compensation made asserted three offer said amount le judgment dated 27 june 2005 m storey repeated assertion submission submitted counter offer made employer 16 two offer said made separate conciliation remaining offer made facsimile dated 19 january 2005 8 week pay 600 per week ie 4 800 17 employee entitled rely upon offer made conciliation 18 mr millar challenged m storey submission employee offer le amount compensation ordered 19 otherwise challenge submission m storey 17 commissioner entitled act unchallenged submission m storey counter offer employer 20 u counsel employer correctly conceded commissioner factual finding paragraph 10 counter offer employer wrong material instead asserted material factually incorrect 21 counsel sought tender pursuant 45 6 fresh evidence appeal document demonstrating employer fact responded offer made employee made counter offer marked material identification mfi 1 employer submitted evidence admitted factual basis commissioner decision would fall away 18 concluded reject tender mfi 1 power admit evidence pursuant 45 6 discretionary discretion like discretion must exercised judicially interest justice interest justice confined interest party extend include broader public interest proper administration justice principle governing admission fresh evidence appeal court informed important consideration public policy including vital public interest finality litigation principle provide proper guide exercise discretion admit fresh evidence pursuant 45 6 halsbury law australiasummarises position common law follows 22 evidence received court must satisfied 1 evidence could obtained reasonable diligence use trial unless party evidence sought admitted guilty fraud 2 evidence high degree probability result proceeding would different received trial 3 evidence sufficiently credible footnote omitted 19 requirement cumulative second third requirement certainly satisfied first requirement 23 satisfied case persuaded discretion admit fresh evidence ought exercised favour employer particularly absence explanation failure lead evidence commissioner evidence certainly available led time alleged failure identify unreasonable act 20 employer first ground appeal commissioner erred failed identify unreasonable act employer contention proceeding misunderstanding 170cj 2 b section 170cj 2 provides 2 commission satisfied party first party proceeding relating application section 170ce acted unreasonably failing discontinue proceeding b agree term settlement could lead discontinuance application commission may application section party proceeding make order cost first party 21 thus 170cj 2 b specifies act commission must find find unreasonable make order 170cj b namely failing agree term settlement could lead discontinuance application commissioner made finding expressly paragraph 11 reason decision obligation commissioner identify unreasonable act alleged misapplication test 170cj 2 b 22 instagno v frews wholesale meat stagno 24 full bench commission considering application section 170cj 2 1998 rejected approach found cost might awarded party known case unlikely succeed full bench took view test applied required commission consider fact apparent applicant relevant time fact apparent ininder smith v nationwide news pty ltd inder smith 25 full bench 2000 considered even applicant may wrongheaded perception specific circumstance matter act unreasonably sense required section 170cj 2 26 23 inpolynol plastic aust pty ltd polynol 27 another decision 2000 full bench reviewed earlier full bench decision summarised effect follows 28 13 drawn decision view purpose determining purpose 170cj 1 whether applicant acted vexatiously without reasonable cause determining purpose 170cj 2 whether party acted unreasonably failing discontinue matter commission agree term settlement could lead discontinuance matter conclusion arbitration test whether upon fact apparent applicant relevant time substantial prospect success emphasis fact apparent applicant relevant time finding applicant perception fact wrong justify finding applicant acted unreasonably pursuing application purpose 170cj 1 relevant time initiation proceeding andfor purpose 170cj 2 relevant time time commission commenced arbitrating matter 24 meantime 170cj 2 considered full court federal court inblagojevch v airc blagojevch 29 marshall lehane jj moore j substantially agreed discussed comparison offer made eventual outcome proceeding made number observation operation 170cj 2 think basis act giving primacy particular factor section 170cj 2 directs attention reasonableness otherwise conduct party failing question arises agree term settlement reasonableness term offered together expressed willingness otherwise party enter negotiation relevant applying statutory test unlikely usually primary relevant matter certainly reason give primacy result mechanical comparison amount offered amount compensation ultimately awarded although applicant offer settle particular amount arbitration result award substantially lesser amount way compensation would doubt unusual circumstance respondent would held acted unreasonably rejecting offer see error commission approach aspect case 30 25 later honour observed generally doubt view 170cj arm commission power designed discourage frivolous vexatious application encourage genuine participation conciliation reasonable genuine negotiation avoid outcome kind happened case three day hearing commission followed separate application 170cj senior deputy commissioner full bench concerning claim maximum potential value significantly exceed amount actually awarded 10 500 inappropriate view take confined technical approach consideration matter relevant question whether party acted unreasonably failing either thing 170cj 2 concerned 31 26 honour also stated 32 knowledge part employer truth matter alleged applicant whether claimed warned taken account assessing reasonableness employer response applicant offer term offer could left employer doubt truth account would vigorously challenged may well course conclusion always follow case commission prefers evidence one party another unreasonable respond offer light offeree genuine perception recollection event commission finding case implicit false evidence deliberately given 27 moore j made observation particular honour observed 33 refer one matter adverted proceeding court developed length counsel applicant section 170 cj 2 b raise consideration whether party acted unreasonably failing agree term settlement failure agree comprehends rejection offer settlement probably section say refusal agree term settlement expression failing agree describes wider range conduct refusing agree offer made case counter offer made however rejection offer absolute qualified mean offer rejected counter offer made hand offer rejected counter offer made offer made monetary amount upper range might appropriate figure settle rejected counter offer made may opinion constitute conduct acting unreasonably failing agree term settlement circumstance circumstance might arise real dispute party amount matter might settled ordinarily course amount proceeding claiming inter alia monetary amount might reasonably settled depend actual perceived strength weakness case party however situation offer made fanciful counter offer made opposing party bring negotiation range opposing party thought reasonable failure make counter offer could depending circumstance constitute acting unreasonably failing agree term settlement emphasis added 28 moore j also observed usual case unlike case honour dealing employer relying forged fabricated evidence reasonableness assessed commission comparatively summary way considering position party offer settlement made context asking would known party time prospect case succeeding arbitration 34 statement seen warrant arbitrary decision making rather seen practical recognition lengthy reason required provided essential reasoning member exposed certainly occurred present matter 29 new 170cj 2 substituted act 100 2001 commenced 30 august 2001 appear material change critical word section old version 170cj 2 refers commission satisfied party proceeding acted unreasonably failing agree term settlement could lead discontinuance matter substituted section refers commission satisfied party acted unreasonably failing agree term settlement could lead discontinuance application 30 precise intent parliament substituting new 170cj 2 clear explanatory memorandum indicates parliament intended broaden circumstance cost could awarded item 31 subsection 170cj 2 3 4 5 58 item 31 proposes substantial amendment provision relating cost order termination employment provision 59 new provision would broaden scope cost order made various way firstly additional test relation liability cost would inserted section 170cj type behaviour give rise liability 60 secondly requirement existing test would simplified enable greater access cost 61 thirdly amendment subsection 170cj 2 3 4 would include express reference application initial application section 170ce new subsection 170cj 2 62 amendment proposes introduce new test ass whether cost awarded applicant proceeding 63 applicant party instituting proceeding would liable cost commission decides reasonably apparent applicant party instituting proceeding application proceeding substantial prospect success 64 test proposed subsection 170cj 2 relates merit application would require likelihood success low vexatious without reasonable cause criterion subsection 170cj 1 party knew ought known likely application proceeding would fail commission would discretion award cost le level certainty required subsection 170cj 1 emphasis added 31 notwithstanding emphasised portion explanatory memorandum actual text 170cj 2 altered make substantial prospect success test explicit even implicit 32 inemanouel v foti pty ltd 35 williams sdp first member commission consider effect substitution took view affect prior law honour appliedstagno inder smithandpolynol 36 33 inkangan batman tafe v hart kangan batman tafe 37 full bench commission considered operation 170cj 2 length notwithstanding making substantial reference toblagojevch full bench adopted statement principle inpolynol 83 view relevant test applied respect 170cj 2 set inpolynol 62 34 footnote 62 lengthy state print pr925608

Loulach Developments Pty Ltd v Roads and Maritime Services [2019] NSWSC 438 (18 April 2019).txt

loulach development pty ltd v road maritime service 2019 nswsc 438 18 april 2019 last updated 18 april 2019supreme courtnew south walescase name loulach development pty ltd v road maritime servicesmedium neutral citation 2019 nswsc 438hearing date 22 23 24 25 october 2018decision date 18 april 2019jurisdiction common lawbefore leeming jadecision 1 judgment defendant 2 event either party seek special order cost party supply agreed short minute order alternatively order contend submission evidence support within 14 day today 3 absence application order 2 received associate within 14 day today plaintiff pay defendant cost 4 exhibit returned catchword limitation period negligence cause action first accrued developer incurred material wasted expense sued lost profit wasted expense incurred six year proceeding commenced time profit prospective significance plaintiff confining claim lost profit significance interest sought protected common law cause action first representation statute barred defendant failed establish plaintiff incurred material loss second representation prior six year proceeding commenced cause action second representation statute barrednegligence duty novel duty care pure economic loss developer negligent misstatement statutory authority council significance assumption responsibility reliance vulnerability whether duty inconsistent sat ill statutory obligation applicable authority duty found relation second representationnegligence duty scope duty first representation made directly statutory authority developer whether representation went beyond question asked whether representation outside scope duty care first representation within scope duty carenegligence breach whether time representation made extant proposal widen realign road significance historical document significance failure give testimonial evidence significance concession proposal stage abandoned breach made outnegligence causation whether developer established would acted differently breach causation establishednegligence special statutory power whether statutory authority exercising special statutory power responding council civil liability act 2002 nsw 43aconsidered 43ainapplicablenegligence damage plaintiff case depended desired development built damage calculated reference hypothetical profit calculation desired development actual development whether plaintiff established chance desired development approved fall back case wasted expenditure damage case made outlegislation cited civil liability act 2002 nsw s 5b 5d 5e 43 43a part 4commonwealth aid road act 1969 cth environmental planning assessment act 1979 nsw s 62 64 65 66 67 96 149land acquisition term compensation act 1991 nsw limitation act 1969 nsw s 14 63local government act 1919 nsw 342ymain road act 1924 nsw 27eroad transport legislation amendment act 1999 nsw transport administration act 1988 nsw 52ainterim development order 1 city parramatta cl 4liverpool city centre local environmental plan 2007 cl 22bparramatta city centre local environmental plan 2007 cl 22bparramatta local environmental plan 1989 cll 3 9penrith city centre local environmental plan 2008 cl 26state environmental planning policy 11state environmental planning policy infrastructure 2007 cll 2 f 104 division 17 schedule 3state regional environmental plan 28 parramattacases cited allied pastoral holding pty ltd v commissioner taxation 1983 1 nswlr 1awabakal local aboriginal land council v minister administering crown land act 2008 nswlec 124badenach v calvert 2016 257 clr 440 2016 hca 18banque commerciale sa en liqn v akhil holding ltd 1990 169 clr 279 1990 hca 11blatch v archer 1774 engr 2 1774 1 cowp 63bowen another v paramount builder hamilton ltd 1977 1 nzlr 394brookfield multiplex ltd v owner corporation stratum plan 61288 2014 254 clr 185 2014 hca 36cal 14 pty ltd v motor accident insurance board 2009 239 clr 390 2009 hca 47caltex refinery qld pty ltd v stavar 2009 75 nswlr 649 2009 nswca 258chief commissioner state revenue v adam bidco pty ltd 2019 nswca 34christie v purves 2007 nswca 182 2007 aust tort report 81 899commonwealth australia v cornwell 2007 229 clr 519 2007 hca 16council v shortland management service 2003 57 nswlr 173 2003 nswca 156curtis v harden shire council 2014 88 nswlr 19 2014 nswca 314d agostino v anderson 2012 nswca 443dansar pty ltd v byron shire council 2014 89 nswlr 1 2014 nswca 364darley main colliery co v mitchell 1886 11 app ca 127darnley v croydon health service nh trust 2018 uksc 50 2018 3 wlr 1153deloitte touche v livent inc 2017 2 scr 855 2017 scc 63deta nominee pty ltd v viscount plastic product pty ltd 1979 vicrp 17 1979 vr 167forster v outred co 1982 1 wlr 86graham barclay oyster pty ltd v ryan 2002 211 clr 540 2002 hca 54hawkins v clayton 1988 164 clr 539 1988 hca 15henderson v merrett syndicate ltd 1994 ukhl 5 1995 2 ac 145hunter health district v mckenna 2014 253 clr 270 2014 hca 44ku ring gai council v chan 2017 224 lgera 330 2017 nswca 226l shaddock associate pty ltd v parramatta city council 1982 150 clr 225 1981 hca 59loulach development pty ltd v road maritime service 2018 nswsc 1402modbury triangle shopping centre pty ltd v anzil 2000 205 clr 254 2000 hca 61mutual life citizen assurance co ltd v evatt 1968 hca 74 1968 122 clr 556at 571 1968 hca 74noranda australia ltd v lachlan resource nl 1988 14 nswlr 1nram ltd formerly nram plc v steel 2018 uksc 13 2018 1 wlr 1190playboy club london ltd v banca nazionale del lavoro spa 2018 uksc 43 2018 1 wlr 4041roads traffic authority new south wale v refrigerated roadway pty ltd 2009 77 nswlr 360 2009 nswca 263robinson v chief constable west yorkshire police 2018 ac 736 2018 uksc 4san sebastian pty ltd v minister administering theenvironmental planning assessment act 1979 1986 162 clr 340 1986 hca 68scarcella v lettice 2000 nswca 289 2000 51 nswlr 302segal segal litton chilton v fleming 2002 nswca 262spandeck engineering pte ltd v defence science technology agency 2007 sgca 37 2007 4 slr 100sullivan v moody 2001 207 clr 562 2001 hca 59tepko pty ltd v water board 2001 206 clr 1 2001 hca 19wardley australia ltd v western australia 1992 175 clr 514 1992 hca 55warman international ltd v dwyer 1995 182 clr 544 1995 hca 18weber v greater hume shire council 2019 nswca 74wells v council city orange 2 2017 nswsc 510woollahra municipal council v sved 1996 40 nswlr 101wyong shire council v shirt 1980 146 clr 40 1980 hca 12texts cited p cane tort law economic interest oup 1991 land property information brief history record registrar general march 2013 tan goh promise universality 2013 25 singapore academy law journal 510r h burke history commonwealth grant legislation relating road road transport 1902 1972 occasional paper 8 1977 rfv heuston ra buckley salmond heuston law tort sweet maxwell 21st ed 1996 category principal judgmentparties loulach development pty ltd plaintiff road maritime service defendant representation counsel hale sc hume plaintiff n kidd sc n eastman defendant solicitor madison marcus plaintiff makinson apice defendant file number 2015 167414publication restriction nonejudgmentleeming ja northern edge parramatta cbd corner pennant hill road albert street distinctive modern multi storey building 3 basement car park level comprising 55 apartment 3 commercial tenancy developer plaintiff loulach development pty ltd construction complete around july 2012 large majority unit sold apparently realising considerable profit aerial view building constructed long street frontage pennant hill road building shadow fall onto albert street red line superimposed onto photograph depicts building footprint occupy entirety site site comprises lot 11 12 deposited plan 1052593 building erected solely lot 11 land adjoining pennant hill road within red line identifying site form extra wide footpath lot 12 august 2008 january 2009 loulach pursuing development consent build lot 11 defendant predecessor road traffic authority rta confirmed writing lot 12 required road statement constituted first representation second representation loulach contends time indeed many year earlier lot 12 wasnotrequired road loulach contends rta owed duty care made first second representation rta failed take reasonable care loulach contends told rta longer required lot 12 would obtained rezoning lot 12 applied obtained development consent build mixed use building occupying whole site rather merely lot 11 would made greater profit building one fact constructed loulach claim damage excess 5 000 000 overviewoverview loulach involvement site creation lot 11 12loulach incorporated 1996 shortly thereafter loulach mondray pty ltd lodged development application parramatta city council construction residential flat building containing 40 apartment car parking landsurroundingthe site consent granted building constructed land hatched diagram location map 1996 development application land subject litigation shaded yellow word prop road widening land join pennant hill road indicated plan anticipate central issue litigation later 2000 loulach mondray applied obtained development consent build another residential flat building land corner pennant hill road albert street albeit one much le tall constructed 2012 condition 2000 consent strip land along boundary pennant hill road three decade designated road widening dedicated council although building authorised pursuant consent never constructed subdivision required dedication occurred resulting loulach mondray lodging deposited plan dp 1052593 created lot 11 12 lot 12 399m2 lot 11 1051m2 deposited plan also stated lot 12 required road construction dedicated public road undersection 10of theroads act 1993 2000 consent lapsed loulach bought mondray interest lot 11 12 2006 rezoning land 2007 loulach obtained consent build much taller combined commercial residential flat building constructed wholly lot 11 consent unlike granted 2000 didnotinclude condition dedication lot 12 loulach continues day first representationblueprint property pty ltd owned family member people loulach assist loulach property development business early august 2008 blueprint completed lodged property information inquiry form rta form stated loulach owner lot 11 12 blueprint acting asked owner want develop site need know time factor road widening form addressed attention mr russell steele added please include time factor form stated cheque amount 27 00 enclosed herewith form appears sent express post envelope tracking receipt stuck copy tendered evidence form completed handwriting number hand least three possibly mr simon loulach said none handwriting accept evidence mr loulach evidence cross examined topic shortly beforehand conversation officer blueprint mr khater follows like saying discussion mr leba khater explained understand would road widening order property valuer trade lot work rms asked suggested maybe submit da put property information inquiry form ascertain whether rms required land reference mr loulach saying evidence q wanted know timing road widening likely take place correct correct look timing property enquiry form sort coincides date design competition completion ready get put submission da roughly around time said okay let figure rms still want piece land intention maybe communicated correctly transcribable maybe write correct purpose enquiry form regardless served purpose determining whether rms still required land sole purpose enquiry form account contained mr loulach affidavit merely recorded conversation form way submission request issue asection 149certificate put mr loulach oral evidence entirely fictitious denied letter dated 19 august 2008 mr steele behalf rta responded blueprint stating road traffic authority rta requires whole lot 12 dp 1052593 widening pennant hill road date set work commence however unlikely occur within next ten 10 year part lot 11 dp 1052593 required rta letter gave advice impact road proposal upon property development potential drew attention right landowner theland acquisition term compensation act1991

Janda & Janda (No 2) [2022] FedCFamC1F 610 (23 August 2022).txt

janda janda 2 2022 fedcfamc1f 610 23 august 2022 last updated 4 october 2022federal circuit family court australia division 1 janda janda 2 2022 fedcfamc1f 610file number syc 2295 2021judgment christie jdate judgment 23 august 2022catchwords family law interlocutory hearing property anti suit injunction wife seek join third party substantive proceeding third party claim husband debt owed third party commenced litigation supreme court nsw wife asserts husband third party depleting asset pool court must decide whether anti suit injunction reasonably necessary accrued jurisdiction legislation cross vesting act1987 cth 5 family law act 1975 cth 90af federal circuit family court australia family law rule 2021 cth rr 3 01 3 03cases cited ascot investment v harper 1981 148 clr 337 1981 hca 1 christie christie or 2007 37 fam lr 181 2007 famca 125 epstein epstein 1994 flc 92 445 1993 famca 119 marriage waugh 2000 flc 93 052 2000 famca 1183 pratten mcpherson 2016 famca 775 wakim ex parte mcnally 1999 198 clr 511 1999 hca 27 division division 1 first instancenumber paragraph 75date hearing 19 august 2022place sydneycounsel applicant mr deppelersolicitor applicant horowitz bilinskycounsel first respondent mr kasepsolicitor first respondent gordon barry lawyerscounsel fourth respondent mr foleysolicitor fourth respondent rockliffs lawyersorderssyc 2295 2021federal circuit family court australia division 1 m jandaapplicantand mr jandafirst respondentmr f jandafourth respondentorder made christie jdate order 23 august 2022the court order mr f janda fourth respondent joined party proceeding pending determination proceeding federal circuit family court australia division 1 fourth respondent restrained taking step prosecute claim relief proceeding number supreme court nsw supreme court proceeding discontinue proceeding b seek dismissal adjournment stay proceeding 9 september 2022 mr janda first respondent serve m janda applicant fourth respondent defence cross claim statement claim filed fourth respondent supreme court proceedingswithin 14 day receipt defence applicable cross claim behalf first respondent applicant file serve point claim setting relief sought fourth respondent factual basis relief b ground upon applicant maintains first respondent liability fourth respondent deed agreement dated 28 november 1998 c ground upon applicant maintains liability deed agreement dated 28 november 1998 wholly partly disregarded determining appropriate order make 79 thefamily law act 1995 cth act within 28 day date order first respondent file serve point claim setting relief sought fourth respondent factual basis relief b ground upon husband maintains liability fourth respondent deed agreement dated 28 november 1998 within 42 day date order fourth respondent file serve response wife point claim husband point claim court order consent within 30 day first fourth respondent act thing sign document necessary effect sale property known k street suburb l state nsw land described auto consol suburb l property best price reasonably obtainable following manner listing suburb l property sale method recommended real estate agent unless otherwise agreed first fourth respondent agent first fourth respondent may agree appoint default agreement within 14 day agent president real estate institute nsw shall appoint agent cost incidental appointment borne equally first fourth respondent fall due b price purpose sale suburb l property shall mutually agreed upon first fourth respondent absence agreement reached within 14 day price market value property assessed jointly agreed upon registered real estate valuer failing agreement within seven day representative president real estate institute nsw agent instructed reserve price husband fourth respondent c event bidding auction reach reserve price husband fourth respondent may negotiate highest bidder interested person shall effect sale suburb l property price 2 5 per cent reserve price first respondent fourth respondent shall co operate every way agent including without limiting generality foregoing making key available agent ii allowing inspection suburb l property reasonable time requested agent iii ensuring suburb l property including ground neat clean condition time inspection agent prospective purchaser e first fourth respondent shall execute contract sale form prepared solicitor conduct sale price agreed upon first fourth respondent absence agreement price nominated pursuant paragraph 2 b hereof cost properly payable solicitor conduct sale shall form part legal cost sale deducted proceeds herein provided f first fourth respondent shall instruct solicitor agree upon conduct sale behalf party absence agreement reached within 14 day date order shall instruct solicitor may appointed president time law society nsw solicitor cost incidental appointment borne equally first fourth respondent fall due g neither first respondent fourth respondent may confer agent without consent party right sole exclusive agency respect suburb l property commission h neither first fourth respondent incur cost relation preparing property sale including respect improvement without consent respondent settlement sale suburb l property proceeds sale paid following manner priority cost expense sale including legal cost disbursement incurred solicitor appointed order 7 f agent commission auction expense monies expended property prepare sale whether way improvement presentation sale repayment either party expense paid legal cost disbursement relating sale property agent commission auction expense improvement property b fourth respondent one half net proceeds sale ii sum 150 000 discharge principal owing loan made fourth respondent first respondent 3 april 2020 c balance transferred controlled monies account held gordon barry lawyer pty ltd behalf first respondent held pending order agreement party mr g g associate pty ltd valuer appointed court expert value applicant first respondent interest j pty ltd 30 june 2021 within seven day date order applicant first respondent sign send joint letter instruction g associate pty ltd term set draft letter instruction annexed marked b response application case filed 10 august 2022 response first respondent cause provided valuer profit loss statement balance sheet financial year ended 30 june 2018 30 june 2021 together initial joint letter instruction b information requested valuer within seven day date order applicant select one three expert chattel valuer nominated first respondent letter gordon barry lawyer horowitz bilinsky dated 24 may 2022 chattel valuer shall appointed court expert applicant complete sign return first respondent lawyer joint letter instruction term set draft joint letter instruction annexed marked c response upon completion valuation chattel within 21 day first respondent make available collection chattel party mutually agreed upon applicant retaining applicant first respondent pay 50 per cent cost court expense appointed undertake valuation proceeding b respective share mediator applicant first respondent file undertaking disclosure within 21 day applicant amended application proceeding filed 28 july 2022 dismissed party attend conciliation conference 7 november 2022 9 00 applicant required notify second third respondent conciliation conference date matter listed final hearing 13 february 2023 five day court note hearing proceed basis dispute relating fourth respondent dealt preliminary issue court note consent applicant maintain proceeding deed agreement dated 28 november 1998 fraudulent b signed day 28 november 1998 note form order subject entry court record note copy court reason judgment may subject review remedy minor typographical grammatical error r 10 14 b federal circuit family court australia family law rule 2021 cth record variation order pursuant r 10 13federal circuit family court australia family law rule 2021 cth section 121of thefamily law act 1975 cth make offence except limited circumstance publish proceeding identify person associated person witness involved family law proceeding noted publication judgment court underjanda jandahas approved pursuant tos 121 9 g thefamily law act 1975 cth reason judgmentchristie j application m janda wife seeking interim financial order mr janda husband mr f janda fourth respondent husband brother second third respondent excused interlocutory proceeding judicial registrar 25 july 2022 fourth respondent brother husband matrimonial cause federal circuit family court australia division 1 court court originally asked determine number interlocutory issue morning hearing assistance legal representative party reached consent outstanding issue leaving determination following whether husband brother party proceeding b whether anti suit injunction granted restrain husband brother proceeding application supreme court new south wale supreme court c whether matter granted expedition backgroundthe husband wife commenced cohabitation mid 1996 1997 mother husband fourth respondent died left property suburb l property husband brother equal share 28 november 1998 husband brother evidence say entered deed agreement deed essential term follows husband could occupy suburb l property b fourth respondent entitled paid 50 per cent market rent suburb l property c husband agreed pay cost incurred result living occupying property loan raised improve property agreed husband brother repaid equally set rent 1999 2001 husband say wife undertook work suburb l property way renovation total cost 110 000 wife say unaware existence deed husband separated february 2018 husband wife separated since separation husband wife faced significant health issue particular wife relies evidence advanced illness wife seek expedition proceeding opposed 9 july 2021 lawyer acting wife wrote lawyer acting husband brother indicating challenged indebtedness husband brother deed gave notice debt would subject litigation husband wife 31 march 2022 wife filed initiating application seeking interim final relief application seek order husband brother interim relief included order husband deliver original deed wife enable subject forensic examination 9 june 2022 fourth respondent filed statement claim supreme court seeking appointment trustee sell suburb l property proceeds sale distribution follows payment 50 per cent proceeds b payment 50 per cent proceeds husband le amount owing fourth respondent deed c repayment 150 000 loan husband brother husband interest b c evidence suggests 150 000 paid husband brother husband 144 082 used discharge loan secured suburb l property leaving property unencumbered evidence filed wife case dispute position 28 july 2022 wife filed amended application proceeding application sought order made affected husband brother including joinder injunction court faced application competition wife one hand seek third party injuncted continuing proceeding supreme court husband brother seek free pursue litigation completion husband counsel indicated written submission take position merit application anti suit injunction requested court grant anti suit injunction basis husband brother permitted seek order dismissal discontinuance transfer oral submission behalf husband counsel seemed step back neutral position adopted writing favour making anti suit injunction party presented proposed consent order relating outstanding issue discovery sale suburb l property appointment expert lawthefederal circuit family court australia family law rule 2021 rule provide joinder party rule 3 01 say person whose right may directly affected issue proceeding whose participation party necessary court determine issue dispute proceeding must included party proceeding rule 3 03 say 1 party proceeding may include person party naming person party application response reply b serving person copy application response reply relevant document filed proceeding 2 party may add another party proceeding started amending application response add name party 3 party relies subrule 2 must file affidavit setting fact relied support addition new party including statement new party relationship party b serve new party copy application amended application response amended response ii affidavit referred paragraph iii relevant document filed proceeding c serve party copy application amended application response amended response ii affidavit referred paragraph 4 party may add another party first court date leave court 5 party relies subrule 4 must file application proceeding ii affidavit setting fact relied support addition proposed new party including statement proposed new party relationship party b serve proposed new party copy application proceeding ii affidavit referred subparagraph ii iii relevant document filed proceeding c serve party copy application proceeding ii affidavit referred subparagraph ii power make order injunction binding upon third party question section 90af 1 read proceeding section 114 court may make order restraining person repossessing property party marriage b grant injunction restraining person commencing legal proceeding party marriage section 90af 2 provides proceeding section 114 court may make order grant injunction directs third party thing relation property party marriage b alters right liability property interest third party relation marriage act contains safeguard ensure interest third party overlooked power exercised contained s 90af 3 4 act 3 court may make order grant injunction subsection 1 2 making order granting injunction reasonably necessary reasonably appropriate adapted effect division property party marriage b order injunction concern debt party marriage foreseeable time order made injunction granted make order grant injunction would result debt paid full c third party accorded procedural fairness relation making order injunction injunction order subsection 114 1 court satisfied circumstance proper make order grant injunction e injunction subsection 114 3 court satisfied circumstance convenient grant injunction f court satisfied order injunction take account matter mentioned subsection 4 4 matter follows taxation effect order injunction party marriage b taxation effect order injunction third party c social security effect order injunction party marriage third party administrative cost relation order injunction e order injunction concern debt party marriage capacity party marriage repay debt order made injunction granted f economic legal capacity third party comply order injunction g result third party accorded procedural fairness relation making order granting injunction third party raise matter matter h matter court considers relevant accept serious step injunct party continuing litigation person stranger marriage step taken court satisfied matter 90af act appropriately addressed inascot investment v harper 1981 148 clr 337the high court australia high court noted 354 nothing word section suggests family court intended power defeat prejudice right nullify power third party require perform duty previously liable perform one thing order party marriage whatever within power comply order court even may effect position third party quite another order third party legally bound section intended prejudice interest third party way would necessary consider constitutional validity introduction 90af act change position scope power wide appropriately engaged necessary allow conduct hearing court christie christie or 2007 famca 125 2007 37 fam lr 181 albeit injunction bind party court also important take account importance judicial comity seeking injunct party proceeding another judicial officer different jurisdiction considerationit plain husband wife husband brother july 2021 dispute concerning indebtedness husband brother relevance dispute existing proceeding husband wife concerned much equity suburb l property would ultimately considered available division husband wife suburb l property home husband wife lived together december 2001 separation party suggested evidence stage husband brother entitled half share proceeds sale suburb l property dispute concerned extent husband indebtedness arising deed 31 march 2022 proceeding filed court 8 june 2022 husband brother filed statement claim supreme court husband brother offered undertaking deal fund half proceeds without notice wife plain husband offered undertaking wife respond offer prima facie husband brother entitled file statement claim jurisdiction choice prosecute proceeding completion without good reason anti suit injunction issue husband brother argued wife failed particularise basis upon contended liability brother illegitimate could heard complain husband brother brought proceeding court clear jurisdiction hear claim submission wife counsel said husband brother given notice liability would subject litigation court invited participate declined circumstance two court jurisdiction necessary weigh available factor determine whether set litigation continue simultaneously b one forum determine issue party sought transfer family law proceeding supreme court accordingly court offered opportunity determination issue one court one set proceeding favour application anti suit injunction husband brother made claim reasonably clear attached statement claim schedule respect market rent schedule respect rate insurance interest schedule schedule dealing offset mortgage payment loan taken effect improvement extent possible document filed husband brother supreme court proceeding determining precise quantum contends husband filed defence supreme court proceeding real risk continuation supreme court proceeding pose wife material filed court contends matter may relevant disposition proceeding wife party proceeding understand evidence court suggest deed entered husband brother known b undertook work suburb l property least potentially increasing value absent knowledge deed term c extent husband brother argue deed gave rise liability husband failed disclose liability third party circumstance would obliged make disclosure husband part contends sworn financial statement liability brother rent deed provides rent payable market value husband financial statement also refers interest plain obligation pay interest arises deed silent issue deed provides set borrowing rent party agree borrowing may dispute extent borrowing extent applied improvement extent repayment yet apparent evidence whether task subject evidence one court seems inevitable evidence led topic wife material contends litigation supreme court vehicle diminish pool asset available division husband position make finding submission stage proceeding matter heard determined court husband wife husband brother give evidence matter remains supreme court wife party proceeding unless joined position give evidence matter may impact upon interpretation deed court fails grant anti suit injunction sought effectively two set proceeding subject matter namely proper interpretation application deed accept wife failed establish injunction reasonably necessary cost party multiple litigation one matter considered accept submission made behalf husband brother ideally would involved proceeding husband wife wider scope capacity expensive productive greater delay delay told bar table supreme court matter listed late 2022 husband file defence 9 september 2022 husband counsel said order husband file defence cross claim 9 september 2022 told husband counsel act husband supreme court proceeding husband intend file cross claim case ordinary course husband brother required file defence unfortunate husband place evidence court concerning position taking supreme court proceeding sooner party identifies precision relief sought factual matter ground relief better opportunity resolution required consider whether court find deed enforceable granting injunction prejudice right husband brother recover debt confident regard equity property pool asset adjustment husband wife adequate money meet order may made favour husband brother due course party proposed order require sale proceeds held controlled monies account accordingly husband brother protection order indicated told defence statement claim supreme court yet filed infer content husband financial statement filed 10 august 2022 accepts debt owed brother without defence unable form view scope dispute husband say brother owed 545 200 plus interest statement also say amount disputed plain whether dispute calculation rent dispute calculation set dispute calculation applicability interest combination accept wife position give relevant evidence improvement suburb l property matrimonial home monies expended respect record wife appears made allegation authenticity deed accept position husband brother wife provided proper basis challenge understand position present wife say deed executed husband brother time dated understand case asserts aware existence document term fact alone may little bearing efficacy brother secondly contends husband made representation interprets intention part deplete pool asset available division position make finding issue denied husband however absent allegation fraud recent invention remain contentious factual matter interpretation application term deed potential equitable claim may arise depending upon ultimate factual finding part claim husband brother may face limitation issue issue remain determined statement claim filed husband brother plainly state position husband wife required likewise writing party know case obliged answer husband brother resists joinder basis wife yet identify specific relief sought understandable position remembered two base upon court may join third party first specific relief sought third party second interest directly affected understand wife position say know deed existed accepts exists counsel suggests also accepts may amount owed husband brother pursuant term deed court determine dispute liability husband brother manner allocates fund sale suburb l property wife unavailable husband meet debt brother husband brother would affected order court court hears dispute one set proceeding previously discussed wife party supreme court litigation husband indicates defence would difficult know whether interest theoretically affected manner litigation conducted plaintiff defendant supreme court interpretation applicability deed discrete issue wider scheme dispute husband wife existing third party wife daughter son law second third respondent counsel appeared behalf husband brother submitted application joinder premature understand husband brother wife may case one considers husband made position respect litigation plain either wife brother wife action seem designed ensure interest protected position taken husband brother unreasonably discrete issue may dealt expeditiously le delay shorter time frame fewer legal fee remained supreme court wife sought expedition final hearing court reliance upon ill health evidence filed wife support application includes report oncologist dr h wife prognosis report court would need little convincing allocate prompt hearing date party opposed expedition intend grant application allocate hearing date intend direct party attend mediation view resolving matter able give party hearing date february 2023 difference discrete matter may dealt supreme court finalisation court le acute might otherwise case husband counsel foreshadowed cross claim filed cross claim would likely extend timetable supreme court make argument based delay le convincing accept issue brother discrete albeit issue husband wife would potentially give relevant evidence intend make direction would effect dealing issue preliminary issue release husband brother balance hearing find determination issue reasonably necessary justice equity husband wife impact size pool asset available distribution find joinder husband brother necessary decision make interpretation deed may direct impact interest husband submitted wife failed demonstrate necessity grant injunction able demonstrate risk dissipation asset risk absent injunction claim may jeopardy test invoking injunctive power requirement applicant demonstrate injunction necessary prevent abuse frustration court process marriage waugh 2000 famca 1183 2000 flc 93 052 husband failure make position plain raised concern absent injunction husband brother could enter agreement effect may impact wife claim court observation made without benefit husband defence indeed outline position regard brother claim due course may evident sufficient asset available court without injunction issuing interlocutory stage conclusion unavailable proposed minute consent order party asked order pending determination proceeding federal circuit family court australia fourth respondent restrained taking step prosecute claim relief proceeding number 2022 supreme court new south wale c seek order supreme court new south wale transfer proceeding court pursuant tos 5 1 thejurisdiction court cross vesting act 1987 hearing indicated counsel view could make order drafted july 1988 thecross vesting act1987 cth cross vesting act came force 1999 high court handed decision inre wakim ex parte mcnally 1999 198 clr 511 wakim routine family court australia exercise cross vested jurisdiction make order matter filed state supreme court position changed 1999 wakimheld unconstitutional part scheme provided cross vesting state jurisdiction federal court accordingly since decision inre wakimthe accrued jurisdiction court achieved greater attention provided appropriate case matter fall within accrued jurisdiction court determined notwithstanding might arise proceeding filed state court counsel husband indicated relief based upon order matter calledpratten mcpherson 2016 famca 775 pratten per austin j fact inprattenwere analogous insofar contemporaneous proceeding supreme court family court australia case third party joined family law proceeding time filed separate proceeding supreme court seeking relief 66g theconveyancing act 1999 nsw third party case sought order transferring whole family law proceeding supreme court pursuant 5 4 thecross vesting act court power grant application supreme court power accept jurisdiction court pursuant thecross vesting act honour reasoning case determination entirety dispute heard family court australia arguably correct plain reason honour understood state proceeding could transferred thecross vesting act transpires given real dispute power court hear matter pursuant accrued jurisdiction delete proposed order 2 c without prejudice party right seek identical relief court also required husband serve defence wife particularises claim proper allows party use information prepare present respective case understand case also allows court properly understand substantive issue proceeding epstein epstein 1994 flc 92 445 procedural direction made address wife application expedition together party consent order effect ensuring expert evidence available ahead mediation event give party best opportunity resolve case without hearing event unable matter listed hearing certify preceding seventy five 75 numbered paragraph true copy reason judgment honourable justice christie associate dated 23 august 2022

Markovic v Banyule CC [2002] VCAT 707 (22 May 2002).txt

markovic v banyule cc 2002 vcat 707 22 may 2002 last updated 12 august 2002victorian civil administrative tribunalplanning environment listapplication p44 2002catchwordsapplication unders 80of theplanning environment act 1987 banyule planning scheme condition revegetation area clause 15 09applicant permit applicant markovicresponsible authority city banyulewhere heard melbournebefore margaret baird memberdate hearing 14 may 2002subject land 81 cleveland avenue lower plentyproposal construct dwelling including tree removal associated worksdate order 22 may 2002medium neutral citation 2002 vcat 707orderby consent condition 1 1 b 1 c 8 13 14 included permit p89 01 varied deleted order tribunal decision responsible authority respect condition 9 e varied refer additional revegetation area provided along northern boundary subject site additional planting across site instead revegetation area north west section subject site consequently permit p89 01 issued 4 december 2001 directed amended read follows 1 use development start amended plan satisfaction responsible authority must submitted approved responsible authority approved plan endorsed form part permit plan must generally accordance plan submitted application modified show level including modification driveway consistent landscape plan prepared mcfall dated 1 march 2002 2 use development shown endorsed plan described endorsed document must altered modified except written consent responsible authority 3 external cladding roofing dwelling hereby permitted shall non reflective nature must coloured painted muted earthy shade green brown grey colour satisfaction responsible authority 4 dwelling must connected reticulated sewerage system available waste water dwelling swimming pool must treated retained site accordance state environment protection policy water victoria environmental protection act 1970 5 prior commencement construction dwelling herby permitted separate application must submitted council environmental health service department approval effluent disposal system system shall generally accordance biocylce aerobic waste water treatment system irrigation shown report prepared jowa group dated 5 october 2001 modified approval council environmental health service department 6 dwelling must connected reticulated potable water supply alternative potable water supply adequate storage domestic use well fire fighting purpose satisfaction responsible authority 7 dwelling must connected reticulated electricity supply alternative energy source satisfaction responsible authority 8 vehicular access egress subject land roadway service lane must way vehicle crossing constructed accordance council vehicle crossing specification suit proposed driveway vehicle use crossing location design construction vehicle crossing must approved responsible authority vehicle crossing work carried council supervision road opening permit 9 development permitted permit must commenced satisfactory detailed landscaping plan whole subject land submitted approved responsible authority plan must prepared person suitably qualified experienced landscape design must generally accordance plan submitted council drawing 211 lc2 dated 17 august 2001 modified show identification tree already removed including specie approximate height b identification tree proposed removed including specie approximate height include tree proposed removal destruction lopping replacement boundary fence provision effluent treatment system c identification existing tree within 10 metre proposed house driveway pool retained measure ensure protection construction measure shall include installation sturdy temporary fencing canopy drip line prior commencement work site retention fencing construction completed ii site around tree mulched depth approximately 150mm iii excavation within 1m existing tree supervised arborist root cleanly cut detail proposed driveway shall designed minimise excavation adjacent existing tree site e provision revegetation area existing cleared area along north section property extending along northern site boundary north west corner land f replanting tube stock seedling local provenance including river red gum range indigenous understorey specie appropriate site within revegetation area well location across site shown landscape plan dated 14 2 00 g indigenous tubestock planted spacing 1 plant every 1 2 metre within revegetation area h maintenance schedule endorsed copy plan must form part permit 10 revegetation area shown endorsed plan shall managed following manner exotic pasture specie weed selectively removed sprayed pre planting followed mulching chipped pruningsb fencing area provided maintained exclude grazing livestock ongoing basis c plastic sleeve tree guard utilised protect planted indigenous tube stock11 tree within 10 metre proposed house driveway pool retained site shall satisfactorily protected building construction work accordance measure shown approved landscape plan 12 use allowed permit start landscaping work shown endorsed plan must completed satisfaction responsible authority maintained satisfaction responsible authority 13 subject land dwelling associated outbuilding paved area constructed must graded drained satisfaction responsible authority ensure stormwater discharge area occurs point discharge nominated responsible authority 14 permit expire one following circumstance applies development use commenced within two year date permit b development completed within two year date commencement responsible authority may extend time request made writing permit expires within three month afterwards margaret bairdmember planning environment listappearancesmr p borelli sjb planning pty ltd appeared behalf applicant review presented written oral submission m c wilson development planner appeared behalf responsible authority presented written oral submission called mr r brown botanical consultant give evidence number plan photograph document tendered tribunal material presented tribunal retained file taken consideration witness made available cross examination reasons1 application section 80 theplanning environment act1989 brought mr markovic review condition included permit p89 01 issued city banyule council 4 december 2001 application review lodged 7 january 2002 contesting seven condition included permit contested condition 1 1 b 1 c 8 9 e 13 14 2 commencement hearing tribunal advised party reached relation one contested condition order reflects agreement reached party relation resolved matter confirmed varied discussion hearing 3 reason therefore address remaining contested condition condition 9 e part condition requiring preparation landscape plan requires provision revegetation area existing cleared area within north western section property subject site locality4 subject site located north side unmade section cleveland road west side bond road land irregular shape total site area approximately 2 837 hectare site slope fall south toward yarra river floodplain 5 property extensive stand remnant woodland vegetation including river red gum yellow box also number studley park gum along two drainage line scientific well landscape significance land used grazing remains part existing building property little cleared area confined tree removed allow dwelling constructed pocket north west north subject site 6 surrounding area characterised rural residential lot among hill flood plain yarra river subject site one densely vegetated locale proposal7 permit p89 01 allows construction dwelling access via bond road work involve creation driveway excavation provide level area house driveway ground pool paved surround dwelling 6 8 metre height 5 bedroom study living area double car garage 8 advised work require removal 60 tree 25 removed prior issue permit plan show area required dwelling pool driveway surround order approximately 1 500 square metre plus additional area taking account driveway bond road plan show possible location dam cleared area around 540 square metre 9 revegetation area nominated immediate west dwelling pool area existing vegetation proposed filled revegetated indigenous tubestock seedling local provenance proposed revegetation area scale approximately 300 square metre planning scheme control provisions10 subject site zoned environmental rural accordance provision banyule planning scheme scheme permit required use develop land dwelling various decision guideline set considered tribunal 11 subject site also affected various overlay environmental significant overlay schedule 4 permit required removal vegetation vegetation protection overlay schedule 1 permit required removal native vegetation significant landscape overlay schedule 1 permit required removal native vegetation 12 overlay control contains objective decision guideline considered tribunal 13 clause scheme relevant consideration application considered tribunal include clause 15 09 clause 21 municipal strategic statement 22 04 environment policy clause 22 07 neighbourhood character policy clause 65 general decision guideline 14 subject site within bush woodland 1 precinct pursuant clause 22 07 clause set characteristic area statement desired future character among thing statement desired future character includes retention indigenous canopy tree requirement new development replant indigenous tree plant wherever possible 15 whole subject site identified banyule significant tree register nominates site significant local level botanical habitat basis basis decision16 considered submission evidence presented party examined applicable planning policy objective planning scheme allow application review part set summary finding relation condition 9 e 17 first summarise submission party m wilson submitted subject site affected range control reflect important environmental landscape value land evidence mr brown referred significance existing stand woodland important individual tree scientifically significant naturally occurring hybrid studley park gum m wilson submitted control place constraint land seek ensure development compatible identified environmental value unlike control said seek enhancement biodiversity faunal habitat significance landscape value area owner land area responsibility protect enhance value reason taking account provision clause 15 09 m wilson submitted provision revegetation area north west site existing cleared area justified help compensate visual impact approved dwelling enhance botanical landscape value site replace close equivalent area cleared dwelling associated paved area pool driveway noted mr brown evidence referred benefit revegetating area site rather simply planting certain number tree response mr borelli submitted reasonable allow clearing construction dwelling subject site require revegetation cleared area north west site would remove cleared area consequently limit number possible activity may form part rural residential lifestyle eg tennis court horse paddock given extensive planting remainder land cleared area visible public realm yarra river parkland nearby bond road mr borelli submitted revegetation would therefore contribute landscape value viewed location cleared area devoid tree many year planting weed management included within proposal enhance environmental value mr borelli also submitted requirement scheme equivalent area replanted rather clause 15 09 refers prudent feasible context land use instance given rural residential use fair reasonable remove cleared area remaining taking account limited vegetation many nearby property option permit holder assist planting nearby yarra river parkland 18 persuaded evidence mr brown subject site significance term botanical scientific environmental landscape term attractive quite special area well worthy protection enhancement sought raft planning control affecting 19 clause 15 09 state planning policy framework provision clause 22 07 relation bush woodland 1 precinct encourage replacement native vegetation removed clause 15 09 refers equivalent area provided prudent feasible context land use clause 22 07 requires new development replant indigenous tree plant however seek wherever possible 20 debate reasonable allow dwelling rural residential use site consequently requires vegetation removal also little doubt direction local state policy clear consistent seeking enhancement environmental landscape value context give great weight sparse cover woodland nearby site obvious intent scheme time achievement overall improvement enhancement across area affected control 21 application scheme policy requires judgement fair feasible context land use involved site circumstance subject site densely covered cleared area would allow example vegetable patch give access recreational activity desire sun free tree also applies example tennis court record make comment suitability cleared area development appreciate council view existing future owner land responsibility accept may forego cleared area also note proximity site yarra river parkland indeed availability cleared area occupant dwelling may may crucial individual concerned 22 cleared area identified revegetation condition 9 e largest cleared area land excluding created dwelling said mr brown 1 500 square metre area 23 second cleared area located western part site adjoining cleveland avenue alignment shown plan possible location dam given siting dam must guided specific locational factor absence obvious location dam part site appropriate revegetation time make comment made assessment merit dam location 24 observed hearing another existing clearing along northern boundary site area approximately 600 square metre mr borelli indicated client would oppose revegetation area m wilson remarked may suitable compromise note various version landscape plan planting area semi advanced red gum originally proposed refer landscape plan dated 14 2 00 longer part recent landscape plan permit condition earlier plan also show planting across site smaller cleared area 25 accept mr brown evidence area revegetation preferable basis revegetation cleared area abutting northern boundary would beneficial habitat landscape term albeit le achieved larger area north west area abuts remaining native vegetation adjoining property would consolidate stand woodland across property revegetation area also extended westward along northern site boundary north west corner site supplementing isolated gum 26 accept preferred mr brown planting native vegetation across site suggested earlier landscape concept dated 14 2 00 assist consolidate enhance remaining woodland stand subject site note mr brown concern referred council officer report semi advanced stock used requirement use indigenous tubestock seedling appropriate understorey specie dealt variation condition 9 f 27 conclusion provision revegetation area northern section site extending along northern boundary additional river red gum understorey planting across site supporting existing woodland community proposed revegetation area adjacent proposed dwelling shown plan together result reasonable outcome importantly give weight policy scheme direct enhancement environmental value subject site retaining flexibility associated rural residential use land 28 add permit condition reflecting requirement preclude revegetation north west section site current future owner moreover cleared area north west subject site used actively occupant grazing existing use right said council remain note mr brown evidence good prospect may regenerate naturally 29 assist party confusion full extent variation permit condition set permit condition full order reflect agreement party relation condition 1 1 b 1 c 8 9 e 13 14 determination relation former condition 9 e consequence finding former condition 9 f decisionfor reason set decision responsible authority varied order margaret bairdmember planning environment list

1214506 [2015] MRTA 655 (30 April 2015).txt

1214506 2015 mrta 655 30 april 2015 last updated 27 may 20151214506 2015 mrta 655 30 april 2015 decision recordapplicants mr sukhdeep kaur brarmr harmanjot singh brarmrt case number 1214506dibp reference clf2012 120648tribunal member patrick francisdate 30 april 2015place decision melbournedecision tribunal affirms decision grant applicant student temporary class tu visa statement made 30 april 2015 3 28pmstatement decision reasonsapplication reviewthis application review decision made delegate minister immigration 14 september 2012 refuse grant applicant student temporary class tu visa unders 65of themigration act 1958 act applicant applied visa 15 june 2012 delegate refused grant visa basis first named applicant applicant satisfy requirement cl 572 224 schedule 2 themigration regulation 1994 regulation delegate found applicant provided false misleading information bogus document claiming punjab national bank issued loan father mr karam singh delegate referred information provided manager particular branch bank effect loan sanctioned mr karam singh delegate concluded applicant failed meet public interest criterion 4020 accordingly cl 572 224 theapplicants appeared tribunal 11 november 2014 give evidence present argument tribunal hearing conducted assistance interpreter punjabi english language applicant represented relation review registered migration agent following reason tribunal concluded decision review affirmed consideration claim evidencethe issue review whether visa applicant meet public interest criterion 4020 pic 4020 required cl 572 224 grant visa broadly speaking requires evidence applicant given caused given minister officer tribunal relevant assessing authority medical officer commonwealth bogus document information false misleading material particular relation application visa visa applicant held 12 month application made pic 4020 1 andthe applicant member family unit refused visa failure satisfy pic 4020 1 period starting 3 year application made ending application granted refused pic 4020 2 andthe applicant satisfies minister identity pic 4020 2a andneither applicant family unit member refused visa failure satisfy pic 4020 2a period starting 10 year application made ending application granted refused pic 4020 2b requirement pic 4020 1 2 waived certain compelling compassionate reason justifying granting visa pic 4020 4 however waiver apply identity requirement pic 4020 2a 2b pic 4020 extracted attachment decision applicant given caused given bogus document information false misleading material particular term information false misleading material particular defined pic 4020 5 term bogus document defined 97 act see attachment decision contrast definition information false misleading material particular pic 4020 5 reference 97 document obtained false misleading statement requirement relevant criterion grant visa batra v miac 2013 fca 274 requirement pic 4020 1 provide bogus document false misleading information applies whether minister became aware bogus document information false misleading material particular information given applicant pic 4020 3 also applies whether document provided applicant knowingly unwittingly pic 4020 refers information false sense purposely untrue necessary minister tribunal review conclude applicant aware information purposely untrue order pic 4020 engaged trivedi v mibp 2014 fcafc 42 departmental file printout correspondence sent applicant july 2012 department invitation comment suspected fraudulent information supplied valid application student class tu visa part letter set applicant provided letter punjab national bank dated 25 june 2012 say karam singh son darbara singh overdraft loan 400 000 indian rupee property loan letter referred investigation officer punjab national bank confirmed loan existed applicant replied invitation email sent 12 july 2012 asserted loan existed nihal singh wala branch punjab national bank provided evidence money transfer australian bank account including letter purportedly branch manager although name provided nihal singh wala branch punjab national bank dated 10 july 2012 referring transfer fund loan account amount shown transferred applicant australian bank account 6 940 letter dated 10 july 2012 also contained telephone number outset hearing tribunal referred history matter including date reason delegate decision applicant confirmed neither representative lodged submission evidence prior hearing respect punjab national bank document name karam singh applicant said fund shown correct idea wrong tribunal asked applicant whether able offer explanation department received information punjab national bank loan account name karam singh applicant said know anything loan others made paper maybe something went wrong bank know karam singh anything wrong tribunal suggested two year clarify issue applicant initially silent response suggestion subsequently said india system australia know happened india tribunal noted applicant provided evidence fund transfer australian bank account provided direct evidence fund transferred loan account held punjab national bank account bank rather appeared transfer document provided department transfer ingvysya bank folio 44 departmental file response matter applicant stated getting information know bank done something karam singh bank giving information response question applicant said karam singh father tribunal queried requested provide detail account action would face seem easily open applicant claimed father memory loss problem tribunal queried whether somebody managed father affair could assist obtaining documentation applicant referred mother sending fee father behalf tribunal noted applicant claimed knowledge happened two year find represented registered migration agent addition could asked mother assist obtaining relevant documentation tribunal queried whether reason applicant made greater effort obtain evidence support claim applicant said father sick mother care mother sends fund whenever need said knew done wrong maybe sought chance known paper wrong sent tribunal asked applicant describe effort made demonstrate information provided regarding bank loan false misleading applicant said knew wrong document reiterated request chance tribunal explained relevant waiver provision reference compelling circumstance affect interest australia compelling compassionate circumstance affect interest australian citizen permanent resident eligible new zealand citizen applicant said circumstance moment wanted complete study second named applicant stated want say anything whether false misleading information bogus document lodged whatever done believed correct sought time make application different time visa may apparent applicant hearing little detail provide concerning allegation broadly claim simply know occurred implicit evidence unable find father lost memory tribunal place weight claim taking account applicant significant amount time obtain relevant information represented claimed father july 2012 incapacitated provide information indeed purportedly arrange loan june 2012 applicant responded department invitation comment letter 2012 apparent reason applicant could sought relevant document father mother father unable manage affair point time loan existed fact tribunal cannot see reason basis evidence applicant would unable obtain evidence fund transferred loan account different bank account transferred national australia bank account australia applicant could also potentially even mother assistance sought corroboration senior officer relevant branch punjab national bank provided statement punjab national bank letter head dated 10 july 2012 certifying amount 400 622 indian rupee transferred loan account provided bank statement showing transfer fund loan account applicant initial response suggested perhaps departmental information wrong fund held nihal singh wala branch punjab national bank baghapurana branch loan account however bank centralised system branch check detail loan branch applicant hearing repeat claim rather reiterated know occurred applicant provided copy delegate decision application review tribunal decision clearly set investigation carried australian high commission new delhi particular branch punjab national bank confirmed loan account exists name karam singh branch punjab national bank information confirmed departmental record referral note contained folio 74 departmental file information provided applicant tribunal form delegate decision applicant already addressed information response invitation comment adverse information tribunal obliged seek comment response accordance section 359a 359aa act tribunal prefers information provided department loan sanctioned mr karam singh punjab national bank applicant simple assertion know anything loan tribunal find evidence false misleading information form loan document given department support applicant student visa application tribunal satisfied find applicant given caused given information financial information clearly relevant application tribunal also find information purposely false result mistake administrative error tribunal find punjab national bank document dated 25 june 2012 bogus document purport issued respect mr karam singh fact issued therefore applicant meet pic 4020 1 requirement pic 4020 1 waived requirement cl 4020 1 2 may waived compelling circumstance affect interest australia compassionate compelling circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen defined r 1 03 applicant make contention relevant compelling compassionate circumstance affect interest australia australian citizen australian permanent resident eligible new zealand citizen justifying grant visa evidence tribunal would warrant making finding reason tribunal satisfied requirement waived therefore requirement pic 4020 1 waived basis applicant satisfy pic 4020 purpose cl 572 224 subclass visa class tu contains similar provision accordingly applicant would eligible subclass visa within class decisionthe tribunal affirms decision grant applicant student temporary class tu visa patrick francismemberattachmentmigration regulation 1994schedule 4 1 evidence minister applicant given caused given minister officer migration review tribunal relevant assessing authority medical officer commonwealth bogus document information false misleading material particular relation application visa b visa applicant held period 12 month application made 2 minister satisfied period starting 3 year application made b ending minister make decision grant refuse application applicant member family unit applicant refused visa failure satisfy criterion subclause 1 2a applicant satisfies minister applicant identity 2b minister satisfied period starting 10 year application made b ending minister make decision grant refuse application neither applicant member family unit applicant refused visa failure satisfy criterion subclause 2a 3 avoid doubt subclauses 1 2 apply whether minister became aware bogus document information false misleading material particular information given applicant 4 minister may waive requirement paragraph 1 b subclause 2 satisfied compelling circumstance affect interest australia b compassionate compelling circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen justify granting visa 5 clause information isfalse misleading material particularmeans information false misleading time given b relevant criterion minister may consider making decision application whether decision made information note regulation 1 03 defines bogus document meaning section 97 act migration act 195897 interpretationin subdivision bogus document relation person mean document minister reasonably suspect document purport issued respect person b counterfeit altered person authority c obtained false misleading statement whether made knowingly

Flowers v State of New South Wales [2020] NSWSC 883 (9 July 2020).txt

flower v state new south wale 2020 nswsc 883 9 july 2020 last updated 9 july 2020supreme courtnew south walescase name flower v state new south walesmedium neutral citation 2020 nswsc 883hearing date 02 july 2020date order 09 july 2020decision date 9 july 2020jurisdiction common lawbefore harrison jdecision application recusal trial jury dismissed catchword bias apprehended bias application judge disqualify himselfpractice trial trial jury whether trial jury interest justice legislation cited supreme court act 1970 nsw 85 2 b case cited flower v state new south wale 2020 nswsc 526maroubra rugby league football club inc v malor 2007 69 nswlr 496 2007 nswca 39category procedural rulingsparties mark stephen flower plaintiff state new south wale defendant representation counsel williams defendant solicitor mccabe curwood defendant file number 2019 117371publication restriction niljudgmenthis honour notice motion filed 22 june 2020 mr flower move court order recuse authority determine issue law fact proceeding application apparently supported mr flower affidavit filed 22 june 2020 unfortunately mr flower affidavit contain single piece relevant evidence directed question actual apprehended bias part indeed presently advised idea mr flower contends support desire remove hearing contested issue proceeding basic test whether fair minded lay observer knowledge material objective fact might reasonably apprehend judicial administrative decision maker might bring impartial unprejudiced mind resolution question hand nothing contained mr flower affidavit address test moreover matter came argument mr flower sought orally reproduce matter referred affidavit declined permit declined offer make submission addressed issue hand circumstance consider mr flower application misconceived dismissed indicated mr flower event declined recuse requested would return question whether entitled case determined jury issue remains current regard said inflowers v state new south wale 2020 nswsc 526at 17 follows 17 nature thing regard fundamental proposition thats 85is invalid force effect mr flower address issue apparent consider thats 85operates applies present circumstance govern question mode trial mr flower wished contend despite called jurisdictional point case warranted trial jury interest justice depart usual mode trial course given opportunity circumstance given way mr flower approached matter direct within 21 day advised furnish written submission exceeding five page setting reason opinion interest justice case lead conclusion jury determine whether demonstrate prosecuted without reasonable probable cause maliciously quantum damage entitled accordance direction mr flower provided written submission dated 3 june 2020 take directed question whether could satisfied interest justice require trial jury proceeding see 85 2 b thesupreme court act 1970 reason fact trial jury shown course proceeding far matter paramount importance mr flower seems despite length submission reproduced full order obviate eliminate possibility misunderstanding position issue follows 2 trial jury interest justice case attempted murder plaintiff blowing whistle attempt plaintiff life assailant believed directly linked case whilst honour made mention 8 5 20 regard violent life threatening attack plaintiff honour acknowledged supreme court nsw furnished special circumstance document filed 13 8 19 document made quite clear plaintiff life risk nsw police reprisal fact said risk murdered nsw police 3 trial jury available interest justice well honour possession filed evidence prof 4 trial jury interest justice case wrong honour say mr flower complied act page 4 point 5 judgment rule regard tosection 85requisition trial jury honour supreme court nsw possession requisition trial jury 13 8 19b application fee waive 13 8 19it fault supreme court taken 10 month confirm already know mr flower entitle fee waive cost due homeless position centrelink payment position mr flower complied act rule tos 85 5 trial jury interest justice case case involve proving reasonable probable cause malicious prosecution specific bathurst matter plaintiff additionally relies connecting historic evidence heard jury prove state denied pattern abuse plaintiff simple case corrupt state nsw abusing plaintiff 15 year proven evidence honour 6 trial jury interest justice case honour refuse acknowledge evidence filed original file 2018 348865 15th april 2019 large affidavit wonder honour file closed without judgement specific evidence abuse process supreme court nsw closed file main evidence case file never closed fashion portion closure agreed discovery summons commenced plaintiff former lawyer 2018 348865 state allowed discovery end filed 2018 348865 soc large affidavit agreed honour proposition could subpoena discovery case progressed agree file number 2018 348865 closed interest justice reopen file connect 2019 117371 one file one case 7 trial jury interest justice case honour taken word bar association law society gospel case plaintiff un legally trained position unworthy fact structure accuracy fact evidence speaks damn state honour questioned mr williams state fishing expedition plaintiff better particular supply answer 53 state question regard whether plaintiff answered state fishing expedition mr williams said honour fact muddied water could state nsw via state employee mr williams judge plaintiff answer 53 question give opinion state appointed judge saying benefit answer provided plaintiff help court mean would mr williams say mr flower nailed u sunk police officer go gail neither state judge state lawyer position judge answer evidence statement claim accepted evidence provided answer stand test state fear trial jury case moment state bullying hide state conspiracy serious conspiracy 8 trial jury interest justice case state via supreme court nsw bullied pressured position current statement claim filed 15 11 19 effect weeded evidence state nsw cant defend party notice damning historic evidence human right violation major connecting evidence submitted 15 11 19 soc amended soc stream state nsw bullying stood state need provide defence previous torture evidence human right violation evidence bullied self litigant claim state influence defendant named soc 9 trial jury interest justice case state nsw failed provide full discovery nsw police full file plaintiff 10 trial jury interest justice case supreme court nsw via honour ordered plaintiff attend pro bono meeting assist court bar association law society state nsw refused help plaintiff draft soc even order honour plaintiff could even hire lawyer nsw draft soc acceptable form plaintiff denied legal representation level corruption judicial legal fraternity nsw jury needed state currently judging self acceptable 11 trial jury interest justice case supreme court process shown fairness plaintiff honour remind plaintiff soc hanging thread honour intervened asked better particular sought help save soc real problem simply state nsw systemic corruption action nsw police judicial thwart plaintiff claim jury needed case could prove pure corrupt denial justice supreme court nsw party knew mr flower suffered injury previously ptsd life long hand nsw police accurate evidence file case trial jury lest supreme court brought disrepute along state nsw 12 trial jury interest justice case 13 8 19 honour furnished apprehension bias document filed supreme court nsw additionally explains reality plaintiff major concern state judging state 13 trial jury interest justice case ordered mediation sought mr williams farce waste public fund intent mediate intent settle state state bullied plaintiff 15 11 19 soc position plaintiff historic connecting evidence state torture human right violation removed satisfaction state trial jury needed defendant name suppressed longer meant state achieved goal defending case want defend allowed continue evidence stand test watered state refile 2nd hopefully last amended soc already supreme court email filing soon sealed forward copy parity fairness see attached copy unsealed version soc human right violation torture evidence rely also assist fairness front page page 20 point 63 additional torture evidence human right breach evidence 14 mediation opportunity possible though format actual torture human right breach evidence leading current malicious prosecution pattern abuse towards plaintiff acknowledged proceeding brought mr flower seeking damage malicious prosecution elsewhere referred described circumstance mr flower allegation said arise unremarkable scheme similar claim others court interest justice require jury determine standard required bys 85 2 b high absolute namely judge must satisfied interest justice require trial jury instant proceeding maroubra rugby league football club inc v malor 2007 69 nswlr 496 2007 nswca 39at 32 satisfied forming view regard mr flower submission regrettably discursive unfocussed unable detect anywhere submission reasonable basis conclusion interest justicerequirea jury trial case also deference mr flower enthusiasm endeavoured look beyond submission possible basis concluding interest justice require trial jury even though specifically mentioned mr flower unable find anything might qualify circumstance decline order unders 85 2 thesupreme court act 1970that proceeding tried jury direct proceeding listed registrar direction 15 july 2020 anticipation party ready approach list manager allocation hearing date

Thurston & Carden [2015] FCCA 1790 (29 June 2015).txt

thurston carden 2015 fcca 1790 29 june 2015 last updated 27 july 2015federal circuit court australiathurston carden 2015 fcca 1790catchwords family law child parenting order application vary earlier parenting order consent order made 29 september 2011 ambiguous order lack precision likelihood confusion one child aged ten year interim order best interest child parental responsibility equal shared parental responsibility substantial significant time parent legislation family law act 1975 cth s 60ca 61da 65daa 70nebcases cited thurston carden 2013 fcca 1298applicant m thurstonrespondent mr cardenfile number pac 4038 2010judgment judge scarletthearing date 24 july 2014date last submission 24 july 2014delivered sydneydelivered 29 june 2015representationthe applicant personthe respondent personordersuntil order 1 order made consent 29 september 2011 suspended 2 mother father equal shared parental responsibility long term care welfare development child x born omitted 2005 include major medical decision child health b decision school educational institution child attend c decision child surname decision child religious upbringing 3 parent sole parental responsibility day day issue relating child care welfare development including day day medical decision child care parent accordance order 4 child x live mother 5 child x spend time father follows alternate weekend school term immediately school friday commencement school monday morning provided monday following weekend public holiday commencement school tuesday morning b half autumn winter spring school holiday period second half 2015 odd numbered year thereafter first half 2016 even numbered year thereafter c christmas january school holiday period commencing 2015 odd numbered year thereafter immediately school last day school term 9 00 20 december ii alternate week 5 00 pm 4 january commencement school first day child required attend class commencement first school term christmas january school holiday period commencing 2016 even numbered year thereafter 9 00 20 december 5 00 pm 4 january ii alternate week commencing 5 00 pm 11 january commencement school first day child required attend class commencement first school term e father day occurs weekend father spending time child accordance order 6 00 pm saturday immediately father day commencement school following monday f child birthday immediately school 7 30 pm child birthday fall school day 10 00 2 00 pm child birthday fall weekend public holiday provided child birthday fall day child would otherwise spending time father accordance order provision order apply g father birthday immediately school 7 30 pm father birthday fall school day 10 00 2 00 pm father birthday fall weekend public holiday provided father birthday fall day child would otherwise spending time father accordance order provision order apply 6 avoidance doubt father time child weekend accordance order 5 recommence start school term follows child spent last week immediately preceding school holiday period mother father time recommence first weekend school term b child spent last week immediately preceding school holiday period father father time recommence second weekend school term 7 avoidance doubt school holiday purpose order 5 b deemed commence immediately school last day child required attend class end school term deemed end 5 00 pm day commencement school first day child required attend class start school term thus pupil free day teaching staff school regarded part school holiday period day school term 8 notwithstanding provision order father time child x suspended weekend includes mother day 6 00 pm saturday immediately mother day commencement school following monday morning b child birthday birthday fall weekend public holiday child would otherwise care father accordance order 10 00 2 00 pm c mother birthday immediately school 7 30 pm mother birthday fall school day 10 00 2 00 pm mother birthday fall weekend public holiday 9 changeover child x go care one parent care parent take place child school father time child commences immediately school concludes commencement school 10 changeover take place omitted railway station place party may agree writing purpose writing includes email 11 father telephone contact child tuesday thursday week purpose mother telephone father mobile telephone number hour 6 30 7 00 pm thereafter hand telephone child may speak directly father 12 father may telephone mother purpose speaking child reasonable hour either saturday sunday evening child care mother 13 party must allow child speak party telephone privacy 14 party restrained injunction abusing criticising denigrating party presence hearing child x permitting third person 15 party restrained injunction discussing court proceeding child showing court document 16 party must inform soon reasonably possible child ill attend school suffers illness injury requiring treatment medical practitioner hospital 17 parent entitled attend school social sporting educational event involving child including limited theatre performance sporting event school activity prize giving ceremony concert special assembly christmas party activity parent child attending child school normally invited attend purpose parent must inform parent activity reasonable time beforehand 18 party must inform party residential address landline mobile telephone number email address telephone number workplace used emergency purpose advise change detail within 48 hour change occurring 19 party authorises medical practitioner dentist health professional treat child purpose hospital child receives either outpatient inpatient treatment provide party information child health condition upon reasonable request party 20 party permitted obtain child school information child attendance performance school mean school report attendance parent teacher interview direct inquiry member school staff reasonable time 21 application adjourned monday 1 february 2016 mention 10 00 noted publication judgment pseudonymthurston cardenis approved pursuant tos 121 9 g thefamily law act 1975 cth federal circuit courtof australiaat sydneypac 4038 2010ms thurstonapplicantandmr cardenrespondentreasons judgmentapplicationthis application mother girl called x vary parenting order made 29 september 2011 father filed response seek vary order application arose result contravention proceeding brought mother last year thurston carden 1 proceeding one count alleging contravention father order made 29 september 2011 found proved others dismissed ambiguity earlier ordersit became clear proceeding consent order 29 september 2011 lacked clarity order failed cover obvious event birthday mother day commented decision paragraph 97 99 97 view applicant correct told court hearing whatever outcome clear order bit ambiguous clearly case current order view inadequate requirement party appear low degree communication high degree suspicion ability motif 98 whilst situation good either parent one whose interest really need considered daughter current order appear best interest court required bys 60caof thefamily law act 1975to regard best interest child paramount consideration making parenting order 99 current order deficient number reason shown case 2 adjournment proceeding allow application parenting orderthe proceeding court therefore adjourned provision ofs 70neb 1 c thefamily law act 1975to allow one party apply parenting order division 6 ofpart viithat discharge varies suspends primary order party duly filed application response directed attend child dispute conference family consultant party saw family consultant 5 may 2014 obvious child dispute conference memorandum court dated day mother father spoke freely frankly family consultant effort arrive clearer workable parenting arrangement family consultant noted party many area agreement damaged parenting relationship allows see 3 family consultant summarised issue way fundamentally appear agree order 2011 adjustment made pointed judge scarlett judgment 24 september 2013 tightening weekend return time incorporate public holiday pupil free day specifying return time last half school holiday either day first day child attend school providing x birthday special occasion tightening weekend routine activated school holiday 4 interim parenting ordersi suspended operation consent order 29 september 2011 hoped discharged fresh final order made meantime made order order interim order greater degree precision far le ambiguity order intended replace without varying apparent intent party entered earlier order however earlier order 15 16 reproduced appear drafted someone understand concept parental responsibility whether equally shared solely held one party order provide equal shared parental responsibility long term issue sole parental responsibility day day matter child care one parent clearly child fall cut leg requiring stitch parent child would require permission parent rush child emergency department nearest hospital convenient medical practitioner treat child parent would required tell parent happened done treat child soon reasonably possible one parent form view child removed present school enrolled another school would clearly long term decision made party jointly seen revised order public holiday pupil free day birthday mother day father day covered hoped clearly without doubt interim order drafted best interest child paramount criterion intended provide child spend substantial significant time parent family law act 1975 65daa happen matter mentioned early new year party opportunity give proposed order proper trial obvious difficulty order made final order party loggerhead proceeding set final hearing order intended provide clear guide parent girl 10 year old relationship parent day day life daughter proceed smoothly without acrimony arrangement would clearly x best interest certify preceding sixteen 16 paragraph true copy reason judgment judge scarlettassociate date 30 june 2015 1 2013 fcca 1298 2 2013 fcca 1298at 97 99 3 child dispute conference memorandum court 5 5 2014 page 1 4 child dispute conference memorandum court page 1

R v Pavicevic [2004] NSWCCA 80 (27 February 2004).txt

r v pavicevic 2004 nswcca 80 27 february 2004 last updated 1 april 2004new south wale court criminal appealcitation regina v pavicevic 2004 nswcca 80file number 60470 03hearing date 27 02 04judgment date 27 02 2004parties regina v dusan pavicevicjudgment james jlower court jurisdiction district courtlower court file number 2001 0045lower court judicial officer milson dcjcounsel francis applicantp ingram crownsolicitors b sandland applicant kavanagh crowncatchwords criminal law sentencing principle drug courtlegislation cited drug court actcriminal appeal actcrimes sentencing procedure actdecision appeal dismissedjudgment court ofcriminal appeal60470 03james j27 february 2004regina v dusan pavicevicjudgment1james j dusan pavicevic appealed sentence imposed 11 november 2002 parramatta drug court honour judge milson sentence imposed judge milson 11 november 2002 final sentence imposed pursuant 12 thedrug court act act initial sentence offence imposed order made imposing condition drug program undertaken appellant execution initial sentence suspended appellant time undertaken drug program drug court decided 6 august 2002 terminate appellant drug program drug court 11 november 2002 reconsidered initial sentence 2 appeal originally listed bench three judge constituting court criminal appeal however court drew party attention 5af 3 thecriminal appeal act provides power court criminal appeal hear determine appeal 5af exercised single judge supreme court chief justice may direct subsequently chief justice directed hear determine appeal 3 8 may 2001 judge milson dealt appellant accordance 7 act relation fifteen offence appellant pleaded guilty local court offence consisted four offence receiving two offence good custody two offence breaking entering stealing one offence breaking entering intent two offence possession prohibited weapon one offence possession housebreaking implement one offence possession car breaking implement two offence maliciously damaging property offence committed 16 may 2000 27 december 2000 4 8 may 2001 judge milson imposed sentence imprisonment six month offence except two offence breaking entering stealing offence breaking entering intent two offence breaking entering stealing committed 16 november 2000 6 december 2000 respectively honour imposed sentence imprisonment one year eight month two week honour arrived term one year eight month two week deducting period approximately three half month 27 december 2000 11 april 2001 appellant custody period two year honour said would otherwise length sentence honour would imposed honour imposed sentence imprisonment one year offence breaking entering intent 5 imposed sentence initial sentence pursuant 7 2a act honour made order pursuant 7 3 act imposing appellant condition appellant accepted condition drug program undertake honour made order pursuant 7 3 b act suspending execution sentence duration drug program 6 appellant entered drug program para 13 18 inclusive judge milson remark sentence 11 november 2002 honour summarised history appellant participation drug program para 13 18 remark sentence honour said entered drug court program sentencing offence today required take account nature participation drug court program entered may 2001 remained program went custody 17 july 2002 arrested subsequent offence progressed satisfactorily although sanction repeated drug use number occasion one occasion warrant issued failed come court subsequently surrender without execution warrant medical certificate explain absence november moved phase two drug court program december continuing go well summary put seven month compliance program many respect well congratulated much sanction imposed breach program waived reward good performance program january 2002 thing started get worse stopped taking naltrexone drug test revealing presence illegal drug appeared time effect abandoned program coming court thirty first failing obey direction come court given nurse number heroin us cocaine use missed drug test stage anxious starting resuming tafe course certainly drug court program 20 february 2002 employer thought highly came support even though continued breach program serve custodial sanction end program fact served forty four day custody breach program abandoned program march warrant executed month later light evidence court heard going sister place queanbeyan detoxified court aware remained treatment decided could continue may offence involving dishonest use somebody else motor vehicle arrested fairfield court decided give opportunty prove remained useful purpose within drug court program could come pas left warrant issued charged number offence 7 23 march 2002 17 july 2002 appellant committed fourteen offence offence two offence driving conveyance without consent three offence unlicensed driver two offence possession car breaking implement one offence good custody one offence driving dangerous manner one offence stating false name driver vehicle one offence taking driving conveyance two offence larceny one offence self administering prohibited drug 8 appellant arrested 17 july 2002 remained custody 17 july 2002 11 november 2002 6 august 2002 drug court pursuant 10 act terminated appellant drug program basis appellant failed comply program court satisfied appellant unlikely make progress program 9 11 november 2002 judge milson reconsidered initial sentence imposed appellant 8 may 2001 also sentenced appellant offence committed 23 march 2002 17 july 2002 remark sentence delivered 11 november 2002 judge milson stated fact original offence summarised history appellant participation drug program referred medical evidence appellant including evidence dr reid correction medical service summarised criminal history appellant 10 report dr reid dated 11 november 2002 admitted evidence proceeding sentence report doctor reid said diagnosed appellant suffering major depressive illness committing original offence committing offence 11 para 22 remark sentence honour said stressed court today think earlier occasion offender attribute blame criminal behaviour event life particular death mother teenager think dr reid agrees entirely think suggestion implication report mr pavicevic continues block feeling towards father cancer attitude death mother time would expected significant life time coincidently marked commencement criminal record 12 para 30 remark sentence judge milson said set aside sentence initially imposed considering nature participation drug court program length time went well program subjective feature relating family take account great extent originally sentenced view sentence imposed ought significantly reduced 13 apart sentence two offence breaking entering stealing final sentence judge milson imposed 11 november 2002 original offence length initial sentence honour imposed 8 may 2001 two offence breaking entering stealing honour imposed sentence one year three month lieu initial sentence offence one year eight month two week honour ordered final sentence commence 17 july 2002 date appellant taken custody 14 offence subject three exception honour imposed sentence imprisonment twelve month six month rising court sentence also date 17 july 2002 offence taking driving conveyance taking account offence larceny offence self administering prohibited drug honour exercising jurisdiction district court imposed sentence two year commence 17 october 2003 expiration two final sentence breaking entering stealing honour set non parole period nine month setting non parole period honour took account sentence served cumulatively sentence time offender spent meaningfully drug court program indicates fact real prospect rehabilitation honour also took account dr reid report 15 already noted judge milson sentencing appellant offence taking driving conveyance exercising jurisdiction district court imposing sentence original offence offence honour exercising jurisdiction local court subject restriction applying sentencing offender local court 16 present appeal sentence limited final sentence imposed original offence complaint made sentence offence 17 indeed would seem appeal sentence offence would appeal within 5af thecriminal appeal actand could heard single judge constituting court criminal appeal 18 counsel appellant written submission contain reference 12 act convenient set provision 12 1 terminating drug offender program drug court must reconsider drug offender initial sentence 2 reconsidering drug offender initial sentence drug court must take consideration nature drug offender participation program b sanction imposed drug offender program c time drug offender held custody connection offence program relates including time person undergone imprisonment sentence ii condition program arising section 8a 3 considering drug offender initial sentence drug court determine drug offender final sentence making order setting aside initial sentence taking action underpart 2of thecrimes sentencing procedure act 1999as could taken offence initial sentence related b making order confirming initial sentence 4 final sentence determined drug offender relation offence greater initial sentence imposed drug offender relation offence 5 repealed 19 counsel appellant written submission two ground appeal relied however hearing appeal gave leave appellant rely third ground appeal deal ground appeal turn ground 1the sentencing judge erred insufficient regard applicant subjective case reconsidering initial sentence imposing final sentence 20 respect ground counsel appellant referred passage remark sentence 8 may 2001 remark sentence 11 november 2002 remark sentence 8 may 2001 honour said today disregard subjective feature may indicate sympathetic sentence appropriate real prospect obtaining rehabilitation result program reason refrain drug court program end court know real desire ability achieve rehabilitation 21 counsel appellant referred para 22 30 honour remark sentence 11 november 2002 already quoted 22 submitted counsel appellant inconsistently view honour expressed para 30 remark 11 november 2002 final sentencing appellant initial sentence ought significantly reduced honour significantly reduced sentence determining final sentence change honour made initial sentence reduce sentence two offence breaking entering stealing one year eight month two week one year three month reconsidering initial sentence honour would required take consideration forty four day appellant spent custody drug program breach program period approximately one half month deducted difference four month initial sentence final sentence offence breaking entering stealing 23 consider first ground appeal upheld opinion extent reduction honour made sentence breaking entering stealing principal sentence factor identified honour para 30 remark sentence 11 november 2002 within honour exercising discretion regard quite short duration initial sentence final sentence reduction honour made could regarded significant reduction ground 2the sentencing judge erred failing give reason imposing fixed term imprisonment relation sentence non parole period specified 24 setting final sentence two offence breaking entering stealing honour set non parole period either sentence expressly state reason setting non parole period counsel appellant referred tos 45 2 thecrimes sentencing procedure act 25 virtue ofs 45 4 thecrimes sentencing procedure actthe failure honour give reason setting non parole period invalidate sentence 26 opinion clear honour set non parole period two sentence breaking entering stealing 11 november 2002 honour apart setting final sentence original offence also sentencing appellant offence offence taking driving conveyance honour imposing sentence ordering served cumulatively final sentence breaking entering stealing sentence offence honour set non parole period nine month parole period one year three month dividing sentence non parole period parole period honour regard totality sentence imposing final sentence original offence sentence offence would uphold second ground appeal ground 3 reconsidering initial sentence imposed drug court sentence judge erred imposing fixed term represented appropriate head sentence 27 initial sentence offence breaking entering stealing expressed sentence one year eight month two week without non parole period set 28 submitted counsel appellant judge milson came impose final sentence term one year eight month two week regarded honour head sentence non parole period could set sentence fixed term imprisonment 29 said practice drug court set non parole period imposing initial sentence offender undertake drug program sentence immediately suspended 30 submitted initial sentence offence breaking entering stealing one year eight month two week regarded head sentence non parole period set common practice followed dividing head sentence non parole period parole period ratio three one non parole period would approximately 15 month 31 submission continued imposing final sentence two offence breaking entering stealing judge milson imposed fixed term imprisonment honour honour based final sentence initial sentence adjusted length fixed term based notional non parole period initial sentence full term initial sentence 32 counsel appellant referred decision smart aj inr v henare 2003 nswcca 376 honour would appear upheld similar submission see particular paragraph 18 honour judgment 33 opinion honour err way submitted counsel appellant counsel crown hearing appeal contend least contend strongly contrary opinion honour imposing final sentence original offence regarded initial sentence imposed head sentence fixed term imprisonment consequently fixed term imprisonment honour set imposing final sentence borne relationship notional non parole period initial sentence full term initial sentence 34 however counsel crown submitted could allow appeal sentence would opinion accordance section 6 3 thecriminal appeal act sentence le severe imposed honour warranted law passed submitted counsel crown determining question take account large number offence final sentence imposed submitted sentence honour imposed lenient leniency sentence increased honour made sentence fully concurrent counsel crown referred decision three judge bench court inr v ebsworth 2002 nswcca 465 especially paragraph 16 17 chief judge common law appeal severity sentence passed drug court said inter alia order court criminal appeal intervene would satisfied lesser sentence warranted law imposed honour referred section 6 3 thecriminal appeal act 35 counsel appellant submitted assessing whether sentence imposed judge milson lenient important take account sentence honour imposed imposed exercise jurisdiction local court honour subject restriction maximum penalty imposed restriction accumulating sentence apply local court 36 response submission counsel appellant counsel crown submitted sentence imposed judge milson lenient even regard restriction sentence imposed exercise jurisdiction local court 37 reached conclusion form opinion required section 6 3 thecriminal appeal act opinion final sentence imposed judge milson original offence even taking account matter judge milson required take account 12 thedrug court actand judge milson exercising jurisdiction local court lenient lesser sentence would warranted law 38 consequence conclusion dismiss appeal last updated 01 04 2004

Re Aitken; Maier v Hearn & Anor [2021] VSC 502 (17 August 2021).txt

aitken maier v hearn anor 2021 vsc 502 17 august 2021 last updated 27 august 2021in supreme court victorianot restrictedat melbournecommon law divisiontrusts equity probate list eci 2019 04342in matter application pursuant torule 54 02of thesupreme court general civil procedure rule 2015for determination question arising administration estate matter estate mavis violet aitken deceasedmark albert maier administrator estate mavis violet aitken deceased plaintiffvcatherine melissa hearnfirst defendantvnicholas giasoumi trustee bankrupt estate patricia susanne aitken welch second defendant judge mcmillan jwhere held melbournedate hearing papersdate judgment 17 august 2021case may cited aitken maier v hearn anormedium neutral citation 2021 vsc 502 cost cost subject term settlement fixed court order cost investigation alleged claim estate whether properly treated cost administration estate whether cost claimed reasonable proportionate bankruptcy act 1966 cth 58 1 b civil procedure act2010

"Protection of international rivers" [2019] ELECD 1471; in Marsden, Simon (ed), "Protecting the Third Pole" (Edward Elgar Publishing, 2019) 162.txt

protection international river 2019 elecd 1471 marsden simon ed protecting third pole edward elgar publishing 2019 162book title protecting third poleeditor marsden simonpublisher edward elgar publishingsection chapter 6section title protection international riversnumber page 44abstract description chapter 6 emphasis significance equitable utilisation environmental protection international river focus upon potential transplant water convention together customary international law relevant icj jurisprudence analysis content relevance water convention asia third pole potential practical application considers arrangement asia international river notably mekong agreement since mekong originates tibetan plateau also analysis lesson may learnt governance change water quantity quality hydroelectric development impacting upon southeast asian state

Re Maurice Christie and Swithina Claudia Ferdinando Ex Parte: Australia and New Zealand Banking Group Limited and the Official Trustee In Bankruptcy (As Trustee of the Bankrupt Estate of Maurice Christie Ferdinando [1993] FCA 201 (30 April 1993).txt

maurice christie swithina claudia ferdinando ex parte australia new zealand banking group limited official trustee bankruptcy trustee bankrupt estate maurice christie ferdinando 1993 fca 201 30 april 1993 federal court australiare maurice christie swithina claudia ferdinandoex parte australia new zealand banking group limited officialtrustee bankruptcy trustee bankrupt estate maurice christieferdinandonos vb1929 1990 vb2285 1991fed 261number page 12bankruptcy estoppel 1993 42 fcr 243courtin federal court australiabankruptcy district victoriageneral divisioneinfeld j 1 catchwordsbankruptcy debtor petition property bankrupt vested official trustee mortgage real property taken many year earlier secure personal loan later guarantee given bankrupt secure business loan mortgage catch guarantee encumber mortgaged property indebtedness businessestoppel estoppel convention estoppel pais assumption made reliance detriment non disclosure imprudence mortgagee unconscionabilitybankruptcy act 1966section 58 1 thompson v palmer 1933 hca 61 1933 49 clr 507grundt v great boulder pty gold mine ltd 1937 hca 58 1937 59 clr 641commercial bank australia ltd v amadio 1983 hca 14 1983 151 clr 447legione v hateley 1983 hca 11 1983 152 clr 406con stan industry australia proprietary limited v norwichwinterthur insurance australia limited 1986 hca 14 1986 160 clr 226waltons store interstate limited v maher another 1988 hca 7 1988 164 clr 387commonwealth australia v verwayen 1990 170 clr 394hughes v metropolitan railway co 1877 2 app ca 439cheshire fifoot law contract 6th australian editionhearingmelbourne 30 march 199330 4 1993 sydneycounsel solicitor mr garnerfor applicant instructed blake dawson waldroncounsel solicitor m h symonfor respondent instructed australiangovernmment solicitororder1 application dismissed 2 applicant pay respondent cost note settlement entry order dealt accordance order 36 federal court rule decisioneinfeld j maurice christie ferdinando swithina claudia ferdinando ferdinandos became bankrupt debtor petition 29 october 1990 7 august 1991 respectively whereupon pursuant tosection 58 1 thebankruptcy act 1966 property vested official trustee australia new zealand banking group ltd anz held mortgage dated 31 july 1979 mortgage property belonging ferdinandos lot 19b 19d romeo road healesville property anz sold property mortgagee november 1991 solicitor hold proceeds sale interest pending outcome proceeding seek declaration mortgage also secures liability ferdinandos anz guarantee dated 13 march 1986 guarantee given relation obligation anz business insurance centre pty ltd business held anz account separate ferdinandos personal account late 1978 official trustee respondent application say reason mortgage anz secured creditor respect owing ferdinandos personal account anz proceeds sale property vested official trustee pursuant tosection 58 1 thebankruptcy act 1966 amount involved 58 063 51 2 amended notice intention oppose application official trustee say 1 anz estopped making claim relation anz ferdinandos conductedon assumption mortgage guarantee notconnected default mortgage would notactivate guarantee b anz induced assumption c anz failed inform ferdinandos signedthe guarantee connection theguarantee mortgage failure act imprudence proximatecause ferdinandos assumption noconnection e anz caused ferdinandos act detriment bysigning guarantee2 anz ought permitted rely mortgage assecurity guarantee failure disclose ferdinandos mortgagewould become security thus misrepresenting natureand degree ferdinandos liability surety b failure explain ferdinandos guaranteewas signed connection mortgage andguarantee thus taking unfair unconscientious advantageof special disability ferdinandos 3 clause 1 mortgage state part mortgagor demand writing pay bankfree deduction amount balance shallfor time owing unpaid mortgagorand customer bank respect guarantee undertaking obligation given may hereafter given mortgagorand customer bank 4 court required decide application whether mortgage secures permitted secure liability ferdinandos anz guarantee anz submitted construction mortgage affords security anz ferdinandos liability guarantee subsequently sign limited time also submitted guarantee clearly fall within provision clause 1 mortgage 5 official trustee dispute strict legal position argued ferdinandos assumed link guarantee mortgage signed guarantee believing mortgage secured amount owing anz respect business security could come guarantee trustee submitted ferdinandos assumption shared anz 6 seen equity intervene find relevant estoppel basis enforcing literal effect party bargain number element need established evidence available inference 1 assumption agreement concerning link 7 although distance time faint recollection detail retained seems dispute signed mortgage 1979 ferdinandos knew effect mortgage seem disputed signed guarantee mortgage specifically mentioned occurred certainly link two document drawn attention although little doubt knew mortgage still existed think raise possibility 8 mortgage specifically made security guarantee fact time signing guarantee anz specifically sought security form second mortgage ferdinandos home refused provide matter pressed end spectrum two month later may 1986 anz offered ferdinandos accepted personal loan 25 000 mortgage specifically noted security stamp duty paid 9 volume evidence especially way diary note keith sturgeon anz relevant manager establish anz consistently treated mortgage security ferdinandos personal account business account moreover guarantee taken seven year business account opened anz seem concerned take security business account apparently manager diary note 6 april 5 october 1987 intimate mr ferdinando regarded substantial reliable customer also noteworthy connection security taken support guarantee second mortgage ferdinandos home declined nothing discussed 10 bank document support separation mortgage guarantee ferdinandos defaulted mortgage letter demand 25 july 1990 made mention liability might arise guarantee likewise letter demand guarantee date follow letter 2 august 1991 trustee claimed amount owing personal account party agreement mortgage secured money owing guarantee amount demanded owing personal business account 11 furthermore proof debt 11 february 1991 business winding anz referred guarantee disclose anything existence mortgage guarantee secured mortgage liquidator entitled told anz recourse real property might satisfy business indebtedness impression given anz seeking whole amount debt winding credit given whatever could recover security first occasion disclosed evidence assertion anz could sell property use proceeds offset indebtedness business letter 24 december 1991 solicitor official trustee almost five month anz told trustee owing guarantee overdraft personal account 12 given careful attention evidence documentation relationship exchange anz ferdinandos anz official trustee clear impression therefore find party stage linked agreed link mortgage guarantee assumed linked 2 reliance13 mr ferdinando evidence think mortgage signed guarantee anz argued could reliance assumption link matter never considered trustee submitted exercise semantics consciousness link mean link conceived possible guarantee therefore signed belief link exist agree substance mr ferdinando evidence accept evidence discussed detail later principle reliance relation type estoppel one party acting representation conduct party one party acting assumption made result role played party view ferdinandos signed guarantee believed comfortable knowledge secured mortgage 3 detriment14 aspect estoppel raise similar question trustee argued signing guarantee linked mortgage effect applying value property form proceeds sale business debt literal word mortgage enforced money go anz none left ferdinandos unsecured creditor anz submitted loss ferdinandos disregarded loss unsecured creditor irrelevant detriment required estoppel true consequence estoppel anz argued would addition list unsecured creditor anz ferdinandos would still owe money unsecured guarantee 15 argument based upon misconception detriment concerned principle estoppel relevant requirement ferdinandos actually suffered detriment ferdinandos acted detriment basis assumption made 16 grundt v great boulder pty gold mine ltd 1937 hca 58 1937 59 clr 641at 676 dixon j spoke detrimental change position legione v hateley 1983 hca 11 1983 152 clr 406mason deane jj characterised detriment 437 person estopped departing anassumption representation unless result ofadopting basis action inaction otherparty placed position materialdisadvantage departure assumption permitted per dixon j thompson v palmer 1933 hca 61 1933 49 clr 507at 547 17 mason cj wilson j walton store interstate limited v maher another 1988 hca 7 1988 164 clr 387at 404 speak acting one detriment opposed suffering detriment 406 speak alternatively changing one position suffering detriment 18 ferdinandos changed position detriment soon signed guarantee mortgage clause 1 became security guarantee result property became encumbered indebtedness business similarly ferdinandos responsibility surety manifestly affected linking guarantee mortgage additional encumbrance property 4 inducement encouragement assumption19 trustee said strong inference anz induced ferdinandos assumption link mortgage guarantee evidence relevant question see generally undisputed mortgage taken security personal loan wasonly limited explanation effect time youdo pay may lose home see affidavit evidence ofreno frigo b guarantee taken almost seven year later context ofthe business mention made mortgage see affidavitsand evidence messrs sturgeon ferdinando affidavit ofpaul murphy c document complex anz document anzhad superior knowledge content implication theferdinandos could discovered link without anexplanation anz link intended anintentional refraining proffering explanation shown documentation referred earlier theattitude conduct anz consistent anabsence belief link dealing ferdinandosaccordingly 20 opinion anz assumed proceeded basis guarantee secured mortgage assumption silence well action first seeking pressing security guarantee well conduct induced encouraged ferdinandos share assumption 5 anz imprudence21 concept founded observation justice gaudron walton 461 3 honour stated relevant test 462 imprudence proximate cause party sadopting acting upon faith assumption thejustice estoppel made thompson v palmer 1933 1933 hca 61 49 clr 507as 547 grundt v great boulder pty gold minesltd 1937 hca 58 1937 59 clr 641at 676 22 honour concluded 463 test requires knowledge state ofmind test require imprudence shouldhave caused assumption made sufficientthat imprudence proximate cause assumptionbeing adopted acted upon 23 see also justice deane 444 24 seems little doubt prudence required complexity time gap two document without anz assistance ferdinandos could discovered connection lack assistance imprudent care required proximate cause ferdinandos assumption link 6 non disclosure25 gibbs cj enunciated principle commercial bank australia ltd v amadio 1983 hca 14 1983 151 clr 447at 457 bank taking guarantee obligation reveal anything transactionbetween banker customer effectthat position customer different thatwhich surety would naturally expect particularly itaffects nature degree surety responsibility 7 unconscionability26 member court amadio based decision upon underlying general principle may invokedwhenever one party reason condition orcircumstance placed special disadvantage vi visanother unfair unconscientious advantage thentaken opportunity thereby created per mason j at462 27 justice mason continued qualify word disadvantage adjective special order disavow suggestion principleapplies whenever difference bargainingpower party order emphasize thedisabling condition circumstance one seriouslyaffects ability innocent party make judgmentas best interest party know orought know existence condition orcircumstance effect innocent party 28 honour stated essence position special disadvantage one innocent party unable make worthwhile judgment inhis best interest 29 justice deane 474 expressed principle follows jurisdiction long established extending generallyto circumstance party transaction wasunder special disability dealing partywith consequence absence anyreasonable degree equality ii thatdisability sufficiently evident stronger party tomake prima facie unfair unconscientious heprocure accept weaker party assent theimpugned transaction circumstance heprocured accepted unconscionable dealing look conduct strongerparty attempting enforce retain benefit adealing person special disability incircumstances consistent equity goodconscience adverse circumstanceswhich may constitute special disability purposesof principle relating relief unconscionabledealing may take wide variety form notsusceptible comprehensively catalogue sic inblomley v ryan 1956 hca 81 1956 99 clr 362fullagar j listed someexamples disability poverty need kind sickness age sex infirmity body mind drunkenness illiteracy lack education lack ofassistance explanation assistance orexplanation necessary 30 trustee argued amadio disentitled anz relying connection failed disclose enforcing mortgage relates guarantee trustee suggested four element referred earlier evidence anz inducement encouragement assumption link made assistance explanation ferdinandos necessary guarantee signed trustee said factor pointed need anz explained connection guarantee mortgage rely upon connection unconscionability lie seeking rely upon connection absence explanation circumstance called one word anz failure provide explanation took advantage ferdinandos special disadvantage trustee said make unconscionable allow anz rely upon strict term mortgage 31 anz sought distinguish amadio number ground necessary refer two first said customer business ferdinandos surety second said support guarantee mortgage would affect nature degree ferdinandos responsibility surety allowing anz rank ahead unsecured creditor liquidation argument presumably dismisses fact link would encumber property debt business 32 suggestion guarantee unconscionable bargain link mortgage lapse time two document introduces element unconscionability although certainly heightened need explanation claim unconscionability really dependant lack explanation apparent correlation mortgage personal loan guarantee business overdraft unconscionable ferdinandos already financially liable personal account guarantee made personally liable business account guarantee added nothing personal burden presumably intended giving question whether encumbering property liability business put special disadvantage vi vi anz require revelation explanation nature obligation consequence facing signing linked guarantee estoppel33 base present availability scope estoppel must examined starting point hughes v metropolitan railway co 1877 2 app ca 439at 448 first principle upon court ofequity proceed party entered intodefinite distinct term involving certain legal result certain penalty legal forfeiture afterwards theirown act consent enter upon course ofnegotiation effect leading one theparties suppose strict right arising thecontract enforced kept suspense held abeyance person otherwise might haveenforced right allowed enforce themwhere would inequitable regard dealingswhich thus taken place party 34 dixon j amplified principle grundt 676 justice estoppel established fact initself state affair assumed basisof action inaction departure theassumption would turn action inaction adetrimental change position depends also themanner assumption occasioned orinduced anyone estopped must playedsuch part adoption assumption wouldbe unfair unjust left free ignore butthe law leave question fairness ofjustice large defines le completenessthe kind participation making acceptance ofthe assumption suffice preclude party ifthe requirement estoppel satisfied 35 walton least three distinct form estoppel potential relevance fact case estoppel pais operated prevent departure representation existing fact relied dixon j said thompson v palmer 1933 hca 61 1933 49 clr 507at 547 object estoppel pais prevent unjustdeparture one person assumption adopted byanother basis act omission unlessthe assumption adhered would operate sdetriment whether departure one party theassumption could considered unjust inadmissibledepends part taken occasioning adoptionby party may required abide theassumption formed conventional basis uponwhich party entered contractual mutualrelations exercised otherparty right would exist assumption werecorrect knowing mistake otherlaboured refrained correcting washis duty imprudence care wasrequired proximate cause party sadopting acting upon faith assumption orbecause directly made representation upon theother party founded assumption 36 justice brennan put brand estoppel word walton 413 nature estoppel pais well established inthis country party induces another make anassumption state affair exists knowing orintending act assumption estoppedfrom asserting existence different state affairsas foundation respective right liabilitiesif acted reliance assumption andwould suffer detriment assumption adhered 37 estoppel convention prevents one party departing assumption adopted party conventional basis relationship circumstance would unjust con stan industry australia proprietary limited v norwich winterthur insurance australia limited 1986 hca 14 1986 160 clr 226at 244 high court gibbs cj mason wilson brennan dawson jj stated estoppel convention form estoppel founded ona representation fact made representor acted onby representee detriment conduct ofrelations party basis agreed orassumed state fact estopped fromdenying 38 promissory estoppel prevented departure promissory statement relied see generally cheshire fifoot law contract 6th australian edition p 154 author say thread common theme person beprevented departing assumption representation promise assurance hasencouraged made would unconscionable inthe circumstance broadly strand estoppel canbe woven together general doctrine estoppel byconduct page 156 stressed underlying principleis combination detrimental reliance one partyand unconscionable conduct 39 legione 435 mason deane jj said number rule established asapplicable estoppel pais also applicable topromissory estoppel first long recognizedthat representation must clear 40 437 mentioned earlier honour stated second rule requiring result adopting assumption basis ofaction inaction party placed himselfin position material disadvantage departure theassumption permitted 438 requirement representation existing fact orfuture conduct must clear found estoppelin pais promissory estoppel mean therepresentation must express clear representationmay properly seen implied word used beadduced either failure speak dutyto speak conduct 41 walton sought draw strand together 404 mason cj wilson j said one may therefore discern case common thread whichlinks together namely principle equity willcome relief plaintiff acted hisdetriment basis basic assumption relation towhich party played part theadoption assumption would unfair unjustif left free ignore per dixon j grundt equity come relief plaintiff footing thatit would unconscionable conduct part partyto ignore assumption 42 406 honour said foregoing review doctrine promissory estoppelindicates doctrine extends enforcement ofvoluntary promise footing departure thebasic assumption underlying transaction theparties must unconscionable failure fulfil apromise amount unconscionable conduct mere reliance executory promise something resulting promisee changing position sufferingdetriment bring promissory estoppel play something would required humphreys estate 1987 1ac 114 suggests may found thecreation encouragement party estopped otherparty assumption detriment knowledge ofthe first party 43 justice brennan said 420 case equity created estoppel israised party raising equity acted abstainedfrom acting assumption expectation legalrelationship party induced himto adopt assumption expectation 423 adoption assumption expectation inducedby making promise knowledge intention thatthe assumption expectation acted upon may beeasily inferred party encourages another toadhere assumption expectation already formed oracquiesces making assumption theentertainment expectation ought object tothe assumption expectation step tantamountto inducing adopt assumption expectation inference knowledge intention theassumption expectation acted may moredifficult draw unconscionable conduct object equityto prevent failure party induced theadoption assumption expectation knew orintended would relied fulfil theassumption expectation otherwise avoid thedetriment failure would occasion 428 opinion establish equitable estoppel isnecessary plaintiff prove 1 plaintiffassumed particular legal relationship existedbetween plaintiff defendant expected aparticular legal relationship would exist latter case defendant would free towithdraw expected legal relationship 2 thedefendant induced plaintiff adopt assumptionor expectation 3 plaintiff act abstains fromacting reliance assumption expectation 4 thedefendant knew intended 5 plaintiff saction inaction occasion detriment assumptionor expectation fulfilled 6 defendant hasfailed act avoid detriment whether fulfillingthe assumption expectation otherwise 44 justice deane said 443 indeed fact call play operation perhapsthe clearest emanation estoppel conduct namely theprinciple precludes departure representation oran induced assumption representation silence existing fact circumstance partyestopped knowingly silently stood watched theother party act detriment 45 justice gaudron said 458 object estoppel whether common law estoppel oran equitable estoppel explained dixon j inrelation estoppel pais thompson v palmer preventan unjust departure one person assumption adoptedby another basis act omission unless assumption adhered would operate thatother detriment 46 see also commonwealth australia v verwayen 1990 170 clr 394 47 opinion anz claim declaratory relief estopped ought granted earlier said commercial relationship anz ferdinandos conducted basis link connection mortgage guarantee property secure business debt doubt mind anz held belief played major role acceptance adoption belief ferdinandos situation came number cause proximate anz imprudence unconscionable failure obligation disclosing actuality potentiality link took unfair advantage opportunity created ferdinandos special disadvantage able understand appreciate link 48 ferdinandos relied upon state affair signing guarantee hardly questioned expressly declined another real property mortgage security guarantee fo business overdraft would hardly prepared encumber healesville property burden 49 detriment also clear whereas maintained personal account sufficiently good order many year risk unduly security mortgage addition business debt size might well put security strain actually occurred signing guarantee expressly linked two encumbered property business debt actually put risk losing property becoming insolvent due factor beyond control business downturn occurred detriment proved event commercial bill50 anz raised alternative proposition balance ferdinandos personal account debited proceeds commercial bill 55 000 wrongly debited business account july 1990 although assertion payment error evidence given error explanation given came occur fact evidence error including fact letter demand mortgage guarantee mention 51 satisfied error see legal basis action court correct fact foundation argued 52 application dismissed cost

Dental Practice Board of Victoria v Varnavides (Occupational & Business) [2005] VCAT 240 (17 February 2005).txt

dental practice board victoria v varnavides occupational business 2005 vcat 240 17 february 2005 last updated 18 february 2005victorian civil administrative tribunaladministrative divisionoccupational business regulation listvcat reference v10 2004catchwordsreasonable apprehension bias application based upon judge determined previous proceeding involving party application refused knowledge acquired earlier case prejudicial impartial determination current case applicantdental practice board victoriarespondentdr george varnavideswhere heldmelbournebeforejustice stuart morris presidenthearing typedirections hearingdate hearing15 february 2005date orders17 february 2005 2005 vcat 240rulingthe application disqualify hearing proceeding refused stuart morrispresidentappearances applicantmr patrick monahan solicitorfor respondentmr ian alger counselreasons1 background matter set reason order made 22 september 2004 vcat proceeding v6 2004 day found respondent dr varnavides guilty contempt tribunal disobeying order tribunal made 12 august 2004 practise dentistry victoria 16 january 2006 order charge found proved basis evidence dr varnavides practised dentistry 24 august 2004 2 dental practice board victoria initiated current proceeding brings charge dr varnavides alleging contempt tribunal disobeying order 12 august 2004 practising dentistry victoria occasion 24 august 2004 3 15 february 2005 made certain direction conduct current proceeding day mr alger behalf respondent content give direction submitted disqualify hearing application indicated would rule application writing 4 mr alger submitted reasonable apprehension bias hear application submitted proper basis disqualification judge judge disqualify circumstance reasonable minded observer party might entertain reasonable apprehension judge might bring impartial unprejudiced mind resolution question involved mr alger specifically referred decision brennan j high court australia inwebb v queen 1994 hca 30 1994 181 clr 41 paragraph 12 fact reference question judgment deane j case page 74 honour identified one criterion might require disqualification judge possession extraneous information continued excluding citation case follows fourth disqualification extraneous information commonly overlap third eg case judge disqualified reason heard earlier case consists case knowledge prejudicial inadmissible fact circumstance give rise apprehension bias mr alger submitted recently heard determined similar application proceeding v6 2004 reasonable apprehension bias knowledge acquired case prejudicial respondent yet irrelevant matter tribunal 5 inebner v official trustee bankruptcy 2000 hca 63the majority high court australia made following useful important statement issue judicial bias judge duty exercise judicial function jurisdiction regularly invoked assigned case accordance practice prevails court belong select case hear liberty decline hear case without good cause judge choose case litigant choose judge one party case object particular judge sitting continuing sit objection prevail unless based upon asubstantialground contending judge disqualified hearing deciding case emphasis 6 persuaded basis let alone asubstantialbasis concluding disqualify hearing deciding current proceeding beach j observed inkay v legal profession tribunal 2000 vsc 463judicial officer frequently called upon deal offender one occasion case beach j said fact course dealing particular offender one occasion judicial officer make strong comment adverse offender opinion without warrant suggesting called upon deal offender another occasion judicial officer deal impartially without prejudice similarly inewart v lonie 1972 vicrp 32 1972 vr 308lush j rejected contention reasonable apprehension bias part town planning appeal tribunal constituted manner determining earlier application concerning subject land decision consistent approach taken high court inlivesey v new south wale bar association 1983 hca 17 1983 151 clr 288 even though outcome different 7 come quoting decision high court australia always tendency focus upon lofty statement principle rather theratio decidendiof case mr alger quoted statement principle theliveseycase think better focus upon essential basis high court case decided reasonable apprehension bias existed high court found two new south wale judge heard case circumstance previously heard determined another case fact different party made factual finding relevant second case expressed strong view credibility witness whose evidence might led second case context court said page 300 however apparent fair minded observer might entertain reasonable apprehension bias reason prejudgment judge sits hear case first instance previous case expressed clear view either question fact constitutes live significant issue subsequent case credit witness whose evidence significance question fact decision v6 2004 involved party include finding fact live significant issue current proceeding express view credit witness proceeding would significant context current proceeding 8 although true aware evidence given relation contempt charge based upon event 24 august 2004 knowledge even irrelevant current proceeding notprejudicialto impartially determining whether breach order 12 august 2004 occasion subject current proceeding judge find person practised dentistry particular date mean judge unlikely impartially determine basis evidence presented another proceeding whether person practised dentistry occasion knowledge earlier act poison mind prevent fair consideration circumstance disqualification basis possessing extraneous information confined circumstance information irrelevant prejudicial current proceeding 9 reasonable person would apprehend would partial hearing determining current proceeding liberty decline hear case without good cause good cause shown stuart morrispresident

Kagendo (Migration) [2023] AATA 2600 (31 July 2023).txt

kagendo migration 2023 aata 2600 31 july 2023 last updated 17 august 2023kagendo migration 2023 aata 2600 31 july 2023 decision recorddivision migration refugee divisionapplicant miss brenda kagendorepresentative mr navneet kaur walia marn 1802602 case number 2308183home affair reference bcc2023 1862210member david crawshaydate 31 july 2023place decision melbournedecision tribunal remit application temporary activity class gg visa reconsideration direction applicant meet following criterion subclass 408 temporary activity visa pic 4005 purpose cl 408 216 schedule 2 regulation statement made 31 july 2023 12 43pmcatchwordsmigration temporary activity class gg visa subclass 408 temporary activity health criterion department record show requirement finalised decision review remittedlegislationmigration act 1958 cth 65migration regulation 1994 cth schedule 2 cl 408 216 schedule 4 criterion 4005statement decision reasonsapplication reviewthis application review decision made delegate minister home affair 22 may 2023 refuse grant applicant temporary activity class gg visa unders 65of themigration act 1958 cth act applicant applied visa 21 march 2023 delegate refused grant visa basis applicant satisfy cl 408 216 schedule 2 themigration regulation 1994 cth regulation health criterion public interest criterion pic 4005 schedule 4 regulation met applicant undertaken health examination time delegate decision since delegate decision department record show health requirement found finalised respect applicant 6 july 2023 basis information tribunal accepts applicant meet pic 4005 decisionthe tribunal remit application temporary activity class gg visa reconsideration direction applicant meet following criterion subclass 408 temporary activity visa pic 4005 purpose cl 408 216 schedule 2 regulation david crawshaymember

Boyan Bizoev v NODE Energy Services Pty Ltd T_A NODE Energy Services [2021] FWC 5251 (30 August 2021).txt

boyan bizoev v node energy service pty ltd node energy service 2021 fwc 5251 30 august 2021 last updated 30 august 2021 2021 fwc 5251fair work commissionreasons decisionfair work act 2009s 394 unfair dismissalboyan bizoevvnode energy service pty ltd node energy service u2021 5559 deputy president boycesydney 30 august 2021application unfair dismissal remedy jurisdictional objection genuine redundancy application dismissed introduction 1 decision made anex temporebasis transcript publishing reason taken opportunity revise make addition amend accordance principle stated kirby j inex tempore judgment reason run 1995 25 uwalrev 213 229 230 including authority cited therein new south wale court appeal inbar mordecai v rotman or 2000 nswca 123 193 195 including authority cited therein 2 25 june 2021 mr boyan bizoev applicant filed form f2 fair work commission commission application unfair dismissal remedy application way application applicant claim dismissed employment node energy service pty ltd node energy service respondent dismissal unfair within meaning ofpart 3 2of thefair work act 2009 act applicant commenced employment respondent 9 december 2019 notified dismissal 3 june 2021 took effect next day time dismissal applicant casual employee defined bys 384 2 act 3 form f3 employer response filed commission respondent asserts thatfirstly applicant dismissed unfairly secondly applicant dismissal case genuine redundancy within meaning ofs 389of act respondent also submits complied small business fair dismissal code dismissing applicant 4 issue commission proceeding whether applicant dismissal case genuine redundancy applicant case effectively job still required performed operational requirement respondent enterprise support role longer required performed alternative applicant could reasonably redeployed alternative position within respondent business 5 hearing applicant appeared m elizabeth maina director appeared respondent legislation 6 section 389 act defines meaning genuine redundancy statutory scheme read conjunction section 385 act provides person unfairly dismissed commission satisfied matter section 385 established 385 unfair dismissala person beenunfairly dismissedif fwc satisfied person dismissed b dismissal harsh unjust unreasonable c dismissal consistent small business fair dismissal code dismissal case genuine redundancy note definition ofconsistent small business fair dismissal code see section 388 7 definition small business code section 388 act 388 small business fair dismissal code 1 minister may legislative instrument declare small business fair dismissal code 2 person dismissal wasconsistent small business fair dismissal codeif immediately time dismissal time person given notice dismissal whichever happened first person employer small business employer b employer complied small business fair dismissal code relation dismissal 8 section 389 act provides statutory definition qualifies genuine redundancy 389 meaning genuine redundancy 1 person dismissal case genuine redundancy person employer longer required person job performed anyone change operational requirement employer enterprise b employer complied obligation modern award enterprise agreement applied employment consult redundancy 2 person dismissal case genuine redundancy would reasonable circumstance person redeployed within employer enterprise b enterprise associated entity employer 9 view 389 purpose commission satisfied dismissal case genuine redundancy three question need answered applicant job longer required performed anyone change operational requirement respondent enterprise b respondent comply obligation modern award enterprise agreement applied employment consult redundancy c would reasonable circumstance applicant redeployed within respondent enterprise associated entity respondent 10 make two finding evidence point firstly employer associated entity applicant could redeployed secondly modern award enterprise agreement cover applies applicant respondent respect applicant employment respondent neither matter disputed party follows need consider make finding relation 389 1 b act determining whether applicant dismissal reason genuine redundancy applicant job longer required performed anyone change operational requirement respondent enterprise 11 sub section 389 1 act provides person dismissal case genuine redundancy person employer longer required person job performed anyone change operational requirement employer enterprise 12 word long used applied industrial tribunal court practical definition redundancy 1 theexplanatory memorandum thefair work bill 2008provides example dismissal case genuine redundancy 1547 paragraph 389 1 provides person dismissal case genuine redundancy job longer required performed anyone change operational requirement employer enterprise enterprise defined clause 12 mean business activity project undertaking 1548 following possible example change operational requirement enterprise machine available job performed employee employer business experiencing downturn therefore employer need three people particular task duty instead five employer restructuring business improve efficiency task done particular employee distributed several employee therefore person job longer exists 13 held job involves collection function duty responsibility entrusted part scheme employer organisation particular employee also held critical purpose identifying redundancy whether holder former position organisation duty left discharge longer function duty performed person position becomes redundant 2 14 put another way test whether person sdutiessurvive test whether thejobpreviously performed employee still exists 3 hence employee position made redundant role split employee within workplace duty assigned employee employer downsizes head count overhead consideration job longer required performed analysis duty still required performed others 15 also point relation change operational requirement employer enterprise business change include reason economic technological structural similar change part business word employer need losing money running loss order position make change operational requirement business employer able establish bona fide reason employer considers require change business employee commission inquire engage analysis whether change appropriate logical reasonable necessary role commission determine whether relevant employee fairly appropriately chosen otherwise selected redundancy like owner property make change alteration house opinion appropriate required employer also make change operation business opinion appropriate required would reasonable circumstance applicant redeployed within respondent enterprise associated entity respondent 16 sub section 389 2 act provides person dismissal cannot case genuine redundancy would reasonable circumstance person redeployed within employer enterprise associated entity employer 17 view correct interpretation subsection 389 2 remains stated inulan coal mine limited v honeysett or 4 26 subsection 389 2 must seen full context applies dismissal employee seeking remedy unfair dismissal cannot succeed dismissal genuine redundancy word dismissal case genuine redundancy employer complete defence application section 389 2 place limitation employer capacity mount defence defence available would reasonable redeploy employee exclusion pose hypothetical question must answered reference relevant circumstance 28 question posed 389 2 whether redeployment would reasonable applied time dismissal employee dismissed redundancy obtains employment within associated entity employer time termination fact may relevant deciding whether redeployment would reasonable determinative question remains whether redeployment within employer enterprise enterprise associated entity would reasonable time dismissal answering question number matter capable relevant include nature available position qualification required perform job employee skill qualification experience location job relation employee residence remuneration offered emphasis added consideration 18 m maina appeared proceeding behalf respondent director principal respondent tendered witness statement proceeding also cross examined extensively applicant 19 found m maina credible witness answered question upfront frankly seek avoid question put answered question consistent evidence set witness statement 20 regard m maina evidence refocused changed operational requirement business change project worked upon business ending beginning path desired respondent take future accept straightforward proposition respondent bona fide operational reason determining longer required applicant job done anyone e even applicant duty still existed redistributed employee 21 note applicant asked m maina various question going financial state respondent favourable respondent would making loss kept role either permanently longer m maina answered question stating respondent need experiencing downturn work account red otherwise losing money position determine longer required applicant job performed anyone make redundant m maina pointed enough determined er opinion director behalf respondent applicant could longer usefully productively employed m maina also gave evidence whilst continuing employ applicant would result respondent business making loss continued employment would going unnecessary cost respondent need maintain merely keep applicant employment 22 whether applicant job still exists m maina evidence applicant primarily employed undertake scripting substantive work performed throughout employment respondent particularly relation one large project lasted around 18 month come end 23 applicant part challenged redundancy basis duty responsibility kpis much broader scripting reflected written employment contract applicant also submitted duty responsibility kpis expressed employment contract extremely vaguely never understood role scripting ever discussion m maina prior employed effect whilst one might accept applicant position matter miss point hardly exceptional description scope duty employment contract different actual duty performed even employee broad range duty responsibility paper employer may legitimately direct employee perform particular task effect job may become written paper undertaken decision redundancy arises focus upon work performed rather referring back word paper exploring scope 24 m maina also gave evidence opinion concerning meaning project delivery tool term contained applicant employment contract known respondent workplace known applicant essentially encompassing scripting considered nonsense suggest otherwise especially regard discussion say applicant prior employment commencing well reference work actually performed applicant employment respondent 25 appear dispute party 80 90 per cent applicant work respondent involved scripting m maina evidence given change need respondent business cessation recent large project requiring scripting least level performed applicant determined applicant role defined actually opposed written employment contract longer required 26 applicant also submits two new employee hired march april 2021 commenced around time applicant made redundant could redeployed otherwise offered role never considered consulted response m maina gave evidence decision make new hire occurred march april 2021 respectively two employee left business time point new hire recruited offered employment march april 2021 prior decision make applicant role redundant fact new hire commenced employment respondent around time applicant made redundant point e recruited month prior work notice previous employer prior commencing work respondent 27 m maina evidence new hire power system engineer whilst applicant employed power system controller whilst accepted applicant necessary qualification experience perform role power system engineer qualification experience requirement new role respondent required qualified experienced power system engineer also specific experience distribution skill applicant experience employee respondent business hence m maina decided go market new hire respondent ability time train existing employee enable acquire distribution skill set finding 28 regard evidence submission party make following finding time respondent made decision dismiss applicant applicant role respondent genuinely longer required performed anyone change operational requirement respondent enterprise 389 1 act b time respondent made decision dismiss applicant reason redundancy available suitable position respondent enterprise applicant could reasonably circumstance redeployed 389 2 act conclusion 29 basis foregoing finding conclude applicant dismissal case genuine redundancy within meaning 389 act 5 note unnecessary determine whether respondent complied small business fair dismissal code e finding genuine redundancy complete defence unfair dismissal claim 30 follows commission jurisdiction hear determine applicant unfair dismissal claim application filed applicant dismissed way order pr732959 deputy president 1 ulan coal mine limited v henry jon howarth or 2010 fwafb 3488at 15 boulton j drake sdp mckenna c citingr v industrial commission south australia ex parte adelaide milk supply cooperative limited 1977 16 sasr 6 termination change redundancy case 1984 ctharbrp 284 1984 8 ir 34and 1984 9 ir 115 short v f w hercus pty limited 1993 40 fcr 511 2 jones v department energy mineral 1995 60 ir 304at 308 ryan j cited approval inulan coal mine limited v henry jon howarth or 2010 fwafb 3488at 17 boulton j drake sdp mckenna c see also dibb v commissioner taxation 2004 136 fcr 388 2004 fcafc 126at 43 44 spender dowsett allsop jj 3 kekeris v hartrodt australia pty ltd 2010 fwa 674 hambergersdp 27 4 2010 fwafb 3488 5 reaching decision matter also regard 381 act requires commission apply fair go round printed authority commonwealth government printer pr733165

Visscher v Maritime Union of Australia (No 5) [2013] NSWSC 1640 (6 November 2013).txt

visscher v maritime union australia 5 2013 nswsc 1640 6 november 2013 last updated 15 november 2013supreme courtnew south walescase title visscher v maritime union australia 5 medium neutral citation 2013 nswsc 1640hearing date 6 november 2013decision date 06 november 2013jurisdiction common lawbefore beech jones jdecision application amend refused catchword practice procedure application amend statement claim question principle case cited aon risk service australia ltd v australian national university 2009 hca 27 239 clr 175category procedural rulingsparties timothy visscher plaintiff maritime union australia defendant representation counsel counsel molomby sc m l goodchild plaintiff r k weaver defendant solicitor solicitor roderick storie solicitor plaintiff slater gordon defendant file number 2011 339947ex tempore judgmenton application leave amend statement claim see transcript p 635 application eighth day trial amend statement claim plaintiff mr visscher existing pleading identifies two matter complained first matter complained article website defendant maritime union australia mua placed february 2011 second matter complained article appearing website www cootamundraherald com au around time paragraph 6 existing statement claim pleads mua published article entitled fear sailor caught cyclonic storm article thecootamundra heraldwebsite particular existing paragraph 6 particular publication indicate publication said action mua placing hyperlink second matter complained bottom first matter complained story website hearing proceeded accordingly seems particular point trial assumed pretty much everyone article constituting first matter complained placed website mua one safety officer mr nielsen mr nielsen also quoted story second matter complained however course mr nielsen evidence disclaimed placed first matter complained mua website however recount conversation journalist whose name appears byline second matter complained conveyed various information appears replicated story also stated prepared press release unidentified way disseminated apparently came possession journalist subsequent giving evidence mua called another witness m reynolds confirmed composed first matter complained placed mua website said following attention drawn second matter complained article thecootamundra herald evidence proceeding completed evening seventh day monday 4 november 2013 thereafter another round submission exchanged party previous submission exchanged mua complained one part plaintiff submission travelled beyond pleaded case attempted attribute responsibility publication thecootamundra heraldwebsite mua reason hyperlink also reason mr nielsen conduct communicating journalist wrote story debated today matter returned oral submission ultimately plaintiff applied leave amend statement claim plead third matter complained statement made mr nielsen journalist sought plead speaking journalist mr nielsen intended publish said publication natural probable result conversation plaintiff also sought plead third matter complained conversation mr nielsen journalist conveyed series defamatory imputation effect already pleaded traverse principle governing making application amend suffice state surveyed decision inaon risk service australia ltd v australian national university 2009 hca 27 239 clr 175 one matter concerned whether necessity make amendment something either solely substantially arose evidence mr nielsen person placed article constituting first matter complained mua website however reflection think case fact think evident term second matter complained always apparent journalist likely published article spoken mr nielsen thus always potential plaintiff plead case similar seek least administered interrogatory mr nielsen find spoken journalist said early point trial clear mua taking point responsibility second matter complained restricted manner identified existing particular namely responsible publication second matter complained occurred consequence someone consulting website following hyperlink submission heard concerning matter one point raised mua apprised earlier stage possibility would bear wider responsibility article appearing thecootamundra heraldwebsite would given least could given consideration joining relevant fairfax entity also responsible publishing article regard note previously proceeding plaintiff fairfax relation article settled although may theoretically possible mua also joined fairfax relation limited mean sought made responsible second matter complained currently pleaded simply cannot put aside fact denied opportunity considering course given plaintiff mean bring pleading form earlier time late stage application made potential prejudice identified view follows application amend must refused

Islam v Director General of the Justice and Community Safety Directorate [2022] ACTSC 222 (26 August 2022).txt

islam v director general justice community safety directorate 2022 actsc 222 26 august 2022 last updated 26 august 2022supreme court australian capital territorycase title islam v director general justice community safety directoratecitation 2022 actsc 222hearing date 24 26 august 2022decisiondate 26 august 2022before elkaim jdecision direct notice discontinuance dated 25 august 2022 filed court b appeal ca 29 2022 discontinued c application proceeding 18 august 2022 discontinued order made cost catchword appeal appeal acat decision appellant appeal psychiatric treatment order appeal discontinuedlegislation cited mental health act 2015 act 62parties isa islam appellant director general justice community safety directorate respondent representation counselself represented appellant k law jamieson respondent solicitorsself represented appellant act government solicitor respondent file number sca 29 2022decision appeal court tribunal act civil administrative tribunalbefore presidential member g mccarty senior member b wagstaffdate decision 30 june 2022court file number mh 242 2022elkaim j 1 dealing application proceeding lodged court 18 august 2022 application seek following order plaintiff granted injunction respondent preventing respondent forcibly moving appellant jail another institution preventing respondent forcibly applying medication appellant notice appeal heard ii order court considers appropriate 2 applicant inmate alexander maconochie centre amc 3 appeal proceeding referred requested order related psychiatric treatment order pto made act civil administrative tribunal acat 30 june 2022 4 notice appeal pto seem either signed filed 5 pto seems based upon tribunal review report dated 22 june 2022 report prepared forensic psychiatrist dr le request dr patterson 6 request report form questionnaire part seem completed treatment sought acat described follows treatment proposed administration antipsychotic medication likely long acting injectable initially although oral medication may suitable later point time treatment proposed administration within secure psychiatric hospital provide appropriate care 7 administration medication movement psychiatric hospital two action applicant wish prevent wish medication wish transferred amc psychiatric hospital 8 pto subject appeal make following order tribunal make psychiatric treatment order relation isa islam ii isa islam must comply determination made chief psychiatrist delegate undersection 62of themental health act 2015 iii unless sooner revoked order effect six month 30 june 2022 9 affidavit support application ground appeal state respondent behaviour towards appellant afford appellant procedural fairness b respondent behaviour towards appellant inconsistent actcorrections management act 2007and acthuman right act 2004 10 notice appeal applicant seek declaratory relief setting aside pto 11 matter came 24 august 2022 unfortunately due administrative error fault applicant applicant present court accordingly adjourned matter today earlier today registry received notice applicant due technical difficulty could filed 12 notice essentially notice discontinuance applicant state term move discontinue appeal associated application proceeding 13 require applicant appear today aware perhaps due mental health difficulty reluctant come court even appear audio visual system avl 14 think would applicant interest force appear either person avl 15 copy notice given solicitor respondent indicated respondent agrees discontinuance make application cost 16 make following order direct notice discontinuance dated 25 august 2022 filed court b appeal ca 29 2022 discontinued c application proceeding 18 august 2022 discontinued order made cost certify preceding sixteen 16 numbered paragraph true copy reason judgment honour justice elkaim associate date

BAIG (Migration) [2020] AATA 3549 (25 June 2020).txt

baig migration 2020 aata 3549 25 june 2020 last updated 16 september 2020baig migration 2020 aata 3549 25 june 2020 decision recorddivision migration refugee divisionapplicant mr mirza ehtesham ahmed baigcase number 1819419home affair reference bcc2018 930735member l symonsdate 25 june 2020place decision sydneydecision tribunal affirms decision cancel applicant class tu visa statement made 24 june 2020 3 35pmcatchwordsmigration cancellation student temporary class tu visa subclass 573 higher education sector visa applicant comply condition 8202 enrolled registered course study mother health situation applicant take reasonable step maintain enrolment decision review affirmedlegislationmigration act 1958 s 116 359migration regulation 1994 cth schedule 8statement decision reasonsapplication reviewthis application review decision dated 27 june 2018 made delegate minister home affair cancel applicant subclass 573 higher education sector visa unders 116 1 b themigration act 1958 act delegate cancelled visa basis applicant enrolled registered course since 20 september 2017 applied tribunal review decision 4 july 2018 theapplicant appeared tribunal 21 january 2020 give evidence present argument applicant represented relation review registered migration agent following reason tribunal concluded decision cancel applicant visa affirmed consideration claim evidence findingsthe issue present case whether applicant holder student visa breached condition 8202 schedule 8 themigration regulation 1994 regulation applicant breached condition unders 116 1 act visamaybe cancelled applicant breach condition 8202 condition 8202 applies case set attachment decision relevantly requires applicant enrolled registered course limited case full time course study training 8202 2 certified education provider achieving satisfactory course progress specified 8202 3 andhas certified education provider achieving satisfactory course attendance specified 8202 3 b present case applicant granted subclass 573 student visa 24 august 2015 visa subject number condition including condition 8202 23 may 2018 delegate sent notice intention consider cancellation noitcc student visa basis breached condition 8202 2 student visa given opportunity comment ground cancellation identified noitcc give reason student visa cancelled response dated 18 june 2018 applicant provided detail visa cancelled also provided department ielts test dated 26 march 2015 secondary school certificate examination dated 7 july 2014 board secondary education statement dated 23 july 2012 statement mark dated 15 january 2015 certificate english language proficiency holmes institute copy bio data page pakistani passport issued 22 november 2012 applicant provided tribunal copy decision record dated 27 june 2018 department immigration department copy bio data page pakistani passport issued 22 november 2012 requested granted time hearing provide additional evidence provided tribunal confirmation enrolment coe graduate diploma management commencing 20 september 2021 ending 19 february 2023 department found applicant enrolled registered course study since 20 september 2017 tribunal asked applicant whether agreed responded yes stated travelled pakistan good situation returned australia stated understood enrolled registered course study breached condition 8202 student visa record department education indicate applicant enrolled diploma information technology 3 october 2016 29 september 2017 enrolment course cancelled 20 september 2017 non payment fee enrolled diploma leadership management 24 september 2018 23 march 2020 tribunal put information pursuant 359aa act noted may find enrolled registered course study 20 september 2017 23 september 2018 breached condition 8202 2 student visa applicant responded reason enrolled family issue stated mother sick mentally disturbed stated lot thing happened 2 year stated education provider inform fee stated currently studying diploma complete march 2020 stated study advanced diploma leading bachelor business degree stated never done anything illegal broken rule stated received fine stated tribunal requires coe bachelor degree able provide evidence tribunal find applicant enrolled registered course study 20 september 2017 23 september 2018 accordingly complied condition 8202 2 student visa consideration discretion cancel visahaving found applicant complied condition visa tribunal must consider whether visa cancelled matter specified act regulation must considered exercise discretion tribunal regard circumstance case including matter raised applicant matter department procedure advice manual pam3 general visa cancellation power purpose visa holder travel stay australia visa holder acompelling need travel remain australia response noitcc applicant stated came australia study get australian qualification could return pakistan better employment opportunity beat local competition hearing applicant gave evidence purpose coming australia get degree return pakistan stated level education pakistan great tribunal asked applicant completed study australia english course responded enrolled bachelor business degree started going class stated could understand anything switched accounting stated switched information technology going attend course stated returned pakistan nothing stated undertook two semester information technology course cancelled coe tribunal asked return family pakistan came australia study studying problem coping australia responded mother told return pakistan stated told finish study return pakistan asked whether reason needed remain australia responded want bachelor degree stated almost finished diploma want advanced diploma followed bachelor degree record department education indicate applicant enrolled general english program 7 september 2015 13 november 2015 completed course enrolled bachelor business degree 9 november 2015 31 july 2018 enrolment course cancelled 10 september 2015 non commencement study enrolled another bachelor business degree 9 november 2015 31 july 2018 enrolment course cancelled 13 april 2016 changed different course enrolled bachelor professional accounting 4 april 2016 31 december 2018 enrolment course cancelled 12 july 2016 non payment fee record department education indicate applicant enrolled diploma information technology 3 october 2016 29 september 2017 enrolment course cancelled 13 october 2016 changed enrolment enrolled diploma information technology 3 october 2016 29 september 2017 enrolment course cancelled 20 september 2017 non payment fee enrolled diploma leadership management 24 september 2018 23 march 2020 tribunal put information applicant pursuant 359aa act noted may find intention studying fulfilled purpose student visa granted student visa cancelled tribunal noted cancellation coe 20 september 2017 non payment fee reason mother claimed applicant responded fee stated criterion studying australia different criterion pakistan could understand stated kept changing course find course better could find one tribunal accepts would difficult applicant adjust studying australia clear tribunal thought could undertake bachelor degree english australia undertaking short general english course evidence purpose coming australia obtain degree granted subclass 573 student visa purpose enrolled bachelor degree since 12 july 2016 tribunal view considerable period time fulfilled purpose student visa granted applicant gave evidence student visa cancelled intention enrol advanced diploma followed bachelor degree requested granted time hearing provide additional evidence provided evidence coe graduate diploma management learning commencing 20 september 2021 provide coe bachelor degree tribunal satisfied demonstrated compelling need remain australia tribunal give consideration weight applicant favour extent non compliance visa conditionsin response noitcc applicant stated always tried adhere visa condition stated gap study mother medical condition family issue applicant enrolled registered course study 20 september 2017 23 september 2018 considerable period time breach condition 8202 2 student visa tribunal asked applicant whether breached condition student visa responded never done anything illegal evidence tribunal indicate applicant failed comply condition student visa tribunal give consideration weight favour degree hardship may causedin response noitcc applicant stated student visa cancelled face enormous pressure family shameful return pakistan visa cancellation stated would bad effect mother already suffering depression health could deteriorate hearing tribunal asked applicant hardship may caused student visa cancelled responded return pakistan would able get job stated also able enrol university would bring shame family tribunal asked applicant whether considered issue stopped studying responded afraid would happen mother stated heart kept pumping stated doctor ecg everything normal stated fever doctor advised anxiety needed sleep properly stated doctor advised get 8 hour sleep would start losing memory stated maximising sleep get back normal received noitcc tribunal accepts applicant family would suffer considerable hardship student visa cancelled tribunal give consideration weight favour circumstance ground cancellation arosein response noitcc applicant stated reason gap study beyond control stated mother ill due family problem stated suffering depression anxiety made worried stated due situation family issue able concentrate study period stated able tell mother suffering depression stated wanted return pakistan see mother advised escalated family issue stated able study concentrate anything hearing applicant gave evidence main reason enrolled registered course study september 2017 mother became ill returned pakistan stated depressed cry time stated 5 year old brother eldest son stated mother stable returned australia stated two day later situation stated lot stuff happened time asked whether informed education provider problem sought assistance responded stated realise applicant stated started getting anxiety attack asked whether saw doctor responded doctor told needed sleep slept 2 ½ day stated roommate kept cheering stated lost everything 2 year tribunal asked applicant whether situation different responded mother getting stable stated done wrong stated realising important future stated need get educated get good job support family stated need catch stated good student pakistan asked whether consulted student counsellor college responded asked whether spoke department problem responded stated thought despite given time hearing provide additional evidence applicant provided tribunal evidence mother illness family problem mental health issue consulted doctor australia applicant explanation able study enrolled registered course study considerable period time consistent record department education record indicate coe cancelled 20 september 2017 non payment fee disagrees tribunal would expect return pakistan mother illness return unable study panic attack explained education provider may able get study deferred without risking cancellation coe failure raise doubt claim mother ill impacting health applicant remained australia student visa without enrolled registered course study 20 september 2017 23 september 2018 even sent noitcc 23 may 2018 delayed enrolling registered course another 4 month mental health issue impacting ability study tribunal would expect approached department explain able fulfil responsibility student visa tribunal doubt reason applicant enrolled registered course study unable study despite claim department able study concentrate anything evidence tribunal continued work australia throughout period tribunal raised issue motivation australia responded working 20 hour week thing cheered stated want leave job people great stated one passion leave work considered evidence tribunal accept circumstance ground cancellation arose beyond applicant control tribunal give consideration little weight favour past present behaviour applicant towards departmentin response noitcc applicant stated past present behaviour towards department good stated never breached visa condition past stated completed study enrolled stated always respected law law abiding citizen statement inaccurate completed study enrolled indicated paragraph 20 21 course completed since arrival australia 3 september 2015 short general english course also citizen australia hearing applicant gave evidence complying condition 8202 problem department relation non compliance visa condition relation providing incorrect information false statement evidence tribunal indicate applicant co operated department engaged unfavourable behaviour towards department tribunal give consideration weight favour whether would consequential cancellation 140 actthere evidence tribunal indicate cancellation applicant student visa would result consequential cancellation another person visa 140 act tribunal give consideration weight favour legal consequence decision cancel visaif applicant student visa cancelled become unlawful non citizen may liable detention 189 act removal 198 act voluntarily depart australia resolve immigration status however may eligible bridging visa would allow lawful presence australia short period time finalize affair australia departing applicant student visa cancelled subject 48 act mean limited option applying visa australia public interest criterion 4012 may prevent granted particular temporary visa period three year date cancellation intended legal consequence legislation visa cancelled ground reflects seriousness breach visa condition consequent cancellation visa tribunal give consideration little weight favour australia international obligationsthe tribunal asked applicant whether reason could return pakistan responded would difficult get enrolled university stated would able get job stated want return pakistan without degree evidence tribunal indicate cancellation applicant student visa would result breach australia international obligation tribunal give consideration weight favour relevant matterthe tribunal aware relevant matter conclusionhaving considered evidence cumulatively tribunal view ground cancelling applicant student visa outweigh ground cancelling student visa therefore tribunal concludes student visa cancelled decisionthe tribunal affirms decision cancel applicant class tu visa l symonsmemberattachmentmigration regulation 1994 schedule 8 1 holder holder subclass 560 student visa ausaid student holder subclass 576 ausaid defence sector visa must meet requirement subclauses 2 3 2 holder meet requirement subclause holder enrolled registered course b case holder subclass 560 571 school sector visa secondary exchange student holder enrolled full time course study training 3 holder meet requirement subclause neither following applies education provider certified holder registered course undertaken holder achieving satisfactory course progress section 19of theeducation service overseas student act 2000 ii standard 10 national code practice registration authority provider education training overseas student 2007 b education provider certified holder registered course undertaken holder achieving satisfactory course attendance section 19of theeducation service overseas student act 2000 ii standard 11 national code practice registration authority provider education training overseas student 2007 4 case holder subclass 560 visa ausaid student holder subclass 576 ausaid defence sector visa holder enrolled full time course study training

Bruce v The Queen; Curtis v The Queen [1971] TASStRp 3; [1971] Tas SR 22 (4 March 1971).txt

22 smanian stat report bruce queen curtis queen 1971 1971 court criminal appeal burbury c crawford chamber jj sept 9 nov 4 5 1970 march 4 1971 criminal law practice procedure judgment punishment sentence evidence record ing alteration factor taken account multiple offence juvenile offender riminal code s 386 1 389 7 401 1 c rule court criminal code act 1929 r 1961 198 amended r 1966 63 ix rule court made criminal code act 1924 order ix recording proceeding session oyer tl rminbr gbnbral gaol dbuvbry 1 1 least two clear day beginning session oyer terminer general gaol delivery crown solicitor ahail send registra r six copy calendar 8 c rd ance form ix part appendix setting therein name accuaed person committed trial sentence session b remanded mal previous session c failed appear previous session warrant issued section three hundred nine criminal code ordered retried session showing whether cwltody ball 2 registrar sha send sheriff two copy calendar dle use judge holding session 3 calendar sent registrar person named therein custody released bail bail taken custody crown solicitor shall notify registrar accordingly 2 every indictment filed court two copy thereof shall lodged one use judge use jury lilt trial 3 1 upon conclusion trial associate judge shall enter tihe particular re9ult trial sentence imposed court minute book place 1he court sitting b shall endorse accordance form x part appendix particular result trial sentence imposed court back original indictment filed court ii accused person committed sentedce provision section 63 justice act 1959 back certified copy complaint supplied use judge 2 upon tibe coiiiclusion trial accused person sentenced term imprisorment officer authorized sheriff shall forthwith ta br bruce v queen 23 criminal law appeal practice appeal book sentence entry minute book wjedr certificate uncler evidence act 1910 76 criminal law practice procedure mean accwjed brought trial committal trial fubtice sentence plea guilty complaint containing dictable non indictable offence committal respect specific charge complaint criminal code 8 389 7 jubtices act 1959 77 1959 s 63 71 rule court criminal code act 1924 ix r 3 provide tbait case man committed justice sentence associate shall enter particular sentence court minute book endorse certified copy complaint make certificate sentence registrar judge shall initial minute book r 4 sheriff shall complete calendar copy signed judge shall go several official motion leave appeal sentence person jointly charged committed sentence justice appeal book contained transcript judge word passing sentence certificate sentence 76 evidence act 19 10 agree appeared entry minute book initialled judge agree transcript certified copy complaint endorse instead copy order committal endorsed calendar signed two judge holding session held sentence court pronounced ore tenus complete sign two copy certificate accordance form xi part appendix b hand original certificate prison officer accused taken custody 3 associate entered court minute book particular prescribed sub rule 1 rule judge shall initial entry b shall sign endorsement made associate indictment copy complaint 4 associate shall foregoing provision rule complied return original indictment court file office registrar together duplicate certificate sub rule 2 rule b exhibit produced trial c list duplicate exhibit 4 1 end session sheriff shall complete calendai certify correctness shall note thereon case indictment filed accused person remanded suibsequent sitting 2 sheriff shall thereupon submit four copy calendar judge signature shall send one copy signed controller prison chief probation officer solicitor general registrar shaj cause copy filed 24 tasmanian state report 1971 b transcript may regarded find c nrlstake sentence may bc corrected minute book minute book conclusive took place court e endorsement complaint merely administrative memoranda sentence already effective per burbury c l practice including certificate 76 evidence act 1910 appeal book wrong since conclusive court remembrance entry minute book used associate certificate judge see latter judge may alter sentence functus officio signed calendar sem controller prison increase open court justice act 1959 71 1 provides stealing property worth tlhan 20 simple offence sub 3 permit justice iihink charge fit solemn trial cease hearing summarily begin hearing afresh indictable offence two number oh llirges one complaint within 71 1 per crawford l defendant pleads guilty charge justice may instead convicting begin proceeding afresh nothing suggest contrary presumed procedure followed defendant lawfully committed defendant committed respect specific charge complaint sentencing multiple offence young person considered application leave appeal robert john broce barry john curtis com plaint detective senior constable dunne charged 29th june 1970 stipendiary magistrate five offence committed latrobe two housebreaking two stealing one demanding money menace fourth charge stealing 1 50 money pleaded guilty charge committed supreme court sentence later another stipendiary magistrate charged complaint detective sergeant child two offence housebreaking stealing great lake complaint detective sergeant bailey one hundred offence great lake fifty eight house breaking forty two stealing result committed plea guilty supreme court sentence broce case fifty seven charge house breaking eight stealing curtis case fifty nine charge housebreaking eight stealing came neasey j hobart criminal sitting 27th july 1970 pronouncing sentence honour said charge demanding money menace ta r j bruce v queen 25 sentenced one year imprisonment breaking entering charge relation couple mr mr lunson sentenced six month imprison ment six month served concurrently stealing charge sorry six month served con currently twelve month demanding money menace pausing year first charge demanding money menace six month breaking entering lunson property six month concurrent year demanding money menace stealing charge lunsons conviction recorded breaking entering charge house latrobe sentenced six month imprisonment cumulative upon first sentence say six month served addition first twelve far given eighteen month imprisonment say eighteen month consecutive imprisonment stealing charge latrobe house given three month impris onment concurrent six month breaking entering house add eighteen month consecutive imprisonment point bruce fifty seven charge break ing entering shack great lake given unfortunate deal way separate charge complaint given twenty one day imprisonment offence make total arithmetic correct one hundred seventy one week use sentence twenty one day served cumulatively say one also cumulative sentence already passed ten stealing charge sentenced twenty one day offence served concurrently twenty one day relating premise stealing charge relates work bruce way firstly total eighteen month sassafras latrobe offence total well eighteen month seventy eight week total one hundred seventy one week great lake offenc make total two hundred forty nine week four year forty one week nearly five year fact age twenty curtis seventeen relative youth might phrase even fact previous conviction going sllspend part sentence going tostisoend last forty one week forty one week 26 tasmanian state report 1971 suspended condition commit serious offence involving dishonesty period forty one week little year supervision probation officer period come got total four year forty one week ordered serve four year forty one week suspended two condition apply forty one week release prison commit serious offence involving dis honesty period b supervision probation officer period curtis receive sentence broce relation shack breaking offence fifty nine shack breaking total firstly eighteen month latrobe sassafras seventy eight week plus case one hundred seventy seven week two additional offence make total two hundred fifty five week four year forty seven week seventeen whereas broce twenty propose suspend longer period bruce going suspend last seventy three week fact six month plus forty seven forty seven week plus six month make seventy three week last seventy three week suspended condition relation bruce serious crime involving dishonesty period seventy three week secondly supervision probation officer period sentence result curtis released six month ahead broce think circumstance desirable released different time applied court criminal appeal leave appeal ground inter alia sentence excessive appeal book contained copy certificate con viction 76 evidence act 1910 given judge associate clerk court setting sentence imposed one defendant respect detective senior constable dunne complaint one respect two complaint associate made entry court minute book follows ta r bruce v queen 27 honour sentence bruce sentenced 171 week imprisonment 41 week suspended condition serious offence involving dishonesty committed period supervision probation officer period curtis sentenced 177 week imprisonment 73 week suspended condition serious offence involving dishonesty committed period supervision probation officer period judge signed associate certified copy complaint endorsed particular sentence order committal delivered sheriff entered sentence calendar two judge holding sitting obtained signature judge calendar c r wright applicant r h olt crown cur adv vult court considering application appeared certificate conviction sentence appeal book agree sentence pronounced neasey j application brought argument c r wright applicant roger ennings q c g david coalman crown ennings q c g referred criminal jurisdiction supreme court record australian court act 1828 1 3 chart 3 r twtice supreme court act 1831 2 3 supreme court act 1857 3 supreme court act 1887 4 11 supreme court act 1959 5 s 6 9 session sitting used mean thing criminal code s 307 1 345 350 2 378 2 386 c 5 11rls application leave appeal sentence passed ibid 401 1 c cf s 385 386 court power ibid 402 4 detennining whether exercise power court incidental power ibid s 400 408 416 1 417 409 supreme court civil procedure act 1932 6 47 r c 1965 0 76 r 21 1 9 geo 4 c 83 2 2 iv 1 3 21 viet 12 4 50 vict 36 5 41 1959 6 23 geo v s 28 tasmanian state report 1971 court duty determine sentence passed certificate conviction 76 eoideiwe act 1910 say cumqiative burbury c j status certificate con viction necessary absence document called record four form written evidence 1 minute book statutory recognition ix r 3 1 judge initialled 2 endorsement certified copy complaint none supplied associate endorsed order commitment administrative arrangement sent registrar 3 calendar two judge sitting relevant entry signed judge ca se 4 certificate sentence probably important gaoler authority imprison neither certificate 76 evidence act 1910 endorsement formal order committal status mentioned rule see sentence passed important material look transcript court may look especially view 400 criminal code stephen hist crim law vol p 308 say minute book mere private memoranduin strictly applicable rule acknowledge minute book formal document kept thl3 clerk initialled judge would inappropriate give higher status transcript burbury c j basic argument judgment pronounced ore tenus material ar evidence 9f mles relating civil judgment apply burbury c j judgment pronounced ore tenus judge vary sentence yes inherent jurisdiction hogarth eslate 7 bla comm vol iv appx r v northumberland compensation appeal tribunal exp shaw 8 gerard v hope 9 necessary decide record court dealing action false imprisonment whether sentence passed varied cooper v dawson 10 document existence precludes court looking behind need amend document possible justice without amendment one amended calendar minute book non existent certified copy complaint 11 precedent amending either indictment minute 1 1962 ta r 17 8 1952 1 k b 338 p 344 9 1965 ta r 15 p 20 10 1916 v l r 381 p 393 ta r bruce v queen 29 book r v proctor 11 either court satisfied sentence passed alter alters 7 r 12 applies would necessary disturb present situation could beyond jurisdiction court either event court must determine sentence passed determination effect later application habeas corpus referred reg v nam 12 reg v hodgkinson 13 reg v tonks 14 complaint includes charge simple offence whole complaint may referred supreme court justice act 1959 pt vii viii sentence imposed simple offence affect case concurrent sentence indictable offence purcell v king 15 distinguishable need alter result dealt computation sentence wright clear sentence imposed irrelevant matter included referred r v sharman 16 jennings q c g reply cur adv vult march 4 1971 bubbury c application leave appeal multiple sentence imposed n easey j applicant respect large number separate crime committed applicant jointly mter court reserved decision application noticed certificate conviction given clerk court copied appeal book correctly set sentence pronounced learned trial judge particular certificate relating sentence imposed upon applicant respect multiple shack breaking referred total period sentej lces case state sentence served expiration sentence imposed learned trial judge although long standing practice jor certificate conviction sentence 76 evidence act 1910 supplied court criminal appeal think practice wrong court seised record certificate necessary 76 prove would think preferable future copy entry court minute book initialled 11 1923 17 crirn app r 14 19631 v r 121 124 15 19501 ta r 14 12 1968 r 107 16 1925 19 crirn app r 43 13 1954 v l r 140 30 tasmanian state report 1971 trial judge included appeal book instead certificate clerk court reason suggesting entry minute book later appear perhaps add nothing 76 evidence act 1910 make certi6cate conviction conclusive clearly court entitled go behind look actual reco rds court unfortunately upon perusal record made sentence pro nounced learned trial judge appears incomplete irregular none accurately record sentence pronounced learned trial judge evidenced transcript tape recording comment passing sentence record ix rule court criminal code act 1924 prescribe consist 1 entry court minute book initialled trial judge 2 endorsement back original indicbnent case committal sentence back certified copy complaint signed trial judge 3 entry calendar signed trial judge present case entry minute book although initialled trial judge accurately state sentence imposed appears initialled entry per incuriam endorsement sentence copy committal order none certified copy complaint required rule entry calendar signed trial judge explanation calendar signed judge presiding sitting generally judge took particular matter additional judge sitting section 401 1 c criminal code give con victed person appeal leave court sentence passed conviction purpose application therefore court concerned determine sentence passed learned trial judge section 385 1 provides upon conviction person convicted shall sentence passed asked officer court whether anything say sentence passed upon 386 1 provides judgment arrested court may ta r bruce v queen 31 pas sentence upon person convicted forthwith reference section jurisdiction court pas sentence think abundantly clear sentence passed 386 constitutes judgment court sentence orally pronounced judge open court presence prisoner sentence pronounced operates immediately prisoner moment without lawful custody accordance sentence pronounced sentence may altered trial judge becomes functus officio sentence may subject application leave appeal since introduction tape recorder record comment judge passing sentence possible accurate transcript precise word present case transcript status effect prescribed court record first thing observed entry court minute book endorsement back indictment certified copy complaint adminis trative record memoranda sentence already passed become fully legally effective procedure stated hat l e 3rd edn vo 10 p 435 judgment pronounced minute judgment entered indictment book kept purpose clerk court entry minute judgment accordingly evidence constitute judgment distinguished formal record court made purpose certiorari hals l e lac cit n stephen hist crim law vo 1 pp 318 9 reg v hodgkinson 17 reg v tonks 18 entry calendar probably higher status administrative record deposit controller prison signed calendar constituting complete return person committed sitting make trial judge functus officio cannot thereafter alter sentence imposed reg v nam 19 reg v davidson 20 police v hallmond 21 last case cited interesting reference mackinnon l j book circuit speaks day j frequently came sign calendar would reduce sentence imposed session would 17 1954 v l r 140 20 1966 n z l r 626 18 1963 v r 121 21 1951 n z l r 432 19 1968 r 107 e 32 tasmanian state report 1971 appear severe supposed practice altering sentence putting formal order oral pronouncement seems well recognised england would seem alteration substance disadvantage prisoner made open court presence r v gomer 22 r v casey 23 r v casey court criminal appeal held regard particular circumstance purported alteration disregarded sentence taken orally pronounced civil case order made judge effective pronounced may altered substance time perfected passing entering formal judgment court thereafter altered pursuant slip rule pursuant inherent jurisdiction court correct formally entered judgment give effect real intention hogarth estate 24 harrison settlement 25 also clear judge orally pronounced judgment civil case may correct mistake transcript judgment supplied shorthand writer may alter word fact used express intended meaning time uttered slip said something could possibly meant bromjel v bromley 26 doubt power may exercised relation transcript tape recording see difference principle civil criminal case light authority think clear although amended word uttered trial judge passing sentence constitute sentence open subsequently correct error omission altering minute entered clerk court bring conformity real intention say entry minute book initialled trial judge necessarily conclusive evidence sentence pronounced extent clear error informality ambiguity word uttered override word uttered better evidence judge intended present case however minute clearly erroneous incomplete looked light transcript judge said clearly initialled per incuriam see therefore duty court case determine matter substantive intent sentence pronounced 22 1949 33 crim app r 91 23 1932 23 crim app r 193 24 1962 ta r 17 25 r19551 1 e r 185 26 19641 3 w l r 666 1965 p iii 34 tasmanian state report 1971 learned trial judge stating sentence explained prisoner total period im prisonment made minor error converting week year way vitiates expressed intention total sentence expresser week respective period suspension expressed week conceded learned trial judge without jurisdiction respect several charge stealing included theft article exceeding twenty dollar value expressed concurrent sentence may quashed without learned trial judge overall discretionary judgment passing sentence vitiated total multiple sentence imposed curtis leaving aside minor error conversion week year four half year twenty one week broce four half year fifteen week learned trial judge suspended seventyjthree week curtis sentence thereby reducing actual period imprisonment approximately three half year suspended forty one week bruce sentence thereby reducing actual period imprisonment approximately four year time crime committed applicant curtis sixteen attained age seventeen july 1970 sentenced applicant broce aged twenty application first came hearing counsel applicant curtis foreshadowed application leave amend notice application leave appeal adding ground reason provision child welfare act 1960 learned trial judge juris diction proceed application clear learned trial judge exercising sentencing power conferred criminal court criminal code otherwise application leave appeal sub stance resolve single ground overall period imprisonment resulting totality multiple sentence manifestly excessive counsel applicant curtis properly conceded sentence twelve month imposed crime demanding money menace coupled concurrent sentence respect breaking entering stealing excessive view light sentence crime longer sentence particularly bruce case could well justified think even curtis case sentence six month cumulative respect breaking entering ta r bruce v queen 35 stealing worby house latrobe could regarded excessive lunson w orby crime unconnected learned trial judge clearly justified imposing separate cumulative sentence incident also uncon nected multiple breaking entering stealing great lake shack nexus found fact gun subject charge demanding money menace stolen one shack follows part total sentence imposed even arguably excessive part relates shack breaking curtis case work approximately three year twenty one week bruce case approximately three year fifteen week learned judge conceived bound impose separate sentence respect fifty nine fifty seven charge however two complaint one containing one charge h williams shack second containing remaining charge form annexures one complaint honour could im posed one overall sentence respect fifty seven fifty nine charge except one appears comment passing sentence would done thought permissible honour doubt misled form complaint reproduced appeal book first sight would appear charge subject separate complaint whether judge faced problem detennining appropriate punishment respect multiple crime chooses impose one overall sentence included one complaint one indictment separate sentence matter discretion smgline v queen 27 court criminal appeal adverted possible danger total excessive period imprisonment resulting practice imposing separate cumulative sentence respect number crime wise v queen 28 court criminal appeal made clear singline v queen laid principle law court case considered practice resulted excessive punishment overall present case think entirely sound separate sentence imposed respect charge demanding money menace charge breaking entering intent steal stealing worby also unrelated shack breaking came multiple 27 unreported c c ta 1962 28 1965 ta r 196 36 tasmanian state report 1971 charge shackbreakings would learned judge indicated preferable imposed one overall sentence many charge process imposing separate sentence became artificial fact honour imposed separate sentence course say honour regard overall period imprisonment produced totality sentence regard 1 would quote word learned judge wise v queen 29 accept argument learned chief justice made error treating offence separately think right concur regarding singline case applicable fact laying general principle say judge imposing sentence respect multiple offence need pay regard total sentence element repetition sense referred therein absent generally 1 would think would duty order see total individual sentence become proportion totality offenc regard many consideration judicial officer imposing penalty crime must take account indeed think implicit f act learned judge imposed short sentence three week respect crime honour concerned totality sentence would excessive 1 see case real question whether overall sentence little three year fifty seven fifty nine shackbreakings coupled suspension sub stantial period said manifestly excessive learned judge really faced agonising decision whether send youth seventeen gaol first time crime demanding money menace serious course proper sentence light one sentence latrobe housebreaking stealing reason suspend part sentence 1 unable say circum stance additional overall sentence shackbreakings little three year one year suspended excessive case curtis overall sentence lesser period suspension case bruce excessive although honour ten charge stealing anomalous position stealing charge respect good cash 29 1965y ta r 196 p 209 ta r j bruce 1 queen 37 le twenty dollar value within jurisdiction notwithstanding coupled breaking entering charge overall value good comprised ten charge high think must assumed applicant would taken anything value steal firearm ammunition think ordering period suspension light sentence demanding money menace learned judge sufficiently took account youth applicant sufficiently differentiated sum consider sentence imposed within proper exercise honour discretion would therefore refuse leave appeal case crawford j application leave appeal sentence although various ground set notice appeal prepared applicant person application argued ground sentence manifestly excessive judgment reserved appeared court uncertainty meaning word used learned trial judge passed sentence confusion various entry made purportedly pursuance rule court criminal code act 1924 ix rr 3 4 court referred matter applicant crown heard argument necessary trace course proceeding 14th june 1970 complaint laid detective senior constable dunne containing five charge applicant jointly severally first charge alleged broke entered dwellinghouse one worby intent commit crime wit steal therein charge allege whether crime committed night day impossible merely word charge say whether applicant charged burglary housebreaking whether charge brought 244 whether brought 245 crimiruil code comment applies charge breaking entering dwelling house whether contained complaint refer first complaint two latet complaint refer second complaint third complaint learned trial judge sentencing said nothing indicate whether sentencing burglary housebreaking various record made purported compliance rule refer housebreaking thete complaint reference 245 housebreaking none 244 way 38 tasmanian state report 1971 example refer first complaint fifth charge first complaint relevant charge demanding money intent steal first charge said one breaking entering dwelling house worby second charge one stealing property dwelling house third charge one breaking entering dwelling house one lunson intent commit crime wit steal therein fourth one stealing money dwelling house end fourth charge appears phrase contrary section sic 245 234 criminal code act 1924 similar word appear end last charge second third complaint contain charge breaking entering dwelling house intent steal stealing matter discnssed second hearing court counsel applicant made sub mission sought make amendment notice appeal raise matter purpose application prepared assume without finally deciding applicant respect charge breaking entering convicted sentenced trial judge housebreaking contrary 245 criminal code sufficiently commented conterlts charge first complaint except add amount money alleged stolen dwelling house lunson fourth charge 1 50 back complaint endorsed right explained plea guilty charge committed sentence supreme court burnie 29 6170 appears signed j temple smith stipendiary magistrate mr temple smith also signed formal order recite com plaint charge contained therein applicant entered plea guilty ordered com mitted supreme court sentence justice act 1959 pt viii make provision certain indictable offence deglt summary offence 7l la person brought justice upon complaint offence section two hundred thirty four criminal code respect property value exceed ten pound section creating offence charged shall deemed created simple offence complaint shall dealt accordingly subject provision section 234 criminal code creates crime stealing ta sr bruce v queen 39 3 hearing charge detennined section defendant may plead guilty offence charged ii applicant respect fourth charge first complaint b time commencement case defence justice consider charge fit subject prosecution indict ment shall cease hearing heard shall detennine shall begin hearing afresh accordance part vii part vii part justice act 1959 dealing proceeding indictable offence word appear commencement part evidence whether stipendiary magistrate made order par b magistrate appears endorsement complaint e commit applicant supreme court sentence charge including fourth charge magistrate power commit defendant supreme court sentence contained 63 justice act 1959 63 1 case section fifty six applies defendant pleaded guilty charge dictable offence b examining justice c former case shall latter case may instead committing trial commit supreme court sentence fourth charge first complaint indictable offence 56a applicable section deal case person charged complaint police officer applicant complaint purpose procedure prescribed justice act 1959 circumstance case e value property exceed twenty dollar 234 criminal code deemed created simple offence charge dealt accordingly brought operation 40 tasmanian state report 1971 part justice act 1959 pt ix power given justice commit sentence person pleading guilty simple offence simple offence defined 3 justice act 1959 simple offence mean offence indictable punishable summary conviction justice fine imprisonment otherwise learned solicitor general snbmitted court presume learned stipendiary strate commit applicant sentence charge acted justice act 1959 71 3 b begun hearing afresh accordance pt vii court also presume submitted magistrate accordance 56a b informed applicant entitled examination adiourned accordance 58 wanted time applicant undoubtedly pleaded guilty magistrate could exercise power 63 commit applicant supreme court sentence question therefore whether magistrate could la ully acted 71 3 b effect paragraph considered hau v mann 30 neasey j held question whether open court meaning court petty session impose adequate penalty always con sidered material exercise discretion dis position summary trial 01 indictment question importance whether defendant pleads guilty guilty paragraph refers hearing seen section justice act 1959 word hearing applicable whole hearing whether defendant pleads guilty section 20 21 29 31 37 44 would within power magistrate upon hearing complaint charging offence 234 criminal code respect property value exceed 20 commence hearing complaint complaint simple offence defendant pleads guilty may convict impose penalty see justice rule 1961 r 42 however magistrate decides con victing charge fit subject prosecution indict ment ceasb hearing begin hearing afresh case complainant police officer magistrate would follow procedure set 56a seems defendant would asked plead charge defendant pleaded guilty magistrate would follow provision 63 commit defendant supreme court sentence effect ta r bruce v queen 41 application 71 3 b must necessity put end fiction 234 crimi1llll code created simple offence charge must automatically become indictable offence nothing suggest contrary presumed presumption regularity procedure applicant lawfully committed supreme court sentence respect fourth charge first complaint second complaint one laid detective sergeant child 16th june 1970 containing two charge first charge applicant broke entered dwelling house one wiliiams intent commit crime wit steal therein second charge applicant stole dwelling house property value 2 50 complaint came j p morris esq applicant pleaded guilty charge common ground mr morris committed applicant sentence respect first charge respect second charge third complaint laid detective sergeant bailey 19th june 1970 respect 100 charge applicant 58 charge breaking entering dwelling house intent commit crime stealing forty two charge stealing came also mr morris applicant curtis pleaded guilty charge applicant bruce pleaded guilty charge except thirty first fifty second charge charge breaking entering dwelling house intent commit crime stealing therein appears prosecution withdrew charge bruce mr morris signed formal order reciting complaint made 16th 19th june 1970 must second third complaint order recites applicant bruce pleaded guilty fifty seven charge breakin entering dwelling house eight charge stealing 24th april 7th june 1970 applicant curtis pleaded guilty fifty nine charge breaking entering dwelling house eight charge stealing date order applicant remanded criminal sitting supreme court sentence order implies curtis committed sentence respect charge breaking entering second third complaint bruce also committed except respect thirty first fifty second charge third complaint committed sentence respect eight charge stealing common ground hearing application eight charge stealing charge 42 tasmanian state report 1971 stealing contained third complaint charge 10 12 14 16 18 20 57 85 charge stealing offence came within 71 la b justice act 1959 applicant would option tried justice jury pleaded guilty would done wished tried jury almost certain exercised option tried justice exercise option way meant offence 234 criminal code deemed created simple offence could dealt simple offence magistrate bound dealt simple offence reason concluding word sub la subject provision section case eight charge applicant presume reason already given magistrate acted 7la 3 b enabled act 63 commit applicant sentence respect matter must conclude therefore applicant law fully committed supreme court sentence respect charge first complaint first charge second complaint applicant curtis respect charge breaking entering dwelling house intent steal eight charge stealing set number contained third complaint applicant broce respect charge breaking entering dwelling house intent steal except charge thirty one fifty two third complaint respect eight charge stealing however appears supplementary report learned trial judge applicant brought supreme court mistakenly asked plead ten charge stealing contained third complaint instead eight respect committed sentence two charge numbered eight eighty third complaint pleaded guilty two charge learned trial judge sentenced applicant broce respect ten stealing charge contained third complaint although sentence ordered served concurrently sentence duration sentence imposed respect charge breaking entering dwelling house stealing occurred sub mitted solicitor general complaint containing multiple offence supreme court court could sentence defendant offence contained complaint even though defendant committed sentence ta r bruce v queen 43 respect supreme court power sentence anyone unless charged indictment required criminal code committed sentence 63 justice act 1959 section refers charge offence complaint clear tjte following reason justice commit sentence respect particular charge subsection 1 applies defendant justice pleads guilty charge indictable offence admits guilty indictable offence justice duty one case power case commit defendant supreme court sentence course must mean sentence respect charge supported sub 2 requires endorsement endorsed com plaint subsection requires shall following form plead guilty offence state indictable offence defendampleads guilty dated day 19 supported sub 5 source jurisdiction supreme court matter 5 court defendant committed brought power sentencing otherwise dealing defendant finally disposing charge incidental matter would defendant arraignment criminal session supreme court pleaded guilty offence indictment use word charge word complaint quite consistent earlier subsection learned trial judge therefore act without jurisdiction sentencing appellant broce respect count eight eighty eight third complaint appellant curtis question whether honour sentenced respect two charge indeed whether sentenced respect eight stealing charge contained third complaint lawfully court set honour said actually passing sentence although portion relevant matter con sidered necessary refer part later honour set word neasey j continued seen honour first dealt first complaint sentenced applicant charge complaint dealt broce fifty seven charge breaking entering shack must 44 tasmanian state report 1971 one charge contained second complaint fifty six charge breaking entering shack third com plaint respect bruce committed sentence dealt honour using word context must applicable bruce sentenced bruce ten stealing charge honour pro ceeded calculation said made total term four year forty one week referring age appellant suspended last forty one week term showed addressing applicant bruce honour addressed curtis name told would receive sentence relation shack breaking offence told fifty nine shack breaking told would amount one hundred seventy seven week obviously product fifty nine multiplied three honour made reference charge stealing curtis proceeded make order suspension sentence view clear oversight applicant curtis sentenced respect eight charge stealing contained third complaint respect committed sentence course virtually certain honour adverted stealing charge sentence would respect curtis passed l 3spect applicant bruce however application respect curtis must limited sentence respect matter eight charge stealing third complaint sentence respect charge appealed consideration matter mean order court make point already dis cussed sentence three week inprisonment passed learned trial judge applicant bruce respect charge eight eigbty eigbt third com plaint set aside turn question whether word used honour passing sentence sufficiently certain make clear term applicant serve set learned trial judge said passing sentence began sentencing applicant respect offence contained charge set first complaint sentenced fifth charge term imprison ment one year honour correcting entitled sentenced respect third charge six month imprisonment served con currently term one year already imposed ta r bruce v queen 45 fourth charge conviction recorded honour adverted first charge said sentenced six month imprisonment cumulative upon first sentence literally term six month could cumulative upon first sentence passing sentence form view objectionable ground uncertaino see purcell v king 31 however honour immediately proceeded say term six month imprisonment served addition first twelve alteration correction honour entitled make clear sentenced six month imprisonment commence expiration term twelve month imposed respect fifth charge honour respect second charge passed sentence three month imprisonment concurrent term six month referred honour turned charge contained second third complaint honour apparently thought charge separate complaint concluded must sentence separately charge course entitled case honour first dealing bruce said given twenty one day imprisonment offence make total arithmetic correct one hundred seventy one week sentence twenty one day served cumu latively say one also cumulative sentence already passed quite clear certain respect first charge second complaint applicant bruce sentenced twenty one day imprisonment sentenced twenty one day imprisonment respect first charge third complaint commence expiration first term twenty one day respect remaining fifty five charge breaking entering dwelling house however said sentence twenty one day served one honour added also cumulative sentence already passed literally course sentence twenty one day could served cumulatively one also cumulatively sentence already passed already pointed several sentence already passed judgment word objectionable 30 1968 r n c 17 31 1950 ta r 14 46 tasmanian state report 1971 ground uncertainty used purceu v king 32 honour dealing must regarded eight stealing charge sentenced broce twenty one day imprisonment offence stating served concurrently twenty one day relating premise stealing charge relates sufficiently clear amount sentence twenty one day imprisonment respect tenth charge third complaint stealing property one grainger order term served concurrently term twenty one day imprisonment already imposed respect ninth charge breaking entering dwelling house grainger intent steal therein comment similarly applicable stealing charge contained third complaint respect applicant broce committed sentence correlated charge breaking entering contained complaint h word concluded passing sentence upon broce would say uncertainty sentence cumulative would justify court taking course court criminal appeal took purcell v king 33 quash sentence passed respect charge contained second third complaint pas sentence substitution therefor 402 4 crimiool code honour went use word showed intended first sentence twenty one day imprisonment cumulative sentence six month imposed respect first charge first complaint ordered cumulative one year imprisonment imposed respect fifth charge complaint question arises whether word taken part sentence passed correction alteration sentence already passed merely word explanation following honour said work broce way firstly total eighteen month sassafras latrobe offence total well eighteen month seventy eight week total one hundred seventy one week great lake offence make total two hundred forty nine week four year forty one week nearly five year taken literally honour said correct eighteen month seventy eight week sentence aggregating 32 1950 ta r 14 33 1950 ta r 14 ta r bruce v queen 47 eighteen month commencing 27th july 1970 would expire 26th january 1972 period would think seventy eight week three day added period one hundred seventy one week would two hundred forty nine week three day likewise two hundred forty nine week even two hundred forty nine week three day calculated 27th july 1970 equal four year forty one week question arises whether word showed honour thought ihat imposed bruce fifty seven sentence twenty one day served cumulatively commence expiration sentence six month already imposed served cumulatively sentence twelve month imposed first taken part sentence correct ambiguity 1 already referred could give rise application purceu v king 34 undoubtedly honour tell applicant bruce definitely erroneously cumulative sentence passed totalled two hundred forty nine week four year forty one week obviously honour sentencing one two term different length chosen one else saying using word two hundred forty nine week equal four year forty one week interpretation consistent word used honour spoke suspending sentence going suspend part sentence going suspend last forty one week forty one week suspended condition commit serious offence involving dishonesty period forty one week treatment accumulation term imprison ment curtis sentenced suspension part treated similar way 1 italicized sentence draw attention fact honour saying suspending part sentence four year forty one week sentence lawfully imposed sentence four year forty one week imposed three complaint meant aggregation sentence passed earlier total four year forty one week 1 find difficult say period forty one week suspended must last forty one week period four year forty one week commencing day sentence passed period end day term imprison ment aggregated honour probably intended ended 34 1950 ta r 14 f 48 tasmanian state report 1971 court power suspend sentence contained 386 criminal code 386 1 judgment arrested court may pas sentence upon convicted person upon condition judge may think fit suspend execution sentence ii case sentence imprison ment suspend execution sentence term think fit execution whole sentence may suspended effect part may suspended part terminating termination sentence circumstance court would justified treating application one purcejl v king 35 setting sentence aside however difficulty arise entry made clerk court none entry record sentence properly necessary consider submitted applicant effect result entry term term imprisonment applicant effectively sentenced much le period almost five year referred course may result effective term imprisonment could even arguably said manifestly excessive alternatively submitted entry show one sentence three complaint therefore sentence illegally imposed must set aside court must consider whether entry conclusive effect varying whatever trial judge said passing sentence court present practice recording proceeding set rule court criminal code act 1924 r 198 1961 amended r b 1966 ix honour set forth order continued defendant committed supreme court sentence applicant case course indictment prepared document existing complaint endorsement complaint possibly formal order committal sentence provision 35 1950 ta r 14 ta r bruce v queen 49 rule registrar provided original complaint certified copy complaint endorsement order copy thereof rule assume existence court minute book early day court existence practice keep one order ix entitled recording proceeding session oyer terminer general gaol delivery supreme court tasmania time court oyer terminer gaol delivery australian court act 1828 3 supreme court act 1959 6 4 make clear judge may exercise jurisdiction court time year including vacation judge may appoint sitting court trial criminal issue exercise jurisdiction conferred upon court supreme court act 1887 11 1 practice judge appoint criminal sitting usually four five week duration associate judge usually clerk court duty r 1 enter particular result trial sentence imposed court court minute book endorse accordance form prescribed particular defendant committed sentence back certified cony complaint supplied use judge said one statutory duty supply one none supplied case associate make following entry court minute book honour set forth entry material part see p 27 continued entry initialled judge required r 3 3 entry made required rule although accord judge said associate made entry back formal order cotnmittal course entry required rule certified copy complaint upon entry could made required rule sheriff make entry calendar required r 4 1 although accord judge said passing sentence apparently submit part calendar trial judge signature required r 4 2 event part calendar signed although part signed two judge took case sitting therefore one statutory record three fourth document signed r 3 2 associate presumably officer authorized sheriff complete sign certificate f2 50 tasmanian state report 1971 fonn xi pt appendix provision even seen trial judge exclude possibly record court question therefore whether entry minute book recognised evidence sentence sentence passed rather word trial judge appear appeal book transcript made typist believed heard replaying tape recording made judge court dispute transcript court accept accurate minute book court quarter session held evidence proceeding r v thring 36 reason suppose would held purpose difference minute book court quarter session minute book court oyer tenniner gaol delivery present case course minute book kept initialled judge required statutory rule direct authority point legal effect record criminal court considered case decided australia new zealand incidentally question judge sitting criminal jurisdiction functus officio e g r v bourke 37 disapproved matter reg v hodgkinson 38 reg v tonks 39 reg v davidson 40 r v martin 41 reg v nam 42 general effect case support view minute book court strictly record court conclusive evidence sentence passed case dispute word used judge passed sentence would give way word unless could taken evidence judge exercised right amend sentence undoubtedly existed initialled minute book reg v hodgkinson reg v davidson reg v nam neither crown applicant claimed sentence amended put aside thought occurred associate purporting person ordinarily custody record supreme court signed certi ficates sentence passed power given person sub 1 b sub 2 76 evidence act 1910 need set word certificate sub 6 provides mode proving fact authorized section 36 1832 5 c p 507 40 r19661 n z l r 626 37 1915 v l r 289 41 1937 r 70 38 r19541 v l r 140 42 1968 r 107 39 1963 v r 121 ta r bruce v queen 51 shall addition exclusion authorized mode proving fact authorized judgment cannot limited mean authorized act authorized statute must include authorized common law circumstance court must conclude word set appeal book presumably used learned trial judge sentence passed follows therefore court must ignore various entry made purportedly pursuance rule court certificate given purportedly pursuance 76 evidence act 1910 must adhere earlier conclusion sentence imposed second third complaint cannot remain court court purcell v king 43 impose sentence considers proper respect would impose sentence effect total term lengthy imposed learned trial judge offence second third complaint moderately serious offence although case little stolen multiplicity reveals criminality high degree accused young impose sentence longer propose may effect removing society long time life might opportunity settle occupation family life judge impose sentence wholly partly sus pended would wrong account impose lengthier sentence would imposed suspension breach condition possible prisoner may serve whole sentence would distingush applicant ground age curtis sixteen bruce twenty time offence committed total sentence aggregate case curtis two half year case bruce three year submitted sentence imposed charge first complaint manifestly excessive judgment disturbed cumulative effect sentence applicant though sentenced eighteen month first complaint first charge second complaint would sentence applicant term three month 43 1950 ta r 14 52 tasmanian state report 1971 imprisonment served concurrently tenn im prisonment one year passed trial judge respect fifth charge first complaint turn third complaint would sentence applicant curtis respect charge numbered 1 3 5 7 9 11 13 15 17 19 21 23 25 26 28 30 32 33 35 36 38 40 42 43 44 46 48 50 53 54 56 58 59 61 63 64 66 67 69 71 73 74 76 78 80 82 84 86 87 89 91 93 95 97 98 99 charge breaking entering dwelling house intent steal treat housebreaking imprisonment two year six month served concurrently commence 27th july 1970 curtis yet sentenced respect charge numbered 10 12 14 16 18 20 57 85 charge stealing respect curtis committed court sentence crown consider whether brought trial judge another judge sentencing offence would sentence applicant bruce respect charge 1 3 5 7 9 11 13 15 17 19 21 23 25 26 28 30 31 32 33 35 36 38 40 42 43 44 46 48 50 52 53 54 56 58 59 61 63 64 66 67 69 71 73 74 76 78 80 82 84 86 87 89 91 93 95 97 98 99 charge breaking entering respect committed sentence also respect charge 10 12 14 16 18 20 57 85 charge stealing respect committed sentence imprison ment three year served concurrently commence 27th july 1970 effect sentence wonld sentence imposed first complaint neasey j second complaint would served concurrently early part sentence would also order enter recognizance sum fifty dollar period two year release prison supervision probation officer appointed provision probation offender act 1934 chamber j application leave appeal ainst sentence applicant appeared neasey charged jointly considerable number crime pleaded guilty neither represented counsel charged three separate complaint application leave appeal argued matter stood judgment came notice court none record required made ix rule court criminal code act 1924 accurately ta sr bruce v queen 53 recorded sentence actually passed learned trial judge accordingly court heard argument detailed reason given learned chief justice whose reason aspect case respectfully adopt opinion sentence orally pronounced trial judge presence prisoner represent sentence passed upon appellant deal case basis first complaint contained five count alleged latrobe 9th june 1970 applicant broken entered home mr w orby stolen property also alleged latrobe 12th june 1970 broken entered home mr lunson stolen property finally alleged home mr lunson demanded money menace complaint applicant sentenced total eighteen month imprisonment suggested manifestly excessive obviously think said inadequate circumstance although youth possession firearm mr lunson said carried shoulder actually threaten violence way asked money said none gave food disappeared premise opinion sentence imposed respect complaint proper one second complaint contained single count charging applicant broken entered shack mr williams great lake 4th june 1970 third complaint charged applicant lon series breaking entering shack great lake area stolen property applicant curtis pleaded guilty fifty nine charge breaking entering shack eight charge stealing property applicant bruce pleaded guilty fifty seven charge breaking entering eight charge stealing learned trial judge considered proper impose sentence twenty one day imprisonment respect incident shack breaking accordingly sentenced applicant curtis total one hundred seventy seven week imprisonment crime committed great lake area suspending last seventy three week thereof upon certain condition sentenced applicant bruce total one hundred seventy one week imprisonment crime suspending last forty one week thereof upon certain condition 54 tasmanian state report 1971 appears remark passing sentence honour took view obliged impose separate sentence respect individual count complaint course virtue 389 7 criminal code 63 5 justice act 1959 entitled impose one sentence respect charge anyone complaint haines v queen 44 opinion would preferable one sentence imposed complaint certainly far concern complaint dealing breaking entering shack great lake area stealing think judge mav possibly led error fixing set term particular type crime multiplying term total number crime committed think satisfactory result likely obtained looking whole picture revealed charge complaint fixing single sentence adequately punishes offender series similar crime committed total result applicant bruce received sentence approximately four three quarter year effective sentence approximately four year imprisonment applicant curtis reecived sentence almost five year effective sentence approximately three half year imprisonment question whether sentence either said manifestly excessive deal first case applicant curtis say regard nature crime applies equally course case applicant bruce mind important aspect none crime committed motive financial profit term usually understood jurisdiction shack entered purpose stealing valuable good view sale offence vagrant type youth instead honest day work acting part vagabond great lake area type property stolen make clear firearm ammunition torch blanket foodstuff sleeping bag fishing gear second hand clothing small amount money none property sold despite therefore great number charge involved cannot regarded serious light would similar number crin te committed purpose stealing article sale furthermore shack unoccupied real risk anyone put fear unauthorized entry took place 44 1967 ta r n c 10 ta r bruce v queen 55 curtis time crime committed sixteen year age obvious reason impossible determine precise date upon various shack broken entered however appears reasonably clear crime committed period end april early june 1970 curtis reached age seventeen year july despite youth doubt learned trial judge justified imposing substantial prison sentence public interest necessary deter applicant committing future crime sort deter others also however reached conclusion sentence imposed upon applicant curtis respect crime breaking entering stealing great lake area manifestly excessive regard factor refer mentioned age turned seventeen last crime committed never convicted court crime offence whether involving dishonesty otherwise regard pro bation report submitted upon favourable one report stress disturbed emotional upbringing im maturity express opinion could well settle accepted pattern social behaviour accepts guidance probation officer furthermore person associated commission crime applicant bruce three year older absence evidence contrary reasonable inference draw older two probably leading spirit commission crime mr c r wright appeared counsel curtis hearing application pointed applicant bruce involved crime curtis could dealt child court would liable maximum term two year imprisonment child welfare act 1960 s 21 1 27 2 counsel also referred u 4 act provides power authority conferred court person act shall exercised secure far practicable expedient child suspected committed charged found guilty offence shall treated criminal child may misdirected misguided section cannot apply applicant curtis present case learned trial judge passing sentence upon exercising power authority conferred 56 tasmanian state report 1971 child welfare act 1960 think nevertheless little spirit section might imported con sideration case show mercy always show weakness course impossible treat simply misguided child already said prison sentence inevitable like expedient term 4 however great respect learned trial judge think gave little weight youth im maturity applicant curtis fact never sort trouble law reformative aspect punishment subordinated great degree deterrent aspect properly sentenced curtis eighteen month imprisonment latrobe offence think important add another lengthy sentence might well effect crushing hope habilitation mind applicant truly said probation officer cross road life sentence opinion give sufficient weight deterrent aspect time give applicant welfare heart hope future case applicant bruce difficult three year older curtis however previously convicted offence involving dishonesty con victions two previous occasion seem real significance present context 1967 fined offence must obviously arisen sort disturbance public place 1969 convicted vagrancy crime pleaded guilty applicant bruce received total sentence four three quarter year effective sentence four year imprisonment regard nature crime involving shack great lake area already discussed sentence seems appropriate man mature year previous history committing crime dishonesty applicant bruce history comparative youth finally reached conclusion initial doubt sentence imposed upon ought said manifestly excessive court impose fresh sentence leave appeal respect certain sentence appeal allowed _ sen tences quashed sentence substituted attorney accused crisp wright brown f c

Biancardi v Workcover Corp. v MMI (Remm Constructions) [1998] SAWCAT 26 (11 September 1998).txt

biancardi v workcover corp v mmi remm construction 1998 sawcat 26 11 september 1998 last updated 7 december 1998a 26 1998workers compensation appeal tribunalworkers rehabilitation compensation act 1986in matter appeal byfrank biancardi worker determination areview officerdated 30th day july 1997 also concernsworkcover corporation mmi remm construction employer 117w 1997 tribunal honour acting deputy president g thompsonappeal worker determination review officer upholding loec entitlement pursuant section 42a act worker fell work medical evidence worker suffered musculo ligamentous strain worker disputed basis loec 80 assessment capital loss significance suitable employment worker reasonable prospect obtaining psychiatric evidence post traumatic stress disorder paranoia appeal dismissed reason decisionpublished 11thday september 1998 case cited adam v workcover corporation nzi worker compensation sa ltd w b doser full tribunal j 26 1997 dia v workcover corporation e wigg son pty ltd 151 1995 warren v workcover corporation iltech pty ltd 64 1997 workcover corporation le cornu furniture v philip ortleppa 151 91996 workcover corporation v warren full court judgment s676110july 1998 appearance willson appellant dr p salu respondent decisionthis appeal worker determination review officer 2 february 1996 upheld loec entitlement made pursuant section 42a act worker boilermaker trade born 3 december 1960 injured 19 july 1990 working remm construction site told general practitioner fell end plank landed quite heavily buttock mr biancardi worked since july 1990 referred various investigation consensus opinion physical doctor including paul g carney neurosurgeon peter j cundy adrian munyard michael hone john sweeney orthopaedic surgeon worker suffered musculo ligamentous strain would fair say worker case put highest physical condition little objective evidence physiological damage still complains pain dr j r alvaro one prepared accept mr biancardi suffering pain albeit physical cause therefor apparent section 42a loec assessment predicated proposition worker suited employment reasonable prospect obtaining e carpark attendant based prescribed medical certificate dr alvaro medical report mr munyard average weekly earning rate occupation full time employment said 341 40 hence loec assessment made 80 capital loss sum 7 572 48 worker disputed assessment essentially two ground tribunal first ground attack via medical evidence put one two way whole medical evidence worker totally incapacitated calculation loec assessment based partial incapacity fundamentally flawed e situation similar toworkcover corporation le cornu furniture v philip ortleppa 151 1996 ii mr biancardi partially incapacitated question fact job carpark attendant suitable employment within meaning section 42a 2 b second ground attack based full court decision inworkcover corporation v warrens6761 e corporation failed justify assessment established existence full time position carpark attendant review officer therefore evidence nature extent duty carpark attendant ii review officer evidence number hour per day per week required position carpark attendant iii corporation failed establish rate pay carpark attendant medical issuethe full history various expert consultant area physical medicine went review officer review officer concluded mr biancardi fit work eight hour day five day week job involve heavy lifting hence mr biancardi capable job carpark attendant eight hour day 5 day week extent finding based evidence physical doctor unassailable indeed evidence therefor overwhelming gravamen mr biancardi case however psychiatric opinion dr c w griffin mr biancardi referred pain clinic royal adelaide hospital early 3 november 1992 numerous attendance multi disciplinary facility dr griffin psychiatrist first saw mr biancardi 12 april 1994 number occasion thereafter position form opinion directly mr biancardi mental health also examined mr biancardi two occasion february 1997 dr griffin give evidence review officer comprehensive 12 page report review officer dr griffin reported opinion worker suffering post traumatic stress disorder ii major depression iii pain disorder associated psychological general medical condition iv psychotic disorder otherwise specified v alcohol abuse dr griffin concluding opinion p 186 mr biancardi unfit work suited reason background training account psychiatric illness suffered opinion unfit position carpark attendant demonstrated report symptom include distrust stranger carpark attendant would inevitably exposed stranger opinion substantial risk enforced exposure would precipitate acute intensification illness mr biancardi risk might develop paranoid panic become acutely suicidal even attack stranger perceived threat opinion mr biancardi done best enter workforce succeeded attempt illness become chronic opinion symptom entrenched degree unwise require attend strange workplace expected dr griffin professional opinion mr biancardi capacity work unlikely change next two five year dr griffin gave evidence tribunal pursuant tosection 97 4 e b dr griffin adhered opinion expressed report half dozen consultation mr biancardi since delivery review officer determination since february 1997 said opinion changed significant mental illness mr biancardi suffered paranoia evidenced fear mr biancardi alleged followed put surveillance led general distrust stranger turn produced situation mr biancardi incapable working environment required constantly interfacing member general public dr griffin take view paranoia extremely serious medical psychiatric condition incumbent upon treating doctor take grave view possible manifestation paranoia thrust appeal dr griffin view psychiatric evidence review officer tribunal compelling coming treating doctor accepted appellant submitted basis psychiatric evidence worker either totally incapacitated least partially incapacitated specific work carpark attendant subsidiary appellant relied upon view mr milligan psychologist speakman stillwell p 215 employment carpark attendant suitable mr biancardi work would place demand upon intellectually need seated several hour time would create problem physically psychologically furthermore employer always seek able bodied people position reason occasion necessary help move push start car minor maintenance work around carpark mr biancardi appears well suited work current psychological state low frustration tolerance would aggravated physical discomfort would make type customer liaison work highly inappropriate reach diagnosis dr griffin relied almost entirely upon material supplied patient understanding mr biancardi physical condition patient suffering musculo ligamentous condition sort resolved nearly eight year reached threshold diagnosis paranoia nothing short proof dishonesty something similar serious nature would induce change opinion understood dr griffin mean irrespective patient told review officer regarding capacity work work felt could dr griffin would adhere diagnosis paranoia consequent opinion capacity work whether test way dr griffin evidence tribunal assessed propounded gilchrist p india v workcover corporation e wigg son pty ltd 151 1995 e effect evidence might review officer given review officer see p 7 whether evidence would persuade make finding different review officer pursuant power given tribunal bysection 97 5 act still required analyse evidence analysing dr griffin opinion diagnosis paranoia based upon worker fear real imagined followed perhaps surveillance led inability part relate member public crux dr griffin opinion diagnosis paranoia according dr griffin would appropriate long ago 12 april 1994 first saw mr biancardi pain unit however significant reservation diagnosis light mr biancardi evidence p 37 mr biancardi say like go watch soccer game p 40 chief q aware suggested could work carpark attendant yes q feel well like said know opportunity probably go try know could really handle willing try opportunity p 43 44 cross examination work looked past well got lot friend got business q well perhaps could tell u work looked friend well got friend mine got ceramic tile shop got slate granite cutting asked go look see could handle past actually couple occasion gone look granite slab looked heavy know weigh half tonne even chain block said thanks letting look think could handle sort work look heavy know p 45 q would go hindley street sometimes night every yes q would go friend mine owned club p 46 accident still went went every yes q often every would gone maybe twice month establishment closed 2 year prior 14 july 1997 p 50 worker virtually conceded told dr carney end 1990 time worked hour day mechanic workshop p 52 worker undertook real estate agent course 1991 come fruition failed subject p 53 q got idea type job like given back condition thing thought might able like could go business way one day rock two day whatever case may could send wife q type business q could running chicken shop maybe food game yes q running local deli maybe q running carpark managing carpark manage whatever know would go could afford get think could carpark q manage said manage well long whoever owns carpark mind swapping wife someone take place rock p 54 q taking ticket taking ticket q yes entry nightclub something like stamp hand pas out thing like could job like stand receive good day suppose could yes p 58 mr biancardi asked whether interested purchasing chicken business along brother law thinking would good idea went sister wife even father know would like good idea rock 1 2 day whatever someone could always cover someone family see p 188 29 july 1993 report pain clinic worker solicitor appears noted working hour week sister chicken shop found enjoyable remark made 8 june 1993 report 27 april 1992 p 197 mr p j cundy orthopaedic surgeon report part history work brother fresh poultry game preparation sale time completed eight hour work day time would experience low back pain p 208 19 may 1993 mr john sweeney orthopaedic surgeon report part history also helped brother poultry shop distill evidence mr biancardi professed able cope occupation deal public extent could cope occupation every case according based onphysical limitationsarising low back pain occupation aspired required contact public finding review officer physical capacity found p 11 point 5 doctor including general practitioner believe capable working eight hour per day five day per week job whose duty include heavy lifting mr biancardi reacted event paranoid fashion spite provocation involved dispute worker compensation system report 18 april 1996 dr alvaro p 165 say last consultant mr biancardi 27 2 96 state stressed dispute workcover noticed back pain worsen experiencing headache despite non organic feature examination trite law opinion expert based upon factual foundation adopted expert extent fact series fact included expert factual foundation base function tribunal evaluate weight given expert opinion coming conclusion importance fact omitted factual basis opinion tribunal function accept change modify expert opinion whilst appreciate dr griffin opinion carry great weight clinical treatment mr biancardi necessarily follow whole evidence relevant problem scrutinised legal answer identical clinical answer pursuant tosection 97 5 decision left impact dr griffin evidence would inclined come conclusion different reached review officer test propounded india think review officer would probably come conclusion already reached take view number reason 1 dr griffin opinion giving evidence really different report report review officer analysed review officer 2 although review officer make finding credibility much le finding adverse worker credibility fact worker evidence physical capacity simply accepted review officer many passage evidence worker postulated significant degree physical incapacity passage example proposed employment situation well enough rock one two day wife another member family opportunity place however review officer found worker physical condition capable sustaining work eight hour day five day week job whose duty include heavy lifting significantly greater capacity work mr biancardi prepared attribute regard therefore must accepted important issue capacity work review officer came conclusion quite different proposed worker 3 must also borne mind review officer advantage observing hearing worker length quite reasonable suppose review officer instinctive judgment worker factored determination probable dr griffin oral evidence would led result different reached review officer think therefore tolerably well satisfied review officer would reached conclusion different set determination second point raised appellant medical evidence review officer rejected evidence mr milligan psychologist agree passage p 12 appeal book find mr milligan assessment worker competent architect artist fanciful true reproduction mr milligan view however persuaded review officer heard mr milligan entitled come view assessment basis employer would require worker rather worker fit p 85 report focusing whether employer would seriously look would suggest q looking whether employer would employ opposed whether capacity work right yes p 81 report based upon understanding employer seek experience recruitment true statement mr milligan overtly rely upon employer would looking little doubt review officer entitled conclude mr milligan approached matter basis acceptable review officer view mr milligan approach contrary proposed cox j inwarren v iltechat p 9 worker treated effect applicant vacant position employer one would imagine would prefer take chance rather simply appoint one furthermore one scrutinises basis mr milligan report certainly would satisfied true comprehensive history physical condition worker turning second ground appeal based upon full court inworkcover corporation v warren must borne mind matter concluded review officer 29 july 1997 full tribunal decision inadams v doserj 26 1997 8 9 97 w c decision inwarren v iltecha 64 1997 8 8 97 course well beforeworkcover corporation v warrenon 10 7 98 s6761 corporation justify assessment review officer furthermore corporation section 42a review fails establish anything worker notional weekly earnings review officer simply reassess basis set section 42a 2 review officer judge adequacy evidence offered respect relevant matter suitable employment worker exceptionally bearing onus proof section 42a 3 occupation carpark attendant community seems fall within category occupation existence notorious community p 12warren likewise would thought nature extent duty carpark attendant also notorious event largely comprised within definition carpark attendant appears p 226 appeal book extent eight factor therein contained present greater lesser degree car attendant job degree specificity corporation descend similarly number hour per day per week demanded carpark attendant fact carpark attendant occupation state federal award state award vehicle industry south australia repair service retail award weekly wage occupation nominated award part 5 2schedule 2 sufficientprima facieevidence subject evidence contrary show full time carpark attendant job exists community likewise weekly wage award wage leastprima facieevidence wage took unusual step hearing appeal allowing respondent tender award address pursuant tosection 974 subject appellant right make written submission took step although unusual 1 evidence existence award uncontroversial notorious 2 case review officer later development interpretation section 42a exposition subject notorious profession difficulty e meaning section 42a yet receive authoritative exposition full court inwarren factor ought propel matter back review panel 3 person decided matter longer review officer return review panel decided light full court decision inwarren would unlikely decision would forthcoming time 1999 inherently unsatisfactory system compensation three year elapse decision resolution challenge thereto hence use broad general power tribunal accept evidence award vehicle industry south australia repair service retail award schedule 2 mention existence carpark attendant level 1 award award public document copy tendered came file maintained registrar industrial relation court state weekly wage carpark attendant 6 february 1996 341 40 p 37 matter prima facie evidence fact occupation carpark attendant exists employment week week weekly wage 341 40 therefore opinion challenge determination founded onwarren case cannot sustained spite lengthy detailed argument mr willson said everything said behalf appellant opinion review officer decision correct upheld dismiss appeal order respondent pay appellant cost accordance requirement section 93 theworkers rehabilitation compensation act 1986the party notified party wish apply full supreme court leave appeal part decision raise question law appeal must instituted within one month party entitled appeal receives notice decision note carefully party respectfully requested note provision supreme court rule 96 04 97 05 require event appeal copy notice appeal filed supreme court served upon proper officer court tribunal

Xia, Qun [2000] MRTA 985 (14 March 2001).txt

xia qun 2000 mrta 985 14 march 2001 last updated 15 may 2001 2001 mrta 985catchwords review visa refusal subclass 050 bridging e suitable arrangement depart australia visa applicant qun xiatribunal migration review tribunalpresiding member maritsa eftimioumrt file number n01 01156dima file number n98 313268date decision 14 march 2001at sydneydecision tribunal remit application review department immigration multicultural affair reconsideration direction visa applicant meet criterion clause 050 211 050 212 050 221 050 223 050 224 grant bridging e class visa visa subject condition 8101 8401 8505 8506 8507 8510 term set fully statement reason remain force 1 june 2001 statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate m qun xia visa applicant national people republic china born 18 november 1969 applied bridging visa e class 27 february 2001 delegate decision refuse grant visa made 1 march 2001 jurisdiction standing2 visa applicant lodged application review tribunal 5 march 2001 application review decision refuse visa section 338 4 act 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 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 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 item 1305 schedule 1 regulationspart 050of schedule 2 regulationsschedule 8 regulationspolicy msi 271 bridging visa overview issued 3 may 2000msi 294 bridging e visa subclass 050 legislative framework guideline issued 13 october 20006 tribunal generally regard regulation regulation stood time visa application however subsequent amendment may apply circumstance 7 applicant bridging e visa subclass 050 general must satisfy primary criterion set inpart 050of schedule 2 regulation date application date decision 8 summary criterion met tribunal satisfied applicant unlawful non citizen holder bridging e class visa subclause 050 211 1 applicant eligible non citizen kind set subregulation 2 20 7 8 9 10 11 subclause 050 211 2 applicant meet requirement one subclauses 2 3 3a 4 4aa 4a 5 6 6a 7 8 9 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 050 223 condition mandatory condition found schedule 8 regulation security requested lodged clause 050 224 9 prior 14 december 2000 decision whether require security compliance condition visa separately reviewable decision formed part decision whether visa applicant met visa criterion prior amendment 1 november 2000 criterion concerning payment security one met time application following amendment regulation criterion became one met time decision separately reviewable decision change regulation 14 december 2000 prescribe decision relating security mrt reviewable decision paragraph 4 02 4 f tribunal power review decision require security decision require security review amount security vary delegate made decision require security example delegate already found visa applicant fails meet earlier criterion considered later criterion decision paragraph 4 02 4 f regulation tribunal review evidence10 tribunal following document mrt case file n01 01156 folio numbered 1 81 dima case file n98 313268 11 hearing held 12 march 2001 visa applicant gave oral evidence 12 mr peter coroneos registered migration agent represented visa applicant summary evidence available file hearing follows 13 visa applicant first entered australia 29 may 1995 subclass 771 transit visa expired 1 june 1995 visa applicant departed australia 1 june 1995 14 visa applicant entered australia 1 august 1996 subclass 771 transit visa expired 4 august 1996 15 6 august 1996 visa applicant lodged application protection visa visa applicant granted associated bridging c visa day 23 september 1997 visa applicant granted bridging c visa valid 15 october 1998 16 visa applicant protection visa application refused 1 may 1997 3 june 1997 visa applicant lodged review application refugee review tribunal 9 september 1998 refugee review tribunal affirmed decision refuse visa applicant protection visa 17 16 october 1998 visa applicant lodged request ministerial intervention pursuant tos 417of act respect decision refusing protection visa 18 17 november 1998 visa applicant granted bridging e visa valid 17 february 1999 15 march 1999 visa applicant granted bridging e visa expired 21 june 1999 19 23 may 2000 visa applicant request ministerial intervention refused 20 21 september 2000 5 october 2000 visa applicant granted bridging e visa extended bridging visa status 16 december 2000 21 15 december 2000 visa applicant granted bridging e visa basis making acceptable arrangement depart australia visa valid 16 february 2001 visa also subject following condition 8401 holder must report time place specified minister purpose 8505 holder must reside 117 83 89 dalmeny avenue rosebery 8506 advise dima change address least two working day change 8101 work 8201 australia holder must engage 3 month study training 8511 holder must present ticket departure officer 16 february 2001 8512 holder must depart australia 1 march 2001 22 visa applicant present ticket departure officer 16 february 2001 subsequently detained unlawful non citizen 27 february 2001 23 visa applicant applied bridging e visa 27 february 2001 basis daughter lodged application protection visa heard refugee review tribunal 9 may 2001 department refused application bridging e visa 1 march 2001 delegate found visa applicant satisfy criterion clause 050 212 24 visa applicant subsequently lodged application review decision refuse bridging e visa migration review tribunal 5 march 2001 review application included submission stated amongst thing visa applicant youngest daughter currently application refugee review tribunal therefore visa applicant family member person made application protection visa presently subject review 25 visa applicant sent letter 7 march 2001 inviting visa applicant provide comment information tribunal considered would reason part reason affirming decision review essentially stated indication material contained department file visa applicant meet criterion clause 050 212 grant subclass 050 bridging visa 26 visa applicant given opportunity comment information interview held hearing 12 march 2001 27 hearing tribunal assisted mandarin interpreter visa applicant gave evidence follows 28 visa applicant confirmed immigration history set elsewhere decision 29 visa applicant told tribunal wished remain australia daughter application protection visa finally determined told tribunal application successful would return china 30 visa applicant told tribunal defacto relationship mr zhang mr zhang holder bridging c visa visa applicant told tribunal two child jolie born 1 august 1999 kylie born 19 may 2000 born australia currently holder bridging c visa 31 visa applicant told tribunal residing 117 83 89 dalmey avenue rosebery past two year resides address defacto husband child friend mr chen family 32 child currently minded mr chen 33 visa applicant told tribunal passport sure valid return china told tribunal approached chinese embassy make enquires obtaining passport child told tribunal advised embassy needed evidence child birth certificate well marriage certificate told tribunal legally married defacto process obtaining evidence spousal relationship yet lodged application passport 34 visa applicant gave tribunal evidence anz bank account balance 29 810 55 visa applicant explained tribunal money forwarded family overseas case needed lodge security released detention told tribunal fund would available family upkeep granted bridging visa 35 visa applicant told tribunal extremely distressed detention told tribunal voluntarily approached dima obtain bridging e visa detained told tribunal finding difficult separated child still breastfeeding youngest child ten month old 36 visa applicant gave tribunal evidence airline booking made 31 may 2001 visa applicant paid ticket 37 visa applicant adviser made submission tribunal relation protection visa application currently refugee review tribunal told tribunal unfounded application based high court decision ofchen shi hai recognised second child could considered member particular social group purpose un convention refugee 38 tribunal requested visa applicant provide following document evidence application passport child made chinese embassy evidence ticket purchased visa applicant depart australia evidence letter written refugee review tribunal asking matter given priority visa applicant detention statutory declaration visa applicant friend mr chen stating support prepared provide visa applicant letter doctor social worker confirming visa applicant breastfeeding child 39 document provided tribunal 14 march 2001 finding reasons40 time visa application lodged class contained following subclass subclass 050 bridging general subclass 051 bridging protection visa applicant subclass respect claim advanced subclass 050 evidence suggest visa applicant meet key criterion subclass 41 basis evidence tribunal satisfied visa applicant made valid application bridging visa meet criterion clause 050 211 visa applicant unlawful non citizen eligible non citizen kind set subregulation 2 20 7 11 42 tribunal must satisfied date primary application date decision criterion subclause 050 212 1 met criterion satisfied must established least one ground subclauses 050 212 2 9 met 43 tribunal find visa applicant meet criterion subclauses 050 212 3 9 tribunal accept member family unit person application substantive visa considered sufficient ground meet criterion 44 tribunal must consider whether visa applicant able satisfy tribunal making subject acceptable arrangement depart australia 050 212 2 acceptable arrangement vary case tribunal regard policy guideline point set msi 294 guideline suggest number factor may taken account whether applicant possession valid travel document could obtain one reasonable period whether applicant ticket travel acceptable destination booking reservation depart australia could obtain one within reasonable period applicant capacity travel decision maker satisfied applicant depart arranged 45 tribunal find visa applicant child applicant protection visa currently refugee review tribunal tribunal aware member family unit person application substantive visa yet decided sufficient ground meet threshold bridging visa criterion tribunal considered submission visa applicant adviser regarding application refugee review tribunal accepts undertaking unfounded application tribunal also considered fact visa applicant mother two young child age two youngest child 10 month evidence dr ying youngest child still breastfed 46 tribunal considered matter set msi 294 relation making acceptable arrangement depart australia tribunal satisfied visa applicant taken reasonable step obtain travel document reasonable period time tribunal satisfied visa applicant ticket travel acceptable destination information tribunal visa applicant unable travel 47 tribunal considered carefully evidence tribunal relation visa applicant intention depart australia visa applicant undertaken leave australia decision made refugee review tribunal relation daughter protection visa application tribunal considered visa applicant previously undertook leave australia tribunal however accepts change visa applicant circumstance lead departing end previous bridging visa tribunal satisfied considering evidence visa applicant intends depart australia child child application protection visa successful 48 visa applicant meet one requirement subclause 050 212 2 tribunal satisfied making acceptable arrangement depart australia 49 tribunal must therefore consider whether satisfied visa applicant abide condition imposed visa granted considering tribunal decided visa granted visa applicant would appropriate impose following condition 8101the holder must engage work australia 8401the holder must report time time b place specified minister purpose 8505the holder must continue live address specified applicant grant visa8506the holder must notify immigration least 2 working day advance change holder address 8507the holder must within period specified minister purpose pay b make arrangement satisfactory minister pay cost within meaning division 10 ofpart 2of act holder detention 8510within time specified minister purpose holder must either show officer passport force b make arrangement satisfactory minister obtain passport 50 tribunal taken account factor set msi 294 consideration whether visa applicant would abide condition tribunal find balance visa applicant identified satisfaction tribunal tribunal find visa applicant co operated dima dealing tribunal note suggestion visa applicant co operated dima became hysterical assaulted one immigration officer present detained tribunal taken statement consideration light circumstance detention reaching decision visa applicant previous removee deportee 51 visa applicant held number bridging visa since original arrival australia 1995 evidence visa applicant previously breached condition previous visa tribunal evidence visa applicant breached one condition last bridging visa held failing depart australia tribunal accepted submission visa applicant adviser visa applicant child able lawfully make application protection visa change circumstance facilitated high court decision ofchen shi hai h ca 13 april 2000 tribunal accepts reason visa applicant depart australia end last bridging visa 52 considering whether visa applicant abide condition visa tribunal also considered evidence relation available fund visa applicant family support tribunal also considered statutory declaration provided carol chen australian citizen visa applicant resided past two year mr chen currently caring visa applicant two child mr chen undertaken continue provide accommodation visa applicant family departs australia 53 tribunal taken note visa applicant assurance willing able accept condition tribunal also taken account fact visa applicant failed depart past given assurance however occasion visa applicant taken professional migration advice option child application refugee review tribunal consideration tribunal considered submission given visa applicant adviser application lodged subsequent high court decision chen shi hai examined question child china member particular social group purpose un convention given changed circumstance adverse consequence complying visa condition bearing mind visa applicant two young child care tribunal satisfied visa applicant abide condition visa granted visa applicant meet requirement subclause 050 223 time visa applicant lodged application 54 evidence file authorised officer required security compliance condition therefore tribunal satisfied clause 050 224 met conclusion55 view tribunal finding tribunal satisfied time application time decision visa applicant meet criterion subclause 050 212 2 tribunal also satisfied visa applicant abide condition imposed visa thus meet criterion clause 050 233 56 tribunal find visa applicant meet criterion clause 050 211 050 212 050 223 050 224 050 221 grant bridging e visa reason set 57 tribunal considers condition imposed bridging e visa granted visa applicant 8101 8401 8505 8506 8507 8510 decision58 tribunal remit application review department immigration multicultural affair reconsideration direction visa applicant meet criterion clause 050 211 050 212 050 221 050 223 050 224 grant bridging e class visa visa subject condition 8101 8401 8505 8506 8507 8510 term set fully statement reason remain force 1 june 2001

Re Graham Harvey Lillyman v John David Pinkerton [1982] FCA 279; 7 Aclr 471 (23 December 1982).txt

graham harvey lillyman v john david pinkerton 1982 fca 279 7 aclr 471 23 december 1982 federal court australiare graham harvey lillymanand john david pinkertonnos actg 67 70 71 72 1982appeal supreme court act 1982 fca 279 7 aclr 471courtin federal court australiaaustralian capital territory district registrygeneral divisionwoodward j keely j gallop j catchwordsappeal supreme court act objection information whether information invalid failing disclose nature offence charged statute interpretation officer company default court petty session ordinance 1930 act 27 2 company ordinance 1962 act s 67 379 8 hearingcanberra23 12 1982order1 appeal dismissed 2 appellant pay taxed cost appeal decisionthese four appeal order supreme court australian capital territory discharging order nisi review decision court petty session convicting appellant four offence 67 3 company ordinance 1962 order nisi granted ground information alleging offence fact disclosed offence known law allegation information appellant commit offence section 67 3 company ordinance 1962 officer default kingsgate property c pty limited company duly incorporated law said territory said company contrary provision section 67 1 said ordinance give financial assistance name connection subscription share made name said company certainly well expressed might 67 1 provides company shall give financial assistance connexion subscription share company 67 3 provides 67 1 contravened company officer company default guilty offence clearly information would better worded said commit offence section 67 3 company ordinance 1962 officer kingsgate property c pty limited company duly incorporated law said territory default relation said company giving financial assistance contrary provision 67 1 said ordinance name connexion subscription share made name said company alternatively information might begun recital contravention 67 1 company proceeded allege appellant commit offence section 67 3 said ordinance officer said company default either course followed informant still cryptic defendant offence would least done possible secure benefit 27 2 court petty session ordinance 1930 provides description offence word ordinance creating offence similar word shall sufficient law first question decided case whether word actually used information sufficiently similar attract 27 2 word information ordinance compared similarity officer default name company officer company default first point made believe use hyphen relevant connexion see serving similar purpose inverted comma underlining designed draw attention importance word context designated section use inelegant chief justice said supreme court opinion misleading confusing unnecessary flourish way find impossible say word information sufficiently similar ordinance attract protection 27 2 court petty session ordinance 1930 decided 27 2 called aid informant case becomes necessary consider effect suffice save uninformative vague allegation section would clearly insufficient disclose offence although provision term existed many year united kingdom almost australian jurisdiction appears surprisingly little authority effect divergence english australian authority question whether statutory provision save information significant particular missing smith v moody 1903 1 kb 56was case defendant convicted charge wrongfully damaging property view compelling another person abstain act legally entitled perform necessary detail contained information identity property damaged divisional court held information bad reason word lord chief justice lord alverstone p 60 could intended section away old rule criminal practice requires fair information reasonable particularity nature offence must given indictment conviction meant equivalent 27 2 court petty session ordinance offence need described word statute creating will j agreed chief justice channell j expressed doubt relied usual necessity specifying time place matter concurring decision davy v ryan 1933 hca 64 1933 50 clr 379 evatt j considered case smith v moody expressing doubt decision distinguished held information supplying liquor prohibited hour good even though specify hour sale identity purchaser honour said highly desirable person charged offence given particular sought reasonable time hearing absence invalidate information respect honour difficult see case smith v moody said quite distinct davis v ryan however may authority davis v ryan never questioned australia particularly distinction draw statement offence crucial validity information supply particular necessary fair trial decision carefully considered blackburn c j earlier case day riggs v rugala 1978 20 actr 3as well present case day riggs v rugala honour found sufficient information allege following word relevant ordinance policeman directly take bribe without specifying corrupt purpose bribe intended honour reviewing authority held p 6 information unequivocally implies accused accepted money corruptly ie conscious purpose payment influence official conduct word bribe cannot mean le reason uphold argument counsel respondent 27 2 court petty session ordinance 1930 established sufficiency information would respect agree honour conclusion however present case rather difficult acceptance bribe well established common law offence default unspecified way relation company contravention company ordinance 1962 could ordinary speech mean anything remiss failing make inquiry negligently overlooking responsibility deliberately breaching law would difficult conceive information gave le notice defendant case meet case told whether alleged guilty act omission whether responsibility alleged direct indirect even whether default said wilful negligent know said unspecified way involved contravention ordinance company officer spite uncertainty think clear 67 3 ordinance create offence way number section providing particular contravention ordinance occurred officer company default shall guilty offence nature offence created vary quite widely prescribed penalty range failing lodge certain document registrar penalty 20 s 27 6 29 b issuing unlawful invitation deposit monies company penalty 2000 38 2 may nature degree default would constitute offence would also vary nature contravention fortunately problem seem largely overcome thecompanies act 1981 see 572 sinces 67 3 creates offence describe offence term section deemed sufficient 27 2 petty session ordinance 1930 view end matter find necessary go 379 8 company ordinance state phrase officer default includes officer company corporation knowingly wilfully authorises permit commission offence think clear intended specify define one way might otherwise doubt officer may default word apt cover obvious case officer performs act constitute offence thus read covering case officer may default word includes mean say cf yz finance co pty ltd v cummings 1964 hca 12 1964 109 clr 395 per kitto j 401 2 section 379 8 therefore counsel appellant argued state integral part offence 67 3 ordinance must repeated information 27 2 petty session ordinance attracted believe honour chief justice erred holding holding information disclosed offence since ground appeal appeal must dismissed cost 17 june 1981 appellant convicted four offence section 67 3 company ordinance 1962 8 july 1981 supreme court australian capital territory granted four order nisi review conviction appeal way order review heard supreme court australian capital territory 6 april 1982 reserved judgment delivered 9 september 1982 supreme court dismissed four appeal discharged order nisi matter convicted appellant appeal court order supreme court dismissing appeal discharging order nisi short point appeal court whether information preferred appellant disclosed offence known law term information may contracted follows commit offence section 67 3 company ordinance 1962 officer indefault name company said company contrary provision section 67 1 said ordinance give financial assistance name person connection subscription share made person said company dismissing appeal supreme court chief justice dealt first argument follows first argument appellant information meaningless phrase officerin default named company meaningless default something meant said failed thing e g judgment default appearance think argument without substance phrase doubt inelegant cannot possibly read meaning anything officer named company default insertion hyphen irrational flourish hinder reader comprehension meaning word considered next argument identical argument court information failed indicate offence appellant charged applied section 27 2 court petty session ordinance 1930 reached conclusion word information sufficiently described offence word company ordinance similar word held valid information time strongly critical word information provision company ordinance 1962 since repealed decided person cannot convicted information charge offence ex parte lovell buckley 1938 nswstrp 12 38 r n w 153at 168 173 ex parte thompson ryan 1940 nswstrp 56 41 r n w 10 ex parte de mestre 1943 nswstrp 37 44 r n w 55at 58 ex parte fitzgerald 1945 nswstrp 2 45 r n w 182at 187 magistrate jurisdiction try person something law offence looked way question supreme court whether magistrate jurisdiction record conviction four information section 67 1 company ordinance provides company shall give financial assistance connection subscription share company section 67 3 creates offence appellant convicted provides section 67 1 contravened company officer company default guilty offence difficulty draftsman information created arises fact used word sub section 3 information instead charging appellant officer company default charged appellant officer default name company mentioned earlier chief justice described insertion hypens irrational flourish hinder reader comprehension meaning word doubt true hyphen omitted information would read officer default name company word similar officer name company default description appellant would saved section 27 2 court petty session ordinance section 27 2 provides description offence word ordinance creating offence similar word shall sufficient law view however use hypens cannot dismissed pleader flourish even though may hinder reader comprehension meaning word fowler modern english usage 2nd ed state modern english usage hyphen infinite variety defies description two dictionary two set style rule would found give consistently advice one principle seems command least lip service authority hyphen ornament aid understood author go demonstrate example way sense word radically altered use hyphen quote revolt hyphen wrote sir winston churchill sir edward marsh one must regard hyphen blemish avoided wherever possible draftsman ought heeded advice certainly succeeded puzzling reader perhaps appellant use hyphen information information given benevolent construction calling aid section 27 2 court petty session ordinance forerunner section 27 summary jurisdiction act 1879 42 43 vic c 49 39 1 similar provision state territory australia justice act 1902 n w 145a magistrate summary proceeding act 1975 vic 167 justice act 1886 qld 47 justice act 1902 q 45 justice act 1921 55 justice ordinance 1928 n 55 ex parte lovell buckley 1938 nswstrp 12 38 r n w 153jordan c j typically scholarly history considered mischief provision provision thejustices act 1902 n w designed correct history worth repeating albeit abbreviated form 14th century practice became established statute passed creating offence punishable penalty investing justice peace power hear determine charge offence involved trial jury justice according procedure common law session justice held quarterly purpose practice developed whereby justice empowered particular statute adjudicate summarily session without jury respect particular offence common law right appeal justice exercising summary jurisdiction later provision made appeal quarter session particular case summary jurisdiction act 1879 42 43 vic c 49 19 gave general right appeal quarter session since exercise summary jurisdiction exposed subject penalty imposed lay justice without protection trial jury court king bench exercised vigilant supervision jurisdiction way appeal mean prerogative writ certiorari rule judgment inferior court must show face within jurisdiction rigidly applied summary conviction quashed certiorari face contain material necessary enable superior court form judgment whether conviction authorised law essential order conviction might stand set face inter alia information charge laid offence described accuracy sufficient particularity enable superior court see whether act alleged sufficient constitute offence r v sparling 1 str 497 accused person could required defend charge information supply particular necessary enable prepare defence r v wheatman1 doug k b 345 r v james cald mag ca 458 smith v moody 1903 1 k b 56at 60 63 hand conviction would quashed evidence set conviction showed evidence establish essential ingredient offence charged information r v smith 1800 engr 191 8 r 588 r v nat bell liquor ltd 1922 2 c 128at 149 151 however evidence support every ingredient offence court king bench certiorari would review conclusion justice weight r v smith 1800 engr 191 8 r 588 strict requirement valid exercise summary jurisdiction difficult pick hole conviction occasion ingenuity counsel failed court king bench astute discover defect result large number delinquent escaped punishment upon ground highly technical legislation effect rendering summary conviction le open attack passed england 19th century included provision summary jurisdiction act 1879 42 43 vic c 49 39 1 providing court summary jurisdiction description offence word act etc similar word shall sufficient law smith v moody however held section mean appears say mean sufficient describe offence leaf still necessary accompany description particular act relied constituting offence pointer v cox136 l 506 authority seem based view essential accused sufficient particular prepare defence object pointed evatt j davy v ryan 1933 hca 64 1933 50 c l r 379can secured otherwise insisting upon retrenchment old rule particular must necessarily given upon face information respectfully agree analysis smith v moody davy v ryan chief justice judgment appealed particular davy v ryan go present purpose illustrate principle hearing charge proceed defendant fairly informed charge sufficient law charge word statute creating offence johnson v miller 1937 hca 77 1937 59 c l r 467per latham c j 479 case evatt j said essence administration criminal justice defendant outset trial know specific offence alleged inherent essential integral part system administering justice according law essential part concept justice criminal case single piece evidence admitted defendant unless right resist reception upon ground irrelevance whereupon court right duty rule upon objection fundamental right cannot exercised failure refusal specify particularize offence charged neither court defendant perhaps prosecutor yet aware offence intended charged indeed matter arises even earlier stage defendant cannot plead unless know precise charge preferred thus following principle emerge contrary natural justice convict person statutory offence charged magistrate entitled convict offence upon information discloses offence convict offence alleged information evidence support offence convict offence established evidence different offence charged information magistrate convict upon information charge discloses offence offence accused duly charged conviction bad defendant pleads answer charge information disclose offence known law information may amended disclose offence pursuant section 28 court petty session ordinance allowing defendant necessary adjournment order prevent injustice relation information laid 22 october 1980 respect offence allegedly committed 10 may 1973 proceeding could instituted without written consent minister 3 year elapsed since commission alleged offence section 381 4 company ordinance informed counsel appellant form consent minister identical term information view apparently taken consent amendment would necessary information could amended case defect information capable remedy better particular way contemplated evatt j davy v ryan supra conviction permitted stand would record conviction appellant officer indefault contrary section 67 3 company ordinance 1962 whereas category offender section 67 3 indeed provision company ordinance 1962 reason ascribe word officer default meaning bring appellant within section 67 3 benefit reading judgment woodward keely jj draft form agree statement number offence creating provision company ordinance refer officer company default honour refer range conduct might embraced description offender honour say may alleged offender guilty act ommission told mere use phrase whether responsibility alleged direct indirect even whether default said wilful negligent know said unspecified way involved contravention ordinance company officer section 379 8 ordinance state phrase officer default includes officer company corporation knowingly wilfully authorizes permit commission offence agree honour provision intended specify define one way might otherwise doubt officer may default according shorter oxford dictionary default noun mean 1 fault 2 imperfection defect blemish 3 failure act neglect failure perform legal requirement obligation 4 culpable neglect duty obligation 5 failure duty fault misdeed offence 6 failure esp meet financial engagement hence remiss underlined word stressed counsel respondent section 379 8 inclusive definition read covering case officer may default thus latent ambiguity type conduct offender liable convicted appropriate phrase used mystery surrounding conduct deepens ambiguity le susceptible solution view entitled categorised accurately may least benefit clue provided section 379 8 addition particular appropriate join issue otherwise allegation plea reason would allow appeal set aside conviction penalty imposed magistrate

Mining Employment Services [2014] FWCA 1001 (11 February 2014).txt

mining employment service 2014 fwca 1001 11 february 2014 2014 fwca 1001fair work commissiondecisionfair work act 2009s 185 enterprise agreementmining employment service ag2014 3357 mining employment service enterprise agreement 2013mining industrycommissioner williamsperth 11 february 2014application approval mining employment service enterprise agreement 2013 1 application made approval enterprise agreement known themining employment service enterprise agreement 2013 agreement application made pursuant tos 185of thefair work act 2009 act made mining employment service agreement single enterprise agreement 2 pursuant tos 185 3 b act fair work commission extends period filing application matter date application filed 3 satisfied requirement ofss 186 187and188of act relevant application approval met 4 agreement approved accordance withs 54of act operate 18 february 2014 nominal expiry date agreement 11 february 2018 commissionerprinted authority commonwealth government printer price code c ae406814pr547627

Abigroup Contractors Pty Ltd re Abigroup Contractors Pty Limited, Rail Division, National Greenfields Enterprise Agreement 2012-2014 [2012] FWAA 5548 (28 June 2012).txt

abigroup contractor pty ltd abigroup contractor pty limited rail division national greenfields enterprise agreement 2012 2014 2012 fwaa 5548 28 june 2012 fair work australiadecisionfair work act 2009s 185 application approval greenfields agreementabigroup contractor pty ltd ag2012 6915 abigroup contractor pty limited rail division national greenfields enterprise agreement 2012 2014rail industrysenior deputy president hambergersydney 28 june 2012application approval abigroup contractor pty limited rail division national greenfields enterprise agreement 2012 2014 1 application made approval enterprise agreement known theabigroup contractor pty limited rail division national greenfields enterprise agreement 2012 2014 agreement application made pursuant tos 185of thefair work act 2009 act 2 satisfied requirement ofss 186 187and188of act relevant application approval met 3 australian rail tram bus industry union rtbu bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 act note agreement cover organisation 4 agreement approved operate 5 july 2012 nominal expiry date agreement 27 october 2014 senior deputy presidentprinted authority commonwealth government printer price code g ae895066 pr525754

Orion Consulting Engineers v Blacktown City Council [2020] NSWLEC 1054 (7 February 2020).txt

orion consulting engineer v blacktown city council 2020 nswlec 1054 7 february 2020 orion consulting engineer v blacktown city council 2020 nswlec 1054 7 february 2020 last updated 12 february 2020land environment courtnew south walescase name orion consulting engineer v blacktown city councilmedium neutral citation 2020 nswlec 1054hearing date conciliation conference 12 november 2019 18 december 2019date order 7 february 2020decision date 7 february 2020jurisdiction class 1before bindon acdecision see order 10 belowcatchwords development application land subdivision conciliation conference agreement party orderslegislation cited environmental planning assessment act 1979environmental planning assessment regulation 2000land environment court act 1979state environmental planning policy infrastructure 2007state environmental planning policy sydney region growth centre 2006state environmental planning policy 55 remediation landtexts cited blacktown growth centre precinct plancategory principal judgmentparties orion consulting engineer applicant blacktown city council respondent representation counsel baird solicitor applicant loether solicitor respondent solicitor baird lawyer applicant bartier perry respondent file number 2019 117159publication restriction nojudgmentcommissioner appeal brought court unders 8 7 1 theenvironmental planning assessment act 1979 epa act deemed refusal blacktown city council council development application da 18 01789 da exercising function consent authority appeal court power determine da pursuant toss 4 15and4 16of epa act da principally relates 2 062 ha parcel land identified lot 7 dp 30211 26 clarke street riverstone lot 7 narrow strip land adjoining north west lot 7 small portion lot 6 dp 30211 24 clarke street lot 6 also included development proposal whole lot 7 small portion lot 6 together constitute development site da submitted council 10 september 2018 sought consent demolition existing structure subdivision lot 7 44 torrens title residential lot public roadway construction public road various earthwork site contamination remediation work tree removal stormwater drainage work landscaping work located lot 6 involve construction earthwork batter temporary grass lined diversion swale inlet pit 7 june 2019 leave granted court rely amended plan additional information including odour assessment report filed court day amended set plan known revision 02 plan dated 21 03 2019 information address various concern raised council court arranged conciliation conference unders 34 1 theland environment court act 1979 lec act party presided conciliation conference held 12 november 18 december 2019 agreement party view development site given objector da prior discussion party regarding plan minor amendment made plan result discussion party prior conciliation conference following conciliation conference party reached agreement based final plan term decision proceeding would acceptable party 34 3 lec act must dispose proceeding accordance party decision party decision decision court could made proper exercise function party decision involves court exercising function 4 16 epa act grant consent development application jurisdictional prerequisite must satisfied function exercised jurisdictional prerequisite relevance proceeding satisfied set 8 relevant jurisdictional matter 1 relation provision land owner consent required cl 49 theenvironmental planning assessment regulation 2000 applicant submitted written consent land owner lot 6 lot 7 development proposed respective lot 2 relation state environmental planning policy sydney region growth centre 2006 particular applicable appendix 12 blacktown growth centre precinct plan satisfied site zoned r2 low density residential subdivision work proposed permissible consent development complies relevant development standard planning instrument 3 relation state environmental planning policy 55 remediation land sepp 55 particular cl 7 1 2 requiring consideration contamination associated remediation stage 2 detailed site investigation report prepared alliance geotechnical pty ltd dated 23 august 2018 submitted part da documentation filed class 1 application court condition consent accompany agreement party include condition consistent recommendation report therefore satisfied requirement sepp 55 satisfied 4 relation state environmental planning policy infrastructure 2007 sepp infrastructure potential jurisdictional issue refer following joint submission party made court email 24 december 2019 upon review legislation planning instrument governing requirement grant development consent party agree requirement referral department federal state agency concurrence approval integrated development relevant legislation council referred application rms confirmed comment council consideration council also confirms proposed development within 40m watercourse requirement refer natural resource access regulator nrar given finding archeological due diligence assessment report aboriginal heritage impact permit ahip required party decision decision court could made proper exercise function required 34 3 lec act dispose proceeding accordance party agreement court order 1 applicant granted leave amend development application da 18 01789 rely upon following amended plan document copy behind annexure documentprepared bydatedturn path plan da 304 revision 04orion consulting pty ltd8 november 201912 5m heavy rigid turning path plan da 305 revision 03orion consulting pty ltd18 july 2019updated odour assessmenttodoroski air sciences11 october 2019response statement fact contention odour astute environmental consulting16 october 2019 2 applicant pay respondent cost thrown away pursuant tosection 8 15 3 theenvironmental planning assessment actin amount 2 990 00 3 appeal upheld 4 development application da 18 01789 amended demolition existing structure subdivision 44 torrens title residential lot including earthwork site contamination remediation work construction public road tree removal dam dewatering stormwater drainage work landscaping lot 7 dp 30211 otherwise known 26 clarke street riverstone approved subject condition behind annexure b j bindonacting commissioner courtannexure 10 1 mb pdf annexure b 246 kb pdf

Applicant: Fariani IRT Reference: W97_01735 #number 10749 [1997] IRTA 10749 (10 November 1997).txt

applicant fariani irt reference w97 01735 number 10749 1997 irta 10749 10 november 1997 decision reason decisionirt reference w97 01735 10749 docapplicant farianitribunal m fadjiar senior memberdate 12 november 1997place perthdecision decision review affirmed reason decisionthis application lodged 24 october 1997 fariani applicant undersection 347of themigration act 1958 cth act although applicant lodged application name fariani widjaja name appearing passport fariani application seek review decision made 9 october 1997 primary decision delegate minister immigration multicultural affair cancel class tu subclass 560 student visa holding decision cancel visa irt reviewable decision regulation 4 09 migration regulation regulation following receipt application review tribunal requested secretary department immigration multicultural affair department provide relevant document relation matter pursuant section 352 2 act department file 975 007429 file respect applicant received 30 october 1997 coming decision tribunal regard content file oral evidence applicant given affirmation hearing held perth 7 november 1997 applicant twenty one year old indonesian national first arrived australia sometime july 1994 student visa pursue certificate course management edward college told tribunal finish course decided transfer associate diploma course also management commenced course february 1995 complete failed two unit examination held december 1995 early 1996 enrolled edith cowan university ecu study two first semester year one unit part four year course leading bachelor degree psychology time repeated two unit failed edward college although failed unit ecu nevertheless allowed enrol second semester condition must pas second semester unit applicant pas first semester unit ecu medical problem also failed pay relevant fee financial difficulty led ecu advising department sometime september 1996 longer enrolled student applicant enrolled ecu december 1996 meantime 28 august 1996 applicant married australian citizen name dion staiger application spouse visa lodged 24 september 1996 14 may 1997 requested provide various documentary evidence support application spouse visa response ever received department application spouse visa refused 20 june 1997 student visa applicant holding time cancelled 9 october 1997 subject various condition identified sticker passport one condition8202 meet course requirementswhich schedule 8 migration regulation regulation prescribes holder must satisfy course requirement 2 october 1996 upon receiving ecu advice applicant longer enrolled student department sent letter applicant section 116 notice advising may ground cancellation student visa section 116 act may breach condition 8202 student visa applicant responded 116 notice given two week provide evidence enrolment approved educational institution applicant failed provide evidence despite repeated reminder returned department apparently longer residing address last known department decision made 9 october 1997 cancel student visa letter sent old address located new address department sent another letter 13 october 1997 advising decision cancel student visa section 116 act set various circumstance visa may cancelled minister one holder complied condition visa condition instance holder must satisfy course requirement referred abovethe tribunal found many previous decision use word may section 116 1 connotes notwithstanding breach condition power cancel visa provision discretionary one regard circumstance case deciding whether applicant visa cancelled tribunal taken account circumstance case regard relevant policy guideline contained inmigration series instructionmsi 69 since arriving australia applicant completed course embarked also failed respond department request document department waited twelve month making decision cancel student visa reason gave tribunal non disclosure recorded department file folio 99 tribunal repeat reason privacy applicant evidence issue however uncorroborated although 1997 applicant second year ecu presently repeating first year unit four first year unit repeated first semester 1997 passed two deferring one failing sitting second semester examination shortly regard circumstance set tribunal persuaded applicant bona fide academic pursuit find decision cancel student visa correct preferable one tribunal accordingly affirms decision review applicant requested allowed sit impending examination notwithstanding currently hold valid student visa tribunal however jurisdiction matter ____________ms fadjiarsenior memberi certify four 4 preceding page true copy decision reason decision herein m fadjiar senior member tribunal assistant registrar12 november 1997

Bales Investments Pty Limited & Ors v Cessnock City Council [2009] NSWLEC 1062 (27 February 2009).txt

bale investment pty limited or v cessnock city council 2009 nswlec 1062 27 february 2009 bale investment pty limited or v cessnock city council 2009 nswlec 1062 27 february 2009 last updated 10 march 2009new south wale land environment courtcitation bale investment pty limited or v cessnock city council 2009 nswlec 1062parties applicantbales investment pty limited orsrespondentcessnock city councilfile number 11080 2008catchwords section 96 modification trading hourslegislation cited environmental planning assessment act 1979coram bly cdates hearing 27 02 09ex tempore date 27 february 2009legal representativesapplicantmr c ireland barristerinstructed sullivan saddington lawyersrespondentmr howard barristerinstructed mallik rees lawyersjudgment land andenvironment courtof new south walesbly c27 february 200911080 2008 bale investment pty limited or v cessnock city counciljudgmentthis appeal relates cessnock city council refusal modification application undersection 96of theenvironmental planning assessment act1979

Goa v Hurstville City Council [2015] NSWLEC 1162 (19 May 2015).txt

goa v hurstville city council 2015 nswlec 1162 19 may 2015 goa v hurstville city council 2015 nswlec 1162 19 may 2015 last updated 27 may 2015land environment courtnew south walescase name goa v hurstville city councilmedium neutral citation 2015 nswlec 1162hearing date 4 5 may 2015 condition 18 may 2015decision date 19 may 2015jurisdiction class 1before brown cdecision 1 appeal upheld 2 da2014 0125 demolition existing dwelling construction purpose built child care centre 22 cambridge street penshurst approved subject condition annexure 3 exhibit returned exception exhibit 1 g k catchword development application demolition existing dwelling construction child care centre insufficient evidence overshadowing resident objectionslegislation cited environmental planning assessment act 1979hurstville local environmental plan 2012category principal judgmentparties sarah gao applicant hurstville city council respondent representation counsel mr g mckee solicitor applicant m v mcgrath solicitor respondent solicitor mckees legal solution applicant norton rose fullbright australia respondent file number 11042 2014publication restriction nojudgmentcommissioner appeal relates refusal hurstville city council da2014 0125 demolition existing dwelling construction child care centre 60 child 9 staff 22 cambridge street penshurst site child care centre operate 7am 6 30pm monday friday council statement fact contention maintained application refused proposed development adverse impact streetscape particularly given absence detail building material provides insufficient information solar access adjoining property acoustic fencing landscaping plan management basement excavation andprovides insufficient information toilet facility number resident provided evidence site inspection agreed concern council well following additional concern excessive number child unacceptable increase traffic area impact existing road network noise child supervising staff sufficient existing child care centre area andstormwater disposal potential flooding sitethe site lot 101 dp 712124 20 115 frontage cambridge street area 1387 sq existing development site consists dwelling house tennis court two small outbuilding area residential character majority development single residential dwelling although townhouse villa development adjoins site rear relevant planning controlsthe site within zone r2 low density underhurstville local environmental plan 2012 lep 2012 child care centre permissible consent zone clause 2 3 2 state 2 consent authority must regard objective development zone determining development application respect land within zone r2 zone objective provide housing need community within low density residential environment enable land us provide facility service meet day day need resident encourage development site range housing type development compromise amenity surrounding area natural cultural heritage area ensure high level residential amenity achieved maintained encourage greater visual amenity maintaining enhancing landscaping major element residential environment provide range home business activity activity likely adversely affect surrounding residential amenity hurstville development control plan no1 dcp 1 applies section 5 4applies specifically child care centre section 5 4 5 1 provides requirement locational criterion 5 4 8 provides requirement size centre child age group 5 4 9 provides requirement form appearance 5 4 9 4 provides requirement solar design energy efficiency 5 4 11 provides requirement landscaping evidence application contention disputea joint expert town planning report prepared mr andrew minto applicant mr jeffrey mead council exhibit 3 joint expert report identified large number change application address contention identified council applicant also provided following supplementary report mr craig mclaren traffic parking exhibit c andmr nick koikas acoustic exhibit b leave granted 5 march 2015 applicant rely amended plan hearing 5 may 2015 leave granted rely amended plan exhibit g plan included change identified joint report mr minto mr mead landscaping plan reflected amended plan also tendered exhibit k acoustic report mr koikas exhibit h mr mclaren mr koikas required cross examination notwithstanding amended plan additional expert evidence council maintained insufficient evidence still provided applicant conclude overshadowing impact would adversely affect owner adjoining property 20 cambridge street contention relating insufficient evidence appearance development streetscape excessive number child noise acoustic fencing landscaping plan management basement excavation inadequate toilet facility pressed council following submission detail inclusion condition consent overshadowing loss sunlightsection 5 4 9 4 dcp 1 state 5 4 9 4 solar design energy efficiencythe design building minimise overshadowing neighbouring private open space window habitable room new building constructed child care centre alteration addition proposed building must unreasonably obscure sunlight window habitable room solar collector rear yard adjoining property design allow least 3 hour sunlight 9am 3pm midwinter 21 june adjoining private open space new building constructed child care centre alteration addition proposed shadow diagram must prepared submitted showing impact proposal adjoining site shadow diagram need illustrate shadow cast 9am 12 noon 3pm 21 june particular emphasis impact adjoining habitable room diagram must prepared architect surveyor based accurate survey site adjoining development adjoining development relies solar access heating cooling system access preserved mr minto mr mead agree shadow diagram identify window habitable room adjoining property although agree shadow cast proposed acoustic fencing likely acceptable section 5 4 9 4 state new building minimise overshadowing neighbouring private open space window habitable room must unreasonably obscure sunlight window habitable room solar collector rear yard adjoining property disagreement shadow diagram provide accurate depiction shadow cast proposed building acoustic fencing consists 1 8m high solid fence transparent barrier erected 45 deg maximum height 2 4m recent shadow diagram provided shadow cast fence agree conclusion mr minto mr mead overshadowing likely acceptable test 5 4 9 4 one overshadowing adjoining property overshadowing minimised unreasonable case even widow adjoining property associated habitable room orientation setback adjoining dwelling proposed building fencing clearly limit availability sunlight window given reasonable redevelopment site lot run generally east west orientation north facing window dwelling 20 cambridge street always likely deprived large amount sunlight given building form likely located directly opposite north proposed building satisfies front rear side setback requirement 5 4 9 2 height requirement 5 4 9 1 overshadowing window inevitable compliance setback height requirement directly relate overshadowing adjoining property satisfied proposed development minimises overshadowing window habitable room unreasonably obscure sunlight window habitable room benefit shadow diagram also satisfied proposed development including proposed acoustic fencing minimises overshadowing neighbouring private open space unreasonably obscures sunlight rear yard adjoining property also based shadow diagram accept proposed development allows least 3 hour sunlight 9am 3pm midwinter 21 june adjoining private open space 22 cambridge street reason overshadowing proposed development would reason refuse application resident concernsexcessive number childrensection 5 4 8 address size centre child age group objective ensure child care centre manageable size overall number child minimize adverse impact amenity surrounding residential area ensure number space 2 year old reflects demographic local government area requirement capacity maximum number child accommodated child care centre within residential zone follows r2 low density residential 40 child council consider variation control clause child care centre r2 zone site located adjacent retail commercial area non residential zoning mr minto mr mead accept important objective relates ability minimise impact neighbouring property given acoustic issue recommendation mr koikas adopted including limiting maximum number child playing outside 30 agree 60 child proposed application acceptable basement car park provided streetscape impact result car parking cambridge street also acceptable amount visible parking would consistent smaller child care centre consequently satisfaction objective relating number child adverse impact amenity surrounding residential area notwithstanding proposed number child exceed number specified 5 4 8 agree conclusion mr minto mr mead overshadowing adjoining property would reason refuse development application traffic parkingthe amount street parking satisfies requirement 5 4 10 1 inadequate street parking cannot reasonably reason refuse application section 5 4 10 2 requires due consideration impact development traffic safety consideration addressed mr mclaren report state p 10 level traffic generated proposed child care centre accommodated surrounding road land use environment minimal impact due regard given residential amenity road safety traffic flow efficiency consideration absence expert evidence contradict mr mclaren conclusion accept conclusion find increased traffic inadequate parking reason would support refusal application noisesection 5 4 14 2 requires council requires suitably qualified acoustic consultant undertake acoustic assessment include recommended noise attenuation measure report mr koikas state p 28 based acoustic recommendation provided report implemented building design construction koikas acoustic certifies proposed child care centre development 22 cambridge street penshurst satisfy nominated criterion recommendation largely provide acoustic fencing varied height construction around part site perimeter limit 30 child playing outdoors andsupervision outdoor activity absence expert evidence contradict mr koikas conclusion accept conclusion find noise generated proposed development reason would support refusal application sufficient existing child care centre areasection 5 4 6 provides requirement cumulative impact centre within residential area objective ensure potential cumulative impact residential amenity including traffic parking control section provide diagram identify suitable location child care centre multiple child care centre within area understanding location proposed development satisfies locational requirement diagram 5 4 6 also found residential amenity issue would warrant refusal application reason allegation cumulative impact cannot supported stormwater disposalit suggested resident easement existed dispose stormwater site however accepted council applicant council also sought deferred commencement condition requires person benefit consent obtain separate development consent drainage work carried within existing easement drain water dp 841133 including written consent owner property burdened easement work easement deferred commencement requires cctv survey full length pipeline within easement includes clear view pipe connection sydney water drainage system certification registered surveyor pipeline accompanying pit fully contained within easement drain water applicant accepts need cctv survey certification submits requirement operational condition given undisputed agreement existence easement term existing easement agree applicant accept operational condition relating disposal stormwater sufficient address concern ordersthere reason warrant refusal application order court 1 appeal upheld 2 da2014 0125 demolition existing dwelling construction purpose built child care centre 22 cambridge street penshurst approved subject condition annexure 3 exhibit returned exception exhibit 1 g k ___________g browncommissioner court11042 2014 c brown 136 kb pdf

Dauvergne, Catherine; Millibank, Jenni --- "Applicants S396_2002 and S395_2002, a gay refugee couple from Bangladesh" [2003] SydLawRw 6; (2003) 25(1) Sydney Law Review 97.txt

dauvergne catherine millibank jenni applicant s396 2002 s395 2002 gay refugee couple bangladesh 2003 sydlawrw 6 2003 25 1 sydney law review 97on 11 october 2002 high court granted leave appeal decision full federal court kabir v minister immigration multicultural affair mima hereinafterkabir 1 case concern gay couple bangladesh seeking asylum mark first time final appellate court anywhere world consider refugee claim based ground sexual orientation refugee decision maker around world follow ruling closely high court australia played important role developing international refugee jurisprudence date outcome case potential influence decision making refugee receiving state 1 context claimcanada australia described leading way recognising asylum claim based sexual orientation 2 time uk even accepted lesbian gay men eligible apply protection 3 australia canada evaluated hundred claim basis sexual orientation asylum granted basis refugee definition agreed upon internationally 1951 convention relating status refugee 4 amended 1967 protocol relating status refugee hereinafter convention 5 total 136 state party convention protocol 30 september 2002 definition refugee someone 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 result event unable owing fear unwilling return article 1 2 6 australia accepted sexual orientation form basis particular social group claim refugee convention since 1994 acceptance based upon supreme court canada decision inward v attorney general canada hereinafterward 7 vital refugee protection extended face persecution basis one five ground convention definition simply face persecution without demonstrated link one named factor early australian case particular social group defined homosexual subsequently refined homosexual x country group never specifically defined tribunal use category example frequently gender specific 8 moreover numerous case concerning sexual orientation tribunal even state particular social group purpose claim stated explain basis defined comparative analysis 300 decision basis sexual orientation refugee tribunal australia canada found canada acceptance rate twice australia 9 one major reason sharp disparity acceptance rate australian discretion test fully one third australian case considered whether applicant could avoid persecution hiding sexuality wasrequiredof applicant one fifth case imposed produced 98 per cent failure rate among applicant 10 thus strong correlation requirement discretion applicant chance success discretion required even slightest chance applicant could comply effectively prevented qualifying refugee status australia way contrast discretion imposed 4 per cent canadian case rejected inherently discriminatory approach early canadian jurisprudence imposition discretion requirement likely increased since end study divided approach tribunal level mixed response requirement federal court australia 2000 2001 full federal court appeared finally endorse application discretion requirement 2002 11 requirement effectively revers responsibility state ensure protection persecution place onus instead applicant ensure safety suppression secrecy construct catch 22 situation applicant imposes requirement secrecy also denies possibility persecution applicant secretive consequently refugee review tribunal rrt federal court deny protection choose secrecy leave appeal transcript kirby j identified circularity rrt reasoning effect saying cannot well grounded fear persecution way living openly therefore case cannot well grounded fear persecution 12 application discretion requirement contradicts australian refugee jurisprudence suppression held form persecution religious political ground also fly face refugee jurisprudence comparable nation canada new zealand usa sexual orientation international recommendation regarding nexus requirement refugee convention ought best interpreted 13 discretion requirement also linked definition particular social group group broadly defined open tribunal utilise information situation discreet member group evidence applicant risk however comparison may well valid one example comparing evidence risk persecution married men occasional anonymous male male sex risk gay identified claimant even risk lesbian claimant group broadly defined purpose eligibility danger persecution assessed relation one narrower element applied whole process risk assessment premised basic assumption discretion requirement defining feature group sex sexual activity factor issue determining risk persecution although clearly related issue discretion suppression particular social group addressed turn paper sake clarity recommendation proper definition particular social group follow 2 claimat time original hearing k 28 r 47 couple lived together four year bangladesh claimed experienced variety violent harassing incident prior coming australia tribunal expressed serious reservation applicant credibility believe number claim experience persecution tribunal expressly disbelieved k evidence complained police harassment basis plausible would sought police assistance first place given attitude towards homosexual bangladesh 14 however tribunal accept couple genuinely gay long term cohabiting relationship accepted led lesser claim harassment basis finding tribunal concluded applicant well founded fear persecution lived together 4 year without experiencing minor problem anyone outside family clearly conducted discreet manner reason suppose would continue returned home 15 country evidence utilised claim several bangladeshi gay men including case hand state openly gay men lesbian bangladesh gay men relationship tend live together number public place men may anonymous male male sex 16 risk include police bashing extortion men conform outwardly social norm importantly marrying child get away male male sex provided kept secret 17 inkabir tribunal concluded clear homosexuality accepted condoned society bangladesh possible live openly homosexual bangladesh attempt would mean face problem ranging disowned one family shunned friend neighbour serious form harm example possibility bashed police however bangladeshi men homosexual affair relationship provided discreet 18 arguable narrowest level kabirwas incorrectly decided tribunal evidence applicant case hand outwardly conform social norm openly non conforming cohabiting gay couple could therefore rightly characterised discreet according country evidence earlier rrt decision bangladesh made exactly point determining committed cohabiting gay male couple could notby fact alonebe discreet given local societal norm 19 however court restricted extent revisit finding fact broader issue court whether applicant required conform discretion standard possible noteworthy contradictory approach discretion requirement case bangladesh lead one man gay couple granted refugee status partner decision another member refused 20 federal court full federal court refused appeal fromkabir federal court level court accepted tribunal made implicit finding police would protected mr kabir would harmed revealed homosexuality 21 however court held reviewable error finding fact complaint police 22 court also accepted tribunal drawn distinction living openly homosexual seen labelled homosexual could lead danger discreet homosexual affair relationship would give rise problem 23 court held tribunal rightly characterised applicant naturally belonging latter class 24 court refused consider whether discretion suppression could principle constitute persecution applicant complained modify behaviour attract attention 25 complaint part applicant case claimed havealreadyattracted attention 26 however suppression behaviour modification implicit tribunal finding applicant future conduct failure police protection absence suppression accordingly matter tribunal ought properly addressed assessment afuturerisk persecution full federal court also refused address argument modifying behaviour avoid danger could constitute persecution full court held trial judge construed matter properly additional argument full court took matter yet trial judge addressed legal principle underlay discretion requirement tribunal handing contradictory decision issue eight year time single judge federal court decision point inconclusive bound requirement whether mandated consideration extent suppression would constitute persecution full federal court ought taken opportunity deal conflict presented case 27 leave appeal hearing kirby gaudron jj suggested remark discretion requirement definition particular social group live issue court would consider appeal 3 persecution discretion australian case lawthe tribunal expressed discretion requirement reasonable expectation person extent possible co operate protection 28 discretion characterised corollary principle australian refugee law limit protection sexual orientation private consensual sex extend indiscriminate disclosure public manifestation sexuality sexual identity 29 discretion requirement claimant ground sexual orientation expected conform culture government oppressive persecutory regime order avoid harm including harm serious death penalty 30 decision maker expectation homosexuality kept secret enabled improbable conclusion number extremely repressive regime iran tolerant homosexuality long kept completely invisible 31 tribunal appeared oblivious paradox involved characterising various regime tolerant something officially non existent kept secret force legal proscription extreme cultural hostility 1998 case concerning gay man sri lanka tribunal stated evidence avoid real chance serious harm simply refraining making sexuality widely known saying homosexual engaging public display affection towards men able function anormalmember society seem involve infringement fundamental human right 32 emphasis added tribunal held would risk persecution applicant sexuality become public knowledge could avoid risk provided openly proclaim homosexual parade sexual expression public decision also expressly distinguished case law religious ground f reedom religion course fundamental human right furthermore public profession one religion normally essential part practice one religion public manifestation religious belief worship part involved concept religion inability publicly profess practice one religion clear violation freedom religion case sexuality people many different sexual orientation exist society practise sexual preference privately without feeling need proclaim preference world public manifestation homosexuality essential part homosexual 33 decision upheld appeal federal court inlsls v mimawhere court read statement standing principle reasonable level discretion purpose avoiding persecution expected applicant court find legal error tribunal distinction making one sexuality known extent necessary identify prospective partner sex protected making one sexuality known widely termed gratuitous indiscriminate form disclosure protected 34 court instead characterised first limb proper regard practice homosexual lifestyle including need develop maintain meaningful sex relationship 35 prohibition bare right public proclamation one sexuality characterised obiter court avoided making finding series case federal court level followed decision tended avoid grappling principle discretion suppression secrecy possible 36 federal court tended simply accept division seeking sex indiscriminate disclosure division outlined without addressing whether either practically possible unlawfully discriminatory 37 suppression occasion noted something thatcouldbe persecutory construed issue required determination applicant secretive argued right proclamation tribunal held disadvantaged secretive 38 case federal court applied standard time refused analyse legality standard tribunal thus left disarray decide hundred claim claimant never knowing standard need satisfy 2001 federal court held iranian penal code prohibiting homosexuality imposing death penalty place limit applicant behaviour applicant avoid overt public publicly provocative homosexual activity accept limit amount persecution 39 case appealed full federal court decision handed month afterkabir decision wabr v mima expressly endorsed lower court tribunal finding public manifestation homosexuality essential part homosexual 40 full court held appropriate submit ability proclaim one sexual preference essential right denial would could lead persecution 41 court concluded open tribunal conclude material active program persecution homosexual iran long discreet concluded affair privately also open tribunal conclude wasreasonable expect appellant would accept constraint consequence exercise discretion 42 emphasis added approach stand stark contrast federal court jurisprudence developed asylum case brought religious political ground discussed 4 normal life federal court inlsls v mimaread tribunal definition normal must include ability pursue homosexual lifestyle including example meeting prospective sexual partner 43 however generous mi reading tribunal decision held right homosexual include fact limited private sex 44 tribunal member held decision normal life involved applicant never telling anyone gay 45 numerous tribunal decision implicitly expressly premised discretion requirement assumption gay applicant could express sexuality anonymous sex public place 46 lesbian applicant would remain celibate 47 normal life would court example hold heterosexual person fundamental human right infringed safety sake pretend gay every area professional personal social life every public place living partner choice never showing affection partner identifying couple friend family pursuing heterosexual lifestyle swift furtive sex stranger prostitute public park desperate secrecy deception undertaken fear month year decade anormal life instance tribunal seen gay men lesbian whole people rather merely private sexual act undertaken whatever circumstance available noteworthy contrast provided decision 2000 also concerning gay male couple bangladesh tribunal held deliberate breaking committed sex relationship could compared inter caste inter racial inter religious couple country marriage effectively outlawed 48 likewise 1999 case china tribunal considered country evidence similar bangladesh case sex partner attract attention display fact public committed couple authority would probably leave alone necessarily tribunal continued however sex couple china attempt livea normal life go restaurant club bar theatre make obvious unit sooner later attract adverse attention authority life lived level offurtiveness fearbrought intolerance state 49 emphasis added express different conception normal life including going socially talking one friend also remarkable contrast discretion decision discloses motivation behind discretion fear read every decision referred replacing discreet discretion furtive fear revealing indeed render considerably difficult see discretion requirement reasonable limit behaviour cause disadvantage applicant case tribunal took discretion requirement extreme suggesting applicant could avoid persecution marrying secret gay life 50 finding faced strong disapproval federal court obiter 51 numerous case continued rely upon country evidence centred married non gay identified men occasional male male sex find discreet gay identified applicant relatively safe persecution normal life heterosexual marriage continues taken given compelled live relationship antithetical one sexual orientation persecutory 5 discretion requirement discriminatory time tribunal opined issue whether homosexual enjoy right heterosexual 52 tribunal federal court repeatedly failed find discretion requirement discriminatory using superficial false comparators heterosexual people lesbian gay men case held discretion requirement discriminatory applies equally heterosexual example another 2001 decision concerning gay man bangladesh tribunal held tribunal accepts person act discreetly hide one sexual orientation however independent evidence tribunal accepts state sexual issue normally discussed indicates bangladesh conservative society sexual practice behaviour people whether heterosexual homosexual matter made public light evidence tribunal find requirement discreet regard sexual behaviour selectively applied homosexual hence involve selective element inherent concept persecution 53 decision found discrimination unmarried heterosexual people also discreet sending country 54 may difficult heterosexual people extra marital affair relationship prior marriage culture equation fundamentally misconceives position lesbian gay men isnoacceptable form sex relationship 55 also overlook extent heterosexuality constantly assumed expressed publicly cheshire calhoun word unlike love dare speak name heterosexuality love whose name continually spoken everyday routine institution public social life heterosexual move public sphere heterosexual identity mean private matter public social interaction structure public institution pervaded assumption public actor heterosexual opportunity represent 56 decision maker may accustomed assumption heterosexuality society unaware way unconscious gesture familiarity affection sign wedding ring use specific language partner wife girlfriend cultural code embedded mass advertising popular culture make expression heterosexuality identity universally assumed normal patentlyindiscreet considerable slippage decision regarding expression sexualidentitywhich often construed public sexual behaviour 57 ongoing division within tribunal whether discretion requirement unlawfully discriminatory 58 early 1995 applicant adviser trenchantly criticised discretion requirement drew tribunal attention refugee expert james hathaway view ince purpose refugee law protect person abusive national authority reason exclude person could avoid risk refraining exercise inalienable right 59 yet secret gay life repeatedly defined member imposing discretion requirement giving something le fundamental human right 60 something le expressed indiscriminate disclosure flaunting parading proclaim ing publicly 61 rather fundamental human right right family life 62 freedom expression 63 freedom association 64 tribunal repeatedly construed fundamental right homosexual extendingonlyto private sex sexual activity discretion case based express premise gay lesbian right distinct lesser human right tribunal decision 1994 1995 65 relied upon current decision european court human right echr opinion issued united nation human right committee hrc find right homosexual limited privacy extend right equality family life arguable decision never literally applied least standard object proof relate differ substantially echr applies margin appreciation favour member state balancing right individual state determining individual right breached test refugee determination real chance persecution individual even taken face value however noteworthy decision since completely overtaken fast developing international human right jurisprudence sexual orientation 66 much condemnation discretion requirement drawn express parallel persecution ground sexuality political expression 67 religious belief 68 justice mchugh parallel christian homosexual inapplicant v minister immigration ethnic affair hereinafterapplicant 69 support view appropriate compare experience persecution across group convention order develop refugee jurisprudence group may qualify particular social group however even though distinguishing feature group public face roman time example christian particular social well religious group although forced practise religion catacomb homosexual member particular society perceived society characteristic attribute unite group distinguish society whole qualify refugee status 70 tribunal evaded grappling essence important parallel employing two strategy one draw vital distinction religion politics require public manifestation sexuality 71 reflects assumption discussed homosexuality private sexual experience secret life normal life avenue accept principle serious suppression constitute evidence well founded fear persecution 72 repeatedly distinguish inapplicable case hand employment distinction set sexuality apart discriminatory basis holding isnot unreasonableto live closeted life applicant nevertheless managed sexually active thereforenot disadvantagedby 73 question never addressed exactly closeted life entail sending country sustainable reasonable compared level secrecy suppression would unreasonable disadvantaged compared noteworthy australian government argued discretion 2001 case involving political expression federal court rejected force 74 inwin v mima 75 burmese couple politically active clandestine manner year burma without caught denied refugee status rrt basis returned burma continued clandestine likelihood persecution low appeal argued rrt failed consider whether suppression political freedom capable amounting persecution madgwick j responded eloquently appears reason similarly denial freedom express one political opinion may constitute persecution illustrate point reference historical example upon approach suggested counsel respondent anne frank terrified jew hiding life nazi occupied holland would refugee tribunal satisfied possibility discovered authority remote would sent back live attic inconceivable framer convention ever imputed result contemplation principle seems denial civil right would amount persecution denial complete effective actually seriously offends real aspiration held asylum seeker fairly said integral human dignity fatal claim persecution claimant fails show leading exponent claim wish exercise right let alone exhibit capacity martyrdom convention aim protection whose human dignity imperilled timorous well bold inarticulate well outspoken follower well leader religious political social cause word ordinary person well extraordinary one 76 madgwick j went state unclear exactly civil political right convention extends protect concluded australian jurisprudence free speech certainly one recommended universal declaration human right udhr international covenant civil political right iccpr reliable guide determining scope protection 77 madgwick j analysis lesbian gay men country tolerated secret discreet face chance serious harm openly gay denied right express fundamental aspect human dignity australian law persecuted suppression yet sent back live attic bangladesh well country iran sri lanka ghana lebanon pakistan reasonable australian law disadvantage leading normal life 6 jurisdictionsthe jurisprudence canada new zealand usa directly contradicts australia issue secrecy canada immigration refugee board irb rejected discretion requirement strongest term 1995 78 numerous case irb explicitly credited applicant right openly identified gay lesbian 79 connected human right concept freedom expression association irb never accepted australian tribunal 80 gay mean ability secret gay sex claimant stated sent back malaysia would hide fact gay order safe possible openly gay would fit heterosexual lifestyle try something would suppress feeling claimant explained gay simply sex wish acknowledged person claimant accepted gay ashamed contrary proud 81 new zealand refugee status authority rsa 1995 decision ofre gj 82 considered whether applicant could avoid persecution careful live hidden inconspicuous life held expect total denial essential part identity would inappropriate unacceptable 83 new zealand rsa referred 1983 decision german administrative court 84 stating court believed telling homosexual asylum seeker avoid persecution careful live hidden inconspicuous life unacceptable suggesting someone deny hide religious belief try change skin colour 85 2000 u court appeal 9thcircuit considered claim mexican man identified gay also sometimes cross dressed woman first instance appeal board immigration appeal bia applicant claim rejected bia held way applicant appeared public choice therefore mistreatment arose conduct australian parlance flaunter court appeal forcefully rejected premise onus applicant avoid persecution perhaps conduct bia referring geovanni effeminate dress sexual orientation gay man justification police officer raping asked excuse rape offensive court discounted court commentator alike 86 court determined proper particular social group applicant homosexual men female sexual identity held applicant duty hide occasion past could future dress man 87 case law uk remains unsettled sexual orientation accepted definitively qualifying particular social group 1999 jurisprudence jurisdiction complicated fact immigration appeal tribunal may consider whether applicant face risk persecution conventionandwhether returned face torture inhuman degrading treatment article 3 european convention protection human right ecpr breach ecpr right right family life privacy article 8 88 appears recent decision article 8 could prevent refoulment applicant would returned sending country suppression necessary ensure freedom persecution would break sex relationship 89 7 particular social group defined since early australian decision establishing lesbian gay men may constitute particular social group term refugee jurisprudence little analysis contour social group particular claim regard lesbian gay men treated differently others claiming basis membership particular social group careful analysis high court set model claim particular social group ground inapplicant 90 taken case lesbian gay men instead rrt federal court treated particular social group homosexual country origin given one sense important advantage lesbian gay claimant proving existence social group may little cohesion organisation voice may indeed officially non existent sending country would difficult even impossible hurdle many applicant 91 automatic ascription membership particular social group may reflect inability imagine society gay men lesbian perceived socially distinct discriminated basis non conformity societal norm around family gender sexuality experience identity category around sexual orientation may vary widely around world argue ascription group identity status sexual orientation correct refugee law sexual identity universal 92 rather sexual identity proscription around vary enormously thereisa unifying feature context continuum disapprobation persecution directly connected non conformity heterosexual norm 93 may culturally relative experience sexual orientation male male sex circumstance acceptable always point rejecting marriage identifying gay taking non conforming gender identity tolerance end persecution sex attracted individual begin however using broad particular social group category odds approach particular social group claim contour social reaction group question analysed detail keeping view existence particular social group given refugee claim question fact determined case 94 inreg v iat ex parte shah hereinaftershah 95 approved high court inminister immigration ethnic affair v khawar 96 lord steyn stated principle thus generalisation position woman particular country place regard issue refugee status everything depends evidence finding fact particular case 97 existence marginalised group labelled homosexual assumed analytic opportunity consider group constituted identified discriminated persecuted particular society may lost decision maker seemingly assumes place homophobic discrimination familiar quantity rather considering social place social group 98 omitting analysis discrimination operates social group identified given setting rrt discretion jurisprudence led confusing slippage group definition particular social group broadly defined rrt since 1994 homosexual inherent characteristic fundamental human dignity interest group use theward 99 language narrowed defining private sexual activity 100 sexual identity sex relationship emphatically public expression sexual identity protected ground tribunal narrowly defined experience lesbian gay life always sex sense group implicitly defined two different way within decision homosexual group purpose eligibility question persecution nexus raised narrower group person wanting sex intercourse secretive possibly anonymous circumstance category assessment view best way resolve tension broad narrow definition group question follow high court jurisprudence define group broadly homosexual ass persecution nexus appropriate understanding diversity experience identity captured category keeping justice mchugh approach inapplicant describes potentially eligible social group disparate character continues distinguishes member person country common attribute societal perception stand apart 101 group set apart basis ofexternal perception 102 without discrimination core logic refugee definition would present error allow label homosexual lead conclusion member group experience express sexuality identity even similar way label product discrimination oppression identity name important therefore use two principle analysis first follow existing jurisprudence bynotrequiring member group must experience persecution second ensure evidence member group taken necessarily applicable member first point well supported lead directly second convention mandate individual future looking analysis persecution question must whetherthis individualfaces real chance persecution individual return homeland affected finding member group persecuted united nation high commissioner refugee unhcr state applicant need demonstrate member particular social group risk persecution order establish existence particular social group ground necessary establish person political party ethnic group singled persecution certain member group may risk example hide shared characteristic known persecutor cooperate persecutor 103 emphasis added unhcr clearly averted issue discretion found place law question whether member group must risk house lord inshah 104 strongly rejecting proposition lord steyn stated regard established depending evidence homosexual may country qualify member particular social group yet homosexual may able escape persecution relatively privileged circumstance circumstance mean social group homosexual cannot exist historically even brutal repressive regime individual targeted group able avoid persecution nazi germany stalinist russia example spring mind treat factor negativing convention ground article 1a 2 would drive juggernaut convention 105 lord hoffman used particularly evocative language suppose oneself germany 1935 discrimination jew general jew persecuted conform discriminatory law wear yellow star door forth go ordinary business contravene racial law persecuted persecuted ground race opinion plainly therefore fallacy say member class persecuted follows persecution cannot ground membership class 106 lord steyn hoffman writing majority opinion followed principle set australian high court inapplicant 107 argument protection hiding collaborating economic privilege negate refugee status others fit within high court framework high court decision inkhawar 108 also allows possibility although finally determined court matter returned rrt fact argument inshah 109 forced issue whether need persecuted debate whether group question ought framed broadly woman pakistan narrowly woman pakistan suspected adultery unprotected male relative tension broadly defined group narrowly defined one parallel implicit tension much rrt decision making homosexual narrow construction men woman wanting sex intercourse secretive possibly anonymous circumstance resolution house lord offer instructive majority found relevant group woman pakistan also found narrow construction result inappropriate analysis nexus issue refugee definition question whether persecution reason group membership 110 established member group need fear persecution one refugee nexus issue force narrow definition group resolved reason particular social group defined broadly homosexual question persecution nexus group definition must analysed light variety experience identity broad label encompasses analysing way lead necessarily conclusion discretion requirement wrong law individual may choose attempt escape persecution refugee protection denied make choice gay man lesbian life socialises partner persecuted choice must protected matter fundamental human right way jewish person 1935 refuse wear yellow star persecuted choice discriminatory law mandate gay men lesbian must remain closeted order protect moreover discretion requirement also many context impossible fact question never answered decision made day new social situation country evidence bangladesh indicates sex activity may ignored men partner young married gay identified standard almost certainly apply woman even men get older status closeted may shift whether choose one may able maintain closeted life country bangladesh week month year unconscious gesture inquisitive neighbour 20 year cohabitation friend change heart render state closeted ness always potentially permeable one many lesbian gay asylum seeker country varied malaysia india bangladesh iran testify remain unmarried adulthood would interpreted evidence homosexual expose risk arguable culture even applicant desperately wish take possible step remain closeted fact become increasingly visible passage time gail mason criminologist written extensively homophobic violence argued never possible completely closeted likely never possible completely safe homophobic violence 111 refugee decision maker understood closeted open static self contained opposing state one uk case openly gay man pakistan argued would danger returned tribunal court appeal held notreallyout neither work colleague family knew gay hence reasoned accomplished closeted still viable option imposed upon 112 using narrow particular social group based upon definition open closeted also problematic reason tribunal tended assume applicant closeted past always remain disregarded future focus assessment persecution holding therefore safe 113 moreover applicant facing tribunal unlikely assert confronts societal norm decision maker especially decision maker labelled conduct value laden negative term flaunting creating embarrassing public situation 114 elicited information applicant expression identity questioning whether behave modestly appropriately refugee claimant context would courage assert future risk belonging open particular social group defined court choose nevertheless adopt narrower particular social group taking factor secrecy definitional group alternatively submit case applicantss396 s395 appropriate narrowly defined social group consider bangladesh men sex men rather gay men committed cohabiting relationship male partner unmarried beyond age societal norm men marry 115 independent country information show risk persecution k r increase time remain unmarried defining group way would create alternative mean avoiding pitfall inappropriate evidence 116 tribunal frequently used broad homogenous category determine eligibility utilised country information broadly drawn group find danger persecution discretion acceptable evidence frequently drawn relevant quite distinct group married men anonymous gay sex park may reflect applicant position applicant case hand gay identified man cohabiting gay relationship group broadly drawn possible tribunal court treat group identically apply evidence one situation 117 8 conclusionthe discretion requirement take focus away persecution revers onus instead question reasonable applicant behaviour extent live life secrecy fear discretion standard arguably distracts decision maker properly dealing real issue front real chance future persecution requirement discretion discriminatory antithetical central aim refugee convention asylum claim ground suppression key aspect claimant identity expression core human right held constitute persecution requirement rejected many key refugee receiving nation tribunal intermediate court level high court take opportunity eliminate discretion standard australian jurisprudence provide international leadership point effective way maintain broadly defined social group clearly establish every member particular social group need persecuted feared harm convention reason canada research chair migration law associate professor faculty law university british columbia senior lecturer faculty law university sydney thanks tiffany hambley research assistance paper 1 2002 fcafc 129 renamed file number asapplicants s396 2002 s395 2002 leave appeal matter heard ass114 2002 s115 2002 leave appeal transcript available online http www austlii edu au au hca transcript 2002 s115 1 html accessed 30 january 2003

R v Bloem [2008] VSC 266 (16 July 2008).txt

r v bloem 2008 vsc 266 16 july 2008 last updated 16 july 2008in supreme court victorianot restrictedat melbournecriminal divisionno 448 2007the queenplaintiffvjohn andrew bloemdefendant judge whelan jwhere held melbournedate hearing 5 10 13 16 17 19 20 23 4 june 2008date ruling 16 july 2008case may cited r v bloemmedium neutral citation 2008 vsc 266 criminal law jury charge manslaughter intentionally recklessly causing serious injury concurrent application self defence principle thecrimes homicide act 2005and common law applicable test use force relating prevention commission crime apprehension criminal appearance counselsolicitorsfor plaintiffmr j saunderssolicitor public prosecutionsfor defendantmr h masonrobert stary associateshis honour 1 throughout course trial heard submission time time issue raised evidence concerning self defence crime homicide act 2005 concerning principle applicable accused act attempt prevent crime apprehend criminal 2 prior commencement address indicated course proposed follow charge counsel prosecution defence agreed course publish reason briefly record adopted course 3 presentment matter charged accused manslaughter intentionally causing serious injury recklessly causing serious injury significant issue self defence accused maintained amongst thing relevant time acting defend threat person deceased whose death resulted manslaughter charge complainant whose injury resulted charge 4 various time course evidence potential issue raised concerning defence property rather accused person concerning conduct accused order prevent crime apprehend criminal also least point trial potential issue raised concerning ejectment trespasser 5 accused gave evidence trial evidence simplified narrowed relevant issue completion evidence indicated counsel analysis position issue ejectment trespasser arise counsel agreed analysis 6 also indicated addition self defence sense defence person issue arose relation principle applicable accused acting prevent robbery issue arose relation principle applicable accused acting apprehend criminal relation robbery issue arose accused referred apprehension robbery call made 24 whilst incident occurring coupled concern robbery concern relation personal safety one point evidence 1 three point evidence referred motivation relevant time either enable police catch deceased complainant red handed apprehended 2 7 relation issue self defence sense defence person directed jury accordance 9ae crime homicide act 2005 8 case one point least potential issue raised concerning concurrent application statute common law area self defence dealt previously r v pepper 3 coghlan j r v gould 4 self defence statute differs common law relation intoxication operation 9aj statute code may differ common law defence property included within concept self defence 9 relation manslaughter difficult see common law statute operate together issue intoxication seems concurrent operation would really amount ignoring statute matter transpired unnecessary rule issue issue intoxication arose 10 charged jury issue self defence relation manslaughter accordance 9ae circumstance relevant difference principle applying charge explained principle jury way relation charge alternative 11 relation issue raised evidence suggesting defence property conduct prevent crime apprehend criminal carefully considered full court decision r v mckay 5 mindful decision zecevic v director public prosecution vic 6 r v portelli 7 12 fact mckay way analogous fact case lowe j held concept self defence extended defence property held accused three relevant right protection property discharge duty prevent commission felony discharge duty apprehend felon 8 dean j said necessary decide exact nature relevant right assumed purpose decision accused found guilty reasonable doubt whether honestly reasonably believed shooting felon necessary 9 13 smith j dissented relation decision particular case analysis relevant principle view inconsistent analysis majority assistance held two stage test first stage necessity accused must believed reasonable ground believing necessary 10 second stage concerned proportionality interaction self defence prevention felony felony concern property smith j said

Maritime Union of Australia v Ausbulk Limited [2008] SAIRC 67 (17 October 2008).txt

maritime union australia v ausbulk limited 2008 sairc 67 17 october 2008 last updated 5 november 2008maritime union australia v ausbulk limited 2008 sairc 67industrial relation court sa maritime union australiavausbulk limitedjurisdiction 719workplace relation act 1996file 2206 2008hearing date 15 september 2008judgment industrial magistrate ardliedelivered 17 october 2008catchwords application imposition penalty alleged breach ausbulk limited port adelaide terminal enterprise agreement 2005 respondent paying worker loading 30 respect weekday evening work applicant contended weekday evening work regarded overtime payable rate time half first two hour double time thereafter held respondent correctly applied term ausbulk limited port adelaide terminal enterprise agreement 2005 bulk handling grain award application proved therefore dismissed 719workplace relation act 1996 i health support service pty ltd v duthie 2007 sairc 94dohrmann kennedy vaughan v bell potter security ltd 2008 sairc 3golden plain fodder australia pty ltd v perkins 2004 saircomm 20meat industry south australia award 2003 sairc 30iron steelworks employee australian iron steel ltd port kembla award1957 ar 429the metal trade employer association v amalgamated engineering union ors36 car 534the electrical trade union employee queensland united group ltdb 2006 195 queensland industrial relation commission queenslandgovernment industrial gazette185 3carr or v dairy farmer pty ltd 2003 sairc 70 commissioner public employment v collins 2002 sairc 18australian liquor hospitality miscellaneous worker union v broadlex cleaning australia pty limited 1997 78 ir 464representation counsel applicant mr atsrespondent mr shortsolicitors applicant lieschke weatherillrespondent minter ellisonintroduction1the applicant seek imposition penalty pursuant tos 719 1 theworkplace relation act 1996 eligible court may impose penalty person person bound applicable provision person breach provision 2section 717of act indicates thateligible courtmeans industrial relation court south australia 3the party agreed issue court come whether employee regarded working overtime paid accordingly whether engaged night shift attracted loading 30 4the party agreed theausbulk ltd port adelaide terminal enterprise agreement 2005 2005 agreement applied employee question 2005 agreement read conjunction relevant award party agreed relevant award thebulk handling grain award award summons particular claim5the particular claim detailed hour worked two employee respondent marky hornby brenton crosby particular indicate whenever hornby crosby undertook weekday evening work respondent regarded work attracting loading 30 6the calculation attached summons presume weekday evening work performed hornby crosby overtime entitled paid time half first two hour weekday evening work double time thereafter respect work 7 00 pm ordinary working day 7 00 following day summary evidence adduced hearing7hornby employed respondent 23 year described position occupied general hand multi skilled 8prior 1 october 2006 worked twelve hour shift four day four day involved four day day shift twelve hour followed four day every third week night shift performed 9prior twelve hour shift worked 1 3 arrangement whenever work required done current system since october 2006 10currently pattern work look roster afternoon ascertain shift working next day 1 11his attention drawn calculation attached summons reference particular day indicated time time would work equivalent eight hour 2 12hornby worked arrangement hour bank total number hour hour bank 2 700 agreed worked le 2 700 hour year still paid 2 700 hour work worked 2 700 hour benefited penalty payment hour worked excess 3 13crosby worked respondent since 1990 also multi skilled working numerous different job 14crosby referred calculation attached summons detailed hour alleged worked respondent reference made 27 june 2007 day worked 4 5 hour commencing 2400 terminating 0430 12 midnight 4 30 far hour bank concerned credited working 5 85 hour 4 5 multiplied 1 3 4 15consistent hornby evidence crosby indicated found looking work roster posted daily lunchroom hour would working following day 16the present arrangement minimum eight hour per shift rostered work le eight hour 17he made reference conversation michael hill presence jamie newlyn concerning minimum requirement eight hour shift thought conversation occurred harvest finished 2007 around february march hill response would take matter eamon sullivan 5 18the total number hour hour bank 2 700 knowledge approach employee number hour hour bank reduced 6 19his understanding 1 3 arrangement rate payment hour bank 2 700 hour reached meant 30 loading night shift 7 20o sullivan industrial relation manager respondent occupied position approximately six half year behalf respondent involved negotiating enterprise agreement included 2005 agreement 8 21he gave explanation process involved leading finalisation site agreement year involved number meeting minute meeting also schedule thing done reported back next meeting culminating agreement turn presented industrial relation commission approval 22the hour bank system relates core terminal operator total number hour 2 700 employee paid equal weekly instalment based annualised salary 2 700 hour indicated hour bank introduced included pre paid overtime shiftwork superannuation paid greater figure annualised salary said start negotiation agreement offer made employee wish work le hour corresponding le salary opportunity indication want money hence total hour bank altered 9 23when employee exceed 2 700 hour course year go 1 3 rate paid hour worked addition 2 700 hour 10 24employees fixed hour work guaranteed hour per day per week per month guaranteed annualised salary employee commitment make available 2 700 hour respondent commitment pay 2 700 hour whether hour worked hour bank start first full pay period 1 october year hour worked come hour bank appropriate rate 11 25the nature respondent operation requirement flexible hour need flexibility arises ship come go different time rail also come go different time need flexibility reason respondent introduced 24 7 rostered shift enabled employee get wage every single week year avoid weekly pay going depending hour worked ultimately amount grain meant respondent could justify 24 hour day seven day week operation caused change back total hour bank system 12 26he could find reference core employee requirement minimum eight hour night shift reference could find stipulated casual employee minimum four hour permanent part time employee minimum eight hour 13 27he aware cl 6 6 2005 agreement concerning public holiday work contemplates employee working shift six hour also indicates le six hour 28he recalled employee working night le eight hour prior introduction 24 7 shift 29michael lucas operation coordinator respondent port adelaide site employ respondent 28 year 30a daily list operation would put together logistics person cover area business information would form basis roster shift supervisor would allocate labour hour work varied operation varied 14 31ideally respondent endeavour manage employee work 2 700 hour rather le hour work exceed 2 700 payment 1 3 hourly rate come play site supervisor look actual hour bank employee 15 32currently night shift take place required specifically relation mineral sand work employee may rostered work shift four hour aware minimum number hour core employee relation rostered shift 16 33goran radoicic employed respondent since 1993 electrician trade organises general maintenance port adelaide site 34since 1997 member enterprise bargaining committee represented workshop group employee attends meeting negotiates agreement also attended industrial relation commission 35he said aware minimum length shift agreement core employee 17 current negotiation new enterprise agreement discussion many hour minimum worker called perform casuals support staff minimum engagement core employee 18 36michael hill employed respondent 30 year business manager port adelaide 37in role business manager overall responsibility port adelaide shipping terminal includes receival turn grain safety finance people 38he currently involved negotiation new enterprise agreement nothing raised current negotiation concerning rate pay employee working night referred discussion regarding core employee minimum engagement discussion part enterprise agreement negotiation 19 39he specific recollection crosby raising issue minimum length shift anytime 2007 conceded may raised 2007 discussed industrial relation manager whether shift le eight hour could run legal opinion obtained 20 specifically content discussion referred crosby put position recollect discussion could say happen 21 outline applicant position40the applicant provided written outline well making oral submission outline argument1 ultimate question court determine establish whether respondent breached relevant industrial instrument relation application relevant industrial instrument theausbulk limited port adelaide terminal enterprise agreement 2005 hereafter agreement potentially thebulk handling grain award hereafter award whether relevant factual circumstance weekday work beyond spread hour prescribed agreement treated overtime applicable penalty rate applied subject shift penalty rate 2 relevant factual circumstance term time shift worked duration shift exemplified record affixed summons whilst respondent dispute accuracy record accepts reflect time length work performed time time greater particularity required determine question liability 3 clause 6 3 agreement indicates dichotomy continuous operation arrangement referred evidence variously 24 7 4 4 agreement rostered shift overtime work performed beyond spread hour set clause 6 1 1 agreement arrangement pursuant appendix four place shift roster 24 7 continuous work roster work remunerated overtime arrangement notification weekday overtime clause 6 3 1 agreement notification arrangement applied respondent relation period subject application 4 construction advanced paragraph 3 mean ultimate question matter resolved without reference award 5 following contention submitted alternative 6 matter resolved purely reference agreement consideration award required particular clause 6 3 6 4 award 7 evidence disclosed workplace term shift used distinguish example overtime work incurred shift loading used informal sense simply refer number hour worked 8 clause 6 3 indicates respect shift worker overtime payable period worked outside ordinary hour clause 6 3 1 6 clause 6 3 6 4 award must read together read together clear overtime overtime due time day night worked shift work reference time shift completed contemplated distinguishing characteristic dictate whether work performed overtime pursuant clause 6 3 shift work pursuant 6 4 whether performed shift worker shift worker person worked afternoon night shift time time clause 6 3 would left little work purpose shift worker mean working shift shift purpose shift worker mean permanent least semi permanent shift worker interpretation mean clause 6 3 1 6 award rendered nugatory 9 authority referred submission suggest absence clear award agreement provision contrary 9 1 break performance work work shift work and9 2 regularity indicative shift and9 3 length stretch work indicative whether shift 10 agreed time time break performance work indicates work shift record affixed summons evidence indicates work irregular evidence indicates short period work example period four hour relation mineral sand worked 11 even court find work performed outside spread hoursper seshould remunerated overtime court find short period work example four hour period work followed cessation work remunerated overtime 12 basis asserted presumption legality weight placed upon asserted custom practice 13 contention multiple roster document evidence 14 court jurisdiction pursuant section 11 thefair work actin application pursuant tosection 719of theworkplace relation act extent evidence led answer description section 11 2 thefair work act irrelevant without weight apparent lack action seek amendment relevant agreement provision irrelevant weight 15 court find 15 1 work performed beyond spread hour remunerated overtime alternative 15 2 work performed outside spread hour break performance work remunerated overtime and15 3 work performed duration shorter eight hour remunerated overtime outline respondent position41the respondent provided written outline well making oral submission 1 issue matter relates whether employee dealt clause 6 4 bulk handling grain award company contends clause 6 3 mua contends 2 hornby crosby level 5 terminal operator core employee company contends non 24 7 shift worker 3 clause 2 1 ausbulk ltd port adelaide terminal enterprise agreement 2005 provides agreement read conjunction relevant award agreement silent award operate 4 clause 6 agreement deal overtime however set overtime rate see clause 6 2 5 therefore turn award clause 6 bulk handling grain award relevant clause 6 4 award deal shift work clause 6 3 award deal overtime shift worker 6 clause 6 4 2 award give employer right require employee work shift opinion employer reasonably practicable carry operation employer without shift work 7 appendix 1 4 2 agreement make clear company right select core employee extraordinary shift overtime non 24 7 shift shift worker available company make employee working shift shift worker 8 company applied clause 6 4 award relation rate pay accordance 6 4 4 employee work nightshift first 8 hour receive 30 loading received time half first 2 additional hour double time thereafter per 6 4 3 9 hornby crosby shift worker seen number shift worked set annexure particular claim apparent employer answer paragraph 5 correct calculation applied consideration42the party agreed relevant industrial instrument 2005 agreement award 43the party also agreed issue determination whether work question appropriately remunerated night shift whether work regarded overtime 44the respondent outline contended court could avail interpretative jurisdiction contained in 11of thefair work act 1994 fwa particular argued evidence available court author relevant part award enterprise agreement party award enterprise agreement intended mean drafted irrelevant without weight 11 2 fwa 45this court eligible court 717workplace relation act 1996 wra asked impose penalty person person bound applicable provision person breach provision necessarily involves interpreting provision 2005 agreement relevant award 46the mean industrial instrument 2005 agreement award became enforceable wra considered full court industrial relation court south australia 22 section 717of wra defines applicable provision include award collective agreement full court induthiedecided state industrial instrument enforceable wra reason amendment wra took effect 27 march 2006 47i previously considered slightly different context jurisdiction court relation hearing determining claim enforceable wra 23 refer generally comment made para 16 20 whilst said made context enforcement right arising contractual entitlement due common law view court entitled utilise provision ofs 11of fwaand thereby exercise jurisdiction interpret award enterprise agreement evidence readily available court author party 2005 agreement award intended mean drafted approach taken construing 2005 agreement award expanded upon 48the 2005 agreement provides cl 2 1 2 read conjunction relevant award provided inconsistency agreement life agreement take precedence award 49the 2005 agreement end result negotiation carried party agreement applicant respondent full commission ingolden plain fodder australia pty ltd v perkins 24 cause consider premise australian workplace agreement construed commission regarded awa product negotiating party consider 2005 agreement construed along line full commission adopted considering awa view expressed full commission awa largely construed way contract would construed 25 50the task identify reasonable people position party would taken particular term contract mean 26 51the starting point construing relevant provision award consider word used ordinary natural meaning context 27 52hornby crosby core employee appendix 1 2005 agreement contains term condition employment core employee core employee paid annualised salary according formula appendix 1 2 53both hornby crosby worked described hour bank system formula appendix 1 enables total hour hour bank calculated namely 2700 appendix 1 3 1 54included 2 700 hour 620 ordinary hour equivalent described overtime component 55core employee paid 2 700 hour whether hour worked appendix 1 5 1 relevant period commences 1 october year terminating 30 september following year core employee worked 2 700 hour prior end relevant period rostered work paid flat 1 3 annualised rate appendix 1 5 2 56a roster meant maintained consisting employee name total hour remaining worked year roster posted terminal notice board week week basis appendix 1 4 1 57clause 6 1 2005 agreement deal hour work 58the normal spread ordinary hour 7 00 7 00 pm monday friday inclusive cl 6 1 1 greater span hour provided award 8 00 5 00 pm cl 6 1 1 need flexibility given nature respondent business within span ordinary hour normal start finish time expressed 7 30 4 00 pm cl 6 1 4 however start finish time may varied way work roster posted notice board end shift day prior cl 6 1 2 hornby crosby indicated referred roster posted daily ascertain hour would working following day 59within spread ordinary hour namely 7 30 4 00 pm first eight hour worked paid normal hourly rate cl 6 1 5 confirmation penalty rate overtime apply eight hour worked 60further confirmation overtime apply eight ordinary hour worked contained cl 6 1 6 indicated start finish time may varied clause 6 1 6 state employee worked period eight ordinary hour accordance clause commenced later established starting time required work overtime overtime paid normal penalty rate clause 6 1 6 1 give working example application clause example arrival rail receivals later normal terminal commencement time envisages employee required unload rail may start time delayed coincide arrival rail 61clause 6 2 2005 agreement entitled overtime calculation overtime provides information clause 6 3 2005 agreement entitled ordering cancelling time overtime continuous operation evidence respondent ceased 24 hour day seven day week operation reverted total hour bank system view cl 6 3 2005 agreement application given present system work 62both hornby crosby indicated found looking work roster posted daily lunchroom hour would working following day also understood minimum eight hour per shift could rostered work le eight hour example given hour work le eight outside normal start finish time spread ordinary hour referred cl 6 1 2005 agreement respondent asserted 2005 agreement silent far rostering payment work concerned reference need made award 63clause 6 3 award deal payment condition time worked outside ordinary hour award defines 8 00 5 00 pm monday friday inclusive 2005 agreement expands 7 00 7 00 pm clause 6 3 1 award read together cl 6 1 1 award make clear overtime apply employee worked period eight ordinary hour also reinforced cl 6 3 1 1 cl 6 3 1 4 award 64crosby hornby rostered respondent work 7 00 pm ordinary working day 7 00 following day example relation crosby 27 june 2007 commenced work 12 midnight terminated 4 30 according applicant period work regarded overtime payment made time half first two hour double time thereafter 65appendix 1 2005 agreement stated refers term condition employment core employee appendix 1 4 2 indicates operation coordinator select core employee overtime extra ordinary shift basis skill required remaining total hour worked clause 6 4 award deal shift work nightshift defined shift finish midnight 8 00 cl 6 4 1 award ordinary hour shift exceed eight excess paid rate time half first two hour double time thereafter cl 6 4 3 employee engaged nightshift paid additional 30 cl 6 4 4 66were hornby crosby engaged nightshift applicant took view shift worker meant permanent least semi permanent shift worker certain authority referred suggested regularity indicative shift well length work whether break performance work 28 67the system prevails respondent work site people rostered day next day work nature worksite requires flexibility due arrival rail ship require loading unloading different service therefore required provided different time day full court industrial relation court south australia considered shift work shift worker 29 conclusion reached notion shiftwork often involves rotation employment successive group employee always concern employment type rostering system used respondent imply rotation employment successive group employee rather predetermination time particular employee employee work 30 68the roster notifies shift performed shift performed understand calculation attached summons time came within definition night shift set cl 6 4 1 award appropriate rate apply additional 30 night shift hour shift exceeded eight hour excess paid rate time half first two hour double time thereafter cl 6 4 3 award 69the respondent complied term 2005 agreement read conjunction award application seeking imposition penalty respondent established therefore dismissed order70the application dismissed publication reasonsit practice court publish reason decision full internet party person contends reason decision published full party person must make application within seven day delivery reason application shall application direction supporting affidavit addressed presiding member application lodged within time specified reason published accordance court usual practice 1 see tr 11 2 see tr 12 3 see tr 17 18 4 see tr 24 5 see tr 26 6 see tr 30 7 see tr 30 8 see tr 34 9 see tr 39 10 see tr 40 11 see tr 40 12 see tr 40 41 13 see tr 41 14 see tr 52 15 see tr 54 16 see tr 55 17 see tr 60 18 see tr 60 19 see tr 66 20 see tr 66 21 see tr 68 22 i health support service pty ltd v duthie 2007 sairc 94at para 5 9 inclusive 23 dohrmann kennedy vaughan v bell potter security ltd 2008 sairc 3 24 2004 saircomm 20 25 golden plain fodder australia pty ltd v perkins 2004 saircomm 20at para 34 26 golden plain fodder australia pty ltd v perkins 2004 saircomm 20at para 34 27 meat industry south australia award 2003 sairc 30paras 11 12 28 iron steelworks employee australian iron steel ltd port kembla award1957 ar 429 metal trade employer association v amalgamated engineering union ors36 car 534 electrical trade union employee queensland united group ltdb 2006 195 queensland industrial relation commission queensland government industrial gazette 185 3 page 12 22 andcarr or v dairy farmer pty ltd 2003 sairc 70 29 commissioner public employment v collins 2002 sairc 18and particular para 23 24 30 australian liquor hospitality miscellaneous worker union v broadlex cleaning australia pty limited 1997 78 ir 464per moore j pp 466 467

"Foreword" [2018] ELECD 1087; in Salter, Raya; Gonzalez, G. Carmen; Kronk Warner, A. Elizabeth (eds), "Energy Justice" (Edward Elgar Publishing, 2018) xv.txt

foreword 2018 elecd 1087 salter raya gonzalez g carmen kronk warner elizabeth ed energy justice edward elgar publishing 2018 xvbook title energy justiceeditor salter raya gonzalez g carmen kronk warner elizabethpublisher edward elgar publishingisbn 9781786431752section title forewordnumber page 2extract foreword robert bullard climate change number one problem time sometimes forget climate change much simply part per million greenhouse gas emission distinctive feature climate change population contribute least problem climate change likely feel gravest impact disproportionality make serious social justice human right issue climate change also complex issue solve global issue national issue local issue time one reason energy justice important complex issue climate change thing say certainty one energy specifically use fossil fuel brought u brink climate catastrophe importantly cleaning use energy way planet represents huge technological policy challenge also urgent justice challenge build principle equity clean energy related infrastructure investment must made mitigate climate change adapt also ensure energy access energy security world citizen finally acknowledge even correct sin past energy infrastructure decision making one future

Certain Lloyds Underwriters Subscribing to Contract No IH00AAQS v Cross & Ors; State of New South Wales v Williamson [2011] HCATrans 340 (9 December 2011).txt

certain lloyd underwriter subscribing contract ih00aaqs v cross or state new south wale v williamson 2011 hcatrans 340 9 december 2011 last updated 12 december 2011 2011 hcatrans 340in high court australiaoffice registrysydney s256 2011b e w e e n certain lloyd underwriter subscribing contract ih00aaqsapplicantandjohn crossrespondentoffice registrysydney s257 2011b e w e e n certain lloyd underwriter subscribing contract ih00aaqsapplicantandmark george thelanderrespondentoffice registrysydney s258 2011b e w e e n certain lloyd underwriter subscribing contract ih00aaqsapplicantandjill maria thelanderrespondentoffice registrysydney s259 2011b e w e e n state new south walesapplicantandjayson williamsonapplications special leave appealfrench cjgummow jbell jtranscript proceedingsat sydney friday 9 december 2011 10 06 amcopyright high court australiamr r j h darke sc may please court appear learned friend mr j stevens applicant s256 2011 s257 2011 s258 2011 instructed riley gray spencer lawyer mr j b simpkins sc court plea appear withmr f villafor applicant s259 2011 instructed crown solicitor nsw mr r mckeand sc please court appear learned friend mr c casseldenandmr f l austin respondent s256 2011 s257 2011 s258 2011 s259 2011 instructed g h healey co byles anjos lawyer french cj mr mckeand might assist could hear first think say special leave granted mr mckeand significant point going suitability vehicle legislation point arises legislation peculiar new south wale operation effect word decision proper construction interplay thecivil liability actin relevant cost limiting provision thelegal profession actwould affect state common ground particular context legislation particular issue limited utility reform introduced thecivil liability actand carried cost aspect thelegal profession actare nature constantly amended thecivil liability act indicated argument amended many time ultimately significant point put appeal putting aside technique employed court appeal judge result obtained would agree result sense apparent purpose thecivil liability actor thelegal profession actto cover intentional tort proposed amendment reflected judgment way made comment case made comment fairness result go two sens one far result concerned would left matter appropriate legislature make change aspect result apparently within purpose legislative intention tension literal approach contextual approach second appeal two judge gave alternative reason justice campbell macfarlan took view literalism prevailed clear indication context respect seems run counter view judge including justice hodgson opportunity consider view justice campbell macfarlan counter sense putting aside question extraneous material may debate light said inbyrnes v kendleby justice heydon crennan use extraneous material putting aside purpose think seen judge general contextual sense interplay two act reform law relation process dealing common negligence claim purpose limited clearly indicated exclusion certain act particular exclusion intentional tort element thecivil liability act end result court appeal fair circumstance accord purpose scheme two piece legislation sense lack merit alternative argument french cj going merit question suppose purpose carving term personal injury damage defined section 11 thecivil liability act reference class personal injury damage relate intentional tort already distinct provision lift application part 2 excise application part 2 class damage word construction personal injury damage adopted first court appeal would seem render non application provision otiose mr mckeand answer obviously clear overlap purpose section 11 11a dealing exclusion suppose otiose sense covered 3b event seems least benefit clear purpose emphasising tort considered relation personal injury damage part 2 put way tends emphasise emphasise harm emphasise exclusion part 2 one central concern tends dealing thecivil liability actwhich specifically dedicated application principle litigation negative point say said justice campbell macfarlan negative point say difference meaning word application application crucial way part 2 operates part deal application otherwise common law principle certain type litigation term strength argument whilst undoubtedly arguable particularly light two judge taken particular view respect argument readily met consideration one comment made approach justice campbell macfarlan came le joint conclusion nothing sufficiently clear context override saw literal construction literal construction nevertheless acknowledged troubled one simple literal construction two put written submission context great importance context go back first point amending reforming statute deal common law process limit particular situation basically claim negligence specifically excludes intentional tort intent cause injury context one trouble finding word meaning context would incorporate anything included intentional tort french cj thewilliamsonmatter also antecedent question scope concept damage injury false imprisonment concerned mr mckeand yes honour case element touch upon suitability vehicle particular one thecrossdecision maintained issue fall away question utility would lose event general comment relation lack clarity law particular regard nothing contrary think nothing put contrary fact false imprisonment example simple form involves element personal injury damage actionable right form trespass person one would see appropriate question vehicle review court also complicating factor thecross casethat render le likely appropriate vehicle doubt particular version thelegal profession actthat applied circumstance incross different view expressed justice campbell justice hodgson justice campbell paragraph 23 judgment justice hodgson paragraph 2 justice sackville decide question bell j anything turn mr mckeand point one point yes nevertheless put element appeal forcrossand regarded appropriately case may render le suitable vehicle honour referred going back contextual point appropriateness consideration general purpose policy context citingproject blue skyandcommissioner railway v agalianos add recent decision court inwestport insurance v gordian runoffwhich decided 5 october year cited passage chief justice dixon inagalianos wind argument context one would suggest respect look reform enacted thecivil liability actwhich created change thislegal profession act overriding dominant element reform deal area tort law specifically negligence specific exclusion intentional tort would curious respect sense purpose defeated literal say strained literal interpretation interplay ofsection 337in current legislation section 3b part 2 thecivil liability act respectfully would suggest matter best left stand matter rather intricate legislative interplay area constantly reviewed would best left legislature resolve content existing resolved french cj inherently unstable law mr mckeand indicated statistic amended one 20 27 time since 2002 whilst appreciate court view obligation interpret law nevertheless exclude possibility matter best left legislation french cj matter seeking special order cost basis test case benefit insurer response mr mckeand state state accepted obligation court appeal know specifically accepted case would follow would response thecrossappellants may please court french cj yes right thank mr mckeand hear applicant relation cost order sought mr darke content agree condition sought respondent french cj yes mr simpkins mr simpkins also position court plea french cj right subject condition grant special leave take longer say half day maybe day mr darke certainly day would thought honour french cj probably le optimistic right grant special leave draw attention printed direction time filing written submission extended little regard christmas break coming 10 24 matter concluded

Walker v Chanrich Properties Pty Ltd [2003] NSWSC 1064 (19 November 2003).txt

walker v chanrich property pty ltd 2003 nswsc 1064 19 november 2003 last updated 19 november 2003new south wale supreme courtcitation walker v chanrich property pty ltd 2003 nswsc 1064current jurisdiction equity divisionfile number 1908 03hearing date 10 11 november 2003judgment date 19 11 2003parties andrew peter walker aurora walker p chanrich property pty ltd hi return investment pty ltd judgment young cj eqlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel j b whittle sc holt p j e richards solicitor c g taylor son p storey gough catchword contract 135 rescission contract buy plan special condition vendor take reasonable step procure approval registration plan instrument community management statement reasonable would reasonable developer party right rescind special condition 30 vendor exercised right rescission whether rescission justified plaintiff seeking specific performance contract conveyancing 2 contract subject registration plan within certain period condition fulfilled whether vendor could rescind act cited sydney water act 1994 73decision plaintiff suit dismissed cost judgment supreme courtof new south walesequity divisionyoung cj eqwednesday 19 november 20031908 03 walker v chanrich property pty ltdjudgment1his honour purchaser suit specific performance 2 proceeding heard 10 11 november 2003 mr j b whittle sc miss holt appeared plaintiff miss j e richards appeared defendant argument finished 11 november insufficient time give judgment 3 defendant developer estate wahroonga 22 june 2001 party entered contract 2000 edition standard form purchase plaintiff sale defendant lot 31 estate 650 000 standard deposit 65 000 paid 4 completion special condition 34 1 within 14 day date notification registration purchaser solicitor relevant plan registered land property information office 5 special condition 30 6 follows 6 vendor shall take reasonable step procure approval registration plan instrument community management statement referred sub clause 2 condition soon practicable date hereof plan instrument community management statement approved registered date nineteen 19 calendar month date hereof either party may prior registration plan instrument community management statement rescind agreement notice writing whereupon provision condition 19 shall apply plan instrument community management statement registered prior service notice rescission either party hereto neither party shall thereafter entitled rescind agreement pursuant condition time special condition 30 6 expired midnight 21 january 2003 22 january 2003 vendor purported rescind contract pursuant 30 6 returned deposit 6 relevant plan lodged local council ku ring gai council 13 december 2002 uplifted council duly authenticated monday 20 january 2003 lodged registrar general friday 24 january 2003 registered 6 february 2003 7 seems one basic question proceeding whether vendor rely special condition 30 6 justify rescission 8 subsidiary question raised amended reply raised problem doctrine election however end case mr whittle could see point future le abandoned 9 trite law person cannot rely right rescission event given right come act omission person materially contributed event taking place see egsuttor v gundowda pty ltd 1950 hca 35 1950 81 clr 418 440 3 10 present case however slightly different line territory party special condition 30 6 made specific provision happen plan registered due date might argument first sentence special condition independent second sentence however authority similar clause ashawes v cuzeno pty ltd 1999 nswsc 1167 1999 10 bpr 18 011at 18 012 say clause 30 6 character appears express term promise breach would give rise liability damage also character condition exercise vendor right rescission breach promise also failure condition vendor rescind method approach adopted court appeal inwardy v hardy 2002 nswca 215 2002 11 bpr 20 227 11 noted however inmitchell v pattern holding pty ltd 2002 nswca 212 2002 11 bpr 20 241at 20 258 55 powell ja stein ja rolfe aja agreed said must say difficulty accepting correct approach taken bryson j inhawes construction accorded honour condition a6 appropriateness implying contract thereunder consideration term making compliance vendor condition a6 1 condition exercise right rescission 12 noticed thatwardy v hardy supra decided court appeal consisting mason p giles ja ipp aja 5 july 2002 andmitchell casewas decided differently constituted court ten day later reason one referred themitchell casehad reserved nine month 13 seems instant case two inconsistent decision court appeal decision inmitchellis accordance way hodgson ja windeyer j approached problem however present purpose merely followwardy v hardyand thus adopt course favourable plaintiff reason taking course become apparent 14 accordingly key question whether non registration plan 21 january 2003 materially contributed defendant failure take reasonable step procure registration soon practicable date contract 15 made clear authority already referred case party made provision condition governing right rescission separate category however would mistake think clause separate category identical construction clause inhawe casewas vendor must everything reasonably necessary plan registered within plan registration time bryson j said 18 015 everything reasonably necessary included preparing building application within time scale within plan registration time could complied contractual obligation commission suitable person direct obligation regard open point pressure work architect office word used admit concession inattention attending business 16 present clause require vendor everything reasonably necessary rather take reasonable step obligation procure approval soon practicable 17 mr whitte said small semantic difference two clause hand miss richards pointed difference taking reasonable step everything necessary consider miss richards submission accurate 18 dealing factor mr whittle mentioned one relied plaintiff show clause 30 6 breached necessary refer general guideline one bear mind approaching present exercise 19 plaintiff acknowledge party resisting rescission bear onus proof whether vendor material fault leading non performance condition seepulmor pty ltd v handley 1996 41 nswlr 30 20 however inhunyor v tilelli 1997 8 bpr 15 629 15 631 h mclelland cj eq fleshed statement made inpulmor caseby saying necessary however bear mind evidence weighed according proof reasonably within mean one party produce contradict particular significance respect evidentiary fact peculiarly within knowledge one party rather 21 proviso inhunyor casereceived little attention address drew attention end debate expected mr whittle said case fact defendant camp miss richards said copious affidavit side cross examination fully exposed material could reasonably expected exposed nothing principle could operate 22 counsel thought significance original draft contract contained 22 month rather 19 month however apart value negotiation statement made party solicitor contract exchanged may part factual matrix evidence little value also affected fact one would expected focus procuring registration earlier rather later word within nineteen calendar month date hereof would inserted end first sentence 30 6 rather second sentence literally effect putting word second sentence make easier vendor rescind 23 material showed essence mr fornari principal first defendant virtually project manager development thought development finished christmas 2002 acutely conscious problem occur development thought wise give breathing period original draft accepted date registration plan would 21 april deadline would met case would never come court seems date altered mr walker wanted ensure would christmas event clause seek achieve may delay exchange contract indeed evidence mr fornari contract period six week plaintiff signed t2 3 24 cannot see anything negotiation assist proper construction clause 30 6 25 although mr fornari person ultimately charge development necessarily charge project day day contract let builder builder possession site could excluded defendant site builder wished number independent contractor employed carry various aspect development though little significance view approach taken court act independent contractor present type case accounted act developer seewardy v hardy supra 26 development big development involved four stage stage 1 already implemented present subdivision part stage 2 stage 3 concern litigation stage 4 involved block stratum title home unit thus lot work done different trade semi government authority accordingly lot x factor development evidence mr fornari others case indeed court general experience sort case whole host matter go wrong development including developer considers obstruction local authority neighbour material building available appropriate contractor available work properly host problem accordingly follow merely plan registered anticipated date necessarily fault developer 27 however also common developer planning project prepare time line prepare document indicates number month anticipated drawing prepared appropriate development consent given local council time letting tender time builder work time landscaping etc estimated time completion singularly time line produced court present case mr fornari said prepared document bank contained conservative estimate time good policy let bank get idea project might finished ahead time want repaid loan fund rather extraordinary however sale made without realistic time line providing vendor basis reasonable expectation project would finished rather mr fornari seems taken view experienced developer 23 year experience developer head good idea project would finished 28 final general point made instant case reason developer delay interest project finished soon possible sale could made loan fund repaid profit maximised 29 put mr whittle factor one major factor needed overcome succeed establishing vendor taken reasonable step mr whittle reply may well self interest contractual obligation pulled one direction evidence clear mr fornari give sufficient weight contractual obligation defendant solemnly undertaken 30 mr whittle seemed fond word solemnly respect consider add anything indeed also consider tribunal fact usually person self interest greater incentive contractual obligation particularly breach contractual obligation likely lead substantial damage 31 closing address mr whittle particularised vendor failure take reasonable step four head vendor take sufficient step ensure survey done soon practicable linen plan prepared soon practicable result survey work failure put two category failure commencing survey work late time ii work started proceed slowly b delay production council final plan certificate relation landscaping c delay production extra water board certificate mr stubbs andd minor delay due extra change linen plan result survey error recognised category involved minor delay become significant case added delay 32 would intersperse plan registered 6 february rescission notice given 22 january one looking 15 16 day period delay seen balance probability 15 16 day period laid foot vendor required clause 30 6 plaintiff succeed thus may one find 14 day delay heading b c one two day period may sufficient enable plaintiff get finish line 33 also note though little bearing result whilst mr fornari experienced developer plaintiff appear high expectation experience difficulty easily occur land development 34 deal four category separately 35 noted mr whittle put complaint two category delay commencing work survey plan ii commenced work proceeding slowly 36 mr whittle say evidence show mr ward commissioned surveying work fencing 6 august 2002 however 30 september work proceeded sufficiently far mr ward believe appropriate prepare linen plan stage 2 3 4 interpolate stage 1 already completed time present contract stage 2 part subdivision involved present proceeding stage 4 stratum title home unit building 37 mr ward said mr fornari prepare lodge stratum plan apartment building lot however much point lodging linen plan housing lot fencing work substantially completed fencing line error could result linen plan complying fencing encroachment limit set community management standard mr fornari told mr ward would accept advice 38 late october mr fornari spoke mr ward said fencing completed would survey check lodge linen plan house council linen plan stage 2 3 lodged least preliminary fashion ku ring gai council 4 november 2002 21 november sent land title information known pre checking order save time later 39 plaintiff say defendant started plan least 30 september good reason follow mr ward advice put commencement three four week although say mr fornari took professional advice master situation chose course led delay 40 plaintiff relied affidavit mr surveyor dowdle say relation mr ward statement approach taken mr ward permissible time permitted imperative get linen plan registered reason surveying practice appropriate step could taken make sure fence erected correctly 41 considerable cross examination mr fornari whether could fence put presence surveyor doubt could occurred may also clause bryson j inhawes case vendor must everything reasonably necessary plan registered within plan registration time may also incumbent mr fornari ensure done despite cost however question whether expense would reasonable step procure registration soon practicable 42 miss richards say nothing show anything would achieved plan commenced earlier development way messrs fornari ward ordinary reasonable developer would done circumstance mr dowdle evidence really say possible fencing work done time surveying acknowledged whether reasonable appropriate matter mr dowdle address 43 mr ward say 6 august received instruction peg boundary point assist fencing contractor 8 august late september instructed prepare stage 2 3 4 linen plan suggested apart stratum building plan delayed fencing complete fencing work commenced 30 september survey work plan stage 2 done 9 11 october 44 miss richards also point current subdivision simple subdivision one merely involved excising plaintiff lot 31 involved 18 house unit building involved easement involved set neighbour objector subdivision land environment court evidence suggests treated kid glove 45 extensive cross examination case respect think cross examination helped one whit determine likely giving accurate account happened indeed little conflict witness plaintiff basic proposition defendant contractually bound plan registered soon practicable four aspect particularised show 46 however seem reliable evidence reasonable developer would take step proceed finalisation linen plan earlier defendant failure take reasonable step proceeding survey work registration plan 47 mr fornari cross examined effect brought mr ward attention needed get plan registered 21 january agreed added see mr ward recommending making one iota difference date registration mr whittle continued q important take contract reasonable step get land registered important q meant wanted ensure anything could done done sooner rather later got practical would achieve getting done quicker discussion larry saw going achieve sooner would twice rather q mean survey work fencing work fencing put wrong line q would perfectly possible somebody site making sure time fencer put fence right land almost always surveyor q something could done would quite impracticable q extremely expensive 48 would accept evidence mr fornari experienced developer would also accept evidence aiming plan registered december 49 really cannot see sufficient material show failure take reasonable step respect surveying linen plan 50 b turn landscaping officer ku ring gai council gave certificate landscaping m askew lady worked three day week request landed desk three day would wait perhaps four day would even come attention addition evidence showed took two day letter come council mailing system m askew desk 51 would seem late november 2002 change arrangement planting tree would act screen protecting neighbour activity development mr whittle say according m askew discussed mr bird person charge landscaping developer may well matter technicality application unders 96of theenvironmental planning assessment act1979would lodged deal variation mr bird said neighbour agreed m askew suggested view past problem put writing say 90 work completed 26 november outstanding work completed third inspection 11 december 2002 mr whittle say show delay approximately four week landscaping however one go mr bird affidavit four week get whittled away fairly smartly 52 first mr bird say first meeting m askew concerned dish drain landscaping landscaping conversation commenced 26 november asked additional work done done certificate sent council done 28 november 9 december telephone conversation m askew mr bird m askew indicated required inspection made talk neighbour 16 december sent fax m askew 17 december indicating neighbour consented m askew marked noted ra 18 12 53 seems whilst witness endeavouring give accurate version happened far likely mr bird charge project whose fax 17 december extent corroborates evidence correct rather m askew doubtless large number project plate deal three day week worked 54 cannot see raise failure vendor take reasonable step development 55 evidence october delay landscaping supplier failed deliver plant contracted however matter appear one plaintiff rely case 56 c third principal head delay involves alleged late furnishing certificate 73 thesydney water act1994 certificate stage 1 forwarded council 1 may 2001 furthers 73certificates including stage 2 forwarded council letter consulting engineer k r stubbs associate pty ltd 10 december 2002 date certificate bear 57 mr whittle say ten day delay involved furnishing certificate held processing plan busy christmas period indeed mr lam council officer dealing matter went holiday 17 december though evidence show anyone involved case actually knew intention go holiday 58 evidence miss richards point certificate could obtained earlier landscaping matter approved m askew 18 december delay involving thes 73certificates would event immaterial 59 consider established delay area 60 mentioned earlier conceded delay resulting change linen plan result small surveyor error de minimus could affected registration plan one day completely sure concession rightly made government department standard delay problem requisition made answered file go back bottom pile may take week come back top evidence light failure plaintiff establish delay head one day delay even established could significant 61 accordingly view onus plaintiff show failure vendor take reasonable step plan registered soon practicable may appeared plaintiff show 16 day appeared failure progress matter quickly possible could establish however one look evidence particularly detailed evidence provided defendant view failed make case 62 perhaps note mr whittle mr fornari admit witness box irritated purchaser behaviour led take step soon could bring contract end pleading rescission capricious ground indeed whilst may capricious rescind solely market going fact vendor purchaser get well together merely matter motive significance 63 follows proceeding must dismissed cost last updated 19 11 2003

Vagg v McPhee [2013] NSWCA 29 (22 February 2013).txt

vagg v mcphee 2013 nswca 29 22 february 2013 last updated 29 may 2014this decision amended please see end decision list amendment court appealnew south walescase title vagg v mcpheemedium neutral citation 2013 nswca 29hearing date 4 february 2013decision date 22 february 2013before basten ja 1 ward ja 24 tobias aja 25 decision appeal dismissed written submission cost filed served respondent within seven day publication reason appellant seven day respond thereto note theuniform civil procedure rule 2005provide rule 36 11 unless court otherwise order judgment order taken entered recorded court computerised court record system setting aside variation judgment order dealt byrules 36 15 36 16 36 17and36 18 party particular note time limit fourteen day inrule 36 16 catchword professional negligence legal advice connection execution whether failure explain possibility severance joint tenancy whether duty care owed deceased childrenevidence challenge factual finding assessment witness whether primary judge erred failing recognise requirement close scrutiny evidence conversation deceased person whether primary judge erred failing consider absence corroborating evidence whether primary judge erred assessment documentary evidence circumstance surrounding execution willwills estate whether term reflected instruction testatrix evidence instructionslegislation cited conveyancing act 1919land title act 1994 qld real property act 1900cases cited baira v rhg mortgage corporation limited 2012 nswca 387carr glynn v frearsons 1999 ch 326clarke v bruce lance co 1988 1 er 364fox v percy 2003 hca 22 2003 214 nswlr 118hill v van erp 1997 hca 9 1997 188 clr 159queensland art gallery board trustee v henderson trout 2000 qca 93miller v cooney 2004 nswca 380ross v caunters 1980 ch 297smeaton v pattison 2003 qca 341smeaton v pattison 2002 qsc 431watson v foxman 1995 49 nswlr 315xu v jinhong design construction pty ltd 2011 nswca 277white v jones 1995 ukhl 5 1995 2 ac 207category principal judgmentparties margaret doreen vagg first appellant benjamin john vagg second appellant julia lillian vagg third appellant cecilia anne vagg fourth appellant james gregory vagg fifth appellant paul mcphee first respondent trevor cork second respondent david dunkley third respondent steven nicholson fourth respondent representation counsel counsel p webb qc e w young appellant j c kelly sc respondent solicitor solicitor turner freeman appellant colin biggers paisley respondent file number ca13018 2012decision appeal schmidt j date decision 19 december 2011 citation 2011 nswsc 1584 court file number cl297399 2009 formerly 20072 2009 judgmentbasten ja julia patricia vagg testatrix died 14 march 2005 pursuant dated 27 january 2005 gift specific item personal property left residue estate divided equally five child date death testatrix lived 15 single ridge road winmalee owned joint tenant husband carl stanly vagg period house let testatrix separated husband early january 2001 child moved house winmalee year obtained advice partner respondent law firm winmalee property held joint tenancy according principle survivorship one joint tenant died interest property would pas january 2005 testatrix gave instruction last knew husband owned winmalee property joint tenant equal share gave instruction solicitor employed respondent law firm include request house sold money received sale given child education enable pay hecs debt may incur request included clause 11 present proceeding brought five beneficiary entitled testatrix residuary estate although eldest daughter m margaret vagg named executrix estate sue capacity behalf estate rather pleading alleged duty care owed respondent law firm ensure plaintiff beneficiary named received benefit asset testatrix testatrix wished statement claim par 8 particular breach included failure advise testatrix could unilaterally sever joint tenancy failure take instruction take necessary step give effect advice order establish intention testatrix various point time instruction gave respondent law firm advice given related matter evidence proffered conversation testatrix three child evidence response solicitor advised 2001 2005 trial judge schmidt j dismissed claim number base 2011 nswsc 1584 notice appeal challenged plethora factual finding identified various level particularity notice contained 78 ground originally drafted 68 registrar directed consideration given prolixity document however respondent submitted claim failed threshold duty law owed beneficiary circumstance case submission correct unnecessary engage lengthy analysis evidence factual finding proposed appellant respondent submission failure establish duty care owed beneficiary circumstance case correct follows appeal must dismissed reason duty careuntil late last century general law principle denied negligence solicitor gift intended take effect prospective beneficiary right action solicitor solicitor duty contract tort owed client gave instruction preparation execution disappointed beneficiary legal right entitlement expectation sounded claim economic loss claim negligence economic loss became available 1964 least one basis old principle fell away critical departure general law principle existed english law came decision inross v caunters 1980 ch 297 vice chancellor megarry upheld claim solicitor sent testator execution failed warn witnessed spouse beneficiary failure together failure notice identity attesting witness returned solicitor resulted beneficiary forfeiting interest estate suffered loss breach duty testator disappointed beneficiary rule force right action megarry vc upheld claim damage solicitor disappointed beneficiary expressed policy succinct term 303 person valid claim suffered loss person suffered loss valid claim however great negligence however great loss solicitor would liability pay substantial damage anyone correctness approach affirmed england house lord inwhite v jones 1995 ukhl 5 1995 2 ac 207and adopted high court inhill v van erp 1997 hca 9 188 clr 159 lord goff inwhite v jonesat 268 concluded assumption responsibility solicitor towards client held law extend intended beneficiary solicitor reasonably foresee may result solicitor negligence deprived intended legacy circumstance neither testator estate remedy solicitor present case differed three significant respect authority first present case specific bequest devise failed want due care part solicitor properly executed secondly far indicating intention particular item property go nominated beneficiary present reflected understanding current ownership winmalee property correct legal understanding interest testatrix would form part estate matter reflected request clause 11 thirdly case fulfil analysis succinctly stated megarry vc inross v cauntersand relied inwhite v jonesandhill v van erp namely person duty owed testator thus estate claim nominal damage breach contrast case failure part solicitor effect bring asset within residuary estate estate suffers loss case justification finding duty favour beneficiary lie outside rationale extension inhill v van erp expansion principle authority court taken found english case ofcarr glynn v frearsons 1999 ch 326 case involved execution testatrix new varying gift made earlier testatrix apparently child sought benefit two child sister jessie namely niece appellant nephew peter 1953 bought property homeland jessie two child 1969 transferred property joint name nephew peter made 1983 left interest property peter money standing credit bank account appellant 1989 sought change leave half share property niece bank account another nephew one jessie child although solicitor drew second foresaw problem property held peter joint tenant step taken sever joint tenancy death testatrix result intention leave half share property niece failed although gift bank account nephew effective result appellant niece got nothing noted chadwick lj agreement butler sloss thorpe ljj 333 white v jones testator intention frustrated solicitor delay carrying instruction prepare new providing legacy daughter testator died new available execution house lord decided majority assumption responsibility solicitor client given instruction drawing execution extended intended beneficiary proposed circumstance solicitor could reasonably foresee consequence negligence might loss intended legacy without either testator estate remedy statement principle reflects passage speech lord goff chieveley lord browne wilkinson lord nolan expressed agreement p 286 first sight fact present case take outside principle stated lord goff case estate would remedy question therefore whether remedy house lord prepared extend disappointed beneficiary inwhite v jonesis confined case whichwhite v joneswas example estate remedy absent remedy suit beneficiary remedy extended case estate remedy estate remedy advantage disappointed beneficiary one respect carr glynnsupports present appellant first issue involved extension ofwhite v joneswas whether duty intended beneficiary extended service notice severance without relevant provision cannot take effect 335 court held chadwick lj reasoning 335 336 essential mind circumstance present case need take care ensure asset fell estate integral carrying effect testatrix intention share property homeland pas plaintiff testatrix making alteration provision clause 2 b 1983 share property devised co owner need severance arose case solicitor instructed advise relation aninter vivostransaction independent making process proper analysis service notice severance part making process plaintiff much intended beneficiary severance new clause 2 b 1989 refuse treat plaintiff intended beneficiary solicitor could reasonably foresee might result negligence carrying testatrix testamentary instruction deprived legacy intended enjoy ground negligence lay failing get asset rather provide disposition would view properly regarded bizarre second respect whichcarr glynnextended principle inwhite v jonesarose fact estate fact available claim solicitor failure arrange severance resulted estate deprived half interest property homeland however remedy avail appellant damage recoverable estate would fall residue interest contrast present appellant seek achieve precisely relief would available estate namely payment sum way damage would form part residuary estate alone entitled carr glynnis authority proposition present appellant would entitled rely upon duty owed indeed least negative implication authority proposition thatwhite v joneswould extend provide remedy beneficiary circumstance equivalent remedy available estate trial judge referred decision court inmiller v cooney 2004 nswca 380 case factually similar tocarr glynnin sense failure sever joint tenancy result various gift failed sheller ja hodgson santow jja agreed referred concurring judgment thorpe lj incarr glynnbut distinguished case basis solicitor inmillerwas fact unaware risk property owned testatrix may accepted court would followedcarr glynn circumstance conclusion however give assistance appellant authority proposition beneficiary enforce duty supposedly owed solicitor testatrix circumstance undoubted duty owed estate estate effective remedy would turn provided identical outcome sought beneficiary name conclusionson one view may seem unduly pedantic conclude duty care owed solicitor intended beneficiary circumstance estate effective remedy duty owed circumstance estate remedy sounding substantial damage even law sensibly overlook distinction present state authority cannot would difficulty granting relief present case case referred beneficiary successful result require payment compensation solicitor failed give effect testamentary instruction client case instruction discernable express term thus incarr glynn appropriate say circumstance need severance integral carrying effect testatrix intention intention revealed present contrary request revealed testatrix understood could even assuming wanted dispose half interest winmalee property question whether wished get half interest able dispose integral term involved separate discrete question covered principle inhill v van erp assuming testatrix instructed solicitor take step acquire certain property owned disposed bequest proposed request due unwarranted delay effected death would require significant extension current principle hold prospective beneficiary could sue solicitor negligence value unacquired property reasoning trial judge 99 101 appears reach conclusion absence duty potential beneficiary set notice appeal ground 51 took issue finding might contained 101 appellant also challenged formulation duty 97 ground 49 reason set duty enforceable appellant arose present case appeal dismissed therefore necessary consider ground foregoing reasoning wrong agree additional reason tobias aja dismissing appeal agree proposed order ward ja agree appeal dismissed reason given basten ja tobias aja tobias aja late julia patricia vagg mr vagg died 14 march 2005 made last testament 27 january 2005 appointed first appellant executrix left residuary estate appellant son two daughter 20 january 2005 mr vagg retained firm solicitor mcphee kelshaw firm prepare four respondent relevant partner firm purpose giving instruction preparation mr vagg consulted m anne maree woodward brown m woodward brown employed solicitor firm accordance mr vagg instruction m woodward brown prepared contained following provision 11 requestthat house reside jointly husbandcarl stanly vaggat xx xxxxxxx xxxxx road winmalee sold money received sale given child education enable pay hecs debt may incur winmalee property referred clause 11 owned mr vagg husband joint tenant accordingly interest property unable disposed upon death mr vagg interest would pas directly husband surviving joint tenant right survivorship way joint tenant dispose interest property subject joint tenancy sever joint tenancy major issue present case whether mr vagg sought advice m woodward brown could avoid operation right survivorship whether advised could achieved unilaterally severing joint tenancy appeal appellant case mr vagg advised nothing could done avoid husband right survivorship hence death whole property vested explains contended form clause 11 couched term unenforceable request mr vagg accede request contained clause 11 winmalee property sold proceeds received sale divided amongst appellant equal share property sold proceeds used mr vagg conjunction monies purchase property coogee resided time trial 27 february 2009 appellant instituted proceeding respondent alleging m woodward brown negligent failing relevantly advise mr vagg could unilaterally sever joint tenancy winmalee property consequence one half interest property would form part residuary estate foregoing allegation negligence pleaded appear case ultimately made appellant appeal proceeding heard schmidt j 19 december 2011 ordered dismissed honour essentially held proceeding failed two ground first duty care part m woodward brown alleged appellant trial exist secondly even appellant established mr vagg would taken step necessary sever joint tenancy ensure residuary estate increased one half interest winmalee property honour order appellant appeal court appellant case pleadedthe statement claim pleaded execution mr vagg 27 january 2005 pursuant appellant beneficiary residuary estate paragraph 8 alleged respondent owed appellantsa duty care take reasonable step ensure appellant receive benefit asset mr vagg mr vagg wished pleaded mr vagg interest winmalee property statement claim proceeded follows 14 january 2005 mr vagg instructed defendant respect wish distribution asset upon death including inter alia fact holding half share property fact held joint tenant 15 mr vagg expressly instructed defendant wished property sold value share property distributed plaintiff equal share paragraph 16 alleged respondent breach duty care relevantly failed advise mr vagg could unilaterally sever joint tenancy property pursuant tos 97of thereal property act1900

The Trustee for Annex Unit Trust T_A Annex Holdings Pty Ltd [2018] FWCA 4156 (13 July 2018).txt

trustee annex unit trust annex holding pty ltd 2018 fwca 4156 13 july 2018 last updated 21 august 2018 2018 fwca 4156fair work commissiondecisionfair work act 2009s 185 enterprise agreementthe trustee annex unit trust annex holding pty ltd ag2018 977 annex enterprise agreement 2018 2021food beverage tobacco manufacturing industrycommissioner gregorymelbourne 13 july 2018application approval annex enterprise agreement 2018 2021 1 application made approval enterprise agreement known theannex enterprise agreement 2018 2021 agreement application made pursuant tos 185of thefair work act 2009 act made trustee annex unit trust annex holding pty ltd agreement single enterprise agreement 2 applicant 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 agreement approved accordance withs 54of act operate 20 july 2018 nominal expiry date agreement 19 july 2021 commissionerprinted authority commonwealth government printer ae429193pr608991 annexure

Clancy & Alcott [2021] FamCAFC 149 (6 August 2021).txt

clancy alcott 2021 famcafc 149 6 august 2021 last updated 19 august 2021family court australiaclancy alcott 2021 famcafc 149appeal clancy alcott 2021 famca 380appeal number eaa 69 2021file number syc 4960 2014judgment aldridge jdate judgment 6 august 2021catchwords familylaw appeal application appeal application reinstatement appeal extension time file draft appeal index reasonable explanation delay appeal merit application dismissed applicant pay respondent cost application fixed sum legislation family law act 1975 cth 70nbacases cited bennett bennett 1991 flc 92 191 1990 famca 148gallo v dawson 1990 93 alr 479 1990 hca 30jackamarra v krakouer 1998 195 clr 516 1998 hca 27pollard v rrr corporation pty ltd 2009 nswca 110xuarez vitela 2 2017 famcafc 236division appeal divisionnumber paragraph 27date hearing 6 august 2021place sydneythe applicant self represented litigantcounsel respondent m tabbernorsolicitor respondent broun abraham burreketorderseaa 69 2021syc 4960 2014appeal division family court australiabetween mr clancyapplicantand m alcottrespondentorder made aldridge jdate order 6 august 2021the court order 1 application appeal filed 28 july 2021 dismissed 2 appellant pay respondent cost application fixed sum 2 700 note form order subject entry court record note copy court reason judgment may subject review remedy minor typographical grammatical error r 17 02a b thefamily law rule 2004 cth record variation order pursuant 17 02family law rule 2004 cth notedthat publication judgment court pseudonymclancy alcotthas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth ex tempore reason judgmentadlridge j introduction1 application appeal filed 28 july 2021 mr clancy applicant seek reinstatement appeal order made judge family court australia 31 may 2020 2 applicant m alcott respondent child born 2013 child 3 14 september 2020 suite parenting order made consent child live respondent sole parental responsibility applicant spend time child supervised b contact centre 26 february 2022 end parent required order arrange appointment management b contact centre assessment suitability supervised time order 4 4 respondent contacted b contact centre within seven day formed view according applicant evidence service able support child special need located similar commercial supervision agency said could cater child need completed uptake formality required 5 29 december 2020 applicant filed contravention application alleging respondent breached consent order take part intake process b contact centre primary judge dismissed contravention application finding applicant established prima facie case breach applicant evidence established respondent arrange appointment management b contact centre assessment suitability supervised time 4 6 addition honour adjourned matter 28 june 2021 consider e ach parent proposal order varying applicant time child pursuant tos 70nbaof thefamily law act 1975 cth act application pursuant tos 70nbaof act proceed way minute order exchanged party provided primary judge chamber 7 applicant filed notice appeal 28 june 2021 order appeal deemed abandoned 26 july 2021 application appeal8 present application filed 28 july 2021 opposed respondent 9 principle applied stated mchugh j ingallo v dawson 1990 93 alr 479at 480 481 follows grant extension time rule automatic object rule ensure rule fix time act become instrument injustice discretion extend time given sole purpose enabling court justice justice party seehughes v national trustee executor agency co australasia ltd 1978 vicrp 27 1978 vr 257at 262 mean discretion exercised favour applicant upon proof strict compliance rule work injustice upon applicant order determine whether rule work injustice necessary regard history proceeding conduct party nature litigation consequence party grant refusal application extension time seeavery v 2 public service appeal board 1973 2 nzlr 86at 92 jess v scott 1986 fca 365 1986 12 fcr 187at 194 5 1986 fca 365 70 alr 185 application extension time file appeal always necessary consider prospect applicant succeeding appeal seeburns v grigg 1967 vicrp 113 1967 vr 871at 872 hughes 263 4 mitchelson v mitchelson 1979 24 alr 522at 524 also necessary bear mind application upon expiry time appealing respondent vested right retain judgment unless application granted vilenius v heinegar 1962 36 aljr 200at 201 follows applicant succeed application must material upon satisfied refuse application would constitute injustice judicial committee privy council pointed inratnam v cumarasamy 1965 1 wlr 8at 12 1964 3 er 933at 935 rule court must prima facie obeyed order justify court extending time step procedure requires taken must material upon court exercise discretion 10 aim justice party well established appellant likely lose benefit regularly commenced appeal procedural fault however appeal devoid merit render appeal futile interest justice let go forward jackamarra v krakouer 1998 195 clr 516 11 applicant acted promptly bringing application procedural default failure draft appeal index time great moment however applicant yet produced draft appeal index explained comply obligation file time 12 regard order 3 made primary judge adjourned proceeding 28 june 2021 applicant agrees appeal order futile day come gone 13 order 4 procedural order requires party provide short minute order decree therefore subject appeal xuarez vitela 2 2017 famcafc 236 14 event b contact centre cannot contact supervisor provided order seems obvious issue provide supervision something could properly revisited consequent upon bringing contravention successful unsuccessful application 70nba act direction therefore honour entirely unremarkable 15 indeed hearing held 18 august 2021 applicant contend variation order particularly relation time child spend applicant said although would prefer b contact centre supervisor would accept e contact centre supervisor reason appeal order 4 futile party agree reconsideration order 16 follows therefore ground 4 5 appeal directly relate order cannot succeed remaining ground 1 honour decision 31 may plainly unreasonable unjust 2 honour erred failing provide adequate reason change order made 3 honour erred order 1 order dated 31 may 2020 finding respondent arranged appointment pursuant order 4a september 2020 order 6 honour erred said respondent complied order 4a 2020 order 17 ground 2 reason need lengthy adequate must sufficient explain decision made party contention resolved seebennett bennett 1990 famca 148 1991 flc 92 191andpollard v rrr corporation pty ltd 2009 nswca 110 18 honour reason make plain considered contact made respondent b contact centre fact compliance order since know honour made order reason adequate ground cannot succeed 19 turning submission decision plainly unjust honour error finding respondent arranged appointment b contact centre compliance order 4 14 september 2020 order applicant accepts evidence demonstrated respondent fact contact b contact centre within time provided discussed suitability 20 complaint however regard respondent obliged physically attend service contends reason b contact centre found suitable respondent decision reject service therefore contends respondent comply order physically attending upon b contact centre decide whether service suitable however contravention brought indeed fact contravention brought quite limited simply said breach occurred result respondent failing contact supervisor ass management service suitability said applicant accepts 21 follows therefore ground 1 3 6 also cannot made appeal would futile 22 would therefore interest justice permit appeal go forward follows application dismissed costs23 respondent sought order applicant pay cost application fixed sum 2 700 basis application wholly unsuccessful 24 applicant turn asked take account financial circumstance saying 3 000 bank earned 1 400 per fortnight pay cost whatever supervisor currently providing supervision time child give detail 25 therefore difficult take account financial position event also well established lack mean necessarily determinative cost application 26 regard matter issue strength appeal matter applicant put consider circumstance exist justify making cost order 27 appellant pay respondent cost application fixed sum 2 700 certify preceding twenty seven 27 numbered paragraph true copy ex tempore reason judgment honourable justice aldridge associate dated 10 august 2021

To'Omailangi Jakomos v Stanley Hambesis [1991] ACTSC 3 (29 January 1991).txt

omailangi jakomos v stanley hambesis 1991 actsc 3 29 january 1991 supreme court actto omailangi jakomos v stanley hambesiss c 1248 1986damagescourtin supreme court australian capital territorymaster hogan 1 catchwordsdamages personal injury motor vehicle accident assessment abdominal injury laparotomy scar pre existing spondylolisthesis exacerbation issue principlehearingcanberra29 1 1991counsel plaintiff mr crowesolicitors plaintiff peter smyth burnett co counsel defendant mr parkersolicitors defendant abbott tout russell kennedyorderjudgment entered plaintiff sum 70 983 47 decisionthis assessment damage personal injury sustained plaintiff motor vehicle accident 24 november 1985 2 plaintiff 35 year old woman born tonga came australia 1972 completing technical college course obtained employment secretary 3 married 1977 time accident two child born 1978 1980 4 1985 living canberra family engaged contract word processing operator secretarial agency 5 24 november 1985 passenger kombi van driven sister canberra wearing seat belt car driven defendant failed give way give way sign front van collided heavily left hand front defendant car plaintiff thrown heavily forward restrained seat belt thrown back seat lose consciousness immediately felt pain abdominal area difficulty breathing 6 taken ambulance royal canberra hospital kept observation 3 hour x ray disclose condition called admission discharged home 7 still pain got home drink vomited blood ambulance called taken hospital admitted care dr scott findlay 8 later evening dr scott finday performed laparotomy disclosed perforation jejunum repaired 9 plaintiff expecting operation wound big one discovered dressing changed 10 remained hospital ten day undergoing normal painful process recovery abdominal operation 11 week home went tonga christmas stay relative continued recuperate eight week later returned canberra 12 consulted general practitioner dr rea abdominal pain settled noticed pain lower back troubled bending walking standing lying long period 13 dr rea reported x ray lumbar spine revealed displacement lower lumbar vertebra forward sacrum narrowing disc space osteophyte formation never symptom back pain accident dr rea concluded back injury aggravation previous condition probable degenerative process present lower lumbar spine accelerate due accident made slow recovery back pain certified fit go back work 5 april 1986 14 return work immediately september 1986 obtained position word processing operator aboriginal development commission 15 back continued source discomfort especially sits hour one time 16 august 1986 solicitor referred dr newcombe reported injury accident consisted laceration small bowel crush injury chest wall intervertebral disc injury t11 12 aggravation lumbar spondylolisthesis associated l5 s1 degeneration thought likely pain lumbar injury would continue indefinitely specific treatment required deterioration possible surgery could needed balance would likely required 17 late 1989 conceived another child born 12 july 1990 although problem back previous pregnancy suffered great deal discomfort one 18 laparotomy scar extends midline abdomen xiphisternum pubis upper lower limit raised hard central segment flat soft widened photograph evidence show scar clearly also show deformation surrounding skin muscle tissue especially lower end scar 19 dr ferguson plastic surgeon reported upper lower segment scar might improved surgery combination dark skin midline scar make predicting final result impossible say condition surrounding tissue would improved round figure surgery hospital expense loss income involved would 1 000 00 20 plaintiff lady attractive appearance speaks softly seemed degree shyness inclined articulate reaction suffering like scar upset touch prevents wearing style clothing enjoyed think likely plastic surgery baby little older 21 true back pain disabling likely become still able enjoy social sport discomfort intermittent constant deterioration likely need surgery possible though likely suffered symptom injury thoracic disc doctor comment regard significant 22 abdominal trauma substantial calling major surgery left large permanent scar 23 ass damage pain suffering loss amenity 50 000 00 include likelihood expense operation lieu interest part sum relates past award sum 15 000 00 pocket expense agreed 2 907 65 wage loss 3 075 82 24 total award therefore made follows general damage 50 000 00interest 15 000 00out pocket expense 2 907 65loss wage 3 075 82 70 983 47i direct entry judgment plaintiff sum 70 983 47

Vella and Australian Postal Corporation [1999] AATA 889 (25 November 1999).txt

vella australian postal corporation 1999 aata 889 25 november 1999 last updated 26 november 1999decision reason decision 1999 aata 889administrative appeal tribunal s98 382general administrative division michael vellaapplicantand australian postal corporationrespondentdecisiontribunalsenior member j kiosoglous mbe m u dahl member date25 november 1999placeadelaidedecisionthe tribunal set aside decision review substitution therefor remit matter respondent assessment direction applicant partial incapacity respect accepted condition right rotator cuff tendonitis continued 19 may 1998 b applicant condition lateral epicondylitis compensable injury pursuant 4 thesafety rehabilitation compensation act1998 condition caused ongoing partial incapacity 19 may 1998 tribunal pursuant tos 67of thesafety rehabilitation compensation act1988

Allied Pinnacle Pty Limited [2022] FWCA 1822 (6 June 2022).txt

allied pinnacle pty limited 2022 fwca 1822 6 june 2022 last updated 10 june 2022 2022 fwca 1822fair work commissiondecisionfair work act 2009s 185 enterprise agreementallied pinnacle pty limited ag2022 1558 allied pinnacle kensington united worker union enterprise agreement 2020 2023food beverage tobacco manufacturing industrydeputy president deancanberra 6 june 2022application approval allied pinnacle kensington united worker union enterprise agreement 2020 2023 1 application made approval enterprise agreement known theallied pinnacle kensington united worker union enterprise agreement 2020 2023 agreement application made pursuant tos 185of thefair work act 2009 act made allied pinnacle pty limited employer 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 undertaking taken term agreement 3 subject undertaking referred satisfied requirement ofss 186 187 188and190as relevant application approval met 4 clause 29 4 personal carer leave 32 2 1 public holiday agreement likely inconsistent national employment standard ne however noting clause 7 agreement satisfied beneficial entitlement ne prevail inconsistency agreement ne 5 united worker union bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 6 agreement approved accordance withs 54of act operate 13 june 2022 nominal expiry date agreement 30 september 2023 deputy presidentprinted authority commonwealth government printer ae516159pr742293 annexure

MILENKOVIC -v- McCONNELL [2013] WASC 421 (22 November 2013).txt

milenkovic v mcconnell 2013 wasc 421 22 november 2013 jurisdiction supreme court western australiain chamberscitation milenkovic v mcconnell 2013 wasc 421coram mckechnie jheard 4 18 october 14 november 2013delivered 22 november 2013file civ 2498 2013matter matter estate brent dwayne slattery deceasedandin matter section 4 24 45 theadministration act 1903between josette ann milenkovicplaintiffandemma christina mcconnellfirst defendantmetropolitan cemetery boardsecond defendantcatchwords administration deceased estate right dispose ash cremation principle insmith v tamworth city council extent apply cremation whether obligation consult stakeholderslegislation administration act 1903 wa 4 24 45cemeteries act 1986 wa cremation act 1929 wa result injunction dischargedcategory arepresentation counsel plaintiff mr r e lindsay m r l callaghanfirst defendant mr j biessesecond defendant appearancesolicitors plaintiff hayles lawyer pty ltdfirst defendant paynessecond defendant appearancecase referred judgment mckechnie j case about1 case happen ash person died suddenly leaving mother sister brother partner small child suspect also case hurt feeling grief bitterness law remedy event giving rise application2 brent dwayne slattery died may year age 30 death unexpected 3 left behind young partner emma mcconnell infant son kobe live perth grieving mother josette milenkovic sister samantha live south australia 4 emma arranged paid funeral service cremation fremantle cemetery mr milenkovic samantha attended 5 emma collect ash immediately month passed sole parent dealing issue arising consequence brent death feel emotionally ready deal option disposal ash made appointment attend fremantle cemetery 30 august 2013 appointment cancelled kobe sick telephoned cemetery 23 september 2013 made another appointment 7 october 2013 attended 6 prior however mr milenkovic become concerned formed view brent death emma quarrelled relationship finished feared emma would concerned providing brent suitable resting place 18 september 2013 mr milenkovic telephoned fremantle cemetery told emma attended appointment answered letter believed emma brent separated brent biological mother entitled collect ash lay rest final resting place 7 mr milenkovic therefore instructed solicitor apply urgent injunction without giving emma opportunity confer either rule common courtesy injunction accompanied originating summons sought order absence resolution reached plaintiff first defendant relation internment sic ash late brent dwayne slattery ash possession second defendant released fremantle cemetery deceased biological mother josette ann milenkovic plaintiff proceeding 8 mr milenkovic established weak arguable case injunction urgency foreshadowed appointment emma fremantle cemetery 7 october 2013 issued injunction expire 14 october 2013 injunction served party entered negotiation negotiations9 emma solicitor advised mr milenkovic solicitor letter 11 october 2013 client planning ash interred sainsbury memorial garden plaque ground particularly chose area frangipani tree brent liked decision supported member brent family 10 letter received response mr milenkovic solicitor 15 october 2013 included following client instructed u satisfied plot reserved otherwise secured public access available plot plaque envisages seeing photograph comfortable presentation inscription plaque include wording set ash interred plaque nominated reasonably proximate date andyour client willing give appropriate written undertaking addressing matter willing resolve supreme court action friday asking court record term written undertaking otherwise discontinuing action although basis noted liberty apply event client comply undertaking 11 responsive letter 16 october 2013 set detail proposal including plot plaque inscription concluding client want hurried making final decision matter particularly dealing court proceeding distracted 12 5 november 2013 mr milenkovic solicitor wrote emma solicitor requesting emma enter deed settlement received immediate response 6 november emma solicitor client prepared sign deed feel affronted client considered appropriate request 13 response continues confirms email sent open letter produced court arrangement prepared agree client cause brent ash remain possession custody metropolitan cemetery board time interred within two 2 business day confirmation client agreed contained letter discharge injunction client pay secure plot sainsbury memorial garden fremantle cemetery reserved 15 october 2013 b pay request board produce plain bronze plaque coloured photograph brent mounted black granite base inscription read brent dwayne slatteryslatts22 03 1983 14 05 2013beloved fiancé emma adoring father kobemuch loved son shane josettebrother leigh samantha jackdeath leaf heartache one heallove leaf memory one stealpromptly upon advised board production plaque completed client arrange placement brent ash plot contemporaneous installation plaque plot possible arrange take place within thirty 30 day receipt advice later seven 7 day placement client advise office placement occurred memorial garden public place client brent relative friend liberty visit plot cemetery ordinary opening hour please confirm matter resolved basis 14 rebuffed obtaining deed 8 november 2013 mr milenkovic solicitor proposed matter resolved consent order action cannot resolved making consent order contest emma right deal ash seek order claimed originating summons released client resolve action without legally binding outcome 15 11 november 2013 emma solicitor wrote back client prepared agree consent order madefrom client point view whole manner client dealt matter extremely heavy handed either client anyone behalf contacted client commencing proceeding proceeding would unnecessary highest client right put right conferral take place occurred agreement reached basis client suggest honour agreement 16 14 november 2013 date proceeding adjourned mr lindsay sought order compel emma agreed mr biesse opposed course 17 pointed mr lindsay initial difficulty making order may basis happened injunction granted extended party spent time useful negotiation emma yet put oath rebuttal assertion plaintiff samantha affidavit make would effectively final order without giving emma opportunity contest allegation would unfair wrong reason well jurisdiction make order18 one sought grant probate letter administration action said brought matter estate brent dwayne slattery deceased matter ofsections 4 24and45of theadministration act 1903 19 theadministration act 1903 wa 4gives court jurisdiction authority respect estate deceased person section 24continues granting administration estate intestate ands 45gives court power settle question arising administration burrow v cramley 2002 wasc 47 3 20 satisfied jurisdiction make order sought order made21 sometimes necessary strip natural human emotion grief loss bereavement anger pain focus precise legal relationship party 22 approaching matter without benefit authority legal position relatively simple evidence appears emma entered contract metropolitan cemetery board mcb responsible fremantle cemetery contract mcb agreed among thing cremate body process cremation course reduces body corporeal form ash 23 provided service every reason mcb may complete agreement dispose ash accordance direction person paid service emma stranger contract mr milenkovic 24 read authority regarding often emotive issue burial right contest consider initial impression law accord principle 25 review authority made easier detailed analysis principle outlined young j insmith v tamworth city council 1997 41 nswlr 680 26 debt due young j analysis acknowledged others leeburn v derndorfer 2004 vsc 172 2004 14 vr 100 13 27 insmith v tamworth city council young j eventually set 15 principle although confined principle new south wale review authority relevant legislation subject set shortly principle general application western australia 28 relevant legislation includes thecemeteries act 1986 wa thecoroners act 1996 wa thecremation act 1929 wa 29 thecremation act 7provides 1 dead human body cremated crematorium person obtained permit required act cremation body desire dispose ash body cremation otherwise burial upon site crematorium shall lawful board controlling authority cemetery association whose crematorium body cremated deliver said ash said person removal crematorium 2 subject subsection 1 ash dead human body cremation shall removed crematorium body cremated except purpose burial site crematorium 30 confirms lawful authority mcb give ash emma 31 determining priority nearest surviving relative thecremation regulation 1954 wa emma living de facto partner deceased immediately death rank first order priority mr milenkovic rank fourth priority important administrator permit permission cremate sought cremation act 8 3b cremation regulationsform 6 32 principle insmith v tamworthcity councilare relevant case person privilege choosing bury body expected consult stakeholder legally bound right surviving spouse de facto spouse preferred right child cremation nowadays equivalent burial person expends fund burying body restitutionary action recover reasonable cost expense holder right burial cannot use right way exclude friend relative deceased expressing affection deceased reasonable appropriate manner placing flower grave 694 principle 333 clear precisely authority support principle 3 extent state person choosing bury body expected consult stakeholder however moment authority support second part principle person legally bound principle 834 principle 8 discussed byrne j inleeburn v derndorfer case cremation least point path judicial forest begin peter hissmith v tamworth city councilproposition 8 young j state cremation nowadays equivalent burial course correct sense executor available choice cremation deciding manner disposition body important difference cremation method disposition cremation remain ash obligation executor respect body may complete cremation right obligation respect ash 17 footnote omitted 35 discussingrobinson v pinegrove memorial park ltd swann 1986 7 bpr 15 097 byrne j concluded body cremated ordinarily done pursuant agreement person responsible disposal funeral director perhaps trustee crematorium resultant ash later delivered person addition burial ash may dealt way would possible respect dead body may sprinkled distributed loosely surface earth may retained unburied state may divided part dealt different way also buried subject qualified statutory prohibition exhumation moreover long dispersed otherwise lose physical character ash may owned possessed mind therefore apt characterise legal status ash similar preserved body indoodeward v spence 1908 hca 45 1908 6 clr 406at 412 way application fire cremated body seen application work skill transformed flesh blood ash corruptible material material le legal consequence accord apprehend community attitude practice ash way preserved specie subject ordinary right property subject one possible qualification way ownership ash may pas sale gift otherwise qualification exists may require working arises fact ash remains human reason treated appropriate respect reverence 26 27 footnote omitted principle 1436 nonexclusion principle 14 come play ash disposed outside cemetery cremation act 7 1 ash remain within cemetery person right disposition cannot exclude relative others cemetery controlled mcb access permitted regulated 37 buried site crematorium ash may scattered across water may scattered buried place significant deceased ash may kept container mantel reminder token 38 short ash may reverently disposed way precludes ability thereafter express affection fixed point grave 39 extent principle 14 relied mr milenkovic hold application disposal ash cremation conclusion40 authority young j made reference enunciating principle 3 insmith v tamworth city councildo support expectation consultation 41 even consultation legally enforceable right right exercised party reached agreement emma required 42 emma within right decline enter deed course requires consideration advancedby mr milenkovic burden deed would fall emma 43 event evidence make order compelling emma already said 44 injunction preserved thing party could negotiate reason continue injunction moreover balance convenience strongly favour discharge injunction injunction preventing emma plan inter brent ash among frangipani honour memory plaque orderinjunctions granted 4 october 2013 dissolved

Hurley and Potts (Child support) [2019] AATA 5122 (15 October 2019).txt

hurley potts child support 2019 aata 5122 15 october 2019 last updated 2 december 2019hurley potts child support 2019 aata 5122 15 october 2019 division social service child support divisionreview number 2019 sc016132 2019 sc016287applicant mr hurleyother party child support registrarms pottstribunal member douglasdecision date 15 october 2019decision decision review matter 2019 sc016132 varied annual rate child support payable mr hurley varied 7 500 1 july 2019 25 september 2019 andto 5 200 26 september 2019 day child support terminating event respect child 2 happens application review decision matter 2019 sc016287 dismissed pursuant tosubsection 42b 1 theadministrative appeal tribunal act 1975 catchwordschild support departure determination income property financial resource parent ground departure established based income liable parent decision depart decision review variednames used published decision pseudonym reference appearing square bracket indicate information removed decision replaced generic information identify involved individual required bysubsections 16 2ab 16 2ac thechild support registration collection act 1988 reason decisionbackgroundmr hurley m potts parent child 1 child 2 child support registrar issued administrative assessment child support initial assessment effect 4 february 2010 mr hurley parent assessed liable pay child support child assessment issued liability respect child 1 ceased 25 september 2019 day preceding child 1 eighteenth birthday child support registrar act department human service shall refer registrar department hereafter mr hurley applied tribunal review two objection decision department made earliest decision dated 10 december 2018 second dated 3 april 2019 decision relate application mr hurley made department undersection 98bof thechild support assessment act 1989 act department make determination undersection 98sto depart provision act respect assessment child support convenient application review decision dealt together earliest change assessment application objection decision 10 december 2018 relates mr hurley sought change made assessment child support 6 april 2018 medically unfit engage employment since date assessment force time made application obligated pay child support annual rate 31 474 child assessment based adjusted taxable income 150 000 49 140 m potts primary decision department made response application dated 12 september 2018 reduce mr hurley adjusted taxable income 98 104 period 6 april 2018 30 june 2018 84 954 period 1 july 2018 30 september 2018 primary decision effect reducing annual rate mr hurley required pay child support 20 386 6 april 30 june 2018 16 998 30 september 2018 objection decision 10 december 2018 allow partly mr hurley objection primary decision 1 october 2018 30 june 2019 department varied annual rate child support payable mr hurley 15 600 mr hurley application tribunal review objection decision bear review number 2019 sc016132 day department made objection decision 10 december 2018 mr hurley made application undersection 98bfor change assessment 14 january 2019 department refused make determination depart provision act respect assessment child support 11 february 2019 mr hurley objected decision 3 april 2019 department disallowed objection consequence course department objection decision 10 october 2018 remained place mr hurley application tribunal review department objection decision 3 april 2019 bear review number 2019 sc016287 hearing evidencethe tribunal heard mr hurley application 15 october 2019 m potts participated hearing telephone gave sworn oral evidence department customary appear mr hurley m potts also provided document tribunal received evidence mr hurley document marked a1 241 m potts document marked b1 122 department also provided document tribunal accordance obligation undersubsections 37 1 and38aa 1 theadministrative appeal tribunal act 1975 document department provided respect matter 2019 sc016132 paginated 1 495 respect matter 2019 sc016287 paginated 1 256 also received evidence tribunal regard evidence relevant law issuesa parent liable pay child support carer entitled child support may special circumstance apply department subsection 98b 1 act determination depart provision act relating assessment child support mentioned department refers application change assessment application department tribunal department place satisfied criterion subsection 98c 1 met make one determination listed subsection 98s 1 depart provision act relating administrative assessment child support criterion specified subsection 98c 1 one one ground departure referred subsection 2 exists andthat would equitable regard child liable parent carer entitled child support andotherwise proper make determination subsection 98s 1 ground departure referred subsection 98c 2 listed subsection 117 2 act matter department tribunal department place must consider deciding whether equitable make determination depart provision act listed subsection 117 4 act matter department tribunal department place must consider deciding whether equitable make determination depart provision ofpart 5are listed subsection 117 5 act considerationis ground departure established application department mr hurley relied ground departure provided subparagraph 117 2 c ia act department refers ground reason 8a subparagraph 117 2 c ia read follows special circumstance case application relation child provision act relating administrative assessment child support would result unjust inequitable determination level financial support provided liable parent child ia income property financial resource either parent mr hurley pharmacologist profession early april 2018 derived income medical writer using medium company substance alter ego due issue mental health came care general practitioner psychologist early april 2018 practitioner wrote letter forwarded department advising mr hurley unfit work mr hurley evidence since april 2018 worked medical writer since conducted business company however obtain casual employment occupation brief time received gross wage 2019 year 1 087 income 2019 financial year interest 379 deposit bank account sadly april year mr hurley diagnosed stage 4 terminal metastatic cancer oesophageal junction upon receiving diagnosis ceased casual employment occupation currently undergoing aggressive treatment form twelve round chemotherapy end december evidence forego one round chemotherapy due accumulated toxicity evidence letter 1 august 2019 oncologist oncologist advises mr hurley prognosis guarded mr hurley unable work foreseeable future mr hurley evidence tribunal life expectancy moment measured week month evidence whatever result chemotherapy able work tribunal accepts evidence regard around time mr hurley received diagnosis terminal cancer transferred 205 000 accumulated superannuation pension fund draw pension fund 44 500 year tax levied le 60 year age transferred amount 205 000 credit union account child inheritance statement account reveals current balance 180 378 62 would seem statement produced account hold national australia bank otherwise used balance amount living expense tribunal observes statement financial circumstance mr hurley submitted tribunal signed 31 march 2019 declaring content complete correct modest living expense statement produced prior receiving diagnosis terminal cancer tribunal considers sad likelihood mr hurley expense increase consequence pay treatment receives receive cancer including likelihood palliative care statement financial circumstance reveals amount deposit credit union asset significance house resides estimate value 1 475 000 sole owner house encumbered debt resides partner money mr hurley deposited account purpose child inheritance money available used provide child need period prior child 1 reaching 18 year age presently available used provide child 2 seems tribunal mr hurley also need draw upon money meet expense given income modest superannuation pension given likelihood expense increasing consequence cost treatment cancer tribunal view given mr hurley present circumstance unable would unfair require pay currently assessed amount child support tribunal view present circumstance special tribunal considers context special circumstance application provision act respect assessment child support result unfair inequitable determination level financial support provided mr hurley child income property financial resource available mr hurley accordingly tribunal satisfied ground departure established equitable make determination already mentioned matter tribunal must take account considering whether equitable depart provision act listed subsection 117 4 act tribunal required go slavishly matter regard relevant particular circumstance case rather dealing separately matter relevant insofar matter relevance convenient tribunal group matter consider reference following heading m potts circumstancesms potts held permanent part time employment start december 2018 time relocated queensland said due issue relating domestic violence evidence party family court made relocation order recently permitting child relocate present residence m potts without employment since december 2018 leasing house child resided prior relocation queensland tax return recent financial year revealed seven month 1 december 2018 end year received net rent 15 611 extrapolates annual figure 26 761 income benefit allowance commonwealth government asset significance house currently leasing modest mortgage loan relating house direction hearing held time hearing m potts required submit copy bank credit card statement odd page bank statement produced missing numerous page credit card statement missing m potts unaware drawn attention hearing mr hurley submitted effect tribunal ought draw adverse inference regarding m potts failure produce bank statement credit card statement essentially inference mr hurley suggested tribunal draw missing page would disclose income m potts seek hide tribunal m potts evidence went bank got provide copy credit card statement bank statement submitted produced said use credit card pay modest amount month reduce balance tribunal observes m potts produce respect credit card statement included front summary page month using credit card extensively apparent month may june october december 2018 january may 2019 transaction tallied significant amount respect month december 2018 month m potts relocated child queensland month largest amount transaction summary page month revealed transaction month tallied 2 785 75 tribunal considers m potts failure produce page credit card statement honest mistake tribunal also note odd page m potts bank statement missing even page produce reveal expenditure ordinary tribunal also considers m potts failure produce odd page bank statement also honest mistake based upon disclosed seems tribunal unlikely odd page would entry expenditure income inconsistent different character disclosed even page tribunal draw adverse inference m potts failure produce page statement relating bank account credit card m potts evidence effect resource moment going living household expenditure supporting child tribunal accepts case mr hurley also submitted m potts receives gift money friend named m m potts confirmed m described close friend godmother child time time lend money indeed advanced around 150 000 pay legal fee m potts said m ensure child dire situation repaid money m advanced legal fee m advance small amount around 1 000 m potts repays drawing mortgage house leasing m potts evidence effect struggling make end meet tribunal accepts case circumstance arises largely consequence financial burden provide child child circumstancesthere evidence indicating child special need property significance evidence form m potts statement financial circumstance indicates child 2 part time job earns modest income near sufficient cover cost need mentioned child 1 attained eighteen year age 26 september 2019 longer child eligible assessed child support mr hurley circumstancesthe tribunal set mr hurley circumstance respect property income tribunal take account considering whether equitable make determination depart assessment child support summary mr hurley situation respect income asset financial resource tribunal view would current circumstance difficulty meeting necessary commitment including cost medical treatment well paying child support presently assessed rate financial resource pension fund income pension draw fund interest would receive credit union deposited excess 180 000 asset significance house partner reside whilst relatively modest expenditure meet support expected tribunal indicated commitment increase consequence dire situation regarding health whilst mr hurley desire amount deposited credit union left child inheritance used meet obligation provide child 2 also ability draw money earlier able provide financially child however seems tribunal mentioned given mr hurley present circumstance also likelihood need draw upon money ensure meet commitment given income modest pension modest interest given expenditure likely increase need related illness relative hardshiphaving regard matter stated tribunal considers hardship would caused mr hurley required pay child support rate assessed beyond 30 june 2019 tribunal observes arrears payment child support obligation amount 6 932 30 september 2019 far tribunal tell bulk accumulated since 30 june 2019 word mr hurley able meet child support obligation main assessed point tribunal observes reduction child support payable m potts would add hardship given without employment income main limited rental income property child previously resided hardship would tribunal make determination put mr hurley advance payment whilst hardship would caused m potts making determination lessening mr hurley child support obligation regard mr hurley circumstance tribunal considers would equitable make determination lessening child support obligation term providing point reference tribunal note assessment calculated based upon income amount mr hurley 44 500 income amount m potts 26 700 mr hurley would required pay child support annual rate around 6 500 two child 3 700 one child tribunal considers consequence money mr hurley drew superannuation fund april year consequence fact money available drawn earlier ought required pay child support rate greater circumstance therefore tribunal considers equitable departure make provision act respect assessment child support would vary decision 10 october 2018 1 july 2019 25 september 2019 annual rate mr hurley required pay child support varied 7 500 result bulk arrears cleared account 26 september 2019 day upon child support terminating event child 2 occurs varied 5 200 otherwise proper change assessment deciding whether otherwise proper depart administrative assessment tribunal must regard fact primary obligation support child rest mr hurley m potts also regard whether determination make would affect entitlement m potts child income tested pension allowance benefit tribunal understands neither child receives income tested pension allowance benefit also circumstance change whatever determination tribunal make tribunal understands little effect benefit allowance m potts receives commonwealth government making determination tribunal considers equitable make circumstance outlined tribunal considers determination considers equitable make also otherwise proper make determination tribunal considers equitable otherwise proper make best made application review respect decision made 10 october 2018 subject matter 2019 sc016132 respect application mr hurley relating decision 3 april 2019 given tribunal make determination set matter 2019 sc016132 mr hurley application review decision matter 2019 sc016287 likelihood success ought dismissed therefore section 42b theadministrative appeal act 1975 clarity child support assessment issued following objection decision 10 december 2018 remain period 30 june 2019 1 july 2019 annual rate child support payable mr hurley reduce 7 500 25 september 2019 day preceding child 1 eighteenth birthday 5 200 child 2 decisionthe decision review matter 2019 sc016132 varied annual rate child support payable mr hurley varied 7 500 1 july 2019 25 september 2019 andto 5 200 26 september 2019 day child support terminating event respect child 2 happens application review decision matter 2019 sc016287 dismissed pursuant tosubsection 42b 1 theadministrative appeal tribunal act 1975

Industrial Relations Commission Decision 343_1992 [1992] AIRC 272; (15 April 1992).txt

industrial relation commission decision 343 1992 1992 airc 272 15 april 1992 industrial relation commission decision 343 1992 dec 343 92 print k2577 australian industrial relation commissionindustrial relation act 1988s 241application community interest declaration ands 242application approval submission amalgamation ballot australian postal telecommunication union australian telecommunication employee association australian telephone phonogram officer association 20020 1991 deputy president williams melbourne 15 april 1992 industrial union amalgamation application correct omission proposed rule alteration previously filed commission satisfied permission granted decision 26 march 1992 approved submission ballot proposed amalgamation australian postal telecommunication union aptu australian telecommunication employee association australian telephone phonogram officer association atea atpoa 1 day fixed commencing day ballot monday 27 april 1992 application made permission make minor amendment proposed alteration rule aptu form part scheme amalgamation amended amendment corrects omission occurred proposed rule alteration previously filed considered proposed amendment satisfied permission given pursuant 253e theindustrial relation act 1988 1 permit aptu atea atpoa applicant organisation alter scheme amalgamation including proposed alteration rule aptu manner set letter applicant organisation filed registry 15 april 1992 2 authorise applicant organisation make amendment resolution respective committee management 3 give permission referred paragraph 1 subject following condition 3 1 resolution referred paragraph 2 carried respective committee management 27 april 1992 1 print k2276 3 2 statutory declaration authorised officer applicant organisation evidencing carriage relevant resolution organisation committee management filed registry later 4 00 p 1 may 1992 end text end text

In the Marriage Of: Christine Joan Balnaves Appellant_Wife Jane Teresa Cummings Appellant_Intervenor Official Trustee In Bankruptcy Appellant and Peter John Balnaves Respondent_Husband Appeal [1988] FamCA 18 (23 November 1988).txt

marriage christine joan balnaves appellant wife jane teresa cummings appellant intervenor official trustee bankruptcy appellant peter john balnaves respondent husband appeal 1988 famca 18 23 november 1988 family court australiain marriage christine joan balnavesappellant wifejane teresa cummingsappellant intervenorofficial trustee bankruptcyappellantand peter john balnavesrespondent husbandappeal 250 87 1988 famca 6 12 fam lr 488 1988 famca 6 1988 flc 91 952courtin full court family court australiachief justice 1 fogarty 1 mccall 1 jj hearingadelaide23 11 1988mr heywood smith instructed messrs johnston withers mccusker co solicitor appellant christine joan balnaves mr strickland instructed messrs hume taylor co solicitor appellant jane teresa cummings mr richards instructed messrs adam stevenson solicitor appellant official trustee bankruptcy respondent husband appeared person decisionjudgement costs2 judgment full court relation appeal cross appeal delivered 8 august 1988 time leave granted party make written submission cost 3 since time submission received behalf wife submission receive cost appeal husband trustee bankruptcy cost cross appeal m cummings proportion amount set submission constituted letter 18 august 1988 effect husband m cummings submission proposed order cost official trustee made submission cost 4 view order cost party certificate federal proceeding cost act granted wife official trustee respect wife appeal 5 although wife successful significant extent appeal would court reason making order cost respondent appeal namely official trustee position husband appeal somewhat unusual whether actual party proceeding left unresolved granted leave make whatever submission desired make addition undischarged bankrupt 6 m cummings appeal wife cross appeal unsuccessful may ordinarily lead conclusion neither successful issue cost think case notwithstanding significant issue raised raised m cummings appeal unsuccessful 7 appeal wife successful matter law consider appropriate circumstance grant official trustee certificate federal act m cummings wife unsuccessful appeal cross appeal therefore basis granting certificate federal legislation 8 accordingly section 9 federal proceeding cost act grant wife respect appeal certificate would appropriate attorney general authorise payment act respect cost incurred relation appeal 9 pursuant section 6 act grant official trustee bankruptcy similar certificate

Moore & Murray [2007] FMCAfam 253 (24 April 2007).txt

moore murray 2007 fmcafam 253 24 april 2007 last updated 15 august 2008federal magistrate court australiamoore murray 2007 fmcafam 253family law child interim parenting arrangement three child aged 16 14 10 allegation family violence whether presumption shared parental responsibility applies whether presumption rebutted family violence whether reasonable ground exist support belief existence violence context interim hearing whether appropriate apply presumption interim stage best interest consideration entitlement child meaningful relationship parent family law act 1975 cth s 60b 60ca 60cc 60k 61da 61daa 61db 64b 65d 65daagoode goode 2006 famca 1346cowling cowling 1998 famca 19 1998 flc 92 801jg bg18 famlr 255applicant m moorerespondent mr murrayfile number adc 1631 2007judgment brown fmhearing date 20 april 2007date last submission 20 april 2007delivered darwindelivered 24 april 2007representationcounsel applicant m dicksonsolicitors applicant norman waterhousecounsel respondent mr bermansolicitors respondent mark esauordersit ordered consent order 1 husband restrained altering position appointor trust hold position 2 husband restrained resigning director company hold position dealing share hold interest 3 husband restrained dealing way murray superannuation fund 4 party restrained removing child c born 1992 b born 1991 born 1996 hereinafter referred child state south australia commonwealth australia without first obtaining prior written consent 5 party attend family dispute resolution conference on25 may 2007 2 00pmat family court australia adelaide 6 aforesaid child independently represented proceeding end director legal service commission south australia directed make appropriate arrangement representation said child soon practicable 7 party jointly commission family assessment report prepared suitably qualified expert agreed party failing agreement nominated independent child lawyer ordered order 8 child live wife 9 child spend time husband school wednesday 4 00pm event wednesday fall school holiday commencement school following monday 9 00am event monday fall school holiday alternate week coincide time husband working extended hour 10 party competing application fixed final hearing on6 7 september 2007 commencing 10 00am 11 applicant pay hearing fee obtain remission hearing fee within28 daysof today date 12 party attend conciliation conference registrar court on15 may 2007 11 00am 13 matter listed direction on12 july 2007 9 30amwhen anticipated family assessment report hand trial direction made event matter requires final hearing notedthat publication judgment pseudonymmoore murrayis approved pursuant tos 121 9 g thefamily law act 1975 cth federal magistratescourt australia atadelaideadc 1631 2007ms mooreapplicantandmr murrayrespondentreasons judgmentintroductionthese proceeding concern interim parenting arrangement three child b born 1991 c born in1992 born 1996 party proceeding child parent mother m moore father mr murray party married december 1980 separated difficult circumstance 17 february 2007 time common ground party physical altercation former family home omitted police called father charged assaulting mother b apparently witness aspect incident since 17 february 2007 father lived away former family home initially lived parent rented accommodation three bedroom home spent time whatsoever period since limited interaction b c limited day time period weekend father medical practitioner acknowledges past difficulty arising self medication prescription drug particularly opiate also suffered depression come notice south australian medical board disciplinary proceeding instituted yet finalised mother characterises father abusive marriage absent parent respect child care particularly drug dependence position major responsibility caring three child fallen shoulder many year hand father position drug dependence treated monitored past twelve month result asserts resolved difficulty regard substance dependence refutes suggestion involved competent caring parent course party marriage certainly last twelve month drug issue addressed depression treated father position mother time marriage violent abusive towards acknowledges charged result incident 17 february 2007 asserts mother behaviour precipitated unfortunate incident party intends defend charge brought vigorously mother position desire see father b c reticent father accept fearful mother attempting subvert previously strong relationship child antagonistic feeling arising painful circumstance party separation common ground party father commenced relationship another person also asserts mother disingenuously distorted extent drug dependence satisfy emotional need pressure court achieving outcome preference provided brief introductory summary clear matter complexity current proceeding commenced mother 26 march 2007 background urgency stage also sought number order respect party property particularly restrain father dealing certain aspect issue resolved consent however urgency situation remains respect child issue position party polarised extreme extremely different view range issue include following provided greater majority care child mother asserts fulltime paid employment hand father busy medical practitioner regardless factor father describes closely involved caring child child schooling sporting activity previously indicated party differing view impact father substance abuse family mother phrase significant negative father submitted psychiatric report dr indicatesdr opinion father insight past behaviour implication others evidence also provided father drug free approximately 12 month father relies two report attack mother credibility asserts exaggerated past difficulty feeling animosity mother critical dr opinion clearly came existence medical board proceeding rather present one clearly input dr report able provide good deal information asserts relevant proper assessment father functioning parent part mother categorises father manipulative regarding drug use person regularly abused alcohol prescribed medication past overall categorises father behaviour towards child abusive extreme result factor asserts b particular estranged father emotionally disturbed past act violence instability directly involved particular asserts child witnessed extreme bruising mother body father inflicted upon father denies engaged violent temperamental outburst contrary ascribes behaviour mother past asserts mother instigated violence 17 february 2007 indeed assaulted several past occasion recently on3 november 2006 punched needlessly say mother denies allegation result factor party different view care arrangement child would prefer particularly current volatile circumstance mother asserts adamant wish nothing whatsoever father b c willing see day disturbed prospect interacting father new partner father perspective given tender year dubious view apparently expressed concerned either actively tacitly manipulated mother negative view regarding belief true lesser extent two child circumstance belief imperative court make order enable reinstatement previously positive relationship child concerned b suffers asperger syndrome previously indicated b witness aspect incident occurred 17 april 2007 given age may witness criminal proceeding father mother belief place particular position vulnerability regarding spending extended period time father mother fearful father may attempt influence b evidence criminal proceeding hand father relies medical report paediatrician dr l asserts b father appear dr l good relationship one another dr l concerned b likely bewildered parent separation accordingly dr l favour shared parenting regime far b concerned father also place significant weight age child submission counsel none child regarded vulnerable virtue age alone report concern may arise father behaviour adult including mother circumstance asserts mother call caution overstated likely motivated current level emotional response father concern child welfare one area party agree common view utility family assessment report commissioned soon possible assessment provide independent perspective view child matter difficulty report likely hand two three month meantime order made respect ongoing arrangement child care although would preference family assessment prepared father speak mother alternative proposal child independently represented proceeding stage mother position summarised follows order made respect live mother c b spend four hour week father either saturday sunday hour 2 00pm 6 00pm stage b c travelling train adelaide railway station meet father avoided necessity party come proximity one another something prohibited condition father bail mother say follows recent affidavit oppose order sought husband limited daytime contact boy occur pending family assessment condition time spends boy new girlfriend present refrained discussing family court pending assault proceeding way child 1 father due appear medical board south australia shortly possibility licence practice medicine may suspended since came notice authority father conducting practice supervision another medical practitioner required undergo regular psychiatric treatment rigorous weekly drug screening test believe previous drug addiction ever exposed patient potential harm circumstance sanguine likely outcome proceeding previously indicated denies precipitating violent incident resulted party separation however acknowledge one party child summonsed police former matrimonial home arrested mother position child father suggest otherwise clearly fact indicates least exposed unpleasant incident occurred party father position child best interest dictate live alternate week may maintain strengthen characterises close relationship end asserts considerably reduced working hour since party separated father position able continue modify working hour work long hour time child living mother otherwise able tailor work commitment time child school way asserts able maintain financial support child also emotional relationship deposes currently living partner event asserts necessity order restraining bringing child contact order complement changed working regime father proposes child live 3 30pm wednesday 8 30am following wednesday alternate week thereafter court accedes proposal would mean child would living parent strictly equal temporal basis interim stage court decision based study document submission party respective legal representative provision point exhaustive hearing particularly taking oral evidence cross examination would possibly allow court make finding credibility truthfulness summary party respective position set indicates many significant dispute fact point addition interim stage rarely case independent expert psychological evidence available regarding issue nature applicable child parent relationship view child concerned latter consideration likely important older child involved accordingly difficult impossible court make finding fact significant matter dispute party interim stage case must determined according legal principle inpart viiof thefamily law act 1975 act particular section 61da section act deal concept equal shared parental responsibility court make parenting order court required apply presumption would best interest child concerned parent haveequal shared parental responsibilityfor child presumption rebutted court required consider whether order made would see child concerned either spending equal period time parent substantial significant time father position presumption applies case child live parent equal basis interim final hearing stage hand clearly mother position presumption rebutted matter family violence issue pertinent child best interest raised affidavit material difficulty course court position determine issue interim stage particularly given father vigorously refutes gravamen mother criticism raised significant criticism mother legal framework appliedi turn legal framework matter must determined law pertaining making parenting order set inpart viiof thefamily law act 1975 act significantly amended provision thefamily law amendment shared parental responsibility act 2006

Hajaj, Nayef [2003] MRTA 3449 (30 May 2003).txt

hajaj nayef 2003 mrta 3449 30 may 2003 last updated 8 july 2003 2003 mrta 3449catchwords review visa refusal subclass 104 remaining relative overseas near relative contact within reasonable period dependant childreview applicant nayef hajajvisa applicant khaled hajajchawq hajajjameelah hajajhanaa hajajwafaa hajajdoaa hajajtribunal migration review tribunalpresiding member namoi dougallmrt file number n01 07445dimia file number f99 018570date decision 30 may 2003at sydneydecision tribunal remit application made visa secondary applicant preferential relative migrant class ay visa department immigration multicultural indigenous affair reconsideration direction visa applicant meet following criterion subclass 104 preferential family visa clause 104 211 schedule 2 clause 104 221 schedule 2and secondary applicant meet criterion clause 104 311 schedule 2 statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate mr khaled hajaj visa applicant national lebanon born 1 january 1961 applied 5 child chawq hajaj born 10 january 1985 jamile hajaj born 29 july 1986 hanaa hajaj born 9 may 1989 wafaa hajaj born 27 february 1991 doaa hajaj born 5 october 1985 secondary applicant preferential relative migrant class ay visa 12 august 1999 d1 ff 42 50 delegate decision refuse grant visa made 28 september 2001 d1 ff 71 76 jurisdiction standing2 mr nayef hajaj review applicant lodged valid application review migration review tribunal tribunal 3 december 2001 t1 ff 24 28 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 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 item 1125 preferential relative migrant class ay schedule 1part 1to regulationspart 104of schedule 2 regulationsregulation 1 15of regulation definition remaining relative departmental policy pam3 schedule 2 preferential family visa 104pam3 part 1division 1 2 regulation 1 15 interpretation remaining relative6 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance 7 change definition ofremaining relativewere introduced item 2109 statutory rule 259 sr 259 1999 transitional provision set sr 259 1999 amended item 1101 statutory rule 259 2000 apply changed definition application preferential relative migrant class ay visa made 1 november 1999 finally determined 1 november 2000 termremaining relativeis therefore defined regulation 1 15 follows regulation 1 15 remaining relative 1 applicant visa remaining relative 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 overseas near relative applicant applicant spouse usually reside country australia different country relative resides ii neither applicant applicant spouse contact relative within reasonable period making application applicant applicant spouse together 3 overseas near relative 2 regulation overseas 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 relative kind c australian citizen australian permanent resident eligible new zealand citizen usually resident australia 3 purpose paragraph 1 c overseas near relative taken reside last known country residence unless applicant satisfies minister relative resides another country evidence8 tribunal following document t1 tribunal case file n01 07445 folio numbered 1 101d1 departmental file f99 018570 folio numbered 1 909 evidence given hearing 30 may 2003 review applicant mr khaldoun hajaj review applicant son visa applicant summary evidence file oral evidence follows 10 visa application made 12 august 1999 visa applicant claim aremaining relativeof nayef hajaj brother review applicant australian citizen sponsored visa applicant child grant visa 11 application form visa applicant indicated following family composition namerelationshipcountry residenceimmigration status australiamohammed hajajfatherdeceasedjamileh elaynimotheraustraliapermanentnayef hajajbrotheraustraliapermanentalbert hajajbrotheraustraliapermanentnayfeh hajajsisteraustraliapermanentmichael hajajbrotheraustraliapermanentkassim hajajbrotheraustraliapermanentrima hajajsisteraustraliapermanentthe name fatma hajjaj also added different text detail included 12 visa applicant submitted following evidence department relation citizenship otherwise parent certificate death mohamad mahmoud hajaj issued 29 may 1985 d1 f 20 extract registration mohamad hajaj dated 29 june 1999 d1 ff 12 13 certified copy australian citizenship certificate jamile el ayni dated 28 march 1988 d1 f 6 13 subsequently review applicant provided certified copy australian death certificate visa applicant mother jamile el ayni died 8 july 2001 t1 f 1 14 visa applicant submitted following evidence department relation citizenship sibling certified copy australian citizenship certificate nayef hajaj child dated 19 november 1986 d1 f 7 certified copy australian citizenship certificate albert hajaj formerly known ahmad mohammed dated 28 july 1976 d1 f 3 certified copy australian citizenship certificate nayfe sowaid formerly known sattar dated 15 april 1977 d1 f 1 certified copy australian citizenship certificate michael hajaj dated 15 july 1976 d1 f 5 certified copy australian citizenship certificate kassem hajat dated 29 july 1980 d1 f 2 certified copy australian citizenship certificate rima adlouni dated 14 june 1988 d1 f 4 death certificate issued nini hospital tripoli fatme mohamad hajaj dated 10 january 1995 d1 f 24 15 visa applicant provided following identifying information child extract registration identity registration visa applicant dated 28 june 1999 d1 f 14 family registration chawq hajaj dated 28 june 1999 d1 f 15 family registration jamile hajaj dated 28 june 1999 d1 f 16 extract registration hanaa hajaj dated 28 june 1999 d1 f 17 extract registration wafaa hajaj dated 28 june 1999 d1 f 18 extract registration douaa hajaj dated 29 june 1999 d1 f 19 letter visa applicant employer d1 f 21 copy visa applicant daughter passport d1 ff 28 39 16 department requested united nation relief work agency verify visa applicant family composition confirmed composition one submitted visa applicant addition 2 sibling ali whose date birth october 1958 ahmad whose date birth january 1946 d1 f 69 17 visa applicant indicated application form divorced wife elan husein hajaj however date divorce included application form d1 f 49 departmental file divorce certificate issued religious court visa applicant former wife dated 2 june 1999 d1 f 22 copy divorce document issued religious sunnite court dated 2 june 1999 d1 ff 53 56 judiciary certificate visa applicant dated 28 june 1999 d1 f 23 18 department conducted interview visa applicant 27 january 2000 interview visa applicant said divorced wife relationship next door neighbour last saw 2 day interview gave money buy clothing child also second cousin see parent home uncle home visa applicant said divorced june 1999 gave right d1 f 80 19 department also interviewed daughter visa applicant day hanaa initially stated mother moved grandparent seen long time stated father visit mother almost daily heard sister chawq say mother father really divorced father told mother would follow australia family would reunited doaa also interview due young age able confirm mother visit home often d1 f 80 20 delegate stated visa granted basis visa applicant sibling lebanon could considered hisoverseas near relative delegate also found visa applicant divorce contrived purpose application visa applicant spouse sibling lebanon could also consideredoverseas near relative delegate based decision following evidence visa applicant disclose sister called fatme mohamad hajaj application form provided certificate hospital stating died 10 january 1995 official death certificate provided visa applicant verify sister death however recorded deceased unrwa official record check united nation relief work agency showed visa applicant also omitted 2 sibling application form ahmad ali recorded deceased delegate concluded 2 brother alive residing lebanon omitting sibling application form visa applicant attempted mislead department visa applicant religiously divorced wife 2 june 1999 divorce registered 21 june 1999 visa applicant continued contact former wife second cousin due child delegate found contact ex wife culturally norm believed divorce nothing divorce paper statement made visa applicant daughter hanaa doaa departmental interview supported delegate view visa applicant still spousal relationship ex wife 20 september 2001 unrwa confirmed elen husein hajaj visa applicant ex spouse 2 parent 8 sibling still alive evidence indicate resided country lebanon d1 ff 71 76 21 signed submission attached application review review applicant stated reason set believed delegate decision wrong 22 relation delegate concern genuineness visa applicant divorce spouse submission stated visa applicant divorce contrived migration purpose delegate findingsmerely relied circumstantial insinuation value judgement reason visa applicant sought divorce applying visa visa applicant humiliated ex wife infidelity prompted leave themiseryof refugee camp visa applicant contrive divorce migration purpose would done year ago delegate finding contact visa applicant ex wife cultural norm lebanon subjective delegate provide information regarding islamic post divorce custom verify finding visa applicant kept contact ex wife cousin mother child also live le 100 metre away would virtually impossible visa applicant contact contact visa applicant ex wife social relates welfare child testimony visa applicant 10 year old daughter hanaa used evidence legitimacy visa applicant divorce hanaa 15 year old sister chawq would illusion visa applicant ex spouse mother would reunite neither hanaa chawq informed parent anyone else visa applicant would reunite mother migrating australia visa applicant would able bring ex wife australia week migrated due australian immigration law permitting scenario visa applicant divorced wife family count overseas near relative 23 relation visa applicant sibling lebanon could consideredoverseas near relativesthe submission stated visa applicant brother ahmad hajaj resided australia became australian citizen 1973 copy australian citizenship certificate albert hajaj formerly known ahmad mohammed dated 28 july 1976 provided t1 f 5 visa applicant brother ali hajaj lived germany refugee since 1990 ali refused provide money support visa applicant visa applicant estranged t1 ff 13 17 certified copy certificate report register issued berlin 1 november 2001 ali hajjaj t1 ff 2 3 submission also attached certified copy death certificate fatemeh hajaj showing date death 20 july 1995 t1 ff 6 7 24 hearing review applicant stated circumstance divorce shameful family time visa application shortly divorce visa applicant explained detail child reason divorce child due age cultural upbringing enclosed nature refugee camp broad life experience help understand father mother permanently separated review applicant stated hanaa young girl upset mother naturally wanted parent back together 25 visa applicant stated hanaa told mother father separating mother would leave home started cry sister effort comfort told worry mother would join later australia order stop tear stated said interview contact ex spouse correct also stated try hard stop daughter contact ex spouse still still mother 26 visa applicant also stated divorced four year impossible reconciled ex spouse reason divorce one honour dignity 27 mr khaldoun hajaj stated visa applicant simple man much education stated visa applicant opportunity past migrate country australia refused like change changed mind shame divorce 28 questioned brother ali visa applicant stated contact brother brother family arrived germany 1991 stated brother arrived germany 1990 asked arrange travel arrange travel left lebanon legally travel czech republic know brother family reached germany 29 review applicant stated visa applicant forgotten say ali asked visa applicant also travel spouse four child dangerous woman pregnant child get german boarder black forest visa applicant accompany family ali refused contact visa applicant stated arranged ali send residency paper 30 mr khaldoun hajaj stated visa applicant would state ali asked accompany family ashamed accompanying ali family reflects manhood commitment brother 31 review applicant visa application stated chawq 18 year old work look younger sibling father working also household chore would able work palestinian lebanon findings32 finding based evidence contained file tribunal department oral evidence given hearing 30 may 2003 33 visa applicant applied visa basis satisfies subclause 104 211 2 clause 104 221 theremaining relativeof australian citizen nominator sponsored visa 34 subregulation 1 15 1 provides time application visa applicant remaining relative applicant relative including brother settled australian citizen citizen usually resident australia unless person disqualified subregulation 1 15 2 tribunal accepts evidence visa applicant review applicant full sibling tribunal find time visa application time decision review applicant relative visa applicant settled australian citizen tribunal also find visa applicant sponsored time application time decision review applicant australian relative term defined clause 104 211 2 regulation 1 15 turned 18 settled australian citizen 35 tribunal must also satisfied visa applicant disqualified remaining relative factor prescribed subregulation 1 15 2 tribunal must satisfied visa applicant anyoverseas near relative defined regulation living lebanon either time application time decision review applicant provided tribunal death certificate visa applicant sister fatme hajaj t1 ff 6 7 australian citizenship certificate brother albert hajaj formerly known ahmad mohammed t1 f 5 36 however eilan hajaj still spouse visa applicant visa applicant would disqualified aremaining relativeas sibling parent still live lebanon 37 review applicant provided tribunal document indicate visa applicant brother ali hajjaj resident germany since 31 august 1990 t1 ff 2 3 however visa applicant contact brother within reasonable period making visa application visa applicant come within definition ofremaining relative 38 visa applicant elder daughter chawq hajaj born 10 january 1985 18 year age adependent childof visa applicant defined regulation considered anoverseas relativeand visa applicant would come within definition ofremaining relative 39 28 april 2003 review applicant provided submission t1 ff 77 80 submission stated coincidence visa applicant divorce lodging visa application coincidence amount attempt defraud system submission state divorce four year ago letter support family friend neighbour visa applicant claim divorced attached t1 ff 72 76 submission stated visa applicant stated regular contact ex spouse time accurate visa applicant ex spouse lived metre first cousin time needed assistance looking child submission stated hanaa ten year old time interview natural would want parent reconcile submission state statement indicate time parent separated living roof 40 visa applicant ex spouse life close visa applicant mother five daughter unusual although casual contact somethings better dealt mother seem evidence neighbour family friend contact four year become le evidence reason tribunal find limited contact visa applicant ex spouse significant able find divorce genuine hanaa 10 year old interview divorce still recent would natural want parent together would missing mother would also natural fully understand full significance divorce would explained due age shame caused reason divorce therefore tribunal put weight stated hanaa interview light finding tribunal also find visa applicant ex spouse elan hajaj genuine divorce overseas relative relevant considering whether visa applicant come within definition ofremaining relative 41 onus visa applicant satisfy tribunal brother ali hajaj contact within reasonable period making visa application areasonable periodis generally taken three year although shorter circumstance 42 review applicant submission 28 april 2003 hearing stated visa applicant brother ali never contacted ali departed ali angry visa applicant accompany family dangerous trip czech republic particular black forest german border submission sated ali unemployed germany passport therefore cannot leave germany visa applicant state hearing asked accompany ali family however tribunal accepts mr khaldoun hajaj explanation matter shame visa applicant reason ali visa applicant contacted understandable ali expected visa applicant accompany pregnant spouse child dangerous trip visa applicant failed ashamed light evidence reason given tribunal find visa applicant brother ali hajaj contact since 1991 reasonable period visa application made august 1999 therefore tribunal also find ali anoverseas near relativethat must consider assessing whether visa applicant come within definition ofremaining relative 43 secondary applicant included father visa application dependant child visa applicant younger child doaa 9 year old wafaa 12 year old hanaa 14 year old jameelah 16 year old due age fact parent divorced live father visa applicant tribunal find dependent child visa applicant principal applicant 44 visa applicant eldest daughter chawq 18 year old considered anoverseas near relativeand able included father principal applicant visa application member principal applicant family unit must dependent principal applicant dependantis defined regulation 1 03 follows relation person mean wholly substantially dependent another person financial psychological physical support 45 evidence tribunal find chawq employed life father supported father visa applicant therefore evidence finding tribunal find chawq dependent visa applicant therefore anoverseas near relative defined regulation visa applicant 46 tribunal find secondary applicant dependent visa applicant therefore member visa applicant family unit tribunal also find secondary applicant meet criterion clause 104 311 47 light finding tribunal also find visa applicant came within definition ofremaining relativeat time visa application still come within definition time decision therefore tribunal also find visa applicant satisfies criterion clause 104 211 104 221 conclusion48 time visa application lodged class ay contained one subclass subclass 104 preferential family visa application made basis visa applicant claimed aremaining relativeof brother nayef hajaj evidence suggest visa applicant meet ground grant subclass 104 visa 49 given finding made earlier observation appropriate course remit visa application department consider remaining criterion visa visa secondary applicant found meet remaining criterion visa secondary applicant entitled grant preferential relative migrant class ay subclass 104 preferential family visa decision50 tribunal remit application made visa secondary applicant preferential relative migrant class ay visa department immigration multicultural indigenous affair reconsideration direction visa applicant meet following criterion subclass 104 preferential family visa clause 104 211 schedule 2 clause 104 221 schedule 2and secondary applicant meet criterion clause 104 311 schedule 2

Australian Securities and Investments Commission v Australian Mines Limited (No 2) [2023] FCA 468 (12 May 2023).txt

australian security investment commission v australian mine limited 2 2023 fca 468 12 may 2023 last updated 15 may 2023federal court australiaaustralian security investment commission v australian mine limited 2 2023 fca 468file number wad 84 2022judgment colvin jdate judgment 12 may 2023catchwords corporation application declaration pecuniary penalty disqualification order 1317g ands 206cof thecorporations act 2001 cth statement made second respondent knew false ought known materially misleading admission breach ofs 180of thecorporations act 2001 cth consideration appropriate disqualification period start date applicant second respondent agreed proposed order order made term proposed orderslegislation corporation act 2001 cth s 180 1317gcases cited australian security investment commission v australian mine limited 2023 fca 9australian security investment commission v blue star helium limited 4 2021 fca 1578division general divisionregistry western australianational practice area commercial corporationssub area regulator consumer protectionnumber paragraph 18date hearing 12 may 2023counsel plaintiff mr shariff sc mr chalkesolicitor plaintiff australian government solicitorcounsel first defendant first defendant appearcounsel second defendant mr pd evanssolicitor second defendant hfw australiaorderswad 84 2022between australian security investment commissionplaintiffand australian mine limited acn 073 914 191 first defendantbenjamin john bellsecond defendantorder made colvin jdate order 12 may 2023by consent plaintiff second defendantthe court declares pursuant tos 1317e 1 thecorporations act 2001 cth corporation act second defendant contraveneds 180 1 failing exercise power discharge duty degree care diligence reasonable person would exercise director corporation first defendant circumstance occupied office held responsibility within corporation second defendant making following representation aware ought reasonably aware representation false material particular materially misleading presentation given conference hong kong 23 april 2018 london 17 may 2018 first defendant secured finance construction processing plant plant thesconi project cobalt nickel scandium resource north queensland andthat sk innovation co ltd ski committed funding construction plant funding commitment representation ii presentation given conference hong kong 23 april 2018 london 17 may 2018 value term sheet offtake agreement ski dated 9 february 2018 offtake agreement first defendant based upon tonne per annum nickel sulphate cobalt sulphate supplied offtake agreement 5 billion value representation iii presentation given london 17 may 2018 condition offtake agreement ski commit funding construction plant offtake condition representation collectively therepresentations b made funding commitment representation offtake condition representation failing cause first defendant correct representation tell australian security exchange asx first defendant secured finance construction plant ski committed funding construction plant ii condition offtake agreement ski commit funding construction plant ski obligation fund construction plant together theski funding information c making value representation notwithstanding aware making similar 5 billion statement first defendant asx market announcement platform 21 february 2018 resulted asx making inquiry first defendant compliance australasian code reporting exploration result mineral resource ore reserve jorc code led first defendant issuing retraction via asx market announcement platform 28 february 2018 failing take reasonable step determine ensure value representation would lead asx requiring first defendant make corrective statement issue retraction respect compliance jorc code e made value representation failing cause first defendant correct representation inform asx modifying factor matter required jorc code ii value offtake agreement first defendant reduced buyer discount 15 base price paid cobalt nickel f causing first defendant contravenes 674 2 thecorporations actby 23 april 2018 27 june 2018 failing notify asx first defendant secured finance construction processing plant sconi project andski committed funding construction processing plant information material generally available within meaning asx listing rule 3 1 chapter 6ca thecorporations act circumstance presentation given conference hong kong 23 april 2018 london 17 may 2018 first defendant second defendant made funding commitment representation ii 17 may 2018 27 june 2018 failing notify asx condition offtake agreement ski commit funding construction plant andski obligation fund construction plant information material generally available within meaning asx listing rule 3 1 chapter 6ca thecorporations actin circumstance presentation given conference london 17 may 2018 first defendant second defendant made offtake condition representation iii 23 april 2018 27 june 2018 failing notify asx value offtake agreement reduced quantum buyer discount information material generally available within meaning asx listing rule 3 1 chapter 6ca thecorporations actin circumstance presentation given conference hong kong 23 april 2018 london 17 may 2018 first defendant second defendant made value representation thereby exposing first defendant risk proceeding contravention thecorporations act legal cost penalty fact commenced contravention referred paragraph 1 serious within meaning ofs 1317g 1 b iii thecorporations act court order pursuant tos 1317gof thecorporations act second defendant pay commonwealth australia pecuniary penalty amount 70 000 pursuant tos 206cof thecorporations actthe second defendant disqualified managing corporation period two year commencing 12 may 2023 second defendant contribute plaintiff cost proceeding agreed amount 60 000 court directs officer registry provide electronic copy joint submission upon request person note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgment revised transcript colvin j 2018 mr benjamin bell managing director australian mine limited aml also held shareholding aml 1 5 issued capital time aml small cap mining company seeking develop cobalt nickel scandium resource north queensland known sconi project project acquired project september 2017 mr bell gave presentation concerning project hong kong 23 april 2018 london 17 may 2018 presentation made statement finance funding project b existence commitment fund construction plant project buyer entered offtake agreement nickel sulphate cobalt sulphate produced project c value purchase commitment buyer offtake agreement statement made presentation inconsistent earlier information provided market aml respect position concerning project may 2022 australian security investment commission asic commenced proceeding aml mr bell claiming certain respect statement made presentation false materially misleading time statement made commitment funding project commitment fund construction plant offtake commitment mr bell knew statement false time made statement value purchase commitment offtake agreement ought known statement materially misleading addition mr bell take step immediately correct statement query raised asx corrective statement made aml 27 june 2018 therefore statement operative effect two month manifestly mr bell conduct fell well short degree care diligence reasonable person position would exercise discharge duty managing director company aml mr bell admits conduct contraveneds 180of thecorporations act 2001 cth agreed fact joined submission court consent declaration contravention imposition pecuniary penalty 70 000 disqualification managing corporation period two year court asked make order term one issue agreed starting date disqualification involvement management company setting start date mr bell submits allowance made fact effect disqualified reason proceeding support submission mr bell relies upon evidence court effect employment company terminated shortly commencement proceeding since time unemployed except short term contract geologist job detail conduct amount contravention may found reason given time order made aml based upon admission contravention australian security investment commission v australian mine limited 2023 fca 9 asic v aml conduct also described joint submission provided party support order sought consent reflect term agreed fact provided court party intend direct submission state material agreed fact within made available anyone seek read satisfied accurately present relevant matter fact law need recount order sought madeas satisfied conduct contraveness 180 declaration contravention must made seeaustralian security investment commission v blue star helium limited 4 2021 fca 1578at 36 bank smith j declaration also sought effect contravention serious within meaning ofs 1317g 1 b iii thecorporations act significance declaration effect pecuniary penalty may imposed serious contravention accept written submission effect court conclude contravention mr bell serious next issue determine whether period disqualification managing corporation appropriate view even taking account fact already period mr bell employed satisfied proposed period appropriate basis take effect today would unusual circumstance view alleged consequence proceeding period time part mr bell indicated intended defend proceeding ought taken account way involves form counting time determining appropriate period disqualification managing corporation otherwise significant conclusion two year appropriate period disqualification absence contention actual shareholder loss occasioned conduct mr bell distinct exposure risk loss claimed dishonesty nevertheless capital market depend upon provision accurate information particularly matter kind subject statement present case information funding offtake contract mining project undertaken small cap mining company fundamental investor company explanation given conduct taking matter account regard principle identified authority referred written submission satisfied proposed period disqualification appropriate final issue concern quantum penalty maximum penalty may imposed 200 000 party agreed 70 000 appropriate dealt relevant principle relation determining civil pecuniary penalty earlier reason concerning penalty aml seeasic v amlat 30 31 particular significance relation mr bell following 1 subject period disqualification managing corporation significant matter specific general deterrence 2 mr bell managing director aml time 3 conduct involved making statement mr bell knew false 4 statement immediately corrected issue drawn attention mr bell 5 conduct kind difficult regulator detect 6 conduct concerned fundamental obligation ensure market accurately informed continuous disclosure 7 suggestion dishonesty 8 although time mr bell indicated would defend claim admitted contravention 9 affidavit provided court mr bell stated follows unreservedly apologise honourable court stakeholder company discharging duty managing director australian mine required degree care diligence action resulted proceeding caused significant personal hardship embarrassment 10 mr bell resigned managing director aml employment terminated 11 mr bell since proceeding commenced able secure employment senior manager resource company 12 though may inferred conduct caused harm aml general reputational sense risk loss shareholder conduct asic lead evidence actual loss damage shareholder 13 mr bell conduct resulted proceeding brought aml imposition penalty 450 000 upon company 14 claim direct personal benefit mr bell 15 mr bell previously found contravened thecorporations act synthesising factor must regard maximum penalty may imposed consider proposed penalty reasonable appropriate achieve specific general deterrence reflect factor court must regard outlined joint written submission reason make order sought direct officer registry provide electronic copy joint submission upon request person certify preceding eighteen 18 numbered paragraph true copy reason judgment honourable justice colvin associate dated 15 may 2023

Confidential and Deputy Commissioner of Taxation [1997] AATA 194; 36 ATR 1118; 97 ATC 364 (10 June 1997).txt

confidential deputy commissioner taxation 1997 aata 194 36 atr 1118 97 atc 364 10 june 1997 last updated 7 may 2009administrativeappealstribunaldecision reason decision 11940administrative appeal tribunal nowt96 136taxation appeal division reconfidentialapplicantanddeputy commissioner taxationrespondentdecisiontribunalassociate professor r fayle senior memberdate10 june 1997placeperthdecisionthe decision review affirmed sgd r fayle senior membercatchwordsincome tax application lodge objection assessment arising tax audit period lodgement expired lengthy delay receiving assessment making request agent failed lodge objection within time limit guideline exercise discretion taxation administration act 1953 part ivc hunter valley development pty ltd v cohen 1984 fca 176 1984 3 fcr 344case w23 89 atc 253lucic v nolan 1982 45 alr 411reasons decision10 june 1997 associate professor r fayle senior member application mr j applicant pursuant tos 14zx 4 thetaxation administration act1953

Phonographic Performance Company of Australia Limited v Copyright Tribunal of Australia [2019] FCAFC 95 (6 June 2019).txt

phonographic performance company australia limited v copyright tribunal australia 2019 fcafc 95 6 june 2019 last updated 11 june 2019federal court australiaphonographic performance company australia limited v copyright tribunal australia 2019 fcafc 95appeal phonographic performance company australia limited unders 154 1 thecopyright act 1968 cth 2016 acopyt 3phonographic performance company australia limited unders 154 1 thecopyright act 1968 cth 2 2017 acopyt 1phonographic performance company australia limited unders 154 1 thecopyright act 1968 cth 3 2017 acopyt 2file number nsd 945 2016judges besanko middleton burley jjdate judgment 6 june 2019catchwords copyright application judicial review decision copyright tribunal australia made reference 154 4 thecopyright act 1958 cth first applicant sought approval licence scheme subscription television industry use copyright sound recording owned controlled person entity represents first applicant copyright collecting societyadministrative law whether tribunal asked wrong question failed accord procedural fairness first applicant tribunal engaged process judicial estimation determine whether proposed licence fee reasonable equitable circumstancesadministrative law whether tribunal failed consider charge payable second respondent pursuant agreement granted non exclusive licence broadcast communicate certain musical work lyric whether tribunal failed take account mandatory relevant consideration whether tribunal failed accord procedural fairness first applicant dealing clearly articulated case whether tribunal misconstrued circumstance 154 4 actadministrative law whether tribunal failed consider charge payable commercial television provider whether tribunal failed take account mandatory relevant consideration thereby failed accord procedural fairness first applicant whether tribunal made finding evidence irrational whether tribunal erred approach calculating substantial increase feesadministrative law whether tribunal erred determining power vary proposed licence scheme incorporate right licensed first applicant consideration power conferred tribunal 154 4 actcopyright consideration history context purpose part vi act consideration definition licence licensor licence scheme 136 1 act consideration nature licence scheme 136 1 actadministrative law whether appropriate set aside tribunal decision refer entire matter back tribunal reconsideration court power set aside part decision pursuant tos 16of theadministrative decision judicial review act 1977 cth tribunal treated decision price separately powerlegislation administrative decision judicial review act 1977 cth 5copyright act 1968 cth s 136 154 159copyright amendment act 2006 cth copyright design patent act 1988 uk s 116 118judiciary act 1903 cth 39bcases cited australian broadcasting tribunal v bond 1990 hca 33 1990 170 clr 321australian energy regulator v australian competition tribunal 2 2017 fcafc 79 2017 255 fcr 274australian postal corporation v rozario 2014 fcafc 89 2014 222 fcr 303craig v south australia 1995 hca 58 1995 184 clr 163deputy commissioner taxation v mutton 1988 12 nswlr 104dranichnikov v minister immigration multicultural affair 2003 hca 26 2003 197 alr 389fitness australia ltd v copyright tribunal 2010 fcafc 148 2010 89 ipr 442kirk v industrial court new south wale 2010 hca 1 2010 239 clr 531minister aboriginal affair v peko wallsend ltd 1986 hca 40 1986 162 clr 24minister immigration citizenship v li 2013 hca 18 2013 249 clr 332minister immigration citizenship v szmds 2010 hca 16 2010 240 clr 611minister immigration multicultural affair v rajamanikkam 2002 hca 32 2002 210 clr 222minister immigration multicultural affair v thiyagarajah 2000 hca 9 2000 199 clr 343minister immigration multicultural affair v yusuf 2001 hca 30 2001 206 clr 323probuild construction aust pty ltd v shade system pty ltd 2018 hca 4 2018 351 alr 225reference phonographic performance company australia ltd unders 154 1 thecopyright act 1968 2007 acopyt 1 2007 73 ipr 162reference byphonographic performance company australia limited undersection 154 1 thecopyright act 1968 2010 acopyt 1 2010 87 ipr 148sa power network v australian competition tribunal 2 2018 fcafc 3 2018 259 fcr 388universities uk ltd v copyright licensing agency ltd design artist copyright society ltd intervening 2002 emlr 35warren v coombes 1979 hca 9 1979 142 clr 531dates hearing 15 16 august 2018registry new south walesdivision general divisionnational practice area intellectual propertysub area copyright industrial designscategory catchwordsnumber paragraph 165counsel first applicant mr c dimitriadis sc mr free m f roughleysolicitor first applicant gilbert tobin lawyerscounsel second third fourth applicant mr r cobden sc mr w h wusolicitor second third fourth applicant mill oakleycounsel first respondent first respondent entered submitting notice save costscounsel second respondent mr r p lancaster sc mr n r murray mr b k limsolicitor second respondent minterellisonordersnsd 945 2016between phonographic performance company australia limited acn 000 680 704first applicantsony music entertainment australia pty ltd acn 107 133 184second applicantuniversal music australia pty limited acn 000 158 592third applicantwarner music australia pty limited acn 000 815 565fourth applicantand copyright tribunal australiafirst respondentfoxtel management pty limited acn 068 671 938second respondentjudges besanko middleton burley jjdate order 6 june 2019the court order pursuant 16 1 theadministrative decision judicial review act 1975 cth part decision copyright tribunal australia made 5 january 2018 varied first applicant licence scheme inclusion range right licensed first applicant licensed first applicant member non ppca right set aside matter referred copyright tribunal australia consideration confirmation variation substitution scheme tribunal considers reasonable order remove non ppca right licence consequential matter tribunal see fit consider accordance reason full court federal court australia published day party seek order cost shall file serve within seven day written submission limited five page setting order sought submission support thereof party opposes order cost shall file serve within 14 day written submission limited five page response order court judge court pursuant tos 37afof thefederal court australia act 1976 cth act ground identified 37ag 1 act publication disclosure unredacted reason judgment court restricted legal adviser party order court judge court purpose r 2 32 thefederal court rule 2011 cth unredacted reason judgment court confidential note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentthe court introductionthis application judicial review phonographic performance company australia limited ppca decision copyright tribunal australia tribunal ppca invokes jurisdiction court in 5of theadministrative decision judicial review act 1977 cth adjr act ands 39bof thejudiciary act 1903 cth thejudiciary act decision tribunal made reference unders 154 4 thecopyright act 1968 cth act resulted order made 5 january 2018 effect licence scheme referred tribunal varied form scheme annexed tribunal order respondent application tribunal foxtel management pty limited foxtel tribunal filed submitting notice tribunal delivered three set reason relevant order made follows phonographic performance company australia limited unders 154 1 thecopyright act 1968 cth 2016 acopyt 3 rd1 phonographic performance company australia limited unders 154 1 thecopyright act 1968 cth 2 2017 acopyt 1 rd2 phonographic performance company australia limited unders 154 1 thecopyright act 1968 cth 3 2017 acopyt 2 rd3 amended originating application judicial review ppca seek three declaration first seek declaration tribunal power 154 4 act make order varying licence scheme include right reason term ppca input agreement member licensors ppca hold authorised member licensors grant power grant secondly alternative ppca seek declaration variation order could would reasonable circumstance within meaning phrase 154 4 thirdly alternative first second declaration ppca seek declaration term first second declaration sought including identification right included licence scheme follows audiovisual streaming right extent right include right permit user make store copy audiovisual content later viewing oneoff basis rd 2 31 32 ii demand offering right extent right apply program feature film previously broadcast next 30 day broadcast subscription television provider rd 2 36 37 iii digital content rental right extent right apply program broadcast rd 2 42 44 ppca also seek order setting aside order made tribunal date made finally term substantive order ppca seek order remitting matter tribunal reconsideration according law accordance reason court tribunal included judge court circumstance court constituted full court federal court australia act 1976 cth 20 2 23 july 2018 sony music entertainment australia pty ltd sony universal music australia pty limited universal warner music australia pty limited warner collectively major joined applicant proceeding role proceeding limited order court submission hereafter described issue 5 power issue party application activitiesppca copyright collecting society established 1969 represents interest copyright licensors registered artist including record company australian recording artist owner exclusive licensee australia copyright commercially released sound recording associated cinematographic film licensed right ppca ppca grant licence authorising exploitation sound recording music video repertoire including public performance importantly form communication including broadcast ppca receives distributes licence fee us licensors registered user 4 rd 1 ppca company limited share shareholder sony universal warner company australia major record company agreement ppca licensors ppca obtains right grant licence copyright sound recording called input agreement input agreement licensors grant ppca non exclusive right grant non exclusive licence copyright sound recording owned controlled tribunal set non exhaustive list right relation sound recording granted ppca input agreement follows 6 rd 1 public performance causing sound recording heard public ii broadcasting transmission content via radio frequency spectrum cable optical fibre satellite iii datacasting iv simulcasting v webcasting non interactive pre programmed transmission internet mobile telecommunication network vi interactive webcasting vii audiovisual streaming communication audiovisual content public internet mobile telecommunication network communication network including mean interactive service linear channel copy created viii music hold communicating sound recording telephone caller hold mean ix demand offering program broadcast streaming timed podcasts x digital content rental making available rental content broadcast streaming timed podcasts xi technical copying right make copy sound recording purpose exercising right circumstance 107 act apply xii ephemeral copying right make use copy sound recording circumstance referred 107 3 act retain copy sound recording expiry 12 month period referred 107 5 act licence granted ppca covering sound recording repertoire referred blanket licence tribunal noted april 2015 ppca 1 766 licensors covering described vast repertoire includes 40 000 licensor label foxtel australia largest provider subscription television service manager foxtel partnership telstra corporation limited telstra news corp australia partnership interest foxtel held equal proportion telstra medium pty limited sky cable pty ltd may 2012 foxtel completed acquisition issued share austar united communication limited austar foxtel provides subscription television service former austar subscriber ground judicial review issuesbefore identifying ground judicial review convenient refer matter ppca relies establish person aggrieved decision ppca submits although tribunal concluded entitled substantial increase fee receives subscription television industry tribunal decision contrary interest member 1 refused confirm licence scheme referred tribunal 2 determined percentage increase substantial increase 3 made order reasonable circumstance including circumstance found tribunal required 154 4 act ppca advanced six ground judicial review amended originating application judicial review ground minus substantial particular accompanies follows tribunal jurisdiction make decision making decision involved improper exercise power conferred 154 4 act tribunal took account irrelevant consideration failed take account relevant consideration decision involved error law evidence material justify making decision tribunal based decision existence particular fact exist andthe making decision involved improper exercise power conferred 154 4 act exercise power decision unreasonable reasonable person could exercised power breach rule natural justice occurred connection making decision written outline submission orally hearing application ppca advanced argument reference five issue identified follows 1 tribunal asked wrong question provide procedural fairness ppca 2 tribunal failed consider charge payable foxtel use australian performing right association apra right 3 tribunal failed consider charge payable commercial television provider 4 calculation substantial percentage increase misfired 5 tribunal erred including right scheme ppca authority licence convenient analyse amended originating application judicial review reference five issue make clear focus ppca application insofar relies ons 39bof thejudiciary actwas jurisdictional error error identified 5 adjr act error law 5 1 f happens almost alleged error advanced ppca jurisdictional asking wrong question constructive failure exercise jurisdiction failure take relevant consideration account many case court referred party case involving claim jurisdictional error express court conclusion term judicially reviewable error includes jurisdictional error error identified 5 adjr act key aspect tribunal decisionin section reason summarise key aspect tribunal decision necessary examine particular aspect tribunal reason greater detail come consider five issue issue reference related principally exclusively issue price ppca licensed foxtel subscription television provider use sound recording repertoire since approximately 2001 current licence granted ppca foxtel dated 20 december 2004 backdated march 2001 licence fee paid foxtel ppca calculated reference fixed fee per month subscriber subscriber placed various group provision annual increase reference consumer price index agreement terminated 30 june 2011 scheme ppca referred tribunal ppca proposed scheme involved non exclusive licence run 1 july 2011 30 june 2016 significantly proposed scheme would impose final year financial year ending 30 june 2016 fee 0 24 foxtel gross revenue initial rate 2011 0 12 would gradually increase 0 24 rate ppca proposed scheme would increase fee payable foxtel 2014 year 846 tribunal said main dispute party concerned ascertainment appropriate fee determination whether paid reference revenue continue per subscriber per month pspm basis explain detail later approaching task concerning appropriate price pricing structure tribunal without complaint followed approach wellestablished considering following 1 whether market price price imposed 2 market price available tribunal consider whether determine bargain party might reached hypothetical negotiation willing anxious basis 3 possible determine bargain party might reached hypothetical negotiation tribunal examine comparable transaction see whether throw light price 4 exercise 3 provide answer tribunal engage process judicial estimation involve synthesis relevant fact circumstance rate tribunal regard reasonable equitable circumstance tribunal found mean market value right ppca proposed scheme may ascertained mean could determine ppca foxtel might deal hypothetical basis ground ppca amended originating application judicial review challenge tribunal conclusion point tribunal turned consider whether comparable bargain provided assistance tribunal identified number said potentially comparable transaction main transaction light ground ppca amended originating application judicial review identified tribunal follows 1 2004 ppca foxtel agreement 2 2006 apra foxtel agreement 3 2010 ppca freetv agreement 4 2012 apra freetv agreement 5 2013 apra foxtel agreement ppca foxtel called expert economics economic theory formulated applied valuation methodology incorporated one agreement ppca relied expert evidence mr thorpe advanced two approach valuation exercise alternative first top approach involved primarily use 2010 ppca freetv agreement second relativity approach involved formula incorporating rate 2010 ppca freetv agreement 2012 apra freetv agreement 2013 apra foxtel agreement foxtel relied expert evidence dr pleatsikas many respect adopted similar approach used mr thorpe relativity approach save except agreement considered relevant 2004 ppca foxtel agreement 2006 apra foxtel agreement 2013 apra foxtel agreement tribunal rejected approach advanced expert reason gave considered unsafe rely agreement least expert relied many ppca complaint amended originating application judicial review relate tribunal reason relying one agreement tribunal moved process judicial estimation context referred number matter expressed conclusion issue valuation follows 124 rd 1 tribunal concluded ppca entitled substantial increase fee receives subscription television industry floor increase may discerned reference 59 increase occurred thegyms case foxtel approximately 20 increase channel number redacted increase arpu relevant period floor may discerned growth line aspect subscription television protected nature sound recording communicated public via mean tribunal regard fundamental change nature industry way foxtel operates tribunal concluded ppca entitled 150 increase fee paid last year current agreement e year ending 30 june 2011 put another way new licence scheme percentage revenue rate applying final year reference 2 5 time greater percentage revenue rate implicit final year former agreement redaction original tribunal considered upheld submission fee longer calculated pspm basis instead made function revenue derived foxtel subscription television business 125 rd 1 rd 1 tribunal decided described direct pricing issue rd 2 tribunal resolved number issue including importantly purpose application power issue whether tribunal could impose non price term mean scheme inconsistent term ppca licensed member tribunal described streaming demand issue principal issue addressed tribunal rd 3 drafting consequence tribunal conclusion respect power issue issue 1 tribunal ask wrong question fail provide procedural fairness ppca order make good argument respect issue 1 ppca relies heavily approach tribunal describes 124 rd 1 paragraph set 33 reason current agreement referred 124 rd 1 2004 ppca foxtel agreement ppca submits tribunal adopted incorrect unsafe reference point identifying 2004 ppca foxtel agreement outdated historical bargain entered party 2004 ppca identified two question submits correct question reference 154 4 whether scheme proposed varied reasonable circumstance question whether increase rate found existing agreement quantum increase correct question ppca submits asking wrong question jurisdictional error well likely lead error jurisdictional failing consider relevant consideration considering irrelevant consideration ppca submits tribunal past identified number possible approach valuation task task determining whether proposed licence fee reasonable circumstance inreference phonographic performance company australia ltd unders 154 1 thecopyright act 1968 2007 acopyt 1 2007 73 ipr 162 reference phonographic performance company australia ltd tribunal identified number approach following passage 11 12 determining whether proposed scheme licence fee payable reasonable number approach might adopted approach include following may overlap certain extent market rate rate actually charged licence market similar circumstance notional bargain rate rate tribunal considers party would agree hypothetical negotiation willing anxious licensor willing anxious licensee comparable bargain bargain market sufficiently similar notional bargain provide guidance tribunal judicial estimation rate determined tribunal taking account range matter previous agreement negotiation party comparison jurisdiction comparison rate set licensors capacity pay value copyright material general public interest interest consumer administrative cost licensing body seeaudio visual copyright society ltd v foxtel management pty ltd 4 2006 acopyt 2 2006 68 ipr 367at 131 142 society contends essence market rate comparable bargain available present case tribunal approach therefore must combination notional bargain rate judicial estimation may latter includes former ppca submits tribunal adopt approach submits approach adopted tribunal fixing floor based increase fee unrelated industry indicates tribunal strayed statutory task determining whether scheme variation reasonable circumstance addition ppca submits tribunal give opportunity heard approach thereby denied procedural fairness way putting procedural fairness argument differs way argument put indranichnikov v minister immigration multicultural affair 2003 hca 26 2003 197 alr 389 dranichnikov argument indranichnikovwas formulation incorrect question meant case advanced properly considered decision maker whereas said formulation incorrect question meant ppca opportunity address basis upon case actually decided ppca submits step tribunal reasoning follows 1 tribunal began stating correctly approach take 2 tribunal accepted essentially correct contention ppca licence historically undervalued 3 tribunal took wrong turn asking substantial increase fee ppca received subscription television industry acknowledged earlier reason 2004 ppca foxtel agreement safe source data present exercise 65 rd 1 would quite unsound rely 2004 ppca foxtel agreement convey relevantly comparable information appropriate pricing structure 2011 91 rd 1 ppca expanded submission tribunal erred relying substantial increase unrelated industry pointing fact percentage increase licence fee use gymnasium music fitness class 1 incorrectly used floor percentage increase tribunal prepared award ppca 2 subject incorrect calculation tribunal 59 fact 158 tribunal breach rule procedural fairness ignored ppca submission correcting error 3 based assumption incorrect namely agreement ppca gymnasium owner relevant television audiovisual use broadcasting communication contrast submission proceeds contemporaneous bargain namely 2013 apra foxtel 2010 ppcafreetv 2012 apra freetv agreement evidence use ppca word obviously relevant statutory task foxtel submits tribunal asked correct question deciding whether case overall structure tribunal reason need considered overall structure follows 1 tribunal start setting correct test 2 tribunal find market rate principally market ppca occupies position monopolist market provision sound recording three major record label tribunal find although market acquisition right use sound recording foxtel likely monopolist practical term however ppca choice deal foxtel tribunal satisfied market price could determine way tribunal could determine ppca foxtel might deal hypothetical basis regard circumstance tribunal considered whether comparable transaction threw light price 3 potentially relevant transaction 2004 ppca foxtel agreement 2006 aprafoxtel agreement 2010 ppca freetv agreement 2012 apra freetv agreement 2013 apra foxtel agreement agreement foxtel record company licensing broadcast music video audio channel three decision tribunal fixing rate paid foxtel rebroadcasting free air television foxtel agreement phonographic licensed telstra iinet fetch tv right use sound recording communicating audiovisual content public tribunal rejected approach expert respective party mr thorpe ppca concluded safe use 2010 ppca freetv agreement 56 60 rd 1 dr pleatsikas foxtel concluded 2004 ppcafoxtel agreement safe source data present exercise 65 91 rd 1 reached conclusion tribunal turned methodology involving judicial estimation 4 tribunal described judicial estimation process assessment pertinent circumstance many conflict direction towards tend involving question degree judgment calculus answer right although right others tribunal key conclusion follows first tribunal considering extent foxtel need ppca blanket licence concluded foxtel substantial user ppca repertoire generally required ppca permission blanket licence infrequently secondly tribunal found credit given ppca historic undervaluation licence although possible put precise figure extent undervaluation entirely clear tribunal meant comment think acknowledging purpose determining weight given fee paid past allowance tribunal could quantify made fact licence past undervalued term fee paid thirdly tribunal found change content platform revenue needed taken account fourthly tribunal found agreement put forward party useful term able derive value ppca would provide foxtel provide range 2004 ppca foxtel agreement bottom end 2010 ppca freetv agreement top end fifthly tribunal found none agreement referred provided assistance sixthly tribunal considered convenience party licence stated although convenient party balance favoured ppca without licence foxtel would incur significant administrative cost dealing copyright owner individually seventhly tribunal considered significance commercial sound recording television eighthly tribunal considered prior payment copyright owner ninthly tribunal considered value recorded music general finally tribunal expressed conclusion 124 rd 1 set 33 turn address briefly relevant legal principle tribunal fall error law cause ask wrong question thereby commits jurisdictional error craig v south australia 1995 hca 58 1995 184 clr 163at 179 kirk v industrial court new south wale 2010 hca 1 2010 239 clr 531at 67 per french cj gummow hayne crennan jj kiefel j honour bell j probuild construction aust pty ltd v shade system pty ltd 2018 hca 4 2018 351 alr 225at 65 per gageler j tribunal asks wrong question may also ignore relevant material take account irrelevant material ignoring relevant material may fail address substantial clearly articulated argument plurality high court said inminister immigration multicultural affair v yusuf 2001 hca 30 2001 206 clr 323 yusuf 82 different kind error may well overlap circumstance particular case may permit one characterisation error identified example decision maker asking wrong question ignoring relevant material failure tribunal respond deal substantial clearly articulated argument relying established fact least failure accord natural justice dranichnikovat 24 per gummow callinan jj opinion tribunal ask wrong question section 154 4 act provides tribunal shall consider scheme referred section giving party reference opportunity presenting case shall make order confirming varying scheme substituting scheme another scheme proposed one party tribunal considers reasonable circumstance tribunal described function conclusion following term 14 rd 1 tribunal authorised approve licence scheme substitute another scheme proposed party term considers reasonable circumstance 154 4 act giving party reference opportunity present case relation price term pricing formula tribunal satisfied remuneration provided scheme reasonable equitable correct statement test 154 4 tribunal noted principal debate concerned question price summarised conclusion 15 rd 1 tribunal summarised current agreement ppca foxtel scheme proposed ppca alternative scheme proposed foxtel tribunal reverted topic approach must take said 34 35 rd 1 statutory task tribunal one conferred upon 154 4 act say making order confirm vary substitute scheme tribunal considers reasonable circumstance standard requires relation imposition pricing structure remuneration reasonable equitable relation non price term question whether term reasonable circumstance correct statement test tribunal referred four approach identified inreference phonographic performance company australia ltd found none first three approach provided solution issue tribunal proceeded engage task judicial estimation ground ppca amended originating application judicial review challenge particular matter discus matter point note stage stated test correctly indication tribunal reason stage considered must approach issue exercise judicial estimation departed correct test tribunal stated without error opinion process judicial estimation involved synthesis relevant fact circumstance rate tribunal regard reasonable equitable circumstance 36 rd 1 tribunal considered following matter part engaging process judicial estimation 1 extent foxtel need ppca blanket licence 2 historic undervaluation ppca licence 3 change content platform revenue 4 agreement industry including 2004 ppca foxtel agreement 2006 apra foxtel agreement 2010 ppca freetv agreement 2012 aprafreetv agreement 2013 apra foxtel agreement foxtel music video audio channel licence b foxtel production music licence c tribunal determination involving screen right 5 iptv agreement 6 convenience party 7 significance music 8 prior payment 9 value recorded music general tribunal expressed conclusion appropriate valuation unable see analysis tribunal departed correct test previously stated fact proceeded arrive valuation reference increase existing agreement indicate changed correct test incorrect test said come consider particular matter ppca submits involve judicially reviewable error considering ground opinion tribunal err asking wrong question ask wrong question fail accord procedural fairness ppca issue 2 failure consider charge payable foxtel use apra rightsone main agreement relied ppca 2013 apra foxtel agreement agreement made 18 july 2013 entitled subscription television service licence scheme agreement foxtel granted non exclusive licence broadcast otherwise communicate musical work associated lyric within apra repertoire redacted licence fee payable apra foxtel period 31 january 2013 31 december 2018 provided tribunal subject confidentiality order written submission application ppca produced table set charge payable licence scheme proposed ppca varied tribunal charge payable licence industry charge payable 2013 apra foxtel agreement 2010 ppca freetv agreement 2012 apra freetv agreement information concerning charge payable licence confidential table confidential annexure reason table show charge 2013 apra foxtel agreement redacted charge payable scheme approved tribunal said ppca copyright collecting society publication sound recording sound recording copyright copyright relating recording particular performance embodiment work protected part iv act one right bundle right comprising copyright exclusive right communicate relevant subject matter public may include broadcast authorise others apra collecting society communication public musical work musical work copyright protected part iii act one right bundle right comprising copyright exclusive right communicate relevant subject matter public may include broadcast authorise others person broadcast otherwise communicates public commercially released music typically requires licence musical work copyright sound recording copyright tribunal observed ppca licensing right part iv act communicate sound recording public different principle licensing right part iii act communicate public original musical work composition score contrasted particular recording score artist 41 rd 1 noted tribunal inreference phonographic performance company australia ltdin passage set 38 reason said various approach may overlap certain extent market rate comparable bargain available circumstance tribunal approach must combination notional bargain rate judicial estimation tribunal case said judicial estimation may include notional bargain rate tribunal also said question context comparable bargain whether provide guidance tribunal context judicial estimation range matter taken account including previous agreement negotiation party comparison rate set licensors case tribunal considered four approach identified tribunal inreference phonographic performance company australia ltdsequentially eliminating one approach moving next tribunal found market rate notional bargain rate focus tribunal inquiry comparable transaction matter relevant task judicial estimation ppca suggest error tribunal approach point even would firmly reject challenge tribunal consider 2013 apra foxtel agreement considering whether comparable transaction provided guidance appropriate charge said context ppca adduced evidence mr thorpe foxtel adduced evidence dr pleatsikas need refer respective approach detail mr thorpe two approach top approach relativity approach involved use 2013 apra foxtel agreement integer formula said could used basis determining fee paid foxtel ppca said mr thorpe top approach involved use 2010 ppca freetv agreement key agreement tribunal explain 2013 apra foxtel agreement used integer mr thorpe top approach nevertheless rejected mr thorpe top approach concluded would quite unsafe use 2010 ppca freetv agreement comparable transaction mr thorpe relativity approach also involved use 2013 apra foxtel agreement integer case approach relativity rate 2010 ppcafreetv agreement rate 2012 apra freetv agreement determined applied rate 2013 apra foxtel agreement number complexity approach tribunal identify resolve seems need concluded could utilise approach safe use 2010 ppca freetv agreement tribunal reasoning conclusion safe use 2010 ppca freetv agreement subject challenge ppca tribunal decision consider due course purpose considering tribunal approach 2013 apra foxtel agreement assume tribunal reasoning conclusion respect 2010 ppca freetv agreement correct dr pleatsikas approach also involved use 2013 apra foxtel agreement integer understand approach similar mr thorpe relativity approach save used 2004 ppca foxtel agreement 2006 apra foxtel agreement tribunal rejected approach various reason tribunal identified consider 2004 ppca foxtel agreement safe source data present exercise 65 rd 1 tribunal reached conclusion none comparable transaction relied upon party suitable proceeded undertake task judicial estimation part reason referring task judicial estimation tribunal referred lengthy submission provided party said considered tribunal reason dealt considered relevant decision find necessary refer everything referred referred matter generally tribunal regard material question advancing matter far sufficiently far meaningful impact process judicial estimation 94 rd 1 tribunal consider agreement industry potentially relevant referred agreement involving foxtel freetv ppca apra said already dealt agreement said none agreement proved useful derive value ppca provide foxtel however provide range 2004 ppca foxtel agreement likely lead undervaluation ppca right 2010 ppca freetv agreement likely lead overvaluation right amended originating application judicial review ppca identified number error tribunal respect 2013 apra foxtel agreement error failure take account relevant consideration ground 2 iii e error law ground 3 e exercise power unreasonable reasonable person could exercised power ground 5 c general comment observe ground amended originating application judicial review allocated one five issue refined time submission made error ppca identified relation 2013 apra foxtel agreement follows first tribunal failed take account mandatory relevant consideration failure material decision secondly tribunal failed accord procedural fairness ppca tribunal deal clearly articulated case alternative inferred reasoning misconstrued statutory phrase circumstance 154 4 act clear submission advanced relation tribunal consideration 2013 apra foxtel agreement context process judicial estimation le clear whether advanced context tribunal consideration comparable transaction ppca submit 2013 apra foxtel agreement closely comparable bargain failure take account failure take account mandatory relevant consideration circumstance consider submission context start tribunal consideration 2013 apra foxtel agreement context consideration comparable transaction concluded 2013 apra foxtel agreement mandatory relevant consideration even taken account tribunal relevant principle mandatory relevant consideration well known first necessary identify consideration decision maker bound take account consideration consideration may identified express statement relevant act case particular matter identified 154 4 licence scheme defined 136 1 party given opportunity present case tribunal jurisdiction limited scheme considers reasonable circumstance reference relevant section section 2010 apra foxtel agreement relevant consideration sensibly industry agreement comparable transaction transaction tribunal considers comparable clearly end inquiry subject matter scope purpose relevant act may indicate particular matter must taken account minister aboriginal affair v peko wallsend ltd 1986 hca 40 1986 162 clr 24 peko wallsend 39 40 per mason j honour inquiry conducted primarily perhaps even entirely reference act rather particular fact case decision maker called upon consider yusufat 73 per mchugh gummow hayne jj plurality inyusufwent say 74 deny consideration advanced party importance deciding relevant consideration may example particular statute make matter advanced course process decision making relevant consideration decision maker important however ground judicial review fasten upon use made relevant irrelevant consideration concerned essentially whether decision maker properly applied law ground centrally concerned process making particular finding fact upon decision maker act emphasis added think industry agreement comparable transaction tribunal considers comparable transaction mandatory relevant consideration tribunal given broad power make order considers reasonable circumstance must make evaluative judgment variety approach possible tribunal said inreference phonographic performance company australia ltdand appropriate approach may well dictated defined fact particular case failure take said comparable transaction account may constitute judicially reviewable error ground indicates tribunal asked wrong question ground failed deal clearly articulated claim advanced respectful view industry agreement comparable transaction tribunal considers comparable transaction mandatory relevant consideration event 2013 apra foxtel agreement taken account tribunal tribunal analysed rejected evidence expert incorporated 2013 apra foxtel agreement integer opinion fee paid foxtel ppca requirement agreement given particular weight mason j said inpeko wallsend 40 41 even matter relevant consideration must taken account unless act prescribes weight given particular consideration weight given particular consideration matter decision maker failure decision maker consider clearly articulated argument may give rise failure accord procedural fairness therefore jurisdictional error dranichnikovat 24 per gummow callinan jj foxtel submits particular type jurisdictional error identified ppca amended originating application judicial review despite fact application amended one occasion decided argument rejected merit need deal objection would say substantive argument merit would disposed allow ppca raise amended originating application judicial review raise closely allied point foxtel sufficient notice argument event submission context tribunal treatment comparable transaction merit tribunal clearly dealt ppca case respect 2013 apra foxtel agreement advanced expert mr thorpe turn ppca argument concerning 2013 apra foxtel agreement context tribunal process judicial estimation reason already given industry agreement comparable transaction tribunal considers comparable transaction mandatory relevant consideration substantial submission made ppca 2013 apra foxtel agreement also advanced freestanding agreement relevant tribunal process judicial estimation yet tribunal failed deal said agreement period involved licensee similar right fact right put use foxtel providing subscription television service ppca submits disparity fee 2013 apra foxtel agreement fee scheme approved tribunal former must ignored overlooked tribunal foxtel raised two preliminary objection argument first ppca fact raise tribunal clearly articulated claim 2013 apra foxtel agreement freestanding agreement relevant process judicial estimation ppca submits raised matter pointed closing written submission dated 30 april 2015 6 249 6 251 paragraph follows 6 249 rate apply pursuant 2012 apra freetv agreement 2013 apra foxtel agreement set part 6 e redacted even allowance made material difference ppca apra including appropriate discount reflect fact apra repertoire redacted 6 250 consolidating contemporaneous apra agreement contemporaneous 2010 ppca freetv agreement following table indicates ppca historical subscription tv agreement proposed ppca foxtel licence fee compare 6 251 consolidated table indicates extent ppca proposed licence fee arrangement accepted tribunal would bring quantum ppca foxtel licence fee closer relevant analogous industry bargain table consolidates one place ppca licence agreement foxtel closest competitor ie freetv licence arrangement foxtel freetv closely analogous licensor ppca ie apra make eminent sense agreement tribunal ought place greatest attention reliance determining reasonable fee compensates ppca nature extent foxtel exploitation present circumstance opposed ten year ago copyright subject ppca blanket licence opinion argument advanced secondly foxtel raised point failure deal clearly articulated claim type advanced ground ppca identified amended originating application judicial review take approach objection taken context tribunal consideration comparable transaction see 80 reason submission 2013 apra foxtel agreement freestanding agreement relevant part ppca case respect process judicial estimation must considered following factual legal context 1 2013 apra foxtel agreement integer valuation analysis purpose considering comparable transaction analysis rejected tribunal 2 understand ppca submit context process judicial estimation reliance apra foxtel agreement produce particular result term figure relevance ppca case pointing higher redacted figure scheme ultimately approved tribunal 3 one view difficult see precisely agreement used found context tribunal consideration comparable transaction relativity ppca apra could established understand expert sought establish relativity reference direct comparison involving agreement mr thorpe case 2010 ppca freetv agreement 2012 apra freetv agreement dr pleatsikas case 2004 ppca foxtel agreement 2006 apra foxtel agreement 4 matter potentially relevant process judicial estimation numerous question handful matter matter numerous general proposition unsurprising circumstance significant matter mentioned 5 reason think tribunal unaware charge 2013 apra foxtel agreement set table put despite said consider submission advanced party circumstance said 6 reason think considering agreement industry relevance process judicial estimation tribunal consider 2013 apra foxtel agreement true tribunal said ithad already dealt withthe agreement select one providing bottom end range providing top end range reason think consider five major agreement relied party including 2013 apra foxtel agreement 7 already said generally speaking question weight accorded matter decision maker full court court said insa power network v australian competition tribunal 2 2018 fcafc 3 2018 259 fcr 388at 14 inaer v australian competition tribunal court considered length 133 159 tribunal authority function court judicial review decision tribunal repeat analysis except repeat observation made earlier full court inpilbara infrastructure pty ltd v australian competition tribunal 2011 fcafc 58 2011 193 fcr 57at 16 follows court function resolve difficult complex matter judgment raised evidence resolved tribunal court role reviewing decision tribunal ensure decision tribunal accord law inre minister immigration multicultural affair ex parte applicant s20 2002 2003 hca 30 2003 198 alr 59 77 aljr 1165 114 said part supervisory jurisdiction court enter upon consideration factual merit individual decision ground judicial review ought used basis complete evaluation finding fact reconsideration merit case litigation argument ventilated failed person designated repository decision making power 8 requirement tribunal position copyright tribunal case refer every submission evidentiary matter put inaustralian energy regulator v australian competition tribunal 2 2017 fcafc 79 2017 255 fcr 274at 278 full court said said ground 7 application adjr act alleges tribunal take account reason given aer argument raised aer come deal particular matter raised aer stage general level note observation full court court inapplicant waee v minister immigration indigenous affair 2003 fcafc 184 2003 236 fcr 593at 47 inference tribunal failed consider issue may drawn failure expressly deal issue reason inference readily drawn reason otherwise comprehensive issue least identified point may unnecessary make finding particular matter subsumed finding greater generality factual premise upon contention rest rejected however issue raised evidence advanced behalf applicant contention made applicant issue resolved one way would dispositive tribunal review delegate decision failure deal published reason may raise strong inference overlooked considered foregoing matter carefully consider apparent tribunal overlooked 2013 apra foxtel agreement would infer done opinion tribunal consider 2013 apra foxtel agreement real assistance uncoupled relativity analysis tribunal merit approach may debated involve judicially reviewable error failing consider clearly articulated claim argument issue 3 failure consider charge payable commercial television providersthe commercial television provider referred statement issue free air television provider agreement specifying charge 2010 ppca freetv agreement 2012 apra freetv agreement ppca general submission respect issue similar general submission respect second issue say tribunal ought regard agreement determining charge paid foxtel however tribunal failed relevant ground amended originating application judicial review relation issue similar raised relation second issue ground 2 e failure take account relevant consideration 3 e error law 5 c exercise power unreasonable reasonable person could exercised power one major addition ppca claim tribunal made number specific error course analysis rejecting 2010 ppca freetv agreement comparable bargain deciding place weight fact freetv party could terminated agreement elected ppca claim curious one rubric failing take account relevant consideration taking account irrelevant consideration ground 2 f pleads number error tribunal decision reject 2010 ppca freetv agreement comparable bargain nub allegation complaint fact finding process ground 2 h materially similar use phrase failing take account particular fact deciding whether agreement comparable bargain convert complaint particular finding complaint failure take account relevant consideration within 5 1 2 adjr act common law ground 4 ppca make allegation respect two specific matter ground 2 f e ii one matter ground 2 h e evidence material justify making decision tribunal based decision existence particular fact exist ppca point disparity charge scheme approved tribunal agreement relied case 2010 ppca freetv agreement see confidential annexure doubt true significant disparity charge ppca first submission tribunal applied high standard determining whether agreement comparable bargain purpose analysis ppca referred comment made tribunal effect top approach viable would necessary satisfied 2010 ppca freetv agreement product circumstance might reasonably thought reflective situation free far possible market imperfection 47 rd 1 ppca argument high standard regard ultimate criterion tribunal decision say reasonable circumstance particular alleged error identified ground amended originating application judicial review event reject argument tribunal reason must read whole indication tribunal rejected reliance agreement unless entirely free market imperfection tribunal alive need adopt practical approach remark relied ppca contains reference far possible context discussing 2010 ppca freetv agreement tribunal used phrase reason doubt substantial risk 53 rd 1 uncertainty sufficient persuade 56 rd 1 ppca also submits tribunal erred concluding market condition 2010 ppca freetv agreement negotiated imperfect extent argument particularised dealt ppca submits 2010 ppca freetv agreement mandatory relevant consideration substantial clearly articulated part case considered tribunal order accorded procedural fairness argument context similar put ppca relation 2013 apra foxtel agreement reject reason additional matter noted case 2010 ppca freetv agreement specifically mentioned tribunal context process judicial estimation fact formed basis upper limit range adopted tribunal trite say issue whether tribunal correct whether considered matter legally obliged consider ppca submits two finding made tribunal evidence irrational court referred number authority dealing evidence ground judicial review common law 5 1 h 3 adjr act clear common law skerrick evidence rebut evidence allegation error law making wrong finding fact australian broadcasting tribunal v bond 1990 hca 33 1990 170 clr 321at 355 357 per mason cj concluded finding tribunal evidence need discus circumstance finding evidence give rise error law go jurisdiction seeaustralian postal corporation v rozario 2014 fcafc 89 2014 222 fcr 303 need consider issue arise connection 5 1 h 3 adjr act discussed high court inminister immigration multicultural affair v rajamanikkam 2002 hca 32 2002 210 clr 222 finally tribunal conclusion without evident intelligible justification irrational necessary u consider issue arisen relation ground unreasonableness irrationality minister immigration citizenship v li 2013 hca 18 2013 249 clr 332 minister immigration citizenship v szmds 2010 hca 16 2010 240 clr 611 first two finding identified ppca tribunal assumed without evidence freetv party may attributed inflated value ppca right july 2010 basis tribunal public decision thegyms case reference byphonographic performance company australia limited undersection 154 1 thecopyright act 1968 2010 acopyt 1 2010 87 ipr 148 argued conclusion drawn absence direct evidence light particularly light following matter 1 tribunal decision thegyms casewas challenge time 2010 ppca freetv agreement negotiated challenge subsequently upheld fitness australia ltd v copyright tribunal 2010 fcafc 148 2010 89 ipr 442 2 thegyms caserelated materially different us unrelated industry 3 freetv party highly sophisticated well resourced party legal advice information discovery service lay expert evidence licensee negotiating licence would ordinarily matter true general level thegyms caseconcerned much fitness australia ltd body representing interest fitness industry pay owner copyright sound recording right play recording exercise class nothing suggest tribunal aware matter take account case evidence irrationality finding tribunal conclusion reason doubt reliability 2010 ppca freetv agreement measure correct value ppca right substantial risk fee value disclosed may high seems u case number undisputed fact tribunal drew certain inference fact another decision maker may drawn different inference appeal might even said tribunal erred warren v coombes 1979 hca 9 1979 142 clr 531 express view matter critical point basis conclude evidence support inference drawn tribunal irrational illogical opinion analysis applies second finding raised ppca submits tribunal decision place weight fact freetv party subsequently opportunity terminate agreement decided decision evidence irrational tribunal took view possible explanation freetv position tribunal said 55 rd 1 57 constituent member signed agreement may conflicting view terminating would mean least complex negotiation ppca quite possibly litigation tribunal may freetv regard whole episode closed related sense cost may already passed budget others possible say case even exclude possibility explanation opinion analysis conclusion applies respect second finding applies case first finding fact evidence enables tribunal make definite finding explanation freetv position mean tribunal entitled take account possible explanation freetv position tribunal expert body entitled take approach whilst another decision maker might taken different view circumstance establish judicially reviewable error ppca also argued tribunal erred approach 2012 apra freetv agreement argument relation agreement similar argument advanced respect 2013 apra foxtel agreement reject argument reason reject argument relation agreement issue 4 calculation substantial percentage increase misfiredwe rejected ppca primary submission tribunal erred approaching matter nominating percentage value considered substantial increase fee receives subscription television industry ppca submits even accepting conclusion purpose issue 4 error tribunal assessment appropriate percentage increase ppca submits percentage increase determined reference increase occurred thegyms case 59 reason fact difference television use fitness class clear ppca submits evidence tribunal rendered agreement gymnasium owner relevant circumstance subscription television scheme tribunal secondly ppca submits tribunal failed take account evidence fee increase nightclub industry figure order 1400 submits adopting percentage increase approach tribunal unreasonably focused setting floor range consider might relevant guide appropriate percentage increase furthermore submits percentage calculated wrong even limited evidence tribunal thirdly ppca submits understood inconsistency tribunal relying negotiated outcome thegyms casein settlement litigation relevance task judicial estimation one hand rejecting safe percentage increase historical licence fee reflected contemporaneous bargain within commercial television industry namely redacted increase achieved ppca settlement freetv none alleged error involves judicially reviewable error matter going merit involving assessment evaluation tribunal weight accorded factor tribunal able bound take account example giving weight fee increase nightclub industry go tribunal jurisdiction involve error law error fact percentage increase assuming occurred without jurisdictional error error law issue 5 tribunal err including right scheme ppca authority license tribunal reasoningthe tribunal determined direct pricing issue party 13 may 2016 rd 1 remained resolution number issue tribunal identified resolved decision 21 july 2017 rd 2 one defined tribunal power issue follows power issue question whether tribunal could impose non price term mean scheme inconsistent term ppca licensed member licensing took place agreement called input agreement ppca submission tribunal could scheme license foxtel act ppca authorised input agreement power issue arose disagreement ppca foxtel certain non price term licence scheme described tribunal rd 2 streaming demand issue streaming demand issue scheme proposed ppca foxtel receive inter alia right use ppca sound recording part audio visual content streamed foxtel internet communication network e part broadcasting service within meaning ofpart 2of thebroadcasting service act 1992 cth ppca proposed scheme foxtel however permitted keep copy program streamed nature remains subscriber perspective ephemeral foxtel submits user permitted keep temporary copy subsequent replay similar debate remained demand right ppca proposes unlike streaming right demand right contemplates subscriber permitted receive content store period time device however ppca proposal occur content broadcast actual part foxtel regular subscription television service e via hfc cable satellite broadcast within 30 day foxtel seek modify right delete requirement also debate long subscriber may store program foxtel resists ppca argument storage capped 12 month tribunal resolved power issue favour foxtel reasoned follows 1 source subscription television broadcast licence scheme proposed ppca set licence agreement member called input agreement ppca licensors executes input agreement grant ppca non exclusive licence right relating exploitation relevant sound recording non exclusive licence right others term input agreement inconsistent term proposed foxtel operation scheme relation streaming issue demand issue ppca contended within power tribunal approve scheme extends beyond content agreement member 2 tribunal considered legal effect power approve scheme derive existence licence collecting society may hold member act require licence exists machinery legislation operate reference licence rather critical provision concerning power tribunal subsection 154 4 159 1 act set 118 119 former authorises tribunal confirm alter scheme referred collecting society latter give defence action infringement person operating scheme tribunal reasoned neither provision consistent ability licence collecting society member constrain tribunal may may determine way scheme 154 4 section 154 4 term contemplates variation indeed wholesale replacement scheme put forward collecting society would lacuna scheme contained part vi division 3 act collecting society could prevent tribunal exercising power amendment replacement device entry input agreement member authorising scheme society put forward 159 1 depend efficacy upon existence licence collecting society member operated directly reference scheme approved tribunal scheme tribunal fully liberty amend see fit point scheme part vi create ability license right owner case decision maker regulates monopoly asset pricing tribunal would accept existence input agreement matter take account assessing reasonable circumstance 154 4 however controlling matter reason already given 3 tribunal turned consider streaming demand issue party agreed scheme include grant foxtel audiovisual streaming right entitled make temporary copy purpose however foxtel sought ensure user could also make temporary copy device phone tablet personal computer tribunal characterised idea permit user stream program device subsequent replay ppca resisted inclusion term basis tribunal power absent ppca granted right input agreement copyright owner rejected ppca submission relation power issue tribunal concluded scheme accommodate right sought foxtel 4 tribunal also noted dispute scheme would involve grant foxtel demand offering right make content available communication network streaming use podcast expires fixed period differed audiovisual right included permission user make copy program applied broadcast would broadcast next 30 day subscription television provider ppca submitted restriction required input agreement tribunal note advance substantive argument restriction exist tribunal persuaded timing restriction supported input agreement justified reason 5 next relevant dispute concerned way definition demand offering right operated defined mean right subscription television provider make available program streaming timed podcast via internet mobile network communication network problem definition program consequence program already broadcast via satellite hybrid fibre co axial hfc service could program consequence demand offering right would available programming already broadcast way foxtel submitted reason definition program limited program broadcast ppca submitted internationally used definition program formed part input agreement tribunal see rationality ppca requirement regard conclusion power issue accepted position advanced foxtel 6 result tribunal determined range right must licensed ppca licensed ppca member identified within licence scheme non ppca right rd 2 resolved number issue consider relevant address work tribunal however complete rd 3 dated 22 november 2017 tribunal resolved three matter one concerned drafting implication tribunal decision relation power issue particularly ppca contended scheme make clear authorised grant non ppca right licence granted scheme reason tribunal decision tribunal agreed course consequence following term inserted scheme provide convenient mean non ppca right may identified 2 1 consideration payment subscription television provider licence fee accordance clause 5 subject term condition agreement ppca grant subscription television provider non exclusive licence subscription television broadcast licence scheme within australia permit exercise broadcast right broadcast ppca sound recording via subscription television service residential subscriber commercial subscriber broadcast right licence b request permit exercise new medium right communication ppca sound recording subscriber new medium right licence c permit exercise right granted broadcast right licence new medium right licence way enhanced content permit exercise technical copying right 2 2 party acknowledge agree ppca authorised input agreement ppca licensors grant licence following right included definition certain new medium right accordingly grant licence right clause 2 1 audiovisual streaming right extent right include right permit user make store copy audiovisual content later viewing one basis ii digital content rental right extent right apply program broadcast iii demand offering right extent right apply program feature film previously broadcast next 30 day broadcast subscription television provider collectively non ppca right b copyright tribunal australia determined subscription television broadcast scheme nevertheless include licence non ppca right subject term condition agreement emphasis added challenge tribunal reasoningthe applicant e ppca major contend decision tribunal relation power issue involves six error within provision adjr act ands 39bof thejudiciary act first contend tribunal jurisdiction make order varying licence scheme include right reason term input agreement member ppca hold ground 1 secondly contend making decision involved improper exercise power conferred 154 4 act failed take account wrongly regarded irrelevant term input agreement ground 2 thirdly contend reason decision tribunal involved error law ground 3 fourthly contend evidence material justify making decision tribunal based decision existence particular fact exist ground 4 fifthly contend decision involved improper exercise power conferred 154 4 act exercise power unreasonable reasonable person could exercise power ground 5 sixthly contend breach rule natural justice occurred tribunal made determination certain right included proposed licence scheme without hearing party receiving evidence rationale right exclusion right included licence scheme referred ppca ground 6 submission partiesppca major adopt approach ground principal submission tribunal power make order 154 4 act insofar extends licence scheme includes licence non ppca right follows submit correct construction s 136 1 154 1 act regard textual consideration history context regard commence proposition controversial right sound recording administered ppca limited extent right licensed ppca input agreement member owner controller sound recording copyright foxtel contends tribunal correct conclude power provide non ppca right scheme submits 154 4 confine respect scheme referred tribunal might varied substituted scheme might varied respect charge condition may varied respect class case subject licence licensor owner express limitation power tribunal vary scheme reasonable circumstance foxtel submits fundamental error ppca attack tribunal conclusion proposition scheme varied substituted 154 4 must comply strictly definition licence scheme 136 particular must reflect class case licensor willing grant licence foxtel note defined term licence scheme appear 154 4 submits wrong mechanically read term 154 4 definition would appropriately work imported citingdeputy commissioner taxation v mutton 1988 12 nswlr 104at 108 strictly literally import definition licence scheme 136 would give absurd unworkable operation 154 4 every scheme varied substituted tribunal would outside power since would longer scheme formulated licensor required definition similarly accept proposition power limited circumstance licensor person whose behalf licensor act willing grant licence unworkable absurd licensor owner could strike agreement specifies matter willing include tribunal would powerless depart state affair foxtel submits evidence finding tribunal major unable license non ppca right proper inference copyright owner able foxtel argues fundamental error part applicant focus ppca licensor content input agreement exclusion major copyright owner submission tribunal jurisdiction licensors misconceived tribunal jurisdiction consider scheme referred 154 1 power vary considers reasonable circumstance turning challenge submission advanced applicant licence scheme must order comply definition 136 built around certain class case foxtel submits scheme varied tribunal meet requirement referable built around relevant class case class right related right communicate sound recording foxtel submits scheme originally proposed ppca tribunal included within optional extension licence separate fee audiovisual streaming right digital content rental right demand offering right included within right collectively defined new medium right non ppca right accordingly understood simply contested aspect three category new medium right required addressed tribunal reference legal character controversial aspect new medium right restrict right communicate ppca sound recording public right describe act comprised copyright expressed 85 act substantive class conduct right rather foxtel submits relax certain restriction sought placed right accordingly regarded addressing incidental condition characteristic new medium right ppca otherwise right license foxtel also submits construction adopted tribunal contends supported history context purpose 154 act relevant term actthe definition licence licence scheme licensor set 136 1 act follows 1 part unless contrary intention appears licencemeans licence granted behalf owner prospective owner copyright work subject matter act comprised copyright licence schememeans scheme including anything nature scheme whether called scheme tariff called name formulated licensor licensors setting class case licensor licensors willing person whose behalf licensor licensors act willing grant licence charge subject payment condition subject licence would granted class case licensormeans body corporate following condition met body incorporated law force state territory relating company b body constitution entitles owner copyright owner copyright specified kind become member body ii requires body protect interest member connected copyright iii provides main business body granting licence iv requires body distribute member proceeds deduction body administrative expense payment body licence v prevents body paying dividend section 154 provides 1 licensor proposes bring licence scheme operation may refer scheme tribunal 2 party reference section licensor referring scheme b organization person apply tribunal made party reference accordance next succeeding subsection made party reference c australian competition consumer commission tribunal make commission party reference section 157b 3 organization whether claiming representative person requiring licence person whether requiring licence applies tribunal made party reference tribunal satisfied organization person substantial interest operation scheme reference relates tribunal may think fit make organization person party reference 4 tribunal shall consider scheme referred section giving party reference opportunity presenting case shall make order confirming varying scheme substituting scheme another scheme proposed one party tribunal considers reasonable circumstance 5 order interim order tribunal section may notwithstanding anything contained licence scheme relates made force either indefinitely period tribunal think fit 6 licence scheme referred tribunal section licensor may either following thing bring scheme operation tribunal make order pursuance reference b withdraw reference time tribunal make order pursuance reference whether scheme brought operation 7 scheme reflecting tribunal order come operation order made scheme referred tribunal already come operation b operates long order remains force subsection effect despite anything scheme referred tribunal note depending tribunal order scheme reflecting order scheme confirmed order scheme varied order scheme substituted order scheme referred tribunal subsection 159 1 2 act provide order section 154 155 156 1 order made reference part respect licence scheme time force person case scheme reflecting order applies anything apart subsection would infringement copyright would infringement holder licence granted accordance scheme far scheme relates case order applies person shall complied relevant requirement like position proceeding infringement copyright material time holder licence 2 purpose last preceding subsection relevant requirement material time person concerned complied condition accordance scheme reflecting order would applicable licence respect case concerned b accordance scheme charge payable respect licence material time person concerned paid charge licensor operating scheme time amount payable could ascertained given undertaking writing licensor pay charge ascertained consideration power issuefor reason follow respectfully consider tribunal erred concluding power vary licence scheme proposed ppca incorporate non ppca right relevant jurisdiction tribunal provided part vi act aspect part subject amendment introduced thecopyright amendment act 2006 cth 2006 amendment explanatory memorandum thecopyright amendment bill 2006 explanatory memorandum note page 3 many change implement government response report entitledjurisdiction procedure copyright tribunalprepared copyright law review committee dated december 2000 section 154 act entitled reference proposed licence scheme tribunal 154 1 provides alicensorproposes bring alicence schemeinto operation may refer scheme tribunal subsection 154 2 provides party reference 154 thelicensorreferring scheme b person apply tribunal made party made party tribunal accordance 154 3 turn provides person applying made party must substantial interest operation scheme c australian competition consumer commission tribunal make commission party reference 157b definition licence licensor licence scheme adopt significance present debate appear 136 1 set 117 definition licence introduced 2006 amendment explanatory memorandum state purpose amendment change range licence subject application tribunal go say subject regard new definition licensor new definition cover licence act comprised copyright work subject matter explanatory memorandum p 174 item 1 earlier definition licensor repealed replaced definition set 117 explanatory memorandum indicates purpose amendment limit licence licence scheme subject application reference copyright tribunal collectively administered accordingly licensor must able grant licence substantial number copyright work subject matter class material example literary work musical work sound recording made various different creator licensor may authority owner relevant copyright exclusive licensee agent owner p 174 item 2 noted earlier present case licensor ppca definition licence scheme remains unaltered 2006 amendment licence scheme scheme formulated licensor collecting body recalled licence scheme copyright licence scheme provides grant licence grant right arises someone seek licence scheme granted one according definition scheme must three characteristic follows first must set class case licensor person whose behalf licensor act broadly copyright owner willing grant licence word class case refer view incident copyright owner give permission collecting society licence apparent licence concern defined granted owner work subject matter act comprised copyright use word class case serf leave open precise incident copyright copyright owner might choose authorise collecting society license scheme instance present case scheme proposed ppca concern copyright sound recording right copyright owner respect set 85 1 act involve exclusive right following act make copy sound recording b cause recording heard public c communicate recording public enter commercial rental arrangement respect recording use class case instead class act definition licence scheme indicates refined subdivision particular aspect copyright may licensed broader class act nominated 85 1 regard recalled copyright personal property transmissible assignment devolution operation law 196 1 assignment copyright may limited way including apply one class act virtue act owner copyright exclusive right including class act separately specified act comprised copyright fall within class act specified 196 2 assignment may also limited place part australia 196 2 b apply part period copyright subsists 196 2 c similarly aspect copyright may part whole subject either exclusive non exclusive licence granted respect aspect copyright part thereof section 137 entitled case licence scheme apply provides follows 1 purpose part case shall subject next succeeding subsection deemed case licence scheme applies accordance licence scheme time operation licence would granted case 2 purpose part accordance licence scheme licence would granted would subject condition virtue particular matter would excepted licence b case relates one matter falling within exception case shall deemed case scheme applies section identifies case one licence scheme applies accordance licence scheme time operation licence would granted case 137 1 unless licence would granted would subject condition particular matter would excepted licence case case deemed one scheme applies 137 2 way potential overlap condition case identified case concern licence whole part copyright condition term concern scope right granted instance include term going provision warranty mechanic payment regime dispute resolution term choice law term reference made class case several part act instance 155 provision made reference existing licence scheme tribunal dispute arises licensor either organization claiming representative person requiring licence case included class case scheme applies person claiming require licence case similar provision made 156 1 reference class case aspect copyright respect licence required distinction case case charge condition also reflected language 159 subsection 159 1 provides order respect licence scheme force person case applies anything apart section would infringement copyright would infringement holder licence scheme far schemerelates casesto order applies person shall defence infringement proceeding complied relevant requirement relevant requirement identified subsection 159 2 compliance theconditionsthat would applicable licence respect case concerned b payment anychargesin respect licence accordingly view definition licence scheme identifies first characteristic scheme formulated licensor set aspect incident copyright respect licensor licensors person whose behalf act willing grant licence second characteristic must set charge subject payment licence would granted class case third characteristic scheme must set condition subject licence would granted section 136 2 provides reference condition reference condition condition relating payment charge noted 137 deems case subject licence condition provides exempted jurisdiction tribunal arises licensor proposes bring licence scheme operation refers scheme tribunal 154 1 subsection 154 4 provides tribunal shall consider scheme referred section reference scheme licence scheme identified subsection 154 1 three characteristic identified definition 136 1 regard context reference scheme appears unable accept submission advanced foxtel scheme regarded different meaning view reinforced interchangeable reference scheme licence scheme appear subsection 154 5 7 also apparent language 159 1 refers consequence arising w order made reference part respect alicence schemeis time force plainly reference defined term tribunal 154 4 empowered make order confirming varyingthe schemeor substituting forthe schemeanotherschemeproposed one party tribunal considers reasonable circumstance applicant contends scope tribunal power constrained scope authority conferred licensor collecting society copyright owner input agreement copyright owner grant licence collecting society respect aspect copyright tribunal power add referred scheme substituted scheme foxtel submits tribunal power subject constraint variation substitution reasonable circumstance view reference scheme 154 4 understood consistently throughout subsection licence scheme defined whilst referred scheme may varied substituted end result approved tribunal must still scheme three characteristic identified central first requirement class case subject licence one licensor collecting society person whose behalf licensor act broadly owner copyright iswilling grant reference willing context understood mean person prepared offer licence particular aspect class case copyright subject scheme taken together matter indicate class case licensor person whose behalf licensor willing grant licence part copyright interest owner offered collecting society licence scheme referred tribunal may varied licensor time time second third characteristic charge condition applied contain reference willingness otherwise licensor person whose behalf licensor act accordingly scheme determined tribunal includes condition charge conflict proposal made people remain within definition licence scheme within power tribunal provided reasonable circumstance view approach consistent policy purpose part vi act confer tribunal power supervise relationship collecting society person need licence starting point mandated 154 1 voluntary offer licence scheme licensor behalf member scheme compulsory license right addressed provision act indeed absence prescriptive provision applicable compulsory licensing provides indication correct approach ppca contends willing grant licence respect non ppca right also input agreement copyright owner represents granted licence respect right result submits owner also willing grant licence class case furthermore ppca able extent reference input agreement distracts real point turn willingness otherwise party mentioned grant licence respect class case identified ascertained form licence scheme proposed licensor represents interest copyright owner accordingly may taken reflect willingness consequence construction tribunal power vary scheme proposed licensor insofar affect class case respect licence proposed granted view lead absurd unworkable result foxtel contends subdivision h s 154 159 division 3 part vi act concern regulated approval licence scheme volunteered right owner licence scheme contrasted grant statutory licence act statutory mechanism provide compulsory licence certain act within copyright owner subject certain proviso example latter 108 act provides defence copyright infringement sound recording performed public term requiring inter alia payment copyright owner equitable remuneration amount determined tribunal party unable agree 154 act degree decisional freedom given tribunal impose reasonable charge condition licensor expand case respect copyright licence granted would permit tribunal impose compulsory licence upon right owner circumstance act indicates intention foxtel submits approach taken inuniversities uk ltd v copyright licensing agency ltd design artist copyright society ltd intervening 2002 emlr 35 university uk united kingdom copyright tribunal christopher floyd qc evelyn cribb angela howorth considered question jurisdiction tribunal copyright design patent act 1988 uk uk act adopted section 116 uk act relevantly provides licensing scheme mean scheme setting class case operator scheme person whose behalf act willing grant copyright licence b term licence would granted class case section 118 1 provides term licensing scheme proposed operated licensing body may referred tribunal either generally relation description case 118 3 relevantly provides tribunal shall consider matter referred make order either confirming varying proposed scheme either generally far relates case description reference refers tribunal may determine reasonable circumstance collecting society submitted tribunal jurisdiction compel inclusion within licence scheme approved licence copy material certain course pack part input agreement collecting society within repertoire right tribunal rejected submission finding licence scheme properly referred tribunal jurisdiction consider restriction reasonable circumstance 59 tribunal said 65 exercise tribunal jurisdiction cannot occur owner right voluntarily decided participate licensing scheme ost tribunal work consists imposing term party unable agree tribunal award favourable term licensee offer term imposed mean tribunal creating compulsory licensing scheme right holder always free withdraw scheme foxtel submits approach adopted present case however number factual legislative difference indicate would unsafe apply reasoning present case first non ppca right right respect owner right voluntarily decided participate contrary appear input agreement formed part licence scheme referred ppca tribunal secondly act right holder always free withdraw scheme subsection 154 6 provides limited right licensor collecting society withdraw reference time tribunal make order right conferred copyright owner copyright owner automatically party reference tribunal tribunal discretion grant leave owner appear substantial interest operation scheme reference relates 154 3 thirdly licence scheme approved tribunal present case clause 4 provides removal sound recording repertoire licensed scheme licensors ppca power remove limited right granted ppca clause 2 agreement would therefore apply non ppca right included tribunal foxtel submits non ppca right described cl 2 2 iii scheme made tribunal simply contested aspect three category new medium right submits legal character controversial aspect right restrict right communicate ppca sound recording public describe act comprised copyright expressed 85 act substantive class conduct right rather relax certain restriction sought placed right therefore address incidental condition characteristic new medium right ppca otherwise right license put tribunal determination reference submits scheme varied tribunal referable built around class case put forward ppca particular class case within right communicate sound recording referred audiovisual streaming right digital content rental right demand offering right reason given agree case identified definition licence scheme equated act comprised copyright identified 85 act may depending licence scheme include much narrower incident right conferred copyright owner taking example first three right subject contention case audiovisual streaming right ppca proposed 1 1 f audiovisual streaming right mean right communicate cleared ppca sound recording reproduced audiovisual content enhanced content excluding avoidance doubt music video radio program public internet mobile telecommunication network communication network known developed future including mean interactive demand service linear channelswhere copy audiovisual content temporary copy form fixed file data user subsequently play audiovisual content created user playback device fn subject input agreement ia amendment emphasis added foxtel submits practical effect scheme would permit user stream watch listen came onto device permit user stream delay watch later timing issue tribunal final version replaced italicised word copy made subscription television service audio visual content temporary copy technical reason user instead viewing audiovisual content store instead later viewing one basis version permitted streaming storage watching later foxtel submits change character adjustment condition audiovisual streaming right conferred alters effect qualification make alteration substance far consumer concerned far foxtel concerned use sound recording applicant submits scheme varied right class case completely different character ppca version audiovisual streaming right stream content user could watch immediately store retain approved scheme user granted right retain length time content provided longer streaming right right download store accept submission advanced applicant alteration term audiovisual streaming right serve impose condition charge alter case respect licensee may use copyright work ppca proposal confer right download store may inferred right owner willing change digital content rental right demand offering right similar effect case licence scheme proposed ppca curtailed use right result person used right manner inconsistent scheme would benefited protection 159 1 act change made tribunal condition class case respect licensor willing grant licence accept conclusion consequence role tribunal extent limited approach adopted present case however tribunal remains free adjust charge considers constraint licence offered licensor relevantly diminishes value scheme offered view approach legislative scheme intended necessary u address detail non ppca right found licence scheme subject determination tribunal must posse characteristic defined licence scheme including class case relevant person willing grant neither ppca copyright owner represented willing grant licence respect non ppca right example modification audiovisual streaming right demonstrates non ppca right class case scheme applied representing basis upon copyright owner permit aspect copyright work reproduced reason given tribunal power propose scheme respect class case licensor willing license accordingly find tribunal jurisdiction make order varying licence scheme include non ppca right reliefthe court decided tribunal erred including non ppca right approved scheme court concluded challenge tribunal decision rejected party written outline orally addressed order made event outcome party accepted court vary approved scheme matter needed go back tribunal term referral back tribunal dispute foxtel submitted referral back tribunal limited proposed following order pursuant 16 1 theadministrative decision judicial review act 1975 cth part decision copyright tribunal australia made 5 january 2018 varied first applicant licence scheme inclusion non ppca right set aside matter referred copyright tribunal australia consideration confirmation variation substitution scheme tribunal considers reasonable order remove non ppca right licence consequential matter tribunal see fit consider accordance reason full court federal court australia published date submitted pricing decision found without error treated separately tribunal would unfair foxtel submitted make order effect requiring party start delay cost would involve ppca submitted appropriate order set aside tribunal decision refer whole matter back tribunal reconsideration light court reason court accepts foxtel submission make order proposed court power set aside part decision 16 1 adjr act note high court said inminister immigration multicultural affair v thiyagarajah 2000 hca 9 2000 199 clr 343at 32 term 16 adjr act subject narrow restrictive construction tribunal treated decision price separately power former held involve judicially reviewable error opinion stand event term order make give tribunal opportunity deal consequential matter tribunal see fit consider conclusionthe court make following order 1 pursuant 16 1 theadministrative decision judicial review act 1975 cth part decision copyright tribunal australia made 5 january 2018 varied first applicant licence scheme inclusion range right licensed first applicant licensed first applicant member non ppca right set aside 2 matter referred copyright tribunal australia consideration confirmation variation substitution scheme tribunal considers reasonable order remove non ppca right licence consequential matter tribunal see fit consider accordance reason full court federal court australia published day court hear party question cost party seek order cost shall file serve within seven day written submission limited five page setting order sought submission support thereof party opposes order cost shall file serve within 14 day written submission limited five page response court also make non disclosure confidentiality order respect unredacted reason say reason include confidential annexure certify preceding one hundred sixty five 165 numbered paragraph true copy reason judgment herein honourable justice besanko middleton burley associate dated 6 june 2019annexure redacted

Re Lesley Davies v Gwendoline May Ninness [1986] FCA 50 (6 March 1986).txt

lesley davy v gwendoline may ninness 1986 fca 50 6 march 1986 federal court australiare lesley daviesand gwendoline may ninnessno act g48 1985damagescourtin federal court australiaaustralian capital territory district registrygeneral divisionsheppard j neaves j pincus j catchwordsdamages award personal injury plaintiff 66 year age time trial 60 year age date injury serious injury left arm injury resulting permanent pain disability including double vision award reduced question principle hearingcanberra6 3 1986orderthe appeal allowed amount judgment entered favour respondent supreme court australian capital territory varied substituting amount 90 300 amount 64 670 respondent pay appellant cost appeal note settlement entry order dealt order 36of federal court rule decisionthis appeal judgment supreme court australian capital territory gallop j adjudged respondent recover appellant sum 90 300 way damage respect personal injury suffered respondent motor accident neither honour u issue liability case one assessment damage 2 respondent born 21 november 1918 time trial 66 year age injured accident occurred 21 july 1979 writ proceeding issued 22 september 1983 probably respondent adviser waiting injury settle proceeding damage assessed respondent husband killed accident 3 period hospital returned home swansea near newcastle new south wale honour summarized injury suffered plaintiff follows 1 open fracture mid shaft humerus leftarm damage nerve upper arm particularly theradial nerve 2 fracture right collar bone 3 laceration left eye back head 4 head injury causing disruption vision 5 emotional shock 4 respondent spent 24 day royal canberra hospital discharge went home one son canberra stayed five week care son wife respondent able look properly also noticed vision blurred could see double vision daughter law bathed helped meal dressed generally supervised convalescence respondent depressed sick tired constantly pain 5 one respondent principal problem injury caused left arm whilst hospital canberra operation performed intermedullary rod inserted 2 november 1979 respondent admitted royal newcastle hospital dr ostinga orthopaedic surgeon performed operation left humerus excised nail inserted compression plate operation found wide separation bone end 3 centimetre mentioned fracture humerus complicated damage nerve upper arm particularly radial nerve prolonged treatment including physiotherapy plate worked free bone graft failed 6 respondent readmitted newcastle hospital 24 march 1980 second bone grafting procedure performed using larger plate screw procedure technically satisfactory time went became obvious also failing third operation performed 27 april 1982 operation bone stimulator used satisfactory union humerus achieved july 1982 stimulator removed occasion initial operation canberra respondent hospital one week operation performed general anaesthetic donor site respectively respondent left hip right hip pelvis 7 respondent left arm supported sling time accident stimulator removed july 1982 still us sling go house support arm give 8 honour made finding respondent residual disability said appellant submitted respondent complaint residual disability supported medical evidence finding honour made follows 1 respondent lost considerable amount movement andpower left arm raise forward andsideways waist level cannot lift front ofher bent elbow higher shoulder level without theassistance right hand severely restricted inher pre accident leisure activity sewing knitting andcrocheting left arm ache get pin andneedles right arm finger nearly every day respondent nevertheless full range movement inher left elbow shoulder honour said atemainly right hand use lefthand bent towards food rather lifting thefood towards mouth shopping walkedabout one mile home shop pulling trolley shop deliver purchase week herkitchen activity avoided heavy lifting 2 fracture right shoulder never treated wasleft knit accord never done hishonour found respondent left verylarge bony bridge extending superiorly posteriorly overthe back clavicle associated swelling push onstructures neck cause pain discomfort medical evidence accepted honour therespondent choice swelling removed thereby alleviating effect pressure however thismay leave unstable fracture clavicle ununited may require bone grafting preponderanceof medical opinion avoid furthersurgery clavicle right side respondenthas lost power right arm pain swellingin neck earlier referred 3 honour accepted evidence given respondent inaddition pain right side neck alsosuffered pain cervical spine due adegenerative condition spine aggravated bythe injury sustained accident honour thought thecondition unlikely improve likely remain muchthe rest respondent life 4 respondent constant pain hip bonegrafts take four pain killer per day two themorning two evening 5 respondent scar left eyebrow fivecentimetres two inch length obvious andtends obscured glass respondent also hasa scar back head within hairlineand ordinarily visible scar leftbig toe long scar left humerus extendingup shoulder 6 respondent double vision treatment canbe prescribed honour described disability onewhich quite annoying crippling time respondent watch much television beforethe accident tended miss step time totime falling kerb take special care whenwalking step driven motor vehicle sincethe accident cannot see properly notthink arm would enable handle steeringwheel event 7 respondent shooting pain left eye two tothree time per week 8 respondent cannot play card cannot shufflethem tends drop cannot swim theinability use arm 9 respondent made substantial claim cost domestic help first claim made pursuant decision high court griffith v kerkemeyer 1977 hca 45 1977 139 clr 161 period five week looked daughter law canberra honour allowed 500 claim challenge based absence particular prior trial application adjournment trial made result late furnishing particular suggested appellant otherwise embarrassed reason disturbing part assessment 10 pursuant principle honour allowed respondent 6 000 assistance rendered sister last five year newcastle amount arrived allowing two hour week rate 9 50 per hour sum allowed past amount 300 delivery charge made delivering shopping 1 500 gardening expense substantive challenge inclusion item award made complaint however made failure respondent solicitor provide particular trial opinion circumstance provides basis court interference award disturbed far item concerned 11 contentious matter concern claim made respondent cleaning respondent weatherboard house due black film develops house swansea area film doubt caused result operation number industrial undertaking area respondent gave evidence husband used work husband used top part house lower part cleaning work done time hearing claim honour allowed future evidence given cost cleaning 160 twice year honour allowed respondent sum 320 per year work future 12 honour lumped together continuing expense thought respondent would incur household help delivery charge gardening house cleaning came 1 655 per year honour said life expectancy 66 year old female 16 38 year according australian life table concluded allowing vicissitude life change respondent living circumstance became older allowed twelve year expense future said multiplied 19 860 rounded 20 000 13 honour noted medical expense paid appellant behalf respondent amounted 11 352 56 included award 14 honour provisional assessment various component making award follows general damage 50 000 00domestic assistance given bythe daughter law 500 00domestic assistance renderedby sister past 6 000 00past delivery charge 300 00past gardening expense 1 500 00future expense domesticassistance delivery charge gardening house cleaning 20 000 00 total 78 300 00 15 honour considered figure 78 300 global sum thought safe confirm provisional assessment 9 july 1985 gave judgment respondent sum 78 300 16 invited submission question cost counsel raised honour question interest general damage respect past honour thought appropriate apportion purpose interest sum 50 000 treating 30 000 appropriate past 20 000 appropriate future assessed interest rate 7 per cent 30 000 period 5 3 4 year yielded figure 12 075 rounded 12 000 vacated earlier order added sum 12 000 78 300 thus reaching conclusion award damage 90 300 directed judgment accordingly 17 number challenge made honour award summary 1 honour erred finding respondent hadlimitations amount movement left arm 2 much reduced figure awarded respect ofthe cleaning outside house 3 period twelve year future expense wereallowed long 4 honour error multiplying figure selected asthe annual cost expense incurred result theaccident number year claim wasaccepted honour discounted figure inaccordance principle decided todorovic v waller 1981 hca 72 1981 150 clr 402 discount factor applied was3 per cent 5 overall assessment 50 000 general damage wasexcessive 6 selection 30 000 appropriate figure pastpain suffering loss amenity life excessive award interest damage awarded past headswas challenged rate 7 per cent per annum said figure upon rate ofinterest calculated substantially le 30 000 turn deal challenge 1 basis submission apparently conflictingevidence given respondent one hand hertreating orthopaedic surgeon dr ostinga inrelation extent limitation movement sufferedby respondent left arm shoulder herevidence respondent said arm still lotof power complained could herhousework said could move waistheight could lift right referred anumber household duty example problem shehad one hanging washing line according evidence put left hand onthe line low lift long itremains use peg clothes bypassing left hand right hand ifthe hand come line fall cannot useit respondent also said cannot move leftshoulder fully report dated 6 march 1985 dr ostinga said therespondent presented full range movement theshoulder elbow said weakness armdue scarring muscle left side added weakness however fairly mild oralevidence said well mr ninness complaining typeactually saw last think march1985 said full range ofmovement shoulder complain ofsome weakness arm said shegot aching believe time thisis common fracture change weatherand forth extent ofher symptom told later dr ostinga said well may say mr ninness elderly shehas rendered widow accident shehas reason pain neck left armand right clavicle probably somelimitation movement left arm shehad become aware tried thegardening although could thing inthe garden think could heavywork honour resolution apparent conflict evidence follows turn residual disability thedefendant submitted plaintiff scomplaints residual disability notsupported medical evidence thereforemake following finding fact relationto left arm lost considerableamount movement power left arm raise forward sideways aboutwaist level cannot lift front herbent elbow higher shoulder levelwithout assistance right hand isseverely restricted pre accident leisureactivities sewing knitting crochetingbecause left arm ache get pin andneedles right arm fingersnearly every day full range ofmovement left elbow shoulder sheeats mainly right hand doesuse left hand bend towards foodrather lifting food towards mouth mostly shopping walk theshops one mile home pulling atrolley shop deliver purchasesonce week kitchen activity sheavoids heavy lifting submission counsel respondent honour finding inconsistent counsel pointed particularly two sentence quoted passage honour judgment first lost considerable amount movement power left arm second full range movement left elbow shoulder perceive conflict honour said first sentence dealing problem respondent relation movement power left arm loss power recalled doctor opinion due scarring muscle injury elbow shoulder joint second sentence dealing range movement joint nevertheless conflict dr ostinga respondent degree weakness left arm doctor view weakness mild view honour accepted something honour entitled open accept respondent serious limitation movement left arm deposed extent evidence conflict view dr ostinga open honour accept respondent evidence discard dr ostinga evidence opinion submission honour erred finding respondent serious limitation amount degree movement left arm rejected 2 mentioned honour allowed respondent sum 320 per year cost cleaning house thiswas basis cost would 160 twice year accident respondent husband used dothis cleaning husband would upper part thehouse respondent lower part respondent atno time work husband notsuggested evidence ever capable doingit doubt need stand ladder orscaffolding work respondent presently hasdone work cleaning whole house justso much formerly done husband plainlyshe would able carry work cleaningthe lower part house variousdisabilities doubt upon basisthat honour included amount award findit difficult see inclusion total cost ofcleaning house could justified respondent hadnot injured may could engagedsomeone help clean house work whichshe used husband work doneby hired help cost work formerly done bythe husband recoverable item action isan action recover damage result injurieswhich respondent sustained follows mostwhich respondent recover respect headof claim cost cleaning work herselfcannot result injury directevidence point round term amount would 160 per year rather 320 per year allowed hishonour second submission ought therefore upheld 3 honour reached conclusion continuingexpenses respondent would put householdhelp delivery charge gardening cleaning housewould 1 655 per year reason given sum shouldbe reduced 160 1 495 per year roundly 1 500 peryear honour allowed expense period 12years mentioned respondent time thehearing 66 year age honour award wouldtherefore include allowance expense therespondent attained age 78 year period 12 year challenged basis itwould unlikely respondent would able tocontinue pre accident lifestyle long 12 yearsexcept providing assistance kind foundnecessary honour word submittedthat probability respondent beeninjured would able householdcleaning gardening work also cleaning thehouse total period 12 year opinionthere force submission matter call anexercise judgment honour view ought bedisturbed unless clearly opinion taking ofa period 12 year discloses error upon reflection areof opinion substitute period six year forthe period 12 year selected honour basis entitlement respondent money forfuture expenditure entitlement 1 500 per annum forum period six year 4 three per cent table available u give presentvalue 1 per week rather 1 per year presentvalue 1 per week six year 286 90 fifteenhundred dollar per year equivalent 29 per week tothe nearest dollar present value 1 500 per yearfor six year therefore approximately 8 320 sumshould substituted amount 20 000 included inthe award honour future expense 5 question arises whether award general damage 50 000 excessive earlier described verybad time respondent timeof hearing involved verydistressing accident grave problem treatingher respondent expectancy 16 year shestill right clavicle mended thelimitation movement left arm reference hasbeen made pain neck conditionsremain permanent bargain double visionwhich also permanent condition seriously affect herenjoyment life condition continue affecther rest life increasingly asher age cause lead sedentary life hasdone past pastime aswatching television sewing crotcheting playing cardsare either denied made difficult enjoy said nevertheless opinionthat sum 50 000 general damage high one matter taken account reaching thatconclusion included award notinsubstantial sum past future domestic assistance delivery charge gardening expense money soawarded included compensate respondent herinability many thing would theaccident able amountbeing included award one careful onecomes question general damage one notfall error failing allow possibleover lapping exercise awarding general damage much anexercise judgment mind often differ whatis appropriate figure appellate level courtought interfere unless clearly opinion thatthe amount award discloseserror award damage plaintiff suffer littleeconomic loss later year middleage elderly notoriously difficult obviously one matter must taken accountas reducing factor age plaintiff simplybecause reduced life span plaintiff havecompared younger person notwithstanding thedifficulties uncertainty referred wehave reached conclusion said awardof 50 000 general damage appealably high wepropose reduce 40 000 6 conclusion regard make necessary reducethe amount upon interest awarded think itappropriate apportion sum 40 000 generaldamages equally past future accordingly amount included award forinterest 8 050 rather 12 000 arrived bycalculating interest 7 per cent per annum 20 000 53 4 year 18 follows appeal must allowed amount judgment entered supreme court varied substitution sum 64 670 sum 90 300 amount made follows general damage 40 000 00domestic assistance given thedaughter law 500 00domestic assistance rendered bythe sister past 6 000 00past delivery charge 300 00past gardening expense 1 500 00future expense domesticassistance delivery charge gardening house cleaning 8 320 00interest 8 050 00 64 670 00 19 respondent pay appellant cost appeal would grant respondent certificate pursuant sub sec 6 2 thefederal proceeding cost act 1981

Re Jonathan Brian Wade Ex Parte: Deputy Commissioner of Taxation [1996] FCA 1612 (10 July 1996).txt

jonathan brian wade ex parte deputy commissioner taxation 1996 fca 1612 10 july 1996 federal court australiare jonathan brian wadeex parte deputy commissioner taxationno vp281 1996fed 620 96number page 3bankruptcycourtin federal court australiabankruptcy district state victoriaolney jcatchwordsbankruptcy creditor petition debtor sought exercise court discretion undersection 52 2 thebankruptcy act 1966to refrain making sequestration order sufficient cause bankruptcy act 1966sub section 52 1 2 hearingmelbourne 10 july 199610 7 1996mr j nolan instructed australian government solicitor appeared petitioning creditor debtor appeared person decisionolney j petitioning creditor obtained judgment debtor county court victoria 3 october 1995 sum 159 414 18 income tax due income tax assessment act 9 november 1995 debtor signed authority unders 188of thebankruptcy act 1966and meeting creditor held 5 december 1995 debtor proposal accepted petitioning creditor creditor voting opposition nevertheless amount debt owed creditor voted favour inadequate carry resolution accordance provision thebankruptcy act 2 relying act bankruptcy committed debtor 9 november 1995 creditor presented bankruptcy petition 16 april 1996 petition supporting document served 26 may 1996 27 june 1996 debtor filed notice intention appear hearing set considerable detail ground opposition petition subsequently affidavit evidence filed side 3 far formality concerned satisfied petitioning creditor complied requirement ofs 52 1 thebankruptcy act prima facie entitled sequestration order debtor asserted solvent although notice intention appear say many word obvious seek exercise court discretion refrain making sequestration order sufficient cause use word ofs 52 2 petitioner make point onus debtor establish sufficient cause sequestration order ought made 4 clear long period time petitioning creditor debtor numerous exchange concerning debtor outstanding tax liability debtor made various offer satisfy debt although whole offered pay primary tax penalty interest offered pay amount instalment evidence indicates apart deduction made prescribed payment scheme respect work done subcontractor debtor paid tax creditor since 8 june 1989 present liability order 160 000 5 enormous amount detail put court think fair summarise debtor complaint way first complains petitioning creditor unreasonable insisting upon payment full tax liability say able make payment due matrimonial proceeding involved proceeding together involvement petitioning creditor relation tax affair result reducing earning capacity take view petitioning creditor acted unreasonably rejecting proposal put forward take exception decision petitioning creditor vote proposal put meeting underpart x think question matter law petitioning creditor entitled exercise judgment way thought appropriate consistent law despite debtor concern full court decide law bind court recently decided matter huggins v deputy commissioner accordingly view conduct petitioning creditor voting thepart xproposal entirely irrelevant proceeding 6 likewise also satisfied petitioning creditor conduct refusing accept settlement proposal involve payment full amount due commonwealth entirely reasonable read long correspondence exchanged debtor officer petitioning creditor later debtor ombudsman understand lot debtor time attention diverted dispute petitioning creditor view problem making responsibility like every australian citizen pay income tax becomes due seems reason failure pay tax far back june 1989 enable raise issue suggesting ato petitioning creditor unreasonable approach adopted 7 petitioning creditor obligation statute would imposition upon commonwealth tax paying citizen australia one debtor could escape legal liability engaging practice writing long complaining letter sundry objecting law requires done note take account matter discretion despite offer made debtor payment whatever made subsequent offer circumstance think justice case warrant court exercising discretion refrain making sequestration order 8 satisfied formality thebankruptcy acthave complied sequestration order issue note leon alfred lumsden 563 bourke street melbourne registered trustee consented act trustee event debtor becomes bankrupt note also act bankruptcy committed 9 november 1995 order cost petitioning creditor including reserved cost taxed paid accordance statute

V0600646 [2007] MRTA 310 (28 June 2007).txt

v0600646 2007 mrta 310 28 june 2007 last updated 9 august 2007v0600646 2007 mrta 310 28 june 2007 decision recordreview applicant mr thi kim ngan tranvisa applicant m thi kim khue tranmr hien si nguyenmr hieu si nguyenmrt case number v0600646diac reference osf2004 041155tribunal member annabel hawkinsdate decision signed 28 june 2007place decision melbournedecision tribunal remit application family migrant class bo visa reconsideration direction first named visa applicant meet following criterion subclass 115 remaining relative visa cl 115 211 schedule 2 regulation cl 115 212 schedule 2 regulation andcl 115 221 schedule 2 regulation 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 20 december 2004 delegate decided refuse grant visa 21 november 2005 notified visa applicant decision review right letter dated 21 november 2005 delegate refused visa application basis first named visa applicant satisfy cl 115 211 1 schedule 2 themigration regulation 1994 regulation delegate found first named visa applicant satisfy cl 115 211 1 least one overseas near relative resides country delegate found secondary visa applicant hieu si nguyen overseas near relative review applicant applied tribunal 20 february 2006 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 overseas near relative applicant applicant spouse usually reside country australia different country relative resides ii neither applicant applicant spouse contact relative within reasonable period making application applicant applicant spouse together 3 overseas near relative e 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 overseas 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 relative kind c australian citizen australian permanent resident eligible new zealand citizen usually resident australia 3 purpose paragraph 1 c overseas near relative taken reside last known country residence unless applicant satisfies minister relative resides another country 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 cl 115 225the visa applicant family member satisfy certain public interest criterion special return criterion cl 115 223 115 224 115 226 115 227the sponsorship approved minister still force 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 secondary visa applicant mr hieu si nguyen dependent child therefore member primary visa applicant family unit whether overseas near relative term dependent defined r 1 05a regulation prescribes clear objective criterion met dependence established first r 1 05a 1 stipulates person claiming dependent first person must time consideration given wholly substantially reliant person second degree reliance required substantial period immediately time thirdly financial support provided must meet first person basic need three respect viz food shelter clothing lastly first person reliance person must greater reliance person source financial support meet basic need huynh v mima 2006 fcafc 122at 28 full federal court held inhuynh word regulation proper construction carry implication necessity provide relevant support question regulation require addressed whether matter fact first person relying support person huynhat 44 claim evidencethe tribunal department file relating visa applicant tribunal also regard material referred delegate decision material available range source evidence file summarised follows visa applicant claim remaining relative review applicant australian citizen visa applicant parent sibling live australia australian citizen visa applicant married hung si nguyen divorced 14 june 2004 two child named secondary visa applicant application hien si nguyen born 15 october 1991 13 year old time application 15 year old hieu si nguyen born 3 september 1982 22 year old time application 24 year old visa applicant claim child dependent upon also claim former husband given permission child leave vietnam evidence provided support claim includes birth certificate review applicant sibling certificate australian citizenship review applicant parent sibling household registration relation visa applicant son birth certificate visa applicant curriculum vitae visa applicant identification card visa applicant birth certificate hien si nguyen birth certificate hieu si nguyen identification card hieu si nguyen curriculum vitae hieu si nguyen certification relating single status hieu si nguyen certificate graduation hieu si nguyen indicates graduate marie curie secondary school 29 may 2000 certificate muoi phai vehicle service workshop indicates hieu si nguyen competed course repairer panel beater august 2001 october 2003 letter confirmation institute smes study development indicates hieu si nguyen student long term training course business administration march 2004 march 2006 certificate relating single status dated 25 june 2004 decree absolute dated 14 june 2004 relation mr hung si nguyen visa applicant household registration indicates visa applicant son moved family home 21 june 2004 identification card hung si nguyen agreement let relative go abroad dated 19 january 2005 indicates visa applicant former husband agrees son going australia reason staying vietnam divorced visa applicant 12 september 2005 department conducted site visit visa applicant residential address 8 november 2005 department conducted interview visa applicant informed interviewer oldest son study work part time security guard work 6 day per week 6 30am 2pm earns vnd 1 1 1 million per month us money earns study book visa applicant said provides accommodation clothes food 21 november 2005 delegate refused visa application basis oldest son dependent child therefore overseas near relative therefore least one overseas near relative resides country application review lodged tribunal 20 february 2006 thereview applicant appeared tribunal 14 december 2006 give evidence present argument review applicant represented relation review registered migration agent representative attended tribunal hearing review applicant told tribunal sister visa applicant australian citizen parent sibling also australian citizen visa applicant life vietnam two son divorced 2003 contact former husband visa applicant work home private english teacher review applicant know visa applicant income review applicant told tribunal visa applicant youngest son year 9 10 school visa applicant oldest son studied mechanic panel beater august 2001 october 2003 changed course started business management course worked security guard october 2004 30 november 2006 worked every day 6 30am 2pm course started 3pm earned vnd 1 million per month worked help mother belief current course cost 1 6 million dong every 2 month review applicant migration agent submitted visa applicant eldest son worked subsidise school fee still relied upon mother provide financially everyday living expense following hearing tribunal sent review applicant combined letter section 359a 359 2 act review applicant invited comment following information tribunal considers may reason part reason affirming decision review received department indicates time visa application secondary visa applicant hieu si nguyen worked full time security guard may studying part time information relevant review indicates time application hieu si nguyen may dependent child primary visa applicant result primary visa applicant may remaining relative defined regulation copy ofregulations 1 15 1 05aand definition dependent child enclosed information

Metro Region RL95 (PSA) [1990] PPV 3 (3 January 1990).txt

age 1 11 prahrah planning scheme amendment rl95 notice dated october 11th 1989 minister planning environment appointed mr michael ballock chairperson mr marcus spiller mr alan hale member three person panel consider submission amendment rl95 metropolitan region planning scheme panel conducted hearing office city pra ran wednesday 8th november ater panel inspected site subject amendment panel also took opportunity offered inspect site apartment mr wolf amendment placed public exhibition 19th july 1989 21st august 1989 total 40 submission received planning authority total 38 opposed amendment whilst remaining two supported amendment list submitter supporting opposing supplied panel attached appendix appearing panel werea tr liston behalf planning authority city prahran mr p calligan qc mr morris instructed gadens ridgeway behalf proponent tilbaplex pty ltd taradara pty ltd evidence support amendment presented 1 mr whitney perrott lyon mathieson pty ltd mr grogran grogran richards pty ltd mr j martin loder bayly pty ltd mr n safstrom loder bayly pty ltd metropolitan plann ng scheme amendment rl95 panel report r ge 2 11 following made individual sub issions panel opposing amendment m h hopkins mr van de velde behalf ministry education m p rayson behalf toorak south yarra group inc hr wolf 1 amendment rl95 lub equent appointment pf panel prior tha hearing e metropolitan region planning scheme restructured totally consequently amendment exhibited proposed change regional section metropolitan planning scheme local section prahran planning scheme restructured scheme proposed change contained prahran planning scheme panel sought ministry planning environme nt wholel within advice administrative arrangement followed matter panel informed consider report amendment exhibited amendment rl95 proposes spot rezoning land known 653 659 1hapel street prahran general industrial zone office zone change ordinance provision scheme addition amendment proposes number change scheme ordinance would 1 limit maximum office floor area 8408m2 provide maximum plot ratio 4 1 require minimum residential floor area 20 ice floor area allow maximum showroom floor area 588m2 provide street parking following ratio office 3 per 1oom2 glfa showroom 2 per 1oom2 glfa residence 2 per dwelling metropolitan planning scheme amendment rl95 panel report ge 3 11 maximum height 46 0sm ahd agreement relating traffic management parking streetscaping melbourne high school tree proposed showroom use presently prohibited additional provision specific site would introduced allow use take place amendment structured manner planning permit would necessary development complied provision however plan would submitted approved responsible authority amendment also made provision agreement made tween developer city prahran agreement may make provision traffic management car parking streetscaping lieu_ car parking provision preservation existing tree high school boundary panel understands draft agreement placed exhibition amendment however agreement restricts maximum floor area site also make provision transfer development potential one site another fact substance agreement development potential site 671 chapel street prahran would transferred subject site 653 659 chapel street prahran allow intensive development land provision amendment could varied terminated greement owner land responsible authority th approval minister planning environment plan proposed development submitted panel however regarded indicative proposed amendment tie development site plan document submitted panel given planning authority inclusion file metropolitan planning scheme amendment rl95 panel report nage 4 11 2 issue raised ahendhent hr liston detailed submission explained planning history area known forrest hill forrest hill area subject number study produced similar recommendation indeed study culminated planning scheme amendment council intends place public exhibition november 1989 draft amendment product negotiated settlement city prahran ministry planning environment draft amendment ubmitted panel indicated aximum plot ratio 2r1 bank office would apply height limit 6 storey height limit could however varied granting permit new amendment would effectively reduce development potential site west side chapel street level recommended council consultant study prospect diminution development potential may partly responsible initiation amendment rl95 panel found concept discretionary height limit difficult one exclusive car parking two concept would seem appear mutually indicative plan made provision total 205 car space site additional 81 car space provided multi level car park daly street prahran hr grogran submitted total 251 car space would required development proposed provision excess would required conclusion based provision 2 7 car space per 1oom2 office floor area 2 0 car space per 1oom2 showroom floor area 2 car space per dwelling however provision car parking made ratio 3 0 car space per 1oom2 office floor area metropolitan planning scheme amendment rl95 panel report page 5 11 lower ratio used mr grogran based study single site comparable area chapel street previous peak parking generation study undertaken k pearson associate however found demand south yarra area 3 4 car space per 1oom2 office floor area study involved smaller office point made panel agree lower car parking provision justified however number space provided based 3 0 per 100m2 concern largely academic panel also concerned provision 81 car space site location daly street even car park corporate ownership panel concerned number development area use intended use facility car park amendment provide mean formalising availability required number space inability indicative development provide required number space site illustration intensity development would enabled amendment panel concerned one major impact proposal generation car parking could accommodated site thereby containing adverse impact panel also concerned provision made visitor parking reasonable assume office residence showroom would generate demand visitor parking particularly short term parking nevertheless panel informed site parking would made available tenant controlled access metropolitan planning scheme amendment rl95 panel report p ge 6 11 traffic panel informed chapel street close saturation level traffic generated development forrest hill area would result saturation toorak road chapel street alexander avenue chappel street intersection panel accepts argument ultimately development site combined development area would likely result saturation level desirable 0 9 panel also accepts saturation level 0 unc9mmon many inner city cbd tersections affect high level introduce greater delay however consideration traffic impact development may occur site would appropriately based consideration whole forrest hill area panel believe real potential conflict pedestrian movement area design e issue relate urban design largely relate specific development proposed given amendment tied development detailed consideration urban design component plan presented would inappropriate however panel still must consider urban design impact development would permitted amendment many way chapel street form gateway prahran district centre hence scale character building located area significant panel hold opinion scale development east side chapel metropolitan planning scheme amendment rl95 panel report page 7 11 street como project set benchmark development west side indeed panel informed whilst apsects land use development forrest hill area exhaustively studied recent year comprehensive urban design assessment locality mr martin presented evidence indicative plan site represented excellent example modern building term architectural detailing impact neighbouring property view building height critical urban design parameter provided building set back second storey level second preference given different architectural treatment second storey level notwithstanding mr martin comment panel left difficult position attempting evaluate streetscape merit amendment something policy vacuum comment made panel mr whitney others variety site treatment along section chapel street add interest area however panel view streetscape potential gateway locality important left ad hoc decision making certainally decision regarding subject land compromise range urban design option might canvassed course coming exhibition comprehensive forrest hill amendment transfer development right much made transfer development right 671 chapel street 653 chapel street panel accepts view put mr whitney exchange development right generally accepted planning principle however panel found difficulty grasping principle particularly practical example panel experience uncommon addition whilst principle may well accepted motivation encouraging transfer development right metropolitan planning scheme amendment rl95 panel report page 8 11 usually based specific purpose frequently community interest word transfer development right occurs enable flexible approach achievement planning objective way example development right site historic building may transferred ensure site building maintained present form generally transfer occurs permanent transfer development right proposed part amendment simply allows intensive development one site appear intended achieve particular aim allowing intensive development subject site transfer proposed permanent indeed varied agreement party notion development right implies existing approval word right something exists rather potential evident panel approval existed 671 chapel street whilst development potential may exist yet converted right essence conversion substance statutory planning scheme simply give right development using maximum permitted current planning scheme provision deny planning process potential impact development assessed essence development potential contained within planning scheme right cannot claimed whilst panel take issue principle transferring development right see little justification approach amendment fact argument advanced transfer development 671 chapel street resulted overly intensive development evidenced inability provide sufficient site car parking indicative development hetropolitan planning scheme amendment rl95 panel report p ge 9 11 view number submitter expressed concern potential loss view consequence development site would permitted amendment evidence presented intrusion view cone would substantial panel convinced development proposed would considerable impact view occupant armitage apartment especially tenth floor however anel accept right view exists basis hat one development established prior another apartment como project may designed take maximum advantage view offered however como project may restricted view existing resident unreasonable expect development impact particularly area like prahran subject considerable development pressure peppercorn tree amendment proposed agreement relation existing eppercorn tree boundary site melbourne high tichool indicative plan proposed building built boundary high school upon inspection site became evident panel indicative building proceed much peppercorn tree would removed substantial root damage would occur likely consequence would fatal tree hence agreement dealing retention tree would meaningless agreement dealing landscaping area replacement tree circumstance would appropriate metropolitan planning scheme amendment rl95 panel report 1e 10 11 overshadowing whilst number concern expressed shadow would cast building height proposed panel satisfied overshadowing would insignificant metropolitan planning scheme amendment rl95 panel report _age 11 11 3 recommendation whilst specific development proposed shortcoming panel belief insurmountable could overcome designed development however type development would permitted amendment could severely prejudice forthcoming implementation strategic review development area hence inappropriate point time allow individual proposal proceed advance comprehensive amendment affecting site say development proposed indicative plan inappropriate site must looked wholistically rather n ad hoc 3ite site basis city prahran invested good deal resource examining analysing forrest hill irea culmination work soon placed public exhibition amendment deal whole area clearly rould premature approve amendment rl95 deal one site area allows substantially intensive development envisaged forthcoming amendment fpr reason panel opinion amendment premature recommends rl95 abandoned l ichael ballock alan hale harcus spiller r n 1 c h n 1 n c december 1989 list subhittors rl95 alcatt pty ltd ausvest holding pty ltd benjamin bennett como property pty ltd como project pty ltd cook j j cooper c copulos holding pty ltd dans drory 1vironment protection authority e fried gardner greenfield e gross w guest guest halas e hercules hlcast pty ltd g c hopkins j jones kemp lepal harnan wool industry pty ltd mcintosh melbourne high school ministry education pausewung g puofolo w thompson tilbaplex pty ltd toorak south yarra group inc wolf l woing g wong yenken j young two unreadable signature

R v AC [2018] NSWDC 127 (21 May 2018).txt

r v ac 2018 nswdc 127 21 may 2018 last updated 21 may 2018district courtnew south walescase name r v acmedium neutral citation 2018 nswdc 127hearing date 26 march 2018 20 april 2018 2 may 2018decision date 21 may 2018jurisdiction criminalbefore colefax sc dcjdecision 1 order count indictment matter shall severed tried separately consecutively follows trial respect count alleging offence cc b trial respect count alleging offence cr c trial respect count alleging offence rp trial respect count alleging offence db e trial respect count alleging offence nm 2 direct crown inform solicitor accused writing 5pm 28 may 2018 order back back trial run crown catchword criminal law repeated failure crown comply notice requirement tendency notice dispensing notice requirement application dispense notice requirement refused back back trial electronic filing indictment procedural difficulty legislation cited evidence act 1995 nsw s 97and99 uniform civil procedure rule part 31 5 district court rule s53 10c criminal procedure act s130a case cited clancy v director public prosecution 2018 nswca 102 r v harker 2004 nswcca 427 r v hughes 2017 hca 8 r v rj 2011 nswdc 158 category procedural rulingsparties regina crown c accused representation counsel mr everson mr tunks crown counsel mr singleton accused file number 2017 00050193publication restriction non publication order name accused complainant matter might identify directly indirectly judgmenton 19 october 2017 ac arraigned list judge registry e parramatta registry indictment contained 14 count indictment somewhat idiosyncratically drafted gist period 1986 2009 various way allegedly sexually assaulted 5 prepubescent girl one daughter upon arraignment ac pleaded guilty accordingly trial date fixed 26 march 2018 optimistic estimate 10 15 day combined effect 97 ands 99of theevidence act part 31 5 uniform civil procedure rule 53 10c district court rule unless court otherwise ordered tendency notice relied upon crown given accused 28 day 19 october 2017 notice served court otherwise ordered would seem express mention made arraignment 19 october 2017 application part accused separate trial count five complainant however honour consent make discretionary pre trial disclosure order accordance 143 2 criminal procedure act following term court order notice defence response also contain following discretionary matter notice significant issue accused person proposes raise regarding form indictment severability charge separate trial charge evidence notice given crown may assumed therefore given pause observe five complainant referred indictment least card accused might anticipated crown would relying tendency evidence also least card absent cross admissibility issue tendency accused legal advisor may legitimate forensic purpose acquiescing somewhat unusual step complainant giving evidence one jury matter listed mention list judge 22 february 2018 confirm trial date one order made honour occasion tendency notice relied upon crown served end week 22 february 2018 thursday direction upon proper construction meant tendency notice served upon accused solicitor later 5pm 23 february 2018 honour also confirmed trial date 26 march 2018 tendency notice served crown 5pm 23 february 2018 however document purporting tendency notice served two tranche solicitor accused 20 21 march 2018 e one month relevant date compliance day trial date application leave extend time service notice made crown served matter listed list judge 22 march 2018 crown mentioned matter accused crown inform court court direction 22 february 2018 regarding service tendency notice complied crown seek extension time regularise already done previous two day 26 march 2018 trial placed list acting list judge application made time crown extend time service tendency notice trial date subsequently vacated judge available trial could allocated listed hearing court vacation rolling list commencing 25 june 2018 time hearing date vacated informed pre trial issue desirable determined next hearing date agreed undertake pre trial hearing accordingly crown sought obtained leave file amended indictment indictment gave rise procedural difficulty capable entered justice link system without end date certain count removed voir dire hearing pre trial issue contained within notice motion filed solicitor accused 22 march 2018 adjourned 20 april 2018 order problem concerning electronic filing indictment could considered 20 april 2018 problem overcome justice link support team aware problem identified 26 march 2018 understand time indeed informed number senior member court registry staff parramatta registry place concerned implication electronically entering indictment justice link system leaving end date like registry staff opinion removal end date appears indictment justice link entry would result erroneous entry made court computer system 20 april 2018 order try progress matter granted leave crown file court amended indictment bearing date however directed associate manually process entry indictment onto justicelink concern expressed noted matter parramatta district court registrar whether indictment would entered member registry staff justice link system following resolution issue unsatisfactory accused arraigned amended indictment pleaded guilty 14 count understood difference two indictment second drafted logical fashion chronological order commenced hear notice motion regarded application pre trial order accordance 130a criminal procedure act notice motion effect seek order separate sequential trial count discrete complainant crown opposes order sought notice motion primary basis application separate trial absence effective tendency notice evidence complainant irrelevant count referrable specific complainant e cross admissibility issue crown accepts submission general term correct however crown submits evidence complainant admissible tendency evidence approach crown raise immediate procedural issue formal application crown court extension time expression also mean dispensing notice requirement service tendency notice application made notice motion formal procedural step taken alternatively crown could explicitly sought leave orally make application commencement even hearing accused notice motion step taken one view procedural irregularity would sufficient determine notice motion order sought therein made however second set oral submission voir dire 2 may 2018 counsel accused submitted crown submission opposition notice motioncould constructively impliedly regarded oral application circumstance intend treat crown submission constructive implied application extension time serve tendency notice served progressively 20 21 march 2018 context appropriate note relation extension time generally two broad consideration need satisfied first sufficient explanation delay interest justice cf clancy v director public prosecution 2018 nswca 102at 7 per basten ja macfarlan meagher jja agreed opinion consideration inform discretion otherwise order purpose rule 31 5 dispense notice requirement in 100of theevidence act see also r v harker 2004 nswcca 427 first criterion explanation yet alone satisfactory one crown failure yet comply initial service requirement subsequently order made 22 february 2018 notwithstanding numerous opportunity given crown hearing voir dire provide explanation sufficient reason refuse leave although necessary shall also consider second criterion crown submits interest justice leave granted tendency evidence sought adduced would significant probative value crown case significant public interest evidence single jury accused submits evidence would interest justice three significant respect first proper analysis evidence significant probative value secondly real chance evidence contaminated chance merely speculative thirdly persistent disregard crown many year respect timing service tendency notice interest justice include public interest rule law including requirement crown adheres rule court order made court pause observe question prejudice raised accused quickly deal first second accused submission respect first submission regard dictum r v hughes 2017 hca 8 especially 32 40 60 61 content statement complainant satisfied significant probative value outweighed relevant prejudice second submission although may accepted relation complainant one person l c involvement could said material fact give rise real chance concoction contamination malign improper influence presently available evidence view merely speculative real difficulty crown relation third matter raised accused reasonably open dispute common knowledge crown least respect proceeding brought parramatta registry district court many year consistently persistently failed comply statutory requirement regarding timely service tendency notice matter drew attention long ago 2011 see r v rj 2011 nswdc 158 context initially 2 may 2018 crown represented crown prosecutor argument submitted evidence court support finding thereby challenging engagement ofs 144of theevidence act two thing may said particular submission first matter drew attention r v rj including concession crown 14 continued concerning regularity matter presided intervening 7 year either trial judge acting list judge registry secondly later 2 may 2018 deputy senior crown prosecutor appeared crown prosecutor deputy senior crown prosecutor tendered voir dire exhibit 2 content render earlier submission unhelpful rejected context point accused comply discretionary pre trial order made 19 october 2017 relied upon crown point accused might early stage reasonably anticipated crown might seek rely tendency evidence exclude evidence occasion punish crown submitted crown prosecutor rather uphold rule law crown far long failed adhere present case least without attempt justify explain present case isolated even infrequent event indeed feel compelled say persistent failure crown regard many year affront administration justice direct challenge practice may think long time coming court acquiesce small matter good reason required notice provision first complied allows accused person properly understand case meet may well properly informed case early plea advanced secondly rule complied frequently give rise adjournment trial trial court list 12 18 month may get another hearing date another 12 18 month adjournment give rise significant cost wasted legal fee side wasted court resource financial emotional strain complainant accused person necessary displacement matter track therefore propose refuse otherwise order purpose part 31 5 uniform civil procedure rule dispense notice requirement pers 100of theevidence act make order e inclusive accused notice motion filed 22 march 2018 direct crown inform solicitor accused writing 5pm 28 may 2018 order back back trial run crown

Central Plaza Apartments Port Douglas [2017] QBCCMCmr 490 (12 October 2017).txt

central plaza apartment port douglas 2017 qbccmcmr 490 12 october 2017 last updated 13 october 2017adjudicator orderoffice commissionerfor body corporate community managementcitation central plaza apartment port douglas 2017 qbccmcmr 490parties anthony wrobel applicant body corporate central plaza apartment port douglas respondent owner affected person scheme central plaza apartment port douglas ct 30370jurisdiction section 227 1 b 229 3 thebody corporate community management act 1997 act thebody corporate community management accommodation module regulation 2008 accommodation module application 0978 2017decision date 12thoctober 2017decision j underdown adjudicatorcatchwords interim order application prevent committee alleged invalidly elected operating application prevent caretaker sending particular material owner section 100act interim ordersmade make interim order sought application application interim order dismissed reason contained herein reason decisionapplication 1 application dated 20thseptember 2017 amended 3rdoctober 2017 anthony wrobel co owner lot 18 body corporate order follows election committee member annual general meeting held 24thaugust 2017 agm set aside new election committee called voting motion 10 agm set aside motion put general meeting chairman report reflected minute true reflection occurred agm accordance law andthat extraordinary general meeting held march 2017 egm set aside pending investigation carried another department authority process procedure committee manager caretaker property 2 applicant also sought interim order follows current committee cease operating committee approve work take decision affect body corporate spending emergency action required maintenance pending determination dispute andthat caretaker prevented disseminating misleading unsubstantiated material directly owner jurisdiction 3 central plaza port douglas ct 30370 28 lot scheme port douglas governed act accommodation module 4 dispute owner body corporate section 276 1 act provides adjudicator may make order equitable circumstance resolve dispute context community title scheme claimed anticipated contravention act 5 section 242act provides application adjudication declaring void resolution body corporate general meeting body corporate must made within three month resolution meeting unless adjudicator satisfied good reason waive noncompliance present reason given applicant waited late september challenge general meeting held march 2017 jurisdiction office make order action investigated certainly another department authority would jurisdiction relevant department authority 6 flag applicant respect final outcome sought 7 section 279 1 act allows adjudicator make interim order satisfied reasonable ground interim order necessary nature urgency circumstance application relates also relevant generally purpose interim order simply maintain status quo situation finally resolve matter dispute 8 application referred 4thoctober 2017 invited submission interim application committee caretaker central plaza management care iain colemore fiona colemore close business 11th october 2017 overview dispute 9 applicant say caretaker provided misleading information owner prior election agm result owner colluded voteen bloc appoint like minded owner committee position caretaker stand benefit compliant committee 10 misleading information alleged come owner sue russell smith owner lot 27 sent information letter owner 2ndmarch 2017 caretaker wrote 30thjuly 2017 clear stating proposed new body corporate manager archer expensive current body corporate manager bcs applicant nominated secretary removed committee owing lack knowledge property never set foot central plaza 10 year spread misleading information failure chairman keep scheme maintenance letter ended please vote mr wrobel another term 11 applicant responded 7thaugust 2017 caretaker letter denying allegation failure maintain lack interest calling difference archer fee bcs fee bogus denying failure part former committee 12 applicant previously chairman committee caretaker since 2015 negotiating pay increase motion increase caretaker remuneration defeated 2016 caretaker brought proceeding queensland civil administrative tribunal egm package proposed caretaker carried 12 9 13 applicant say owner divided support caretaker bad feeling former committee caretaker allegation lie misconduct solicitor engaged party 14 agm election four owner received number vote demonstrating group owner voted team election thus fair equitable current chairperson nominated three executive position resigned secretary appointed one ordinary member committee secretary applicant nominated secretary elected 15 applicant sent additional material application 6thoctober 2017 submission invited material material contained allegation misleading information given owner document include document dated 2015 2016 well correspondence body corporate manager bcs 2017 interim submission 16 committee made submission respect interim order sought saying owner voted change committee agm largely previous committee spent 48 000 legal fee wrangling caretaker committee surprised application vote agm simply reflects wish majority owner normal legal process 20 owner voted high turnout 17 say outcome sought preventing committee form acting day day business would prejudice body corporate operating effectively say ground overturning committee one nomination chairman vote necessary 18 committee reject allegation owner misled caretaker owner able make mind access variety material 19 caretaker also made submission denies providing misleading information owner say evidence say allegiance particular committee member asked owner committee member interim order 20 decision deal application interim order interim order normally justified application raise serious question law andat first sight applicant interim order good chance success final order inconvenience likely result respondent interim order outweighed potential detriment applicant others order granted 21 satisfied first sight evidence election current committee agm unlawful process invalid even owner colluded vote en bloc evidence entirely prerogative owner may get together owner propose vote certain member team nature election polling election 22 satisfied first sight evidence owner misled even misleading material made available made determination 23 quite difficult demonstrate anyone swayed material written anyone else especially election proponent certain faction put candidate good light cast opposition poor light owner taken intelligent voter good understanding happening scheme 1 24 inbatwing resort pty ltd v body corporate libertycts 27241 2008 cct ka004 08 found sufficient misleading information persuasive favour affirmative vote need considered whether breach relevant legislative provision 2 automatic even material found misleading motion relevant misleading information held invalid stated length inlibertythere legislative obligation committee circulate explanatory note fair even accurate 25 seem applicant much faith argument say respect voting en bloc committee accept surface may acceptable believe caretaker obligation regulation mislead owner best body corporate failed requirement 26 view interim order prevent committee carrying day day business would need particularly good evidence wrongdoing elected committee process election flawed leave committee place would unsafe legislation wish protect smooth running body corporate election without challenge committee section 100 4 act provides committee member make decision whilst reasonably honestly believing committee decision binding despite defect election one member 27 also currently view jurisdiction require caretaker correspond owner see fit consequence action may fall determined later date 28 therefore make interim order sought 29 matter referred commissioner pursuant tosection 279 4 act 1 body corporate palm spring residence ct 29467 v patterson holding pty ltd 2008 qdc 300 2 batwing resort pty ltd v body corporate libertycts 27241 2008 cct ka004 08 para 65 67

Propol Interiors Pty Ltd V Greater Dandenong CC [2012] VCAT 9 (3 January 2012).txt

propol interior pty ltd v greater dandenong cc 2012 vcat 9 3 january 2012 last updated 11 january 2012victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1347 2011permit application pln09 0700catchwordssection 77 planning environment act 1987 greater dandenong planning scheme residential 2 zone car parking applicantpropol interior pty ltdresponsible authoritygreater dandenong city councilreferral authorityvicroadsrespondentsimone goresubject land149a prince highway dandenongwhere heldmelbournebeforekatherine paterson memberhearing typehearingdate hearing30 november 2011date order3 january 2012citationpropol interior pty ltd v greater dandenong cc 2012 vcat 9orderthe decision responsible authority relation permit application pln09 0700 set aside permit granted relation land 149a prince highway dandenong permit allowthe construction multi dwellingscreation access road road zone category 1a reduction car parking requirementsgenerally accordance endorsed plan permit subject condition contained appendix 1 reason katherine patersonmemberappearancesfor applicantmr jim coomes town planner coomes planning called following expert witness m charmaine dunstan traffic engineer traffix groupfor responsible authoritymr tran ly town planner greater dandenong city councilfor referral authorityno appearancefor respondentms simone gore mr thaiagarajan somasundara person informationdescription proposalconstruction four storey residential building contain 14 dwelling dwelling contain two bedroom 17 car space provided development one space dwelling three visitor space car park provided ground level dwelling constructed nature proceedingapplication undersection 77of theplanning environment act1987

Late Estate of Mary Jankovics v Brimbank CC [2019] VCAT 1857 (6 December 2019).txt

late estate mary jankovics v brimbank cc 2019 vcat 1857 6 december 2019 last updated 6 december 2019victorian civil administrative tribunalplanning environment divisionplanning environment listvcat reference p229 2019permit application p147 2016catchwordssection 77of theplanning environment act 1987 brimbank planning scheme residential growth zone relationship sunshine activity centre two three storey townhouses building form bulk landscape response setback site impact car parking reduction loss kerbside parking applicantlate estate mary jankovicsresponsible authoritybrimbank city councilrespondentsmichelle david axiaksubject land21 whitty street sunshine vic 3020where heldmelbournebeforemargaret baird senior memberrebecca cameron memberhearing typehearingdates hearing8 9 july 31 october 1 november 2019date order6 december 2019citationlate estate mary jankovics v brimbank cc 2019 vcat 1857orderpermit application amendedpursuant clause 64 schedule 1 thevictorian civil administrative tribunal act 1998 permit application amended substituting permit application plan following plan filed tribunal prepared lorina nervegna architect drawing no d01 d11 inclusive dated 1 september 2019 permit grantedin application p229 2019 decision responsible authority set aside permit application p147 2016 permit granted directed issued land 21 whitty street sunshine accordance endorsed plan condition set appendix permit allows construction five dwelling four three storey one double storey margaret bairdsenior memberrebecca cameronmemberappearances 1 responsible authoritymr j klarica calibre planning applicantmr song songbowden planning called expert evidence mr j holdsworth urban designer mr e dimitropoulos landscape architect m c dunstan traffic engineer respondentsmrs mr axiak person day 1 informationdescription proposalfive attached dwelling comprising one two storey unit four three storey nature proceedingapplication undersection 77of theplanning environment act 1987 review refusal grant permitplanning schemebrimbank planning scheme scheme zone overlaysresidential growth zone schedule 1 rgz1 development contribution plan overlay schedule 2 permit requirementsclause 32 07 construct two dwelling lot relevant scheme policy provisionsclauses 11 15 16 18 21 22 02 32 07 45 06 52 06 53 18 55 65 71 land descriptionthe subject land bounded whitty street dickson street martin street 505m2in area vacant south 19 whitty street single storey weatherboard dwelling two storey rear extension subject land established residential area predominantly single storey scale east side martin street near subject land present rear lot fronting whitty street tribunal inspection1 november 2019 unaccompanied reason 2 nature proceedingthe late estate mary jankovics proposes develop subject land five dwelling applicant asked tribunal review brimbank city council refusal grant permit proposal council opposes permit multiple ground council state location site rgz indicates development encouraged however although scheme important policy directive relating increased density council submits also significant emphasis achieving appropriate design responds neighbourhood landscape character achieves suitable layout council considers application fails respect refusal ground raise additional issue respect access arrangement including number vehicle crossover impact street tree kerbside parking well proposed car parking reduction respondent also express concern proposal incompatibility existing character area proposal argued overdevelopment intense continuous unbroken built form impact amenity property 19 whitty street term visual bulk well overshadowing loss daylight car parking concern raised neighbour applicant submits council given insufficient weight rgz sunshine activity centre context sunshine one nine activity centre included inplan melbourne 2017 2050at state level strategic context give unequivocal support medium density development applicant say opportunity stifled existing character benchmark even though proposal first rank term increased scale development encouraged policy future vision see redeveloped backyard housing starkly different exists today overall applicant submits project produce acceptable outcome strategic context respect dwelling layout regard relevant matter scheme submission u key issue proceeding development meet purpose clause 32 07 objective clause 55 relating neighbourhood character design layout achieve relevant objective clause 55 would unacceptable site amenity impact traffic parking implication arising development acceptable including requested reduction car parking must decide whether grant permit condition apply permit must decide whether proposal produce acceptable outcome regard relevant policy provision scheme clause 71 requires decision maker integrate range policy relevant issue determined balance conflicting objective favour net community benefit sustainable development procedural mattersamended corrected planson first day hearing substituted plan proceeding without objection party day 2 regard issue mr klarica raised respect set corrected plan section tendered behalf applicant day 1 2 mr song applied hearing adjourned heard submission adjourned hearing allow corrected plan filed served accordance tribunal practice note pnpe9 plan dated 1 september 2019 circulated accordance practice note pnpe9 include correction also flip layout unit 3 avoid street tree proximity street tree concern raised council first day hearing council take issue additional change included plan beyond correction made substituted plan dated 1 september 2019 application plan objection party new supplementary statement evidence also filed applicant amendment c202brimthe scheme amended since first two hearing day became aware preparing resumed hearing informed party start day 3 heritage overlay ho151 grand junction matthew hill precinct applies interim basis march 2020 partly shown 3 part larger precinct shown 4 subject landthe statement significance identifies contributory individually significant building near subject land contributory building include no 59 65 67 dickson street no 18 22 whitty street no 57 63 dickson street identified contributing significance place individually significant council advised u panel considered submission relation amendment submitted report planning authority time hearing report publicly available informed panel support amendment party addressed relevance new control subject land planning context submission evidence mr song tendered council information sheet referring relationship ho151 rgz understand council considering rezoning area ho151 applies work directed department environment land water planning design built form outcomesplanning scheme provision policiesthe subject land rgz1 shown property report extract 5 planning permit required construct two dwelling lot pursuant clause 32 07 purpose clause 32 07 includes provide housing increased density building including four storey building encourage diversity housing type location offering good access service transport including activity centre town centre encourage scale development provides transition area intensive use development residential area ensure residential development achieves design objective specified schedule zone purpose include objective respect protect neighbourhood character new development expected differ mostly single storey dwelling currently rgz1 must also consider clause 55 02 including standard b1 provision clause 55 seek ensure development two dwelling respect existing neighbourhood character contributes preferred neighbourhood character local policy express preferred character broad term refer accept mr klarica submission technically several proposed dwelling meet definition apartment manner laid one another therefore assessed proposal clause 55 07 well relevant clause clause 55 design objective schedule 1 clause 32 07 varied clause 55 standard include b6 b8 b13 b28 clause 1 0 decision guideline clause 4 0 rgz1 include extent landscaping softens appearance proposed development assist transition existing development layout appearance area set aside car parking access egress loading location proposed street car parking whether garage carport visually dominate proposed development whether variation requirement ofpart 1 0would result loss site amenity use architectural feature building design rather screen mechanism protect privacy adjoining resident concealment ancillary service front side rear boundary view decision guideline assist give effect council strategic vision sunshine principal activity centre 6 activity centre zone acz1 applied evident zoning extract included plan melbourne2017 2050identifies sunshine national employment innovation cluster 7 clause 21 07 1 21 07 2 21 07 4 address residential growth housing diversity design amongst thing policy strategy identify rgz location higher residential density encouraged reverse living also encouraged seek ensure range housing type available meet diverse need resident acknowledge residential area within rgz potential experience substantial change time rgz thepreferred characterwill consist high quality design responds surrounding housing development term appropriate building setback colour finish design detail landscape setting emphasis original additional policy guidance clause 21 07 addressing exercise discretion includes following new development sit harmoniously within streetscape term scale proportion design residential development close activity centre include appropriate noise attenuation protect amenity resident private open space located within frontage new development unless integrated within apartment complex new development use high quality robust building material covered car parking space include significant setback behind façade dwelling new development provide active street frontage avoid blank wall facing street new development provide significant landscaping opportunity within front side setback dwelling external service equipment plumbing heating ventilation lift run plant incorporated building design concealed public view minimise amenity impact surrounding residential area waste collection area sited unobtrusive location adequately screened streetscape view referred land within ho151 also relevant planning context decision draft brimbank neighbourhood character studyclause 21 07 3 refers character study design guideline adopted council case final adopted document referred draft brimbank neighbourhood character study may 2019 proceeded consultation process ending september 2019 mr klarica said draft adopted council subject amendment scheme suggest draft carry weight decision making however mr song refers document important understanding council current strategic thinking accept document represents recent strategic work cannot assume proposed variation rgz front setback 4 metre depending context 8 adopted indeed council advised u department environment land water planning asked hold progress post consultation acceptability design response including clause 55 02 1physical contextthe subject land physical attribute offer significant opportunity three street frontage long northern orientation dickson street easement tree land might otherwise provide constraint council approved removal one street tree dickson street september 2019 plan enable street tree retained subject land abuts one residential property south 19 whitty street sensitive abuttal south subject land habitable room window facing north development subject land must respond sensitively dwelling notwithstanding also within rgz like lot south west expected redeveloped implementation policy see area evolve higher scale intensive built form date limited redevelopment area retains strong single storey character two storey house single storey multi unit development example along martin street 9 three storey development january 2018 council issued permit three three storey dwelling 27 martin street north dickson street site abuts rear lane acz applies sunshine activity centre street tree make landscape contribution whitty street stronger landscape character dickson street martin street much open character west side martin street near subject land present garage outbuilding serving several dwelling fronting whitty street 19 whitty street example layout dickson street relatively wide also open single storey 1920s era dwelling opposite subject land low fencing landscaping issue raised opposition proposalwhile recognising strategic context council submits design response inappropriate provide suitable transition south considers proposed development fails reinforce preferred character provides inappropriate building form key failing council identifies long continuous built form inadequate landscaped setback insufficient front rear side setback excessive bulk street property south setback southern boundary inadequate provide landscaped vertical screen sought varied standard b13 bulky building mr klarica refers lack break built form limited articulation particularly first floor level submits standard b6 met whitty street council submits building respond prevailing setback present inappropriate visual bulk among criticism council overly complicated streetscape presentation sheer wall balcony cantilevered element highlight building presence setback roof form design detail reflect predominant pattern evident area high front fencing enclose private open space front setback several unit dickson street council submission consistent policy character council say design element balcony together limit opportunity landscaping respond landscape setting addition council opposes number vehicle crossover also say garage unit 3 well recessed council also critical fact several unit bin store front setback respondent person lodged statement ground similarly oppose permit application density intensity extent development differs existing character submit proposal development land mr song relies expert evidence support applicant case proposal positive response policy set appropriate benchmark future development submits rgz anticipates development four storey whereas proposal mix two three storey unit respond site setting recite evidence presented mr holdsworth mr dimitropoulos considered fully findingsdensity intensitythere doubt subject land suitable unit development bring substantial change expected application clause 32 07 strategically subject land context influenced proximity sunshine activity centre notwithstanding outside designated boundary activity centre achievement policy area result substantial building form achieve housing diversity greater density new building prominent traditional dwelling stock local policy varied standard b13 rgz1 also indicate landscaping contribution expected respond setting scheme seek appropriate building setback colour material design detail harmonious outcome respect scale proportion design must assessed context proximity property heritage overlay notwithstanding interim status control based control apply today single storey streetscape presentation along north side dixon street east side whitty street opposite subject land would expected substantially change development would however precluded overlay area already indicated subject land highly exposed public realm bordered three side street area seen little change consequently maintains spacious open garden character detached building form low scale housing also heritage character associated building site context notably north east heritage overlay accept applicant submission reason set respecting protecting existing character test adopt existing character basis decision would undermine rgz policy outcome pursued location although appreciate local resident oppose scale extent proposed development seen existing house development particularly outside heritage overlay see new character emerge time approved development 27 martin street indicative future based current ambition apartment emerge different layout compared original housing stock reverse living number dwelling necessarily indicator acceptability development size dwelling influence built form outcome case four three bedroom dwelling one two bedroom dwelling proposed design built form outcome outcome acceptable reason refuse proposed development simply numerical unit density building envelopewe satisfied proposed building envelope acceptable physical strategic context accept mr holdsworth evidence development comprising two three storey building modulated wall plane varied material finish play role defining emerging higher density character roof form copy existing dwelling angled raked break building mass dwelling appropriately face north dickson street unit 1 entry whitty street minimum 4 metre setback whitty street acceptable transition 5 4 metre stepping back towards common boundary 19 whitty street assist manage visual impact building viewed street adjoining property agree mr klarica varied standard b6 clause 55 03 1 met proposed development sit forward adjacent dwelling south deeper front setback dwelling south visible east south east elevation sufficiently articulated wall plane materiality achieve acceptable outcome meet objective clause 55 03 1 reach conclusion regard decision guideline clause objective clause 55 03 1 includes making efficient use site also relevant conclusion building 19 whitty street set back dwelling south street tree whitty street filter view proposed building whitty street moreover development rgz expected adopt lesser setback greater site coverage compared traditional dwelling stock case proposal meet varied standard b8 respect site coverage 11 landscape plan show one larger four canopy tree around east north east land make positive contribution landscape setting mr holdsworth give weight three storey form emphasising two street corner dickson whitty dickson martin street policy expressly seek outcome however accept higher form step away south proposed dwelling activating dickson street streetscape habitable room balcony contrast property south side dickson street west east subject land present high paling fence former dwelling subject land adopted similar side setback high paling fence arrangement dickson street seen open setting dickson street development evidently read three storey dwelling face dickson street enjoying benefit northern orientation outlook landscaping plan show canopy tree ground level unit except unit 3 mr dimitropoulos indicated additional tree could provided front setback unit 3 required taking account street tree proposal suitable landscape response dickson street setting even though tree may reach 9 metre landscape design us mix indigenous exotic tree martin street character may change current pattern garage outbuilding immediate south subject land proposed garage unit 4 5 set back 2 metre title boundary find acceptable given manner garage integrated overall building composition key issue southern elevation present back development screened window varied material across three floor level agree council southern elevation long articulated elevation face street however building scale expected result scheme provision policy apply limitation landscaping opportunity refer mean proposal unacceptable position shape southern elevation unreasonably affect development opportunity land south relevant northern elevation rear two storey extension 19 whitty street present two storey wall one window ground level proposal also present two storey form recessed first floor stepped upper level architecture design detailthe scheme seeking high quality innovative design applicant relies mr holdsworth evidence architectural standard high mr song also refers statement architect part submission describes individuality dwelling nuanced approach design façades turn hold street corner also refers high quality element design response environmental sustainability quality refer mr holdsworth make similar point also opines design may articulated response mr song suggests tribunal could simplify material necessary overall consider significant change warranted architectural treatment albeit people taste may prefer simplified approach varied material across floor level acceptable said find use brick ironbark timber first floor west south elevation would improved deleting brickwork simplify presentation part development modified ironbark c01 addressed permit condition interesting consider design adopted approved project 27 martin street context differs subject land however observe strong attached form without break three storey townhouses design detail include varied roof form material way found acceptable response scheme context proposal u design approach location private open spacethe design relies secluded private open space ground level unit 1 2 4 shown 1 5 metre high fencing dickson street private open space available dwelling proposed ground level private open space front setback unit 2 4 face north unit 1 corner private open space fencing set boundary landscaping fronting dickson whitty street unit 3 5 rely north facing balcony 12 dwelling layout activates public realm improvement compared current paling fence envelope part dickson street frontage martin street frontage taking technical definition apartment proposed open space front setback aligns local policy private open space located within frontage new development unless integrated within apartment complex private open space front setback may concern desire avoid high fencing occupant desire privacy security mr holdsworth mr dimitropoulos recommend additional fencing reason offered different view fencing example whole perimeter 1 5 metre semi transparent fencing shown unit 1 2 4 additional fencing 1 2 metre high currently fencing shown agree additional fencing would appropriate demarcate dwelling well public private realm lower fencing unit balcony would reinforce individuality dwelling would scope transition fence height occur similar fashion shown east side unit 3 balcony location service dickson street setbackthe plan show service may able seen street include bin location external clothesline several unit would front setback hearing discussed potential increase southern ground setback unit 2 4 0 5 1 metre allow service positioned rear dwelling instead would accord policy preferred applicant mr song advises change could made suggests part southern wall unit 2 4 could setback additional 1 metre creating larger service court similar unit 3 2 metre depth decided functional external rear service space warranted mindful front setback fully secluded require south ground floor wall unit 2 4 setback provide area depth 2 metre southern boundary width 3 5 metre notionally depicted location bin store clothesline also addressed permit condition council satisfaction crossover garageswhile fewer crossover may preferable agree council number crossover per se unacceptable character response one single width crossover provided whitty street one single width crossover provided dickson street double crossover provided martin street section martin street east side many garage fence gate future may see dwelling fronting west side martin street use existing crossover acceptable setting garage integrated building design covered roof element 13 although martin street garage significantly setback behind dwelling façade find specific circumstance land design mean outcome acceptable west side whitty street present multiple vehicle crossover case notwithstanding available access martin street property second dwelling placed front martin street one crossover street responds evident pattern still ensures strong landscaping response achieved based landscape plan landscaping opportunitieswe referred landscaping part accept submission evidence applicant extent type landscaping proposed acceptable development respect landscape character setting proposal meet varied standard b13 requires one medium sized tree 6 12 metre maturity front setback varied standard express whether one tree per dwelling one tree whole front setback either way proposal well exceeds standard five canopy tree mature height specified nine tree overall landscape plan includes creeper climbing frame height 2 2 metre southern elevation plainly view property south south west martin street lesser extent south east consider southern elevation must hidden screen acceptable impact property south managed proposal achievement standard b17 b20 discussed hearing allocation pathway unit 2 whitty street result loss proposed planting south east site mr dimitropoulos state proposed canopy tree could retained proceeded expectation environmentally sustainable designthe council criticised proposal response environmentally sustainable design policy clause 21 07 22 02 plan identify multiple initiative respond policy energy performance objective clause 22 02 2 addition compliance be initiative water tank garage slab four dwelling rainwater garden filter water stormwater system bicycle storage dwelling northern orientation dwelling good cross ventilation unit dwelling also adaptable set applicant submission conclusionfor reason find proposed development meet purpose clause 32 07 relevant clause 55 objective acceptable design response mindful character area change expected policy development rgz1 site amenity impactsthe council submits proposal would present unreasonable visual bulk adjacent property particularly south visual impact bulk mass viewed surrounding property adversely affect amenity accord policy mr mr axial agree also oppose permit application overshadowing excessive building bulk 19 whitty street contains single two storey dwelling secluded private open space fronting martin street four habitable room window extend along northern façade two overhung awning rear west elevation dwelling several large window providing outlook garden small shed north west corner property gate provide vehicle access large tree rear yard side wall two storey extension 19 whitty street sheer one window substantially addressed matter building bulk site relevant conclusion impact 19 whitty street acceptable corrected plan show standard b17 b20 14 met respect interface 19 whitty street relevant clause 55 objective also met appreciate envelope contained standard b17 cross section particular point along boundary take account length wall measured 15 indicated scheme directing growth area mean larger building must expected expected concealed vegetation property rgz1 extent shadow cast development south complies standard b21 meet objective clause 55 04 5 standard based september equinox note council internal referral seek winter shadow relevant assessment clause 55 traffic car parkingcar parking impactsthe proposal result loss kerbside parking seek reduction car parking clause 52 06 council resident concerned combined impact parking result proposal mr axial refers limited amount parking available area submits parking provided within development car parking reductionthe permit application seek reduction two car space one two bedroom dwelling would parking one three bedroom dwelling would one car space site visitor parking required development clause 52 06 bicycle parking facility provided dwelling although precise nature specified council internal referral advice opposes car parking reduction given concurrent loss street parking refer however set car parking demand assessment support position applicant relies m dunstan evidence support parking reduction evidence includes car parking demand assessment recite mr song emphasis sunshine excellent public transport access role transport interchange rail bus service additional transport available metro tunnel applicant submits appropriate location reduce parking encourage alternative consistent state local policy moreover evidence amount parking proposed site aligns demand australian bureau statistic car ownership data two three bedroom townhouses sunshine brimbank household require want car parking space site mindful subject land accessibility walkability service public transport sunshine activity centre parking survey included traffic evidence show unrestricted parking heavily used day compared 2 hour parking martin dickson street mix unrestricted 2 hour parking whereas whitty street unrestricted parking night weekend visitor dwelling common ample unrestricted street parking available clause 52 06 requires car parking demand assessment determine whether requested reduction site parking provision acceptable regard clause 52 06 7 expert evidence u strong case u conclude reduction parking acceptable give weight express policy outcome pursued scheme including local policy clause 21 10 advocate sustainable transport option clause 22 02 seek minimise car dependency proposal provides bike storage 16 require detail kerbside parkingthe council applicant agree amount kerbside parking removed allow new crossover whitty street dickson street martin street m dunstan ass two space lost one dickson street one whitty street three space dickson street retained adjacent subject land standing sign positioned closer eastern kerb extension mr klarica instruction five possibly six space lost two martin street two dickson street one possibly two whitty street m dunstan agree two space lost martin street given standing restriction apply adjacent subject land position council appear accept accept m dunstan analysis matter noting dickson street standing sign would need repositioned eastward appears possible loss kerbside parking ideal whether calculated two three space note however proposal complies local policy encourage one vehicle crossing per dwelling 17 increased parking pressure associated development sunshine activity centre surrounding area rgz1 council manager street parking supply ongoing basis likely need review street parking restriction balance need user circumstance site respect street frontage lot therefore consider proposal set undesirable precedent respect street parking loss car parking layoutmr klarica extensively cross examined m dunstan layout proposed crossover sightlines available motorist pedestrian mr dimitropoulos also questioned planting associated sightlines addition design standard provision clause 52 06 clause 21 10 3 seek ensure location function car parking facility safe pedestrian motorist strategy clause address range design matter including location crossover sightline consideration including low planting intend repeating material ultimately council must approve crossover layout capacity road manager understand based standard design satisfied proposal achieve acceptable outcome final detail fencing planting ensure appropriate sightlines achieved required scheme conclusionfor reason responsible authority decision set aside permit granted subject condition included appendix condition consistent finding take account submission made party possible permit condition margaret bairdsenior memberrebecca cameronmemberappendix permit conditionspermit application p147 2016land 21 whitty street sunshinewhat permit allowsin accordance endorsed plan construction five dwelling four three storey one double storey condition amended endorsed plansbefore development start amended plan satisfaction responsible authority must submitted approved responsible authority approved plan endorsed form part permit plan must drawn scale dimension one digital copy must provided plan must generally accordance plan prepared lorina nervegna architect drawing number d01 d11 inclusive dated 1 september 2019 modified show vehicle crossover designed constructed council current standard including 1 2 metre splay b accurate detail asset street frontage including setback proposed crossover crossover splay relocation power pole dickson street located within one metre proposed crossover c power pole located front dwelling 2 relocated satisfaction responsible authority notation plan note street tree require removal satisfaction responsible authority e pathway south garage unit 1 allocated pathway rear unit 2 f south facing first second floor habitable room window clearly noted screened accordance standard b22 clause 55 04 6 detail screening measure provided satisfaction responsible authority g south ground floor wall unit 2 4 setback provide area depth 2 metre southern boundary width 3 5 metre h bin storage unit 1 repositioned minimise visibility street satisfaction responsible authority bin storage unit 2 4 relocated rear dwelling j detail bicycle storage facility dwelling k ground floor plan corrected show maximum 1 5 metre high semi transparent timber fencing f01 unit 4 consistent north elevation plan d05 l semi transparent timber fencing height 1 2 metre along front boundary unit 3 5 dickson street martin street frontage except frontage associated garage unit 5 fence required ii required lower sightline triangle iii semi transparent timber gate unit 3 vehicle access height 1 metre provision external clothesline unit 2 4 5 positioned minimise visual impact public realm satisfaction responsible authority n detail internal dividing fence must greater 1 5 metre height except dividing fence service yard unit 2 3 4 must 1 8 metre high change plan required result waste management plan satisfaction responsible authority waste management plan must accordance condition 28 p schedule construction material external finish colour unit 5 first floor west south elevation must modified ironbark c01 deleting brickwork q landscape plan prepared landscape architect suitably qualified experienced person accordance condition 3 development shown endorsed plan must altered without written consent responsible authority landscapinga landscape plan satisfaction responsible authority must submitted approved responsible authority approved plan endorsed form part permit plan must drawn scale dimension one digital copy must provided landscaping plan must generally accordance landscape concept shown plan l tp1 revision dated 17 october 2019 prepared etched project landscape architecture change ensure plan detail consistent plan required condition 1 b detail surface finish pathway driveway c planting schedule proposed tree shrub ground cover including botanical name common name pot size size maturity quantity plant landscaping planting within open area site e appropriate irrigation system f proposed planting per concept landscape plan referenced g specie selected must satisfaction responsible authority landscape plan must also indicate ground irrigation system provided landscaped area prior occupancy permit issued building hereby permitted landscaping work shown endorsed plan must completed satisfaction responsible authority landscaping shown endorsed plan must maintained satisfaction responsible authority including dead diseased damaged plant replaced following payment required prior release endorsed plan cash bond 5000 amount plus non refundable 5 service charge 250 amount total 5250 amount shall lodged responsible authority prior collection endorsed plan ensure completion establishment landscaped area cash bond refunded 13 week establishment period beginning responsible authority satisfied completed landscaping work provided landscape maintained satisfaction responsible authority owner must pay responsible authority fee 470 including gst future street tree replacement within brimbank city council street tree protectionthe following measure must adhered protection street tree retained naturestrip street tree along dickson street barricaded using portable cyclone fencing duration development cost fencing must borne developer permit holder b pruning existing street tree located within naturestrip within dickson street frontage site shall undertaken party brimbank tree service c building material stacked dumped naturestrip construction tree protection zone tpz around existing street tree must fenced accordance australian standard as4970 2009 protection tree development site following activity must occur within tpz construction work without supervision qualified arborist b driving parking vehicle machinery c stockpiling building material debris soil dumping fuel oil chemical e altering soil level f open trenching including placement pipe wire g attachment wire nail screw fixing device existing tree supplementary watering must provided tree dry period construction process development contribution levya development contribution accordance approved development contribution plan must paid brimbank city council payment development infrastructure levy dil must paid prior commencement development work land prior statement compliance soc subdivision land associated development permit whichever come first b staged subdivision sought paid prior issue statement compliance based net increase number new dwelling within stage payment community infrastructure levy cil must paid prior issue building permit thebuilding act 1993 generalduring construction phase development following condition shall met clean rainwater shall discharged stormwater drainage system b stormwater drainage system protection measure shall installed required ensure solid waste sediment sand soil clay stone premise enters stormwater drainage system c vehicle borne material shall accumulate road abutting site machinery equipment must cleaned required site adjacent footpath road e litter including item cement bag food packaging plastic stripping must disposed responsibly f site operation shall comply environment protection residential noise regulation 2008 car parkingbefore occupation development start area set aside parking vehicle access lane shown endorsed plan must constructed concrete asphalt b properly formed level used accordance plan c drained maintainedall satisfaction responsible authority car space access lane driveway must kept available purpose time vehicular crossing must constructed road suit proposed driveway satisfaction responsible authority prior work undertaken site vehicle crossing permit must obtained council engineering department prior work commencing site disused redundant vehicle crossing must removed replaced kerb channel naturestrip footpath satisfaction responsible authority permit must obtained council engineering department prior commencement work owner developer responsible determining location road infrastructure non road infrastructure road reserve e g pit pole water main gas main telecommunication cable etc could affected installation new crossover related work existing road infrastructure non road infrastructure located within adjacent new crossover must altered relocated reconstructed satisfaction responsible authority relevant utility provider infrastructure manager expense owner developer concrete kerb barrier must provided satisfaction responsible authority prevent direct vehicle access whitty dickson martin street via vehicle crossing shown endorsed plan engineeringaccess site ancillary road work must constructed accordance requirement responsible authority site stormwater drainage retention detention system must installed subject land satisfaction responsible authority entire development site must connected existing underground drainage sewerage system satisfaction responsible authority crossover must located constructed satisfaction responsible authority accordance plan approved responsible authority plan submitted must show service within road reservation including power pole drainage pit telstra pit tree road hump bus stop road infrastructure asset may hinder impact operation crossover protective kerb minimum height 150mm must provided satisfaction responsible authority prevent damage fence landscaped area control drainage flow multi unit residential developmentprovision must made suitable structure structure receiving mail newspaper area shall kept clean tidy structure shall include separate provision unit receive paper service meter must located front unit location easily accessible various authority electrical meter box e must within suitable structure treated appropriate material positively contribute amenity area satisfaction responsible authority pipe fixture fitting vent servicing building site must concealed service duct otherwise hidden view satisfaction responsible authority wall boundary adjoining property shall cleaned finished satisfaction responsible authority provision must made land storage waste recycling bin location visible street satisfaction responsible authority prior occupation approved development owner permit holder must prepare approved writing responsible authority waste management plan wmp site respect collection disposal waste recyclables associated proposed us site satisfaction responsible authority wmp must provide following collection waste associated proposed dwelling land including provision waste collection bin recycling bin storage refuse solid waste bin receptacle within suitable screened accessible area satisfaction responsible authority b designation method collection waste associated council service c appropriate area bin storage site area waste bin storage collection day detail best practice waste management operating approved wmp endorsed form part permit must complied satisfaction responsible authority must varied except written approval responsible authority time limit developmentthis permit expire one following circumstance applies development started within two year date permit b development completed within four year date permit responsible authority may extend period referred request made writing permit expires within six month afterwards commencement b within twelve month afterwards completion end condition 1 understand mr dimkopoulos attended tribunal morning 1 november tribunal undertaking site visit lodged statement ground considered party understand registry staff unable attend balance hearing 2 submission evidence party supporting exhibit given hearing statement ground filed considered determining proceeding accordance tribunal practice material cited referred reason commencement hearing 8 july 2019 declared name firm project architect sessional member tribunal planning environment list among remark made respect declaration confirm communicated member duration proceeding u 3 extract planning property report amendment c202brim occurred 20 september 2019 4 extract statement significance ho151 grand junction matthew hill precinct 5 rgz1 boundary align ho151 6 clause 21 04 plan melbourne 2017 2050refers sunshine metropolitan activity centre 7 plan melbourne 2017 2050describes area developed place concentration linked business institution providing major contribution victorian economy excellent transport link potential accommodate significant future growth job instance housing sunshine envisaged attracting broader range business including office retail service entertainment well residential development page 41 give detail including link st albans major activity centre 8 page 48 draft document dated may 2019 9 10this includes lot south martin street 11 64 compared varied standard 70 12 council contend size space meet varied standard b28 13 element clearly shown west elevation seen floorplans 14 subject confirming dimension council accepts standard b20 met 15 global alpha group pty ltd v boroondara cc 2013 vcat 1929at 39 16 consistent strategy 1 1 clause 21 10 1 even though none required clause 52 34 17 clause 21 07 3 strategy 2 2

QUEENSLAND HEALTH NURSES AND MIDWIVES AWARD - STATE 2011 [2012] QIRComm 55 (30 March 2012).txt

citation queensland health nurse midwife award state 2011 reprint award 30 march 2012 http www qirc qld gov au queensland industrial relation commission industrial relation act 1999 698 reprint award queensland health nurse midwife award state 2011 following award reprint correction error dated 30 march 2012 queensland h ealth nurse midwife award state 2011 hereby reprinted pursuant 698 industrial relation act 1999 hereby certify award contained herein tr ue correct copy queensland health nurse midwife award state 2011 1 september 2011 dated 30 march 2012 l g savill industrial registrar queensland health nurse midwife award state 2011 section common condition part 1 application operation 1 1 title award known queensland hea lth nurse midwife award state 2011 1 2 arrangement subject matter clause section common condition part 1 application operation title 1 1 arrangement 1 2 date operation 1 3 award coverage 1 4 application award 1 5 section common condition 1 6 definition 1 7 area operation 1 8 preservation existing condition 1 9 part 2 flexibility enterprise flexibility 2 1 part 3 communication consultation dispute resolution grievance dispute settling procedure 3 1 part 4 employer employee duty employment relationship related arrangement employment category 4 1 part time employee 4 2 casual employee 4 3 temporary fixed term engagement 4 4 incidental peripheral task 4 5 2 subject matter clause anti discrimination 4 6 termination employment 4 7 introduction change 4 8 redundancy 4 9 workload management 4 10 part 5 wage wage related matter classification employee 5 1 progression within classification level 5 2 wage rate 5 3 queensland minimum wage 5 4 nurse uniform 5 5 accelerated advancement registered nurse 5 6 allowance 5 7 payment wage 5 8 superannuation 5 9 salary packaging 5 10 recognition previous nursing experience 5 11 part 6 hour work break overtime shift work weekend work hour work 6 1 director nursing assistant director nursing hour 6 2 length shift 6 3 twelve hour shift arrangement 6 4 roster 6 5 overtime 6 6 rest break shift 6 7 rest pause 6 8 shift work weekend work 6 9 call recall enrolled nurse registered nurse 6 10 call recall assistant nursing 6 11 call home visiting telephone counselling outreach service arrangement 6 12 part 7 leave absence public holiday annual leave 7 1 sick leave 7 2 worker compensation 7 3 bereavement leave 7 4 long service leave 7 5 family leave 7 6 special leave 7 7 public holiday 7 8 part 8 transfer travelling working away usual place work travelling relieving expense 8 1 motor vehicle allowance 8 2 appointment tran sfer expense 8 3 fly fly arrangement 8 4 integration mental health service 8 5 patient escort 8 6 part 9 training related matter commitment training 9 1 part 10 occupational health safety matter equipment tool amenity 3 subject matter clause queensland health workplace health safety advisory committee 10 1 part 11 award compliance union related matter right entry 11 1 time wage record 11 2 posting award 11 3 union encouragement 11 4 industrial relation education leave 11 5 section b public hospital application section b 12 1 classification employed section b 12 2 meal break 12 3 allowance 12 4 board lodging 12 5 annual leave 12 6 public holiday 12 7 public holiday director nursing 12 8 public holiday dental hospital dental clinic 12 9 section c psychiatric hospital eventide home application section c 13 1 classification employed section c 13 2 artisan work 13 3 meal break 13 4 allowance 13 5 protective appliance 13 6 board lodging 13 7 uniform 13 8 change shift 13 9 mutual change leave day working shift 13 10 roster change 13 11 overtime cancelled shift 13 12 annual leave 13 13 public holiday 13 14 section public service application section 14 1 classification employed section 14 2 application public service act 2008 regulation 14 3 custom practice 14 4 condition appointment probationary service 14 5 transfer officer 14 6 meal break 14 7 allowance 14 8 annual leave 14 9 public holiday 14 10 extended hour service 14 11 section e senior nursing staff psychiatric hospital application section e 15 1 classification employed section e 15 2 meal break 15 3 allowance 15 4 board lodging 15 5 uniform 15 6 change shift 15 7 annual leave 15 8 public holiday 15 9 4 subject matter clause section f certain employee alcohol drug dependence service application section f 16 1 classification employed section f 16 2 meal break 16 3 allowance 16 4 change shift 16 5 annual leave 16 6 public holiday 16 7 extra payment weekend work 16 8 schedule classification definition schedule 1 wage rate schedule 2 midwifery model care definition schedule 3 1 3 date operation award take effect 16 march 2011 1 4 award coverage 1 4 1 award applies employee various health service district queensland health whose rate wage salary prescribed award 1 4 2 provision health service act 1991 regulation made act apply employee covered award su ch act regulation applicable 1 5 application award 1 5 1 section common condition part 1 11 award ap ply nurse midwife 1 5 2 section b public hospital section applies work employment nurse midwife classification level work public hospital b nurse working mental health unit nursing home attached public hospital 1 5 3 section c psychiatric hospital etc section applies work employment nurse grade 1 4 inclusive employed connection eventide home sandgate rockhampton charter tower b nurse midwife nurse grade 1 8 inclusive employed connec tion charter tower rehabilitation unit park wacol baillie nderson toowoomba psychiatric mental health facility 1 5 4 section public service section applies work employment registered nurse nurse grade 5 connection eventide home sandgate rockhampton charter tower b nurse midwife including community health service whose employment otherwise covered section b c e f 5 c nurse midwife employed correctional facility 1 5 5 section e senior nursing staff psychiatric hospital section applies work employment registered nurse nurse grade 9 empl oyed connection charter tower rehabilitation unit park wacol baillie nderson toowoomba psychiatric mental health facility 1 5 6 section f certain employee alcohol drug dependence service section applies work employment registered nurse nurse grade 5 empl oyed biala city community health centre 1 6 section common condition section applies term provided clause 1 5 1 1 7 definition 1 7 1 accrued day ado mean day accrued result method work ing ordinary hour employee rostered various day ek particular work cycle employee may one day cycle 1 7 2 act mean industrial relation act 1999 amended replaced time time 1 7 3 assistant director nursing mean assistant director nursing nurse grade 9 band 1 3 unless otherwise specified 1 7 4 assistant nursing mean assistant nursing nurse grade 1 definition twelve month trained assistant nursing specified schedule 1 3 1 7 5 chief executive defined health service act 1991 applicable person prescribed schedule 1 public service act 2008 purpose award another person chief executive delegated specific authority 1 7 6 clinical nurse mean cl inical nurse nurse grade 6 1 7 7 clinical nurse consulta nt mean clinical nurse consultant nurse grade 7 1 7 8 clinical unit mean employee immediate work area 1 7 9 commission mean queensland industrial relation commission 1 7 10 continuous shift work mean work done employee hour work regularly rotated shift roster covering 24 hour per day operation 7 day week 1 7 11 department eans queensland health 1 7 12 director nursing mean director nursing nurse grade 10 band 1 4 unless otherwise specified 1 7 13 district director nursing mean district director nursing nurse grade 11 band 1 4 unless otherwise specified 1 7 14 district mean health service district defined health service act 1991 1 7 15 employee mean includes employee within classification employee defined schedule 1 award 1 7 16 enrolled nurse mean enrolled nurse nurse grade 3 1 7 17 enrolled nurse advanced practice mean enrolled nurse advanced practice nurse grade 4 6 1 7 18 executive district director nursing mean executive district director nursing nurse grade 12 1 7 19 four weekly work cycle mean work cycle 28 calendar day employee work ordinary hour work 19 day 4 weekly work cycle 1 7 20 generic level statement mean broad concise statement duty skill responsibility indicative given classification level 1 7 21 human resource policy mean specific quee nsland health human resource policy integrated resource manual irm ye consolidated queensland health human resource policy 1 7 22 hospital public hospital mean health facility premise fo r reception treatment sick operated queensland health includes health centre clinic dental hospital dental clinic 1 7 23 majority shift mean major portion dinary hour worked shift starting finishing time occur different day 1 7 24 nurse educator mean nurse educator nurse grade 7 1 7 25 nurse grade comprises number band th rough employee eligible progress 1 7 26 nurse manager mean nurse manager nurse grade 7 1 7 27 nurse practitioner mean nurse practitioner nurse grade 8 defined schedule 1 11 award 1 7 28 nurse practitioner candidate mean nurse practitione r candidate nurse grade 7 defined schedule 1 2 3 award 1 7 29 nurse researcher mean nurse researcher nurse grade 7 1 7 30 nurse unit manager mean nurse unit manager nurse grade 7 1 7 31 nursing director mean nursing director nurse grade 9 band 1 3 1 7 32 paypoint mean specific rate remune ration payable employee within nurse grade 1 7 33 psychiatric hospital mean psychiatric mental health facility hospital known park wacol baillie henderson toowoomba char ters tower rehabilitation unit 1 7 34 registered nurse mean regi stered nurse midwife nurse grade 5 1 7 35 registered nurse mean nurse grade 5 1 7 36 service mean unless othe rwise specially stated continuous employment whether temporary probationary permanent 1 7 37 shift work th continuous shift work mean work regula rly rotated accordance roster prescribes 2 shift day afternoon night per day cover 24 hour per day operation 7 day week 1 7 38 student nursing midwifery mean undergraduate student nurse midwife nurse grade 2 1 7 39 act mean industrial relation act 1999 amended replaced time time 1 7 40 time half mean one half day wage addition prescribed minimum rate pro rata le day 1 8 area operation purpose award division district follows 1 8 1 division northern division 7 portion state along north line commencing junction sea coast 21st parallel south latitude latitude due west 147 degree east longitude longitude due south 22 degree 30 minute south latitude latitude due west western boarder state b mackay division portion state within following boundari e commencing junc tion sea coast 21st parallel south latitude latitude due west 147 degree east longitude longitude due south 22 degree south latitude latitude due east sea coast sea coast northerly point co mmencement c southern division portion state included northe rn mackay division 1 8 2 district northern division eastern district portion northern division along east 144 degree 30 minute east longitude western district remain der northern division b southern division eastern district portion southern division along east line commencing junction southern border state 150 degree east longitude longitude due north 25 degree south longitude latitude due west 147 degree east longitude longitude due north southern boundary mackay division western district remainder southern division 1 9 preservation existing condition 1 9 1 making award reduce conditio n employment entitlement applying existing employee condition favourable provided award 1 9 2 unless inconsistent term award entitlement employee contained award agreement ministerial directive determination made public service act 2008 health service act 1991 effective date award made reduced award 1 9 3 employee suffer loss diminution entitlement term condition employment enjoyed immediately prior commencement award reason coming force award part 2 flexibility 2 1 enterprise flexibility 2 1 1 part process improv ement productivity efficiency di scussion take place enterprise provide flexible working arrangement improvement quality working life enhancement skill training job satisfaction encourage consultative mechanism across workplace 2 1 2 purpose consultative process employee may nominate union another represent 2 1 3 proposed genuine agreement r eached employer employee enterprise contingent upon agreement submitted commission accordance chapter 6 act force effect approval given part 3 communication consultation dispute resolution 3 1 grievance dispute settling procedure 8 matter dealt procedure incl ude grievance dispute employee employer respect industrial matter matter party agree specified herein procedure apply single employee number employee grievance dispute relation workload management addressed accordan ce clause 4 10 award procedure promote prompt resolution grievance consultation cooperation discussion reduce level disputation promote efficiency effectiven es equity workplace procedure applies industrial matter within meaning act 3 1 1 stage 1 first instance employee inform immediate supervisor existence grievance attempt resolve grievance recognised employee may exercise right consult employee union representative course stage 3 1 2 stage 2 grievance remains unresolved employee refer grievance next line management manager manager consult party em ployee may exercise right consult represented employee union representativ e course stage 3 1 3 stage 3 grievance still unresolved manager advise chief executive aggrieved employee may submit matter writing chief executive organisation employee wish pursue matter desired either party tter also notified union 3 1 4 chief executive ensure aggrieved employee employee union repres entative opportunity present aspect grievance b grievance investigated thorough fair impartial manner 3 1 5 chief executive may appoint another person investigate grievance chief executive may consult union appointing investigating person appointed person must someone employee supervisor manager 3 1 6 matter notified union investigating officer consult union course investigation chief executive advise employee initiating grievance employee union representative employee directly concerned determination made result investigation grievance 3 1 7 chief executive may delegate chief executive grievance resolution power clause nominated representative 3 1 8 procedure comp leted accordance following time frame unless party agree otherwise stage 1 discussion take place employee employee supervisor within 24 hour procedure extend beyond 7 day b stage 2 exceed 7 day c stage 3 exceed 14 day 9 3 1 9 grievance still unresolved following stage 3 matter may referred public service commissioner commission employee th e union appropriate accordance respective jurisdiction tribunal 3 1 10 subject legislation grievance procedure followed normal work continue except case genuine safety issue status quo existing emergence grievance dispute continue procedure followed part prejudiced final settlement continuation work 3 1 11 grievance involves allegation sexual harassment employee may commence procedure stage 3 part 4 employer employee duty employment relati onship related arrangement 4 1 employment category 4 1 1 employee covered award advised writing employment category upon appointment employment category full time b part time prescribed clause 4 2 c casual prescribed clause 4 3 temporary prescribed clause 4 4 4 2 part time employee 4 2 1 part time employee employee casual employee engaged work regular hour fewer 38 hour per week receives pro rata basis equivalent pay condition full time employee classification 4 2 2 part time employee entitled r eceive following co nditions employment minimum payment per engagement based minimum 4 hour maximum 10 hour one day subject clause 6 4 award b overtime penalty payment c pro rata wage employment condition full time employee engaged classification termination entitlement taking account period full time part time employment accordance relevant pr ovisions based pe riods respective service 4 2 3 part time employee contracted hou r work specified wr iting hour equate actual hour part time employee work 4 2 4 part time employee entitled public holiday penalty provision set award payment must made hour actually worked appr opriate minimum payment applied necessary 4 2 5 part time employee usually work day week public holiday fall required work rostered duty day must paid hour would otherwise worked day 4 3 casual employee 4 3 1 casual employee mean employ ee engaged 32 hour per week paid hourly basis 4 3 2 casual employee paid loading 23 classification rate level work employee engaged perform despite clause 4 3 2 penalty paid casual work sunday inclusive casual loading paid employee 10 4 3 3 employer advise district consultative forum casual employee engaged greater 12 month 4 3 4 meet exigency casual empl oyee may work 32 hour week employee paid appropriate overtime ra te time worked excess 32 hour 4 4 temporary fixed term engagement 4 4 1 temporary fixed term employee employee engaged meet temporary circumstance existing within health service district following kind unexpected unplanned leave b long term illness c unplanned leave permanent reliever cannot justified permanent relief staff preferred mode relief staffing used wherever possible fixed term project e address seasonal workload change f event organisational change g employee undertaking accredited fixed term course study h fixed term program funding employment graduate pending availability permanent position j without limiting access higher duty backfilling wh ere legitimate recruitment process occurring 4 4 2 temporary employee notified writing pr ior commencement employment starting finishing date employment lieu finishing date notified specific circumstance contingency relating specific task project reason upon occurrence term employment expire 4 4 3 temporary fixed term employee required serve probationary period 4 4 4 period employment temporary fixed term employee counted continuous service purpose calculating entitlement regard arrangement relation break service 4 4 5 within 6 month date coming operation award employer advise union appointment temporary employee together date location appointment reason appointment continue thereafter 6 monthly interval 4 5 incidental peripheral task 4 5 1 employer may direct employee carry duty within particular employee skill competence educationa l preparation provided duty consistent performed classification award within educational preparation required appointment classification b consistent term clause 4 5 1 duty essential duty urgent special unusual nature required carried non availability classification employee usually assigned class work required regular basis c clause 4 5 affect employee entitlement higher duty allowance provided award direction consistent employ er responsibility provide safe healthy working environment 4 6 anti discrimination 11 4 6 1 intention party award prevent eliminate discrimination defined anti discrimination act 1991 industrial relation act 1999 amended time time discrimination includes discrimination basis sex marital status fa mily responsibility pregnancy parental status age race impairment religion political belief activity trade union activity lawf ul sexual activity association relation person identified basis attribute b sexual harassment c racial religious vilification 4 6 2 accordingly fulfilling obligation clause 3 1 award party award must take reasonable step ensure neither award prov isions operation ar e directly indirectly discriminatory effect 4 6 3 anti discrimination act 1991 unlawful victimise employee employee made may make involved complaint unlawful discrimination harassment 4 6 4 nothing clause 4 6 taken affect different treatment treatment differe nt outcome specifically exempted anti discrimination act 1991 b employee employer registered organisation pursuing matter discrimination including application human right commission anti discrimination commission queensland 4 7 termination employment 4 7 1 statement employment employer event termination employment provide upon request employee terminated written statement specifying period employ ment classification type work performed employee 4 7 2 termination employer terminate employment employee employer must give following notice period continuous service period notice 1 year 1 week 1 3 year 2 week 3 year 5 year 3 week 5 year 4 week b addition notice clause 4 7 2 employee 45 year age older completed least 2 year continuous service employer ar e entitled additional week notice c payment lieu notice made ap propriate notice period given employment may terminated part notice speci fied part payment lieu thereof 4 7 3 calculating payment lieu notice minimum compensation payable employee least total amount employer would ha liable pay employee employee employment continued end required notice period total must worked basis ordinary working hour worked employee b amount payable employee hour including example allowance loading penalty c amount payable employee employment contract 4 7 4 period notice clause apply case dismissal misconduct justifies instant dismissal case casual employee employee engaged hour day employee engaged specific period task 12 4 7 5 notice termination employee employee must give 2 week notice termination b employee fails give notice employer right withhold monies due employee maximum amount equal ordinary time rate pay period notice 4 7 6 time notice period period notice termination given employer employee allowed one day time without loss pay purpose seeking employment time taken time convenient empl oyee consultation employer b absence mutual agreement em ployer employee annual leave part thereof described clause 12 6 13 13 14 3 14 9 15 8 16 6 must considered nominated notice purpose termination employment c employee cease duty accrued cred used ado system credit must paid employee termination ado taken anticipation credit shortfall date termination may recovered employee shortfall may recovered final monies payable employee 4 8 introduction change 4 8 1 employer duty notify queensland health decides introduce change production program organisation structure technology likely significant effect employee employer notify employee may affected proposed cha nges relevant union b significant effect include termination employment major change composition operation size employer workforce skill required elimination diminution job opportunity job tenure alteration hour work need retraining transfer employee work location restructuring job provided award make provision alteration matter referred herein alteration deemed significant effect 4 8 2 employer duty consult change employer consult em ployees affected relevant union introduction change effect change likely employee including number category employee likely dismissed time period employer intends carry dismissal way avoid minimise effect change example finding alternative employment b consultation must occur soon practicable making de cision referred clause 4 8 1 c purpose consultation employer provide writing employee concerned relevant union relevant information change including nature change proposed expected effect change employ ee matter likely affect employee provided employer required disc lose confidential information disclosure would adverse employer interest 4 9 redundancy employee queensland health receive superior entitlement contained queensland health human resource policy b36 surplus employee priority placement employee redundancy occurs employer decides employer longer wish job employee done anyone due ordinary customary turnover labour 4 9 1 consultation termination employer decides employer lo nger wish job employee done anyone due ordinary customary turnover labour decision may lead termination employment employer consult employee directly affected relevant union 13 b consultation take place soon prac ticable employer made definite decision invoke provision clause 4 9 1 outline reason proposed termination measure avoid minimise termination adverse effect employee concerned c purpose consultation employer soon practicable provide writing employee concerned relevant union relevant information proposed termination including reason proposed te rminations number category employee likely affected nu mber worker normally employed period termination likely carried provided employ er required disclose confidential information disclosure would adverse employer interest 4 9 2 transfer lower paid duty employee transferred lower paid dutie reason set cl ause 4 9 1 employee entitled period notice transfer employee would entitled employee employment terminated clause 4 7 b employer may employer option make payment lieu thereof amount equal difference former amount employer would liable pay new lower amount employer liable pay employ ee number week notice still owing c amount must worked basis ordinary working hour worked employee ii amount payable employee hour including example allowance loading penalty iii amount payable employee employment contract 4 9 3 transmission business business whether date insertion clause award transmitted employer transmittor another employer transmittee employee time transmission employee transmittor business becomes employee transmittee continuity employment employee must deemed broken reason transmission ii period employment employee ha transmitter prior transmittor deemed service th e employee transmittee b clause 4 9 3 business includes trade process business occupation includes part subsidiary mean corporation would taken subsidiary corporation law whether corporation law applies particular case business transmission includes transfer conveyance assignm ent succession whether agreem ent operation law transmitted corresponding meaning 4 9 4 time notice period decision made terminate employee circumstance outlined clause 4 9 employee must allowed one day time w ithout loss pay week notice purpose seeking employment b employee allowed paid leave one day notice period purpose seeking employment employee request employer required produce proof attendance interview employee receive paymen time absent purpose statutory declaration sufficient 4 9 5 severance pay addition period notice prescribed ordinary termination clause 4 7 2 subject order commission employee whose employment terminated reason set clause 4 9 entitled following amount severance pay period continuous service severance pay week pay 14 le 1 year nil 1 year 2 year 4 2 year 3 year 6 3 year 4 year 7 4 year 5 year 8 5 year 6 year 9 6 year 7 year 10 7 year 8 year 11 8 year 9 year 12 9 year 10 year 13 10 year 11 year 14 11 year 12 year 15 12 year 16 b week pay mean ordinary time rate pay employee concerned following amount excluded calculation ordinary time rate pay overtime penalty rate disability allowance shift allowance special rate fare travelling time allowance bonus ancillary payment 4 9 6 superannuation benefit employer may make application commission relief obligation make severance payment circumstance employer contributed superannuation scheme provides particular benefit employee redundancy situation ii particular benefit employee benefit employee might obtain legislative scheme providing superannuatio n benefit currently federal superannuation guarantee levy award based superannuation scheme 4 9 7 employee leaving notice employee whose employment terminated reason set clause 4 9 may terminate employment period notice entitled benefit payment clause employee remained employer expiry su ch notice provided circumstance employee entitled payment lieu notice 4 9 8 alternative employment employer particular case may make application commission general severance pay prescription amended employer obtains accept able alternative employment employee 4 9 9 employee le one year service clause 4 9 apply employee le e year continuous service general obligation employer give relevant employee indication impending redundancy first reasonable opportunity take step may reasonable facilitate obtaining employee suitable alternative employment 4 9 10 employee exempted clause 4 9 apply employment terminated consequen ce misconduct part employee b employee engaged specific period time specific task task c casual employee 4 9 11 redundancy dispute procedure clause 4 9 11 b c impose additional obligation employer employer contemplates termination employment due redundancy dispute arises redundancy dispute additional obligation apply employer employ fewer 15 employee 15 b redundancy dispute arises discussion occur accordance th clause employer early possible consult measure taken avert minimise proposed redundancy measure mitigate adverse affect pr oposed redundancy employee concerned c redundancy dispute arises already done employer must provide affected employee relevant union union requested affected employee good time relevant information including reason proposed redundancy ii number category wo rkers likely affected iii period proposed redundancy intended carried 4 9 12 notice centrelink decision made terminate employee circumstance outlined clause 4 9 employer shall notify centrelink soon possible giving relevant information proposed termination including written statement reason termination numbe r category employee likely affected number worker normally employed period termination intended carried 4 10 workload management 4 10 1 business planning framework tool nursing workload management bpf agreed variation tool managing nursing midwifery resource workload management party also recognise professional judgement valid crite rion deeming definitive staffing level nurse midwife safe 4 10 2 business planning approach nursing midwifery resource management focus achieving balance service demand supply nursing reso urces necessary meet identified demand 4 10 3 service profile detail ho ur per patient day occasion se rvice relevant clinical unit varied accordance changi ng acuity activity notional ward unit based nurse patient ratio defined patient safety sustainable workload guiding principle defining nursing midwifery hour required 4 10 4 bpf used daily identify minimum consistent en forceable nursing mid wifery hour per patient day per occasion service clinical unit shift shift basis 4 10 5 maximum number available bed per clinical unit calculated reference rostered productive hour nursing hour per patient day nhppd clinical unit particular day 4 10 6 bed availability defined clinical unit level accordan ce produc tive nursing hour available 4 10 7 bed closure occur within context integrated bed management arrangement facility 4 10 8 training application bpf provid ed develop specialist application tool across facility guidance dedicated project officer 4 10 9 nursing workload committee district establish joint employer union workload committee steering committee nursing consultative forum agreed alternative deal issue nursing midwifery workload management committee consultative forum provide specialist advice training workload management review relation local application tool grie vances dispute relating application 4 10 10 nursing workload grievance procedure concern grievance dispute relating nursing workload resolved following step set nurse midwife management union representative may raise grievance dispute procedure step 1 concern grievance raised regarding staffing issu e first raised ward unit level grade 7 nurse responsible purp ose ensuring bpf tool nursing workload management correctly applied discussion take place within 24 hour 16 b step 2 grievance cannot resolved step 1 matter must taken officer designated nurse executive nursing director nurse grade 9 depending nursing executive structure facility c step 3 matter still unable resolved step 2 referred workload management committee steering committee nursing consultative forum advice recommendation matter referred next immediate meeting committee forum would expected director nursing responsible union official would confer recommendation suitable action would taken resolve grievance step 4 grievance cannot resolved step 3 referred specialist panel determination outcome specialist panel constituted eet manner effectively efficiently resolve workload grievance specialist pane l convened purpose include nurse management nominee ii union nominee nurse management nominee union nominee must nurse trained application bpf e step 5 grievance cannot resolved step 4 either party may refer matter commission assistance include conciliati necessary arbitration part 5 wage wage related matter 5 1 classification employee 5 1 1 nursing midwifery generic level statement generic level statement nurse grade prescribed schedule 1 award 5 1 2 statement reflect degree complexity responsibility duty skill knowledge proceeding lowest highest nurse grade 5 2 progression within classification level progression within classification level based meeting following requirement 5 2 1 full time employee classification one wage point progression annual increment regard acquisition utilisation skill knowledge experience employee practice setting period b upon promotion one classification another employee advanced next wage point method progression next wage point within new classification must occur 12 month period date new appointment 5 2 2 part time employee classification one wage point progression incremental advancement completion 1200 hour 12 mont h service whichever later criterion must satisfied regard acquisition utilisation skill knowledge experience employee prac tice setting period b upon promotion one classification another employee advanced next wage point method progression next wage point within new classification must occur 1200 hour 12 month continuous service whichever later criterion must satisfied date new appointment 17 5 2 3 casual employee classification one wage point progression incremental advancement completion 1200 hour 12 month continuous service employer whichever later criterion must satisfi ed regard acquisition utilisation skill knowledge experience employee practice setting period b upon promotion one classification another employee advanced next wage point method progression next wage point within new classification must occur 1200 hour 12 month continuous service whichever later criterion must satisfied date new appointment c purpose clause con tinuous service casual employee considered broken 3 month elapsed end one employment contract start next employment contract absence work public holiday break contribute break continuity service 5 3 wage rate salary payable nurse midwife prescribed schedule 2 award 5 4 queensland minimum wage rate wage salary prescribed award respect adult employee employee senior deemed include expressed reference th e queensland minimum wage decl ared time time time pursuant provision industrial relation act 1999 unless otherwise ordered wage salary adjusted comply variation queensland minimum wage 5 5 nurse uniform 5 5 1 queensland health supply free charge uniform type design considered suitable meet workplace health safety st andards follows lieu ther eof employee receive allowance equal indexed cost supply ic 5 5 2 ic calculated cost time time employee purchase 5 uniform culotte 5 uniform shirt supplier approved employer example pursuant standing offer arrangement 5 5 3 employer ensure supply nurs e uniform provide flexibility range item supplied employee provided choice di fferent shirt style lower garment including limited shirt polo short culotte trouser pant skirt dress 5 5 4 employer provides uniform nurse w ill supplied uniform supplier approved employer value ic without limiting flexibilit style uniform determined employer consultation union 5 5 5 replacement item uniform supplied fair wear tear basis 5 5 6 uniform allowance paid lieu supply uniform outlined clause 5 5 4 allowance paid pay day pro rata basis also payable period absence sick annual paid leave 5 6 accelerated advancement registered nurse 5 6 1 subject clause 5 6 3 registered nurse entitled progress one increment upon first appointment following registration australian health practitioner regulation agency one time registered nurse employment history registered nurse attainment postgraduate qualification least 12 month duration bachelor degree 5 6 2 employee eligible accel erated advancement e increment da te obtain qualification 5 6 3 registered nurse advanced accordance clause 5 6 1 entitled advancement section 18 5 7 allowance 5 7 1 targeted training allowance assistant nursing targeted training allowance fo r assistant nursing paid assistant nursing pay point 6 12 month assistant nursing cer tificate iii qualification receive purpose allowance 26 15 per fortnight provided pay point 6 12 month 5 7 2 laundry allowance employer launder employee uniform allowance 1 85 per week paid 5 7 3 hyperbaric allowance employee working hyperbaric chamber able dive 3 day row short shallow dive must also 18 hour surface interval dive mean one dive permitted per day longer dive 48 hour surface interval required b employee working hyperbaric chamber entitled allowance 19 35 per week 5 7 4 continuing education credential accelerated advancement qualification allowance registered nurse nurse grade 5 7 inclusive dir ectors nursing nurse grade 10 band 1 hold continuing education credential advanced credential accordance clause engaged position duty credential accepted employer directly relevant skill competency used entitled accelerated advancement llowance entitlement accordance clause 5 7 4 purpose clause 5 7 4 continuing education credential qualificati graduate certificate graduate diploma qualification equivalent value recognised employer second degree relevant employee current position b continuing education advanced credential qualification master phd degree relevant employee current position c continuing education credential must univers ity based another credential equivalent value specifically approved employer upon acceptance employer employ ee continuing education credential advanced credential employee entitled accelerated advancement one pay point within employee classification e employee holding continuing education creden tial entitled clause 5 7 4 accelerated advancement top pay point employee classification 12 month service pay point entitled allowance 3 5 rate time time set seventh pay point registered nurse classification f employee holding continuing education advanced credential entitled clause 5 7 4 accelerated advancement top pa point employee classifica tion 12 month service pay point entitled allowance 5 5 rate time time set seventh pay point registered nurse classification g employee would entitle accelerated advancement cl ause 5 7 4 top paypoint relevant classi fication date empl oyer accepts credential employee received accelerated advancement clause 5 7 4 within eligible classification progressed top pay point within classification upon promotion higher classified eligible classification entitled continuing education credential allowance continuing education advanced credential allowance provided clause 5 7 4 e f h subject clause 5 7 4 j l employee receipt continuing education credential allowance continuing education advanced creden tial allowance retain allowance upon appointment promotion position classified clinical nurse clinical nurse consultant nurse unit manager nurse educator nurse manager nurse researcher 19 employee advanced within particular le vel accordance clause 5 7 4 entitled accelerated advancemen within level higher level reason continuing education credential advanced credential except employee entitled respect continuing education credential attains possession continuing education advanced credential also accepted employer clau se 5 7 4 advanced without forfeiting continuing education credential allowance retained le senior position 12 month service top pay point classification within advancement occurs continuing education advanced credential allowance payable j employee entitled hold one time one allowance clause k subject clause 5 7 4 p entitlement clause accrue date holding continuing education credential ad vanced credential accepted employer directly relevant skill competency ing used duty employee position l allowance payable clause 5 7 4 discontinued effect date employer notifies employee entitled allowance th e employer ceased accept holding credential advanced credential directly relevant skill competency used duty employee position clinical nurse clinical nurse consultant nurse unit manager nurse manager nurse educator nurse researcher date commencement operation clause 5 7 4 hold relevant continuing education credential continuing education advanced cr edential accepted employer clause 5 7 4 k deemed receipt either continuing education credential allowance continuing education advan ced credential allowance 1 july 2003 purpose clause 5 7 4 h n allowance payable clause 5 7 4 deemed part employee wage purpose employee aggrieved decision made clause 5 7 4 may raise grievance grievance instituted notice writing employer w ithin 21 day receipt advice decision continuing education credential grievance deemed dispute application award processed grievance procedure eventual course commission determination resolving approval credential purpose clause necessary p subject clause 5 7 4 q registered nurse entitled progress one increment person first appointment following registration australian health practitioner regulation agency one time person employment history registered nurse attainment following bachelor degree nursing ii registration another branch nursing another nursing register maintained australian health practitioner regulation agency empl oyee working particular practice setting requires additional registration iii successful completion post registration course least 12 month duration employee required perform duty position course directly relevant q registered nurse advanced accordance clause 5 7 4 p entitled advancement clause 5 7 5 relieving charge special duty allowance one entire shift clinical nurse nurs e grade 6 normally rostered rostered work unavaila ble registered nurse designated employer act nurse relieve charge nurse place unavailable nurse b relieving charge employee designated employer paid allowance 10 18 shift ordinary hour worked unless relevant relieving employee already paid higher rate pay performance higher special duty allowance paid hourly rate based 7 6 hour day c clinical nurse nurse grade 6 charge one unit area rostered duty allowance paid register ed nurse however appropriate professional standard apply ensure employee could exercise charge responsibility appropriately across clinical unit responsible 20 allowance also included purpose calculating weekend penalty overtime public holiday allowance included fo r shift penalty superannuation leave entitlement 5 7 6 mental health environment allowance employee working high security medium ecure mental health unit paid allowance 19 35 per week 5 8 payment wage 5 8 1 salary prescribed awa rd expressed annual fo rtnightly rate fortnightly rate prescribed rate annual amount shown information purpose 5 8 2 payment wage electronic fund transfer weekly fortnightly basis 5 8 3 payment electronic fund tran sfer discretion employer 5 9 superannuation 5 9 1 employer contribute superan nuation qsuper compliance superannuation guarantee administration act 1992 cth qsuper deed 5 9 2 employer contribution employee superannuation equal least 9 ordinary time earnings defined superannuation law amendment 2004 measure 2 act 2004 5 9 3 employer demonstrate employee th e employer superannuation obligation met 5 10 salary packaging following definition apply purpose clause 5 10 5 10 1 fringe benefit tax fbt mean tax imposed fringe benefit tax act 1986 fbt year refers employer fbt return period 1 april 31 march year 5 10 2 fbt exemption cap fbt exemption cap tax concession fringe benefit tax assessment act 1986 limited category employer fbt exemption cap employee entitlement manner application fb exemption cap determined employer accordance fbt legislation fbt legislation eligible fbt exemption cap time fringe benefit provided duty employment employee must exclusively performed connection public hospital 5 10 3 salary sacrifice salary sacr ifice system whereby portion employee gross salary wage paid benefit tax rather directly salary thereby usually reducing amount tax paid employee income called salary sacrific ing sacrificing salary benefit discretion employee approved range item example employee earns 60 000 gross salary sacrifice 10 000 income tax would payable 50 000 5 10 4 salary sacrificing arrangement made ava ilable eligible employee covered award accordance public sect industrial employee relation psier circular c1 10 relevant psier circular issued time time category employee made available include permanent full time part time employee b temporary full time part time employee c long term casual employee determined act 5 10 5 employee elect sacrifice portion salary agreed benefit employee must submit signed unamended participation agreement employer prior commencing arrangement 5 10 6 employee may elect sacrifice lesser following amount 50 salary payable schedule 2 award 21 b employee eligible fbt exemption cap grossed taxable value benefit ensures fbt exemption threshold amount prescribed legislation exceeded 50 salary whichever lesser 5 10 7 despite clause 5 10 6 employee may sacrifice 100 salary superannuation 5 10 8 employee ineligible fbt exemption cap sacrifice benefit attracting fbt employee liable fbt 5 10 9 fbt legislation fbt exemption cap applies taxable fringe benefit provided employer whether salary acrifice arrangement otherwise employee eligible fbt exemption cap sacrifice benefit attractin g fbt employee liable fbt caused fbt exemption threshold amount exceeded result participation salary sacrifice arrangement remove doubt benefit provi ded employer separate salary sacrifice arrangement take first priority applying fbt exemption cap 5 10 10 federal taxation law passed commonwealth parliament ruling australian taxation office ato relation salary sacr ifice packaging effect benefit sacrifice packaging employee reduced eliminated time term award employee right award respect salary packaging varied accordingly rest award continue force 5 10 11 employer obligation negotiate agree change award trade salary sacrifice packaging benefit th reduced eliminated result new amended federal taxation law ruling australian taxation office employee right sacr ifice part salary expressly made subject federal taxation law ffecting salary sacrifice arra ngements ruling australian taxation office relation salary sacrif ice arrangement may introduced amended time time term award 5 10 12 individual salary packaging arrangement employee remain confidential time proper audit procedure put place may include private au ditor general review authorised union official entitled inspect record employer external salary packaging bureau service ensure compliance salary sacrific ing arrangement subject relevant industrial legislation 5 10 13 employee elected sacrifice portion payable salary schedule 2 award subject ato requirement sacrificed porti reduce salary subject appropriate tax withholding deduction amount sacrifi ced see definition salary sacrifice b allowance penalty rate weekly worker compensation benefit payment employee entitled respective award act statute expressed determined reference employee salary calculated reference gross salary employee would receive taking part salary sacrificing arrangement c salary sacrificing arrangement maintained period leave full pay including maintenance cash non cash benefit employee salary superannuation purpose severance termina tion payment gross salary empl oyee would receive taking part salary sacrificing arrangement 5 10 14 following principle apply employ ee avail salary sacrificing cost incurred employer either directly indirectly part salary package arrangement cost administering package via salary packaging bureau service including applicable fbt met withou delay participating employee b additional increase superannuation cost fbt payment made employer would otherwise payable employee engaged salary sacrificing c employee may cancel salary sacrificing arrangement giving one month notice cancellation employer similarly employer give employee one month notice termination employer strongly recommends employee obtain independent financial advice prior taking salary package 22 e significant additional administrativ e workload ongoing cost employer f additional administrative fbt co sts met employee g increase variation taxation excluding payroll tax result additional cost met employer passed employee part salary package wish maintain salary sacrifice arrangement 5 11 recognition previous nursing experience 5 11 1 purpose determining rate wage payable employee given credit previous nursing experience relevant nursing level higher provided previous nursing experience include time spent obtaining additional nursing certificate qualification general nursing certificate qualification 5 11 2 calculating nursing experience purpose clause 5 11 period employment time spent obtaining additional nursing certificate qua lifications prior absence nursing duty covered relevant nursing award relevant nursing agreement registered industrial tribunal licence practice required recogn ised accordance matrix clause 5 11 9 5 11 3 respect casual part time experience 1200 ordinary hour experience 12 month time ever later casual part time capacity deemed equivalent one full year full time experience purpose clause 5 11 5 11 4 termination employment health facility employee given certificate signed director nursing otherwise authorised person se tting duration employment capacity employed 5 11 5 onus proof rest employee present proof past experience within period 4 week commencement duty case wher e satisfactory proof pr oduced within 4 week payment salary year experience paid date satisfactory proof produced 5 11 6 case documentary evidence unable obtained consideration may given special circumstance production evidence considered satisfactory employer employee may seek cooperation union assist obtaining establishing proof previous experience still outstanding 5 11 7 without limiting previous entitlement nursing experience recognised recognition previous nursing experience accordance th e matrix clause 5 11 9 apply date making award 5 11 8 temporary service employee permanently appointed counted towards employee length service purpose providing service continuous immediately preceded employee appointment 5 11 9 recognition previous nursing experience matrix year absence nursing year nursing experience 5 yr 5 yr 7 yr 7 yr 9 yr 9 yr 11 yr 11 yr 13 yr 13 yr 15 yr 15 yr le 1 yr 1 1 1 1 1 1 1 1 yr 2 yr 2 1 1 1 1 1 1 2 yr 3 yr 3 2 1 1 1 1 1 3 yr 4 yr 4 2 1 1 1 1 1 4 yr 5 yr 5 3 2 1 1 1 1 5 yr 6 yr 6 3 2 1 1 1 1 6 yr 7 yr 7 4 3 2 1 1 1 7 yr 8 yr 7 5 4 3 1 1 1 8 yr 15 yr 7 6 5 4 3 1 1 15 yr 25 yr 7 7 6 5 4 3 2 25 yr 7 7 7 6 5 4 3 matrix applies classification 7 pay point 23 b applying matrix classification fewer 7 pay point recognition previous experience apply consistent matrix maximum pay point applicable classification example trix recognises previous experience purpose clause 6 year applicable classification 4 pay point employee would appointed pay point 4 part 6 hour work break ov ertime shift work weekend work 6 1 hour work 6 1 1 ordinary hour work average 38 hour per week greater 80 one fortnight worked according roster follows 4 week work cycle 19 day shift 8 hour duration worked one day taken ado pay b shift required exceeding 10 hour le 4 hour duration hour worked excess average 38 per week 4 week work cycle credit ed towards ado c arrangement agreed employer union 6 1 2 ado may accumulated take n mutually acceptable time maximum 5 day except exceptional circumstance ximum increase 12 day 6 1 3 ado arranged coincide public holiday another day determined mutual agreement employer employee w ill taken lieu thereof day within 4 weekly work cycle possible 6 1 4 circumstance exist hospital facility ward discrete section hospital facility warrant different method working 38 hour week provided union employer may agree vary method working 38 hour week particular hospital facility ward discrete section hospital facility 6 2 director nursing assist ant director nursing hour 6 2 1 usual hour work director nursing assistant director nu rsing average 38 hour per week 76 hour per fortnight 152 hour 4 week period however perform job effectively employee may required work additional hour appropriate 6 2 2 director nursing assist ant director nursing may work flexibly flexibility includes option available time week exampl e afternoon formal accumulated day arrangement 6 2 3 director nursing nurse grade 10 band 1 rate pay incorporates percentage loading 15 nurse grade 10 band 1 rate pay inclusive separate payment made call shift work weekend public holiday overtime 6 2 4 director nursing nurse grad e 10 band 1 entitled additional one week annual leave per year additional week recognition extended spread hour performed 6 3 length shift subject clause 6 1 ordinary working hour employee worked shift length must agreed management union 6 4 twelve hour shift arrangement 6 4 1 queensland health identifies need extend shift ordinary hour employee support new model care changing health need queensland health consult union employee concerned introduction 12 hour shift implemented agreement union majority employee affected 6 4 2 prior commencement 12 hour shift arrangement party establish method evaluation effectiveness proposed sh ift arrangement evaluation include limited consideration th e following factor 24 patient outcome b health safety c adverse incident staff satisfaction e financial implication f sick leave g childcare implication h effect family social life effect work performance j effect impact upon paediatric intensive care unit k professional development l communication effect management recruitment retention n impact work unit 6 4 3 employee working 12 hour shift arrangement following condition apply participation 12 hour shift arrangement voluntary basis provided employee volunteer redeployed cl assification level reasonably practicable alternative working 12 hour shift available acceptable employee b maximum continuous ordinary hour worked circumstance 12 one day c employee work shift 12 ordinary hour entitled one paid meal break one unpaid meal break 30 minute duration first meal br eak occur fourth sixth hour second meal break occur ninth tenth hour commencement duty employee entitled two 10 minute rest pause first second half ordinary 12 hour shift taken time suit convenience queensland health e employee perform overtime immediately following 12 hour shift ordinary hour f employee allowed either 3 whole con ecutive day week allowed fortnightly period 2 consecutive day one week 4 consecutive day week g employee may work maximum 3 either day night 12 hour shift row h except work performed two 12 hour shift per day period 7 day per week employee engaged work perform duty varying shift allocated rotation officer facility duly authorised regard ever employee engaged shift work completed full year employment allowed ad ditional annual leave rate 38 hour per year respect period sh ifts worked provided maximum entitlement annual leave 6 week per annum employee may work maximum span four 12 ho ur shift shif t combination 2 day 2 night shift one day 3 night shift j employee work combination 8 12 hour shift maximum 5 shift row may worked include minimum two 8 hour shift k employee allowed break 10 hour termination 12 hour shift commencement another shift 25 l part time employee may rostered 12 ordinary hour one day 6 5 roster 6 5 1 employee rostered perform ordinary duty 10 consecutive day shift unless mutually agreed otherwise 6 5 2 employee allowed 2 wh ole consecutive rostered day week purpose clause 6 5 rostered day mean day work cycle em ployee rostered ordinary working hour excludes accrued day 6 5 3 lieu 2 whole consecutive rostered day week employee may allowed fortnightly period either one day one week 3 consecutive day week 4 consecutive day 6 5 4 two consecutive day one end one week one beginning following week may counted meeting requirement clause 6 5 6 5 5 roster setting employee day duty starting finishing time day must displayed place conveniently accessi ble employee least 7 day befo commencement 4 weekly work cycle 6 5 6 roster accrued day must posted least 4 week comme ncement 4 weekly work cycle despite provision clause 6 5 accrued da y may cleared mutually agreed employer employee 6 6 overtime director nursing assistant direct or nursing midwife participa ting caseload model receiving annualised salary exempt following overtime provision 6 6 1 assistant nursing authorised overtime worked excess rostered ordinary hour monday saturday inclusive assistant nursing rostered work shift work payment must paid rate time half first 3 hour double time thereafter b authorised overtime worked excess rostered dinary hour assistan nursing rostered work shift work paid rate double time c minimum payment 2 hour applies work saturday sunday minimum payment pres cribed clause 6 6 1 c pply assistan nursing work overtime conjunction extension normal ordinary rostered shift e assistant nursing recalled perform duty completing ordinary shift day must paid overtime rate duty minimum payment 2 hour overtime rate f assistant nursing shift worker required work first rostered day paid one half time ordinary rate first 3 hour double time thereafter minimum 3 hour g assistant nursing required work sec ond rostered day paid rate double time minimum payment 3 hour overtime worked day h authorised overtime worked public holiday payment must made rate double time half 6 6 2 nurse nurse grade 2 nurse grade 8 inclusive authorised overtime worked excess rostered ordinary hour work monday saturday inclusive payment must paid rate time half first 3 hour double time thereafter b authorised overtime worked sunday payment must made rate double time 26 c authorised overtime worked public holiday payment must made rate double time half 6 6 3 time lieu employee performs overtime work subject th e employer employee agreeing granted time mutually convenient time equivalent number hour worked lieu monetary compensation overtime accrual time maximum 24 hour time excess 24 hour must paid overtime rate 6 6 4 meal allowance employee employee life called upon work overtime one hour rostered ceasing time usual meal time occurs period overtime must paid allowance 12 10 allowance paid wh ere meal provided employer free charge 6 7 rest break shift 6 7 1 purpose clause 6 7 double rate mean single time extra ordinary rate pay set day upon employee rostered duty 6 7 2 employee allowed rest break le 10 hour termination one shift commencement anothe r provided upon agreement writing employee employer break may reduced 8 hour required break 10 hour 8 hour agreement writing occurred employee paid double rate released duty duration 6 7 3 furthermore employee work much overtime termination ordinary work one day commencement ordinary work next day least 10 consecutive hour duty elapsed time released comp letion overtime absence 6 7 4 instruction employer employee referred clause 6 7 3 resume continues work without 10 consecutive hour duty em ployee paid double rate released duty duration employee entitled absent 10 consecutive hour duty elapsed without loss pay ordinary working time occurring absence 6 7 5 case agreement employer uni period 10 consecutive hour duty referred clause 6 7 2 may reduced 8 hour 6 7 6 provision clause 6 7 apply case shift worker 8 hour substituted 10 hour overtime worked purpose changing shift roster b shift worker report duty day worker shift worker required replace shift worker c shift worked arrange ment employee 6 7 7 employee nursin g classification entitled call reca allowance award entitled additional loading clause 6 7 4 relation rest break 10 hour work excess 2 hour one call out required work minimum period call out entitled rest break provided clause 6 7 3 6 8 rest pause 6 8 1 every employee covered award entitled rest pause 10 minute duration employer time first second half working day rest pause taken time suit convenience employer interfere continuity work continuity opinion employer necessary 6 8 2 employer may determine rest pause may combined one 20 minute rest pause taken first part ordinary working day 20 minute rest pause meal break arranged way ordinary working day broken 3 approximately equal working period 27 6 9 shift work weekend work 6 9 1 afternoon purpose clause 6 9 1 afternoon shift shift night shift defined commencing 12 00 midday b employee excluding assistant nursing referred clause 6 9 1 c midwife participating caseload model care director nursing recei pt inclusive sa lary working afternoon shift receive allowance 12 5 shift ordinary hour except work performed saturday sunday public holiday c assistant nursing working afternoon shift receive allowance 15 ea ch shift ordinary hour except work performed saturday sunday public holiday 6 9 2 night purpose clause 6 9 2 night shift shift commencing 6 00 p 7 30 following day major portion worked 6 00 p 7 30 b employee excluding assistant nursing referred clause 6 9 2 c midwife participating caseload model care director nursing rece iving inclusive salary must paid allowance 20 shift ordinary hour c assistant nursing work ni ght shift must paid allowanc e 17 5 shift ordinary hour except work performed saturday sunday public holiday 6 9 3 limitation night duty night duty must limited period exceeding 3 month one time employee performed night duty continuously period 3 month must employed night duty 6 month following period b employee may written agreement employer employed permanently night duty relevant union must given notice agreement c clause 6 9 3 apply employee receipt rate pa excess registered nurse student nursing midwifery sitting either ho spital examination australian health practitioner regulation agency examination required perform night duty night examination day 6 9 4 extra payment weekend work afternoon night shift allowance apply shift work performed saturday sunday extra payment prescribed apply b time worked including 10 hour rostered shift ordinary hour midnight friday midnight saturday must paid rate time half c time worked midnight saturday midnight sunday must paid rate time three quarter except ssistants nursing speci fied clau se 6 9 4 time worked assistant nursing midnight saturday midnight sunday must paid rate double time e 10 ordinary hour worked one shift ordinary hour period double ordinary rate must paid time excess 10 hour 6 9 5 casual loading casual loading payable work performed monday saturday inclusive b casual loading payable sunday 28 6 9 6 public holiday afternoon night shift allowance apply shift work performed public holiday extra payment prescribed clause 12 7 12 8 12 9 13 14 15 9 16 7 apply 6 9 7 calculation shift payment respect ordinary hour worked starting finishing time occur different day period monday sunday penalty rate paid follows shift allowance friday night shift midnight night shift allowance friday night shift midnight saturday penalty rate saturday night shift midnight saturday penalty rate saturday night shift midnight sunday penalty rate sunday night shift midnight sunday penalty rate sunday night shift midnight night shift allowance casual employee shift allowance must calculated th e relevant wage rate exclusive casual loading however sunday penalty payment include casual loading 6 10 call recall enrolled nurse registered nurse 6 10 1 clause 6 10 apply director nursing nurse grade 10 band 1 midwife participating caseload model receiving annualised salary 6 10 2 employee rostered call private residence mutually agreed place rostered shift ordinary hour monday fr iday day inclusive receive additional amount 19 10 period part thereof 6 10 3 employee rostered call private resi dence mutually agreed place saturday sunday public holiday rostered day receive additional amount 34 95 period part thereof 6 10 4 subject clause 6 10 5 employee rostered call recalled duty employee addition rate prescribed clause 6 10 2 6 10 3 entitled receive normal overtime provision 6 10 5 subject clause 6 10 5 f employee rostered call recalled work purpose paid minimum 3 hour appropriate overtime rate however employee required work 3 hour work employee reca lled perform completed le time b case employee rostered call recalled work payment made time employee start work c employee rostered call recalled work paid minimum 3 hour time spent travelling place duty deemed time worked employee recalled within 3 hour commencing normal duty employee remains work time spent travelling work included actual duty purpose overtime payment e employee recalled work obliged work 3 hour work employee recalled work th e employee otherwise would recalled completed le 3 hour f employee recalled work employee provided transport home refunded cost transport g employee recalled work within 3 hour commen cing normal duty employee remains work employee provided transport home hospital facility refunded cost transport h employee placed call required remain private residence mutually agreed place enable employer readily contact duri ng hour placed 29 call clause 6 10 5 h prevent provision employer electronic device employee could contacted alte rnative stationed agreed place employee call usually life required remain close call within hospital precinct provided free charge board lodging j employee rostered call part thereof spanning 2 day 2 different call allowance apply receive payment equa l allowance payable day attracting higher allowance 6 11 call recall assistant nursing 6 11 1 employee structed available remote call call duty allowed leave hospital precinct subject bein g immediately available recall duty outside employee ordinary rostered working hour employee must paid addition employee ordinary rate pay allowance accordance following scale employee call thr oughout whole rostered day duty saturday sunday public holiday 34 95 resp ect instance b employee call duri ng night rostered day duty saturday sunday public holiday 21 94 per night c employee call night 19 10 per night 6 11 2 night clause 6 11 mean hour falling 5 00 p 8 00 mainly hour 6 11 3 employee placed close call call duty allowed leave hospital precinct amount 2 30 must paid additio n appropriate allowa nce prescribed clause 6 11 1 6 11 4 board lodging must provided free charge employee usually live required remain close call within hospital precinct 6 11 5 event employee call recalled perform work employee duty period employee must paid time worked pres cribed overtime rate minimum payment 2 hour work time calculated case employee remote call home back home 6 11 6 employee remote call recalled perform work employee duty period must provided transport employee home refunded co st transport 6 12 call home visiting telephone counselling outreach service arrangement 6 12 1 subject clause 6 12 4 award arrangement relates regist ered nurse nurse grade 5 working specific area pa ediatric oncology palliative care ou treach service service royal child health service dist rict service includes call home visiting purpose coordinating providing direct nursing care b health professional involved shared palliative care client 6 12 2 registered nurse nurse grade 5 participating service may authorised provide telephone advice counselling outside ordinary working hour without need visit patient return facility registered nurse nurse gr ade 5 paid actual time spent providing telephone advice maximum 2 hour one day prescribed overtime rate provided employee responsible recording request advice require subsequent verification queensland health 6 12 3 specific authorisation nd clinical intervention eemed necessary employee may authorised provision hour home vi sit authorised employee paid prescribed overtime rate actual hour worked 6 12 4 arrangement may extended serv ice agreement queensland health union 30 part 7 leave absence public holiday 7 1 annual leave 7 1 1 annual leave entitlement vary acco rding place work entitleme nt prescribed following section section b public hospital clause 12 6 b section c psychiatric hospital eventide home clause 13 13 c section public service clause 14 9 section e senior nursing staff psy chiatric hospital clause 15 8 e section f alcohol drug dependence service clause 16 6 7 1 2 calculation annual leave pay subject provision clause 7 1 2 b payment must le sum following amount employee ordinary wage rate prescribed award peri od annual leave excluding shift premium weekend penalty rate ii leading hand allowance amount like nature iii amount calculated rate 17 5 amount referred clause 7 1 2 7 1 2 ii b provision clause 7 1 2 apply following period period annual leave exceeding 190 hour case employee whose work performed 3 shift per day period 7 day per week accordance clau se 152 hour case employee employed calling 3 shift per day worked period 7 day per week accordance clause 13 13 2 15 8 2 award employer employee already payi ng receiving annual leave bonus loading annual leave payment le favourable employee c employee eligible leave absence full year ha elapsed since date employee last annual leave became due em ployee previously annual leave since employee commenced employment leave debit equivalent ordinary hour employee would worked paid leave leave therefore paid debited basis hour actually taken 7 1 3 calculation annual leave pay shift worker subject clause 7 1 2 rate wage paid shift worker rate payable work ordinary time according employee roster includ ing saturday sunday holiday shift 7 1 4 calculation annual leave pay continuous shift worker subject clause 7 1 2 rate wage paid continuous shift worker must ordinary wage plus 27 5 annual leave loading rate payable 7 1 5 calculation annual leave pay non continuous shift worker employed section c e f rate wage paid shift worker rate payable work ordinary time according employee roster including saturday sunday holiday shift amount prescribed clause 7 1 2 b whichever greater 7 2 sick leave 31 7 2 1 employee except casual employee entitled 10 day sick leave full pay completed year service 7 2 2 furthermore period employment le one year employee entitled take 7 6 hour sick leave one month 6 day employee entitled take sick leave becomes accrued 7 2 3 part time employee accrue sick leave proportional basis 7 2 4 entitlement conditional upon prompt notification illness employer b employee absent 3 day employee providing employer cer tificate medical practitioner specifying nature illness approximate period employee unable work ii employee providing employer ev idence illness employer satisfaction 7 2 5 application sick leave 3 day supported medical certificate evidence illness accep table chief executive 7 2 6 leave debited amount time employee rostered work 7 3 worker compensation employee receipt wo rkers compensation employee entitled payment sick leave 7 4 bereavement leave 7 4 1 full time part time employee full time part time employee death member immediate family household australia entitled paid bereavement leave including day funeral person leave without deduction pay period exceeding number hour worked empl oyee 2 ordinary day work proof death furnished employee satisfaction employer 7 4 2 long term casual employee long term casual employee entitled l east 2 day unpaid bereavement leave death member person immediate family household australia b long term casual employee casual employee engaged particular employer regular systematic basis several period employment period least one year immediately employee seek access en titlement clause 7 4 1 7 4 3 immediate family includes employee spouse b child ex nuptial child step child adopted child ex foster child employee c parent grandparent grandchild sister brother employee employee spouse step father step mother half brother half si ter step brother step sister employee 7 4 4 spouse employee includes former spouse b defacto spouse including spouse sex employee 7 4 5 employee consent employer may apply unpaid leave member employee immediate family household australia dy period bereavement leave entitlement provided insufficient 32 7 4 6 entitlement bereavement leave prescribed human resource policy c11 bereavement leave 7 5 long service leave 7 5 1 employee complete 10 year continuous service ar e entitled long service leave rate 1 3 week full pay year continuous service proportionate amount fo r incomplete year service 7 5 2 7 year continuous service employee entitled proportionate payment calculated pro rata basis 7 year continuous service specified circumstance relating termination employment parental leave 7 5 3 entitlement long service leave prescribed hr policy c38 long service leave 7 6 family leave 7 6 1 provision family leave queensland public sector award state 2004 apply deemed form part award entitlement include maternity leave b spousal leave c pre natal leave pre adoption leave e adoption leave f special doption leave 7 6 2 entitlement family leave prescribed und er queensland health human resource policy c26 parental leave 7 7 special leave entitlement special leave prescribed queensland health human resource policy c7 special leave 7 8 public holiday 7 8 1 public holiday entitlement vary acco rding place work entitleme nt prescribed following section section b public hospital clause 12 7 12 8 12 9 b section c psychiatric hospital eventide home clause 13 14 c section public service clause 14 10 section e senior nursing staff psy chiatric hospital clause 15 9 e section f alcohol drug dependence service clause 16 7 part 8 transfer travelling work ing away usua l place work 8 1 travelling relieving expense 8 1 1 employee required travel official duty b take duty away employee usual place work relieve another employee perform special duty allowed actual reasonable expense allowance accommodation meal incidental expense necessarily incurred employee prescribed human resource policy d3 domestic travelling relieving expense 33 8 2 motor vehicle allowance 8 2 1 employee required use private motor vehicle official purpose entitled claim allowance 8 2 2 entitlement motor vehicle allowance prescribed human resource policy c15 allowance 8 3 appointment transfer expense 8 3 1 entitlement appointment transfer expense contained human reso urces policy d4 transfer appointment expense 8 4 fly fly arrangement 8 4 1 fly fly fifo arrangement may apply workplace covered award employee forced become fifo employee 8 4 2 fifo employee paid accordance pay rate award receive benefit condition contained award except specific fifo employee engaged fifo arrangement fifo employee required work ordina ry hour 12 hour one day 8 4 3 fifo employee work 4 week cycle follows fifo employee required work total 152 ordinary hour first 14 consecutive day including travel time workplace b fifo employee entitled second 14 con ecutive day free duty transported home period 8 4 4 4 week fifo cycle employee paid fo r ordinary hour fortnightly basis rate 76 hour per fortnight 8 4 5 time worked excess ordinary rostered hour paid appropriate overtime rate 8 4 6 fifo employee entitled remote area nursing incentive package 8 4 7 fifo employee work shift 12 ordinary hour entitled one paid meal break one unpaid meal break 30 minute duration first meal break occur fourth sixth hour second meal break occur ninth tenth hour commencement duty 8 4 8 fifo employee entitled two 10 minute rest pa us first second half ordinary 12 hour shift taken time suit convenience queensland health 8 4 9 except work performed two 12 hour shift per day period 7 day per week employee engaged work perform duty varying shift allocated rotation officer facility duly authorised regard every employee engaged shift work completed full year employment allowed additional annual leave rate 38 hour per year respect period shift worked provided maximum entitlement annual leave 228 hour per annum 8 4 10 reasonable travel expense related fifo arrangement including travel time employee home travel time workplace accommodation eals travelling met queensland health 8 4 11 queensland health provide free board lodgin g discretion pay reasonable expense accommodation meal fifo em ployees workplace 8 5 integration mental health service 8 5 1 employee working queensland health integrated mental health service following additional arrangement apply 34 participation employee integrated setting mandatory condition employment b facilitate integration provide opportunity training development registered nurse may provide service non inpatient community setting provision way affect number existing clinical nurse employee providing service community c paid meal break provided extended hour shift including afternoon shift work weekend public holiday extended hour mental health service mutual agreement employee working extended hour including allie health staff queensland health paid meal break taken day shif extended hour shift employee engaged 1 july 1996 paid accordance wi th setting work 50 time period ti spent setting fall 50 condition employment maintained period 3 month time employed accordance condition employment work setting clinical nurse consultant nurse unit manager nurse educator nurs e researcher nurse manager team leader determine percentage time employee spends setting e employee transferre consultation take place regard ing change condition employment transfer effected reque st employee work accordance award section applicable setting work 50 time date transfer effected f employee transferred reason othe r request employee must consulted regarding appropriate award section coverage consultation take consideration need new position workpl ace loss additional entitlement benefit employee transferred quee nsland health amend employee contract employment accordingly 8 6 patient escort 8 6 1 employee required travel escort patient employee required stay away home overnight employee paid ordinary time ordinary rostered hour b appropriate overtime rate outside ordinary rostered hour 8 6 2 employee required escort patient employee required stay overnight employee paid ordinary time rostered ordinary hour b appropriate overtime rate outside ordinary rostered hour time patient employee care 8 6 3 returning escort without patient required overnight stay employee paid maximum 12 hour every 24 ordinary rate b returning rostered day employee granted additional day lieu additional day added employee annual leave balance part 9 training related matter 9 1 commitment training 9 1 1 party award recognise incr ease efficiency productivity greater commitment training development required 9 1 2 party commit developing highly skilled flexible workforce providing employee career opportunity appropriate training acquire additional skill performance duty 9 1 3 possible training development provided assist employee obtaining knowledge skill accredited industry training council similar body 35 9 1 4 training developmen directed enabling empl oyees enhance skill relevant duty performed employee expected attend scheduled training development activity part 10 occupational health sa fety matter equipment tool amenity 10 1 queensland health workplace health safety advisory committee 10 1 1 queensland health workplace health safety advisory committee established jointly queensland health public health sector union continue oversee progress workplace health safety issue 10 1 2 without limiting issue may included party agree address following issue guideline security health care establishment b aggressive behaviour management c workplace stress workplace bullying e working site f workplace rehabilitation g worker compensation h management ill injured employee guideline work arrangement including hour work part 11 award compliance union related matter preamble clause 11 1 11 5 inclusive replicate legislative provision contained within act order ensure currency existing legal requirement party advised refer section 366 372 373 act amended time time 11 1 right entry 11 1 1 authorised industrial officer authorised industrial officer union official holding current authority issued industrial registrar b right entry limite workplace work performed fall within registered coverage union 11 1 2 entry procedure authorised industrial officer entitled enter workplace duri ng normal business hour long authorised industrial officer alert employer person charge workplace presence ii show authorisation upon request b clause 11 1 2 apply authorised industrial officer establishes employer person charge absent c person must obstruct hinder authoris ed industrial officer exerci sing right entry authorised industrial officer intentionally disregard condition clause 11 1 2 authorised industrial officer may treated trespasser 36 11 1 3 inspection record authorised industrial officer entitled inspect time wage record required kept section 366 act b authorised industrial officer entitled inspect time wage record former current employee except employee ineligible become member union ii party qwa ancillary document unless employee given written consent record inspected iii made written request employer want record inspected c authorised industrial officer may make copy record cannot require help employer person must coerce employ ee prospective employee consen ting refusing consent inspection record authorised industrial officer 11 1 4 discussion employee authorised industrial officer entitled discus employer member employee eligible become member union matter act working non working time b matter member employee elig ible become member union non working time 11 1 5 conduct authorised industrial officer must unreasonably inte rfere performance work exercising right entry 11 2 time wage record 11 2 1 employer must keep th e place work queensland time wage record contains following particular pay period employee including pprentices trainee employee award classification b employer full name c name award employee working number hour worked employee day week time employee started stopped work detail work break including meal break e weekly daily hourly wage rate detail th e wage rate week day hour employee paid f gross net wage paid employee g detail deduction made wage h contribution made employer superannuation fund 11 2 2 time wage record must also contain employee full name address b employee date birth c detail sick leave credited approved sick leave payment employee 37 date employee beca employee employer e appropriate date employ ee ceased employment employer f casual employee entitlement long service leave worked section 47 act total hour overtime worked employee si nce start period entitlement relates worked including 30 june year 11 2 3 employer must k eep record 6 year 11 2 4 record open inspection duri ng employer business hour inspector department justice attorney general accord ance section 371 th e act authorised industrial officer accordance section 372 373 act 11 3 posting award true copy award must exhibited conspicu ous convenient place premise employer easily read employee 11 4 union encouragement 11 4 1 employer recognises right individual join union encourage membership however also recognised union membership remains discretion individual 11 4 2 requested union payroll deduction facility union subscription available 11 4 3 information relevant union supplied union made available relevant employee point engagement 11 4 4 union official authorised representative given opportunity discus union membership new employee provide employee relevant union material including membership form 11 4 5 leave undertake work union discretion employer employee may granted special leave without salary undertake period work union 11 4 6 union delegate assistance employer acknowledges co nstructive role democratically el ected union workplace representative undertake workplace relation union activity support ssist member role formally recognised accepted supported provided union w ill notify employer workplace representative employer support accepted industrial pr inciple workplace representative perform role without fear victimisation b employee given full access union official workplace representative working hour discus employment matter seek union advice provided service delivery disrupted work requirement unduly affected c provided service delivery work requireme nt unduly affected workplace representative provided convenient access reasonable existing faciliti e purpose undertaking union activity local arrangement may entered union district consultative forum equivalent level relation access specific facility arrangement may include must limited access telephone computer e mail photocopier facs imile machine storage facility meeting room notice board provided arrangement consistent employer policy procedure personal pr ivacy information security maintained subject relevant employee written approval confidentiality provision workplace representative may request acce s document policy related member employment 11 5 industrial relation education leave 11 5 1 industrial relation education leave paid time acquire k nowledge competency industrial relation knowledge competency allow employee effectively participate consultative structure perform representative role th e effective operation grievance dispute settlement procedure 38 11 5 2 employee may granted 5 working day equivalent hour paid time non cumulative per calendar year attend industrial relation education session 11 5 3 additional leave 5 working day non cumulative equivalent hour one calendar year may granted approved structured employee training course involve 5 working day equivalent hour leave subject consultation employer delegated authority relevant union employee 11 5 4 upon request subject approval employer delegated authority evidence appropriate union authorisation employee may granted 3 day paid leave attend union annual conference upon request subject approval employer delegated authority employee may granted additional paid time special circumstance attend management committee meeting union conference australian council trade union congress 11 5 5 granting industrial relation education leave additional leave subject approval employer delegated authority impact adversely service delivery work requirement effectiveness efficiency relevant work unit time leave must unreasonably refused section b public hospital 12 1 application section b 12 1 1 section applies term provided clause 1 5 2 12 1 2 section apply employment person section c e f award applies 12 2 classification employed section b 12 2 1 section applies nurse midwife cl assification level term provided clause 1 5 2 12 3 meal break 12 3 1 meal break minimum 30 minute duration taken fourth sixth hour commencement duty agreement employer employee meal break taken employee rostered work 6 hour le 12 4 allowance 12 4 1 pharmacy registered nurse nurse grade 5 required perform dispensing work hospital dispenser employed must paid additional 1 727 per hour time actually engaged dispensing work 12 4 2 higher special duty employee student nursing midwifery required perform special duty relieve another employee classifi cation higher rate pa employee receiving fixed award provided period performing special duty relieving work one week employee must paid higher rate whole period b registered nurse nurse grade 5 permanently staff hospital employed relieve director nursing must paid le rate prescribed award director nursing registered nurse relieving 12 4 3 night supervisor allowance registered nurse nurse grade 5 7 inclusive requi red undertake duty night supervisor e g hour nurse manager must paid following additional amount per night engaged hospital section thereof daily average occupied bed 100 bed 5 21 per night 39 b 100 bed 10 33 per night 12 4 4 operating theatre allowance registered nurse nurse grade 5 abov e appointed charge theatre must paid allowance 2 36 per day addition rate prescribed 12 4 5 x ray radium director nursing nurse grade 10 registered nurse nurse grade 5 whose duty requires use assist using x ray apparatus radium entitled allowance 8 65 per week addition rate prescribed 12 4 6 broken shift allowance employee engaged shift ordinary hour duty subject break continuity purpose meal break rest pause must paid addition ordinary rate pay prescribed allowance rate 2 61 per sh ift shift worked 12 4 7 divisional district parity employee employed outside easter n district southern division pa id following amount addition rate salary wage prescribed sche dule 2 award employee employed within district district per week northern division eastern district 1 05 northern division western district 2 20 mackay division 0 90 southern division western district 1 05 12 5 board lodging 12 5 1 board lodging supp lied employee residing within em ployer accommodation employer entitled deduct 51 70 per week employee weekly rate pay prescribed employee 12 5 2 employee provided accommodation employer employer entitled deduct 19 00 per week employee weekly rate pay prescribed employee 12 6 annual leave 12 6 1 employee casual employee pub lic hospital entitled 190 hour leave full pay year 38 hour lieu extra payment work done public holiday clause 12 7 1 12 6 2 employee dental hospital dental clin ic entitled 152 hour leave full pay year 12 6 3 work performed 3 shift per day period 7 day per week employee engaged work perform duty varying shift allocated rotation officer facility duly authorised regard every employee engage shift work completed full year employment allowed additional annual leave rate 38 hour per year respect period shift worked empl oyee employee work ed least 20 rostered shift night duty year employment 12 6 4 annual leave entitlement taken fall due time time annual leave mutual agreement may accumulate period exceeding 2 year 12 6 5 annual leave mutual agreement employer employee may taken one part thirty eight hour entitlement available single day period remaining entitlement available period le 38 hour 12 6 6 annual leave paid advance taken suit administration exercising discretion administration give reasonable con ideration preference employee public hospital dental hospital dental clinic 40 12 6 7 employee leav e service public hospital dental hospital dental clinic employee annual leave become due employee receive pro rata amount annual leave full pay 12 6 8 employee annual leave entitle ment debited number working day christmas new year day inclusive compulsory closure government establishment christmas new year period 12 6 9 employee annual leave account debited due compulsory closure christmas new year period debit must made employee single day annual leave account 12 6 10 employee engaged service requi continuous operation receive additional annual leave continuous shift work required participate compul sory closure arrangement christmas new year period 12 7 public holiday 12 7 1 work done employee du ring ordinary shift good friday 25 april anzac day christmas day new year day 26 january easter monday birthday sovereign boxing day day appointed holiday act 1983 kept place ho liday must paid one half time ordinary rate 12 7 2 employee entitled paid full day wage labour day first monday may day appointed holiday act 1983 kept place holiday irrespective f act work may performed day employee concerned actually work labour day employee must paid full day wage day addition payment time actually worked employee one half time ordinary rate prescribed work minimum 4 hour 12 7 3 work done employee district specifi ed time time minister responsible holiday act 1983 notification published queensland government gazette day appointed holiday act 1983 kept holiday relation annual agricultural horticultural industrial show held principal city town specified notification district must paid rate double time half 12 7 4 work done employee easter saturday day good friday must paid rate double time half 12 7 5 purpose clause 12 7 rate wage weekly ra te double time half mean one half day wage addition prescribed weekly rate pro rata le day 12 7 6 labour day show day easter saturday oc cur period employee annual leave extra day day occurring must added employee annual leave 12 7 7 respect easter saturday additional day must added employee annual leave employee part employee ordinary working arrangement required work saturday 12 7 8 employee rostered labour day show day easter saturday employee must paid additional day wage must granted day holiday lieu time mutually arranged employer employee concerned extra day mu st added employee annual leave day employee rostered 12 7 9 respect easter saturday clause 12 7 8 apply employee ordinarily required work weekend 12 7 10 casual employee required work public holiday mu st paid rate double time half time worked 12 7 11 public holiday prescribed clause 12 7 fall upon saturday sunday employee part employee ordinary rostered hour required work upon day calculation payment must made upon majority shift basis starting finishing time ordinary hour occur different day 12 7 12 ado must coincide public holiday another day determined mutual agreement employer employee taken lieu day within 4 weekly work cycle possible 41 12 7 13 employee required work specific public holiday regarded day worked accrual purpose ado 12 8 public holiday director nursing 12 8 1 salary director nu rsing inclusive however employee required work public holiday emergency ituations mutual agreement 12 8 2 director nursing may authorised employer perform essential clinical work public holiday entitled payment accord ing provision clause 12 9 public holiday dental hospital dental clinic 12 9 1 work done employee good friday christmas day 25 april anzac day 1 january 26 january easter saturday day good friday easter monday birthday sovereign boxing day day appointed holiday act 1983 kept place holiday must paid rate double time half minimum 4 hour 12 9 2 employee covered award entitled paid full day wage labour day first monday may day appointed holiday act 1983 kept place holiday irrespective fact work may performed day employee concerned actually work labour day employee must paid full day wage day addition payment time actually worked employee one half time ordinary rate prescribed work minimum 4 hour 12 9 3 work done employee district specifi ed time time minister responsible holiday act 1983 notification published queensland government gazette day appointed holiday act 1983 kept holiday relation annual agricultural horticultural industrial show held principal city town speci fied notification district must paid rate double time half minimum 4 hour 12 9 4 purpose cl ause 12 9 rate wage ekly one double time half mean one half day wage addition prescribed weekly rate pro rata le day 12 9 5 ado must coincide public holiday another day determined employer taken lieu day taken within 4 weekly work cycle possible 12 9 6 employee required work specific public holiday regarded day worked accrual purpose ado section c psychiatric hospital eventide home 13 1 application section c 13 1 1 section applies term provided clause 1 5 3 13 1 2 section apply employment person section b e f award applies 13 2 classification employed section c 13 2 1 following classification employed section within psychiatric hospital assistant nursing nurse grade 1 nurse practitioner nurse grade 8 including following assistant nursing ii student nursing midwifery iii enrolled nurse iv enrolled nurse advanced practice v registered nurse vi clinical nurse vii clinical nurse consultant nurse unit manager nurse educator nurse researcher nurse manager viii nurse practitioner 42 b within eventide home assistant nursing nurs e grade 1 enrolled nurse advanced practice nurse grade 4 including following assistant nursing ii student nursing midwifery iii enrolled nurse iv enrolled nurse advanced practice 13 3 artisan work every employee date award carried duty well duty nurse purpose award deemed nurse ha privilege nursing staff carry artisan work work award made distinct nurse work unless paid award rate engaged upon work award rate higher nurse rate 13 4 meal break 13 4 1 ordinary hour work section inclusive meal time 13 4 2 meal break minimum 30 minute duration taken fourth sixth hour commencement duty 13 4 3 meal break taken employee rostered work 6 hour le 13 5 allowance 13 5 1 meal allowance called upon work overtime fo r 2 hour without receiving notice overtime previous day employee paid allowance 12 10 eac h meal supplied employer reasonable meal lieu payment b employee made provision customary meal receipt notice intention work overtime employee entitled allowance 12 10 meal provided event work performed ceasing respective meal time 13 5 2 special payment special payment 16 60 per fortnight paid nursing staff special payment operate purpose award 13 5 3 locality allowance condition prescribed human resource policy c15 allowance 13 5 4 performance higher duty one shift spect vacant position position th e occupant leave registered nurse relief position clinical nurse ii clinical nurse relief position clinical nurse consultant nurse unit manager nurse manager nurse educator nurse researcher employee paid allowa nce accordance clause 5 7 5 b allowance included purpose calculating weekend penalty rate overtime payment public holiday 13 6 protective appliance employee required attend post mortem examination infectious case pr ovided necessary protective appliance employee supplied ap propriate material required maintain relevant appropriate infection control procedure 13 7 board lodging 43 13 7 1 board lodging supplied employee residing within employer accommodation employer entitled deduct sum 16 50 per week weekly rate pay prescribed employee 13 7 2 employee living provided meal employer deduction made wage rate 60 cent breakfast 75 cent lunch 75 cent dinner 13 7 3 lodging supplied employee employer entitled deduct sum 6 00 per week weekly rate pa prescribed employee 13 8 uniform 13 8 1 cost suitable uniform overcoat f proper fit good quality must reimbursed employee reimbursement paid suitable uniform overcoat proper fit good quality determined employer provided free cost employee 13 8 2 employee supplied uniform employee required wear private clothing duty private clothing dama ged destroyed discharge duty must replaced reimbursed employer 13 8 3 uniform dama ged destroyed discharge duty employer must repair replace item 13 8 4 replacement uniform basis fair wear tear 13 9 change shift employee must work time beyond th e rostered shift necessary changi ng shift receive extra payment time 13 10 mutual change leave day working shift 13 10 1 mutual change leave day working shift employee referenced clause 13 10 2 13 10 3 psychiatric hospital employee referenced clause 13 10 3 eventide home permitted opinion director nursing change detrimental effective carrying work hospital institution 13 10 2 change leave day working shift allowed one level removed purpose clause level rank psychiatric hospital follows clinical nurse consultant nurse unit manager nurse researcher nurse manager nurse educator b clinical nurse c registered nurse paypoint 7 clinical nurse registered nurse yet reached gistered nurse paypoint 7 classification e nurse practitioner 13 10 3 case student nursing midwifery enrolled nurse enrolled nurse advanced practice assistant nursing change leave day working shif t allowed employee similar designation 13 10 4 director nursing psychiatric hospital eventide home may upon application employee approve change shift duty employee 13 10 5 mutual change leave day working sh ifts allowed extend beyond 3 week 13 11 roster change employee shift altered emergency circum stance employee must notified promptly possible 13 12 overtime cancelled shift 44 employee rostered shift cancelled empl oyer employee unless le 24 hour notice cancellation provided paid 4 hour ordinary rate 13 13 annual leave 13 13 1 employee ca sual employee covered section end year employment entitled annual leave full pay 152 hour 13 13 2 employee casual employee granted add itional 38 hour leav e full pay completed year employment additional week recognition continuous operation psychiatric hospital eventide home 3 shift per day generally worked period 7 day per week 13 13 3 employee annual leave entitlement debited number working day christmas day new year day inclusive compulsory closure government establishment ch ristmas new year period 13 13 4 employee engaged service require continuous operation receive additional annual leave continuous shift work required participate compulsory closure arrangement christmas new year period 13 13 5 annual leave exclusive public holiday may occur period annual leave subject clause 7 1 2 paid employer advance 13 13 6 employee receipt rate pay excess ordinary rate pay award immediately prior annual leave must paid excess rate 13 13 7 every case payment must made ordinary rate payable employee award 13 13 8 case employee othe r receive extra paymen public holiday whether work done public holiday occurring period annual holiday counted portion annual leave 13 13 9 employment employee terminated expiration full year employment employee paid addition amount due pro rata amount annual leave full pay calculated accorda nce clause 7 1 2 13 13 10 leave clause 13 13 notwithstanding ot leave may section excepting annual leave allowed sick leave clause 7 2 13 13 11 date commencement nnual leave notified empl oyee 2 month day posting leave list notice board place wo rk similar place employee may approval direct nursing exchange leave time exchange recorded 13 14 public holiday 13 14 1 public holiday whether work done upon full pay basis extra allowance equivalent rostered ordinary hour maximum 7 6 h per day holiday employee work ordinary number weekly hour notwithstanding holiday 13 14 2 employee actually perform work public holiday addition paid half ordinary rate time worked 13 14 3 purpose clause 13 14 holiday observed provision holiday act 1983 district institution situated deemed holiday section public service 14 1 application section 14 1 1 section applies term provided clause 1 5 4 14 1 2 section apply employment person section b c e f award applies 45 14 2 classification employed section 14 2 1 following classification employed section nurse midwife cla ssification level including community health service whose employment otherwise covered section b c e f b registered nurse nurse grade 5 connection eventide home sandgate rockhampton charter tower c nurse midwife classification level correctional facility 14 3 application public service act 2008 regulation subject clause 1 9 provision public service act 2008 regulation made hereunder continue apply employee class employee th section applies act regulation applicable immediately prior commencement award 14 4 custom practice 14 4 1 existing custom practice date commencement award continue 14 4 2 nothing section construed aff ect prejudicially special personal classification employee enjoyed date commencement award 14 5 condition appointment probationary service employee entitled appointment probationary provision made public service act 2008 14 6 transfer officer employee served 3 year continuousl isolated position transferred without detriment position fa vourable locality soon opportunity offer 14 7 meal break 14 7 1 ordinary hour employee section exclusive meal time 14 7 2 meal break minimum 30 minute duration taken fourth sixth hour commencement duty meal break taken employee rostered work 6 hour le 14 8 allowance 14 8 1 allowance officer transfer employee entitled transfer allowance made public service act 2008 14 8 2 allowance relieving officer employee entitled relieving allowance made public service act 2008 14 8 3 daily travelling allowance employee entitled travel allowance made public service act 2008 14 8 4 equipment allowance employee entitled equipment allowance made public service act 2008 14 8 5 locality allowance employee entitled locality allowance made public service act 2008 14 8 6 performance higher duty employee entitled higher duty allowance made public service act 2008 46 14 8 7 meal allowance employee entitled meal allowance made public service act 2008 14 9 annual leave 14 9 1 entitlement annual leave prescribed directive 2 11 recreation leave issued amended minister responsible industrial relati ons accordance section 54 1 public service act 2008 14 9 2 employee receive minimum 152 hour annual leave completed year service proportionate amount incomplete year service employee headquarters southern eastern region defined directive 2 11 14 9 3 employee receive minimum 190 hour annual leav e completed year service proportionate amount incomplete year service employee headquarters northern western region defined directive 2 11 14 9 4 employee annual leave entitle ment debited number working day christmas day new year day inclusive compulsory closure government establishment ch ristmas new year period 14 9 5 employee engaged service require continuous operation receive additional annual leave continuous shift work required participate compulsory closure arrangement christmas new year period 14 10 public holiday 14 10 1 work done employee good friday christmas day 25 april anzac day 1 january 26 january easter saturday day good friday easter monday birthday sovereign boxing day day appointed holiday act 1983 kept place holiday must paid rate double time half minimum 4 hour 14 10 2 employee covered award entitled paid full day wage labour day first monday may day appointed holiday act 1983 kept place th holiday irrespective fact work may performed day employee concerned actually work labour day employee must paid full day wage day addition payment time actually worked employee one half time ordina ry rate prescribed work minimum 4 hour 14 10 3 work done employee district specifi ed time time minister responsible holiday act 1983 notification published queensland government gazette day appointed holiday act 1983 kept holiday relation annual agricultural horticultural industrial show held principal city town speci fied notification district must paid rate double time half minimum 4 hour 14 10 4 purpose clause 14 10 rate wage weekly one double time half mean one half day wage addition prescribed weekly rate pro rata le day 14 10 5 ado must coincide public holiday another day determined employer taken lieu day within 4 weekly work cycl e possible 14 10 6 employee required work specific public holiday regarded day worked accrual purpose ado 14 11 extended hour service 14 11 1 queensland health identifie need extend hour serv ice support new model care changing health need consultation union employee concerned occur 14 11 2 employee covered section award required work extended hour service arrangement following term condition award apply clause 6 9 4 extra paym ent weekend work clause 6 9 1 afternoon 47 clause 6 9 2 night clause 6 1 hour work clause 12 7 public holiday clause 12 6 3 annual leave 14 11 3 addition employee covered section award required work extended hour service arrangement public ho lidays receive additional ek annual leave per annum 14 11 4 employee covered section award employed 16 may 2003 pursuant contract employment expressly stipulates th employee required work outside particular arrangement hour work quired participate extended hour service arrangement inconsistent stipulation except agreement queensland health employee concerned section e senior nursing staff psychiatric hospital 15 1 application section e 15 1 1 section applies term provided clause 1 5 5 15 1 2 section apply employment person section b c f award applies 15 2 classification employed section e 15 2 1 following classification employed section registered nurse nurse grade 9 12 15 3 meal break 15 3 1 ordinary hour employee section inclusive meal time 15 3 2 meal break minimum 30 minute duration taken fourth sixth hour commencement duty meal break taken employee rostered work 6 hour le 15 4 allowance 15 4 1 special payment special payment 17 30 per fortnight payable employee section special payment operate purpose award 15 5 board lodging 15 5 1 board lodging supp lied employee residing within em ployer accommodation employer entitled deduct sum 16 50 per week weekly rate pay prescribed employee 15 5 2 employee living provided meal employer deduction made wage rate 60 cent breakfast 75 cent lunch 75 cent dinner 15 5 3 lodging supplied employee employer entitled deduct sum 6 00 per week weekly rate pay prescribed employee 15 6 uniform cost suitable uniform overcoat proper fit good quality must reimbursed employee reimbursement paid suitable uniform overcoat proper fit good quality determined employer provided fre e cost employee 15 7 change shift employee must work time beyond th e rostered shift necessary changi ng shift receive extra payment time 15 7 1 mutual change leave day working shift 48 mutual change leave day working shift permitted opinion director nursing hospital change detrimental effective carrying work hospital b change leave day working shift allowed one classification level removed c notwithstanding foregoing provision director nursing hospital may upon application employee approve change shift duty employee mutual change leave day working shift allowed extend beyond 3 week 15 7 2 roster change employee shift altered emergency circum stance employee must notified promptly possible 15 8 annual leave 15 8 1 employee ca ual employee covered secti end year employment entitled annual leave full pay 152 hour 15 8 2 employee casu al employee granted add itional 38 hour leave full pay completed year employment additional week recognition continuous operation psychiatric hospital 3 shift per day generally worked period 7 day per week 15 8 3 employee annual leave entitle ment debited number working day christmas day new year day inclusive compulsory closure government establishment ch ristmas new year period 15 8 4 employee engaged service require continuous operation receive additional annual leave continuous shift work required partic ipate compulsory cl osure arrangement christmas new year period 15 8 5 case employee th receive extra payment public holiday whether work done public holiday occurring period annual leave counted portion leave 15 8 6 employment employee terminated expiration full year employment employee paid addition amount due pro rata amount annual leave full pay 15 8 7 date commencement annual leave notified employee 2 mont h date posting leave list notice boar institution simila r place employee may approval director nursing hospital exchange annual leave extent 4 month period 7 day employee commence monday either due date exchange duly recorded 15 9 public holiday 15 9 1 public holiday whether work done upon full pay basis extra allowance equivalent rostered ordinary hour maximum 7 6 hour per day holiday employee work ordinary number weekly hour notwithstanding holiday 15 9 2 employee actually perform work public holiday addition paid half ordinary rate time worked 15 9 3 lieu provision clause 15 9 1 registered nurse nurse grade 9 12 required work public holiday allowed equivalent time w ith minimum half working day occasion time option employee added annual leave maximum 10 day taken within 2 week day work performed 15 9 4 employee actually performs work public holid ay addition paid half ordinary rate time worked section f certain employee alcohol drug dependence service 49 16 1 application section f 16 1 1 section applies term provided clause 1 5 6 16 1 2 section apply employment person section b c e award applies 16 2 classification employed section f following classification may employed section registered nurse nurse grade 5 16 3 meal break 16 3 1 ordinary hour employee section inclusive meal time 16 3 2 meal break minimum 30 minute duration taken fourth sixth hour commencement duty meal break taken employee rostered work 6 hour le 16 4 allowance 16 4 1 clothing allowance employee paid clothing allowance 6 10 per fortnight 16 4 2 daily travelling allowance employee entitled travelling allowance made public service act 2008 16 4 3 higher duty allowance employee entitled higher duty allowance made public service act 2008 16 4 4 locality allowance employee entitled locality allowance made public service act 2008 16 4 5 meal allowance employee entitled meal allowance made public service act 2008 16 5 change shift employee must work time beyond th e rostered shift necessary changi ng shift receive extra payment time 16 5 1 mutual change leave day working shift mutual change leave day working shift permitted similar class employee director nursing delegated officer upon written application employee concerned opinion director nursing delegated officer change detrim ental effective carrying proper function alcohol drug dependence service 16 5 2 roster change roster mutually agreed party section b employer must give 24 hour notice change employee rostered hour double time payable next shift 16 6 annual leave 16 6 1 condition annual leave prescribed directive 2 11 recr eation leave issued amended minister industrial relation section 54 1 public service act 2008 50 16 6 2 employee entitled 152 hour leav e full pay completed year employment 16 6 3 work required performed public holiday employee engaged work entitled 190 hour leave full pay completed year employment additional week lieu extra payment work performed public holiday mentioned 16 7 1 16 6 4 work performed 3 shift per day period 7 day per week employee engaged work perform duty varying shift allocat ed rotation officer duly authorised regard every employee engaged shift work completed full year employment allowed additional annual leave rate 38 hour per year respect period shift worked employee 16 6 5 leave taken suit administration relevant alcohol drug dependence service 16 6 6 annual leave taken fall due time time leave mutual arrangement may accumulated long period leave exceed 2 year entitlement 16 6 7 employee cease employment employee annual leave become due employee receive pro rata amount employee annual leave full pay 16 6 8 employee annual leave entitle ment debited number working day christmas day new year day inclusive compulsory closure government establishment ch ristmas new year period 16 6 9 employee engaged service require continuous operation receive additional annual leave continuous shift work required participate compulsory closure arrangement christmas new year period 16 7 public holiday 16 7 1 work done employee ordinary shift good friday 25th april anzac day christmas day new year day 26th january easter monday birthday sovereign boxing day day appointed holiday act 1983 kept place holiday paid one half time ordinary rate provided work performed day employee normally required work public holiday paid rate double time half 16 7 2 employee covered award entitled paid full day wage labour day first monday may day appointed holiday act 1983 kept place holiday irrespective fact work may performed day employee concerned actually work labour day employee paid full da wage day addition payment time actually worked employee one half time ordinary rate prescribed work minimum 4 hour 16 7 3 work done employee district specified time time minister responsible holiday act 1983 notification published gazette day appointed holiday act 1983 kept holiday relation annual agri cultural horticultural industrial show held principal city town specified notification district paid rate double time half 16 7 4 work done employee easter saturday day good friday paid rate double time half 16 7 5 purpose clause 16 7 5 rate wage weekly rate double time half mean one half day wage addition prescribed weekly rate pro rata le day 16 7 6 labour day show day easter saturday occur period employee annual leave added employee annual leave extra day day occurring 16 7 7 employee rostered duty labour day show day easter saturday employee paid additional day wage granted day holiday lieu time mutually arranged employer employee concerned extra day added employee annual leave day th e employee rostered 51 16 8 extra payment weekend work 16 8 1 time worked 10 rostered ordinary hour one shift midnight friday midnight saturday paid one half time ordinary rate midnight saturday midnight sunday paid rate time three quarter 16 8 2 rostered ordinary hour worked one shift period double ordinary rate paid time excess hour clause 16 8 2 operates exclusion clause 6 9 4 e schedule 1 classification definition s1 1 introduction s1 1 1 nursing midwifery position must use th e title listed within generic level statement descriptor may added title provide detail position entail example nurse unit manager oncology adon quality etc midwi fe may used interchangeably word nurse s1 1 2 service level provided within facility determined queensland health clinical service capability framework utilised criterion assist determin e band level nursing position classified grade 9 s1 2 definition s1 2 1 service training mean formal informal work related learning activity undertaken employee opportunity provided employer activity contribute employee professional developmen efficiency acquisition updating skill knowledge bene ficial effective performance within team reducing degree direct supervision required employee enhancing breadth depth knowledge skill required employee specific area range area nursing practice case may s1 2 2 supervision mean subject regulation bylaw australian health practitioner regulation agency oversight direction instru ction guidance support provided employee registered nurse midwife nurse grade 5 registered nurse midwife responsible ensuring employee placed situa tions would required function beyond employee preparation competence specifically direct supervision mean employee work side side continuously registered nurse midwife nurse grade 5 responsible observing directing employee activity circumstance judgement registered nurse midwi fe nurse grade 5 arrangement warranted interest safe effective work practice indirect supervision mean supervision provided employee assuming responsibility function delegated registered nurse midwife nurse grade 5 circumstance judgement registered nurs e midwife nurse grade 5 abov e accountable delegation direct supervision employee required s1 2 3 nurse practitioner candidate registered nurse employed designated position established district enrolled accredited university pr ogram leading endorsemen nurse practitioner s1 3 assistant nursing nurs e grade 1 generic level statement assistant nursing employee appointed classification cover work direction supervision registered nurse nurse grade 5 abov e employee required assist performance nursing duty assistant nursing work direction supervision registered nurse nurse grade 5 assisting care resident patient delegated registered nurse nurse grade 5 52 performs range duty require basic skill training experience work within multidisciplinary team demonstrates understanding mission value organisation demonstrates commitment personal professional development ensures skill knowledge relating work remain current contributes resident patient care need gathering information resident patient care ne ed observing resident patient reporting registered nurse nurse grade 5 assist registered nurse nurse grade 5 ass plan evaluate care performing reporting procedure delegated registered nurse nurse grade 5 assisting resident patient personal hygiene appearance contributing maintaining resident patient care environment contributing maintenance safe secure environment resident patient staff assistant nursing pay point progression progression within classification occur upon completion 12 month previous pay point part time casual incremental advan cement requirement award however ains must relevant certificate iii qualifi cation progressing pay point 3 exception mentioned grandparenting arrangement nurse queensland health certified agreement eb6 2006 ains progress past grade 1 2 upon completion 12 month part time casual incremental advancement requirement rate certificate iii qualification 12 month grade 1 2 obtains certifi cate iii progress grade 1 3 date approval qualification targeted training allowance ains paid grade 1 6 12 month twelve month trained assistant nursing central sterilising supply department cssd employee undertaken course 12 month duration cssd satisfactory completion training opinion employer relevant performance duty lead enrolment register roll maintained australian health practitioner regulation agency following apply relation pay point progression grade 3 pay point 1 mean pay point employee appointed assistant nursing cssd satisfactory completion course training 12 month duration cssd leading possession qualification required employer grade 3 pay point 2 mean pay point employee satisfactory completion course training 12 month duration cssd progress pay point 1 assessed competent pay point 1 grade 3 pay point 3 mean pay point employee satisfactory completion course training 12 month duration cssd progress pay point 2 assessed competent pay point 2 12 month trained assistant nursing entitled progress beyond pay point 3 grade 3 time employee satisfies requiremen t obtained enrolment enrolled nurse s1 4 student nursing midwifery nu rse grade 2 generic level statement student nursing midwifery student nursing midwifery undertaking study second semester second year final year university pre registration nursing midwifery qualification accredited australian health practitioner regulation agency student nursing midwifery work direct indirect supervision gistered nurse nurse grad e 5 assisting care resident patient delegated registered nurse nurse grade 5 performs range duty commensurate th e level training assessed competency work within multidisciplinary team demonstrates understanding mission value organisation contributes resident patient care need working towards obtaining nursing midwifery qua lifications lead registration australian health practitioner regulation agency 53 s1 5 enrolled nurse nurse grade 3 generic level statement enrolled nurse employee appointed classification cover work employee whose training education deemed satisfactory purpose en rolment register roll nurse registered nurse nurse grade 5 defined subject regulation law th e australian health practiti oner regulation agency hold current annual licence certificate pay point 1 entry mean pay point enrolled nurse absent nursing period five year longer registered enr olled australian health practitioner regulation agency enrolled nurse undertaking entry course commence grade 3 1 rate period training employee gain appropriate competency based australian nursing midwifery council anmc national competency standard enrolled nurse employee deemed competent service including period training recognised previous service pay point 2 mean pay point enrolled nurse satisfactory completion hospital based course general training nursing 12 month duration 500 hour theory content course accredited advanced certificate level certif icate v iv leading enrolment enrolled nurse progression beyond pay point 2 occur upon completion 12 month previous pay point part time casual incremental advancem ent requirement award s1 6 enrolled nurse advanced practice nurse grade 4 generic level statement enrolled nurse en advanced practic e enrolled nurse demonstr ate advanced practice within following 4 domain care delivery clinical responsibility en advanced practice wi demonstrate greater depth knowledge experience effective integr ation theory practice en advanced practice provides care advanced level upervision registered nurse nurse grade 5 accordance au stralian health practitioner regula tion agency scope nursing practice decision making framework would clude ability practise autonomously supervision registered nurse nurse grade 5 often indirect rather direct en advanced practice would also collaborate registered nurse nurse grade 5 development nursing care plan provision nursing care complement registered nurse nurse grade 5 role learning inquiry en advanced practice demon trate performance enhances self professional development professional developm ent others include initiation ongoing professional development program self involvement peer review participation activity related enhancement context specifi c practice en adv anced practice also contribute clinical research unit level contribute support implementation evidence based practice leadership responsibility demonstration leadership responsibility en advanced practice act role model within health care team would include contributing development implementation review ward service business plan en advanced practice also provide support direction within level competence enrolled nurse assistant nursing en advanced practice may also take responsibility unit activity direct patient care exampl e workplace health safety offi cer manual handling coordinator network partnership teamwork responsibility role requires en advanced practice demonstrate sound effective communication skill member health team patient family visitor staff agency would include initiating maintaining using team network mature confident assertive manner achi eve positive patient outcome en advanced practice also participates local district project activity committee appropriate s1 7 registered nurse nurse grade 5 generic level statement registered nurse nurse licensed prac tise nursing without supervision assumes accountability responsibility action act rectify unsafe nursing practice 54 unprofessional conduct essential nu rse registered australian health practitioner regulation agency hold cu rrent practising certificate degree expertise increase regi stered nurse advance level nurse may beginning practitioner registered nurse returning field period absence responsibility registered nurse provides nursing care based anmc national competency standard group patient client collaboration health service provider anmc national competency standard competency grouped 4 domain professional ethical practice registered nurse demonstrat e satisfactory knowledge base accountability practice functioning accordance legislation affe cting nursing protection patient client right critical thinking analysis registered nurse undertakes self appraisal professional development value evidence research practice reflecting practice feeling belief consequence patient client considered important professional benchmark provision coordination care registered nurse required ass patient client well plan implement evaluate care collaborative therapeutic practice competency essential establishing sustaining nurse patient relationship integrates maintena nce safety skill interpersonal therapeutic relationship communication well organisational skill ensure provision care also includes ability interact member health care team entry mean pay point registered nurse absent nursing period five year longer registered australian health practitioner regulation agency registered nurse undertaking entry course restoration pathway commence grade 5 entry rate period training employee gain appropriate competency based anmc national competency standa rds registered nurse employee deemed competent service including period training recognised previous service pay point 1 mean pay point registered nurse attained undergraduate degree nursing registration another branch nursing employee working particular practice setting require additional registration successful completion post r egistration course least 12 month duration course directly relevant progression beyond pay point 1 occur upon completion 12 month previous pay point part time casual incremental advancem ent requirement award s1 8 midwife nurse grade 5 generic level statement midwife midwife attained sole undergraduate degree midwifery licensed australian health practitioner regulation agen cy practise midwifery without supervision assumes accountability respon sibility action act rectify unsafe midwifery practice unprofessional conduct degree expertise increase midwife advance grade 5 responsibility midwife provides care based anmc national competency standard group client collaboration health service provider anmc national competency standard co mpetencies grouped 4 domain legal professional practice domain contains compet encies relate legal professional responsibility including accountability f unctioning accordance legislation affecting midwifery demonstration leadership midwifery knowledge practice domain contains competen cies relate performance midwifery practice including assessment planning implementation evaluation partnership woman included domain 55 midwifery prim ary health care domain contains competen cies relate midwifery public health strategy included notion self determination protection individual group right reflective ethical practice domain contains competen cies relating self appraisal professional development value research entry mean pay point midwife author ised practice midwifer absent midwifery period five year longer registered australian health practitioner regulation agency midwife undertaki ng approved entry course restoration pathway provided australian health prac titioner regulation agency commence grade 5 entry rate period training employee gain appropriate competency based anmc national competency standard midwife employee deemed competen service including period training recognised previous service pay point 1 mean pay point midwife attain ed undergraduate degree midwifery successfully completed post registrati course least 12 month duration course directly relevant progression beyond pay point 1 occur upon completio n 12 month previous pay point part time casual incremental advancement requirement award s1 9 clinical nurse midwife nurs e grade 6 generic level statement clinical nurse midwife mean registered nurse midwife appointed clinical nurse midwife role requires broad developing knowledge professional nursing issue sound specific knowledge base relation field practice clinical nurse assumes accountability responsibility action act rectify unsafe nursing practice unprofessional conduct clinical nurse midwife responsible specific client population able function complex situation providing support direction registered nurse non registered nursing personnel clinical nurse midwife identifies selects implem ents evaluates nursing intervention le predictable outcome clinical nurse midwife ab le demonstrate following advanced level clinical skill problem solving skill planning coordination skill clinical management patient care ability work without collegiate team structure awareness involve ment quality contribution professional practice related area expertise responsibility provides nursing care group patient client act role model registered nurse non licensed personnel provision holistic patient client care take additional responsibility clearly differentiates th e role registered nurse s1 10 nurse grade 7 generic level statement registered nurse may appointed advanced practice position identifie specific leadership role responsibility advanced practice positio n may include limited following integrates key objective strategic plan facility division clinical service service delivery clinical unit department overall coordinate formulates directs policy relating provision nursing care speciality service includes integration patient care across continuum care inpatient ambulatory care 56 operationalises strategy across facility divisi clinical service work based culture promotes support education learni ng research wo rkforce development implement education applies research initiative unit division clinical service facility level integrates strategic direction priority quality improvement clinical service establishes quality framework confirms suppor t direction nursing service take manages change local level clinical nurse consultant clinical nurse consultant regist ered nurse accountable adva nced practice level coordination clinical practice delivered clinical specialty applies specialised nursing knowledge rele vant area professional practice demonstrates sound knowledge contemporary nursing practice theory participates directly indirectly de livery clinical care individual group ensures clinical practice evidence based facilitate positive patient outcome sound knowledge ability apply relevant legislation guideline standard nurse unit manager nurse unit manager registered nurse accountabl e advanced practice le vel coordination clinical practice provision human materi al resource specific patient client area ability lead nursing team multidis ciplinary environment utilising principle contemporary human material financial resource management demonstrates sound knowledge contemporary nursing practice theory participates directly indirectly de livery clinical care individual group ensures clinical practice evidence based facilitate positive patient outcome sound knowledge ability apply relevant legislation guideline standard nurse manager nurse manager registered nurse accountable advanced practice level provision human material resource either supporting division specific patient client area system service provides nursing expertise specialist area nursing management example patient flow informatics hour nurse management demonstrates sound knowledge contemporary nursing practice theory integrates principle contemporary human material financial resource management service delivery sound knowledge ability apply relevant legislation guideline standard nurse educator nurse educator registered nurse accountable advanced practice level design implementation assessment nursing education program managing edu cational resource provides nursing expertise relating educational issue within nursing service division facility health service district integrates principle contemporar nurse education nursing practice demonstrates sound knowledge contemporary nursing practice theory sound knowledge ability apply relevant legislation guideline standard nurse researcher nurse researcher registered nurse accounta ble advanced practice level development coordination implementation evaluation nursing research project program ensure clinical practice within designated area evidence based ensures principle contemporary resear ch integrated nursing practice demonstrates sound knowledge contemporary nursing practice theory sound knowledge ability apply relevant legislation guideline standard public health nurse 57 public health nurse registered nurse appointed position acco untable advanced practice level surveillance prevention control communicable di sease population level across multiple health service district applies specialised nursing knowledge pr evention control communicable disease participates directly indirectly inves tigation contact tracing management individual group communicable disease potential exposure participates multidisciplinary intersectorial team develop whole population strategy manage contain disease outbreak threat public health provides education advice inte rnal external health service pr oviders prevention control communicable disease cluding immunisation ensures practice evidence based facilitate positive outcome individual community population demonstrates sound knowledge contemporary nursing practice theory sound knowledge ability apply relevant legislation guideline standard s1 11 nurse practitioner nurse grade 8 generic level statement nurse practitioner nurse practitioner registered nurse appointed position endorsed practise nurse practitioner australian health practitioner regulation agency nurse practitioner educated function autonomously collaboratively advanced expanded extended clinical role role includes assessment management client using nursing knowledge skill may include limited direct referral client health care professional prescribing medication ordering diagnostic investigation s1 12 assistant director nurs ing nursing director nurse gr ade 9 generic level statement assistant director nursing nursing director registered nurse demonstrates clinical management expertise assistant director nursing nursing director responsible overall planning coordination formulation direction policy relating provision clinical care development partnership model strategy support undergraduate post graduate education research workplace addition assistant director nursing nursing director responsible provision human material resource clinical division assigned number clinical unit district wide area health service demonstrates expert comprehensive knowledge contemporary nursing practice design develops implement innovative standard relating improving facility divisional performance demonstrates expertise leadership specific leader ship role responsibility may include limited following participation development integration key objective district strategic plan service delivery district facility division participation development strategy policy nursing patient care related service delivery issue across division division within community aged care health service participation development strategy work based culture promotes support education learning research workforce development provision strategic direction priority quality improvement clinical service establishes quality framework confirms suppor t direction nursing service district facility take management change facility divisional level demonstrates expertise human material financia l resource management specific human material financial resource management role responsibility may include limited following implementation hr framework across facility division community aged care health service identifies opportunity realise enhanced performance recruitment retention nurse career succession planning 58 responsibility functional planning capital work asset equipment division program service level coordination use equipment material source across facility division aged care facility community health service accountable jointly accountable operationa l budget division aged care facility community health service s1 13 director nursing nurse gr ade 10 generic level statement may also titled director nursing facility manager relevant director nursing registered nurse demonstr ate expertise clinical practice management director nursing responsible activity nursing service facility contributes development facility policy dir ector nursing accountable nursin g practice within fa cility leadership nursing service effective coordination resource development health strategy collaboration others demonstrates expert comprehensive knowledge contemporary nursing practice demonstrates expertise strategic leadership sp ecific leadership role responsibility may include limited following development strategic approach integration coordination policy development service delivery facility development strategy policy nursing patie nt care related service delivery issue within facility development vision strategy work based culture promotes support education learning research workforce management development effective liaison external fac ilities agency facilitate undergraduate post graduate education research provision strategic direction priority fo r quality improvement establishes quality framework support direction nursing service take management change demonstrates expertise human material financial resource management specific human material financial resource management role responsibility may include limited following implementation hr framework across facility community aged care service identification opportunity realise enhanced pe rformance recruitment retention nurse career succession planning responsibility functional planning capital wo rks asset equipment facility level coordination use equipment material source across facility aged care facility community health service accountability jo int accountability opera tional budget facility aged care facility community health service s1 14 district director nursing nurse grade 11 generic level statement district director nursing registered nurse collaborative partner district health service executive planning health serv ice associated b udgetary accountabilitie position district wide responsibility strategically develop nursing work force service optimise patient staff outcome district director nursing demonstrates expert comprehensive knowledge aspect nursing profession state national international level demonstrates ability identify evaluate incorpor ate emerging trend within broader service business industry potential enhance nursing health service demonstrates expertise policy guideline standard development design implementation strategically responsible coordination direction nursing service district perspective demonstrates expertise strategic leadership sp ecific leadership role responsibility may include limited following development strategic approach integration coordination policy development service delivery district 59 development district wide vision strategy work based culture promotes support education learning research workforce management negotiation communication external educa tion facility agency develop support infrastructure effective sustainable undergraduate postgraduate education research provision strategic direction priority fo r quality improvement establishes quality framework support nursing service direction district take management change utilising strategic development framework demonstrates expertise human material financial resource management specific human material financial resource management role responsibility may include limited following development evaluation human resource framework ensure environment enhances recruitment retention nurse facilitates succession planning st aff district level responsibility functional planning capital wo rks asset equipment management district accountability joint accou ntability operational budget fo r facility may responsible district financial performance s1 15 executive district director nursing nurse grade 12 generic level statement executive director nursing registered nurse equal collaborative partner district health service executive planning health service associated budgetary accountability position may also area health service responsibility strate gically develop nursing workforce service optimise patient staff outcome executive director nursing nurse grade 12 demonstrates expert comprehensive knowledge aspect nursing profession state national international level identifies evaluates incorporates emerging trend within broader service business industry potential enhance nursing health service expertise higher level policy guideline standard development design implementation demonstrates expertise strategic leadership sp ecific leadership role responsibility may include limited following development strategic approach integration coordination policy development service delivery di strict area development vision district area wide strategy work based culture promotes support education learning search workforce development establishment strategic direction nego tiation communication external education facility agency develop support infrastructure effective sustainable undergraduate postgraduate education research provision strategic direction priority fo r quality improvement establishes quality framework support direction nursing service area district take management change utilising strategic development framework demonstrates expertise human material financial resource management specific human material financial resource management role responsibility may include limited following responsibility strategic approach developing implementing contemporary human resource management policy practice optimise organisation environment strategic input capital work major asset equipment management responsibility district financial performance design develops implement innovative standard relating improving district area health service performance strategically coordinate direction nursing service district area health service perspective ability strategically plan provision clinical service within multidisciplinary dynamic environment schedule 2 wage rate 60 classification level wage rate 1 december 2011 title nurse grade band paypoint annual salary fortnightly salary assistant nursing nurse grade 1 1 40 526 70 1 553 40 2 41 547 00 1 592 50 3 42 207 00 1 617 80 4 43 316 00 1 660 30 5 44 445 00 1 703 60 6 45 030 00 1 726 00 undergraduate student nurse midwife nurse grade 2 2nd year student 41 547 00 1 592 51 3rd year student 42 207 00 1 617 80 enrolled nurse nurse grade 3 1 44 456 00 1 704 00 en 2 45 150 00 1 730 60 3 45 864 00 1 758 00 4 46 592 00 1 785 90 5 47 367 00 1 815 60 1 48 792 00 1 870 20 enrolled nurse advanced practice nurse grade 4 enap 2 49 561 00 1 899 70 registered nurse nurse grade 5 entry 49 561 00 1 899 70 midwife no1 1 51 896 00 1 989 20 2 54 356 00 2 083 50 3 56 817 00 2 177 80 4 59 279 00 2 272 20 5 61 750 00 2 366 90 6 64 221 00 2 461 60 7 66 689 00 2 556 20 clinical nurse nurse grade 6 1 67 831 00 2 600 00 no2 2 69 433 00 2 661 40 3 71 046 00 2 723 20 4 72 666 00 2 785 30 clinical nurse consultant nurse unit manager nurse educator nurse manager nurse researcher nurse grade 7 1 83 388 00 3 196 30 no4 2 87 176 00 3 341 50 3 89 352 00 3 424 90 nurse practitioner nurse grade 8 1 93 941 00 3 600 80 2 96 289 00 3 690 80 assistant director nursing nursing director nurse grade 9 1 no5 1 98 092 00 3 759 90 2 102 869 00 3 943 00 2 no6 1 109 819 00 4 209 40 3 no7 1 120 943 00 4 635 80 director nursing nurse grade 10 1 no4 1 95 898 00 3 675 80 2 100 252 00 3 842 70 3 102 757 00 3 938 70 2 no5 1 98 092 00 3 759 90 classification level wage rate 1 december 2011 title nurse grade band paypoint annual salary fortnightly salary 61 classification level wage rate 1 december 2011 title nurse grade band paypoint annual salary fortnightly salary 2 102 869 00 3 943 00 3 no6 1 109 819 00 4 209 40 4 no7 1 120 943 00 4 635 80 district director nursing nurse grade 11 1 no5 1 98 092 00 3 759 90 2 102 869 00 3 943 00 2 no6 1 109 819 00 4 209 40 3 no7 1 120 943 00 4 635 80 4 no8 1 129 498 00 4 963 70 executive director nursing nurse grade 12 no9 1 157 528 00 6 038 10 schedule 3 midwifery model care definition s3 1 model care definition s3 1 1 midwifery model care ar e model maternity service wh ich midwife pr imary caregiver service may include midwife clinic community midwifery eam midwifery birth centre s3 1 2 continuity midwifery care consistent philosophy requiring organisational structure around type care provided model c ontinuity care fall 2 general category caseload b team midwifery s3 1 3 caseload midwifery model also referred group practice small group midwife 2 3 focus continuity carer approach provide antenatal intrapartum postnatal care defined number woman s3 1 4 team midwifery model team midwife 6 8 collaborate provide antenatal intrapartum postnatal care defined group woman model maternity care provided team midwife may provide continuity care pregnancy labour birth early parenting s3 1 5 core midwife midwife within maternity unit participate team midwifery caseload group practice model core midwife may based one area antenatal labour birth postnatal may necessarily follow group woman throughout child bearing period s3 2 local arrangement s3 2 1 midwifery model care developed facility working group established working group include representative midwife queensland health manager queensland nurse union employee qnu key stakeholder consider appropriate midwifery model working group take consideration consumer community need s3 2 2 district develop local agreement support agreed midwifery model care district review analyse service provided ongoing basis review process built local agreement local agreement must sent huma n resource service division qnu final review implementation s3 3 industrial framework caseload model care s3 3 1 participation participation caseload model car e voluntary midwife participate caseload model paid annualised salary outlined clause s3 3 4 pa id accordance award agreement provision time worked 62 s3 3 2 reversion midwife participate caseload odel receive annualised salary revert payment basis time worked case midwife provide 4 week notice intention return payment basis actual time worked exceptional circumstance employer may waive giving 4 week notice s3 3 3 caseload caseload equate employee working 38 hour per week full time midwife based full time midwife providing full care 40 client 12 month period part time employee designated caseload proportional basis b party acknowledge caseload midwife may vary depending upon nature midwifery service skill mix midwife midwifery service risk profile client accordingly determination specific casel oads within particular service determined consultation local agreement c rural remote caseload model providing extended service lactation consultant pap smear immunisation provider addition antenata l postnatal care risk woman example indigenous woman socially disadvantaged group may caseload le 40 per year per full time midwife s3 3 4 annualised salary midwife working caseload model pa id annualised salary recognition flexible pattern work provide continuity care annua lised salary ordinary rate pay set schedule one purpose loading 27 5 compensation ordinary hour worked following public holiday penalty rate ii saturday shift penalty rate iii sunday shift penalty rate iv afternoon shift penalty rate v night shift penalty rate vi meal allowance relating overtime vii overtime payment except pr ovided clause s3 3 6 excess hour including recall payment viii call allowance ix annual leave loading 5 week annual leave b six month caseload model adopted centre adequacy annualised salary loading reviewed accordance agreed criterion c midwife working team core midwifery model eligible annualised salary s3 3 5 pattern work midwife working caseload model organise hour work consultation line manager nursing provided ar e able meet assessed need client b midwife required work period long er 8 hour choose hand care client time midwife discretion work longer 12 hour meet need client c midwife period least 8 hour within 24 hour period continuously free duty call recall midwife average 4 day dut per fortnight least 2 consecutive day free planned work call recall e midwife permitted work 7 day succession midwife recalled work s3 3 6 excess hour 63 hour work averaged 8 week cycle first 30 hour worked excess 304 hour 8 week cycle taken time lieu toil hour worked excess 334 paid overtime rate time half first 3 hour double tim e thereafter midwife may elect take toil instead overtime payment b maximum 30 hour toil may carried one 8 week cycle next line manager nursing may approve toil 30 hour exceptional circumstance provided hour excess 30 taken next work cycle s3 3 7 debit carryover maximum toil debit 16 hour allowed one time may carried one 8 week cycle next s3 3 8 time record midwife required keep accurate record time worked including travel time administrative work staff development non clinical activity s3 3 9 review workload midwife work accepted range hour 288 hour 334 hour line manager nursing review midwife hour work ensure future hour fall accepted range hour underpin annualised salary s3 3 10 annual leave annual leave 6 week per year purpose loading provided 3 3 4 paid entire period leave dated 16 may 2011 commission l g savill industrial registrar operative date 16 march 2011 new award queensland health nurse midwife award state 2011 released 24 may 2011

Chief Executive Officer of Customs v Camile Trading Pty Ltd and Ors [2004] NSWSC 1256 (21 December 2004).txt

chief executive officer custom v camile trading pty ltd or 2004 nswsc 1256 21 december 2004 last updated 22 december 2004new south wale supreme courtcitation chief executive officer custom v camile trading pty ltd or 2004 nswsc 1256current jurisdiction file number 20859 97hearing date 3 june 2004judgment date 21 12 2004parties chief executive officer custom v camile trading pty ltd orsjudgment dunford jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel p hastings qc r b wilson plaintiffp byrne sc j stanton first second defendantssolicitors australian government solicitor plaintiffhiggins dyson solicitor first second defendantscatchwords practice procedure excise prosecution conviction penalty unpaid duty nature proceeding privilege self incrimination exposure penalty trial procedure differential case management verification defencesacts cited corporation act 2001 cth crime act 1914 cth custom actevidence act 1995excise act 1901queenslandevidence actsupreme court act 1976trade practice act 1975workplace relation act 1996decision motion dismissed costsjudgment 12 supreme courtof new south walescommon law divisiondunford jtuesday 21 december 200420859 97 chief executive officer custom v camile trading pty limited orsjudgment1 honour excise prosecution pursuant topart xiof theexcise act 1901 act recover penalty unpaid excise duty pursuant act alternatively order reparation pursuant tos 21bof thecrimes act 1914 cth 2 proceeding commenced statement claim filed 23 september 1997 general civil list common law division accordingly subject practice note 120 relating differential case management four defendant namely camile trading pty limited first defendant leslie ronald fletcher second defendant director shareholder first defendant evenfont pty limited third defendant robert lenard pullinger fourth defendant director shareholder third defendant 3 consent amended statement claim filed 26 june 2001 following third fourth defendant applied amended statement claim dismissed stayed far related alternatively certain paragraph relating struck master harrison refused application 2001 nswsc 770but ordered plaintiff file serve amended statement claim third fourth defendant appealed decision master harrison appeal dismissed studdert j 23 november 2001 ceo custom v camile trading pty limited or 2001 nswsc 1075 meantime amended statement claim filed 20 september 2001 run 705 paragraph including particular cover 232 page 4 substance amended statement claim alleges 1992 1996 first defendant carried business petroleum wholesaler sold unleaded petrol leaded petrol diesel premise albion park rail without relevant manufacturer licence unders 34of act whilst third defendant carried business manufacturing petroleum product grantee licence alleged first defendant involved blending diesel fuel unleaded petrol leaded petrol 9 discrete period reason allegation made respect 9 discrete period apparently rate duty varied time time 5 paragraph 676 682 plead complicity second defendant matter earlier pleaded first defendant whilst paragraph 683 700 plead complicity third fourth defendant blending leaded unleaded petrol paragraph 701 704 set particular offence alleged unders 35 manufacture excisable good without licence 61 move alter excisable good delivered home consumption export otherwise authorised act 120 1 iv evade payment duty 6 paragraph 705 follows plaintiff pursuant tos 144of theexcise act 1901avers matter fact contained paragraph 1 700 particularised statement claim 7 order sought conviction defendant offence againstss 35 61and 121 act order recovery penalty defendant pursuant act order payment unpaid excise duty first second defendant alternatively order reparation paid first second defendant pursuant tos 21bof thecrimes act 1914 cost interest 8 22 may 2002 third fourth defendant filed verified defence original statement claim 23 may 2002 first second defendant filed verified defence amended statement claim 9 defence first second defendant admit matter corporation carrying business premise employment second defendant etc neither admit deny content large number paragraph plead matter affecting third fourth defendant deny matter alleged paragraph 649 alternative allegation movement excisable good breach 61 proved averment also pleaded answer whole amended statement claim pleading constitutes embarrassment abuse process seek prove commission serious offence requiring proof beyond reasonable doubt trial indictment heard dcm list civil jurisdiction supreme court seek prove intent averment respect reserve right challenge pleading accordingly 10 6 february 2004 present notice motion filed seeking following order 1 pursuant tosupreme court act 54 proceeding transferred criminal division 2 leave granted first second defendant withdraw verified defence filed file lieu thereof unverified defence 3 order4 cost 11part xi ss133 153 theexcise act 1901is headed excise prosecution substantially amended recently time event alleged proceeding relevant provision follows 12section 133provided proceeding custom recovery penalty anyexcise actor condemnation good seized forfeited referred excise prosecution ands 134specified excise prosecution could instituted supreme court state specified court section 136was follows 136 every excise prosecution court referred insubsection 134 1 may commenced prosecuted proceeded accordance rule practice established court crown suit revenue matter accordance usual practice procedure court civil case accordance direction court judge 13section 143 provided defendant competent give evidence except indictable offence offence directly punishable imprisonment defendant also made compellable give evidence whilst bys 144 1 averment prosecutor plaintiff contained originating process prima facie evidence matter averred notwithstanding evidence support rebuttal matter averred matter given witness matter averred mixed question law fact case prima facie evidence fact sub 3 excluded evidence averment intention defendant 14 thecustoms actcontains similar provision 244 act corresponding withs 133of theexcise act 245 withs 134 247 withs 136 252 withs 143and 255 withs 144 15 behalf first second defendant submitted proceeding seek order conviction therefore require proof beyond reasonable doubt chief executive officer custom v labrador liquor wholesale pty ltd 2003 hca 49 2003 201 alr 1 nature criminal proceeding accordingly ordinary civil procedure court inappropriate particularly differential case management prescribed practice note 120 requires filing verified defence service witness statement giving discovery claimed procedure would violate defendant right silence privilege self incrimination exposure penalty 16 proposition proceeding nature criminal proceeding misstates authority oflabrador liquor wholesale case hayne j gleeson cj mchugh j agreed said custom excise prosecution case concerned classified civil proceeding criminal proceeding include characteristic 114 136 although proof beyond reasonable doubt essential ingredient relevant offence required 144 145 proof may established reliance averment provision in 144of act 142 17 honour went consider effect ofs 136of act 242 thecustoms actin similar term held absence particular procedure proceeding crown revenue case section required court apply usual practice procedure civil case including rule evidence followed case provision thequeenslandevidence actwhich related civil proceeding applied related criminal proceeding 147 18 application proceeding transferred criminal division court therefore misconceived two reason firstly high court inlabrador liquor wholesaleexpressly rejected proposition proceeding criminal nature held specified in 136 court ordinary rule practice procedure civil case apply secondly criminal division criminal division established act 88 1979s 3sch 1 3 c abolished act 172 1998s 3sch 10 2 two division apart court appeal namely common law division equity division supreme court act 1976s 38 19 alternative submission even proceeding conducted trial indictment subject differential case management defendant required take step prior close plaintiff case trial give indication nature defence including filing pleading matter witness statement giving discovery answering interrogatory leave withdraw defence already filed file unverified defence 20 similar issue arose inchief executive officer custom v afiouny 2004 nswsc 79 case afterlabrador liquor wholesalewhere mcdougall j held ordinary rule civil practice procedure applied including relating differential case management statement issue evidence like respect agree mcdougall j applicability ordinary civil procedure including differential case management proceeding consider follow decision 21 filing statement claim defence differential case management trial procedure well rule evidence clearly matter practice procedure consequently 136 mandate ordinary rule relating matter applied inlabrador liquor wholesale requirement proof beyond reasonable doubt held require provision thequeenslandevidence actrelating criminal case applied applicable civil case requirement proof beyond reasonable doubt require special procedure ordinarily applies civil case 22 supreme court rule applicable civil proceeding provide filing verified defence pt 15 r 23 placing proceeding dcm list pt 26 r 3 practice note 120 requirement may varied court order pt 1 r 12 pt 15 r 23 10 pt 26 r 1 discretionary power conferred rule applicable civil matter provision witness statement affidavit discretionary matter court practice note 120 interlocutory stage proceeding 23 however although ordinary civil procedure court applied regard must also privilege self incrimination self exposure penalty pointed indaniels corporation international pty ltd v australian competition consumer commission 2002 hca 49 2002 213 clr 543at 13 privilege self exposure penalty one trilogy privilege bear similarity privilege self incrimination two exposure forfeiture exposure ecclesiastical censure although privilege exposure penalty forfeiture origin rule equity relating discovery privilege exposure penalty long recognised common law longer simply rule equity relating discovery privilege self incrimination exposure penalty available corporation evidence act 1995s 187 24 inaustralian competition consumer commission v ffe building service ltd 2003 fcafc 132 2003 130 fcr 37 full court federal court considered privilege civil action pecuniary penalty pursuant 76 thetrade practice act 1975where issue whether individual respondent required file witness statement prior close plaintiff case conceded privilege available corporate respondent court emmett healy jacobson jj summarised principle relating privilege follows 12 privilege self incrimination protects individual making disclosure may lead incrimination discovery real evidence incriminating nature respondent proceeding solely recovery pecuniary penalty ordered disclose information produce document may assist establishing liability penalty 13 privilege refusing answer question provide information ground answer information might tend expose party imposition pecuniary penalty confined discovery interrogatory available common law distinct privilege exposure conviction crimethe rationale privilege applicant must prove case get assistance respondent proving case privilege abrogated statute privilege subject judge made exception qualification cannot abridged undermined consequence court accepting undertaking proffered applicant designed avoid diminish danger provision information would expose respondent penalty 14 requiring individual respondent prior closure applicant case file statement evidence proposed given witness called respondent respondent would exposed risk indirect derivative evidence evidence obtained using material disclosed statement basis investigation could tendered imposition penalty may lead discovery real evidence support imposition penalty reference omitted 25 court refused order filing service witness statement individual respondent advance hearing notwithstanding plaintiff prepared give undertaking use information contained therein advance case reaching conclusion court followed earlier decision sackville j inaustralian competition consumer commission v amcor printing paper group ltd 1999 fca 672 1999 163 alr 465in preference later victorian court appeal decision insidebottom v thefederal commissioner taxation 2003 vsca 2 2003 6 vr 302 26 recently inrich v australian security investment commission 2004 hca 42 2004 209 alr 271 proceeding thecorporations act 2001 cth commission sought declaration contravention compensation order disqualification appellant acting director reversing decision new south wale court appeal high court held seeking order disqualification purely protective public constituted proceeding penalty privilege applied respondent could ordered give discovery conceded commission high court liable give discovery liable ordered file affidavit advance hearing 27 turn consider position relation pleading opposed discovery affidavit witness statement civil case object pleading define narrow issue evidence led fact dispute party pleading governed scrpt 15and allegation pleading traversed opponent denial non admission stand admitted pt 15r 20 28 issue pleading proceeding penalty specifically thecustoms act considered full court supreme court western australia inbridal fashion pty ltd v comptroller general custom 1996 140 alr 681 29 court reviewed nature privilege self incrimination self exposure penalty noted neither privilege available corporation honour 696 drew attention averment provision 255 thecustoms act 144 excise act concluded light provision defence merely denying admitting allegation fact statement claim would enable defendant lead evidence trial negate effect averment would therefore exercise futility practical effect averment provision defendant ordinarily required raise affirmative allegation defence otherwise able tender positive exculpatory evidence suggested could done pleading denied admitted alleged fact pleaded paragraph x defendant say 30 honour concluded 697 summarise pleading defence defendant admit allegation put plaintiff proof thereof would prevent operation 255 1 would appropriate plea defendant admit allegation statement claim would thereby waive privilege self incrimination defendant deny allegation defence would incriminate defendant set affirmative case form suggested would incriminate circumstance privilege practical application pleading defence statement claim custom prosecution accordingly privilege self exposure penalty self incrimination preclude defendant pleading ordinary way allegation statement claim 31 court also held 695 corporation defendant could avoid pleading ground information disclosed might practical term destroy utility privilege individual defendant 32 respect agree honour analysis reservation case pleading positive exculpatory case may give lead open fresh field enquiry plaintiff thus exposing defendant incrimination penalty 33 inalfred v walter construction group ltd 2003 fca 993 declaration sought respondent contraveneds 170nt 1 theworkplace relation act1996

R v Aggarwal [2001] QCA 492 (7 November 2001).txt

r v aggarwal 2001 qca 492 7 november 2001 last updated 5 december 2001 2001 qca 492court appealmcmurdo pmcpherson jachesterman jca 146 2001the queenv anita aggarwalbrisbane date 07 11 2001judgmentthe president application commonwealth dpp reopen respondent sentencing proceeding court 16 october 2001 district court 15 june respondent pleaded guilty attempting pervert course justice court court 16 october respondent sentenced basis part approached one m slack instigation father result lenient approach taken sentence sentenced district court four month imprisonment court application leave appeal sentence granted appeal allowed sentence altered extent ordering applicant released forthwith upon recognisance sum 1 000 good behaviour period four month 30 october 1 november district court trial father substantive offence respondent gave evidence gone see m slack instigation father contrary said behalf district court contrary basis upon sentenced court therefore seems sentenced court basis clear factual error substance penalty sentence act 188 1 c qld approached m slack primarily assist father instigation father sentence reduced court said district court incorrect court told version provided district court upon trial father appeal may well dismissed applicant proposes number order urgently want sentence reopened would mean respondent would effectively either remanded custody placed bail pending appeal applicant wish condition bail granted respondent surrender passport apply passport respondent born india significant tie india although australian citizen affidavit material placed u morning respondent claim wish go india visit mother law photocopied medical certificate state mother law suffering cancer ill need family support seems somewhat curious respondent husband patient son busy work commitment leave although comment made bar table may reason patient son wish leave australia respondent undertaken affidavit return jurisdiction within 48 hour called upon meet reopening proceeding applicant seek adjourn today view proceeding reopened 188 1 c respondent remanded bail condition surrender passport apply passport would propose following order 1 application reopening presently pending district court removed court 2 proceeding court 16 october 2001 sentencing respondent reopened 3 adjourn hearing sentencing proceeding date fixed and4 remand respondent bail undertaking condition surrender passport apply passport mcpherson ja agree chesterman j agree president order mr hanson would honour specify passport surrendered far held commonwealth dpp appropriate surrendered registrar court court content commonwealth dpp hold president condition surrender justice helman gave commonwealth dpp mr hanson dpp president commonwealth dpp

N96_12389 [1999] RRTA 761 (24 March 1999).txt

n96 12389 1999 rrta 761 24 march 1999 refugee review tribunaldecision reason decisionrrt reference n96 12389country reference people republic chinatribunal member w berkleydate decision 24 march 1999place sydneydecision tribunal affirms decision grant protection visa catchword prior protection backgroundthe applicant citizen people republic china arrived australia 1992 2 december 1993 applicant applied department immigration ethnic affair refugee status themigration act 1958 act 1 september 1994 application deemed application protection visa migration reform act 1992s 39 18 september 1996 delegate minister immigration refused grant protection visa 22 october 1996 applicant applied tribunal review decision department record indicate applicant granted australian visa class uh subclass 850 resolution status temporary appears visa granted 11 february 1999 subclass 850 temporary visa introduced june 1997 together permanent visa class bl subclass 851 resolve status certain group people australia humanitarian arrangement remained australia time status unresolved subclass 850 visa grant temporary residence multiple return right work right access medicare opportunity sponsor existing spouse dependent child remains effect decision made permanent residency subclass 851 visa granted subclass 850 visa holder lived australia total 10 year provided continues meet health character requirement subclass 851 visa allows holder remain australia indefinitely travel enter australia 5 year date grant holder want travel enter australia apply return residence visa permit entry permanent resident australia apply australian citizenship generally people apply grant australian citizenship present australia permanent resident total two year previous five year including twelve month two year immediately apply seemigration acts 29 30 31 migration regulationsrr 2 01 2 02 2 03 schedule 1 item 1127a 1216a schedule 2 part 850 851 sr 1997 279 accompanying explanatory statement department procedure advice manual 3 fact sheet 35 36 issued department 17 october 1997 andaustralian citizenship act 1948s 13 1 march 1999 tribunal wrote applicant advising considered paper relating application unable make favourable decision information alone applicant advised issue case effective protection australia virtue status australia appeared could granted protection visa circumstance applicant asked tell tribunal whether wanted withdraw application protection visa applicant advised want withdraw entitled give oral evidence support application asked tell tribunal 22 march 1999 whether wished applicant advised respond date would assumed wish come hearing decision could made without notice letter sent applicant last known address response received circumstance tribunal satisfied discharged obligation provide applicant opportunity give oral evidence applicant effectively declined opportunity matter therefore determined evidence tribunal evidence comprises tribunal file relating application relevant record obtained department applicant legislationa criterion protection visa time decision decision maker satisfied applicant person australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee s 5 1 36 2 act australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined however australia protection obligation refugee convention protocol arise person effective protection third country 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 definition considered high court inchan 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 144 alr 567 inguo case court observed convention definition contains four key element first applicant must outside country second applicant must fear persecution third reason persecution must found singling one convention reason race religion nationality membership particular social group political opinion fourth applicant fear persecution convention reason must well founded fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason addition applicant must unable unwilling fear avail protection country whether applicant person australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future effective protection safe third country principle effective protection third country established full court federal court inminister immigration multicultural affair v thiyagarajah 1998 151 alr 685and applied inkarthigesu rajendran v minister immigration multicultural affair unreported federal court australia mansfield j 4 may 1998 upheld full court inkarthigesu rajendran v minister immigration multicultural affair unreported federal court australia von doussa loughlin finn jj 4 september 1998 andminister immigration multicultural affair v thiagarajah gnanapiragasam or unreported federal court australia weinberg j 25 september 1998 broadly speaking australia protection obligation person accorded effective protection third country effective protection context mean protection effectively ensure breach article 33 refugee convention person happens refugee article 33 principal obligation imposed refugee convention prohibits return refugee frontier territory life freedom would threatened one five convention reason return applicant third country would expose australia breach article 33 australia owe protection obligation applicant required determine whether refugee article 1 thiyagarajahat 702 determining whether applicant effective protection third country relevant consideration usually whether applicant right reside enter enter third country whether risk third country return applicant country claim fear persecution whether applicant well founded fear persecution third country inthiyagarajah case applicant recognised france refugee accorded effective protection including right reside enter enter country however operation ofthiyagarajahis restricted case effective protection result grant refugee status extends least case claimant entitled permanent residence time become citizen karthigesu rajendran v minister immigration multicultural affairsper mansfield j 14 certain circumstance principle also apply applicant right temporary residence third country thiagarajah gnanapiragasam fundamental question whether applicant status legal entitlement third country consequence australia obliged ass claim refugee status karthigesu rajendranper mansfield j 14 reason real risk returned country life freedom would threatened one convention reason tribunal view principle case equally applicable applicant effective protection independently refugee convention third country australia applicant status legal entitlement australia real risk australia would breach article 33 convention returning applicant country well founded fear persecuted convention reason australia protection obligation respect person circumstance tribunal required ass claim refugee status determining issue relevant consideration whether applicant right reside enter enter australia whether risk australia return applicant country claim fear persecution third consideration usually arises case kind whether applicant well founded fear persecution safe third country clearly arise australia country protection sought country applicant claim fear persecution reason decisionon basis information tribunal find applicant granted australian visa class uh subclass 850 resolution status temporary 11 february 1999 applicant claim well founded fear persecuted china however tribunal satisfied applicant legal status entitlement australia risk returned country whether applicant refugee relation china tribunal satisfied effective protection australia virtue australian visa permit applicant remain australia multiple return right work right access medicare applicant entitled permanent residency physically resided australia total 10 year provided continues meet health character requirement information tribunal suggest would fail meet requirement department record indicate applicant lived australia total approximately nine year mean every likelihood granted permanent residency within next year permanent residency granted applicant able travel enter australia period five year date grant apply return residence visa permit travel entry permanent resident applicant apply australian citizenship two year provided satisfied certain residency requirement whether applicant refugee relation china tribunal satisfied status legal entitlement australia real risk australia would return applicant country indeed country might well founded fear persecuted breach article 33 refugee convention tribunal therefore satisfied applicant effective protection australia independently refugee convention applicant effective protection australia follows person australia protection obligation refugee convention therefore unnecessary consider substantive claim refugee status conclusionthe 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 w berkleymember

Applicant: Rogers Jacqueline Principal: Rogers Denver Sean IRT Reference: V95_00523 #number 6753 [1996] IRTA 6753 (29 February 1996).txt

applicant rogers jacqueline principal rogers denver sean irt reference v95 00523 number 6753 1996 irta 6753 29 february 1996 rogersdecision lynne kosky member delivered melbourne 29 february 1996 transitional permanent visa equivalent class 105 concessional family visa tribunal found applicant usual occupation silver service waiter tribunal found applicant met australian entry standard occupation tribunal found applicant achieved qualifying score point test assessment application remitted immigration review tribunalstatement decision andreasons decisionirt reference v95 00523 6753 docapplicant rogers jacquelineprincipal rogers denver seantribunal lynne kosky memberdate 29 february 1996place victoriadecision tribunal remit application department direction principal received qualifying score point test accordingly satisfied criterion clause 105 332 regulation reason decisionhistory applicationthis review decision delegate minister immigration ethnic affair grant class 105 concessional family visa mr denver rogers principal original application lodged australian embassy new delhi 27 january 1994 decision refusing made 4 august 1994 following application department immigration ethnic affair department migration internal review office miro 3 november 1994 refusal affirmed agreed 10 march 1994 review sought mr denver roger sister m jacqueline rogers review applicant australian citizen sponsor visa application lodged application review tribunal 20 april 1995 relevant legislationas result coming force themigration reform act 1992on 1 september 1994 australian migration law undergone significant change accordance withregulation 22of themigration reform transitional provision regulation principal application case successful result grant transitional permanent visa new law purpose resemble visa would granted law force 1 september 1994 relates grant refusal visa regulation made purpose division continue apply principal application criterion satisfied migration application lodged 1 february 1993 1 september 1994 contained migration 1993 regulation original application lodged department june 1994 relevant regulation migration 1993 relation regulation applicant class 105 concessional family visa must pas point assessment provided set schedule 7 regulation themigration act 1958 act requires tribunal making assessment regard regulation force date primary assessment force time decision whichever regulation favourable principal 27 january 1994 pool entrance mark 90 pas mark 95 date decision 90 95 point respectively concessional family case point awarded principal employment age qualification sponsor circumstance relationship citizenship settlement location qualification far employment skill relationship qualification concerned fact stand time tribunal assessment must taken account age qualification determined date application citizenship settlement location qualification determined fact time department received sponsorship number point previously awarded principal follows primary decisionmiroage3030relationship1010citizenship55settlement1010location employment2020total7575evidencethe tribunal relevant tribunal file submission applicant advisor included correspondence principal employer advice mr bill jelleff food beverage co ordinator william angliss college findingsthe issue central determination case concern point allocated employment qualification principal spouse tribunal proceed make point assessment matter principalemployment skill qualificationan applicant point score employment qualification obtained first determining applicant usual occupation occupation applicant engaged gain reward continuous period least 6 month period 2 year immediately preceding relevant application visa second determining minimum entry requirement occupation australia thereby identifying potentially relevant paragraph schedule 7 regulation thus maximum achievable point occupation question finally determining whether applicant posse qualification experience assessed relevant australian authority occupation theaustralian standard classification occupation occupation definition asco 1990 published australian bureau statistic generally referred guide order ascertain entry requirement australia visa applicant usual occupation application migration principal stated usual occupation silver service waiter serving food beverage international standard job description provided application department aligns duty formal service waiter described asco dictionary code 6505 11 principal employed taj corromandel hotel madras india since december 1990 completed 1 1 2 year apprenticeship food beverage service department hotel passing apprenticeship examination trade steward conducted board technical education employed assistant waiter taj corromandel hotel since july 1992 applicant submitted correspondence principal employer mr n murali krishnan manager personnel administration taj corromandel hotel india explains two level structure organisation adopted employment waiter state taj corromandel hotel engage steward two level namely assistant waiter waiter view give growth opportunity appropriate time employee accordingly mr denver rogers sic taken regular role company effective july 16 1992 assistant waiter position performed normal duty pertaining waiter detailed setting tablesb taking booking escorting guest tablesc presenting menu suggesting dish guestsd serving food beverage chaffing warming dish tablese silver service waiteringf presenting bill accepting payment guest advice provided mr bill jelleff team co ordinator food beverage william angliss college state principal described work experience equates role trained waiter regard evidence including detailed submission principal tribunal find principal usual occupation silver service waiter entry requirement occupation formal silver service waiter according asco trade certificate noosr advised tribunal previously unable ass employment experience determining whether applicant meet entry requirement particular occupation dir ass trade waiting tribunal becomes relevant australian authority assessment principal qualification following request tribunal applicant advisor sought additional advice mr bill jelleff william angliss college australian equivalence principal experience qualification text mr jelleff response dated 10 november 1995 provided reviewed resume mr denver rogers recent change training profile australia particularly driven thenational training agenda advanced skill looking earlier assessment accorded elective status thogh fully qualified victorian standard waiter would certainly find employment silver service area leading hotel hospitality outlet feature type service also enquired two former employee sic corromandel staff member standard training company inform taj corromandel committed quality training program making assessment thetribunal accepts advice mr bill jelleff william angliss college find principal training experience equivalent trade certificate date visa application 27 january 1994 principal le 3 year experience silver service waiter accordingly principal entitled 60 point employment qualification provided item number 7103 schedule 7 regulation age qualificationthe principal 26 year date application accordingly accordance regulation force date decision tribunal allocates 30 point relationship qualificationthe sponsor sister principal accordingly tribunal allocates 10 point citizenship qualificationthe sponsor australian citizen since 24 november 1993 australian citizen le 5 year time sponsorship received tribunal allocates 5 point settlement sponsor qualificationsthe sponsor resident australia throughout period 2 year immediately department received sponsorship received jobsearch newstart special benefit last 2 year accordingly tribunal allocates 10 point location sponsorthe sponsor lived designated location period 2 year prior completing sponsorship accordingly tribunal allocates point summarythe tribunal allocates following point employment skill 60age 30relationship 10citizenship 5settlement 10location total 115at date application migration presently pool entrance mark 90 point pas mark 95 point concessional family visa class 105 principal scored 115 point received qualifying score point test decisionthe tribunal remit application department direction principal received qualifying score point test accordingly satisfied criterion clause 105 332 regulation certify eight preceding page true copy statement decision reason decision lyn kosky presiding member dated deputy registrar

Hotel Wickham [2000] QLAT 19 (28 March 2000).txt

hotel wickham 2000 qlat 19 28 march 2000 last updated 17 april 2002hotel wickham 2000 qlat 19hotel wickhamappeal hotel wickham investment pty ltdagainst decision chief executive refuse application detached bottleshopat 262 given terrace paddingtonappeal 19 1999 2000hearing 2 march 2000tribunal m lindon presiding member mr g spendermr allinghamdecision 28 march 2000background appeal1 2 september 1999 hotel wickham investment pty ltd appellant lodged application detached bottleshop operated general licence respect hotel wickham fortitude valley brisbane situated 262 given terrace paddington application also lodged extended hour permit regular basis allow detached bottleshop open 8 00 seven day per week proposed shop would one chain grape liquor outlet operated appellant related general licensee brisbane area 2 application advertised pursuant tosection 118 1 theliquor act 1992 theact one objection one submission public need opposing application received pad mac pty ltd owner licensee paddington tavern situated 186 given terrace paddington brisbane city council council assistant commissioner police metropolitan north region asked comment application pursuant tosection 117 1 neither council police objected application 3 20 december 1999 chief executive determined refuse application reason decision provided tribunal executive director liquor licensing division division state follows chief executive satisfied approval sought necessary provide reasonable requirement public liquor related service locality application relates issue determination4 pursuant tosection 116 2 theact applicant seeking approval undersection 59 1 operate detached bottleshop authority general licence must satisfy chief executive tribunal case approval applied necessary provide reasonable requirement public liquor related service locality application relates requirement satisfied chief executive tribunal must regard pursuant tosection 121 5 theact objection granting approval sought comment relevant local government authority impact upon amenity community concerned proposed bottleshop regard application extended hour permit need establish public need satisfy thesection 121 5 requirement arises additional requirement comment sought police reasonable requirments public5 proposed site detached bottleshop gross floor area 128 5 square metre within strip shopping commercial precinct extends 700 metre along side given terrace paddington section given terrace included within planned area council development control plan control plan terrace defined control plan mean latrobe terrace section given terrace caxton street paddington 6 proposed site presently improved two storey building sealed carpark proposed detached bottleshop would occupy vacant ground floor tenancy previously used licensed restaurant shopping commercial precinct adjacent proposed site includes post office 3 bank 35 retail shop including 2 convenience store newsagency pharmacy video hire outlet hardware store fashion flower shop approximately 14 restaurant 7 tribunal find basis expert public need report placed appellant division respectively relevant locality term ofsection 116 2 tribunal view area patron proposed shop would drawn statistical local area suburb paddington addition northern part milton situated within 0 5 kilometre proposed site locality identified mr john norling director urban economics upon whose report appellant relied locality shown figure 1 attachment mr norling report mr r j ryter town planning consultant upon whose report division relied disagree mr norling definition relevant locality 8 estimated population area 1999 based 1996 australian bureau statistic population household census figure australian bureau statistic building approval information july 1996 june 1999 6 640 person mr norling estimate population locality 6 850 person year 2006 9 mr norling mr ryter agree following analysis demographic locality high proportion young adult person aged 20 39 locality 68 queensland average proportion person age 18 low 44 state average contributing low number person per household 2 19 compared average 2 80 much lower average proportion family dependent child 49 lower state average higher proportion white collar worker 32 state average high proportion person renting premise 51 higher state average poor level mobility 17 8 household without motor vehicle 66 state average high average annual household income level 35 higher state average expert agree locality characterised white collar high income earning highly employed group young adult 10 suburb paddington consists older house one early suburb populated brisbane following resurgence interest inner city living city concerted effort behalf council encourage inner city living brisbane strong influx paddington highly educated white collar young adult 11 one general licence relevant locality paddington tavern located 400 metre east subject site addition number bar area paddington tavern four take away liquor outlet drive bottleshop walk bottleshop liquor barn specialising high volume discounted line mcguire cellar specialising premium imported wine spirit walk bottleshop situated eastern end tavern accessed step given terrace across verandah area adjoins public bar drive bottleshop liquor barn situated lower level tavern accessed campbell street liquor barn serviced site street carparking readily accessible parking area liquor barn area 385 square metre 125 square metre occupied mcguire cellar 12 walk bottleshop paddington tavern open 10 00 10 00 p monday tuesday 10 00 12 00 midnight day drive bottleshop open 10 00 10 00 p sunday thursday close 12 midnight friday saturday liquor barn open 10 00 daily close 7 00 p sunday thursday 9 00 p friday saturday 13 three detached bottleshops locality first 107 latrobe terrace within paddington central multi level shopping centre 700 metre west subject site anchored woolworth supermarket paddington central caters weekly food convenience shopping need resident locality however somewhat restricted nature carpark often inconvenient resident park access detached bottleshop site detached bottleshop occupies small 55 square metre tenancy plus small mezzanine level exposure traffic along latrobe terrace located level carparks range stock constrained small size store second detached bottleshop 147 latrobe terrace also small store 70 square metre providing limited range stock located 300 metre west paddington cellar located small strip shopping centre bottleshop offer convenient parking patron exposure latrobe terrace third relevant detached bottleshop bardon village western boundary locality defined would main serve resident bardon rather resident paddington 14 mr ryter argued three existing detached bottleshops along given latrobe terrace adequately meet need local resident appear warrant detached bottleshop located every 300 400 metre along arterial road note three detached bottleshops rosalie milton red hill respectively located defined locality utilized conveniently many resident within locality point part locality 750 metre existing detached bottleshop mr ryter argues person wishing conveniently purchase premium quality wine locality also well catered mcguire cellar 15 mr g hooker group wine buyer mcguire hotel group owns operates paddington tavern gave evidence behalf division said mcguire cellar stock approximately 2500 line premium imported wine spirit mcguire cellar offer range museum stock whilst display available examination request claim previously worked grape outlet range premium imported wine spirit offered paddington tavern far exceeds usually offered grape outlet 16 mr c kelly founder grape liquor market brisbane 1993 gave evidence behalf appellant said started grape outlet basis brisbane great selection fine wine bottleshops supported knowledgeable staff say grape group invests heavily buying blue chip internationally renowned wine include range group also invests heavily staff education manager assistant manager achieve accreditation set wine spirit education trust united kingdom well group sponsor sponsored staff member wish sit master wine examination say group also conduct public wine education course year group educated thousand people go become loyal astute customer mr kelly claim grape access wine one else offer brisbane say success grape outlet area demonstrates fill need otherwise met existing outlet provide access premium fine wine liquor supply premise easily accessible provide pleasant ambience well providing exposure access wider operation group said 2 2 000 household paddington hold grape card enables holder access special privilege decision locate grape outlet paddington made substantially basis large number existing grape patron living area 17 making decision chief executive three public need assessment made officer division m foot m crowley liquor licensing officer report dated 8 november 1999 25 november 1999 respectively recommended application approved mr peter thomas manager licensing administration unit report dated 20 december 1999 recommended application refused said would difficult justify take away liquor outlet site following reason paddington tavern located 320 metre proposed site extensive range take away facility including drive bottleshop walk bottleshop liquor barn cellar specialising fine wine spirit b two detached bottleshops located close proximity le 1 kilometre proposed site c proposed bottleshop located stand alone shop serve convenience shopper 18 tribunal agree mr thomas proposed bottleshop would located stand alone shop proposed shop retail tenancy stand alone building building immediately adjoined retail outlet restaurant one side retail outlet opposite side given terrace development taking place immediately beside proposed site many year large vacant allotment council approved construction retail shopping complex site proposed bottleshop would clearly part fairly large suburban shopping precinct many local resident shop grocery convenience item 19 tribunal considers proposed detached bottleshop would provide convenient service patron surrounding restaurant seven licensed restaurant shopping precinct number allow patron bring bottled wine addition seven unlicensed byo restaurant within walking distance proposed site demographic characteristic locality suggest many local resident likely patronize restaurant regular basis many local resident would walk precinct evening meal many restaurant patron proposed detached bottleshop would provide convenient service paddington tavern would certainly cater need local resident dislike buying takeaway alcohol hotel premise prime dining time evening especially friday saturday evening verandah outside public bar paddington tavern place hotel patron congregate person wishing enter bottleshop beside public bar required pas area 20 local patron restaurant precinct walked home parked motor vehicle dining seek bottle wine consume meal paddington tavern mcguire cellar may convenient proposed bottleshop facility approached given terrace uninviting steep set stair 21 proposed bottleshop would also provide convenient service patron restaurant precinct live part brisbane person live outside locality travel outbound city home along given terrace would benefit tourist precinct popular convenient dining area close central business district 22 proposed shop would also considerable benefit resident paddington interested fine wine wine education would added choice premium wine bottleshop would provide supplement range available mcguire cellar however fact proposed bottleshop intends provide access patron extensive selection premium wine would view sufficient establish public need bottleshop otherwise meet existing need public general takeaway liquor facility location 23 taken account matter must regard pursuant subsection 3 4 ofsection 116 tribunal satisfied licence sought necessary meet reasonable requirement public residing resorting passing locality 24 council control plan severely restricts area detached bottleshop established locality intent control plan stated follows reinforce special character terrace relates physical setting traditional built form historical mixture land us b reinforce role terrace local service centre place specialised shopping entertainment city wide population c protect amenity residential property planned area constraining significant commercialisation area control plan said based following principle c generally extent commercial us planned area limited existing character amenity planned area maintained housing loss prevented parking traffic problem minimised particular office generally located business precinct ii restaurant located business precinct iii commercial activity property fronting terrace spill onto property street l latrobe giventerraces must continue perform multi purpose traffic role catering traffic performing local distributor providing access adjoining property development terrace minimise intrusion traffic nearby residential street 25 control plan dictate new detached bottleshop must either latrobe given terrace circumstance case tribunal reached conclusion justification establishment detached bottleshop commercial shopping restaurant precinct presently detached bottleshop facility amenities26 tribunal note local resident objected application objection amenity ground lodged owner operator paddington tavern paddington tavern objection amenity ground tribunal view formal objection little substance basis material tribunal satisfied would adverse impact upon amenity community concerned application granted extended hour permit27 tribunal satisfied appellant established public need extended hour permit allow trading 10 00 fact nearby retail outlet open door 8 00 establish early morning patron facility need purchase alcohol time confident paddington tavern would applied early morning trading considered need existed locality trading paddington tavern bottleshop liquor barn fine wine cellar open 10 00 appellant submits granted 8 00 extended hour permit allow flexibility opening hour time like christmas easter however application one permit allow early trading day course made decision tribunal28 tribunal order decision chief executive 20 december 1999 set aside b approval granted operation general licence wickham hotel detached bottleshop situated 262 given terrace paddington trading hour 10 00 12 midnight monday sunday c application extended hour permit regular basis refused

RE SUNJICH [2022] WADC 66 (29 July 2022).txt

sunjich 2022 wadc 66 29 july 2022 last updated 8 august 2022jurisdiction district court western australiain civillocation perthcitation sunjich 2022 wadc 66coram massey dcjheard 4 may 2022delivered 29 july 2022file app 6 2022matter matter ofpart 7of thecriminal injury compensation act 2003andin matter appeal bybetween blazenka sunjichappellantjurisdiction criminal injury compensation assessor western australiacoram r guthriefile number cic 2309 2018criminal injury compensation appeal proved offence economic loss extension timelegislation nilresult appeal allowedrepresentation counsel appellant mr j n triggamicus curia m g beck behalf chief executive officer department justicesolicitors appellant stephen browne lawyer south perth amicus curia state solicitor western australiacase referred decision august v lynch 2019 wadc 78bothma v hildebrand 2019 wadc 92harris v sycamore 2022 wadc 4jy 2013 wadc 187malec v jc hutton pty ltd 1990 hca 20 1990 169 clr 638medlin v state government insurance commission 1995 hca 5 1995 182 clr 1michael v panetta 1994 10 sr wa 323re goodwin 2020 wadc 128robinson 2017 wadc 18savic v duric 2021 wadc 53state new south wale v moss 2000 nswca 133taw v nj 2011 wadc 187underwood v underwood 2018 wadc 13massey dcj appellant misfortune victim two assault first assault first assault committed former husband kieran james brosnahan 26 october 2015 second assault second assault committed jodie papillia respondent 26 november 2021 appellant suffered injury result assault appellant subsequently filed application criminal injury compensation one claim form respect assault amended compensation award dated 21 january 2022 assessor criminal injury compensation assessor ordered appellant receive total 48 304 50 compensation respect first assault letter accompanying award assessor said compensation assessed follows injury 17 500 00reports 6 475 50treatment expense 11 114 00loss earnings 10 000 00travel expense 2 000 00future treatment expense maximum 1 215 00the assessor made separate award amount 10 000 respect second assault dated 26 november 2021 letter accompanied award reason provided assessor decision appellant take issue award made respect first assault appellant appeal award respect second assault appellant filed notice appeal decision assessor 12 january 2022 virtue ofs 55 3 thecriminal injury compensation act 2003 wa act appeal must filed within 21 day decision given assessor decision dated 26 november 2021 last date commencing appeal assessor decision 17 december 2021 order 3 r 3 therules supreme court 1971 wa mean date 24 december 12 january included time calculation absence order contrary mean appellant appeal filed six day late appellant accordingly seek leave extend time within appeal application made pursuant tos 55 4 act provides district court may allow appeal commenced 21 day may even period expired support application extension time appellant relies upon affidavit sworn solicitor mr klein mr klein affidavit explains accept firstly miscalculated date appeal lodged oversight failed lodge appeal date event relevant consideration governing application extension time lodge appeal length reason delay prospect appellant succeeding extent prejudice respondent appellant make point accept prejudice respondent given subject recovery order delay six day accept delay caused fault appellant therefore grant application extension time order time appellant required lodge notice appeal extended 12 january 2022 appeal general principlesin hearing appeal court must decide application decision relates afresh without fettered assessor decision must determine matter solely evidence information possession assessor may receive evidence information 56 1 act appeal hearing de novo underwood v underwood 2018 wadc 13 19 robinson 2017 wadc 18 7 furthermore appellant demonstrate error part assessor order succeed underwood 19 apart affidavit sworn mr klein appellant seek rely information provided matter book contains material assessor read considered material evidencethe appellant provided statement police dated 10 november 2016 statement described premise 38 suffolk street caversham horse property using agistment horse said arrived property saw respondent phone said got car respondent made way still phone walking quickly said respondent asked one missy appellant responded saying moved morning appellant said said respondent reached left hand around head grabbed hair bun respondent pulled forward right hand started hitting appellant right hand given respondent right hand holding mobile telephone appellant struck telephone appellant said struck 10 time respondent heard yelling knew sister stole horse appellant said saw blood drip pulled respondent close said felt something snap hand respondent yelled give back chain cunt appellant said respondent started swinging arm respondent head next appellant left breast felt respondent bite left breast said pushed respondent away saw respondent neck chain appellant hand said respondent moved backwards appellant held chain respondent yelled give back chain appellant dropped chain hand appellant said respondent walked away went 15 year old daughter vanessa said wanna go clenching fist making punching motion appellant said appellant told respondent done said respondent kept walking yelled back cunt continued saying walked car said respondent got driver seat car reversed past appellant parked drove towards car stopped metre front appellant car appellant thought going ram car said respondent reversed away left property appellant said injury included 1 cm cut forehead black left eye could open day left cheek swollen bruise back left arm bite mark left breast bled slightly victim impact statement relation assault appellant repeated said statement police went detail impact incident said suffered 1 cm laceration forehead black left eye swollen cheek bruise back left arm bite left breast bled slightly said pain swelling forehead left eye left cheek left arm left breast week following incident said could open left eye one day following incident black left eye week went say experienced severe anxiety could stop thinking ruminating incident still afraid respondent would come back try attack child detailed unable sleep properly due fear anxiety first second assault said stopped training horse incident noise would wake cause panic taken precaution insofar securing house concerned felt paranoid attacked become worse following second assault worried either mr brosnahan offender respect first assault respondent would try attack said become socially withdrawn afraid bumping respondent socially anxious daughter going fear respondent might attack become withdrawn fearful making new friend said difficulty trusting people difficulty concentrating always feeling anxious stressed said scarring forehead laceration insofar impact life concerned said felt unable work due constant fear anxiety started seeing psychologist romana lee september 2017 said started getting counselling m lee week relation two assault july 2018 seeing week date statement 13 september 2018 said taking one tablet tramadol every night back pain statement headed impact statement dated 27 july 2021 reiterated statement police said injury second assault included 1 cm laceration forehead bruising left eye swelling left cheek bruising back left arm bite mark left breast said also suffered exacerbation psychological injury sustained first assault statement also detailed injury first assault included bruising right eye bruising swelling face pain hand whiplash back exacerbation previous back injury said psychological injury first assault included post traumatic stress disorder ptsd depression anxiety detailed medical treatment psychological treatment went detail effect incident firstly detailing effect first assault effect second assault insofar first assault concerned appellant said involved previous motor vehicle accident experienced back pain said first assault aggravated injury said experienced severe anxiety suffered frequent panic attack could stop thinking ruminating incident detailed fear worry security precaution said able sleep properly said following incident owner horse looking saw bruised told happened said although told former husband would back client want leave horse said january 2016 horse owner want caring horse continued rent paddock said one horse mother 12 continued care horse said become withdrawn family friend difficulty trusting people often zoned anxious stressed insofar second assault concerned said experienced severe anxiety could stop thinking ruminating incident said worst part ordeal daughter present said afraid respondent would attack child unable sleep properly said stopped horse training caring horse incident unable sleep well night detailed security precaution said paranoia attacked become worse following incident respondent said avoided going area respondent lived afraid bumping socially said worried daughter going respondent might attack said experienced fear around people become withdrawn always anxious stressed said self conscious scar forehead suffered low self esteem lost confidence statement also detailed education employment december 2009 involved motor vehicle accident suffered injury back received compensation payment allowance made sum compensate lost earnings said 2010 receipt single parent pension centrelink remained receipt pension received 500 600 per week thought july 2015 meeting centrelink daughter heading towards 6 year age told could apply jobseeker look employment said result started hobby farm agistment business riding lesson beginning august 2015 said charged 50 per horse per week rental paddock 50 per week described diy agistment 80 per week part board 140 full board said plan eventually run hobby farm business viable said also providing horse lesson four client fortnight would charge 40 30 minute lesson provided table respect income prior first assault expense prior first assault also provided detail solicitor various expense reproduced table entitled schedule past future loss earning capacity said expense earning approximately 920 per week original bank statement provided previous lawyer cropped statement saved electronically without appears retaining original copy said time first assault running hobby business able continue due injury said beginning october 2016 recommenced horse agistment work physically unable provide horse riding lesson due injury sustained first assault said continued agistment work time second assault earning approximately 420 per week said prepared table earnings respect income expense prior second assault verified earnings best could bank statement provided solicitor detail various expense prior second assault expense accompanying detail reproduced solicitor schedule entitled schedule past future loss earning capacity said became anxious people coming onto property second assault able continue agistment work said horse property receiving payment approximately 12 january 2016 went say incident would continued hobby farm horse riding lesson confident could turned successful business term evidence assessor provided report m romana lee clinical psychologist psychwest psychological service dated 3 june 2019 report dr mathew samuel 360 medico legal dated 15 february 2021 report m lee clinical psychologist indicated appellant attended first session 13 may 2017 thereafter attended total 29 session 22 month two session attended accompanied one child session initially focused appellant coping parenting difficulty middle child latter part 2018 spoke need report support victim compensation claim themillon clinical multi axial inventory iii depression anxiety stress scale das completed appellant result das indicated appellant suffering extremely severe level depression anxiety stress according m lee appellant response themillon clinical multi axial inventoryindicated appellant someone tendency avoid conflict negative experience situation reported feeling high level vulnerability finding difficult trust people opinion m lee view world see might appear others paranoid delusional inventory also supported diagnosis ptsd doctor m lee indicated appellant continued suffer extremely severe level depression anxiety stress ptsd symptom appellant reported symptom including anxiety panic attack fear safety child insomnia heightened arousal hypervigilance noise outside house limited ability leave house trouble sleeping alone trouble maintaining friendship making new friend inability trust anyone financial instability unable gainfully employed flashback hypervigilance pain physical injury well difficulty parenting greater difficulty connection outside world maintained m lee said appellant exhibit symptom severe chronic ptsd directly experiencing traumatic event recurrent involuntary intrusive memory assault well nightmare avoiding reminder assault altered thinking mood alteration arousal reactivity m lee said matter present since appellant assaulted impacted area life m lee said psychological impact first assault appellant suffered trauma started experiencing ptsd symptom m lee described assault beginning difficulty appellant became unable carry daily task independent person insofar second assault concerned m lee said assault traumatised appellant specifically child present risk safety wellbeing appellant recalled feeling could anything protect either child m lee described appellant obsession locking door window security generally said appellant reported avoiding going area might come contact respondent allow child outside house reported paranoid provided address detail m lee concluded appellant psychological condition directly attributed two assault second assault greater impact term future incapacity m lee said following would affected parenting assault making struggle parenting worse fear safety concern child b general sporting recreational activity appellant anxiety paranoia c relationship support network connectivity m lee described appellant limited support network minimal friend social connection m lee described appellant little confidence little self esteem feeling safe secure e m lee described appellant debt position gainfully employed situation could prolonged permanent appellant spoken m lee possibility might work operating riding school carrying muscle work healing animal psychiatric report dr mathew samuel indicated interviewed appellant 15 february 2021 purpose independent medical report dr samuel described appellant scared leave house paranoid jumpy view appellant symptom currently fulfilled criterion ptsd said opinion appellant suffering psychological symptom result first assault aggravated second assault said psychological symptom second assault continued appellant recover psychological injury caused result first assault said symptom ptsd poor sleep nightmare flashback able leave home always feeling paranoid result first assault present appellant said appellant symptom would remain foreseeable future would require counselling session least 20 session year next two three year dr samuel opinion assault significantly contributed psychological injury assault attributable answer question whether appellant either totally partially incapacitated engaging previous occupation result first assault dr samuel replied appellant work related attention concentration needing work physically said opinion totally incapacitated previous occupation psychological point view foreseeable future asked whether incapacitated result second assault response second assault also made totally incapacitated view would unlikely return previous occupation near future result first second assault said would unlikely would ever able return occupation due psychological injury result first second assault said would difficult work related horse struggling task struggling sit stand long time said would difficult office type job result said appellant might need review occupational physician occupational therapist dr samuel view appellant suffer psychological condition prior incident appellant submissionsthe appellant say victim proved offence committed respondent therefore entitled unders 12of act compensation consequential injury loss accept appellant victim proved offence respect first second assault respondent mr brosnahan convicted assaulting appellant appellant submits significant long lasting injury psychiatric psychological injury resulting assault appellant also submits physical injury appellant described statement police victim impact statement set submitted court difficulty finding appellant suffered ptsd prior second assault condition aggravated second assault appellant accepts extent second assault causative appellant ptsd precisely much condition due aggravation ptsd caused second assault judgment court particular appellant point view m lee second assault greater impact appellant refers combination report m lee report dr samuel various statement appellant symptom appellant say award assessor insufficient one regard nature extent appellant injury past future impact injury upon continue upon particular appellant point lost earnings future loss earning capacity appellant submits prior first assault appellant running hobby farm engaged horse agistment work receiving payment various amount week care people horse intention establish build hobby farm agistment work viable business appellant say result first assault initially unable pursue business plan intention work beginning october recovered sufficiently effect first assault return work recommenced agistment work time continued second assault thereafter horse property receiving payment approximately 12 january 2017 appellant say earning 420 per week payment expense able return since appellant accepts question might occurred insofar earnings business concerned second assault taken place hypothetical submits case probability low ought award loss earnings appellant accepts circumstance evidence case mean difficult ass loss earnings past future otherwise global basis ultimately appellant submits award insignificant submission amicus curiaeby order 8 march 2022 chief executive officer department justice chief executive officer leave appear amicus curia chief executive officer made written oral submission submission confined reminding relevant principle summarising evidence consider chief executive officer take position respect merit appeal assessment lost earnings principlesinmedlin v state government insurance commission 1995 hca 5 1995 182 clr 1 deane dawson toohey gaudron jj high court enunciated following principle plaintiff action negligence entitled recover damage loss earning capacity unless establishes two distinct related requirement satisfied first requirement predictable one plaintiff earning capacity fact diminished reason negligence caused injury second requirement also predictable appreciated damage loss earning capacity constitute head damage economic loss awarded addition general damage pain suffering loss enjoyment life diminution earning capacity may productive financial loss inmalec v jc hutton pty ltd 1990 hca 20 1990 169 clr 638 deane gaudron mchugh jj set appropriate approach take assessing appellant past future loss earning capacity honour said case event alleged would would occurred might might yet occur approach court different future may predicted hypothetical may conjectured question future hypothetical effect physical injury degeneration commonly susceptible scientific demonstration proof law take account future hypothetical event assessing damage term degree probability event occurring probability may high 99 9 per cent low 0 1 per cent unless chance low regarded speculative say le 1 per cent high practically certain say 99 per cent court take chance account assessing damage proof necessarily unattainable would unfair treat certain prediction 51 per cent probability occurring ignore altogether prediction 49 per cent probability occurring thus court ass degree probability event would occurred might occur adjusts award damage reflect degree probability adjustment may increase decrease amount damage otherwise awarded seemallett v mcmonagle 3 davy v taylor 4 mcintosh v williams 5 approach whether alleged event would occurred might occur assessment damage take place injy 2013 wadc 187 13 sleight dcj set principle must taken account complainant pre existing condition principle follows onus claimant prove compensable offence contribute materially claimant injury loss however offence need sole cause injury loss bonnington casting ltd v wardlaw 1956 ukhl 1 1956 ac 613 fagan v crime compensation tribunal 1982 hca 49 1982 150 clr 666 b compensation awarded injury loss would occurred event due pre existing condition smith v leech brain co ltd 1962 2 qb 405 cannot positively stated event injury loss would occurred event remained probability award compensation must reduced take account probability c proved offence made pre existing condition worse aggravation brings condition earlier assessment compensation made basis worsening acceleration case may zumeris v testa 1972 vicrp 97 1972 vr 839 possible disentangle consequence pre existing condition consequence offence claimant entitled compensation full injury loss claimant establish compensable offence contribute materially claimant injury loss bonnington casting ltd v wardlaw purkess v crittenden 1965 hca 34 1965 114 clr 164 mjn v majs 2003 35 sr wa 219 227 martino j e respect event already occurred court decides balance probability whether specific event occurred damage assessed nothing approach however necessary ass hypothetical situation whether claimant pre existing condition would event prevented claimant working future court must perform estimate likelihood hypothetical situation may occur fair chance hypothetical situation may occur court must evaluate chance discount compensation percentage represents chance wynn v nsw insurance ministerial corporation 1995 hca 53 1995 184 clr 485 499 500 adjustment probability relevant general damage past future loss wilson v peisley 1975 50 aljr 207 212 stephen j sw v bb 2010 wadc 86 findingsin oral argument submitted appellant counsel claim ever made medical expense report appeal claim made future medical treatment well given appellant received amount award first assault head damage invited consider virtue appeal general damage pain suffering economic loss travel expense ultimately understand travel expense pursued appellant counsel reminded 2 000 awarded travel respect award first assault accept appellant evidence suffered physical injury detailed set also accept combination appellant evidence report m lee dr samuel appellant suffered ptsd result first assault condition aggravated second assault appellant counsel conceded physical injury long lasting main impact appellant come psychological injury suffered accept appellant evidence returned work agistment business first assault prior second assault occurring however able return work approximately one month prior first assault occurring must said given diagnosis ptsd arising first assault given opinion dr samuel appellant recover psychological injury result first assault totally incapacitated returning previous occupation psychological point view respect first assault appellant ability persist employment agistment business attended significant uncertainty insufficient time appellant returning work second assault occurring adequately ass whether appellant would able continue occupation permanent basis accept appellant lost chance continuing agistment business lost chance attempting grow business take account uncertainty already mentioned must remembered appellant received compensation amount 10 000 lost earnings award first assault award specify whether loss earnings past future loss combination additionally evidence appellant loss provided assessor regard redacted bank statement highlighted payment said appellant relate business however provided document corroborating appellant expense running business including detail rental premise cost feed expense associated running business result although appellant say earning 420 per week period 1 october 2016 1 november 2016 corroborative evidence show amount reflected net earnings accept appellant lost chance running business accept suffered lost earnings result however difficult quantify lost earnings given lack information provided assessor consequently regard assessment involving criminal injury compensation includingsavic v duric 2021 wadc 53 underwood august v lynch 2019 wadc 78 bothma v hildebrand 2019 wadc 92 goodwin 2020 wadc 128andharris v sycamore 2022 wadc 4 accepted view expressed honour judge jackson qc inmichael v panetta 1994 10 sr wa 323as adopted bowden dcj intaw v nj 2011 wadc 187and troy dcj inharris v sycamore according ordinary tortious principle amount general damage must fair reasonable compensation injury received appellant disability caused regard current general idea fairness moderation amount must proportionate appellant particular situation circumstance view amount 10 000 awarded assessor sufficiently compensates appellant pain suffering inclusive ptsd head damage apart past future economic loss relation second assault whilst want minimise effect ptsd appellant reality ptsd already present incapacitated appellant way described dr samuel second assault aggravated ptsd compensation payment made respect first assault circumstance satisfied amount 10 000 adequately compensates appellant physical mental injury however view award adequately compensate appellant loss chance earning income agistment business therefore increase award however reduced extent increase award contingency mentioned namely potential difficulty caused first assault appellant capacity continue working event lack evidence appellant net earnings business whilst consider appellant may able continue working grow business actual ability somewhat hypothetical situation bearing mind conclusion dr samuel accordingly adjusted award would make probability also taken account second assault aggravated ptsd experienced appellant result first assault given short period time appellant recommencing agistment business second assault difficult quantify likelihood able continue agistment business permanent basis failure assessor specify whether award lost earnings first assault past future loss combination make difficult ascertain whether appellant extent compensated lost earnings claimed appeal add uncertainty paucity information appellant likely earnings agistment business unable ass compensation loss chance anything global basis instate new south wale v moss 2000 nswca 133at 71 heydon ja mason p handley ja agreeing said evaluation worth loss capacity earn lost chance earn nature imprecise inquiry calculation lost income rest hypothesis plaintiff undiminished capacity rendered false event depend calculating income particular career longer possible calculating damage capacity carry various career exercise estimation possibility proof probability take account remark uncertainty already mentioned ass appellant lost earnings global basis amount 7 500 therefore increase award respect second assault 17 500 therefore order follows time appellant required lodge notice appeal extended 12 january 2022 andthe decision assessor varied increase amount compensation 17 500 hear party cost certify preceding paragraph comprise reason decision district court western australia zbassociate honour judge massey28 july 2022

V01_12976 [2003] RRTA 407 (7 May 2003).txt

v01 12976 2003 rrta 407 7 may 2003 refugee review tribunaldecision reason decisionrrt reference v01 12976country reference sri lankatribunal member genevieve hamiltondate decision made 7 may 2003place melbournedecision tribunal affirms decision grant protection visa backgroundthe applicant husband wife adult child applicant husband arrived australia applicant wife child arrived several week later lodged application protection class xa visa department immigration multicultural affair themigration act 1958 act applicant protection class xa visa entitled considered criterion subclass 785 temporary protection 866 protection delegate minister immigration refused grant protection visa applicant applied review decision legislationunders 65 1 act visa may granted decision maker satisfied prescribed criterion visa satisfied subsection 36 2 act force 1 october 2001 provided criterion protection visa applicant visa non citizen australia australia protection obligation refugee convention amended refugee protocol amendment tos 36 2 introduced 1 october 2001 apply present application refugee convention refugee protocol defined mean 1951 convention relating status refugee 1967 protocol relating status refugee respectively 5 1 act criterion grant protection class xa visa subclass 785 866 set inparts 785and866of schedule 2 themigration regulation 1994respectively provision family member derivatively entitled protection visa alternative basis member family unit applicant found refugee see munkayilar v mima 1997 fca 1333 1998 49 ald 588at 592 593 mijoljevic v mima 1999 fca 834at 14 18 dranichnikov v mima 2001 fca 769 2001 109 fcr 397at 22 23 mima v shtjefni 2001 fca 1323at 17 however applicant must satisfy remaining criterion australia party refugee convention refugee protocol generally speaking 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 high court considered definition number case notably chan 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 minister immigration ethnic affair v guo anor 1997 191 clr 559 chen shi hai v minister immigration multicultural affair 2000 hca 19 2000 201 clr 293 minister immigration multicultural affair v haji ibrahim 2000 hca 55 2000 204 clr 1 minister immigration multicultural affair v khawar 2002 187 alr 574 section 91r 91s act qualify aspect article 1a 2 purpose application act regulation particular person four key element convention definition first applicant must outside country second 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 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 persecution feared need solely attributable convention reason however persecution multiple motivation satisfy relevant test unless convention reason reason constitute least essential significant motivation persecution feared 91r 1 act 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 based 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 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 protection visa application delegate decision record tribunal also regard material referred delegate decision material available range source applicant husband wife gave oral evidence tribunal first named applicant made specific claim refugee convention convenience therefore tribunal refer first named applicant applicant applicant said born sri lanka speaks read writes english ethnically sri lankan christian married sri lanka work professional occupation sri lankan citizen lived sri lanka coming australia sri lankan passport issued colombo passport expired applicant obtained current passport late 1990s applicant travelled australia country early 2000s work related purpose lived country b several year early 1990s applicant received secondary tertiary education sri lanka worked professional position self employed many year prior current position left sri lanka legally difficulty obtaining passport returned sri lanka several time late 1990s early 2000s since coming australia reason went back tried settle returned full knowledge sri lankan authority entered sri lanka legally supporting statement applicant said converted buddhism christianity early 1990s avoided buddhist family friend became devoted worshipper jesus christ chief member buddhist temple resigned position ceased giving donation attending meeting early 1990s applicant received anonymous letter threatening talk jesus christianity anyone ignored increased help poor christian church minister threat became worse month later window house broken valuable taken applicant wife called police nothing recovered following month group people came house threatened applicant wife saying applicant continued activity would kill wife kidnap child applicant pastor advised move different suburb colombo applicant followed advice staying couple month friend problem began child taken school applicant close business leave country following year able go country b worked went country applied visa australia despite hardship experienced country continued work visa application australia accepted go sri lanka get visa sri lanka applicant although knew needed discreet actively participated worship church one day enemy started throwing stone church compound broke meeting injured people could get applicant family many people went police including pastor investigation done applicant assumed government sri lanka including police protecting christian buddhist country applicant left church spent two month hiding two month later applicant came place expecting leave australia next day group people appeared including applicant relative threatened knife tore ticket warned applicant told police would kill child kidnap wife left applicant wife fainted child screaming applicant friend gone pick ticket possession applicant passport well entered building said abducted travel agent relative buddhist fortunately able hide passport forced hand ticket next morning applicant family evacuated hiding delivery van offered accommodation christian group schooling child money food life limited boundary garden applicant stayed praying christian came see time time early next year told leave house immediately found hiding place night saw light car turning front garden ran family hid jungle left saw figure walking around house applicant family hid four hour applicant son bleeding creeping barbed wire fence one group took treatment applicant left house another house christian family sold belonging pay rent applicant house applicant ticket applicant left wife child came australia next month participated healing meeting shared testimony persecuted elderly lady christian gave money air ticket wife child support review application applicant provided letter reverend met applicant town x church 1990s buddhist threw stone roof church applicant told author persecuted buddhist since converting leave sri lanka go another country author helped protect applicant police investigation incident took place author wife others witnessed tearing ticket airport hotel heartbreaking incident one left hotel without tear drop cheek author also witnessed agonised reaction applicant ticket torn applicant went hide christian group author visited regularly christian provided applicant money ticket moved family another house left author visited applicant wife child time left month later applicant visited sri lanka time late 1990s early 2000s buddhist rebellious people phrase also used applicant statement broke church premise disturbed crusade reported police took action impossible applicant settle sri lanka convert early 2000s applicant visiting buddhist people broke author house abused daughter wounded two believer unsuccessfully looking applicant police took author daughter hospital applicant left next day christian persecuted general sri lanka church burned christian threatened pastor abused family wounded incident reported high government official could nothing reactionary buddhism applicant provided statutory declaration support review application noted applied work visa arriving australia pursued several review application well seeking minister intervention making protection visa application visited sri lanka late 1990s see friend applicant valuable applicant wanted sell contact anyone else year mother law died neither wife went sri lanka wife informed dangerous go following year applicant went several day went thought family might choice settle back sri lanka despite concern safety visa refused applicant participated town x church due priest phoned warned come group buddhist broken door entered threatened congregation damaged furniture threatened priest wanted know applicant wanted get applicant left sri lanka immediately following year invited participate church country although friend sri lanka advised went sri lanka well wanted see safe family return buddhist went applicant church looking applicant abused pastor daughter injured believer applicant hiding another house left australia next day following month buddhist burned christian church tortured pastor matter investigated police review application covered letter applicant adviser summarising applicant claim arguing country information cited delegate contradict supported applicant claim persecuted hand buddhist group applicant protected police reported experience although country information state police occasion take action avert religious persecution many incident religiously motivated persecution continue occur often go unreported police fail take action based history incident attack christian cited delegate decision applicant fear persecution well founded applicant converted consequently rejected family buddhist community regarding applicant return visit sri lanka australia applicant supplied new claim evidence tribunal received submission applicant adviser summarised claim argued fear well founded within convention citing legal authority submission cite international christian concern march 2003 reporting incident mob attack christian christian service sri lanka buddhist one case hindu extremist publication reported hindu cultural affair minister put anti conversion bill sri lanka parliament cite world evangelical fellowship religious liberty e mail conference may 2001 titled religious violence sri lanka reporting incident violence one particular town assistant superintendent police called local pastor advised leave area order avoid confrontation attack police would able protect cite report world evangelical alliance dated 25 march 2002 follows independent evangelical church often targeted rural area sri lanka buddhist monk incite local people harass attack small protestant fellowship feel threaten undermine cultural religious unity sri lanka buddhist nation easl say attack christian escalating recent month sri lankan society preservation buddhism become aggressive effort ferret protestant christianity countryside according easl aim establish chapter buddhist society every district monitor growth christianity prevent conversion also aim close church already established traditional buddhist village situation quite serious small number radical monk follower damaged destroyed numerous church several pastor church member murdered recent year report indicates local police often sympathetic plight church emboldens anti christian agitator mob submission cite christian news service called worthy news updating progress anti conversion legislation bill drafted modelled one tamil nadu outlawing conversion force allurement offering material incentive yet introduced submission cite article christianity today february 2001 incident discussed country information cited article cite evangelist leader accusing police inaction incident leader national christian council also said police notice attack act stop adviser reiterates light experience country information applicant fear persecution well founded within convention various article cited submission annexed submission complete article christianity today indicates newly formed political party sinhala heritage suspected february 2001 attack local police official quoted apparently trying put mob attack dispute noise disease rather religious extremism catholic bishop conference dismissed sinhala heritage party concern rejected last election winning one seat 225 member parliament deputy foreign minister publicly criticised movement sowing seed religious conflict report world evangelical alliance addition summary quoted narrates number incident attack church one case police arrested court refused bail two mob leader connection sustained violent attack particular church another incident police prosecuted attacker pastor attacked breach peace translation article sri lankan newspaper dated august 2001 catholic buddhist protest ganemulla reaction death 18 year old woman sought cure illness attending house church service healing power claimed police intervened mass protest another newspaper article dated march 2001 also translated concern peace walk demonstration buddhist leader including acting chief minister north western province another article concern violent attack hinguarakgoda early 2001 police refused entertain earlier complaint church threat attack three people prosecuted police officer refused record complaint interdicted submission letter member religious group writing sri lanka attests applicant stayed ticket tearing incident recount incident applicant hiding garden house incident took place country informationthe united state state department international religious freedom report 2002 released bureau democracy human right labor october 7 2002 includes following chapter sri lanka constitution accord buddhism foremost place recognized state religion constitution also provides right member faith practice religion freely government generally respect right practice despite generally amicable relation among person different faith occasional resistance buddhist christian church activity particular activity evangelical christian denomination court generally upheld right evangelical christian group worship construct facility house congregation government limit number foreign religious worker granted temporary residence permit country total area 25 322 square mile population approximately 18 5 million buddhism hinduism islam christianity practiced country approximately 70 percent population buddhist 15 percent hindu 8 percent muslim 7 percent christian christian tend concentrated west much north almost exclusively hindu muslim although present many area make particularly high percentage population east part country mixture religion buddhism overwhelmingly present south member majority sinhalese community theravada buddhist almost muslim sunni small minority shi including member borah community roman catholic account almost 90 percent christian anglican mainstream protestant church also present city seventh day adventist jehovah witness assembly god present well evangelical christian group increased membership recent year although overall number member group still small ministry buddha sasana religious affair within ministry department hindu religious cultural affair department muslim cultural religious affair deal primarily cultural issue maintenance historical site ministry muslim affair also deal issue involving muslim community senior assistant secretary ministry buddha sasana religious affair monitor government relation christian denomination resisted greater government involvement affair instead registered individually act parliament corporation domestic law christian denomination must fill submit form order recognized corporation give legal standing treated corporate entity financial real estate transaction tax exemption religious organization however church temple allowed register charitable organization therefore entitled tax relief religion mandatory subject school curriculum parent child may choose whether child study buddhism islam hinduism christianity student minority religion islam hinduism christianity must pursue religious instruction outside public school system separate syllabus provided religion smaller following sri lanka religion taught school academic point view despite constitutional preference buddhism major religious festival faith celebrated national holiday government established council interfaith understanding december 2001 parliamentary election buddhist monk elected parliament member opposition people alliance party first time member clergy ever elected parliament public debate appropriateness member clergy participating political process monk allowed take position active member parliament evangelical christian constitute le 1 percent population expressed concern effort proselytizing often met hostility harassment local buddhist clergy others opposed work sometimes complain government tacitly condones harassment evidence support claim christian organization claim continue face opposition local level rural area state legal action threat legal action generally resulted allowed continue activity report religious prisoner detainee report forced religious conversion discrimination based religious difference much le common discrimination based ethnic group affiliation general member various faith tend tolerant religious belief occasion evangelical christian anyone perceived attempting convert buddhist christianity harassed buddhist monk christian organization complain government tacitly condones harassment although evidence support claim see section credible report rural area member christian organization physically assaulted alleged attempt convert buddhist one instance april buddhist monk reported assaulted two member salvation army claiming attempting convert person meeting salvation army member shaken incident seriously injured rural area small christian organization stated report case harassment order avoid additional attention area religious leader found peaceful coexistence maintained long leader religious community maintain dialog report member various religious group give preference hiring private sector member group denomination practice likely linked country ongoing ethnic problem appear based principally religion indication preference employment public sector basis religion 2000 report released september 5 2000 included following detail assembly god filed fundamental right case supreme court 1997 local village council gampaha tried block construction church ground would interfere buddhism church reached agreement local council supreme court heard case building project allowed proceed denomination complains continues face opposition local level many place state legal action threat legal action generally resulted church allowed construct facility congregation conduct worship service april 2 1999 two bomb planted assembly god prayer hall construction mainly buddhist town tissamaharama south one bomb exploded night causing small amount structural damage building bomb found morning april 3 defused one injured incident according widow lionel jayasinghe founder congregation killed march 25 1988 ambition convert buddhist christianity met violent opposition neighbor death investigated authority arrest made connection killing jayasinghe widow lead congregation founded husband december 1997 mob led buddhist cleric attacked assembly god church matara damaging severely process mob also reportedly assaulted several member congregation police stationed area due size crowd intervened help congregation leave area police also investigated incident one charged however relation assembly god buddhist community matara since returned normal cisnet reference cx49983 dated 16 february 2001 following report church bombed sri lankaby alex buchanlondon compass newly built roman catholic church hulandawa southern sri lanka damaged eight explosion morning january 22 two arrest far made sri lankan police also guarding building third church built town previous two destroyed unknown assailant roman catholic constitute 10 percent sri lanka 19 million population evangelicals represent barely 0 5 percent growth latter cause resentment among buddhist hierarchy particularly evangelistic method aggressive village 100 percent buddhist targeted pentecostal mission central sri lanka buddhist monk led protest january 27 stop pentecostal christian building church kekirawa protestors said pentecostal attempting convert buddhist illegal mean although pentecostal pastor dismiss charge saying never give inducement monk would rather conversion outlawed pentecostalism growing expense buddhist majority buddhist monk reportedly went catholic church kekirawa asked parish priest planned church catholic one learning priest nun invited join protest evangelicals stormy time sri lanka recent year thirty four church destroyed partially razed expect get worse said pastor fastest growing denomination assembly god growing 20 percent year another pastor based colombo told compass group aggressive course buddhist backlash primarily religious monopoly sinhalese people challenged sinhalese dominant ethnic group comprising nearly 12 million almost exclusively buddhist group regard buddhism national religion compass directcx50216 ci source http asia cnn com 2001 world asiapcf south 02 20 srilanka protect church accessed 23 february 2001 following report sri lanka protects church attackfebruary 20 2001web posted 5 48 pm hkt 0948 gmt colombo sri lanka president chandrika kumaratunga ordered inquiry mob attack protestant church service police sent protect carrying club sword mob attacked christian center church sunday wounding 30 worshipper damaging building three victim taken hospital godfrey yogarajah national christian evangelical alliance said police taken three people custody special police team sent church make sure new attack several dozen people attending service church nuwarawatte village 200 kilometer 125 mile northeast capital colombo attack happened religious violence christian come major ethnic group country sinhalese tamil despite 17 year fighting sri lankan force tamil rebel separatist north east serious attack church fairly unusual buddhist political group showing displeasure church countryside christian far outnumber sinhalese buddhist state run daily news quoted christian center church pastor allan fraser saying member also threatened previous sunday gang threatened worshipper demanded stop religious prayer devotional meeting fraser said said refusal comply could cause bodily harm hearingthe applicant said born colombo raised vicinity colombo went university first year course went business converted christianity early 1990s result healed medical condition particular pastor became close pastor applicant prominent buddhist community converting refused participate buddhist festival temple committee member came see wanting know refused applicant told converted resigned position wife received threatening letter anonymous call applicant work two buddhist monk came threatening child asking applicant occasion went police station complained house broken wife child servant boy went home 11 pm prayer meeting applicant stayed talk pastor found house broken many belonging stolen went police would go house due lack constable said waited car hour went fetch applicant church police came next day applicant said converted many people temple also employee contractor many converted knew reason house broken knew threatening letter november group people came absence steel bar knife club everyone else home group included two buddhist monk smashed garden threatened kill wife kidnap child went pastor applicant came church pastor advised stay house next day believer collected belonging applicant called mother overseas came back took possession house belonged applicant went stay believer town 40 minute away took child school later e buddhist found came threw stone house broke burned nearby church night applicant returned pastor house night next morning pastor sent applicant family pastor sister house week moved pastor advised leave country sent country b went early 1990s year later visa country b due expire could go back sri lanka went country school child alright otherwise tribunal asked school child applicant said could enrol situation uncertain month applicant met american lady told conversion persecution said would sponsor go australia contact australia applicant said praying answer question future jesus appeared dream saying applicant would go country meet woman would go australia met american lady explained vision contact american woman sponsored year mid 1990s left country went back sri lanka applicant invited attend particular church met two people converted e born result intervention met reverend invited attend church later date mob broke church people injured tribunal pointed applicant personally would known country year attack directed applicant said visit made known assumed broke church people went police action taken applicant remained laid low got visa went place preparation leave sri lanka called reception message visitor see went relative group people applicant recognised one person relative tore plane ticket relative member district buddhist association applicant converted relative changed name applicant assistant told applicant went travel agency collect applicant ticket saw group people talking manager thought friend group abducted took ticket applicant injured group knife pointed stomach pushed wall injuring head wife became unconscious tribunal asked applicant relative applicant said want u live witness another country tribunal observed could preferable applicant relative applicant witnessed another country sri lanka e would converting sri lankan buddhist applicant said relative really angry tribunal asked applicant contact airline new ticket reissued depart sri lanka planned applicant said contacted airline two day later said money ticket tribunal asked money ticket applicant said assumed relative money tribunal said make much sense applicant said could go police went stayed christian suburb outskirt city later car came never seen car come house went hid jungle four hour applicant son bleeding people got car went asked applicant left christian person took applicant son hospital applicant know people buddhist tribunal observed majority population buddhist applicant said normally buddhist would come place applicant moved place near beach next month came australia tribunal asked applicant came applicant said enough money ticket family tribunal asked whether would better family stick together applicant said family member pressed go supported invited attend church participated time three four church started worship one church detail deleted accordance s431 act may identify applicant applicant said late 1990s wife got call saying mother died family advised go sri lanka funeral e safe year applicant go back sri lanka sell equipment could distance people minding equipment would release anyone unless went following year went see could safely settle back sri lanka week invited attend town x reverend church due go reverend called told come mob come asking people injured police came took action applicant explained reason invited attend reason deleted s431 early 2000s applicant city attending reason previously stayed reverend lot people came church attacked people began screaming pastor wife hid applicant kitchen noise went 15 20 minute pastor daughter badly assaulted others rushed hospital police jeep mob applicant taken away taxi left sri lanka next day pastor identified attacker believed infiltrated meeting wearing civilian clothes buddhist monk applicant said also made enquiry late 1990s whether safe go sri lanka travelling region time advised go tribunal asked applicant apply protection visa sooner experienced feared persecution sri lanka applicant said church sponsoring work visa said need apply protection visa first year valid visa anyway applicant said given ticket money family member family man assisted applicant applicant said went back sri lanka trip thought would choice go back eventually application work visa successful applicant said really know go police ticket torn thought probably fear sri lanka buddhist country non buddhist higher rank police tribunal asked applicant mention incident occurred return visit sri lanka initial protection visa application applicant said thought written enough tribunal noted incident applicant claimed occurred early 2000s included list incident reported international christian concern provided applicant adviser applicant said incident reported news medium tribunal stressed international christian concern christian publication applicant said police take complaint christian local minister either buddhism political power president concern superficial tribunal put applicant extract state department report cited stated inference could drawn even reported incident country information provided adviser perception sri lankan authority condone attack evangelical christian born reality police attend event people arrested applicant said people would arrested sake appearance would released straight away applicant referred case murder minister converted buddhist monk applicant met spoken person applicant noted christian evangelism always spoken badly sri lankan medium also mass protest christian evangelism applicant referred incident police superintendent said police could protect christian applicant said also heard minister sri lanka request register independent congregation e affiliated example assembly god apostolic revival church rejected pentecostal e worshipped registered church sri lanka would certainly participate return sri lanka know would try adviser said applicant conversion activity highly contentious sri lanka even tribunal found individually targeted still risk applicant response another question tribunal said assumed relative somehow obtained refund plane ticket said unable realise business asset leaving sri lanka lack personal safety applicant said early 1990s heard australian preacher said seen applicant prophecy one called serve e australia knew lot applicant life finding reasonsbased information file tribunal find applicant sri lankan national tribunal accepts applicant christian converted buddhism although educated christian primary secondary school tribunal accepts applicant buddhist family community reacted hostility event family threatened tribunal prepared accept applicant religious role claimed although evidence title notwithstanding letter people sri lanka quite scant tribunal note applicant left sri lanka work soon converting really lived since letter church authority stating position tribunal accepts applicant role converting others christianity find exaggerated extent limited time sri lanka converting implausible hundred people contact could converted christianity due intervention tribunal accept break applicant house theft belonging due religion evidence unsatisfactory tribunal note police attend crime scene even next day position conclude delay caused anything stated reason lack resource tribunal note applicant apart brief period mid 1990s lived outside sri lanka since early 1990s would low religious profile role converting others would forgotten least would remembered much passion tribunal accept incident town x church took place would prepared accept mid 1990s incident occurred directed crusading activity church applicant individually given country long time would known however applicant proceeded claim two incident occurred associated visit sri lanka tribunal found implausible applicant would attracted hostility sri lanka number year would much following hardly would remembered sri lankan church barely active australia even join church worshipper late 1990s arguable developed claimed reputation australia hand information provided would independently e apart applicant connection explain attack town x church example surely conducting crusading activity applicant ever attacked applicant sri lanka applicant unable provide plausible context claimed incident furthermore incident supposedly occurred first arrival australia mentioned protection visa application provide persuasive explanation reverend undermined credibility echoing applicant claim adding credible background particular church experience buddhist community church mentioned country information supplied applicant adviser tribunal accept claimed ticket tearing incident took place notwithstanding emotional language used letter reverend christian person inexplicable applicant seeing ticket torn front eye would called airline asked reissued applicant could provide persuasive reason explain clearly reason might assume airline would reissue ticket someone wanted stop travelling would happen way ticket issued payment stopped stolen ticket must torn furthermore ticket taken directly travel agent applicant friend must abducted already ticket could stolen torn even melodramatic event could happen happen applicant applicant found two day later said airline paid ticket contacted airline indicating believed still entitlement travel would contacted straight away follows tribunal accept applicant hiding period sri lanka returning country coming australia accept left sri lanka fearing harm people specifically targeting finding reinforced applicant preparedness travel advance wife child even though according claim wife bore brunt threat early 1990s taken child school safety finding also reinforced fact applicant apply protection visa arriving australia several year fully explained fact immigration process train finding also reinforced fact applicant returned sri lanka several time reason particularly strong weighed claimed fear county information indicates buddhist sinhala nationalism strong factor sri lankan politics christian evangelising unpopular sri lanka sometimes lead harassment violence christian evangelist often place worship applicant unable provide clear information plan taking christian witnessing sri lanka said must fact specific plan lead tribunal find applicant low religious profile sri lanka saw future religious worker would least thought context might take role chance applicant harmed therefore remote even real chance applicant seriously harmed tribunal careful reflection satisfied christian evangelist seek protection sri lankan authority sri lankan state neither agent persecution applicant claim fear condone persecution attack christian uncontrollable authority evidence lead conclusion evangelist propagate perception persecuted sri lanka lead time conclusion sri lankan police intervene make arrest people prosecuted attack christian court also vigilant superior authority act ensure justice done police display insufficient interest even sri lankan parliament legislate opposition certain type conversion activity mean authority enforce law act violence evangelist fact police prosecuted anyone particular case may judgement call due lack evidence without information mean condone unable control violence tribunal satisfied applicant well founded fear persecution within meaning convention conclusionhaving considered evidence whole tribunal satisfied first named applicant person australia protection obligation refugee convention amended refugee protocol therefore first named applicant satisfy criterion set 36 2 act protection visa specific convention claim made behalf applicant wife child claim dealt basis tribunal satisfied refugee fate application therefore depends outcome first named applicant application tribunal found first named applicant satisfy criterion protection visa follows applicant wife child cannot granted protection visa decisionthe tribunal affirms decision grant protection visa genevieve hamiltonmember constituting tribunal7 may 2003

Mirvac Victoria Pty Ltd v Boroondara CC [2004] VCAT 2335 (23 November 2004).txt

mirvac victoria pty ltd v boroondara cc 2004 vcat 2335 23 november 2004 last updated 9 december 2004victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1967 2004permit application pp04 00359catchwordsboroondara planning scheme application pursuant section 77planning environment act 1987 residential 1 zone neighbourhood character height scale bulk overshadowing landscaping traffic car parkingapplicantmirvac victoria pty ltdresponsible authorityboroondara city councilrespondentspirbou pty ltd steve hodgkinson bridget king geoffrey sneath otherssubject land31 37 wattle road hawthornwhere heldmelbournebeforejohn bennett presiding memberhoward terrill memberhearing typemerits review hearingdate hearing3 4 november 2004date order23 november 2004citation 2004 vcat 2335orderthe decision responsible authority relation permit application pp04 00359 affirmed pursuant provision ofsections 85 1 theplanning environment act 1987 directed permit must granted john bennettpresiding memberhoward terrillmemberappearances applicant review mr chris canavan qc m sally macindoe deacon called mr barry murphy landscape architect mdg landscape architect pty ltd mr mark dwyer architect h2o architect mr andrew biasci town planner contour consultant pty ltd stephen hunt traffic engineer grogan richards consulting engineer responsible authority mr john rantino solicitor maddocks lawyer called m roz hansen town planner hansen partnership pty ltd respondent mr dominic scally solicitor best hooper solicitor pirbou pty ltd called m colleen peterson town planner ratio planning development consultant m bridget king mr geoffrey sneath dr steve hodgkinson mr andrew bucklereasonsbackground1this application review decision boroondara city council refuse grant permit application pp04 00359 construction 52 dwelling within four storey building basement parking 114 car land 31 37 wattle road hawthorn six ground refusal based around excessive scale bulk height failure respond prevailing design layout massing nearby development insufficient setback unsatisfactory visitor car parking unreasonable overlooking overshadowing adjoining property east 2the site adjoining property east neighbourhood inspected tribunal morning following hearing submission plan photo document submitted hearing retained tribunal file 3mr rantino outlined location context proposal application history key issue identified internal consultation planning policy called m roz hansen give town planning evidence 4mr scally made submission behalf pirbou pty ltd called m colleen peterson give town planning evidence local resident m king mr sneath dr hodgkinson mr buckle made individual submission matter concern including overshadowing traffic car parking inappropriate visual height bulk scale built form 5mr canavan qc m macindoe made submission supporting proposal called evidence relation architecture landscape architecture town planning traffic give reason proposal supported site proposal6the review site located northern side wattle road east power street site area 6 202m2and occupied large brick 2 3 storey disused aged care facility occupying around 60 site area driveway run along western boundary serve large car park rear also semi circular driveway providing access main front entrance wattle road relatively narrow road linking power street west glenferrie road east street largely residential except disused aged car facility review site large broadmead aged care facility adjoining west glenferrie primary school access way catholic school near eastern end street site fall east west around 3 5 metre north south around 3 metre along western boundary mature native tree exist across front site one large tree tree 7 retained part redevelopment mature tree along northern eastern boundary also retained incorporated new landscaping work 7the proposal involves complete demolition existing building replacement three four storey building containing 52 dwelling basement car park 114 vehicle height building ground level varies 11 metre eastern end 13 8 metre western end 16 metre lift overrun setback staggered front setback ground level level 1 vary 9 01 12 46 metre level 2 3 vary 9 36 12 46 metre level 4 setback 18 1 metre side setback also vary closest point level 1 2 3 3 96 metre east boundary 3 76 metre level 1 4 43 metre level 2 3 western boundary level 4 well recessed eastern western boundary rear setback range 6 7 metre level 1 2 3 9 37 level 4 side balcony protrude within setback area access car park via driveway located close south western corner site main entrance dwelling located immediately east access driveway provides access four front ground floor dwelling provided access point wattle road together alternative access internal corridor dwelling two three bedroom dwelling allocated either 1 2 car space depending number bedroom 10 visitor car space available within basement car park location nearest access point dwelling provided balcony ground level open space addition two large communal open space area one eastern side area around 600m2while one western side area around 800m2 basis decisionplanning policy8we note council party question locational advantage site agreed form medium density housing appropriate site also agree policy framework lend support intensification development large well serviced site good proximity full range urban service including tram train route school shop parkland like although within close activity centre compared many outer suburban site reviewed tribunal site conveniently located sustain intensity development supportable remote smaller site 9there considerable debate questioning regarding importance site redevelopment regard tomelbourne 2030and policy framework site may may fully meet three criterion listed policy 1 3 additional strategic redevelopment site page 57 ofmelbourne 2030 consider whether site specifically earmarked strategic redevelopment site major redevelopment site miss point large site single ownership fully serviced close proximity wide range service subject ensuring proposal responds appropriately site context neighbourhood character matter discus next site developed maximum capacity planning policy requires land developed efficiently melbourne 2030 page 30 list key direction forum compact citythat must take full advantage existing settlement pattern current investment transport communication water sewerage social facility reason efficiency meet changing need population 10this desire take full advantage settlement pattern current investment relation review site different large land parcel similar locational characteristic whether earmarked strategic redevelopment site policy also suggests page 30 ofmelbourne 2030 development required respond landscape valued built form cultural context 11elsewhere planning scheme requires new development regard site context site responsive development also respect neighbourhood character clause 19 03 2 example objective undercontext development must take account natural cultural strategic context location 12local policy 22 07 objective encourage design solution enhance respond positively creatively existing neighbourhood character residential area city 13we therefore convinced site suitable intensive form medium density development turn matter proposal responds site context neighbourhood character site context neighbourhood character14in relation site context neighbourhood character wattle road comprises dwelling uniformly single two storey exception aged care facility west primary school eastern end wattle road uniformly residential nature although covered overlay wattle road includes many substantial period dwelling covered individual heritage overlay add residential character street many property facing power street riversdale road south redeveloped 25 year ago taller flat development hence somewhat different character hinterland bounded major arterial road burwood road glenferrie road riversdale road power street wider main road high traffic volume tram differentiates character main road residential property located suburban scale street wattle road wattle grove new street burton avenue power street riversdale road main road agree m peterson proposal respectthe character locale finer grain development within wattle road 15favourable reference made mirvac development currently construction former chaucer reception centre site canterbury road canterbury consideration proposal tribunal reason approving development interest reinforces notion every site every proposal uniquely different apart different site neighbourhood characteristic located close canterbury railway station shopping centre adjacent parkland also frontage main road effect transitional site main road activity centre residential area south west unlike review site positioned within lower scale residential hinterland accessed via relatively narrow quiet residential side street distance nearest activity centre site locational characteristic site context may well come similar decision 16the immediate context within 100 metre exception broadmead reflective dominant residential character although broadmead clearly institutional building recessive circular design large setback largely two storey form extensive landscaping mean dominate streetscape inspection confirmed individual residence located quite close road within landscaped garden instead dominate streetscape establish predominant neighbourhood character medium density development review site need better respond character reducing height scale bulk front building design height scale bulk17we convinced large long bulky four storey building across front site responds well specific site context neighbourhood character little regard appears context neighbourhood character designing building may mr dwyer suggests quality contemporary design fit site advised building designed appear five module module distinguished articulation across façade varying front wall setback 9 01 metre 12 465 metre utilising different building material vertical brick pillar adopting different shape size material balcony consider façade 60 metre long inappropriate design response modulated much greater extent greater setback east west boundary lower height western end m hansen suggestedthat frontage creates opportunity 2 preferably 3 separate building module along frontage may internally linked connected back core site mr biasci hand suggested thatthe elevational treatment building broken reflect rhythm dwelling evident street found opposite elevation wattle road articulated reduce perceived continuous bulk built form end building designed distinguish corner provide transition neighbouring building treatment front façade building establishes datum line level 2 serf reinforce predominant 2 storey element wattle road streetscape 18we favour assessment made m hansen consider front building four module physically separated much deeper recess module m hansen suggested 2 3 module consider 4 perhaps 3 module would acceptable deep recess module would create impression four separate building view would better reflect lot rhythm street referred planning witness architect suggested four module consider appearance front building would also greatly improved allowing side boundary setback increased around 6 7 metre side also consider module could stepped hill module 3 would lower module 1 2 module 4 would lower module 3 adopting change front building would eliminate concern current proposal would result building far site responsive one better respected neighbourhood character landscaping19the landscaping proposal incorporating two large courtyard east west side together retention mature tree particularly native tree front site fully supported consider existing proposed planting together paving fencing landscaping create high level outdoor amenity future resident agree mr murphy itprovides high quality landscape within development enjoyment resident occupy interface neighbouring property generally well managed landscape term although discussed consider need increased eastern western boundary setback front building provide opportunity enhanced landscaping location 20we concerned inability screen filter view prominent part building south west corner site location exposed driveway highest point along front façade serf accentuate height section building height cannot screened filtered landscaping impossible provide landscaping directly front driveway lowering height building increasing opportunity taller vegetation planted larger western side setback help ameliorate visual impact bulk scale building viewed oblique angle wattle road site amenity impacts21we satisfied sufficient attention given impact property east matter specifically raised mr buckle took opportunity site visit inspect rear garden area residence ass potential impact outdoor area specifically concerned overshadowing impact tall building 3 96 metre boundary impact enjoyment secluded courtyard property east dwelling sole open space directly opposite eastern wall proposed building access living area orientation courtyard amenity created later day overshadowing north west west severely diminish amenity enjoyment area shortcoming identified term front building reinforced impact property east building setback east boundary would create amenity problem car parking traffic22in relation car parking accept evidence mr hunt satisfied amount parking provided layout basement car park including visitor parking share resident concern regard suggestion visitor parking within front section basement car park quite common work well case whether visitor space inside outside security gate although preference would uncontrolled access least majority day early evening unlike existing older property along wattle road new development review site fully self contained term provision site parking course unusual event party like insufficient parking exists site site parking designed cater normal day day event one exception outcome different occurs normal suburban setting single house people occasionally event result street full car quite reasonable acceptable undoubtedly already occurs wattle road 23in relation vehicular access agree resident narrowness wattle road mean car parked one side street necessary vehicle wait coming vehicle pas visited school start time required pull allow vehicle travelling opposite direction pas proceeded mr hunt estimate development 52 apartment generate 364 vehicle movement per day morning evening peak hour generating 36 movement mr hunt gave evidence wattle road currently experience 1000 1100 vehicle movement per day projected increase 364 movement proposed development considerable increase around 34 current level however mr hunt stated clause 56 planning scheme indicates residential street typically carry 1000 2000 vehicle movement per day even width 6 metre wattle road still well within design capacity despite significant increase traffic still well 2000 vehicle per day desirable maximum residential street 24we also considered possible adverse impact vehicle light shining pirbou property located south side wattle road convinced shining light problem given exiting vehicle positioned eastern side drive approach footpath light spill wattle grove conclusion25having regard material presented u satisfied design responds appropriately specific site context primarily concern relate large building across front site consider bulky high western end inadequately setoff side boundary particularly eastern end lacking sufficient modulation separation element viewed street 26a redesign front building overcome shortcoming would still allow considerable intensification use le discordant neighbourhood site context would result site impact term overshadowing visual bulk scale decision27accordingly tribunal order decision responsible authority affirmed permit issue john bennettpresiding memberhoward terrillmember

Mr Christopher Grindal v CGA Accounting Pty Ltd T_A CGA Accounting [2021] FWC 1002 (24 February 2021).txt

mr christopher grindal v cga accounting pty ltd cga accounting 2021 fwc 1002 24 february 2021 last updated 25 february 2021 2021 fwc 1002fair work commissiondecisionfair work act 2009s 394 application unfair dismissal remedymr christopher grindalvcga accounting pty ltd cga accounting u2020 5292 commissioner huntbrisbane 24 february 2021application unfair dismissal remedy whether applicant employee independent contractor whether applicant met high income threshold whether employed fixed term basis ended due effluxion time applicant independent contractor application dismissed 1 21 april 2020 mr christopher grindal made application unfair dismissal remedy cga accounting pty ltd cga accounting cga respondent nature mr grindal engagement disputed commenced performing work respondent 15 january 2019 period work ended 2 april 2020 mr grindal stated engaged employment package 165 000 plus 33 000 bonus 2 22 may 2020 respondent filed form f3 employer response form f4 outline jurisdictional objection response application respondent objected application following ground mr grindal employee respondent alternative earned high income threshold alternative employed fixed term basis commencing 14 january 2019 terminating 20 january 2020 ended due effluxion time 3 matter proceeded conciliation 2 june 2020 resolve mr grindal directed file submission response jurisdictional objection employee respondent dismissed earned high income threshold time alleged dismissed filed response 29 june 2020 4 matter allocated consideration issued direction filing material respondent support jurisdictional objection material mr grindal response matter set telephone hearing jurisdictional objection 11 august 2020 5 course matter mr grindal applied order production certain document attendance m jennifer dobbie formerly operation manager accounting respondent granted order m dobbie attend telephone hearing give evidence 6 upon reviewing mr grindal filed material directed mr grindal file serve copy personal income tax assessment 2018 2019 financial year together company financial record bluebird chest pty ltd atf janus trust since inception mr grindal prior telephone hearing 7 hearing mr grindal represented mr troy spence counsel granted permission represent respondent instructed mr john herbert morgan conley solicitor mr grindal gave evidence behalf mr alistair bell director respondent gave evidence respondent m dobbie also gave evidence relevant law 8 section 382of thefair work act 2009 act provides person protected unfair dismissal includes following 382 person protected unfair dismissala person protected unfair dismissal time time person employee completed period employment employer least minimum employment period b one following apply modern award cover person ii enterprise agreement applies person relation employment iii sum person annual rate earnings amount worked relation person accordance regulation le high income threshold 9 section 380provides purpose ofpart 3 2of act dealing unfair dismissal employee mean national system employee term defined bys 13to mean individual employed national system employer meaning term elaborated in 14of act independent contractor principle 10 considering application must first determine whether mr grindal employee respondent noted mr grindal contends employee respondent contends independent contractor providing service respondent 11 single test determine whether relationship one employment injoshua kooger v foodora australia pty ltd 1 cambridge c considered summarised relevant legal principal established long line commission decision 64 correct approach determination whether person engaged employee contractor involves issue fact law particular factual circumstance relationship examination need subjected legal principle established relevant proper characterisation provided relationship multifactorial test overall objective 65 case counsel respective party concurred identified distillation relevant legal principle developed considerable body case law commencing general term high court judgement case ofstevens v brodribb sawmilling co pty ltd 2 brodribb including inter alia hollis v vabu 3 vabu respect decision commission relevantly noting abdalla v viewdaze 4 abdalla andcai french accent v rozario 5 frenchaccent 66 broad term relevant legal principle described adoption multifactorial approach involving consideration various factor including number identified indicia single factor decisive overriding requirement examination totality relationship party ultimately provide sound basis upon determine whether relationship one employment independent contractor fundamental determination frequently described application integration test may identified following extract vabu judgement quote judgement windeyer j marshall v whittaker building supply co distinction employee independent contractor rooted fundamentally difference person serf employer employer business person carry trade business 6 67 multifactorial approach described helpfully summarised full bench fair work australia paragraph 30 french accent decision consideration instance undertaken accordance structured approach set subparagraphs 1 6 paragraph 30 french accent decision unnecessary repeat full term subparagraphs 1 6 however following extract subparagraph 5 provides particularly insightful summary task must performed order properly determine question whether relationship examination one employment independent contractor 11 object exercise paint picture relationship accumulation detail overall effect appreciated standing back detailed picture painted viewing distance making informed considered qualitative appreciation whole 7 10 inpeel v aster home nursing service pty ltd 8 simpson c expanded applied indicia reference established caselaw 7 full bench decisionin kimber v western auger drilling pty ltd 9 provides factor indicia commission need consider assessing whether applicant employee independent contractor relevant period employment full bench endorsed general approach distinguishing employee independent contractor provided injiang shen cai french accent v michael anthony rozariowhich follows 1 determining whether worker employee independent contractor ultimate question whether worker servant another business whether worker carry trade business behalf whether viewed practical matter putative worker could said conducting business work question form part question concerned objective character relationship answered considering term contract totality relationship 2 nature work performed manner performed must always considered always relevant identification relevant indicia relative weight assigned various indicia may often relevant construction ambiguous term contract 3 term terminology contract always important however party cannot alter true nature relationship putting different label particular express term worker independent contractor cannot take effect according term contradicts effect term contract whole party cannot deem relationship something similarly subsequent conduct party may demonstrate relationship character contrary term contract 4 consideration given various indicia identified stevens v brodribb sawmilling co pty ltd authority relevant particular context ease reference following list indicia identified authority whether putative employer exercise right exercise control manner work performed place work hour work like control sort indicative relationship employment absence control right exercise control indicative independent contract control sort significant factor determinative particular absence control way work performed strong indicator worker independent contractor work involves high degree skill expertise hand high level control way work performed worker presented world large representative business weighs significantly favour worker employee question whether practice work fact done subject direction control exercised actual supervision whether actual supervision possible whether ultimate authority man performance work resided employer subject latter order direction b ut circumstance may even mistake treat decisive reservation control manner work performed another made clear queensland station pty ltd v federal commissioner taxation case involving droving contract dixon j observed reservation right direct superintend performance task cannot transform contract service essence independent contract whether worker performs work others genuine practical entitlement right exclusive service person engaged characteristic employment relationship hand working others genuine practical entitlement suggests independent contract whether worker separate place work advertises service world large whether worker provides maintains significant tool equipment worker investment capital equipment substantial substantial degree skill training required use operate equipment worker independent contractor absence overwhelming indication contrary whether work delegated subcontracted worker contractually entitled delegate work others without reference putative employer strong indicator worker independent contractor contract service distinct contract service personal nature contract supply service worker personally whether putative employer right suspend dismiss person engaged whether putative employer present worker world large emanation business typically arise worker required wear livery putative employer whether income tax deducted remuneration paid worker whether worker remunerated periodic wage salary reference completion task employee tend paid periodic wage salary independent contractor tend paid reference completion task obviously modern economy distinction reduced relevance whether worker provided paid holiday sick leave whether work involves profession trade distinct calling part person engaged person tend engaged independent contractor rather employee whether worker creates goodwill saleable asset course work whether worker spends significant portion remuneration business expense borne mind list indicia regarded comprehensive exhaustive weight given particular indicia vary according circumstance feature relationship particular case appear list may nevertheless relevant determination ultimate question 5 consideration indicia context nature work performed term contract point one way overwhelmingly one way yield clear result determination accordance result however consideration indicia mechanical exercise running item check list see whether present absent given situation object exercise paint picture relationship accumulation detail overall effect appreciated standing back detailed picture painted viewing distance making informed considered qualitative appreciation whole matter overall effect detail necessarily sum total individual detail detail equal weight importance given situation detail may also vary importance one situation another ultimate question remains stated 1 approached matter way relationship remains ambiguous ultimate question cannot answered satisfaction one way party remove ambiguity term declares relationship one character 6 result still uncertain determination guided matter expressive fundamental concern underlying doctrine vicarious liability including notion referred paragraph 41 42 ofhollis v vabu 8 full bench inkimberfurther provided court developed multi factorial approach single decisive criterion determine whether contractual relationship one employment one subject contract service approach requires consideration various indicia summarised french accent set also clear decision full bench federal court ace insurance limited v trifunovski 10 others one single criterion necessarily determinative matter turn upon particular circumstance case decision maker weighing relevant factor 11 9 ultimate question commission stated inabdalla v viewdaze pty ltd malta travel 12 endorsed infrench accent always whether worker servant another business whether worker carry trade business behalf whether viewed practical matter punitive sic worker could said conducting business question answered considering term contract totality relationship 11 case law provides myriad criterion ass nature relationship important address criterion mechanically predetermined weight 13 mechanical exercise running item check list see whether present absent given situation object exercise paint picture accumulation detail overall effect appreciated standing back detailed picture painted viewing distance making informed considered qualitative appreciation whole matter overall effect detail necessarily sum total individual detail detail equal weight importance given situation detail may also vary importance one situation another 12 criterion exhaustive making determination relevant feature relationship must taken account 14 borne mind list indicia regarded comprehensive exhaustive weight given particular indicia vary according circumstance feature relationship particular case appear list may nevertheless relevant determination ultimate question high income threshold 13 find mr grindal employee respondent must consider whether person protected unfair dismissal requiring consideration factor set in 382of act relevantly must consider whether mr grindal covered award enterprise agreement whether mr grindal earned le high income threshold time dismissal 14 section 333of act provides high income threshold amount prescribed worked manner prescribed regulation regulation 2 13of thefair work regulation 2009 fw regs provides 1 july 2019 figure 148 700 figure increase annually 1 july year meaning 148 700 figure mr grindal earnings must tested 15 section 332of act defines earnings read follows earnings 1 employee earnings include employee wage b amount applied dealt way employee behalf employee directs c agreed money value non monetary benefit amount benefit prescribed regulation 2 however employee earnings include following payment amount cannot determined advance b reimbursement c contribution superannuation fund extent contribution subsection 4 applies amount prescribed regulation note example payment covered paragraph commission incentive based payment bonus overtime unless overtime guaranteed 3 non monetary benefit benefit entitlement payment money employee entitled return performance work b reasonable money value agreed employee employer include benefit prescribed regulation 4 subsection applies contribution employer make superannuation fund extent one following applies employer would liable pay superannuation guarantee charge thesuperannuation guarantee charge act 1992in relation person amount contributed b employer required contribute fund employee benefit relation defined benefit interest within meaning section 291 175of theincome tax assessment act 1997 employee c employer required contribute fund employee benefit law commonwealth state territory 16 regulation 3 05explains work amount purpose assessing whether high income threshold applies relation dismissal includes reg 3 05 6 provides circumstance non monetary benefit agreed amount may included purpose unfair dismissal jurisdiction 17 reg 3 05 6 read follows person protected unfair dismissal high income threshold benefit payment money 6 person entitled receive received benefit accordance agreement person person employer b benefit entitlement payment money non monetary benefit within meaning subsection 332 3 act c fwc satisfied regard circumstance consider benefit purpose assessing whether high income threshold applies person time dismissal ii reasonable money value benefit agreed person employer iii fwc estimate real notional money value benefit real notional money value benefit estimated fwc amount subparagraph 382 b iii act respondent evidence submissionsevidence mr alistair bell 18 mr bell director respondent stated respondent operates principally accounting financial service industry mr bell qualified finance broker accountant 19 2018 mr bell director innovatus australia pty ltd atf innovatus trust innovatus respondent process acquiring innovatus time m dobbie held position operation manager respondent mr bell evidence time respondent outsourced human resource function organisation called happyhr m dobbie provided instruction happyhr 20 mr bell stated responsible recruiting mr grindal stated mr grindal engaged independent contractor mr grindal request mr bell evidence written term intended drawn reflect independent contractor arrangement 21 mr bell said contract entered reflected agreement party mr grindal engaged fixed one year period period 14 january 2019 14 january 2020 period ass suitability organisation 22 contract read employment agreement including term paid leave respondent evidence created september 2019 nine month mr grindal commenced 23 mr bell said conducted investigation circumstance creation contract investigation understood designation mr grindal employee engagement cga group service pty ltd opposed correct name respondent error occurred consequence incorrect use employment contract template purpose correct document used independent contractor agreement mr bell said believed error occurred consequence lack attention m dobbie limitation operation happyhr platform 24 mr bell said aware dealing happyhr happyhr contract executed electronically whereby worker physically sign document indicates acceptance term via webform record kept happyhr 25 annexed mr bell statement copy happyhr spreadsheet respondent worker including field recorded acceptance contract create date document entry relevant mr grindal show create date mr grindal 13 september 2019 5 46pm 26 mr bell said notwithstanding offer made engage mr grindal basis employee mr grindal maintained preference accept role managing partner basis independent contractor 27 mr bell said mr grindal indicated incorporated bluebird chest pty ltd atf janus trust bluebird service entity allow provide service contractor mr grindal wished utilise respect engagement respondent mr bell said mr grindal made request m dobbie orally reported approved mr bell mr bell said understood mr grindal sought structure arrangement allow take advantage favourable tax circumstance including contract work respondent permitted perform time time evidence offered work mr grindal permitted perform 28 mr bell provided evidence email mr grindal m dobbie discussing structuring mr grindal remuneration 18 january 2019 m dobbie wrote following email mr grindal hi christopher per previous conversation alistair relation salary let know would like structured payment detail organise processing thanksjennijennifer dobbiegroup operation manager 29 day mr grindal replied jenni structuring thought finalised currently essentially involve payment corporate trustee trust structure internal processing allocation essentially would operate service trust entity employee provide superannuation comply relevant sgc requirement agreeable arrange regular invoicing corporate entity trust required entity satisfy relevant requirement thought appreciated christopherchristopher grindalmanaging partner 30 m dobbie wrote 20 january 2019 hi christopher aligned need alistair confirm alignment ratify stakeholder meeting wednesday thanksjenjennifer dobbiegroup operation manager 31 mr grindal replied jennithankyou also assist mitigating payroll tax obligation structured carefully entity near threshold grouping considered threshold exceeded likely group 1 1m total wage superannuation christopher grindalmanaging partner 32 mr bell said approved mr grindal request subject following condition engagement bluebird would continue one year period 20 january 2019 14 january 2020 engagement bluebird would need occur respondent accordance respondent usual contract arrangement third party service provider andas mr grindal independent contractor amount paid bluebird would include amount attributable superannuation payment superannuation would become responsibility bluebird 33 mr bell said accordance arrangement accounting purpose january 2019 july 2019 bluebird issued invoice innovatus andbetween july 2019 march 2020 bluebird began issuing invoice respondent 34 annexed mr bell statement copy invoice issued bluebird innovatus respondent mr bell also provided summary payment made respondent bluebird 35 first invoice headed tax invoice invoice number inv 0001 made janus trust professional service period 15 january 2019 18 january 2019 quantity 0 80 representing four day work unit price 3 490 39 gst nominated 10 total amount invoiced 2 792 31 including amount 253 85 gst 36 invoice nominates amount paid also state due date 25 january 2019please contact u immediately issue regarding payment need assistance 37 banking detail provided payment slip nominating customer innovatus australia pty ltd atf innovatus australia trust 38 similar invoice annexed mr bell statement invoice demonstrate payment made typically amount 3 490 38 weekly including amount 317 31 gst amount multiplied 52 equal approximately 181 500 amount 165 000 plus 10 gst amount paid weekly consistent description professional service 39 mr bell said respondent intention mr grindal role would consistent type engagement duty expectation independent contractor said understood also mr grindal intention based discussion mr bell said continuation nature mr grindal previous engagement innovatus well manner previous managing partner respondent engaged 40 mr bell said mr grindal given significant autonomy fulfilment duty expected periodically report back respondent board order keep degree oversight fulfilment responsibility contract allocated mr grindal permitted work remotely expected perform work suited long task performed satisfactory standard accordance necessary timeframes 41 mr bell said mr grindal provided laptop computer mobile phone respondent respondent usual practise person access respondent internal system said order ensure respondent able keep record access internal system contact client stakeholder ensure appropriate measure place secure access respondent system 42 mr bell evidence mr grindal expected travel using motor vehicle necessary order fulfil obligation respondent degree travel necessary given mr grindal supervisory senior managerial role degree travel minimal largely performed remotely mr bell said mr grindal required travel view liaising soliciting potential client generating goodwill expected leverage goodwill referring client respondent appropriate 43 mr bell said view based task responsibility allocated mr grindal believe would ever need travel 200km per week business purpose mr bell said mr grindal position description reflected remote nature duty contemplate travel element role 44 mr bell said made enquiry staff within respondent advised entirety mr grindal tenure make single application reimbursement travel expense termination engagement 45 mr bell said became apparent throughout course mr grindal engagement performance unsatisfactory failing achieve key profitability measure respondent business mr bell said order provide mr grindal sufficient opportunity rectify concern improve performance give respondent sufficient time ass whether would appropriate renew agreement bluebird elected allow mr grindal engagement continue expiry agreement 14 january 2020 46 mr bell said period leading shortly expiry agreement held extensive talk respondent board mr grindal performance organising potential replacement role mr bell said period became apparent despite concern development covid 19 pandemic made prospect replacing mr grindal substantially difficult anticipated accordingly caused delay decision making process regarding mr grindal renewal replacement 47 mr bell said wrote mr grindal 2 april 2020 notify respondent elected renew engagement respondent copy letter termination engagement annexed mr bell statement follows contract terminationchristopher taken opportunity consider future business last week light ever changing trading environment find considering condition business reviewed contract entered cga group service ply ltd expired decided circumstance renew extend contract effect hereby provided one week notice termination contract allow seek alternate work decided pay lieu obligation attend workplace immediately require return work mobile computer charger key office swipe card company property client file accounting business within cga group including innovatus mean access office practice ignition xpm green xero xero crm system karbon email server time provided correspondence clear restraint provided contract apply client employee apply finding engaging alternate employment relation bmw x5 feel unable continue vendor finance arrangement cga consulting ply ltd return vehicle wednesday 8 april 2020 presently one payment outstanding motor vehicle need attended part departure business wish best future thank contribution cga regard alistair bell 48 evidence given hearing mr bell stated recalled conversation m dobbie relevant mr grindal engagement stated result proceeding discovered email m dobbie mr grindal 18 20 january 2019 mr grindal evidence could sent email cga email address cga email address time mr bell evidence two email address mr grindal one innovatus one cga following hearing mr bell provided metadata email sent 49 noted purported employment contract property demonstrate m dobbie drafted 16 september 2019 stated far aware contract never uploaded happyhr portal respondent submission 50 respondent submitted mr grindal formerly independent contractor engaged innovatus service entity innovatus australia business formally acquired respondent mid 2019 process acquiring innovatus late december 2018 respondent said agreed enter independent contract arrangement mr grindal commencing 14 january 2019 51 respondent submitted mr grindal insistence service performed course role would provided bluebird bluebird turn engaging mr grindal perform service 52 respondent said agreed mr grindal proposal subject condition engagement bluebird would continue one year period engagement bluebird would need occur respondent accordance respondent usual contract arrangement third party service provider amount paid bluebird would include amount attributable superannuation payment superannuation would become responsibility bluebird respondent said mr grindal agreed arrangement bluebird began issuing invoice respondent regular basis work performed relation mr grindal role respondent submitted mr grindal concedes submission bluebird responsible payment tax gst superannuation 53 order formalise arrangement respondent mr grindal respondent prepared written contract engagement fixed term engagement commencing 14 january 2019 terminating 14 january 2020 contract specified remuneration 165 000 respondent said procedural error resulted document incorrectly reflecting mr grindal employee employed cga group service pty ltd intention party 54 respondent submitted mr grindal provided contract engagement specified term condition engagement notwithstanding error nature engagement although mr grindal dispute whether contract binding party fails provide copy asserted contract agreed 21 december 2018 explanation bluebird continued issue invoice respondent period four month 55 submitted examined carefully evident throughout period mr grindal engagement engagement satisfies indicia independent contractor course engagement mr grindal high degree autonomy performing role expected meet kpis report respondent board keep organisation apprised activity mr grindal operated flexibly largely home location away respondent office 56 respondent noted whether mr grindal performed work others matter within respondent direct knowledge however mr grindal permitted entitled perform work organisation high income threshold 57 respondent submitted commission determine mr grindal employee would ineligible protection unfair dismissal basis annual earnings exceeded high income threshold 58 respondent argued evidence holding probative evidence mr grindal payment arrangement remains invoice issued bluebird respondent said notwithstanding early period time whereby mr grindal issuing invoice innovatus bluebird issued regular invoice respondent 5 july 2019 onwards invoice demonstrate service provided mr grindal bluebird paid sum 196 507 54 period 29 march 2019 30 march 2020 respondent said amount principally constituted weekly payment 3 490 38 59 respondent submitted based invoice mr grindal earnings fact calculated 196 507 54 entirety payment made mr grindal considered compelling reason advanced mr grindal b alternative weekly payment 3 490 38 made mr grindal multiplied 52 week resulting annual earnings 181 449 76 60 respondent argued calculated either method mr grindal paid well excess high income threshold fact higher practice 165 000 mr grindal claimed entitled receive 61 respondent submitted given mr grindal inflated amount paid 10 account gst removed instead paid 9 5 superannuation would still amount uplift small difference 9 5 10 62 respondent submitted basis would appropriate make reduction amount paid mr grindal full amount considered purpose respondent argued amount paid pursuant invoice include contribution superannuation fund extent contribution 332 4 act applies therefore reduction appropriate superannuation purpose 63 respondent conceded company policy regarding travel said however mr grindal calculated entitlement policy different incorrect basis 64 respondent said excess travel reimbursement available kilometre account travel excess 200km per week respondent submitted mr grindal calculated entitlement based kilometre travelled 0 200 rather 201km onwards submitted conceded reduction appropriate private portion travel credited undertaken 60km travel week 65 respondent submitted reimbursement enlivened employee travelled 200km already order calculation correct mr grindal would fact need show travelled least 260km per week 66 respondent argued mr grindal submission constituted admission 140km le week required even enliven reimbursement remained mr grindal burden prove travelled sufficient distance receive entitlement insufficient allege entitlement paid degree travel particularly circumstance entitlement claimed first time 67 respondent submitted travel policy reimbursement automatic entitlement respondent said understood mr grindal construction reimbursement interacts remuneration reimbursement considered part mr grindal base package therefore reduce value package purpose calculating earnings 68 respondent submitted construction mr grindal would therefore paid amount year mr grindal claimed 165 000 irrespective whether travelled zero 500km per week kilometre respect reimbursement due salary would reduce 0 70 replenished 0 70 form travel reimbursement respondent argued reimbursement nature paid retrospectively upon proof entitlement presented paid addition worker usual remuneration deducted remuneration 69 case even assuming mr grindal stated package 165 000 per annum correct respondent denies reason set mr grindal unable rely claimed calculation regarding travel reimbursement therefore remains high income threshold 70 closing submission respondent referred decision mckenna c inadrian read v universal store pty ltd tia universal store universal store 15 read mckenna c considered proposition work related expense use private vehicle mobile telephone work offset applicant true income relevantly mckenna c set following 25 applicant evidence indicated received car phone allowance 2009 time allowance discontinued advice respondent general manager applicant would financially better receiving gross payment higher salary making deduction work related expense tax return time applicant receive separate allowance instead received increase base wage contested applicant used vehicle mobile telephone work related purpose incurred expense thereto respect respondent general manager stephen harris confirmed applicant required part agreement use vehicle business purpose mr harris evidence also confirmed applicant required use personal mobile telephone work purpose early 2010 respondent provided mobile telephone clear much way allowance applicant formerly received mean paid applicant submitting used receive contribution also unclear higher salary applicant received 2009 instead payment allowance increase arising part general annual review higher wage came effect around april 2009 back paid around january february 2009 26 given body case private business use employer provided benefit car considered ascertaining value various applicant overall remuneration one view certain symmetry contention advanced applicant concerning work related expense using private vehicle mobile telephone offsetting effect true income respondent case issue unfair dismissal applicant overall remuneration context salary cap concerning application consideration often given private versus business money value employee employer provided car like reverse usual position arisen consideration case applicant used vehicle mobile telephone business benefit respondent applicant bore expense personally save claiming work related deduction income tax return applicant submits earnings reduced concomitantly amount work related expense amount claimed claimable ato 27 notwithstanding position advanced applicant inclined accept mr moore submission deduction work related expense claimed claimable applicant income tax return appear relevantly arise ascertaining applicant earnings purpose act even though reduce taxable income relevantly concern income employment respondent le work related deduction 332 1 act refers specifically employee wage 115 605 expense deduction applicant referred identified matter included employee earnings 332 2 respect doubt income tax deduction refund ato work related expense would considered reimbursement within meaning 332 2 b act defines meaning earnings applicant earnings wage high income threshold applicant contention accepted could differential outcome term whether high income threshold exceeded employee identical wage high income threshold example employee chose expensive personal vehicle employee b far le expensive personal vehicle used identical amount work related travel commitment employer employee may claim work related deduction far exceed employee b matter insurance leasing cost taken account applicant earnings employment respondent work related expense claimable deduction income tax return made ato seem discrete matter 71 respondent argued mr grindal relied reimbursement receive offset annual earnings provided evidence support entitled reimbursement followed policy requirement seek reimbursement accordingly respondent submitted mr grindal income exceeded high income threshold dismissed basis award coverage 72 respondent addressed mr grindal contention covered thebanking finance insurance award 2020 award although noted adduced evidence advanced argument favour putative employment covered award 73 respondent conceded award covered respondent mr grindal found employee excluded coverage award nature seniority role position managing partner 74 respondent submitted contract stipulated mr grindal classification award managing partner determinative award covering mr grindal 75 respondent cited decision gay c inmcmillan norman v northern project contracting tia npc 16 mcmillan referring following consideration regarding contractual term purport confer modem award coverage relevant employee 10 act make clear person protected unfair dismissal relevant time person completed period employment employer minimum employment period relevant case whether one following circumstance apply first modem award cover person second enterprise agreement applies person third sum person annual rate earnings reference regulation 12 deal point whether modern award cover mr norman mr mcmillan issue clouded extent fact men regard entirely understandable way rely contract admitted evidence contract employment exhibit sci mr clark affidavit exhibit npl contract employment declares mining award 2010 correct title mining industry award 2010 ma0000l 1 award application clause 6 1 mr norman contract think contract identical providing 13 point view applicant particular disappointment hear moreover contract said cannot go make hope capable understanding case error made whoever provided contract reference award 14 fact contract employment say make award coverage determined contract rather determined legislation case section 48 act set award coverage effect going read section short modem award cover employee employer organisation outworker entity award expressed cover employee employer organisation outworker entity 76 respondent submitted dispute party mr grindal role managing partner senior gave specialised advice virtue service provided respondent submitted highest classification award level 6 award describes follows level 6 position typically performs middle managerial role primarily control conduct part employer business decision regularly made responsibility accepted matter relating administration conduct part business responsible managing 10 people must classified level provided level 6 classification cover class employee nature seniority role traditionally covered award b perform work similar nature work previously regulated award indicative job list branch manager human resource fraudulent relation manager financial planner information technology specialist relationship manager senior analyst subject matter manager divisional manager 77 respondent also referred decision lee c indavid faulder v lanteri partner financial management pty ltd tia lanteri partner group 17 lanteri specifically consideration whether applicant senior portfolio manager held third senior role company managing director ceo covered thenbanking finance insurance award 2010 lee c found 15 applicant referred coverage clause contained modem award clause 4 suggesting clearly covered award coverage clause clause 4 pertains coverage award respect industry cover point already alluded agreement party award cover employer including type employer respondent satisfy test whether applicant covered 78 respondent went cite paragraph 37 onwards oflanteriwhich read 37 applicant covered award covered award employed covered level 5 level 6 plain reading modem award appear position held fit within managerial role manage people either level 5 level 6 also clear term evidence possible characterise role applicant middle managerial role relevant instrument asks u query whether role applicant could held fit within level sa described position specialised role possibly supported one two junior staff member requiring formal qualification specialised vocational training 38 term interpretation one need consider indicative job list part level 5 position applying relevant authority one take narrow pedantic approach considering applicability instrument look instrument whole find applicant role evidenced tribunal written submission evidence fit comfortably within list includes role human resource consultant senior learning development officer 39 evidence applicant held senior specialist advisory role enormous responsibility many million dollar fund invested referred already particular respondent submission point considered evidence prefer respondent characterisation role relationship classification structure set largely paragraph 10 18 written submission state accept consistency decision jenny craig weight loss centre pty ltd v margolina tends rely supervisory managerial focus 40 term ultimate consideration one must consider principal purpose test alluded outset decision indicated agree appropriate apply test part consideration disputed applicant principal purpose role put respondent closing submission make money autonomously making decision investing substantial quantity money buying selling share daily basis applicant operating highly professional level operating high level organisation 41 directly reported managing director met client time place uncontested managing director overseas applicant reported one admission second important person business put principal purpose role cannot overlooked consideration whether modem award applies principal purpose view find place within classification structure modem award particularly one considers history development award alluded 79 respondent submitted fact principle applied inlanteriare apposite matter respondent cited mr grindal evidence cross examination held senior role gave specialised advice role met client time place reason covered award therefore protected unfair dismissal accordance 382 b act mr grindal evidence submissionsemployer identity 80 mr grindal stated respondent engaged roc consulting 2018 source individual manage innovatus accounting business roc consulting made approach november 2018 relation role described managing director partner accounting division cga email producedconfirming preliminary interview 10 december 2018 second email roc consulting confirming mr grindal secured role cga mr grindal said relocated brisbane basis employment commencing january 2019 81 mr grindal stated respondent utilised service company arrangement pay employee payment made accounting business innovatus australia utilised innovatus service pty ltd purpose employee provided business card digital email signature noting role title business innovatus australia mr grindal said provided business card digital email signature noted managing partner innovatus australia managing partner cga accounting 82 mr grindal said respondent requested attend superannuation salary packaging including motor vehicle use stated respondent required organise separate company exclusive use mr grindal stated way respondent went employing others business named nine individual stated individual despite contracting payment made entitled received paid leave entitlement including redundancy notice payment one individual m dobbie 83 july 2019 innovatus australia acquired cga accounting pty ltd existing arrangement transferred cga accounting pty ltd independent contractor objection 84 mr grindal refuted respondent objection independent contractor submitted review indicator set legislation case law employee control direction innovatus australia cga accounting existing obligation innovatus australia transferred cga accounting july 2019 provided submission evidence relation indicia follows degree control work performed 85 mr grindal said employed senior role required review direct employee role managing partner required meet operation manager respondent m dobbie least weekly basis required provide regular reporting critical business information enable m dobbie mr bell run group hour work 86 mr grindal said required work standard hour monday friday said implied overtime outside usual business hour expectation stated usual work 50 hour per week including working weekend expectation work 87 mr grindal said employed role managing partner specific task described wide ranging included aspect managing business undertaking supervisory work employee mr grindal said required tax agent nominee innovatus australia business utilise tax agent licence respondent business risk 88 mr grindal said bore financial risk role respondent held professional indemnity policy covering business tax agent licence holder said paid regular recurring basis aligned work task completed superannuation 89 mr grindal said entitled compulsory superannuation respondent acknowledged communication respondent tool equipment 90 mr grindal said respondent provided corporate laptop mobile phone required use vehicle work related travel respondent provided office work item necessary undertake work tax 91 mr grindal said respondent made payment gross basis service company undertake tax gst obligation said similar service company arrangement innovatus service method payment 92 mr grindal said respondent made payment weekly basis electronic transfer aligned receipt tax invoice consistent service company arrangement noted previously leave 93 mr grindal said advised entitlement annual leave personal leave course employment accrual obligation maintained said purported contract offered respondent indicated leave entitlement 80 20 rule 94 mr grindal said sole source income respondent thus negating independence undertaking work high income threshold objection 95 mr grindal submitted earnings defined 332 act include wage amount dealt employee behalf agreed value non monetary benefit excluded earnings payment cannot determined advance commission bonus reimbursement compulsory contribution superannuation 96 mr grindal said respondent entered employment arrangement 21 december 2018 following basis base salary 165 000 including superannuation motor vehicle benefit b performance bonus 33 000 additional subject kpis achieved 97 mr grindal submitted bonus amount 33 000 could excluded earnings calculation subject performance criterion met 98 mr grindal said base salary 165 000 provided inclusive compulsory superannuation contribution excluded earnings amount 14 315 deducted 165 000 amount representing 9 5 compulsory superannuation 99 mr grindal submitted base salary included amount towards work related use motor vehicle company policy providing employee able seek reimbursement amount travel exceeding 200km per week mr grindal said reimbursement made 0 70 per kilometre 100 mr grindal said required travel office cga accounting located north lake brendale brisbane city springwood addition work related travel required meet client mr grindal said amount 6 720 excluded earnings calculation representing reimbursement motor vehicle use calculated 200km x 48 week x 0 70 per kilometre 101 mr grindal said contention made private portion exists consideration reasonable travel incurred regular basis office client amount travel least 60km week 60km x 48 week x 0 70 per kilometre would sufficient reduce base salary package high income threshold mr grindal calculation base remuneration package 165 000 le compulsory superannuation 14 315 le motor vehicle usage 6 720 alternative 2 016 leaving total earnings 143 965 alternative 148 669 102 submitted high income threshold 148 700 103 alternative mr grindal submitted employment may covered award final submission reply mr grindal said previously consulted fair work ombudsman requested determination award coverage received reply remains matter fair work commission determine dispute occurs mr grindal said award contemplates minimum pay condition employee banking finance insurance industry respondent directly involved finance industry financial service business articulated via social medium confirmed evidence commission fixed term contract employment 104 mr grindal contended fixed term contract entered disputed validity fixed term contract noting contract noted agreement 13 september 2019 however electronically sign manually sign contract b contract referred different commencement date occurred c contract incorrect address mr grindal contract contained material term different agreed recruitment process including payment bonus fixed term nature role e contract contained inconsistency schedule 1 employment detail including item 1 setting date agreed employment contract inconsistent ii item 3 setting location employment office brisbane cbd incorrect primary location commencement brendale north lake attendance city springwood office addition iii item 6 item 7 detailing commission structure company bonus payable incorrect bonus commission structure 33 000 applicable iv item 11 detailing vehicle allowance applicable incorrect requirement employee entitled reimbursement motor vehicle travel unless exceeded 200km per week 105 mr grindal said sourced roc consulting november december 2018 roc consulting business specializing full time part time employment matching candidate employer mr grindal said subsequent confirmation employment roc consulting paid fee 13 200 plus 1 320 8 8 total remuneration package 165 000 fee levied upon 106 mr grindal said employment commencement date 15 january 2019 however adjusted 11 january 2019 respondent said commenced full time basis aware fixed term contract would commenced negotiation december 2019 january 2020 ensure renewal occurred sought alternate employment material produced mr grindal pursuant direction 107 7 august 2020 mr grindal filed served following material pursuant direction personal income tax assessment 2018 2019 company financial record bluebird chest pty ltd atf janus trust since inception 24 january 2019 including 2019 profit loss report2019 balance sheet2019 trust tax returnactivity statement march 2019activity statement june 2019activity statement september 2019activity statement december 2019activity statement march 2020 108 mr grindal personal tax assessment financial year 2018 2019 demonstrates taxable income 22 827 00 evident entity remitted amount 10 716 payg withholding tax mr grindal understand mr grindal bluebird chest pty ltd janus trust 109 earned modest amount tax payable 22 827 00 879 13 entity remit 10 716 account taxation together low income tax offset mr grindal received tax refund 10 716 110 two year prior mr grindal declared taxable income approximately 45 000 year 111 janus trust tax return 2018 2019 financial year describes main business activity accounting service income earned declared 81 397 00 noted commenced january 2019 representing approximately half full financial year interest expense depreciation claimed together expense 112 activity statement janus trust period january 2020 march 2020 filed statement demonstrates 4 125 gst owed janus trust ato amount 11 342 gst claimed janus trust sale declared 41 250 113 statement declares 2 312 withheld payg tax presumably mr grindal salary wage payment equalled 6 500 114 statement provided refund amount 4 950 115 activity statement janus trust period april 2020 june 2020 filed statement demonstrates 4 410 gst owed janus trust ato amount 14 027 gst claimed janus trust sale declared 44 103 116 statement declares zero withheld payg tax salary wage payment made statement provided refund amount 9 617 00 117 profit loss statement janus trust 2018 2019 financial year follows revenueother revenue 139professional fee 75 519professional fee reimbursement 5 739total income 81 397gross profit 81 397operating expensesconsulting accounting 699depreciation sbe 3 460employment cost 70 499general expense 5 739interest expense 1 000total operating expense 81 397net profit 0 118 noted janus trust approximately 1m asset understand sale business far north queensland fund evident balance sheet acronym sbe relevant depreciation claimed mean small business enterprise 119 hearing mr grindal explained janus trust register payg taxation stated would remunerate director fee withholding tax stated trust make payment june 2019 2020 financial year 500 paid evidence m jennifer dobbie 120 m dobbie gave oral evidence hearing ordered attend give evidence request mr grindal 121 m dobbie respondent group operation manager longer work respondent stated oversaw innovatus operation looked human resource function 122 agreed people worked respondent innovatus requested annual leave mr grindal sought leave either mr bell agreed people working respondent paid annual leave paid public holiday 123 stated time sourcing mr grindal using service roc consulting discussion whether role would performed employee independent contractor managing partner would required manage team supervise work team managing partner reported board mr bell m dobbie 124 m dobbie recalled offer 165 000 inclusive superannuation stated start date planned january 2019 put back bit mr grindal regrettably involved car accident way townsville brisbane 125 m dobbie stated nobody within business employed directly 126 tool provided perform work included mobile phone laptop provided mr grindal january 2019 innovatus email address mr grindal would established january 2019 cannot recall cga email address mr grindal would created 127 relevant email sent mid january 2019 structure relationship stated could recall sending email mr grindal dated 18 january 2019 recall response received mr grindal 128 m dobbie stated expectation mr grindal would spend time various respondent location including brendale brisbane cbd springwood north lake expected would office 9 00am 5 00pm recall creating travel policy held discussion senior people business travel excessive person would need cover within package considered radius around 50km 60km 129 m dobbie stated mr grindal discovered external recruiter leave commenced stated created employment contract asked create independent contractor agreement cannot recall issued mr grindal stated never saw contract one said generated september 2019 m dobbie stated never gave september 2019 130 answering question put respondent m dobbie stated mr grindal mainly located brendale office quite autonomous work performed senior manager expected would simply get work done 131 m dobbie stated never directed hour work never supervised accounting work stated aware unsatisfactory work performance considerationwas mr grindal employee contractor 132 mr grindal suggested commission could sent email 29 31 decision account cga email address point time clear suggesting perhaps fraudulently created respondent purpose proceeding 133 balance probability regard metadata supplied consider mr grindal send email even email reflect cga email address mr bell evidence pull email archiving consider likely simply evidence come cga account likelihood sent mr grindal innovatus email account established time innovatus email longer exists reasonable assume email demonstrates cga account 134 content email replicate mr grindal exactly set establishing service entity trust mr grindal sophisticated experienced accountant naïve young inexperienced new entrant workforce asked engage sham contracting 135 consider mr grindal party orchestrated engagement corporate entity within one week commencing considered best interest firm view well versed past income tax assessment demonstrate modest amount payable individual mr grindal evidence established trust decided alone much pay form director fee sometimes amount per quarter nil 136 establishing payment corporate entity mr grindal relieved respondent potentially slipping 1m mark payroll clear email might meant respondent would exposed paying payroll tax paid contractor employee mr grindal relieved paying personal taxation marginal tax rate 37 cent every dollar earned excess 90 000 137 sophisticated experienced accountant mr grindal would known 165 000 package included amount superannuation would required employer paid employee superannuation account mr grindal ensure insist happen 138 regard clear unambiguous arrangement put train mr grindal suggestion willingly agreed respondent weighs heavily determination whether mr grindal employee contractor consider turn relevant criterion typically considered matter whether putative employer exercise right exercise control manner work performed place work hour work like 139 evidence hearing mr grindal directed work home fact worked remotely directed work particular hour work mr grindal evidence required attend respondent office location regular basis 140 doubt managing partner entrusted supervise accounting work accountant mr grindal required regularly physically attend various office required show face tasked supervising work others seems needed done part person 141 expected attend 9 00am 5 00pm day unreasonable requirement person receiving sizeable weekly annual payment evidence suggest mr grindal scrutinized exact start finishing time m dobbie mr bell 142 consider criterion weighs favour finding contracting relationship evidence scrutiny hour work clear direction office mr grindal must work particular day week hour day exercised reasonable amount autonomy one would expect somebody senior role whether worker performs work others genuine practical entitlement whether worker separate place work advertises service world large 143 respondent submitted mr grindal entitled perform work others engagement mr grindal denies able perform work others engagement respondent submitted condition engagement perform work others 144 mr grindal separate workplace advertise service world large receiving sizeable weekly payment performance mr grindal account 50 hour per week unexpected mr grindal time day week beyond performing work respondent never clear seems mr grindal time take opportunity exercise right considered permitted make request 145 consider criterion neutral factor determination whether worker provides maintains significant tool equipment 146 mr grindal provided corporate laptop phone used vehicle travel mr grindal access office provided respondent 147 consider indication mr grindal provided maintained tool equipment clear however mr grindal claimed expense janus trust account vehicle expense without knowing information consider criterion weighs favour finding employment relationship whether work delegated subcontracted 148 indication mr grindal able delegate subcontract work suspect would permitted given skill experience mr grindal brought role 149 consider criterion weighs favour finding employment relationship whether putative employer right suspend dismiss person engaged 150 clear respondent summarily ended arrangement writing directly mr grindal writing corporate entity mr grindal owned operated unsophisticated communication mr grindal 151 consider criterion weighs favour finding employment relationship whether putative employer present worker world large emanation busines 152 mr grindal required wear uniform part work however utilise respondent branding email signature held employee respondent would expect somebody role mr grindal held 153 consider criterion neutral factor determination whether income tax deducted remuneration paid worker 154 find mr grindal insistence payment arrangement devised mr grindal would establish corporate entity respondent pay accordingly income tax remitted way would employed person 155 consider criterion weighs favour finding contracting relationshipwhether worker remunerated periodic wage salary reference completion task 156 mr grindal paid pursuant automatically generated invoice payment made paid consistent schedule completion specific task rather general work completed varied depending specifically required payment time mr grindal worked 157 consider criterion weighs favour finding employment relationship whether worker provided paid holiday sick leave 158 mr grindal argued entitled paid holiday sick leave respondent denied stated apply take clear mr grindal paid period included public holiday invoiced full week paid full week public holiday occurred 159 conclusion working relationship one week filing application mr grindal requested payment 4 4658 week annual leave paid paid annual leave taken 15 month period arrangement must many hour day letter sent mr grindal 28 april 2020 requesting payment annual leave nominates amount inclusive gst following explanation amount include gst payable agreed employment entity 160 consider absurd mr grindal requesting payment annual leave paid entitlement notice redundancy pay time inflating amount say owed account gst paid agreed employment entity employee charge employer gst consider foolish person application commission asserting employment relationship exists write former putative employer demanding payment entitlement seeking charge gst amount 161 consider respondent permitted mr grindal others receive full payment even public holiday fell due permitted take day annual leave done generosity respondent seems customer practice accept mr grindal evidence others paid annual leave employee type entitlement termination correlate however payment isbecausethey employee evidence commission many contracting type arrangement put place presumably accounting professional benefit expected might know risk involved putting together arrangement payment leave consider bonus right 162 consider criterion neutral factor determination whether work involves profession trade distinct calling part person engaged 163 mr grindal skilled experienced accountant required told perform work accept supervising work others consider respondent engaged form coercion sham contracting 164 consider criterion weighs favour finding contracting relationship whether worker creates goodwill saleable asset course work 165 respondent argued mr grindal generated goodwill interaction client evidenced mr grindal admission contacted two former client referred respondent termination bluebird contract 166 consider criterion neutral factor determination insufficient information whether worker spends significant portion remuneration business expense 167 indication mr grindal expended significant portion remuneration business expense fact service provided professional service material required 168 consider criterion neutral factor determination correspondence party 169 curiously 14 july 2020 solicitor respondent wrote mr grindal follows open correspondence dear christopher breach contract employmentwe solicitor cga group service pty ltd previously employed client contract employment entered 13 september 2019 ending 20 january 2020 contract renewed pursuant contract employment solicit customer client without obtaining consent client paying 1 5 time fee payable client see clause 16 note aware obligation respect discussed client mr bell subject correspondence office relating ceasing contact client notwithstanding client obtained evidence taken client name name quoted amount 36 000 excluding gst series compliance work undertaken client client contact made available part employment arrangement whilst obligation fidelity client conduct breach contractual common law obligation employment result client suffered loss damage calculation contract amount 54 000 excluding gst client hereby demand payment amount 54 000 plus gst paid within 7 day correspondence payment made morgan conley solicitor pty ltd law practice trust account detail redacted faithfullyjoel pitmanmorgan conleylegal director conclusion 170 mr grindal sophisticated experienced well versed requirement obligation employer employee includes course payment work performed deduction taxation remittance payment australian taxation office nett amount paid employee 171 includes consideration whether industrial instrument applies whether term covered common law arrangement 172 superannuation payable employee limited group employee young worker meeting monthly threshold payment superannuation payment made employee deposited employee superannuation account 173 mr grindal initiative none thing occurred mr grindal went setting corporate entity requiring full amount 165 000 paid entity created never insisted amount 14 315 paid nominated superannuation account took care earnings wished charged respondent gst claimed gst corporate entity expense 174 none occurred insistence respondent take leave deal mr grindal heard respondent seemingly employ employee would attractive mr grindal suggestion implemented respondent would bother usual obligation employer remitting taxation making payment superannuation fund like par course corporate australia respondent may wish consider whether acting lawfully junior individual 175 consider mr grindal inappropriately brought application one hand effectively informed australian taxation office payment made corporate entity janus trust provision professional service way contracting service along way claimed various deduction expense simply available employee hand implores commission find employee along cannot good conscience way 176 said earlier employee charge employer gst might understandable unconscionable principal threatens vulnerable worker say cleaner cannot perform work unless become contractor abn charge gst principal case commission might weigh imbalance power understand circumstance arrangement came matter mr grindal expertly set corporate entity used house approximate 1m asset together receiving payment service performed respondent 177 consider would unconscionable declare regard circumstance arrangement mr grindal employee respondent even relied term purported employment agreement understand supposedly created september 2019 well service commenced never actually agreed party nobody understands relevance 178 letter sent respondent legal representative 14 july 2020 169 mr grindal view demonstrative incompetence firm repeatedly refers mr grindal employee respondent written submission explaining letter submitted appropriate respondent corresponded mr grindal advising particular covenant respondent seek enforce mr grindalif determined employee 179 letter thing caveat purport explain relationship one employer employee demand payment natural person understandably mr grindal make payment extremely unfortunate heavy handed letter sent mr grindal attempting represent respondent interest matter arguing commission mr grindal employee representative effectively set respondent back many pace respect embarrassing letter sent advanced stage litigation 180 considered matter set balance satisfied mr grindal engaged respondent independent contractor employee examination many item consider favour independent contractor relationship employment relationship confirm considered totality relationship 181 accordingly necessary consider remaining jurisdictional objection mr grindal person protected unfair dismissal unable pursue application order dismissing application issued decision 182 completeness however event wrong determining mr grindal employee make followingobservations mr grindal covered award 183 agree award cover respondent however work performed mr grindal far exceeds highest classification within award consider would far senior level 6 employee necessary would find mr grindal covered award high income threshold 184 analysing amount paid mr grindal would hesitation reducing amount 165 000 14 315 amount would otherwise paid mr grindal superannuation account amount 150 685 185 never clarity party amount might otherwise car allowance typically party declare certain sum constituting car allowance example 15 000 per annum car allowance typically paid cover kilometre travelled employee private business travel easier exercise undertake understand much car allowance counted earnings example salary 135 000 car allowance 15 000 starting point earnings 135 000 proportion 15 000 constituting personal travel added 135 000 186 mr grindal clearly undertook business travel travelled respondent office day consider would constitute business travel trip home first office would constitute personal travel second destination required consider would properly classified business travel trip home last office attended day would properly classified personal travel 187 amount 150 685 1 985 excess threshold 148 700 kilometre travelled business purpose removed calculated rate 0 70 per kilometre would take approximately 2 836 kilometre travelled business purpose mr grindal earnings fall 148 700 48 week mr grindal suggested amount approximately 59 kilometre per week 188 determined necessary decide issue evidence submission would required definitively determine issue fixed term contract employment 189 significant dispute whether mr grindal employed fixed term contract respondent claim mr grindal strenuously denies signing contract working said contract notwithstanding clear respondent prepared contract fixed term commencing 14 january 2019 terminating 14 january 2020 mr grindal continued perform work respondent employment terminated 2 april 2020 190 inramsey v annesley college 2013 sasc 72 ramsey blue j considered whether ongoing employment contract employee employed fixed term contract continued work employer finish date contract 191 matter plaintiff m ramsey employed annesley college head boarding 2003 formal employment contract executed 2002 2005 mid 2009 discussion concerning three five year contract expiration current contract january 2010 discussion confirmed extent letter annesley m ramsey discussion preparation formal contract formal contract prepared signed m ramsey continued employed annesley beyond 31 january 2010 expiration 2005 contract m ramsey later dismissed serious misconduct annesley argued implied contract came existence subsequent employment contract coming end 31 january 2010 192 inramsey blue j considered whether implied employment contract could created conduct party found footnote omitted 178 2005 contract expressed continue unless earlier terminated 31 january 2010 period approaching 31 january 2010 neither party acted basis m ramsey employment end 31 january 2010 contrary communication party proceeded basis unless one party took concrete step terminate employment relationship would continue beyond 31 january 2010 179 likewise 1 february 19 march 2010 party acted basis m ramsey continued employed annesley continued paid salary superannuation arrangement return sick leave discussed 180 conduct party inconsistent m ramsey employment ceasing 31 january 2010 party acted term 2005 contract continued govern relationship notwithstanding effluxion time 193 ramseywent consider case ofbullock v wimmera fellmongery woolscouring co ltd 1879 5 vlr l 362and 181 inbullock v wimmera fellmongery woolscouring co ltd party entered contract fixed term one year appointing plaintiff manager accountant defendant company agreed annual salary house rent free expiration 12 month plaintiff continued act manager accountant continued paid reside house rent free stawell cj barry j held implied contract arose condition original contract 194 blue j considered case ofbrambles limited v andar transport pty ltd 2002 vsca 150 footnote omitted 182 inbrambles limited v andar transport pty ltd bramble andar entered agreement 1990 andar provide linen delivery collection service bramble three year upon expiry term contract april 1993 party continued act accordance term andar continued perform delivery collection service bramble continued pay court appeal victorian supreme court held implied contract implied conduct party came effect april 1993 term 1990 contract except period contract winneke p charles batt jja held question whether implied tacit agreement continue dealing term save agreement terminable reasonable notice inferred evidentiary factual question fact set earlier consider inference drawn evidence fairly sparse though warrant finding 3 april 1993 party proceeded though still governed term original agreement save since already expired either could terminate substitute agreement reasonable notice rather finding impliedly agreed merely andar collect deliver laundry bramble pay reasonable sum finding party made series individual implied agreement six day week work done reasonable sum word 3 april 1993 party operated standing agreement procedure importantly remuneration exactly written agreement party intended 195 blue j concluded party entered contract around january february 2010 term identical term earlier 2005 contract except fixed period employment three five year 18 blue j considered contract arose party conduct consistent term 2005 contract continuing govern relationship inconsistent m ramsey employment ceasing 31 january 2010 19 196 present case contract respondent purported cover mr grindal expired january 2020 respondent relied effluxion fixed term contract ground dismissal dismiss mr grindal april 2020 197 consistent case law consider even mr grindal covered fixed term contract fact continued perform work expiry contract would give rise new contract term previous contract save except fixed period engagement respondent could therefore rely expiry contract fact dismiss mr grindal required would uphold respondent jurisdictional objection issue commissionerappearances grindal c applicant spence counsel respondent instructed byherbert j hearing detail 11 august 2020 telephone 1 joshua klooger v foodora australia pty ltd 2018 fwc 6836 2 stevens v brodribb sawmilling co pty ltd 1986 hca 1 1986 160 clr 16 3 hollis v vabu pty ltd crisis courier 2001 hca 44 106ir 80 4 abdalla v viewdaze pty ltd 2003 122ir 215 5 jiang shen cai trading french accent v michael anthony rozario 2011 fwafb 8307 2011 215 ir 235 frenchaccent 6 hollis v vabu pty ltd crisis courier 2001 hca 44 40 7 jiang shen cai trading french accent v michael anthony rozario 2011 fwafb 8307 30 8 peel v aster home nursing service pty ltd 2020 fwc 4782 7 9 commissioner simpson 9 2015 fwcfb 3704 10 2013 fcafc 3 11 ibid 41 12 2003 122 ir 215 13 roy morgan research pty ltd v federal commissioner taxation 2010 fcafc 52 31 2010 fcafc 52 184 fcr 448 quotinghall inspector tax v lorimer 1992 1 wlr 939at 944 14 jiang shen cai trading french accent v michael anthony rozario 2011 fwafb 8307 30 2011 fwafb 8307 2011 215 ir 235 15 adrian read v universal store pty ltd universal store 2010 fwa 5772 16 2012 fwa 7049 17 2012 fwa4801 18 ramsey v annesley college 2013 sasc 72at 183 19 ibid 186 printed authority commonwealth government printer pr727250

ATTORNEY-GENERAL (SA) v MARMANIDIS (No 2) [2019] SASCFC 77 (1 July 2019).txt

attorney general sa v marmanidis 2 2019 sascfc 77 1 july 2019 last updated 1 july 2019supreme court south australia full court disclaimer every effort made comply suppression order statutory provision prohibiting publication may apply judgment onus remains person using material judgment ensure intended use material breach order provision enquiry may directed registry court generated attorney general sa v marmanidis 2 2019 sascfc 77judgment full court honourable justice blue honourable justice nicholson honourable auxiliary justice tilmouth 1 july 2019procedure civil proceeding state territory court cost general rule cost follow event general principle exercise discretionapplications cost following appeal court allowed appeal judgment single judge judicial review action quashing default judgment entered magistrate court favour second respondent first respondent second respondent seek order first respondent pay cost judicial review action appellant second respondent seek order first respondent pay cost appeal held court 1 order cost action favour second respondent light fact exercise discretion whether grant relief judicial review first respondent would otherwise partially succeeded action second respondent requested judgment full amount claim entitled 13 2 taking account appellant second respondent interest appeal failed appeal several significant discrete issue order first respondent pay 50 per cent appellant second respondent cost appeal 22 3 interlocutory order staying payment money held sheriff pending result judicial review action discharged 25 supreme court act 1935 sa 40 referred attorney general sa v marmanidis 2 2019 sascfc 77full court blue nicholson jj tilmouth ajthe court 17 january 2019 court allowed appeal judgment single judge court judicial review action action 1297 2016 quashing default judgment entered magistrate court favour second respondent samuel germein first respondent dr helen marmanidis 1 mr germein seek order dr marmanidis pay cost judicial review action attorney general intervened action seek order relation cost action attorney general appellant appeal court mr germein filed cross appeal support attorney general appeal seek order dr marmanidis pay cost appeal backgroundmr germein filed claim dr marmanidis magistrate court seeking damage 2 080 allegedly caused negligent driving dr marmanidis motor vehicle collided motor vehicle damage claimed comprised 1 589 cost repair 491 cost hire car attached claim raa insurance document referring 1 589 repair document relating hire car attached twenty first day service claim post deemed effected upon dr marmanidis mr germein requested judgment default defence signed 2 080 plus cost magistrate court entered default judgment amount requested mr germein took various step prolonged period attempt enforce judgment ultimately dr marmanidis applied set aside default judgment magistrate dismissed application finding demonstrated arguable defence reasonable excuse complied magistrate court rule dr marmanidis instituted proceeding supreme court converted consent action judicial review attorney general intervened action single judge concluded default judgment irregular mr germein served evidentiary material respect hire car component claimed damage registrar lacked jurisdiction enter judgment precondition met discretion refuse judicial review exercised 2 judge quashed default judgment remitted matter magistrate court dealt according law attorney general appealed judgment mr germein filed notice cross appeal largely duplicated attorney general notice appeal court concluded mr germein entitled sign judgment respect cost hire car magistrate failure consider irregularity default judgment respect thereof constituted jurisdictional error magistrate addressed wrong question considering whether dr marmanidis established reasonable excuse complied rule magistrate ought found established magistrate ought set aside judgment extent amount cost hire car however court concluded majority judicial review refused exercise discretion cost actionin assessing appropriate order relation cost judicial review action necessary notionally substitute court conclusion resolution issue action judge first instance court determined default judgment irregular insofar included damage respect hire car magistrate committed jurisdictional error addressing question magistrate ought set aside default judgment extent court conclusion dr marmanidis would succeeded action judicial review extent save exercise discretion level separate issue dr marmanidis would succeeded several issue action although would failed issue whether magistrate committed jurisdictional error concluding arguable defence addition mr germein conduct requesting default judgment amount entitled material cause cost incurred action circumstance appropriate order party bear cost judicial review action cost appealthe appeal successful sense judgment judge first instance set aside appeal starting point ordinarily unsuccessful respondent ordered pay appellant cost appeal however cost ultimately unfettered discretion court potentially two reason appropriate award present case simply cost follow event first reason might appropriate dr marmanidis pay full cost appeal attorney general dr germein two party similar interest choose separately represented court may exercise discretion order unsuccessful party pay cost would payable common representation thus rule 269 thesupreme court civil rule 2006 sa provides 269 representation party common interestif two party identical similar interest separately represented court opinion unnecessarily court may exercise either following power court may order cost party entitled determined basis would appropriate common legal representation b court may order represented party compensate party action additional cost incurred result representation rule 269 limit court unfettered discretion relation cost conferred bysection 40of thesupreme court act 1935 sa reflected example rule 263 264 present case unusual mr germein elected appeal judgment single judge within 21 day time limit appeal instituted instituted attorney general intervener rather party action single judge mr germein filed cross appeal seeking order attorney general essentially ground cross appeal raise additional ground succeeded appeal attorney general mr germein interest appeal sought order relied essentially contention extent succeeded appeal succeeded contention limited extent either made contention made contention irrelevant determination appeal true attorney general mr germein different motivation pursuing appeal attorney general motivation public interest mr germein motivation self interest however fact different motivation detract fact essentially interest given mr germein elect appeal within 21 day time limit attorney general would open simply allow attorney general prosecute appeal receive benefit thereof conversely given attorney general intervener rather party direct interest judicial review action would open attorney general allow mr germein prosecute appeal course attorney general mr germein right participate fully prosecution appeal follow dr marmanidis pay two set cost appeal could equally effectively prosecuted party incurring single set cost second reason might appropriate dr marmanidis pay full cost appeal attorney general mr germein failed several important discrete issue appeal included issue whether mr germein claim liquidated sum within meaning rule 61 1 themagistrates court rule 2013 sa rule whether claim respect hire car consequential loss within meaning rule 61 1 b rule whether claim incidental expense within meaning sub rule 61 3 subject requirement imposed sub rule 61 2 rule serve evidentiary material whether mr germein entitled sign judgment respect cost hire car whether magistrate failed consider irregularity default judgment respect cost car hire whether failure constituted jurisdictional error whether magistrate addressed wrong question considering whether dr marmanidis established reasonable excuse complied rule whether magistrate ought found reasonable excuse established andwhether magistrate ought set aside judgment extent amount cost hire car time devoted issue represented substantial portion total time spent appeal third factor considered relation cost conduct party cost appeal increased misconduct party leading appeal effect misconduct may reflected appropriate cost order 3 attorney general contends dr marmanidis engaged inappropriate conduct lodging irrelevant material failing certify casebook however conduct dr marmanidis legally represented cannot characterised misconduct reflected different cost order would otherwise appropriate addition overall scheme taking account dr marmanidis made oral submission hearing appeal cannot said conduct materially increased cost incurred party circumstance appropriate order dr marmanidis pay 50 per cent cost appeal attorney general mr germein monies paid sheriffon 28 july 2016 magistrate ordered stay warrant sale dr marmanidis house sheriff process executing condition pay court 14 769 representing amount judgment debt plus interest cost including cost said incurred sheriff dr marmanidis paid sum sheriff 14 october 2016 court made order order 7 judicial review action monies held sheriff paid pending order court judicial review action dismissed mr germein seek order monies held sheriff interest thereon paid appropriate discharge order 7 made 14 october 2016 given result judicial review action however appropriate court make order payment monies held sheriff matter mr germein take sheriff conclusionwe make following order first respondent pay 50 per cent cost appeal appellant second respondent cost adjudicated agreed party bear cost action underlying action 1297 2016 order 7 made action 1297 2016 14 october 2016 discharged 1 attorney general sa v marmanidis 2019 sascfc 3 2 marmanidis v germein 2017 sasc 103 3 specific application general principle conduct party relating leading proceeding may reflected appropriate cost order see examplebostock v ramsey urban district council 1900 2 qb 616at 622 per l smith lj anglo cyprian trade agency ltd v paphos wine industry ltd 1951 1 er 873at 874 per devlin j verna trading pty ltd v new india assurance co ltd 1991 vicrp 12 1991 1 vr 129at 154 155 per ormiston j

Applicant: Kulwant Singh Dhillon Principal: Gerdilph Kaur Singh IRT Reference: V93_01250 #number 3872 [1994] IRTA 3872 (31 May 1994).txt

applicant kulwant singh dhillon principal gerdilph kaur singh irt reference v93 01250 number 3872 1994 irta 3872 31 may 1994 immigration review tribunalstatement decision andreasons decisionirt reference v93 01250 3872 docapplicant kulwant singh dhillonprincipal gerdilph kaur singhtribunal peter bruce presiding memberdate 31 may 1994place victoriadecision tribunal affirms decision review refuse concessional family visa class 105 gerdilph kaur singh reason decisionthis application kulwant singh dhillon applicant review decision delegate minister immigration local government ethnic affair grant sister gerdilph kaur singh principal concessional family visa class 105 historyon 3 october 1990 principal national malaysia lodged application form migration australia form 47 kuala lumpur post department immigration local government ethnic affair department application accompanied sponsorship form form 40 signed applicant 15 august 1990 together various supporting document application assessed primary decision maker 12 march 1991 principal refused concessional family visa failed achieve necessary score point test 4 april 1991 applicant submitted application review migration internal review office miro miro affirmed original decision 25 june 1993 27 august 1993 applicant submitted application review tribunal legislationthe tribunal note migration 1993 regulation came operation 1 february 1993 however case subject regulation visa application lodged date sub regulation 8 2 1 b state application decided accordance law force prior 1 february 1993 given prescribed criterion need satisfied entitlement concessional family visa set item 3 part 3 schedule 2 migration regulation 1989 regulation alpha numeric symbol defined schedule 1 conveniently summarised follows grant visa must fall within normal ceiling class gazetted minister b1 assurance support necessary required minister c sponsorship required parent brother sister aunt uncle son daughter public interest criterion e family unit member must meet health public interest criterion relation minor child criterion relation custody guardianship access g principal must receive necessary score point assessment subdivision b division 2 ofpart 2of themigration act 1958 act h1 health criterion decision tribunal called upon review application decision minister delegate making assessment point undersubsection 30 1 act decision specifically reviewable subregulation 2a 1 c migration review regulation 1989 accordingly necessary stage enquire whether criterion grant visa satisfied prescribed qualification prescribed number point qualification set schedule 4 regulation qualification employment age relationship sponsor duration australian citizenship sponsor capability sponsor provide settlement support location sponsor australiathe evidencethe department file provided tribunal section 122 2 act primary decision maker miro review officer assessed principal awarded 80 65 point respectively point score made follows qualification original decisionmiroemployment 30 10age 20 20relationship 10 10citizenship 10 10settlement 10 10location 0 5total point 80 65the tribunal required make point assessment carried hereunder employment qualificationunder qualification point awarded accordance provision regulation 146 regulation force date review authority assessment primary assessment whichever favourable principal see section 121a act also occasion applicant visa entitled assessment accordance law force prior coming operation section 121a section retrospective affect right accrued principal prior date commencement namely 3 june 1992 preliminary meeting tribunal 12 november 1993 applicant requested provide detail respect principal qualification work experience however information provided hearing matter scheduled 8 march 1994 however applicant attend accordingly tribunal make finding relation qualification basis document department file material attached application review tribunal application migration principal stated usual occupation hair dresser described main task duty washing perming cutting dying completed 9 year primary secondary schooling worked self employed hairdresser 1984 1986 worked evelynn unisex hairstyling centre 1986 date application support application review miro principal submitted diploma evelynn unisex hairdressing academy awarded 30 august 1990 completion 36 month comprehensive course hairdressing qualification suggests principal working apprentice hairdresser prior 30 august 1990 date primary assessment tribunal decision subregulation 146 2 regulation defines usual occupation follows usual occupation mean occupation applicant engaged gain reward continuous period least 6 month period 2 year immediately preceding relevant application visa entry permit date principal application migration term usual occupation defined regulation nonetheless tribunal find definition term apply principal prejudice right existing date application tribunal find principal usual occupation apprentice hairdresser set occupation definition australian standard classification occupation asco code 4927 91 according asco specific skill level requirement australia occupation tribunal agrees review officer assessment principal educational qualification equivalent 10 year primary secondary education australia therefore principal entitled 10 point pursuant subregulation 146 1 tribunal note principal would receive point score qualification date primary assessment date decision date application qualificationshaving considered evidence tribunal satisfied point awarded review officer correct adopt finding summaryin summary tribunal find m singh entitled following point qualification pointsemployment 10age 20relationship 10citizenship 10settlement 10location 5total 65as pool entrance mark set minister section 32 act 85 point date primary assessment 100 point date decision principal fails achieve necessary score point test tribunal note pool entrance mark also 85 point date application migration principal achieved necessary score point test entitled grant concessional family visa decisionthe tribunal affirms decision review refuse concessional family visa class 105 gerdilph kaur singh certify 7 preceding page true copy statement decision reason decision peter bruce presiding member dated deputy registrarre singhdecision peter bruce member delivered melbourne 31 may 1994 concessional family visa tribunal found applicant usual occupation apprentice hairdresser specific skill level requirement australia applicant unable achieve necessary point score migration regulation r 146 1 sch 1 sch 2 sch 4

Application by National Union of Workers [2014] FWC 8012 (12 November 2014).txt

application national union worker 2014 fwc 8012 12 november 2014 2014 fwc 8012fair work commissiondecisionfair work act 2009s 437 protected actionnational union workersvnestle australia limited b2014 1569 commissioner roemelbourne 12 november 2014proposed protected action ballot employee nestle ltd broadford 1 application protected action ballot order member national union worker nuw employed nestle australia limited employer application made pursuant tos 437of thefair work act 2009 act 2 applicant seek ballot employee employer member nuw would covered proposed enterprise agreement 3 considering matter must applys 443of act provides 443 fwc must make protected action ballot order 1 fwc must make protected action ballot order relation proposed enterprise agreement application made undersection 437 b fwc satisfied applicant genuinely trying reach agreement employer employee balloted 2 fwc must make protected action ballot order relation proposed enterprise agreement except circumstance referred subsection 1 3 protected action ballot order must specify following name applicant order b group group employee balloted c date voting protected action ballot close question question put employee balloted including nature proposed industrial action 3a purpose paragraph 3 c fwc must specify date enable protected action ballot conducted expeditiously practicable 4 fwc decides person australian electoral commission protected action ballot agent protected action ballot protected action ballot order must also specify person fwc decides undersubsection 444 1 protected action ballot agent b person fwc decides undersubsection 444 3 independent advisor ballot 5 fwc satisfied relation proposed industrial action subject protected action ballot exceptional circumstance justifying period written notice referred paragraph 414 2 longer 3 working day protected action ballot order may specify longer period 7 working day note undersubsection 414 1 person engages employee claim action proposed enterprise agreement bargaining representative employee covered agreement must give written notice action employer employee 4 begin satisfied application made accordance withsection 437of act satisfied application made earlier 30 day prior nominal expiry date current agreement nestle broadford national union worker enterprise agreement 2011 required bysection 438of act satisfied employer received application required bysection 440of act associate received advice employer oppose making order 5 therefore next matter attention must given whether statutory requirement met nuw provided written material satisfy applicant genuinely trying reach agreement employer behalf employee balloted 6 satisfied proposed order meet requirement ofsection 443of act question adequately specify nature proposed industrial action meet requirement ofsection 443 3 draft order therefore adequately describes group employee balloted required bysection 443 3 b aec ballot agent 7 decided thats 443 1 b complied must make protected action ballot order sought nuw commissionerprinted authority commonwealth government printer price code pr557628 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

Re Tavernstock Pty Limited v John Walker & Sons Limited [1980] FCA 135; (1980) 48 FLR 423 (13 November 1980).txt

tavernstock pty limited v john walker son limited 1980 fca 135 1980 48 flr 423 13 november 1980 federal court australiare tavernstock pty limitedand john walker son limited 1980 fca 135 1980 48 flr 423no g92 1980trade practicescourtin federal court australianew south wale district registrygeneral divisionfranki j 1 catchwordstrade practice proceeding alleged contravention s 46 1 52 application interlocutory relief whether prima facie case established balance convenience trade practice act 1974 cth s 46 80 trade practice proceeding alleged contravention ofs 46 1 oftrade practice act application interlocutory relief whether prima facie case established balance convenience trade practice act 1974 cth s 4e 46 80 applicant liquor wholesaler refused supply johnnie walker whisky respondent sole producer head distributor australia johnnie walker whisky applicant sought interlocutory injunction alleging breach ofs 46 1 thetrade practice act section 46 1 thetrade practice actprovides corporation position substantially control market good service shall take advantage power relation market virtue position purpose eliminating substantially damaging person competitor market market corporation c deterring preventing person engaging competitive conduct market market market defined 4e include market relevant good service good service substitutable otherwise competitive good service purpose interlocutory proceeding assumed relevant market johnnie walker whisky virtue position respondent position substantially control market held 1 provided breach ofs 46 section impose obligation upon trader supply good purchaser 2 application injunction would refused evidence remained applicant would fair chance success proceeding evidence establish respondent taken advantage power control market either purpose specified in 46 1 c mcdonald system australia pty ltd v mcwilliam wine pty ltd 1979 fca 16 1979 41 flr 429 world series cricket pty ltd v parish 1977 16 alr 181 top performance motor pty ltd v ira berk qld pty ltd 1975 24 flr 286 referred 3 circumstance balance convenience lay grant interlocutory injunction early hearing action likely pecuniary amount involved would significant hearingsydney 1980 november 7 12 13 13 11 1980application application interlocutory order p biscoe applicant r conti q c jucovic respondent r r boadenorder1 application interlocutory relief dismissed 2 cost application cost cause application interlocutory relief dismissed cost cause decisioni think desirable give judgment orally rather reserve deliver judgment later reason fully expressed applicant liquor wholesaler commenced business july 1980 might loosely call predecessor heritage liquor company pty limited went voluntary liquidation 19 august 1980 respondent large unsecured creditor company respondent sole producer head distributor johnnie walker scotch whisky bottled australia refer johnnie walker scotch whisky referring red label whisky bottled australia respondent sell mainly wholesaler also sell retailer evidence applicant sought supply johnnie walker scotch whisky respondent august 1980 discussion taken place promotion manager respondent said mr bundy director applicant decided supply tavernstock mr bundy later day 21 october 1980 spoke mr ritchie general manager respondent mr ritchie said word effect stop point mentioning later finding fact prima facie way extent necessary deal matter anything say evidence intended conclusive determination position evidence mr ritchie said word effect purely commercial decision since said mean respondent could believe company small capital could operate market even though bank cheque afforded protection cannot take 0 1 per cent chance remained even acceptance bank cheque decision made consensus executive johnnie walker since believe democratic management abide decision useless pursuing issue evidence mr ritchie said suggestion decision motivated feeling money stolen heritage used tavernstock also evidence mr bundy 21 october 1980 spoke mr ritchie general manager respondent mr bundy say said anything concession make allow supply company mr ritchie said think discussed matter morning agreed inevitably seek credit way give mr bundy said offering trade cash basis mr ritchie said believe would practical mr bundy said final decision ask see solicitor office today mr ritchie said afraid able since tied day today tomorrow applicant ultimately offered business basis paying cash supply whisky applicant seek interlocutory injunction unders 80of thetrade practice act 1974based contravention sub section 46 1 c act necessary proceeding applicant make called prima facie case got together case dealt question case mcdonald system australia pty limited v mcwilliams wine pty limited reported 2 p r p 18103 perhaps important case would refer world series cricket pty ltd v parish 1 p r p 17422 would refer particular part judgment chief judge p 17426 deal question bottom page quote word however fact seriously dispute court undertake preliminary trial action order forecast probable result rather plaintiff fair chance success required vary according nature case court proceed look balance convenience case presented basis first market referred in 46is market johnny walker scotch whisky include whisky seems 4e must considered enacted judgment given top performance motor pty limited v ira berk qld pty limited 1 p r 17113 undesirable interlocutory proceeding nature necessity evidence limited express firm view question fact indeed law particularly field 4e read extending definition market include market johnny walker scotch whisky whisky substitutable otherwise competitive whisky evidence substantially proforma affidavit eight liquor wholesaler seek establish relevant market johnny walker scotch whisky examine evidence ands 46 assuming deciding respondent relevant market johnny walker scotch whisky seems probable since respondent sole producer head distributor johnny walker scotch whisky position substantially control market whisky read 46as requiring trader supply good purchaser provided breach section submitted respondent australian case go far indeed top performance motor referred said dealership datsun car could terminated without breach ofs 46where termination pursuant term dealership agreement question shown evidence remains applicant fair chance establishing respondent taken advantage power purpose eliminating substantially damaging applicant competitor relevant market deterring preventing applicant engaging competitive conduct relevant market think significant evidence respondent taken advantage power onus lie applicant establish applicant obtain johnny walker scotch whisky another source consider satisfactory evidence respondent purpose fell withins 46 1 purpose reasonably inferred think satisfactory evidence respondent purpose fell withins 46 1 c consider significant evidence purpose respondent prevent deter applicant engaging competitive conduct purpose reasonably inferred opinion evidence remains applicant would fair chance success proceeding felt prima facie case established would still many matter consider granting injunction really asked grant equivalent mandatory injunction may indeed question court jurisdiction grant relief however view taken suppose view express moment necessary consider question apart however balance convenience opinion strongly granting relief 13 november 1980 court offer time hear proceeding early february indeed would prepared commence hearing application tuesday 3 february 1981 concerned period may exceed three four month applicant able obtain supply johnny walker scotch whisky least one supplier respondent sharing discount respondent allows supplier appears amount 1 75 per case october applicant sent circular 600 retailer dealt heritage liquor company pty limited called loosely predecessor cash basis result 30 october 1980 order 250 case johnny walker scotch whisky received according evidence attacked present therefore seems amount involved le 500 applicant estimate available would likely sell retailer 5 000 10 000 case johnny walker scotch whisky next 12 month looking matter light seems extra cost obtaining supply matter could determined court likely significant seems serious matter force respondent commence dealing applicant question preserving existing status quo appears likely applicant somewhat disadvantaged obtain supply another source perhaps major problem could supplier require pay cash consider public section likely affected significant way inability applicant obtain supply respondent pending determination action refuse interlocutory relief think appropriate add mr biscoe presented careful argument left stone unturned client interest question cost know whether anybody wish address would inclined done case make cost cost cause alright make order cost proceeding cost cause

Walters and Secretary, Department of Employment and Workplace Relations [2007] AATA 1283 (2 May 2007).txt

walter secretary department employment workplace relation 2007 aata 1283 2 may 2007 last updated 3 may 2007administrative appeal tribunaldecision reason decision 2007 aata 1283administrative appeal tribunal 200600236general administrative division reraymond waltersapplicantandsecretary department employment workplace relationsrespondentdecisiontribunalsenior member l hastwelldate2 may 2007placeadelaidedecisionthe tribunal affirms decision review l hastwell senior member catchwordssocial security pension benefit allowance disability support pension income employment failure notify income within 14 day administrative error good faith write waiver considered living remote community special circumstance debt recoverable decision affirmedsocial security act 1991ss 1223 1 1236 1a 1237 1237aadsocial security administration act 1999s 68 2 secretary department education employment training youth affair v prince 1997 128 alr 127re beadle director general social security 1984 6 ald 1reasons decision2 may 2007senior member l hastwellraymond walter applicant recipient disability support pension dsp number year also worked time time period applicant wife moved remote aboriginal community mimili 13 december 2001 employed running general store date 10 february 2003 respondent department alleges applicant notify centrelink receiving income paid employment brother telephoned centrelink 8 march 2002 advised applicant working wanted dsp stopped overpayment dsp raised period 14 december 2001 7 march 2002 initial decision raise recover debt 3 879 16 decision varied authorised review officer 30 may 2006 debt reduced 2 074 18 applicant sought review decision social security appeal tribunal ssat 12 july 2006 ssat affirmed decision relevant legislationsection 68 2 thesocial security administration act 1999 administration act requires person advise change circumstance may affect centrelink payment within 14 day change occurring section 1223 1 thesocial security act 1991 act provides follows 1223 1 subject section social security payment made b person obtains benefit payment entitled reason obtain benefit amount payment debt due commonwealth person debt taken arise person obtains benefit payment section 1237aadof act provides waiver debt special circumstance follows 1237aad secretary may waive right recover part debt secretary satisfied debt result wholly partly debtor another person knowingly making false statement false representation ii failing omitting comply provision act 1947 act b special circumstance financial hardship alone make desirable waive c appropriate waive write debt part debt note 1 section 1236 allows secretary write debt behalf commonwealth note 2 section effect subject section 1237aae relation assurance support debt section 1236 1a act provides write debt circumstance 1236 1a secretary may decide write debt subsection 1 debt irrecoverable law b debtor capacity repay debt c debtor whereabouts unknown reasonable effort made locate debtor cost effective commonwealth take action recover debt issuesthe issue tribunal determine case overpayment disability support pension amount overpayment correctly calculated overpayment debt due commonwealth basis waiver write debt hearingthe applicant wife present hearing applicant called mr jeff lye give evidence telephone great deal common ground party save applicant claim notified department changed circumstance telephone 4 january 2002 department asserts first notification employment mimili 8 march 2002 applicant told tribunal notified department telephone employment 4 january 2002 made phone call office mr lye received bank statement march 2002 saw dsp payment still paid account immediately contacted brother worked department asked ensure notification changed circumstance put centrelink file agreed knew entitled dsp payment received commencement date employment however used fund considered circumstance required repay money applicant considered wife community service working remote aboriginal community described condition community third world acknowledged notified centrelink within 14 day commencement employment mimili asked tribunal accept christmas break pressure work lead 4 january 2002 reason notified within 14 day described wife tight financial circumstance wife operation would returning home mildura currently rented quite large mortgage property considers likely entirely dependent centrelink benefit support future statement financial circumstance contained document applicant pointed tribunal many year worked also entitled dsp never previously overpayment raised mr lye gave evidence telephone cairn said could recall applicant making telephone call office centrelink gave phone number applicant hear content conversation department relied statement fact issue contention departmental record contact applicant department t17 submissionsthe applicant contended notified department early january 2002 changed circumstance payment date due departmental error acknowledged entitled additional payment received however argued special circumstance case required repay fund department alleged departmental error resulted overpayment occurring pointed remoteness location living difficulty employment reason slightly late notifying department changed circumstance department asserted even tribunal found notification applicant changed circumstance 4 january 2002 payment received good faith discovered received payment applicant knew entitled offered repay debt department point gone use fund purpose department relied authority support contention special unusual circumstance case would justify waiver debt considerationit common ground overpayment case debt correctly calculated computing record contact applicant department t17 show record notification department applicant employment mimili prior 8 march 2002 march notification recorded t17 170 consistent applicant evidence notification made brother applicant evidence tribunal varied respect evidence gave ssat decision contained t2 giving evidence ssat applicant claimed received letter centrelink brother notification 8 march 2002 centrelink advised dsp cancelled made mistake would need pay back money centrelink would pursue letter appears centrelink record could applicant produce copy letter time ssat hearing evidence given tribunal applicant evidence tribunal heard nothing centrelink debt raised 2006 tribunal found applicant telling truth best ability recall time faulty tribunal satisfied mr lye truthful evidence recall providing centrelink telephone number applicant aware applicant contacting centrelink changed circumstance soon arrival mimili finding factthe tribunal made following finding applicant commenced work mimili aboriginal community 13 december 2001 time recipient dsp applicant time aware obligation notify changed circumstance centrelink many year regularly notified centrelink income change may affect dsp tribunal satisfied balance probability applicant make notification change circumstance department early january 2002 due departmental error notification recorded action taken department second notification applicant brother department march 2002 applicant saw bank statement march 2002 realised paid dsp january february 2002 knew entitled fund expected department would follow overpayment applicant wife home mildura modest financial circumstance debt significant reached point life likely solely dependent centrelink payment support reason clear explained department overpayment raised early 2006 four year event consideration application lawthe tribunal satisfied case administrative error occurred accepts evidence applicant supported wife mr lye notified centrelink changed circumstance telephone contact call centre early january 2002 section 1237 act provides secretary must waive right cover proportion debt attributable solely administrative error payment received good faith recipient case thesecretary department education employment training youth affair v prince 1997 128 alr 127 justice finn federal court analysed meaning received good faith context thestudent youth assistance act 1973 wording relevant section act identical word used 1237 act took narrow view meaning received good faith case similar fact case recipient payment unaware receiving payment period time became aware received payment made attempt stop ongoing payment question whether received payment good faith became aware retrospectively justice finn commented p 131 follows clear present case relevant time 22 december 1993 mr prince actually knew entitlement receive austudy payment consequence could never claim payment received deetya austudy payment 1994 received good faith even though time receipt first three unaware received payment word receipt otherwise good faith recipient unaware payment received short answer view yes knowing relevant period entitlement receive austudy payment never position able assert mistaken payment made one entitlement thus may received payment ignorant could sense explained received good faith based onprince scase cannot said applicant case received payment dsp good faith aware receiving payment march 2002 however soon saw payment account knew payment entitled quite properly arranged brother make notification centrelink circumstance 1237 act applicable case special circumstance case appropriate waive debt pursuant 1237aad act special circumstance arise fact individual case accepted circumstance special must something unusual uncommon exceptional arising circumstance case inre beadle director general social security 1984 6 ald 1 tribunal summarised position follows expression special circumstance nature incapable precise exhaustive definition qualifying adjective look circumstance unusual uncommon exceptional whether circumstance answer description must depend upon context occur context allows one say circumstance one case markedly different usual run case say circumstance must unique must particular quality unusualness permit described special legislation provides special circumstance must something hardship alone case applicant aware extra payment paid hoped centrelink would seek recovery debt eventually fact working remote community justification applicant keeping benefit fund incorrectly paid chosen work interesting remote location many year choice fact give rise special circumstance case applicant wife home mortgage reached point life probably rely entirely social security benefit support future wife surgery although applicant elaborate point unusual exceptional circumstance nothing significantly ordinary applicant circumstance tribunal satisfied anything unusual exceptional uncommon case would warrant finding special circumstance justify waiver debt tribunal considered whether write applicable section 1236 act case applicant capacity repay debt deduction current centrelink payment basis write section circumstance tribunal affirms decision review certify 45 preceding paragraph true copy reason decision herein senior member l hastwellsigned j coulthard associatedate hearing 19 march 2007date decision 2 may 2007advocate applicant personcounsel respondent m c knightsolicitor respondent dla phillips fox

Tully Sugar Limited [2021] FWCA 5235 (24 August 2021).txt

tully sugar limited 2021 fwca 5235 24 august 2021 last updated 27 august 2021 2021 fwca 5235fair work commissiondecisionfair work act 2009s 185 enterprise agreementtully sugar limited ag2021 6519 tully sugar limited enterprise agreement 2021sugar industrycommissioner simpsonbrisbane 24 august 2021application approval tully sugar limited enterprise agreement 2021 1 application made approval enterprise agreement known thetully sugar limited enterprise agreement 2021 agreement application made pursuant tos 185of thefair work act 2009 act made tully sugar limited agreement single enterprise agreement 2 applicant provided written undertaking satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement 3 subject undertaking referred satisfied requirement ofss186 187and188as relevant application approval met undertaking taken term agreement 4 noting clause 2 agreement satisfied beneficial entitlement ne act prevail inconsistency agreement ne 5 automotive food metal engineering printing kindred industry union known australian manufacturing worker union amwu australian worker union awu communication electrical electronic energy information postal plumbing allied service union australia etu lodged form f18 statutory declaration supporting approval agreement giving notice unders 183of act want agreement cover 6 accordance withs 201 2 act note agreement cover amwu awu etu 7 agreement approved operate accordance withs 54of act commissionerprinted authority commonwealth government printer ae512853pr733144

Remely v Minister for Immigration and Border Protection [2014] FCA 619 (23 May 2014).txt

remely v minister immigration border protection 2014 fca 619 23 may 2014 last updated 16 june 2014federal court australiaremely v minister immigration border protection 2014 fca 619citation remely v minister immigration border protection 2014 fca 619appeal application extension time leave appeal remely v minister immigration anor 2014 fcca 428remely v minister immigration anor 2014 fcca 428parties otto remely arun nepal v minister immigration border protection migration review tribunalfile number qud 124 2014judge logan jdate judgment 23 may 2014catchwords migration application extension time related leave appeal appeal decision federal circuit court whether first appellant standing whether second appellant application joinder dealt federal circuit court whether second appellant denied procedural fairnessheld granting extension time related leave appeal hearing determining appeal instanter second appellant joinder application never dealt federal circuit court related denial procedural fairness dismissal judicial review application joinder ordered proceeding remitted federal circuit court substantive hearinglegislation migration act 1958 cth s 477 479 486cpowers attorney act 1998 cth 8cases cited basbas v minister immigration multicultural indigenous affair 2002 fca 1602citeddobson v australian postal corporation 2013 fca 320citedejueyitsi v bond university 2012 fca 1514citedhuang v abayawickrama 2012 fca 1504citedionannou v commonwealth australia 2012 fca 1228citedmelbourne steamship co ltd v moorehead 1912 hca 69 1912 15 clr 333consideredo donoghue v australian information commissioner 2012 fca 1219citedsingh v owner stratum plan 11723 4 2012 fca 1180citedszrur v minister immigration border protection 2013 fcafc 146 2013 216 fcr 445citedtinkler v elliott 2012 er 94 2012 ewca civ 1289consideredyong v ministerfor immigration multicultural affair 1997 75 fcr 155citeddate hearing 23 may 2014place brisbanedivision general divisioncategory catchwordsnumber paragraph 51counsel appellant appellant appearcounsel respondent mr stokersolicitor respondent clayton utzin federal court australiaqueensland district registrygeneral divisionqud 124 2014on appeal federal circuit court australiabetween otto remelyfirst appellantarun nepalsecond appellantand minister immigration border protectionfirst respondentmigration review tribunalsecond respondentjudge logan jdate order 23 may 2014where made brisbanethe court order respect application mr arun nepal mr otto remely extension time within seek leave appeal related application leave appeal respect judgment order federal circuit court dated 11 march 2014 mr nepal granted extension time related leave appeal much judgment order dismissed much application case filed 19 september 2013 sought substitution mr nepal applicant party review decision migration review tribunal 26 april 2013 dismissed application migration act 1958 cth dated 28 march 2013 review tribunal decision mr remely granted extension time related leave appeal much judgment order federal circuit court 11 march 2014 ordered pay first respondent minister cost fixed sum 4 636 save aforesaid application mr nepal mr remely extension time within seek leave appeal related leave appeal dismissed appeal mr nepal mr remely heard determinedinstanter following order made federal circuit court 11 march 2014 set aside order application case filed 19 september 2013 dismissed order application migration act 1958 cth filed 28 may 2013 dismissed order mr remely pay respondent cost fixed amount 4 636 lieu order set aside mr nepal substituted applicant application migration act 1958 cth filed 28 may 2013 mr nepal granted pursuant tos 477of themigration act 1958 cth extension time necessary enable applicant proceeding end substitution applicant operatenunc pro tuncon 28 may 2013 save aforesaid application case filed 19 september 2013 dismissed question cost incidental application case filed 19 september 2013 reserved proceeding remitted federal circuit court hearing determination according law application case filed 16 april 2014 dismissed application case filed 24 april 2014 dismissed order cost appeal district registrar send copy order forthwith upon entry mr nepal mr remely address specified notice appeal note entry order dealt rule 39 32 thefederal court rule 2011 federal court australiaqueensland district registrygeneral divisionqud 124 2014on appeal federal circuit court australiabetween otto remelyfirst appellantarun nepalsecond appellantand minister immigration border protectionfirst respondentmigration review tribunalsecond respondentjudge logan jdate 23 may 2014place brisbanereasons judgmentas long ago 12 august 2010 mr arun nepal applied minister immigration citizenship first respondent office known minister themigration act 1958 cth act visa known partner temporary class uk visa 2 february 2011 delegate minister refused mr nepal application mr nepal sought review decision migration review tribunal tribunal 26 april 2013 tribunal finally decided outcome review application date tribunal decided affirm decision minister delegate grant mr nepal partner temporary class uk visa numerous criterion must satisfied relation particular visa specified themigration regulation 1994 cth regulation made act critical one proved proceeding tribunal specified clause 820 211 2 requires materially time visa application visa applicant spouse de facto partner australian citizen australian permanent resident eligible new zealand citizen regulation require visa applicant sponsored spouse de facto partner sponsoring person person advanced visa application de facto partner mr nepal mr otto remely deciding affirm decision minister delegate tribunal elaborate detailing consideration material stated paragraph 97 satisfied time application mr nepal mr remely de facto partner tribunal considered fatal setting aside minister delegate decision 20 may 2013 application naming mr remely applicant minister migration review tribunal first second respondent respectively filed federal circuit court application mr remely sought judicial review tribunal decision six ground specified application first direction hearing date respect judicial review application fixed court 24 july 2013 letter 18 july 2013 sent express post post office box address bundaberg nominated mr remely judicial review application address service solicitor minister drew attention two section act namely 479 486c materially effect 479 applicant review tribunal mr nepal competent applicant judicial review tribunal decision court see 479 doubt position put rest 486c 2 act effect circumstance also mr nepal mr remely competent applicant judicial review drawn attention letter 18 july 2013 section related pertinent authority court minister solicitor stated mr nepal wish continue proceeding apply court amend title proceeding substitute name arun nepal name otto remely name applicant proceeding letter minister solicitor also advised held instruction apply court dismiss proceeding first court date event application substitution applicant 24 july 2013 federal circuit court judge burnett ordered materially application adjourned pending application made mr arun nepal joined party application honour ordered matter adjourned mention 9 30 7 august 2013 31 july 2013 mr remely filed application federal circuit court order visa applicant mr arun nepal joined party application filed support application affidavit affirmed mr nepal stated following partner otto live unit queensland housing living together four year happy together need understand legal stuff could like otto work picker local farm last year income 12 043 otto government pension money used living worry much able stay otto lawyer law requires become party application want want otto speak u letter dated 2 august 2013 addressed sent mr remely minister solicitor put application filed 30 july 2013 comply court order made 24 july 2013 relation application made mr nepal joined party application minister solicitor continued sufficient file affidavit mr nepal saying want become party proceeding want speak mr nepal want become party proceeding must make application joined minister solicitor requested rectified would ask court 7 august 2013 interlocutory application filed 31 july 2013 originating application filed 28 may 2013 dismissed cost 7 august 2013 federal circuit court judge burnett ordered application adjourned mention 27 august 2013 another judge court judge coates sitting bundaberg face order recites applicant behalf practitioner minister tribunal heard clear whether mr remely date heard person via telephone result substantive dealing originating application seems earlier interlocutory application bundaberg 27 august 2013 rather adjournment thereafter 19 september 2013 interlocutory application filed federal circuit court occasion application stated made mr remely mr nepal order sought following appears amend original application undermigration actas follows applicant name mr otto remely amended mr otto remely representing mr arun nepalor alternativemr arun nepal applies person power attorney mr otto remelyor alternativemr arun nepalanddismiss application summary dismissal validly made respondent sic emphasis original support application affidavit mr nepal affidavit mr remely made 17 september 2013 filed 19 september 2013 affidavit 17 september 2013 mr nepal stated made similar affidavit say thing extra first applied visa fill form otto agent new court sign additional form make otto power attorney otto hearing 7 august 2013 tafe college hearing begin otto ask man make phone louder also ask judge said okay make one way list summary dismissal understand mean otto upset phone judge loud could almost hear could hear anybody else room end judge said otto get legal advice money lawyer otto tried good attached affidavit document entitled particular application amend originating application summarily dismiss originating application document signed mr remely mr nepal interestingly penultimate paragraph document mr remely mr nepal draw attention judgment full court court inyong v ministerfor immigration multicultural affair 1997 75 fcr 155in turn reference made passage judgment griffith cj inmelbourne steamship co ltd v moorehead 1912 hca 69 1912 15 clr 333at 342 point purely technical point pleading cannot refrain expressing surprise taken behalf crown used regarded axiomatic crown never take technical point even civil proceeding anda fortiorinot criminal proceeding sometimes inclined think part commonwealth old fashioned traditional almost instinctive standard fair play observed crown dealing subject learned long time ago regard elementary either known thought date glad think mistaken emphasis original set passage mr remely mr nepal conclude document way respectfully submitted indeed justifiable name description applicant application amended way court considers appropriate application order show cause dismissed sic interlocutory application filed 19 september 2013 though originally fixed hearing 27 september 2013 came result heard court judge coates 17 october 2013 seems hearing day entailed appearance telephone mr remely apparent honour later reason judgment whether mr nepal appeared day spoke via mr remely court permission event 11 march 2014 reason honour published following order made federal circuit court title proceeding amended deleting description first respondent minister immigration citizenship inserting description minister immigration border protection 2 application case filed 7 august 2013 dismissed 3 application case filed 19 september 2013 dismissed 4 application migration actfiled 28 may 2013 dismissed applicant pay respondent cost fixed amount 4 636 sic reference order application filed 7 august 2013 would appear error instead intended reference application filed 31 july 2013 28 march 2014 notice appeal order made 11 march 2014 filed court two named appellant mr remely mr nepal signed notice appeal apart taking issue whether truly application summary dismissal federal circuit court also respect efficacy purpose subject litigation power attorney ground specified notice included ground 2 application substitute name validly made mr nepal sic proceeding instituted accordance court usual practice respect exercise appellate jurisdiction listed hearing today brisbane notice appeal filed solicitor minister filed objection competency objection competency grounded upon proposition judgment federal circuit court 11 march 2014 interlocutory judgment leave appeal thereby required none sought none granted appeal incompetent turn drew application messrs nepal remely leave appeal related extension time within seek leave application also listed hearing today meantime mr remely reading correspondence concerned fairly also mr nepal made interlocutory application hearing today conducted telephone insofar concerned heard interlocutory application 14 may 2014 day permitted mr remely appear purpose application telephone also permitted response request regard speak behalf also behalf mr nepal made plain day permission solely purpose proceeding day result decided permit appearance telephone today though order pronounced orally time vary listing time today 10 15 10 30 shall elaborate shortly proceeding called morning 10 30 appearance behalf either mr nepal mr remely absence appearance confirmed position communicated telephone earlier morning mr remely court district registrar advised mr nepal would appearing mr remely also made reference telephone call affidavit medical certificate said sent post court advised district registrar affidavit certificate received morning mail search district registrar caused conducted registry unearthed correspondence yet received registry communication mr remely position communicated counsel minister commencement hearing behalf minister submission made hearing nonetheless proceed question whether grant extension time related leave appeal dealt substantively along question appeal competency particularly reason shall shortly set seemed convenient appropriate way proceed turning merit question whether extension time grant leave appeal either messrs nepal remely brief summary given reason federal circuit court made order 14 march 2014 referred mr nepal affidavit 31 july 2013 particular passage affidavit wherein stated law requires become party application want want otto speak u primary judge stated paragraph 17 note state want become party applicant accepted change title respondent minister technical amendment honour observed paragraph 25 applicant case change title effectively applicant different nature noted honour used singular rather plural reference described case change title effectively applicant honour stated reason paragraph 26 unknown reason despite everything said court would allow mr nepal personally file application applicant seek add mr nepal party honour devoted considerable attention question whether nots 8of thepowers attorney act 1998 qld effect authorising donee power attorney institute legal proceeding application judicial review themigration acton behalf another honour concluded paragraph 50 applicant cannot simply sidestep restriction relying mishmash provision interpretation meaning overcome plainly stated power available undersection 8of thepowers attorney act regard 479 486c act court judgment inbasbas v minister immigration multicultural indigenous affair 2002 fca 1602 honour concluded mr remely power challenge decision tribunal power attorney purported exercise incapable rectifying standing issue reason honour concluded interlocutory application filed 19 september 2013 dismissed originating application filed 28 may 2013 dismissed federal circuit court minister position informed doubt never question court minister opposing granting extension time necessary mr nepal become applicant judicial review section 477 act specifies 35 day time limit grant federal circuit court power extend period court considers appropriate interest administration justice position adopted behalf minister relation extension time nicely exemplified sense fair play griffith cj referred passage set quoted messrs nepal remely document 17 september 2013 deciding proceeding heard today brisbane notwithstanding application made messrs remely nepal particularly took account experience course hearing application 14 may 2014 dealing telephone mr remely even respect application narrow focus became evermore apparent mr remely inclined garrulous found difficulty focusing upon particular issue day namely whether adjournment material upon mr remely relied time made plain suffering number medical difficulty also expecting take offer remedial surgery brisbane next month june taking account medical difficulty course hearing 14 may 2014 offered mr remely appeal related application could heard bundaberg probably week starting 26 may 2014 minister exemplifying sense fairness griffith cj referred indicated would objection course rather reverse mr remely declined offer course hearing basis presented advantage said document concerned set computer home thereby able enlarge larger font 16 point course hearing minister signified would provide 16 point expanded version bundle relevant document document hearing conducted brisbane 14 may 2014 remain view would quite impossible regard myriad issue related document entailed hearing appeal objection competency application extension time related leave appeal application conducted proceeding mr remely heard telephone remain view particularly regard way mr remely conducted 14 may 2014 lest thought adversely critical element observation garrulousness record mr remely reason set shortly every reason upset administration justice court term result ultimately occurred abundance evidence support existence strong bond mr nepal mr nepal every reason upset administration justice transpired court even still necessary degree difference orderly conduct judicial proceeding must attend making submission proceeding conducted telephone issue one deeply personal even following one permitted permitted make submission deferring judicial control proceeding difficult litigant person difficulty display 14 may 2014 choice 14 may 2014 difficult one indeed hearing telephone appropriate today hearing locally declined remained usual position exercise jurisdiction brisbane deciding retain hearing amend slightly commencement time took account availability rail travel bundaberg brisbane particular rom street railway station short distance commonwealth law court also took account need ready access taxi railway station minister submission respect notice appeal objection competency application leave entailed endeavour defend decision albeit hearing today evolved increasingly faintly difficulty greatest respect primary judge honour failed appreciate joinder application mr remely even mr remely behalf mr nepal mr nepal right making observation say least light experience case fully conscious difficulty attend dealing litigant person generally litigant particular apparent portion affidavit quoted mr nepal limited english literacy nothing though would suggest incapable communicating english quite reverse one read affidavit related interlocutory application desire challenge tribunal decision federal circuit court patent absence recognition nature application court fatal minister submission extension time related grant leave appeal refused raised behalf minister even particular flaw way court dealt much application entailed application mr nepal become applicant party extension time related grant leave appeal nonetheless refused one regard ground review conclusion would reached application review reasonable prospect success accept fully prospect considered application extension time related grant leave appeal difficulty neither mr remely even particularly mr nepal never squarely put notice alternative basis upon application grant extension time related grant leave appeal would opposed futile passing reference subject minister submission particular question raised higher upon reflection exhibiting sense fairness referred griffith cj counsel behalf minister quite properly observed would feel uncomfortable event application extension time related grant leave appeal dealt basis intinkler v elliott 2012 er 94 2012 ewca civ 1289at 32 vice president kay lj munby lewison ljj agreed made following observation respect attempt well time litigant person challenge judgment given original jurisdiction accept may fact circumstance relation litigant person may go assessment promptness judgment operate close margin opponent litigant person entitled assume finality without expecting excessive indulgence extended litigant person number judge court included expressed agreement sentiment voiced court appeal seeejueyitsi v bond university 2012 fca 1514 ioannou v commonwealth australia 2012 fca 1228 mckerracher j donoghue v australian information commissioner 2012 fca 1219 mckerracher j singh v owner stratum plan 11723 4 2012 fca 1180 griffith j huang v abayawickrama 2012 fca 1504 rares j anddobson v australian postal corporation 2013 fca 320 excessive indulgence one thing miscarriage justice another relation prospect important recall least exercise judicial power must entail affording procedural fairness circumstance particular case full court offered recent reminder inszrur v minister immigration border protection 2013 fcafc 146 2013 216 fcr 445 szrur primary judge present case notably referred toszrurin observing paragraph 87 procedural fairness extended applicant possible applicant party procedural fairness entailed amongst thing dealing joinder application made observed patent one read application 19 september 2013 mr nepal wanted applicant application never dealt merit instead doubtless reacting course proceeding took 13 october 2013 primary judge unfortunately diverted interesting ultimately irrelevant question whether mr remely could holder power attorney institute judicial review proceeding name behalf mr nepal need consider point mr nepal always sought least alternative applicant name nothing court suggest mr nepal required even next friend conduct litigation point served separate later hearing appeal instead argument respect application extension time leave treated respect appeal proper appeal determined instanter mr nepal mr remely granted extension time leave appeal limited basis limited basis must reflect effect 477 486c act also nature interest respectively affected order made court 11 march 2014 mr remely cannot applicant judicial review extent order made dismissed much application 19 september 2013 sought make applicant disturbed honour though proceeded basis mr remely applicant made cost order given misapprehended basis upon case came dealt mr remely challenge confined leave cost order cost order set aside mr nepal interest pervasive particularly light commendably benign stance adopted minister relation grant extension time 477 mr nepal nature interlocutory application truly understood granted extension time within bring judicial review application name ought substituted existing application applicant cost order made much order made 19 september dismissed application become applicant party set aside requisite grant insofar may needed extension time within bring judicial review application order challenge 7 august 2013 adjournment order disturbed effect substantively adverse either mr remely mr nepal mr nepal given opportunity heard relation merit judicial review application would inappropriate deal merit reason judgment even though fully accept least pause thought mr nepal prospect success merit application always greatest respect federal circuit court hear determine according law must order remitter enable occur mr remely also filed application 6 april 2014 dealing subject mr nepal temporary bridging visa application respect misconceived regard order propose make today event unnecessary act particular effect given regularising challenge tribunal decision respect bridging visa mr nepal mr remely also filed separate application really substance submission concerning adequacy service objection competency satisfied minister employed mean authorised rule serve notice event come mr remely matter mr nepal attention well advance hearing today injustice entailed hearing objection competency today regard order otherwise made objection competency must fail certify preceding fifty one 51 numbered paragraph true copy reason judgment herein honourable justice logan associate dated 16 june 2014

LEPOIDEVIN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 142 (28 August 2020).txt

lepoidevin v state western australia 2020 wasca 142 28 august 2020 last updated 31 august 2020jurisdiction supreme court western australiatitle court court appeal wa citation lepoidevin v state western australia 2020 wasca 142coram bus pheard 28 august 2020delivered 28 august 2020file cacr 92 2020between luke david lepoidevinappellantandthe state western australiarespondentjurisdiction district court western australiacoram maclean dcjfile number ind 1532 2019criminal law appeal sentence application bail pending hearing appeal exceptional circumstance turn factslegislation bail act 1982 wa result application bail dismissedprogramming order madecategory brepresentation counsel appellant mr b wattersrespondent m yeungsolicitors appellant mark andrew legalrespondent director public prosecution wa case referred decision bus p reason delivered extemporaneously edited transcript appellant charged indictment three count count 1 alleged 28 january 2019 mirrabooka appellant made threat intent compel alan joel falkson act lawfully entitled abstain contrary s338a f thecriminal code wa code count 2 alleged date place appellant wilfully unlawfully damaged garage roller door property mr falkson contrary 444 1 b code count 3 alleged date place appellant wilfully unlawfully damaged window property mr falkson contrary 444 1 b code appellant convicted plea guilty charged offence maximum penalty count 1 7 year imprisonment maximum penalty count 2 3 10 year imprisonment 12 june 2020 maclean dcj sentenced appellant 18 month immediate imprisonment count 1 6 month immediate imprisonment count 2 6 month immediate imprisonment count 3 honour ordered sentence count 2 served cumulatively upon sentence count 1 sentence count 3 served concurrently sentence count 1 total effective sentence therefore 2 year immediate imprisonment sentence count 1 total effective sentence backdated 11 june 2020 parole eligibility order made appellant appealed sentence court 10 august 2020 appellant filed appellant case appellant relies upon three ground appeal ground 1 alleges sentencing judge erred fact law finding appellant psychiatric illness undiagnosed untreated time offending cause contribute offending meaningful way reduce moral culpability ground 2 alleges honour erred finding appellant psychiatric illness way reduce significance general deterrence ground 3 alleges honour erred law failing allow appellant reasonable opportunity adduce evidence appellant psychiatric illness contributed offending extent contributed offending fact circumstance offending summary follows 5 45 pm 28 january 2019 appellant home wife candice lepoidevin twin daughter aged 7 mr lepoidevin son aged 14 appellant mr lepoidevin separated time remained living house appellant endeavouring watch television became upset child disruptive 6 30 pm 28 january 2019 appellant shouting child acting manner caused mr lepoidevin become concerned childrens welfare mr lepoidevin decided take child parent home mirrabooka safety arrived 6 45 pm 7 00 pm appellant realised mr lepoidevin child departed telephoned father law mr falkson confirm child mr falkson home telephone call mr falkson told appellant come home leave child night went mr falkson home appellant sent text message mr lepoidevin asserted include sick mum promise take everything love world wanted make come never get back court history way manipulated centrelink putting away type 6 month example others test please destroy everything know existence fuck nothing lose lose life appellant enraged drove motor vehicle mr falkson home appellant drove driveway began sound vehicle horn response appellant walked wall saw mr falkson inside residence appellant began threaten make gesture mr falkson appellant wanted mr falkson come outside mr falkson refused appellant returned vehicle drove vehicle deliberately roller door garage caused roller door buckle appellant aware several people inside residence including mr lepoidevin child however appellant refused accept unwelcome appellant also refused accept mr lepoidevin wanted away wanted keep child erratic behaviour earlier evening appellant went bedroom window front residence used brick paver similar object smash window appellant reached broken window pulled blind broken window appellant carrying action shouted threat mr falkson called mr lepoidevin child appellant smashed window mr falkson ran bedroom appellant shouted mr falkson going kill appellant continued effort break residence continued threaten kill mr falkson appearing appellant carry threat mr falkson sprayed appellant pepper spray appellant returned vehicle police arrived shortly afterwards arrested appellant appellant threatened mr falkson purpose compelling let appellant home information sentencing judge included report dated 14 december 2019 christian hetebry clinical psychologist report dated 12 february 2020 dr mathew samuel consultant psychiatrist report mr hetebry said appellant attended session mr hetebry 2 february 2019 9 february 2019 16 march 2019 22 june 2019 b assessment appellant mr hetebry developed impression appellant suffering post traumatic stress disorder dating back incident appellant ambulance service volunteer approximately age 19 c mr hetebry also noted several aspect appellant account led mr hetebry consider ptsd diagnosis mr hetebry referred appellant history sustained sleeping difficulty year nightmare regarding incident appellant ambulance service volunteer hyper vigilance regarding daughter mr hetebry also noted appellant history included appellant drinking heavily manage anxiety tension mr hetebry expressed view feature appellant history seemed likely linked behaviour leading arrest appellant preoccupation hyper vigilance regarding child safety appellant described mr hetebry build anxiety tension leading incident mr hetebry view seemed conceivable led poor judgment mr hetebry added conceivable appellant hyper vigilance regarding child safety combined reported fatigue poor sleep led state hyper arousal sense reality skewed e mr hetebry concluded remains leading hypothesis appellant behaviour extreme manifestation long standing undiagnosed ptsd report dr samuel said appellant psychotic symptom appellant denied suicidal homicidal thought reasonable insight dr samuel diagnosed appellant suffering post traumatic stress disorder alcohol dependence sentencing judge found appellant offending conduct calculated deliberate sustained t 59 appellant persistent effort gain entry mr falkson home demonstrated appellant capacity realise threat making honour said subject appellant threat principally mr falkson believed appellant every intent carrying threat honour also said appellant overall offending represented serious example domestic violence honour doubt appellant behaviour terrified witness sentencing judge noted appellant point give indication would voluntarily desist course conduct stopped mr falkson sprayed pepper spray honour allowed appellant discount 20 pursuant tos 9aaof thesentencing act 1995 wa respect individual sentence account appellant plea guilty sentencing judge found appellant remorseful action satisfied remorse entire complete t 9 honour accepted appellant degree insight offending behaviour engaged counselling appellant prior criminal record february 2019 shortly commission offence question bail offence appellant breached violence restraining order protective bail condition contacting wife text message convicted breach fined appellant convicted 2006 assaulting public officer disorderly behaviour obstructing public officer also conviction driving offence sentencing judge referred written reference author spoke well appellant honour accepted appellant suffers post traumatic stress disorder disorder mitigating factor however sentencing judge accept meaningful way post traumatic stress disorder explained appellant offending reduced appellant culpability offending reduced significance general deterrence t 12 honour satisfied mental illness suffered appellant causative offending conduct sentencing judge opinion mr hetebry diagnosis put forward tentative basis without condescending either reasoning process experience qualification disorder operated appellant particular case honour made similar observation relation dr samuel report t 13 honour referred report dr johan brink general medical practitioner stated appellant suffers significant cirrhosis liver result long term heavy alcohol use honour said medical condition would make onerous appellant serve term immediate imprisonment person good health 7 august 2020 appellant filed application appeal order granted bail pending determination appeal alternatively granted expedited hearing application supported affidavit lawyer trent mark andrew sworn 6 august 2020 appellant application relies upon three broad submission first asserted strength ground appeal secondly appeal allowed likely resentencing result suspended term imprisonment thirdly bail granted order expedited hearing made appellant served significant portion sentence appeal heard determined state opposes grant bail oppose granting expedited hearing appeal principle relating granting bail pending determination appeal sentence well established summarised inserukai v state western australia 1 unnecessary repeat 24 august 2020 appellant filed another application appeal leave rely upon additional evidence support application bail namely affidavit mr andrew sworn 21 august 2020 mr andrew affidavit annexed relevantly detailed report mr hetebry dr samuel prepared sentencing judge sentenced appellant hearing dismissed application appeal filed 24 august 2020 reason first ground 1 2 appeal allege express error honour however honour cannot made error failing take account material secondly ground 3 appeal alleges effect denial procedural fairness honour ground weak ground relevantly advanced present purpose proposed additional evidence considered material relied upon appellant support application bail properly admissible support application including mr andrew affidavit sworn 6 august 2020 appellant written submission also taken account oral submission made counsel appellant today satisfied stage merit appellant appeal including whether different sentence imposed sufficient strength justify grant bail circumstance satisfied exceptional reason appellant kept custody pending determination appeal appellant application bail dismissed however persuaded order made expediting extent hearing appeal accordingly make order follows 1 appellant application appeal filed 24 august 2020 leave rely upon additional evidence support application bail dismissed 2 respondent file serve respondent answer 4 00 pm 25 september 2020 3 appeal listed hearing 10 30 6 november 2020 4 otherwise appellant application appeal filed 7 august 2020 dismissed certify preceding paragraph comprise reason decision supreme court western australia jmresearch associate honourable justice buss31 august 2020 1 serukai v state western australia 2020 wasca 127 12 15

R v JG (No2) [2009] NSWSC 1055 (5 November 2009).txt

r v jg no2 2009 nswsc 1055 5 november 2009 last updated 30 march 2010new south wale supreme courtcitation r v jg no2 2009 nswsc 1055jurisdiction file number 2009 779hearing date 10 08 2009judgment date 5 november 2009parties reginajgjudgment buddin jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel p barrett crown buscome accused solicitor kavanagh solicitor public prosecution giddy crittenden accused catchword criminal law accused charged ex officio indictment murder wife objection statement provided police accused nature missing person report statement tape recorded whether time accused could reasonably suspected committed offence purpose ofs 281of thecriminal procedure act 1986legislation cited criminal procedure act 1986category procedural rulingscases cited gonzales v r 2007 nswcca 321 2007 178 crim r 232at 248hadjigeorgiou v crime commission nsw 2007 174 crim r 124kelly v r 2004 hca 12 2004 205 alr 274r v crowther wilkinson cowie 2003 nswsc 44 2003 138 crim r 473r v frangulis 2006 nswcca 363r v horton 1998 45 nswlr 426r v rowe 2001 nswcca 1 2001 50 nswlr 510r v taouk 2005 nswcca 155 2005 154 crim r 69r v villa 2005 nswcca 4texts cited decision evidence statement accused admitted judgment supreme courtof new south walescommon law divisionbuddin j5 november 20092009 779 r v jg 2 judgment application exclude statement accused 7 february 20021 honour accused charged murdered wife shall refer cg 12 january 2002 police first became aware matter accused attended gladesville police station 6 february 2002 informed cg missing last seen 13 january 2002 arrangement accused returned police station following day 7 february 2002 provided signed statement set detail information concerning nature relationship cg circumstance according disappeared 2 jury empanelled objection taken admissibility statement upon basis compliance term ofs 281of thecriminal procedure act 1986in procedure tape recorded contended however accused cautioned making statement 9 september 2009 overruled objection reason ruling 3section 281is following term admission suspect 1 section applies admission made accused person time admission made could reasonably suspected investigating official committed offence b made course official questioning c relates indictable offence indictable offence dealt summarily without consent accused person 2 evidence admission section applies admissible unless available court tape recording made investigating official interview course admission made ii prosecution establishes reasonable excuse tape recording referred subparagraph could made tape recording interview person made admission interview making term admission course person state made admission term b prosecution establishes reasonable excuse tape recording referred paragraph could made 3 hearsay rule opinion rule within meaning theevidence act 1995 prevent tape recording admitted used proceeding court mentioned subsection 2 4 section investigating officialmeans police officer police officer engaged covert investigation order superior b person appointed act person engaged covert investigation order superior whose function include function respect prevention investigation offence prescribed regulation official questioningmeans questioning investigating official connection investigation commission possible commission offence reasonableexcuseincludes mechanical failure b refusal person questioned questioning electronically recorded c lack availability recording equipment within period would reasonable detain person questioned tape recordingincludes audio recording b video recording c video recording accompanied separately contemporaneously recorded audio recording 4 informed crown case accused entirely circumstantial one evidence reveals cg seen since 12 january 2002 occasion complete stranger purported done occurred wake medium publicity disappearance man question said recognised short conversation shopping centre crown case false sighting 5 cg body never recovered forensic evidence link accused disappearance however evidence available crown seek tribunal fact infer cg victim foul play unnecessary present context refer evidence detail also evidence crown seek tribunal fact infer accused motive opportunity kill wife crown also informed seeking impugn version event given accused police person untruthful 6 statement subject present application accused provided police following information shortly mg son born cg sustained formof anxiety attack doctor identify exactly itwas mental state highly erratic became quiteoverwhelming time kind polarised hertemperament changed time november 1999 car accident passenger vehicle grandmother funeral procession result accident ruptured spleen trauma caused alopecia type illness hair loss never accident developed even greater paranoia health consuming obsessed health occasion cause fight verbal altercation know exactly fought crazy three half week ago cg argument think date sunday 13th january 2002 overly hostile however long duration began 11pm subsided two three hour later unfortunately never really completely started initially holiday take avoca ex wife offered use holiday flat cg ultimately resented gesture incident argued upcoming move parent house cg move remainder arguing centred around cg family cg step mother always hated cg belief always coming father escalated recent funeral blatant kept father away cg furious real issue raised issue argument towards end argument cg decided leave began packing bag included two large black suitcase soft cover pull handle also packed green garbage bag put clothing make bag last word remember saying got score settle coming back settle recollection left seven eight following morning car slept week later cg still returned moved parent house cg left concerned slightest returned consistent character two week still returned way knowing contacting let take mobile left phone number xxxx xxx xxx also took 3000 4000 whitman chocolate box money emergency kept study area wednesday 6th february attended gladesville police station effort see police could help contact stage still overly concerned well kid look need care cg access commonwealth national australia bank keycard two account exclusively cg work would relying cash took keycard survive much money either two account also investment account grandmother inheritance however touch account idea gone wherever requiring heavy prescription drug due condition 7 said accused initially went police station 6 february 2002 spoken 11 30 inspector kaesler capacity duty officer inspector kaesler one four police officer former police officer gave evidence voir dire spoke accused first came report wife missing 8 statement prepared recently inspector kaesler recorded following information concerning conversation accused day passage time difficult remember exactly accused said best memory talking accused said getting concerned returned home long done always returned within five six day asked gone make argument ask said many time done said done four occasion gone two five day last time went june 2001 left five six day accused given necessary information told go home collect recent photo cg told check local hospital contact friend cg let know reported missing told come next day photo contact detail cg friend police would obtain statement said would come give police photo friend contact detail reason asked make statement matter procedure indicated previously detail included cop entry given accused accepted detail true correct accepted everything told face value absolutely reason doubt anything said speaking accused conversation detective indicating taken missing person report would returning next day photo contact detail cg friend never time considered jg suspect reported wife missing never mentioned detective considered suspect honest time took report finished work felt sorry simply told today read cop entry entered onto system standby everything included narrative 9 cop entry upon relied create statement contains following information concerning accused told 11 30 wednesday 6 2 02 mp husband attended gladesville police station seek assistance police locating wife stated mp left home result argument 3 4 week ago heard since argument number relationship matter included 1 unhappiness respect moving living husband parent 2 fact couple home 3 dissatisfaction general lifestyle issue jg claim wife left manner 4 occasion period absence ranged 2 day 5 day reported missing occasion established whereabouts period absence jg state last time wife went missing june 2001 period 5 6 day jg state attempting discus mp absence home created argument decided press mp detail period absence mp turned friend family safe refuge according husband mp husband state one week left home approx 22 1 02 moved rented home back home parent mp abandoned child cv mg currently residing step father father mp husband claim left home throwing clothes plastic bag driving black dark green holden commodore registered number xxx xxx mp husand sic state argument took place around 15 1 02 early hour morning 6am witnessed child werre sic sleeping mp husband state mp made contact child since leaving mp husband state sic mp left home possession whitman chocolate box containing several thousand dollar cash estimated 3 000 also advised mp banking account commonwealth bank top ryde macquarie centre containing substantial amount inheritance money mp husband joint cheque account appear accessed mp 10 accepted counsel acting behalf accused objection could taken inspector kaesler giving evidence conversation accused day 11 cop entry prepared inspector kaesler also includes information provided member deceased family day mp father made contact police 1pm 6 2 02 concerned fact husband reported missing mp husband contacted family friend locate either mp father learned disappearance tried ring home last tuesday time unidentified asian person answered phone advised mp live anymore mp father tried contact mobile phone number disconnected mp father eventually contacted husband found missing two week mp husband advised disconnected mobile phone paying mp father stated good relationship daughter would ring every day every second day became concerned returning two week holiday hearing mp similarly mp brother regular phone contact would always ring argument husband upset issue person agreed mp would never leave home without taking daughter cv person agreed never told mp left home stated husband convinced mp would told confided problem mp brother stated mp husband due go away holiday brother know going knew staying accommodation booked jg ex wife mp unhappy mp brother last spoke directly sister around 11 1 02 mp brother stated mp tried contact best friend p phone 15 1 02 mp brother father confirmed mp inherited around 38 000 grandmother due inherit monies grandfather died recently mp brother stated husband told left taken 6 000 cash mp brother stated jg told mp probably travelling qld see father step father score settle mp brother idea might mp uncle contacted confirmed suspicion concern family member last spoke mp month ago also stressed strange character thing also confirmed mp would willingly leave daughter behind mp best friend p spoken confirmed mp rang home 15 1 02 spoke husband mp short conversation character stated would call back p alarmed concerned stated mp share trouble problem concerned mp called back advice police mp husband attempting contact friend relative mp also gave undertaking make inquiry local hospital requested provide police recent photo mp 12 time accused reported matter police jayson macleod serving police officer course duty took accused statement objection taken also gave evidence voir dire statement also provided recently made following observation time later think late afternoon jg came front counter station went meet escorted detective office proceeded take statement desk told circumstance wife going missing typed told onto statement form document asked free flowing question sole purpose trying obtain much information would assist inquiry find time whilst taking statement cause think telling factual time appeared quite nervous mean definite dry mouth fidgeted regularly also continually looking watch like hurry one stage said hurry got somewhere replied something similar responsibility picking child time took statement jg time treat suspect murder simply getting statement regarding disappearance wife requested superior officer normal practice obtain typed statement circumstance 13 emerged course cross examination witness made entry duty book effect attended accused premise police 7 february 2002 time seems shortly took statement officer matthew james nutt longer policeman detective sergeant alexander macdonald also gave evidence voir dire although neither appeared independent recollection event 7 february 2002 however made entry duty book event day case detective sergeant macdonald enabled refresh memory limited extent duty performed relation investigation cg disappearance statement contains following information duty book indicates attended address regarding missing person specific memory attending location know address home address ag jg living time missing person referred entry cg location way ryde police station gladesville police station duty book indicates returned gladesville 4 15 pm duty book indicates 4 20 pm detective nutt attended address recall attending address know address cg reported going missing recall attending address speaking caucasian female spoke thought german accent attended address see new occupant sighted contact missing person cg duty book indicates attended address spoke angelo kapsanis recall speaking kapsanis enquiring whether seen contact missing person cg remember making appointment make statement later date took statement 14 necessary refer evidence witness gave little detail 15 inspector kaesler gave following evidence q understand report going take related missing person report q information material contained report come jg stood front counter took note piece paper finished talking sent home get photo cg one time also asked enquiry local hospital friend relative asked bring photo back next day afternoon could took detail went cop entry q anything needed done well yes taken lot detail cg wearing remember taken detail car left taken detail wearing full description taken detail relative think memory maybe needed stuff friend relative detail description photo procedural get photo missing people one time needed stuff come back needed statement time last seen tie little bit needed make enquiry still missing q following completion cop entry anything else relation go speak detective say look coming normal business investigation business taking report would need followed spoke say cop report missing person going follow send completed disseminated detective sergeant sean hampstead disseminated missing person unit time follow ups done q become responsibility detective pursue yes right 16 cross examined entry appeared cop report referred earlier gave following evidence q recorded person agreed cg would never leave home without taking daughter cv opinion yes q told never told cg left home recorded stated husband correct yes jg said left home person knowledge q recording using word bracket stated husband fact told brother father differed husband told correct father brother knowledge cg going missing home told jg happened q recording using word stated husband cop entry fact different told jg provided information cg going missing father brother knowledge going missing may done know q went tell bit convinced cg would told confided problem referring gone away would told close take face value said know dynamic family know whether cg would told everything personal life q fact received information father said concerned fact husband reported missing example raise issue mind mm q accused reported point view warranted investigation number thing time time essence late report turned jg told happened four five occasion last time june 2001 occasion told gone missing 5 6 day presented picture unusual came back every time one needed follow well time time delay lot longer turned q think time delay unusual really opinion time needed get cracking needed get photo follow enquiry needed find vehicle needed get description photo make enquiry hospital place see could find q think odd told thing cg father brother appeared matter within knowledge accused told lot thing needed following people version people bit information needed looking q indicated first sentence father concerned fact jg reported cg missing right concerned cg missing thought report told missing person report made jg started settle bit know thinking time aware family dynamic know knew family went past version jg telling cg gone missing done one occasion occasion never reported police alright time come back time reporting occasion come back within 5 6 day telling q told concerned fact husband reported missing time thought yes q understood concern delay jg reporting cg missing right sorry q understood conversation father concerned fact delay reporting cg missing concerned thought nothing reported told missing person report started settle bit knew conversation following starting look q say honest time took report finished work felt sorry simply told felt sorry wife missing young kid home presented know told left car know think feel sorry young kid involved wife mother missing needed find q family member told mm hmm q cause perhaps stop think accused said caused lot thing go head know start looking thing happened really sort unwise jump whole lot conclusion got look thing got investigated ask question speak relative speak friend follow find one version got accept face value people telling start look q really one version time finished work day heard people q people close cg correct think got accept people family member part day day going family q well nothing comment think know q nothing suggest father said term closeness daughter right nothing front discount jg telling either q people telling thing surely caused raise concern mind accused told concern getting investigation underway q well seen record spoke detective mm hmm q spoke mr l tell detective accused mr l said told detective missing person report coming disseminating going need follow told also asked jg provide needed follow next day q possibility homicide occurred enter mind day say given face value version jg happened know wife money stuff bank account come accessed well got money jg whitman chocolate box whole lot stuff probably thinking lot scenario could accident could friend know going family house version sort dynamic happy house argument discussed version happened come back lot possibility q one met foul play correct thinking time q would matter surely would entered mind circumstance cg may well met foul play look certainly know say yes mind time think concern upfront need start get cracking trying find need get lot information jg others start process start finding could possibly gone direction could possibly gone look like start looking know thing going missing coming back explored sort depth first took report missing person stuff get father brother explored either detail version phone know true point time know family dynamic relationship whether cg would fact tell family thing say would tell know emphasis added 17 jayson macleod gave following evidence chief q purpose taking statement purpose taking statement obtain much detail surrounding disappearance cg q stage information disappearance information contained cop entry significant feature remember missing three four week recall q information suggesting crime committed q time taking statement view opinion reason cg missing disappearance 18 already indicated emerged cross examination attended accused premise afternoon prior taking statement extent appeared statement accurately reflect actually occurred however observed witness prepared statement haste duty book available time mr macleod gave evidence unable recall attended house could recollect done asked following question cross examination q go premise read cop entry content creates suspicion mind right q thing cop entry contradict thing said police station day right aware contradictory would used guideline would taken statement way fashion recall drawing contradictory information contained cop took statement 19 matthew nutt gave evidence suspect relevant time person involved commission offence relation cg although entry duty book indicate gone premise accused living premise cg residing said recollection done police gone 20 detective sergeant macdonald gave following evidence q 7 february 2002 concerned relation cg sorry repeat q police making enquiry relation cg right right yes q enquiry 7 february 2002 7th investigation guess could call infancy made aware reported missing think day remember event made aware distinctly missing morning 7th became aware detective office obviously making enquiry try locate missing person q read cop entry made day yes q read morning 7th correct recall yes 21 accused neither gave called evidence voir dire accordingly evidence given four police officer voir dire reason accept critical part true aspect evidence former officer jayson macleod matthew nutt entirely accurate relate however matter peripheral nature affect overall credibility reason doubt reliability two witness also observe passing challenge accuracy content accused statement contained usual jurat signed adopted accused accurate record appeared therein 22 turn consider question whether necessary compliance withs 281of thecriminal procedure act mischief section seek address patently clear inkelly v r 2004 hca 12 2004 205 alr 274 gleeson cj hayne heydon jj observed though many year 1960s legal rule developed detail regulate proof confession police officer 1960s concern topic increased key question case case whether confession made term whether excluded involuntary whether excluded court discretion either obtained unfairly obtained illegally improperly whether reliable issue capable affected mean confession perceived recorded recollected transmitted court particular concern directed allegedly fabricated confession problem went well beyond possible fabrication dispute could arise circumstance including following oral confession noted b oral confession noted whether contemporaneously example police typist laboriously recording question answer otherwise whether single police officer two police officer acting separately collaboratively c oral confession reduced writing signed maker oral confession reduced writing police officer signed maker e confession written maker dispute could turn question fabrication also misunderstanding misrecollection coercion oppression broad sense considerable amount court time taken generally absence jury resolving dispute confession considerable amount police time taken interview slowly recorded officer operating typewriter writing notebook grave allegation commonly made suggesting police perjury brutality pressure unfounded though many allegation may damaging public confidence criminal justice system time court law reform agency legislature began respond state affair particular audio recording became common commercial social life necessary equipment became efficient easier operate cheaper increasingly suggested either matter sensible practice precondition admissibility police interview criminal investigation electronically recorded pilot study conducted suggested utility technique hoped introduction reliable mean recording confession would save police court time directly reduce need police officer spend long period court also encourage earlier plea guilty would save public money well improving integrity trial process efficiency police result came viewed commonplace circle favourable defence interest also police circle despite financial cost electronic recording police interview particularly video recording would generate real advantage would useful providing mean establishing exactly said proving requirement cautioning formality complied narrowing time within could alleged threat made helping estimate fairness propriety questioning helping evaluate assessment demeanour manner interviewee responding reliability said par 22 25 29 23 mchugh j made observation similar effect honour said acting recommendation finding various commission inquiry australian legislature enacted legislation seek protect right accused person period right vulnerable reason mistaken recollection lie police officer enactment various legislature broadly similar principle although differ detail general identify period vulnerability commencing time fact raise suspicion accused guilt jurisdiction period thereafter open ended enactment recognise miscarriage justice may occur mechanical record confirming allegation police officer accused confessed crime made damaging admission ought reasonably seen suspect evident policy enactment interest justice admit evidence confession admission unless mechanical record confession admission acknowledgment jurisdiction exceptional circumstance justify admission evidence par 96 24 see alsor v horton 1998 45 nswlr 426at 438 25 although accused said statement police clearly exculpatory common ground nonetheless constitutes admission contains material may turn harmful defence r v horton supra 438 said clear crown seek rely upon material endeavour achieve purpose evidence clearly establishes relevant time tape recording equipment available police station could used event required 26 critical issue determined whether time accused made admission could reasonably suspectedby investigating official ofhaving committed offence within meaning ofs 281 1 act decided case concerned issue raised section one example whether admission made course official questioning seekelly supra case considered issue constitutes reasonable excuse tape recording interview meaning phrase in 281 1 c relation indictable offence seer v rowe 2001 nswcca 1 2001 50 nswlr 510 fact section provides important protection accused person emphasised smart j 521 27 turning principle govern present issue observe inr v crowther wilkinson cowie 2003 nswsc 44 2003 138 crim r 473 hidden j construing predecessor tos 281 1 said paragraph creates subjective objective test view test would satisfied level suspicion falling short necessary justify arrest 476 28 inr v taouk 2005 nswcca 155 2005 154 crim r 69james j hislop j agreed said pointed counsel appellant word could expression could reasonably suspected in 281 1 different word ought corresponding part 424a thecrimes act 1900 nsw predecessor 281 submitted expression could reasonably suspected committed offence wider expression ought reasonably suspected committed offence counsel appellant referred unreported judgment bell j inr v crowther wilkinson unreported supreme court nsw 70096 2001 8 may 2002 honour said 31 reference 424a thecrimes actand then 108of thecriminal procedure act term present 281 may class person could reasonably suspected investigating official committed offence broader class person ought reasonably suspected investigating official committed offence accept submitted counsel appellant thats 281of thecriminal procedure actis different term former 424a thecrimes actand also different term interstate legislation considered high court inkellyandnicholls also accept could case person could reasonably suspected police officer committed offence even though could said ought reasonably suspected police officer committed offence also accept thats 281of thecriminal procedure actis legislation nature considered high court inkellyandnicholls purpose legislation accordance view majority innicholls given purposive interpretation however opinion even accepting purposive interpretation given tos 281 necessary regard actual language ofs 281and effect given word reasonably expression could reasonably suspected person could reasonably suspected police officer committed offence unless something said done would provide ground police officer reasonably suspecting person committed offence pp78 9 81 29 separate concurring judgment hall j observed meaning content phrase in 281 1 could reasonably suspected may considered light authority field reasonable suspicion expression reasonably suspect concept examined whilst authority arisen different legislative context guidance may obtained although due caution must made regard particular term ofs 281and evident legislative purpose word suspected in 281 1 suspicion something exists mere idle wondering whether exists positive feeling actual apprehension mistrust amounting slight opinion without sufficient evidence queensland bacon pty ltd v rees 1966 hca 21 1966 115 clr 266at 303 per kitto j ii word reasonably in 281 1 observed reason suspect fact exists reason consider look possibility existence queensland bacon 303 context legislation question 95 4 thebankruptcy act 1924 1960 cth reason suspect taken referring something circumstance wouldcreate mind reasonable person person position payee case actual apprehension fear situation payer actual fact provision described mistrust payer ability pay debt note possible significance formulation word would distinct could 281 1 iii statutory provision issue search warrant 679 b thecriminal code qld particular phrase arereasonable groundsfor suspecting house etc suspicion ordinary meaning state conjecture surmise proof lacking factual basis foundation must exist provision ground suspicion walsh v loughnan 1991 vicrp 75 1991 2 vr 351 also necessary identify subject matter suspicion basis suspicion referred 281 1 state mind investigating official state mind mere surmise applying similar approach applied respect search warrant legislation one arrived basis material capable supporting formation opinion even slight opinion person question accused could committed offence approach generally see george v rockett 1990 hca 26 1990 170 clr 104at 115 116 1990 hca 26 48 acrimr 246at 253 254 see also r v rondo 2001 nswcca 540 2001 126 acrimr 562at 576 summary suspicion must one whichcould reasonablyhave held investigating officer relevant point time namely time admission made whether suspicion satisfies specified requirement reasonableness determined existence ground suspicion ground must based sourced fact tend implicate accused possible criminal conduct relevant kind indictable offence therefore capable giving rise supporting requisite state mind follows mere possibility person referred 281 1 could committed offence insufficient question arising appellant submission ground one appeal ultimately whether evidence establishes time admission made appellantwas could reasonably suspected committed offence b whether police officer burwood police station appellant spoke constable munro investigating official purpose 281 1 c even assuming police officer investigating official within meaning section whether admission madein course official questioning concept connected definition expression withthe investigation commission possible commission offence pp97 8 emphasis added 30 honour remark cited apparent approval inr v frangulis 2006 nswcca 363at para 14 15 ingonzales v r 2007 nswcca 321 2007 178 crim r 232at 248 31 inhadjigeorgiou v crime commission nsw 2007 174 crim r 124 giles ja santow ja agreed observed ingeorge v rockett 1990 hca 26 1990 170 clr 104a search warrant could issued appeared justice reasonable ground suspecting place amongst thing anything reasonable ground believing would afford evidence commission offence court mason cj brennan deane dawson toohey gaudron mchugh jj said 115 necessary bear mind suspicion belief different state mind honour continued 115 116 253 254 suspicion lord devlin said inhussien v chong fook kam 1969 ukpc 26 1970 ac 942 948 ordinary meaning state conjecture surmise proof lacking suspect cannot prove fact reasonably ground suspicion may quite insufficient reasonably ground belief yet factual basis suspicion must shown inqueensland bacon pty ltd v rees 1966 hca 21 1966 115 clr 266 question raised whether payee reason suspect payer debtor unable pay debt became due phrase used s95 4 thebankruptcy act1924 cth kitto j said 303 suspicion something exists mere idle wondering whether exists positive feeling actual apprehension mistrust amounting slight opinion without sufficient evidence chamber dictionary express consequently reason suspect fact exists reason consider look possibility existence notion reason suspect express sub 4 think something circumstance would create mind reasonable person position payee actual apprehension fear situation payer actual fact subsection describes mistrust payer ability pay debt become due effect acceptance payment would payee creditor objective circumstance sufficient show reason believe something need point clearly subject matter belief p 129 32 counsel accused accepts evidence police officer effect regard accused suspect relevant time subjective test although counsel contended evidence approached caution main focus submission directed argument relevant time accused could reasonably suspected committed indictable offence objective test seeking make good submission counsel relied upon following matter 1 fact accused waited 3 4 week reporting wife missing 2 fact according cg father accused contacted either family friend report missing 3 fact according cg father accused told disconnected cg mobile phone consideration contended odds assertion police seeking assistance locate 4 fact according cg father brother uncle cg would never left home without taking cv consideration also contended odds accused assertion police done 5 fact according member cg family cg would confided previously left home consideration contended odds accused assertion police left home number previous occasion 6 fact many domestic related homicide committed partner deceased person 7 fact three police officer gone premise accused residing 7 february submitted reason gone suspicion accused aroused least detective macdonald read cop entry determined obtain statement order gone premise ensure attended police station 33 light combination factor submitted accused could reasonably suspected committed offence associated wife disappearance obvious offence suspicion could reasonably aroused form homicide 34 counsel also relied upon fact many seven factor identified specifically referred crown case statement matter would relied upon case accused however significance matter considered relevant time course statement taken clearly enough thing may capable seen somewhat different light course completely irrelevant person may subsequently become suspect cause section retrospective effect seer v villa 2005 nswcca 4 para 53 happens accused charged many year alleged offence fact informed charged way ex officio indictment 6 february 2009 following inquest conducted may 2008 35 far seventh final matter referred accused concerned clear evidence silent upon question police went premise view quite understandable officer independent recollection event occurred 7½ year ago number perfectly plausible explanation done none require acceptance accused assertion motivation place weight upon aspect matter 36 accused ultimate submission could accepted following question would need addressed 1 cg actually missing 2 dead reasonably presumed dead 3 death attributable homicide 4 homicide accused bore responsibility 37 counsel accused readily acknowledged investigation cg disappearance infancy true various matter raised member cg immediate family called inquiry police however responded immediately embarking upon investigation designed address issue indeed accused asked inspector kaesler undertake various task assist investigation observe passing inspector kaesler unlikely requested accused undertake task regarded suspect 38 view evidence support proposition relevant time police investigation regarded investigation report missing person nothing cg missing little three week circumstance information available police argument husband left home moreover something according accused person likely know movement done previous occasion follows view evidence fall well short creating relevant suspicion required 281 accordingly formed view accused statement 7 february 2002 fall within scope 281 1 consequence application exclude must fail last updated 26 march 2010

1719769 (Refugee) [2021] AATA 5108 (2 November 2021).txt

1719769 refugee 2021 aata 5108 2 november 2021 last updated 1 february 20221719769 refugee 2021 aata 5108 2 november 2021 decision recorddivision migration refugee divisioncase number 1719769country reference chinamember rachel da costadate 2 november 2021place decision sydneydecision tribunal confirms decision dismiss application statement made 02 november 2021 9 24amcatchwordsrefugee protection visa china dismissal decision failure attend tribunal hearing decision review affirmedlegislationmigration act 1958 s 426a 426bany reference appearing square bracket indicate information omitted decision pursuant tosection 431of themigration act 1958and replaced generic information allow identification applicant relative dependant statement decision reasonsapplication review1 application review decision made delegate minister immigration border protection 4 august 2017 refuse grant visa applicant protection visa themigration act 1958 cth act 2 15 october 2021 tribunal dismissed application unders 426a 1a b act applicant appear give evidence present argument time date scheduled hearing 3 applicant notified dismissal decision given copy written statement setting decision reason decision accordance withs 426b 5 applicant advised reinstatement application could sought within 14 day receiving dismissal statement failure apply reinstatement within 14 day period would result confirmation dismissal decision 4 applicant apply reinstatement application within 14 day period tribunal must confirm decision dismiss application circumstance decision review taken affirmed decision5 tribunal confirms decision dismiss application rachel da costamember

Nicholls v Department of Juvenile Justice [2006] NSWWCCPD 229 (14 September 2006).txt

nicholls v department juvenile justice 2006 nswwccpd 229 14 september 2006 last updated 14 september 2006workers compensation commissiondetermination appeal decision commission constituted arbitratorcitation nicholls v department juvenile justice 2006 nswwccpd 229appellant bruce alan nichollsrespondent department juvenile justiceinsurer gio worker compensation nsw limitedfile number wcc7337 03date arbitrator decision 17 june 2005date appeal decision 14 september 2006subject matter decision procedural fairness validity medical assessment certificate presidential member acting deputy president deborah moorehearing papersrepresentation appellant leigh virtue associatesrespondent phillips foxorders made appeal 1 decision arbitrator dated 17 june 2005 confirmed 2 order cost appealbackground appeal1 bruce alan nicholls appellant worker employed department juvenile justice respondent employer youth worker claimed 14 june 2000 course employment suffered injury right knee 30 march 2001 sustained injury low back leg 2 27 february 2003 appellant worker filed application resolve dispute commission seeking permanent impairment pain suffering compensation result injury claimed together medical expense described tba 3 relevantly purpose appeal appellant worker lodged application resolve dispute matter wcc7345 03 seeking permanent impairment pain suffering compensation respect injury sustained neck arm back 21 november 2001 whilst employed another organisation dte youth service 4 claim permanent impairment compensation apparently referred medical assessment approved medical specialist examined appellant worker 11 november 2003 5 appears following examination single medical assessment certificate issued provided assessment permanent loss efficient use impairment relation injury forming subject proceeding e matter wcc1337 03 wcc7345 03 6 appellant worker lodged application appeal medical assessment certificate 31 january 2004 appeal successful two separate decision respectively wcc7337 03 wcc7345 03 handed relevant medical appeal panel 17 december 2004 7 medical appeal panel revoked initial single medical assessment certificate related injury subject proceeding e wcc7337 03 issued new medical assessment certificate new certificate recorded assessment respect injury said sustained 14 june 2000 30 march 2001 noted medical appeal panel held medical assessment certificate related injury claimed wcc7345 05 confirmed 8 new medical assessment certificate wcc7337 03 issued 17 december 2004 assessment made follows relation injury 30 march 2001 10 permanent impairment back 1 permanent loss efficient use right leg knee 4 permanent loss efficient use left leg knee deduction made pre existing injury abnormality condition injury date 14 june 2000 loss noted 7 permanent loss efficient use right leg knee proportion permanent impairment due pre existing injury abnormality condition noted total permanent percentage loss efficient use impairment attributable injury described 0 9 teleconference convened 22 february 2005 consider issue arising matter wcc7337 03 following issue medical appeal panel decision 10 teleconference appellant worker took issue medical assessment certificate insofar certified percentage permanent loss efficient use appellant worker right leg knee attributable injury 14 june 2000 0 summary appellant worker submission medical assessment certificate incorrectly attributed loss efficient use applicant right leg knee relation injury 14 june 2000 pre existing injury abnormality condition issue causation referred arbitration 11 following teleconference 22 february 2005 detailed direction issued arbitrator briefly recited background matter similar term described noted arbitrator view communicated conference power adjudicate upon correctness otherwise medical assessment certificate similarly matter raised appellant worker arbitrator indicated jurisdiction determine issue 12 outcome teleconference arbitrator would defer making order matter period two week date telephone conference afford appellant worker solicitor opportunity consider effect arbitrator prima facie view expressed teleconference whether institute proceeding another forum address issue relevant status certificate ultimate direction issued 17 march 2005 follows 1 party liberty file wish written submission relevant term matter determined 12 00noon 24 march 2005 2 dispute determined paper 25 march 2005 13 appellant worker lodged written submission commission 23 march 2005 asserting inter alia matter listed conference arbitration provide applicant proper opportunity issue raised determined commission 14 notwithstanding submission arbitrator proceeded determine matter paper done clear however certificate determination accompanying statement reason issued 17 june 2005 15 decision arbitrator dated 17 june 2005 follows 1 respondent shall pursuant tos66of theworkers compensation act1987