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1404235 [2014] RRTA 645 (14 August 2014).txt
1404235 2014 rrta 645 14 august 2014 last updated 5 september 20141404235 2014 rrta 645 14 august 2014 decision recordrrt case number 1404235country reference nepaltribunal member john blountdate 14 august 2014place decision sydneydecision tribunal affirms decision grant applicant protection class xa visa statement made 14 august 2014 3 05pmany reference appearing square bracket indicate information omitted decision pursuant tosection 431 2 themigration act 1958and replaced generic information allow identification applicant relative dependant statement decision reasonsapplication reviewthis application review decision made delegate minister immigration refuse grant applicant protection class xa visa unders 65of themigration act 1958 act applicant claim citizen nepal applied department immigration visa august 2013 delegate refused grant visa january 2014 5 march 2014 applicant applied tribunal review decision case constituted member 25 june 2014 theapplicant appeared tribunal 6 august 2014 give evidence present argument tribunal hearing conducted assistance interpreter nepalese english language consideration claim evidencethe criterion protection visa set in 36of act schedule 2 themigration regulation 1994 regulation applicant visa must meet one alternative criterion 36 2 aa b c applicant either person respect australia protection obligation refugee criterion complementary protection ground member family unit person person hold protection visa applicant claim made right member family unit section 36 2 provides criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention article 1a 2 convention set definition refugee person found meet refugee criterion 36 2 may nevertheless meet criterion grant protection visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence applicant removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion however australia owe protection obligation provided 36 3 non citizen generally referred safe third country protection subsection 36 3 follows 3 australia taken protection obligation respect non citizen taken possible step avail right enter reside whether temporarily permanently however right arose expressed country apart australia including country non citizen national mean non citizen australia right enter reside third country australia protection obligation respect person availed right subsection 36 3 however qualified 36 4 5 5a provide 36 3 apply certain circumstance follows 4 however subsection 3 apply relation country respect non citizen well founded fear persecuted reason race religion nationality membership particular social group political opinion orthe minister substantial ground believing necessary foreseeable consequence non citizen availing right mentioned subsection 3 would real risk non citizen suffer significant harm relation country 5 subsection 3 apply relation country non citizen well founded fear thatthe country return non citizen another country andthe non citizen persecuted country reason race religion nationality membership particular social group political opinion 5a also subsection 3 apply relation country non citizen well founded fear country return non citizen another country andthe minister substantial ground believing necessary foreseeable consequence non citizen availing right mentioned subsection 3 would real risk non citizen suffer significant harm relation country claim protectionthe applicant age year old man nepal arrived australia april 2008 student visa subsequently renewed ceased march 2010 applicant remained australia unlawfully march 2013 applicant contacted dept advise wished apply permanent residence given advice regarding skilled employer sponsored visa option august 2013 applicant applied protection visa tribunal department file relating applicant tribunal also regard material referred delegate decision well country information cited decision applicant circumstance claim first instance provided department protection visa application august 2013 interview january 2014 protection visa applicationprotection visa application august 2013the applicant speaks nepali hindi english stated left nepal obtain education australia applicant stated 2009 news eating beef australia following religion became known family villager someone village informed shiv sena shiv sena nepalese indian people people working save hindu religion program connected shiv sena india threatened family harm go back inform return likely harm kill show people happen follow religion waiting last 4 5 year visit house two three time year asked family cut landline phone connection contact family mobile phone disconnected landline applicant stated family near border india take number minute reach india shiv sena specifically said give information police try get help move place find family kill applicant remained australia let time pas hoping forget one day stop coming family 4 year thing change cannot hide anywhere family could send money shiv sena family told cannot go back shiv sena harm thought would wait thing safe shiv sena disconnected family landline phone started checking family bank account make sure family financial transaction feared went immigration would detained deported applicant application form acknowledged right enter indiaprotection visa interview january 2014the applicant repeated claim subsequent interview delegate january 2014 put applicant although hindu india may find eating beef distasteful offensive reported hindu landlord refused rent accommodation person eat meat aversion certain individual certain person personal practice constitute persecution serious harm delegate put applicant could reside india without real fear persecution real risk significant harm applicant conceded shiv sena would unlikely make much effort track india claimed would safe harm would see parent eventually would live fear consequence would remain risk harm nepal applicant made comment indicate living india preference delegate decision january 2014in rejecting applicant claim delegate found could access effective protection third country india accordance withs 36 3 themigration act review application 5 march 2014a copy delegate decision record dated january 2014 provided tribunal applicant review application 13 may 2014 applicant contacted tribunal telephone enquire extension time hearing decision 4 month advised request made writing also flagged possibility withdrawing application 26 june 2014 tribunal wrote applicant copy sent nominated email address inviting attend hearing 6 august 2014 applicant returned completedresponse hearing invitationform 1 july 2014 indicating would attend 21 july 2014 applicant contacted tribunal telephone saying would like postpone hearing month half need time provide evidence advised put request postponement writing reason member would consider asked hearing could request extension time hearing month half order provider document advised could raise hearing 5 august 2014 tribunal received brief letter applicant requesting extension 30 day unable provide sufficient supporting document assist review favour upcoming hearing 6 august 2014 although tribunal agree postponement hearing applicant attend scheduled hearing 6 august 29014 nonetheless tribunal wrote applicant setting new hearing date 13 august 2014 emphasising hearing would go ahead unless satisfied tribunal good reason adjournment attend tribunal may proceed make decision applicant complete theresponse hearing invitationform requested subsequently appear tribunal 13 august 2014 give evidence present argument rrt hearing 6 august 2014the tribunal explored applicant pre hearing request extension time provide document tribunal noted problem said arisen five year ago 2009 applied protection visa twelve month ago received primary decision applied review six month ago seemed enough time gather relevant evidence material response applicant assert particular documentation seeking awaiting rather said hoping time would become clearer behind harassment family going 4 year difficulty understanding big party would pursue one individual small issue something new something shiva sena previously therefore thought maybe person using shiv sena threat harass family unknown personal reason revenge something know nothing past family would provide reason action understand happening wanted get time get something clarify matter could suggest specifically might forthcoming asked belief fear may actually happen return nepal applicant replied know might harm personally shiv sena continued harass threaten family father slapped twice 2012 applicant stated although eating beef part nepali culture australia year told mother arranged ritual cleanse house attracted attention shiv sena come ask son eating beef demand return taken seriously first heard action past could find anything internet one two case therefore believed time would go away remained unlawfully australia long time seeking protection hoping solution asked people able claimed disconnect family landline phone check bank account statement applicant said told parent told people would come time time maybe 3 6 month night face covered family home near border easy come go spoke nepali hindu came thought speech actually indian although exactly sure nepali shiv sena small party indian shiv sena bigger powerful think maybe nepali shiv sena getting indian shiv sena come know group india would concern nepalese student tribunal asked applicant previous claim received telephone call shiv sena day applied protection visa august 2013 hard understand would contact directly 4 year telephone number applicant replied called mobile using mother mobile asked coming back abused said would get lesson life said nothing reply applicant said family offered money get rid 40 000 50 000 large sum money nepal rejected tribunal asked applicant would problem outside area especially local personal issue could live somewhere else nepal kathmandu 100 kilometre border applicant said believe anywhere nepal safe kathmandu solution might safe time short know anyone could support tribunal observed applicant educated adult work experience good command english language tribunal put applicant situation arisen took seriously hard understand waited four year apply protection visa unlawfully since 2010 hand taken seriously returned applicant responded young first came country thought going immigration afraid detained tribunal noted nepal although offence kill cow offence eat beef tribunal aware person threatened harmed shiv sena others eating beef applicant acknowledged unable find report incident nepal india acknowledged people nepal non hindu eat beef tribunal advised applicant themigration actprovides 36 3 australia protection obligation person right enter reside country whether temporarily permanently taken possible step avail right tribunal noted well documented nepali national readily enter reside india without visa formality determining whether provision apply relevant consideration include whether person able lawfully enter reside india either temporarily permanently whether taken possible step avail right whether would face real chance persecution real risk significant harm tribunal would consider whether applicant might avoid harm feared nepal going india tribunal seen evidence suggesting although person india eat beef oppose killing cow may upset people physically harmed killed indeed many million non hindu india eat beef tribunal referred information beef india including state india actually ban consumption beef even restriction cattle slaughter state e g kerala approximately 3 600 slaughterhouse operating legally india produced 3 6 million metric ton beef 2012 almost 2 million metric ton consumed domestically india applicant readily acknowledged able enter reside india know anyone feel would safe open border people would easy access india tribunal noted india large country huge population including several million nepali hard understand someone would want able track target claim nepalthe applicant evidence raised serious question claim motivation harassment family volunteered shiv sena seemed unlikely target individual like could suggest alternative explanation unknown reason person using cover shiv sena seek revenge harm family also made claim parent offered harasser large sum money leave alone rejected seems highly unlikely conceivable harasser would reject offer whether subsequently left family alone sustained interest long period reason also seems highly problematic tribunal satisfied applicant explanation claim protection lodged long situation said emerged finally tribunal satisfied applicant request time provide non existent document simply time wasting exercise nonetheless reason concerning availability applicant safe third country protection tribunal found necessary reach final conclusion whether australia protection obligation towards applicant refugee criterion complementary protection ground based upon claimed fear returning nepal third country protectionthe primary issue case whether australia owe protection obligation applicant right enter reside india within meaning ofs 36 3 suggestion applicant right enter reside third country india matter must considered tribunal determining whether third country protection available applicant whether applicant citizen nepal right enter reside india 36 3 whether risk convention related persecution significant harm india 36 4 whether indian authority might return nepal another country risk convention related persecution significant harm 36 5 36 5a andif right enter reside india whether taken possible step avail right whether applicant right enter reside indiathe full federal court considering appeal federal magistrate court relation tomimac vszrhu 2013 fcafc 91held term right in 36 3 restricted right strict sense legally enforceable rather include notion liberty permission privilege lawfully given albeit capable withdrawal capable enforcement liberty permission privilege give rise particular correlative duty upon state question starting point consideration whether applicant right enter reside india thetreaty peace friendship india nepal 1950 treaty article 6 7 treaty relevant present purpose two article concern treatment given national one country territory importantly article 7 grant nepalese national india indian national nepal privilege matter residence ownership property participation trade commerce movement privilege similar nature treaty deal right nepalese national enter india vice versa rather concern treatment india therefore necessary turn source examine right entry question information provided australian department foreign affair trade dfat contained website india bureau immigration following relevant effect 1 citizen nepal entering india land air require passport visa entry india citizen nepal travelling air nepal india required show following valid identity document establish identity nepalese citizen nepalese passport nepalese citizenship certificate voter identification card issued election commission nepal limited validity photo identity certificate issued nepalese mission india deemed necessary citizen nepal must possession passport entering india place nepal citizen nepal possession valid nepalese passport flying direct australia could gain entry india applicant nepalese passport valid 2017 applicant acknowledged citizen nepal would able enter reside india dfat advises unlimited stay granted nepalese national india restriction ability remain reside work india 2 report confirm nepalese citizen may reside work attend school access health service india 3 bbc report 2008 state five million nepalese people work property india 4 policy paper 2011 estimated 10 12 million nepali live india 5 latter figure includes migrant nepal living india nepali speaking indian citizen seems shifting population two country free border movement nepal india led transnational social network people sustain contact family nepal migrant india 6 various source state sizeable nepalese community particularly india north eastern state 7 urban centre delhi mumbai bangalore also popular destination nepalese migrant 8 taking account term treaty information indian australian authority administrative arrangement concerning entry india nepalese national country information commentary ability nepalese citizen enter reside india tribunal satisfied matter practical reality applicant right enter reside india tribunal note applicant confident reasonably educated adult work experience excellent command english language risk refugee convention related persecution significant harm indiasubsection 36 3 act apply applicant well founded fear convention related persecution india substantial ground believing necessary foreseeable consequence availing right enter reside india would real risk suffer significant harm 36 4 tribunal accept applicant would targeted harmed india including shiv sena simply someone eats eaten beef noted wikipedia extensive comprehensively footnoted article athttp en wikipedia org wiki cattle_slaughter_in_india accessed 14 august 2014 india state law ban consumption beef although state completely ban cattle slaughter others impose onerous restriction restriction slaughter cattle state approximately 3 600 slaughter house operating legally india great many operating illegally beef consumed widely sold openly area arunachal pradesh kerala meghalaya mizoram nagaland sikkim tripura india produced 3 643 million metric ton beef 2012 almost 2 million ton consumed domestically although occasional incident cannot excluded population 1 2 billion country information suggest person eat beef india face real chance real risk targeted harmed reason including hindu organisation shiv sena tribunal satisfied applicant would pursued identified targeted harmed india person nepal either eaten beef personal reason affecting family locality nepal noted india large country population excess billion million nepalese live india mostly large city information tribunal suggested nepalese india pursued relation personal feud matter arising locally home area nepal tribunal carefully considered whether regard provision ofs 36 3 anything else applicant personal circumstance would exclude operation tribunal satisfied circumstance provision ofs 36 3 apply summary tribunal satisfied applicant well founded fear convention related persecution india substantial ground believing necessary foreseeable consequence availing right enter reside india would real risk suffer significant harm provision ofs 36 3 therefore excluded basis whether indian authority might return applicant nepal third countrythe tribunal must also consider whether applicant well founded fear india return nepal another country persecuted convention reason real risk suffer significant harm recent advice obtained dfat state nepalese national already india forcibly removed convicted crime either nepal india advice also state nepalese national commits crime nepal travel india nepalese police request assistance local indian police arrest person nepalese police travel india escort nepalese national back nepal also provision allow deportation nepalese national india nepal completion sentence crime committed india 9 applicant stated protection visa application convicted crime suggestion would engage criminal activity future advice dfat identifies criminal activity sole reason authority india would return nepalese national resident nepal independent information tribunal suggest indian authority could would return national nepal reason tribunal satisfied applicant well founded fear india return nepal country nationality anything suggest indian authority would send applicant country nepal country nationality tribunal satisfied applicant well founded fear indian authority return nepal country unnecessary ass whether would subject real chance persecution real risk significant harm nepal whether applicant taken possible step avail right indiafor reason set tribunal satisfied applicant right enter reside india subject qualification in 36 4 36 5 36 5a act apart visit schoolboy fact taken step avail right enter reside india conclusionsthe tribunal find applicant right enter reside india taken possible step avail right tribunal also find applicant well founded fear persecuted convention reason india substantial ground believing necessary foreseeable consequence availing right enter reside india would real risk suffering significant harm india tribunal find applicant well founded fear returned india country well founded fear persecuted convention reason applicant well founded fear returned india country substantial ground believing necessary foreseeable consequence availing right enter reside india would real risk suffering significant harm accordingly australia protection obligation respect applicant decisionthe tribunal affirms decision grant applicant protection class xa visa john blountmember 1 department foreign affair trade 2013 dfat report india information request ind42609 18 september 2013 bureau immigration ministry home affair government india athttp boi gov content nepalese passenger 2 department foreign affair trade 2013 dfat report india information request ind42609 18 september 2013 3 immigration refugee board canada 2008 nepal india nepali citizen living india whether legally entitled reside work attend school access health care service whether repercussion illegal residence whether illegal status tolerated ignored indian authority zzz103009 e unhcr refworld 18 december 4 bbc news 15 september http news bbc co uk 2 hi south_asia 7616316 stm 5 behead 2011 trans border identity study impact bangladeshi nepali migration india indian council research international economic relation may p 9 6 thyme müller booker u 2010 social network migration woman livelihood far west nepal delhi european bulletin himalayan research special double issue nepalese migration nepal research group autumn 2009 spring 2010 p 110 7 behead 2011 trans border identity study impact bangladeshi nepali migration india indian council research international economic relation may p 4 south asia terrorism portal nod communist party nepal maoisthttp www satp org satporgtp country nepal terroristoutfits index html 8 thyme müller booker u 2010 social network migration woman livelihood far west nepal delhi european bulletin himalayan research special double issue nepalese migration nepal research group autumn 2009 spring 2010 pp 107 121 9 department foreign affair trade 2013 dfat report india information request ind42609 18 september 2013
Review & Visa Applicant: Go Woon Lee IRT Reference: N98_00485 #number 11661 [1998] IRTA 11661 (9 April 1998).txt
review visa applicant go woon lee irt reference n98 00485 number 11661 1998 irta 11661 9 april 1998 immigration review tribunalstatement decision reason decisionirt decision n98 00485 11661 docreview visa applicant go woon leetribunal joseph metledgepresiding memberdate 9 april 1998place sydneydecision tribunal set aside decision review find visa cancelled introductionthis review decision cancel subclass 560 student visa held visa applicant m go woon lee visa cancelled 6 march 1998 department immigration multicultural affair department application review lodged tribunal 24 march 1998 visa applicant born 28 july 1972 citizen korea visa applicant arrived australia 14 june 1997 visa cancelled 6 march 1998 breaching visa condition legislationthe applicable law set themigration act act migration regulation regulation relevant provision act dealing cancellation visa set part 2 division 3 subdivision c visa based incorrect information may cancelled visa may cancelled certain ground e procedure cancelling visa subdivision outside australia g cancellation business visa h general provision cancellation relevant provision regulation dealing cancellation visa set division 2 9 visa cancellation subdivision 2 9 1 deal cancellation subdivision c division 3 part 2 act subdivision 2 9 2 deal cancellation generally present case visa cancelled subdivision c section 116 1 b act state inter alia minister may cancel visa satisfied holder complied condition visa subject subsection 2 3 section 116 state follows 2 minister cancel visa exist prescribed circumstance visa cancelled 3 minister may cancel visa subsection 1 minister must exist prescribed circumstance visa must cancelled prescribed circumstance set regulation 2 43 2 however none relevant present case provision act regulation contain certain procedure must followed valid cancellation take place deal matter giving proper notice visa applicant intention cancel affording visa applicant opportunity respond visa cancelled s109 act giving false information minister must regard circumstance prescribed regulation 2 41 noted regulation 2 41 apply present case visa cancelled section 109 unless prescribed circumstance exist visa must cancelled section 116 3 regulation 2 43 2 policy guideline apply case visa may cancelled irrespective section act cancelled relevant policy set migration series instruction msi 69 state far relevant follows 10 2 2 delegated officer determines ground cancellation exists consider whether cancel non citizen visa delegated officer regard limited following matter purpose intended travel stay australia whether evidence suggests visa holder intended temporary permanent stay australia whether visa holder travelled spent time australia occasion visa holder conduct occasion present circumstance visa holder length lawful residence australia strength family social business tie australia degree hardship would caused australian citizen permanent resident visa cancelled person required leave australia hardship visa holder would suffer tie country circumstance ground cancellation arose seriousness ground cancellation visa holder behaviour relation department eg cooperation department willingness come forward timeliness response department time elapsed since ground cancellation arose whether circumstance provide ground cancellation continue exist effect consequential cancellation operation law visa held family unit member event visa cancelled refer 11 information consequential cancellation effect cessation bridging visa class b held visa holder event visa cancelled refer msivisa cancellation general guidelinesfor information cessation bridging visa cancellation substantive visa 10 2 3 list intended comprehensive incumbent decision maker take account relevant matter deciding whether cancel visa decision made cancel visa decision maker take account subject matter scope purpose act point see generally high court decision ofre australian broadcasting tribunalex parte 2hd pty ltd 1979 hca 62 1979 80 27 alr 321 policy guideline also observed unless cogent reason contrary duty observe policy guideline see generallyre drake minister immigration ethnic affair 2 1979 aata 179 1979 2 ald 634andali v minister immigration local government ethnic affair 1992 fca 453 1992 38 fcr 144
Dexus CPA Pty Ltd v Sydney Metro [2019] NSWLEC 186 (27 November 2019).txt
dexus cpa pty ltd v sydney metro 2019 nswlec 186 27 november 2019 last updated 2 december 2019land environment courtnew south walescase name dexus cpa pty ltd v sydney metromedium neutral citation 2019 nswlec 186hearing date 27 november 2019date order 27 november 2019decision date 27 november 2019jurisdiction class 3before moore jdecision separate question refusedcatchwords separate question proposed separate question dispositive proceeding necessity expert evidence separate question likelihood appeal determination separate question significant saving time separate question appropriatelegislation cited civil procedure act 2005 56land acquisition term compensation act 1991 55 f uniform civil procedure rule 2005 rr 28 2 31 19cases cited 820 cawdor road pty ltd v wollondilly shire council 2013 195 lgera 170 2013 nswlec 8bligh consulting v ausgrid 2017 nswca 95syncept chatham pty ltd v council city ryde 2019 nswlec 115category procedural rulingsparties dexus cpa pty ltd applicant sydney metro respondent representation counsel mr galasso sc applicant mr r lancaster sc respondent solicitor king wood mallesons applicant ashurst australia respondent file number 103347 103348 103349 135872 2019publication restriction notable contentsintroductionthe separate question applicationthe evidenceconsiderationordersextempore judgmentintroductionhis honour dexus cpa pty ltd dexus owns land 60 castlereagh street sydney cbd upon 22 level office building constructed sydney metro compulsorily acquired dexus two easement february 2018 easement crane access scaffolding 13 april 2018 sydney metro also acquired easement safety structure finally 31 august 2018 sydney metro compulsorily acquired fourth easement safety structure basement theland acquisition term compensation act 1991 term act dexus claimed total compensation sydney metro nearly 12 million base compensation set relevant point claim appended affidavit anthony hill read motion separate question affidavit dated 12 september 2019 mr hill sydney metro solicitor separate question applicationon 12 september 2019 sydney metro applied separate question set hearing determination prior dealing substantive issue dispute party application made pursuant r 28 2 theuniform civil procedure rule 2005 ucpr proposed question following term whether respect four easement acquired sydney metro subject proceeding land applicant date acquisition adjoins severed acquired land purpose application ofs 55 f theland acquisition term compensation act 1991 nsw b answer yes respect easement land evidencethe evidence sydney metro application separate question contained mr hill affidavit number element affidavit warrant quoted first 25 26 mr hill proposed 25 view determination preliminary issue require limited documentary evidence possibly agreed statement fact b expert evidence c estimated half day hearing preliminary issue 26 proceeding progress hearing absence determination preliminary issue opinion hearing proceeding would require substantive expert evidence obtained relation impact carrying entirety public purpose land estimated time hearing would order five day 17 mr hill refers decision court appeal inbligh consulting v ausgrid 2017 nswca 95 bligh consulting 20 mr hill extract element decision sackville aja inbligh consulting quotation includes obiter comment honour 57 may issue whether servient tenement adjoins easement appurtenant dominant tenement court appeal determine question question argued first instance therefore arise determination court appeal 28 affidavit mr hill said 28 b 28 preliminary issue determined favour applicant proceeding would able progress detailed expert evidence relating impact carrying entirety public purpose land accordance 55 f term act valuation evidence purpose 55a f term act estimate hearing would likely require five day hearing time noting hearing time would around half day shorter preliminary issue already decided would need canvassed hearing evidence behalf dexus contained affidavit mr michael causer deposed 1 november 2019 necessary quote briefly mr causer affidavit 5 say 5 instructed question raised respondent cannot properly answered absence evidence regarding potential actual use easement respondent purpose respondent question listed separate determination applicant intends put evidence relation nature easement use impact arising building erected subject property tenant building evidence adduced demonstrate real impact imposition easement tenant building continued 6 7 say 6 opinion mr hill estimate half day separate question hearing underestimate light applicant intention file evidence likely require full day minimum 7 relation mr hill assertion extent evidence substantive merit hearing lessened court determining answer first preliminary question posed land instructed applicant still call evidence discipline acoustic vibration addition real estate valuation also likely town planning quantity surveying evidence also called well evidence relating impact current tenant course hearing today advantage written submission counsel sydney metro dexus also heard short oral submission mr lancaster sc counsel sydney metro mr galasso sc counsel dexus considerationi turn legal principle engaged convenient note robson j set applicable legal principle insyncept chatham pty ltd v council city ryde 2019 nswlec 115at 17 22 noted availability pursuant r 28 2 ucpr application made setting separate question determination 18 set principle applicable consideration whether exercise order determination separate question summarised biscoe j in820 cawdor road pty ltd v wollondilly shire council 2013 195 lgera 170 2013 nswlec 8 cawdor road 10 noted principle endorsed court appeal applied court numerous occasion relevant element biscoe j decision incawdor roadwere 10 principle derived guide exercise court discretion whether order separate decision question may expanded restated summary form follows generally speaking issue tried decided time b party seeking order show court separate decision question appropriate c separate decision question likely appropriate clearly seen facilitate quick cheap resolution proceeding central issue proceeding give effect tos 56of thecivil procedure act thus procedure need fair involve real saving time cost separate decision question may appropriate critical outcome proceeding least decided one way bring proceeding end e particular circumstance separate decision question may appropriate even bring proceeding end may occur decision substantially narrow field controversy obviating unnecessary expensive hearing question decision carry strong prospect party able agree upon resolution proceeding occasion care must exercised lest fragmentation proceeding particularly exercise appeal right borne mind brings delay expense hardship greater making order intended avoid f separate decision question unlikely appropriate may involve credibility witness material remaining issue proceeding thus require remaining issue dealt another judge g question sought separated involves question law clear definition point law raised fact upon question considered agreed clearly ascertainable h fact upon decision depends contentious confidence utility separate question process may le likely turn matter requiring consideration determining whether separate question appropriate light principle set biscoe j incawdor road note matter set five day hearing commencing 10 august 2020 pre trial direction timetable yet made certainly timetable would prescribe lay expert evidence required matter would ordinarily dealt pre trial mention context trial matter expert evidence would contest would unusual argument nature desirability permissibility expert evidence however formal procedure set r 31 19 ucpr seeking leave adduce expert evidence relevant practice court require identification area expertise proposed engaged name expert witness proposed give evidence dealt unexceptional requirement provision expert statement joint conferencing joint expert report like present circumstance given position outlined written submission made sydney metro exchange mr lancaster morning cannot satisfied application dexus separate question set would involve contest hearing leave rely expert evidence whether expert evidence appropriate permitted even contest additional attendance would required deal matter preparation evidence separate question hearing reading submission made behalf dexus would indicate likely least difference flavour expert evidence would likely adduced final hearing also satisfied insignificant likelihood appeal decision separate question would mean delay resolution relevant merit issue otherwise dispute party concerning four easement written submission provided behalf sydney metro proper concession made 14 resolution separate question set one way would dispositive proceeding however submitted determination 55 f term act engaged would substantially narrow field controversy party accept might well result certainly clear conceded would disposition proceeding answering separate question satisfied saving time setting matter separate question hearing potentially illusory real risk time would required total hearing separate question merit hearing would otherwise arise separate question hearing undertaken first instance given possibility evidence hearing make appropriate decline order separate question one reason also given would evidence upon determination would need made separate question involving weighing assessing expert evidence could stage guarantee decision maker would available hear determine separate question would decision maker final merit hearing risk separate decision maker weigh evidence expert nature significantly entirely coincidental issue something avoided possibility appeal decision separate question also run risk delay would occasioned reaching determining merit claim made dexus sydney metro satisfied would contrary objective set in 56of thecivil procedure act 2005that mandate quick cheap disposal determination concerning issue genuinely dispute party overall satisfied efficient way addressing matter dispute party would permit separate question hearing held ordersas consequence order court 1 application separate question dismissed 2 cost reserved amendments02 december 2019 typo case name bligh consulting 5 corrected
Anglican Care [2014] FWCA 8245 (19 November 2014).txt
anglican care 2014 fwca 8245 19 november 2014 2014 fwca 8245fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementanglican care ag2014 9345 anglican care nswnma hsu nsw enterprise agreement 2014 2017 aged care industrydeputy president boothsydney 19 november 2014application approval anglican care nswnma hsu nsw enterprise agreement 2014 2017 1 application made approval enterprise agreement known theanglican care nswnma hsu nsw enterprise agreement 2014 2017 agreement application made pursuant tos 185of thefair work act 2009 act made anglican care agreement single enterprise agreement 2 health service union new south wale branch new south wale branch australian nursing midwifery federation new south wale nurse midwife association bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 act note agreement cover organisation 3 satisfied requirement ofss 186 187and188of act relevant application approval met 4 agreement approved accordance withs 54of act operate 26 november 2014 nominal expiry date agreement 30 june 2017 deputy presidentprinted authority commonwealth government printer price code ae411232 pr557950 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
United Voice [2013] FWCA 5249 (31 July 2013).txt
united voice 2013 fwca 5249 31 july 2013 2013 fwca 5249fair work commissiondecisionfair work act 2009s 185 enterprise agreementunited voice ag2013 2059 glendale early education centre united voice big step enterprise agreement 2013children servicesvice president catanzaritisydney 31 july 2013application approval glendale early education centre united voice big step enterprise agreement 2013 1 application made approval enterprise agreement known theglendale early education centre united voice big step enterprise agreement 2013 agreement application made pursuant tos 185of thefair work act 2009 act made united voice agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 united voice bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 4 agreement approved accordance withs 54of act operate 7 august 2013 nominal expiry date agreement 30 june 2015 vice presidentprinted authority commonwealth government printer price code g ae402783pr539636
N97_13092 [1998] RRTA 359 (23 January 1998).txt
n97 13092 1998 rrta 359 23 january 1998 refugee review tribunaldecision reason decisionrrt reference n97 13092country reference indiatribunal member michael griffindate decision 23 january 1998place sydneydecision tribunal affirms decision grant protection visa catchword klf kcf political opinion backgroundthe applicant citizen india arrived australia 1995 27 april 1995 lodged application protection visa department immigration multicultural affair themigration act 1958 act 16 december 1996 delegate minister immigration multicultural affair refused grant protection visa 14 january 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 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 contains four key element first applicant must outside country second applicant must fear persecution every threat harm interference person right convention reason constitutes persecuted mason cj referred persecution requiring serious punishment penalty significant detriment disadvantage chan yee kin v miea 1989 hca 62 1989 169 clr 379at 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 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 person well founded fear persecution even though possibility persecution occurring well 50 per cent real chance one remote insubstantial far fetched possibility finally applicant must unable unwilling fear avail protection country object convention provide refuge lost de jure de facto protection 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 principle established 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 full federal court inram v miea anor 1995 fca 1333 1995 57 fcr 565at 568 claim evidencethe applicant claim set written submission department interview officer department written submission tribunal oral evidence given tribunal tuesday 16 december 1997 follows initial application stated family friend supported sikh separatist movement said friend joined khalistan liberation force klf went underground claimed killed police claimed police detained tortured humiliated family 40 50 time trying find klf said meaningful life india victim human right abuse indian government please help stay till sikh matter resolved india departmental interview 20 march 1996 applicant claimed joined klf 1992 belonged group 4 5 person based temple produced letter membership letter advising klf meeting second letter read wrote would continue informing next program letter already informed reach secret place meeting boarding white coloured deleted unders431 migration act 1958 appointed date introduced member claimed gave shelter 3 4 klf supporter home police became aware detained tortured one month accused militant family secured release payment bribe claimed friend attempted relocate calcutta hunted killed punjab police produced copy newspaper article describing death alleged militant encounter police also produced written notice dated late 1994 issued punjab police addressed father following term already informed police men visited house three four time still arraigned son deleted unders431 migration act 1958 link militant organisation accused given shelter militant hereby given period two day present son failing consequence would devastating police deleted unders431 migration act 1958 district seriously search hearing applicant said lost contact family know last contact 2 year coming australia mid 1993 time moved around staying long place claimed leave police kept coming house taking torturing terrorist used come house looked said police became aware end 1992 took away many time period end 92 beginning 93 said prosecuted involvement terrorist occasion police let go sometimes parent paid bribe said direct involvement kcf khalistan commando force used pas message give food visited said joined kcf 92 92 said 3 friend member kcf killed family contact group one willing help pointed departmental interview claimed member klf mentioned kcf replied link member organisation people used visit asked applicant contacted family left home said could read write could trust anyone write also said parent could read write asked younger brother could read said weak study know could read pointed police notice issued father 8 month claimed left family home last contact family said returned several time family home one occasion found notice letter box claimed go house visit scared police would inside waiting went night waited outside five seven minute saw light left said travelled 4 5 kilometre occasion parent house asked read notice said asked boy read 20 kilometre away house know boy said one else help asked kept police notice said kept asked kept letter membership extremist organisation said kept asked kept letter advising detail secret meeting terrorist giving registration number motor vehicle said never think going happen next kept asked fear carrying incriminating document airport security left india said forgotten bag asked kept incriminating document unable read said friend read kept asked applicant police used search house said yes asked find letter klf 40 50 time raided home said time living field minding farm said keep letter house stayed box also contained clothing asked kept document said never thought realise knew brought airport security informed applicant independent country information available tribunal indicated current situation punjab peaceful police restrained government high profile militant risk india information four specialist punjab documentation information research branch immigration refugee board ottawa ind26376 ex 17 february 1997 independent evidence sikh militancy punjab virtually eliminated many group like india sikh student federation aissf sikh student federation ssf recent year denounced use violence committed pursuing peaceful agenda central government attempting rein punjab police insurgency responsible large number extrajudicial execution disappearance understanding especially within home ministry supreme court new delhi punjab police brought back control recent action sent strong signal climate impunity punjab police coming end people high profile militant risk punjab today someone forced provide shelter militant height insurgency would considered high profile suspect simply holding pro khalistani opinion example would make individual high profile suspect one would engage violent anti state act police believe individual could possible recidivist name would go list possible offender intelligence bureau keep centralized computer network constant updating record official canadian high commission new delhi regularly monitor airport arrival individual deported canada last year group numbered 8 10 indian authority pursued exception senior official khalistan commando force kcf india information four specialist punjab supra applicant replied know police still kill militant still harm asked last anything police said early 1993 two year left india finding reasonsi accept applicant credible witness find claim kept incriminating document could read implausible find incredible secret terrorist group would write letter member let alone illiterate one disclosing rendezvous point giving registration number car find implausible illiterate member would keep letter carry run police 2 year india take airport security satisfied letter purporting klf genuine police notice find explanation obtained implausible accept applicant would visit parent home wait outside five seven minute leave first checking letter box prepared accept notice genuine accept demonstrates continuing police interest applicant believe claim run 2 year india satisfied wanted police would released claimed 40 50 time detained draw support conclusion evidence never prosecuted 40 50 occasion fact able pas airport security using passport name however even accept evidence satisfied independent country information real risk person applicant claimed profile punjab today find applicant real chance persecuted return india therefore well founded fear persecuted reason political opinion convention reason therefore satisfy convention definition refugee 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
Lingard Douglas John & Rosland Berice v Couglan Mike t_a Spectacular Pool Tiling Specialists C180-97 [1997] QBT 172 (7 October 1997).txt
lingard douglas john rosland berice v couglan mike spectacular pool tiling specialist c180 97 1997 qbt 172 7 october 1997 queensland building tribunaldate 7 october 1997application c180 97applicant douglas j rosland b lingardrespondent mike coughlan spectacular pool tiling specialistsdecision application mr mr lingard extra expense incurred result alleged defective workmanship respondent installation lighting within pool constructed applicant address 3 arlington court mt coolum applicant claim set paragraph 24 page 4 mr lingard statement commencement proceeding mr lingard abandoned claim additional solicitor cost required one hour 160 00 addition claim paragraph 24 mr lingard produced tribunal document seeking fee relation three witness called give evidence witness expense 43 00 per witness plus travelling 40 cent per kilometre total neil eaton 75 00 gavin watt 75 00 mr blumel 45 00 fact follows applicant purchased four light fitting sydney use within pool construction mr eaton electrical contractor undertook amongst matter installation light purpose backing plate part light assembly purchased needed installed tiler electrician attending later fit light fitting proper towards end 29 july 1996 mr eaton subcontractor working mr watt attended site respondent foreman chris lowe working site tiling pool respondent mr coughlan site time messrs eaton watt inspected light fitting discussion chris lowe site required tiler respect installation backing plate light instruction substantially contained statutory declaration messrs eaton watt dated respectively 28 august 1996 1 september 1997 seems clear evidence time initial discussion mr lowe mr coughlan site arrived site time later initial discussion mr eaton say detailed instruction given mr lowe installation backing plate particular bolt emanating backing plate protrude 3mm 5mm beyond face tiled wall dome nut limited thread could secure backing plate light fitting electrician installed light mr eaton explained bolt protruded 3mm 5mm dome nut would fit flush light fitting would secure light fitting backing plate instruction largely confirmed statutory declaration 16 september 1997 christopher lowe state advised electrician 5mm play tiled surface mr eaton explained complete light housing supplied tiler reference correct embedding depth backing plate ensure complete light housing fitted later clamped flush outside finished tiling noted backing plate also referred statement evidence locating plate according mr eaton evidence chris lowe appeared readily understand instruction indeed chris lowe informed messrs eaton watt familiar type fitting installed job cairn casino mr coughlan arrived site electrician instruction repeated summary form detailed form advised chris lowe perhaps result event clear evidence mr coughlan could remember little instruction given electrician mr coughlan agreed evidence main discussion instruction given arrived site indicated size bolt fitted backing plate additional nut believed room later adjustment bolt accommodate light fitting mr coughlan agreed however turned adjustment could take place work meant bolt embedded tile grouting mr coughlan agreed little discussion electrician relying essence upon discussion chris lowe electrician note point whilst chris lowe provided statutory declaration present questioned declaration whilst applicant strictly require chris lowe cross examination might well quite useful respondent case available provide oral evidence statutory declaration particularly light importance instruction given electrician whilst mr lowe say statutory declaration especially careful questioning electrician set light working drawing seems clear evidence messrs eaton watt prefer accept chris lowe seemed comfortable instruction given particularly apparently said point worked similar fitting cairn apparently turned incorrect subject light proved different brand smaller event became apparent electrician left site clear evidence messrs lowe coughlan experienced difficulty fitting light common ground make attempt contact electrician resolve difficulty instead appears happened make use sample light fitting provided electrician limited purpose referencing correct embedding depth used fitting well three fitting obtained protest applicant fit part light housing backing locating plate messrs lowe coughlan separated housing broke manufacturer waterproofing seal vital part safety feature light clear evidence method accordance electrician instruction result electrician attended site 5 august 1996 fit complete light housing backing locating plate found light fitting dismantled rear light housing removed set wall explained cable waterproofing gland cable entry loosened fit cabling resecured prior setting part housing wall accordingly mr eaton said evidence waterproofing seal compromised balance light fitting could attached satisfactorily result mean ensuring light fitting properly installed remove rear light housing also backing locating plate wall reinstall backing locating plate accordance manufacturer recommendation fact mr eaton gave evidence although recommendation hand time gave instruction chris lowe clear reviewing specification instruction gave chris lowe time consistent manufacturer recommendation accept prefer evidence messrs eaton watt coughlan lowe evidence inconsistent conflict accordingly find respondent breach duty breach contract applicant 1 respondent install backing locating plate accordance instruction applicant electrician particularly mr eaton 2 obviously difficulty fitting backing locating plate instructed electrician respondent diverged electrician instruction also failed contact electrician direction assistance embarking upon course action dismantling light fitting clearly within expertise 3 respondent fitted backing locating plate rear light housing wall pool incorrectly result respondent defective workmanship applicant contacted queensland building service authority authority mr ross blumel inspector authority attended site inspect respondent workmanship result letter dated 6 september 1996 sent authority respondent excerpt follows following item referred attention 1 tiling around pool light carried manner light fitting cannot installed made waterproof accordance manufacturer specification inspection carried soon 16 september 1996 cooperation ensuring rectification complete appreciated authority building inspector contact soon abovementioned reinspection result respondent attended site remove rear light housing also backing locating plate reinstall backing locating plate specific personal direction electrician initially fitting backing plate rear light housing respondent damaged item result necessary applicant repurchase certain item made unusable result respondent defective workmanship part claim applicant seek reimbursement cost 542 55 invoice produced respondent take objection quantum claim respondent cross examining electrician take objection electrical contractor fee 227 50 indeed mr eaton gave evidence fee related soley work required mr watt result respondent defective workmanship invoice referred applicant respect work electrician performed site relating actual installation light accept applicant mr eaton evidence matter claim cost freight 70 00 respondent took objection evidence mr lingard aspect telephone call photocopy photograph preparation claim accept amount 20 00 reasonable applicant produced memorandum fee solicitor 320 00 preparing claim claim complexity clearly prepared legal help mind allow amount allow subpoena fee 43 00 applicant three witness evidence given witness travelling expense accordingly allow amount respect item summary allow applicant following amount way damage cost outlay arising respondent defective workmanship 1 replacement light fitting part 542 552 electrical contractor fee 227 503 freight 70 004 telephone call photocopy photograph 20 005 solicitor cost date 2 hour 320 006 three witness blumel eaton watt 43 00 each129 00 1309 05accordingly order respondent pay applicant sum 1309 05 within twenty eight day date order failing respondent shall pay interest sum paid rate 10 5 per annum member pd lohrischqueensland building tribunaldate 7 october 1997
Barnes v Department of Employment, Training and Further Education [2003] SAWCT 22 (7 March 2003).txt
barnes v department employment training education 2003 sawct 22 7 march 2003 last updated 19 september 2003barnes v department employment training education 2003 sawct 22workers compensation tribunal sa barnes thomasvdepartment employment training educationjurisdiction application set aside consent ordersfile 5581 1998hearing date 11 december 2002judgment honour deputy president r mccouaigdelivered 7 march 2003catchwords application worker set aside consent order original 43 determination applying reg 15 reg 16a subsequent disputation level impairment several disability resolved increasing percentage impairment level consent order recording increase alluding reg 15 conflicting affidavit evidence said party solicitor reg 15 consent order recorded held party ad idem interest justice required order set aside 88hworkers rehabilitation compensation act 1986 mitsubishi motor australia pty ltd v kowalski 2000 sawct 123representation counsel applicant mr possinghamrespondent mr b ikonomopoulossolicitors applicant mahony lawyersrespondent crown solicitor office1 application thomas barnes worker consent order tribunal set aside 2 consent order dated 27 september 2001 record party agreement relation four 43lump sum assessment compensation non economic loss order identify four separate disability agreed percentage impairment disability assessed make mention reg 25 therein lie problem worker contention morning settlement negotiated understood fact told counsel representing respondent originally determined entitlement neither reg 25 predecessor reg 16a applied would retro actively redetermined application reg 25 say additional monetary amount corresponding negotiated increase percentage impairment level three disability fourth disability impairment level remaining originally determined would paid previously paid 3 respondent case intimation given worker never contemplated reg 25 would applied disability 4 differential significant figure range 10000 13000 5 aside counsel oral submission benefit affidavit worker worker solicitor mr krashos worker counsel mr mcrae counsel respondent mr telfer respondent senior claim consultant mr philippou hear oral evidence 6 relevant provision theworkers rehabilitation compensation act 1986 theact i 88hwhich provides power set aside judgment orders88h tribunal may amend set aside judgment order tribunal consent party b order correct error c interest justice require judgment order amended set aside 2 power subsection 1 may exercised president presidential member conciliation arbitration officer president delegated power 7 order consent order moment mitsubishi motor australia pty ltd v kowalski 2000 sawct 123 effect worker case consent order properly fully express party agreement 8 27 september 2001 worker disputeds 43assessments listed judicial determination worker argument founded fact belief set following paragraph affidavit 4 recall judicial determination hearing commence side indicated wished negotiate respect settlement entitlement pursuant tosection 43 recall settlement discussion ensued counsel counsel crown acting respondent 5 recall course discussion directly informed counsel crown error respect previous calculation entitlement pursuant tosection 43 two determination issued 17thoctober 1997 taken account effectively crown told overpaid error 6 stated authority worker compensation tribunal case called mitchell case stated could retro actively determine entitlement pursuant tosection 43to take account fact multiple injury thereby reduce entitlement monetary compensation 7 counsel crown indicated interest settling matter day could agree percentage impairment crown would seek invoke mitchell case retro actively determine entitlement pursuant tosection 43of theact 8 due course negotiation side consultation counsel solicitor agreed various percentage disability relation multiple injury set minute order previously annexed affidavit accompanied application honourable tribunal 9 recall calculation made percentage impairiment equated term monetary compensation recall counsel crown indicated increase percentage would equate receiving additional 10 000 00 lump sum compensation 10 settled proceed judicial determination basis would receive 10 000 00 monetary compensation section 43 entitlement addition cost understood employer crown would retro actively use mitchell case determine entitlement section 43 fix problem previous alleged overpayment annexed herewith marked tb1 copy instruction sheet signed day question waive legal professional privilege 9 annexure worker affidavit tb1 provides degree corroboration worker account least extent providing contemporaneous evidence support notion belief presumably also belief solicitor mr krashos morning question crown would apply reg 25 calculate worker monetary entitlement language memorandum reference mitchell case principle somewhat cryptic execution memorandum morning question think least provide corroboration worker account understood conceded crown time 10 genuineness memorandum challenged satisfied 11 letter worker solicitor dated 7 january 2002 mr philippou capacity claim manager worker compensation department education training employment set calculation worker entitlement accordance consent order applying reg 25 involved adjustment base impairment percentage disability application reg 25 formula disability 12 worker previously paid lump sum compensation totalling 51733 35 based mr philippou calculation receive 52414 74 ie additional 681 39 13 according worker affidavit 9300 le expecting 14 according mr krashos either 7300 le per mr krashos affidavit asserts worker understanding morning settlement would paid 8000 13000 le per mr krashos advice letter dated 28 february 2003 15 variability figure concern also looseness discussion recording thereof morning settlement 16 mr philippou letter received worker solicitor 9 january 2002 17 mr krashos affidavit attests fact early march 2002 contacted mr philippou regarding latter letter particular application reg 25 disability disputed mr philippou accept happened explanation offered delay seven week 18 mr krashos affidavit asserts mr philippou denied knowledge agreement respondent invoke mitchell case retro actively determine applicant 43 entitlement mr krashos asserts mr philippou denied instructed mr telfer put proposition apparent mr philippou present negotiation 27 september 2001 19 mr krashos affidavit also asserts indicated mr philippou worker wanted respondent revisit matter term settlement reflected actual term settlement agreed 27 september 2001 indicated respondent unwilling application would taken consent order set aside 20 mr philippou disputed assertion reflect respondent position anyway satisfied foregoing account mr krashos accurately summarises discussion mr philippou occasion 21 mr krashos affidavit record liaising mr mcrae whatever mean arranged worker see file principal mr mahony asserts meeting early may 2002 worker gave instruction issue application consent order set aside matter reheard referred conciliation 22 application filed tribunal 2 september 2002 explanation offered took best part four month act worker instruction save assertion mr mahony absent overseas period several week 23 affidavit worker counsel mr mcrae attests recollection matter settled party reflected letter report mr krashos letter following term confirm matter came hearing worker compensation tribunal thursday 27thseptember 2001 deputy president mccouaig mr telfer appeared minister negotiated settlement later subject consent order mccouaig dp order follows 1 determination respect cervical spine varied substituting 30 lieu 17 5 2 determination respect lumbar spine varied substituting 25 lieu 22 5 3 determination respect scarring varied substituting 3 lieu 1 4 applicant cost incidental application hearing agreed taxed 5 party liberty apply personally thought reasonable settlement circumstance thank instruction enclose account 24 mr mcrae affidavit record 4 aside subject letter report independent recollection settlement figure mr krashos put thousand dollar several hundred dollar recollection effect reinforced attitude frustration anger displayed mr barnes talked seem recall mention authority put one side cannot say 25 mr philippou affidavit asserts inter alia 6 time day since instruct mr telfer would retro active application reg 25 previous amount received worker always department intention apply reg 25 evidenced previous offer put worker 26 mr philippou affidavit note earlier settlement proposal put worker particular one made letter dated 7 february 2000 involved application reg 25 27 mr telfer affidavit record 1 relevant period employed state south australia instructed act counsel department education child service respect judicial determination listed honour deputy president mccouaig 27 september 2001 2 day judicial hearing recall spent considerable time applicant counsel mr terence mcrae discussing claim discussion took place corridor near conference room courtroom allocated hearing 3 recall specific lengthy discussion worker instructing solicitor aware present conference room usual practice settlement discussion taking place discussion occur counsel independent client present 4 recall regulation 25 applied previously applicant section 43 entitlement cannot specifically recall citingmitchell scase aware effect decision ability crown revisit determination applicant section 43 entitlement 5 cannot conceive would come agreement applicant counsel disregard regulation 25 would aware would contrary correct legal position 6 certainly would agreed arrangement without specific instruction writing client 7 nothing file indicate instruction negotiate indeed fact negotiate resolution regulation 25 would applied 8 correspondence file also support respondent position previous offer put applicant made basis regulation 25 would applied 9 recall discussion applicant entitlement focused primarily around percentage impairment applicant entitled recall discussion actual monetary amount 10 normal practice record monetary amount time making consent order agreed party 28 apparent foregoing worker mr krashos mr telfer mr philippou cannot right recollection negotiation 27 september 2001 either mr telfer agreed revisit earlier determination applying reg 25 worker mr krashos asserted possible may misunderstanding mr telfer said possible example mr telfer may early negotiation agreed revisit original erroneous determination return worker agreeing percentage impairment increase 29 think hearing oral testimony people involved necessarily advance matter say even accepted evidence mr telfer mr philippou found agreement reached party regarding non application reg 25 would necessarily conclusive matter 30 suggested mr telfer mr philippou party agreed application reg 25 given reg 25 predecessor reg 16a applied original assessment given mr philippou evidence always department intention apply reg 25 evidenced previous offer put worker would prudent indeed desirable respondent raised matter reg 25 negotiation one would expect negotiation open frank 31 would seem reading respondent affidavit consent order made 27 september 2001 curious emphasis negotiation percentage impairment figure monetary implication negotiation point assertion worker mr krashos effect worker given intimation receiving certain monetary sum whether rounded otherwise least ring reality difficult imagine worker would consented order made day known effect return leaving cost aside 681 00 32 think likely truth absence specific agreement reg 25 one way worker mr krashos believed respondent would revisit previous assessment would apply reg 25 fact reg 25 reg 16a applied worker original assessment provided reasonable foundation belief handwritten memorandum instruction signed worker morning question corroborative evidence fact worker mr krashos held belief 33 insofar consent order without permit application reg 25 worker assessment respondent done find reflect understanding intention worker morning time subsequently think interest justice require order set aside order note carefully party advised party wish appeal part decision appealable pursuant tos 86 1 theactsuch appeal must filed registrar accordance form titled notice appeal within 14 day delivery decision must served party
Re Lural Insurance Services Pty Ltd; Bruce Cameron Chittock and Sandra Elizabeth Chittock v Kairi Pty LtdAnd Baillieu Milner Real Estate Pty Ltd [1985] FCA 68 (8 March 1985).txt
lural insurance service pty ltd bruce cameron chittock sandra elizabeth chittock v kairi pty ltdand baillieu milner real estate pty ltd 1985 fca 68 8 march 1985 federal court australiare lural insurance service pty ltd bruce cameron chittock sandraelizabeth chittockand kairi pty ltd baillieu milner real estate pty ltd wa g15 1985trade practice 1985 atpr para 40 553courtin federal court australiawestern australia district registrygeneral divisiontoohey j catchwordstrade practice misleading deceptive conduct representation lessee agent concerning leased premise federal state court claim party interlocutory application restrain respondent proceeding state court pending resolution federal court proceeding observation consideration taken account court exercising discretion whether prospect success applicant claim relevant considerationtrade practice act 1974ss 52 82 87hearingperth8 3 1985order1 first respondent restrained judgment proceeding order continuing plaint 32465 1982 1541 1983 1542 1983 local court western australia held perth instituting continuing action proceeding recover applicant amount agreement lease lease premise known unit 2a corner king edward scarborough beach road osborne park reason occupancy shop applicant 2 order contained paragraph 1 hereof conditional upon applicant paying cost first respondent local court proceeding subject injunction upon applicant prosecuting application wa g15 1985 federal court reasonable speed 3 liberty party apply vary discharge term order liberty apply generally 4 cost application restrain proceeding local court reserved decisionthis application concern lease shop premise osborne park first applicant lural insurance service pty ltd lessee applicant director company guaranteed obligation lease first respondent kairi pty ltd lessor premise baillieu milner real estate pty ltd second respondent acted kairi agent letting premise 2 applicant claim negotiation lease radford moyle employed baillieu milner leasing negotiator represented applicant access road constructed allowing easy access shopping centre leased premise part access road would constructed february march 1982 4 5 month negotiation trade shopping centre would strong would enough trade support type business proposed conducted lural business travel agency outlet sale product new zealand 3 11 november 1981 lural entered lease 4 applicant claim respondent engaged conduct misleading deceptive likely mislead deceive within term ofs 52of thetrade practice act 1974 also allege representation false fraudulent made negligently 5 matter court applicant seek injunction restraining kairi continuing four plaint local court western australia kairi claim rent due lural respect premise money due mr mr chittock guarantee applicant seek restrain proceeding also proceeding may brought local court recover rent due lease determination application federal court respondent oppose interlocutory relief sought 6 applicant claim damage pursuant tos 82of thetrade practice actand order pursuant tos 87 declaring lease void ab initio section 52lies withinpart vof act consumer protection entitlement person recover damage conduct done contravention ofpart varises froms 82of act section ands 87are found inpart vi enforcement remedy section 86confers jurisdiction federal court hear determine action prosecution proceeding underpart vi jurisdiction exclusive thejurisdiction court thanthe jurisdiction high court undersection 75 constitution 7 clear federal court jurisdiction entertain claim relief thetrade practice act pursuant accrued jurisdiction court may entertain cross claim kairi rent money due guarantee though jurisdiction respect exclusive stack v coast security 9 pty ltd 1983 hca 36 1983 57 aljr 731 8 doubt court power restrain kairi proceeding claim rent local court real question propriety making order sought st justins property pty ltd v rural holding pty ltd 1980 atpr 40 146 court exercise discretion determine whether deal non federal issue well federal exercising jurisdiction court regard fact court fully invested jurisdiction decide question arise party lease relevant consideration substance question raised thetrade practice act question raised act insubstantial severable part entire proceeding reason would convenient proceeding local court continue see stack v coast security 9 pty ltd per gibbs c j 738 9 another relevant consideration stage proceeding sought restrained reached particular proximity matter hearing amount cost already incurred willingness party seeking restrain proceeding meet cost 10 proceeding sought restrained local court two case action commenced 1982 two case action commenced 1983 also appears affidavit nicholas david pope filed behalf respondent another plaint local court yet served applicant claim balance rent outgoings interest date surrender lease took place agreement applicant kairi 30 may 1983 period 12 month action taken kairi respect local court proceeding explained mr pope brought absence witness overseas affidavit continues however far plaintiff concerned matter ready listed hearing local court would seem step yet taken kairi enter local court action trial interlocutory step taken local court 11 plaint 31484 1982 claim kairi lural confession debt signed matter 7 october 1982 execution levied judgment resulting confession company asset meet judgment 12 consideration far mentioned would appropriate restrain kairi proceeding local court respect action already instituted plaint 31484 matter judgment local court matter re judicata party unless judgment set aside see indrisie v general credit limited unreported decision northrop j delivered 26 october 1984 case action pending court given date hearing case great deal time expenditure incurred interlocutory matter cost kairi incurred date may catered order condition obtaining injunction applicant pay cost 13 matter complicated respondent contend applicant claim federal court reasonable prospect success sufficient reason refusing injunction submission based part upon affidavit sworn mr moyle filed proceeding denied made representation alleged statement claim hand bruce cameron chittock second applicant sworn affidavit verifying content statement claim possible draw conclusion one way affidavit must assumed applicant reasonable prospect establishing representation alleged 14 applicant claim open attack ground pleaded representation even established prediction might happen future would reluctant conclude ground applicant reasonable prospect establishing claim matter fully argued may possible spell representation alleged assertion existing fact relating access road trade 15 although applicant seek injunctive relief case applicant seek restrain hearing application conduct complained statement claim sought restrained final order present applicant seek prevent proceeding local court issue party may aired resolved one court capable disposing issue viz federal court relevant consideration necessarily 16 reason think profitable attempt determine likely success respondent argument applicant claim event statute barred sub section 82 2 thetrade practice actrequires action sub 1 commenced within 3 year date cause action accrued representation upon applicant rely said made october november 1981 proceeding commenced federal court 7 february 1985 applicant argue cause action accrued representation made damage resulted breach undertaking given explored question arcadi v colonial mutual life assurance society ltd 1984 atpr 40 473and unnecessary repeat said question limitation determined question fact law answered certainly possible resolve factual question stage 17 view compelling consideration present case federal court issue party determined cost incurred respondent local court applicant must prepared meet cost condition restraining prosecution proceeding acted promptly making application federal court allowed local court action continue unduly furthermore applicant must prepared prosecute action federal court reasonable speed otherwise kairi left prosecute action local court judgment already entered plaint 31484 1982 appropriate restrain proceeding matter event apparent execution judgment action unlikely achieve result 18 propose injunction restraining first respondent judgment federal court proceeding order continuing plaint 32465 1982 1541 1983 1542 1983 local court western australia held perth instituting continuing action proceeding recover applicant amount agreement lease lease premise known unit 2a corner king edward scarborough beach road osborne park reason occupancy shop applicant injunction conditional upon applicant paying cost first respondent local court proceeding subject injunction upon prosecuting application federal court reasonable speed liberty party apply vary discharge term order cost application restrain proceeding local court reserved
Vance James Pollard v Myalup Beach Caravan Park & Indian Ocean Reatreat Aloisin Ouschan & Lorenz Ouschan [2006] WAIRComm 5241 (9 August 2006).txt
vance james pollard v myalup beach caravan park indian ocean reatreat aloisin ouschan lorenz ouschan 2006 waircomm 5241 9 august 2006 last updated 10 july 2007western australian industrial relation commissionpartiesvance james pollardapplicant v myalup beach caravan park amp indian ocean retreat aloisin ouschan amp lorenz ouschanrespondentcoramcommissioner wooddatewednesday 9 august 2006file nou 167 2006citation 2006 wairc 05241resultapplication discontinuedrepresentationapplicantmr v pollardrespondentmr c garvey counselorderwhereas application pursuant tosection 29 1 b theindustrial relation act 1979 andwhereas conciliation conference convened 26 july 2006 conclusion matter resolved whereas party waived right speak minute proposed order pursuant tos 35 4 theindustrial relation act 1979 therefore commission pursuant power conferred theindustrial relation act 1979 hereby order application hereby discontinued commissioner wood
Ahamed v Secretary, Department of Social Services [2020] FCCA 1245 (20 May 2020).txt
ahamed v secretary department social service 2020 fcca 1245 20 may 2020 last updated 20 may 2020federal circuit court australiaahamed v secretary department social service 2020 fcca 1245catchwords administrative law appeal administrative appeal tribunal decision social security entitlement disability support pension circumstance person treated member couple capacity share resource based upon practical consideration relevant factor appeal allowed administrative law appeal administrative appeal tribunal decision social security entitlement relevant consideration application waiver debt importance comparison notional entitlement actual payment considering waiver likely entitlement relevant period properly sought subject finding arguable claim notional entitlement relevant period would greater benefit actually received appeal allowed legislation social security act 1991 cth s 24 739a 1070c 1218 1237aad 1237aacsocial security administration act 1999 cth s 109 110social security legislation amendment bill 4 1991cases cited angelakos v secretary department employment workplace relation 2007 fca 25 boscolo v secretary department social security 1999 fca 106brawn secretary department social service social service second review 2017 aata 873brian lewisgroth v secretary department social security 1995 fca 1708cocks v centrelink 2000 fca 1248department employment education youth affair v daryl ferguson 1997 fca 663 1997 76 fcr 426 1997 147 alr 295 1997 48 ald 593 1997 25 aar 195dept family community service v huynh 2002 fca 112ekert secretary department family housing community service indigenous affair 2010 aata 701eugeniusz galewski secretary department social security 1998 aata 908 1998 54 ald 569hawkins secretary department social security 1996 aata 927 1996 44 ald 651jzwb secretary department social service social service second review 2015 aata 721 kazmierczak v secretary department family housing community service indigenous affair 2010 fca 1084nicolaas secretary department family housing community service indigenous affair 2009 aata 416oberhardt v secretary department education employment workplace relation 2008 fca 1923pascoe secretary department social service 2013 aata 745pzhc andsecretary department social service social service second review 2015 aata 762robinson secretary department social service 2014 aata 446secretary department social security v calin al secara or 1998 fca 1510 1998 89 fcr 151 1998 51 ald 481 28 aar 385secretary department social security vhales 1998 fca 219wilson secretary department family housing community service indigenous affair anor 2012 aata 154zandieh nadem v secretary department family community service 2000 fca 1422appellant mohammad ahamedrespondent secretary department social servicesfile number mlg 261 2020judgment judge riethmullerhearing date 26 february 2020 1 april 2020date last submission 14 april 2020delivered melbournedelivered 20 may 2020representationthe appellant appeared person solicitor respondent australian government solicitororders 1 appeal allowed 2 decision administrative appeal tribunal general division made 13 december 2019 set aside matter remitted rehearing according law federal circuit courtof australiaat melbournemlg 261 2020mohammad ahamedappellantandsecretary department social servicesrespondentreasons judgmentbackgroundthe appellant filed appeal decision administrative appeal tribunal tribunal dated 13 december 2019 respect social security entitlement appeal lodged federal court australia 3 january 2020 subsequently transferred federal circuit court australia hearing appellant raise three question law framed notice appeal follows appellant receive single rate disability support pension dsp period april 2017 28 april 2019 based special circumstance basis special circumstance debt waived period april 2017 26 february 2018 rent assistance paid appellant period january 2016 february 2018 due special circumstance ground application simply listed serious financial hardship personal difficulty andspecial circumstance appellant unrepresented require carefully particularise ground proceeded hear submission best able present tribunal decisionthe tribunal affirmed decision respect declining backdating rent assistance set aside decision respect waiver disability support pension debt appellant tribunal remitted matter secretary department social service department purpose waiving 2 000 appellant total debt basis special circumstance found relevant background fact summarised decision maker following chronology see paragraph 5 14 tribunal reason decision decision 5 29 november 2012 appellant granted dsp single rate 6 9 november 2015 appellant advised centrelink married bangladesh 12 february 2015 wife remained bangladesh indefinitely 7 23 november 2015 centrelink advised appellant would paid single person dsp even though partner partner residentially qualified receive payment met criterion financial difficulty advised required inform centrelink circumstance related either partner changed 8 17 december 2015 appellant departed australia complete year study towards degree bangladesh subsequently returned australia 16 february 2017 9 25 july 2016 appellant wife granted subclass 309 visa provisional partner provided right work australia 10 5 april 2017 appellant wife arrived australia commenced living together 11 15 january 2018 appellant advised centrelink change address paying rent address since 2 february 2017 centrelink issued appellant rent certificate completion 12 25 january 2018 appellant lodged rent certificate advising centrelink share accommodation people centrelink inclusive copy lease agreement granted rent assistance 15 january 2018 component dsp 13 5 january 2018 appellant son born subsequently 26 february 2018 appellant made application family tax benefit ftb ftb finally granted 20 september 2018 inclusive rent assistance appellant received back pay period 5 january 20 september 2018 appellant wife subsequently separated 14 7 december 2018 departmental authorised review officer aro reviewed decision raise recover dsp debt 6 795 88 affirmed decision appellant advised centrelink partner entered australia commenced living aro found cjcy overpaid 5 april 2017 16 april 2018 6 795 88 difference single rate payment compared partnered rate payment aro also determined special circumstance exist enable debt waivered issue 1 appellant received single rate dsp tribunal went consider whether accordance withsection 24of thesocial security act 1991 cth social security act treated member couple social security purpose period april 2017 28 april 2019 tribunal noted appellant member couple legally married residing wife see paragraph 31 decision tribunal outlined argument paragraph 32 decision follow ability pool share resource enjoy economy scale prevented wife visa afforded work right australia open obtain employment appellant access social security family assistance payment evidence financial hardship relevant period appellant wife separated illness imprisonment longer living separate country 5 april 2017 unexpected changed circumstance outside appellant control andit taxpayer subsidise bear cost appellant wife choice move australia appellant notified centrelink married wife still living overseas time department paid single rate pension presumably basis open wife come australia visa therefore could pool resource tribunal accept appellant claim notified centrelink wife moved bangladesh live australia issue dispute whether special reason pursuant tosection 24 1 c treat appellant member couple following wife arrival australia appellant made submission residing australia wife precluded either working accessing centrelink benefit due lack english language skill illness pregnancy paragraph 34 35 decision tribunal noted although appellant wife working time precluded working australia accessing centrelink benefit tribunal found appellant wife separated illness imprisonment living separate country special reason considered member couple pursuant tosection 24thesocial security act see paragraph 38 decision appellant argument turn definition applied phrase special reason appears insection 24 1 c thesocial security act section considered number case inbrian lewisgroth v secretary department social security 1995 fca 1708 kiefel j honour considered meaning special circumstance albeit respect different provision saying 12 phrase special circumstance said although imprecise sufficiently understood require judicial gloss beadle case beadle v director general social security 1984 aata 176 1985 60 alr 225 229 present purpose sufficient observe would require something distinguish case others take usual ordinary case consider enquiry undertaken case would course follow one conclude something unfair unintended unjust occurred must feature ordinary series case circumstance party practical level meant unable pool resource relevant sense inhawkins secretary department social security 1996 aata 927 1996 44 ald 651 hawkins case appellant wife ineligible work australia ineligible pension saving asset blow dp honour said paragraph 6 6 unders 1064 b1 act rate pension payable member illness separated couple member respite care couple partnered person whose partner gaol payable pensioner member couple evident policy behind relevant legislative provision ordinarily couple expected pool resource practise economy scale expectation apply couple separated illness imprisonment would special reason apply expectation member couple fact referred explanatory memorandum thesocial security legislation amendment bill 4 1991 included following paragraph clear justification paying higher rate pension benefit pharmaceutical allowance member couple simply partner also receive income support example partner might still earning living workforce eg wife qualifies age pension ahead husband age differential partner may foreign pension income yet partner may prevented receiving income support strike blow dp went find paragraph 14 14 one must lose sight fact discretion exercised context thesocial security act therefore individual involved ordinarily impecunious however believe extreme impecuniosity appellant wife coupled inability lawfully earn income special factor take case ordinary run case case one could reasonably even possibly expect pooling resource husband wife wife resource therefore satisfied appellant wife total lack resource constitutes special reason particular case appellant treated member couple ineugeniusz galewski secretary department social security 1998 aata 908 1998 54 ald 569 galewski case senior member muller applied reasoning inhawkins case paragraph 11 found usual advantage pooling resource married couple apply mr galewski case wife lack resource income prospect see paragraph 13 inboscolo v secretary department social security 1999 fca 106 french j honour considered provision detail saying 18 word special conditioning reason circumstance guard entrance exercise many different statutory discretion generally futile search meaning term word essence instrumental direction decision maker discretion constrains lightly enlivened core requirement special circumstance special reason something unusual different take matter subject discretion ordinary course minister community service health v chee keong thoo 1988 fca 54 1988 78 alr 307at 324 burchett j require case extremely unusual uncommon exceptional secretary department social security v hodgson 1992 fca 338 1992 108 alr 322 beadle supra full court concluded term special sufficiently well understood require judicial gloss said matter one decision maker case director general social security matter remitted reconsideration circumstance appellant wife remained perth appellant moved sydney pursue family law dispute respect child former relationship incocks v centrelink 2000 fca 1248 loughlin j found appellant would benefit pooling resource even lived wife philippine nothing contribute pool see paragraph 22 case practical assessment party circumstance showed real capacity pool resource innicolaas secretary department family housing community service indigenous affair 2009 aata 416 appellant wife came overseas earning capacity inbrawn secretary department social service social service second review 2017 aata 873the appellant treated member couple residing wife vietnam employment vietnam inekert secretary department family housing community service indigenous affair 2010 aata 701 appellant wife work right however couple substantial saving inkazmierczak secretary department family housing community service indigenous affair 2010 fca 1084 kazmierczak case andpascoe secretary department social service 2013 aata 745 pascoe case appellant partner income could shared even though appellant reluctant ask partner provide support case practical level either asset potential earnings share number case emphasised practical application test inholt secretary department education employment workplace relation 2010 aata 143 holt case professor rm creyke paragraph 32 pointed section must interpreted context noting term explanatory memorandum thesocial security legislation amendment bill 4 1991which say page 17 32 justification paying higher rate unpartnered person member couple member couple living together justification based premise unpartnered person enjoy economy shared living cost member couple circumstance economy scale available member couple living apart partner example illness one member couple would face similar living cost unpartnered person 34 extract indicate two reason partnered rate economy scale two people living together pooling resource two person better financially pool joint income asset prof creyke found appellant wife resource earning capacity thereforesection 24of thesocial security actwas satisfied inkazmierczak casebarker j said paragraph 42 42 41 particular focus act practical ability resource partner available pooling resource person holding pension fundamentally derives froms 1064 a2 act provides two people member couple treated pooling resource income asset sharing 50 50 basis 42 stand reason legal practical reason partner member couple cannot treated sharing income asset ground exercising discretion unders 24so treat holder pension member couple capable sharing resource regard effect thes 1064 a2 expectation pooling negatived desire appellant inkazmierczak caseto avoid seek support wife insufficient satisfysection 24 recently inpascoe casethe member said paragraph 38 one member couple nothing contribute pool resource way income asset may practical reason person may treated sharing resource may reasonable member couple expected seek support m pascoe sought single rate benefit even though lived partner worked received partial benefit thrust argument rejected couple kept finance separate m pascoe partner provide financial support emerges case couple expected pool resource ordinary run case present difficulty decision maker spouse entitled half couple pension unless resource income whatever category benefit pension one considers couple situation expense greater income choose lifestyle arrangement cost income amount generally special circumstance however one member couple work right asset pension section usually satisfied difficulty arises lack pension employment simply legal impediment visa condition rather practical one circumstance careful consideration specific circumstance couple required context appellant case question arose whether wife could practice work given lack english illness whether actually entitled form government benefit resource least one factor necessary enable practical level pool resource appellant question sufficiently answered merely pointing visa condition provides legal permission engage employment legal discretion may result payment benefit rather consideration required whether appellant wife could practical level work whether likely fall within discretion payment benefit pension party australian citizen living australia question generally admits simple answer anyone without asset unable find work generally entitled form benefit although see unusual feature ofholt case present appeal tribunal identified case appellant reason saying 34 appellant argued strenuously expect taxpayer bear burden supporting wife also argued never claimed centrelink benefit unable work time english language skill prevented working suffered significant illness pregnancy tribunal identify evidence relied upon made finding decision 38 tribunal assessed information found appellant member couple period 5 april 2017 16 april 2018 wife living together australia also found opportunity pool resource couple although wife working time precluded working australia accessing centrelink benefit additionally tribunal found special reason appellant considered member couple accordance withsection 24of act wife separated illness imprisonment living separate country case suggested wife financial resource asset foreign pension making lifestyle choice stay home go strike case although tribunal found appellant wife precluded law working address whether could practical level work earn income could potentially shared first tier review member said dispute wife able work notwithstanding unable find work see paragraph 9 appellant wife capacity earn income distinct legal right engage employment addressed tribunal decision unfortunately discussion evidence tribunal member relied upon reach conclusion context case real question whether practical reason appellant wife could treated sharing income asset practical problem advanced member appellant wife income earning capacity asset appellant case wife could work due lack language skill illness practical inability spouse earn income sufficient ingalewski case cock caseandholt caseto enliven discretion tribunal required make finding extent wife earning capacity consider determining exercise discretion undersection 24of thesocial security act tribunal also found appellant wife right access social security benefit relevant time right pension benefit would financial resource could shared appellant denies wife entitlement relying upon correspondence say received 23 november 2015 department wrote appellant advising partner residentially qualified receive payment although letter later requested appellant advise department partner start receive income income support payment see court book page 102 visa grant fact sheet provided appellant wife simply stated may able access range service offered australian government benefit centrelink medicare see court book page 28 30 appears likely appellant wife believed entitled benefit counsel secretary argued holder subclass 309 visa relevant period appellant wife would entitled claim range benefit act permanent resident might able claim eligible receive special benefit could prove since arriving australia special circumstance significant change circumstance beyond control statutory basis entitlement identified tribunal decision identified submission respondent appeal according online social security guide http guide ds gov au guide social security law 9 1 2 20 holder provisional visa subclass 309 310 820 826 may access spb since legislative change introduced effect 1 january 2012 visa holder must show financial hardship experienced substantial change circumstance beyond control arrival australia appears summary provision chapter 2 part 2 15of thesocial security act notably seems newly arrived resident waiting period see 739a special benefit determination appears period 208 week entry australia importantly counsel respondent identified waiting period apply 739a 7 person secretary opinion suffered substantial change circumstance beyond person control person first entered australia operation test discussed several case includingsecretary department social security v calin al secara or 1998 fca 1510 1998 89 fcr 151 1998 51 ald 481 28 aar 385 department employment education youth affair v daryl ferguson 1997 fca 663 1997 76 fcr 426 1997 147 alr 295 1997 48 ald 593 1997 25 aar 195 zandieh nadem v secretary department family community service 2000 fca 1422 anddept family community service v huynh 2002 fca 112 case factor appears show substantial change circumstance beyond control appellant wife illness tribunal however discus issue provide reason whether found appellant wife would likely satisfy test insection 739a 7 thesocial security act highlight distinction theoretical right law social security practical question eligibility circumstance case findinga ground appeal made respect issue tribunal consider appellant wife practical capacity obtain engage employment whether incapacity substantial change circumstance would give rise entitlement benefit determination issue necessary factually unusual case went heart thesection 24question whether appellant wife resource share issue 2 rent assistance paid appellant period january 2016 february 2018 due special circumstance appellant sought rent assistance period prior february 2018 tribunal identified paragraph 61 decision appellant first advised department paying rent 15 january 2018 therefore rent assistance could paid earlier period due term provision legislation appellant case complex relies upon fact receipt rent assistance 2015 travelled bangladesh study appellant departed australia 17 december 2015 rent assistance cancelled 16 june 2016 time department gave notice cancellation rent assistance seek review decision 16 february 2017 appellant returned australia advise department change address paying rent received number letter advising pension include rent assistance letter dated 20 february 2017 21 february 2017 15 december 2017 appears 15 january 2018 appellant advised department change address seddon victoria also gave notice paying rent address since 2 february 2017 result department issued appellant rent certificate completion returned 25 january 2018 granted rent assistance 15 january 2018 backdating rent assistance limited bysection 110 1 thesocial security administration act 1999 cth provides 1 favourable determination made following person informed department occurrence event change circumstance determination take effect day person informed department b day event change occurred whichever later whilst appellant claim decision cease payment benefit whilst overseas incorrect still cannot obtain backdated benefit review decision backdated date review requested review requested 13 week decision seesection 109 2 thesocial security administration act 1999 cth respect decision tribunal must affirmed appellant argued entitled rent assistance living outside australia studying argument appears rely uponsection 1218of thesocial security actwhich provides payment benefit person studying overseas appellant disability pension appears restored 8 january 2016 commenced study bangladesh middle 2016 appellant overseas 26 week rent assistance cancelled key problem appellant thatsection 1070climits rent assistance circumstance person paying rent respect premise australia seesection 1070c c evidence appellant paying rent australia relevant time findingi persuaded appellant demonstrated error part tribunal respect rent assistance aspect decision note however return australia 16 february 2017 application rent assistance 15 january 2018 without rent assistance around 11 month could claimed also note appellant raised issue concerning pensioner education supplement entitlement issue appear subject specific objection claim however may ultimately relevant discretion waiver matter remitted tribunal issue 3 debt waived debt waived thesocial security act test provided bysection 1237aadis satisfied relevantly provides debt result wholly partly debtor another person knowingly making false statement false representation ii failing omitting comply provision act administration act 1947 act b special circumstance financial hardship alone make desirable waive c appropriate waive write debt part debt french j honour pointed evident purpose section 1237aad enable flexible response wide range situation could give rise hardship unfairness event rigid application requirement recovery debt seesecretary department social security vhales 1998 fca 219 however fact recipient spent overpayment ordinary living expense even caused department particular significance provided tribunal take account respondent error nature error financial hardship appellant might suffer required repay debt seeangelakos v secretary department employment workplace relation 2007 fca 25 importantly inoberhardt v secretary department education employment workplace relation 2008 fca 1923the relevance notional entitlement considered section 1237aac provides debt must waived extent amount unclaimed entitlement certain specific category example family payment spender j noted 59 whilst term 1237aac mandate notional entitlement cannot considered relevant consideration considering special circumstance 1237aad b nothing 1237aad neighbouring provision suggest limitation 1237aac apply circumstance specifically enumerated 1237aac impermissibly fetter broadly expressed discretion implication amount notional entitlement taken account inpzhc andsecretary department social service social service second review 2015 aata 762 comparing notional newstart allowance austudy payment see alsowilson secretary department family housing community service indigenous affair anor 2012 aata 154 jzwb secretary department social service social service second review 2015 aata 721the logical underpinning case commonwealth would effect financially disadvantaged see hotop dp inrobinson secretary department social service 2014 aata 446 50 present case section found fulfilled respect appellant circumstance tribunal waived 2 000 debt decision tribunal state 59 found appellant circumstance whole sufficiently unusual uncommon exceptional make case markedly different ordinary run case therefore determined waive proportion debt tribunal found appellant contributed situation failing make simple phone call centrelink around 5 april 2017 could advised change circumstance wife commenced living australia changed address paying rent time tribunal think appellant situation warranted cancellation whole debt contributed making circumstance already benefit money entitled however tribunal determined amount 2 000 warranted waivered recognition hardship special circumstance amount 2 000 struck waiver balancing conduct appellant hardship debt reaching decision tribunal quite properly recounted much difficult personal circumstance appellant see paragraph 53 58 decision discussed whether appellant wife applied department timely fashion relevant benefit available amount would dispensed department would likely le actually paid difficult accept appellant wife paid benefit pension even half couple rate total paid appellant wife would le single rate pension paid appellant appear dispute wife mean support appellant circumstance failure appellant wife apply possible benefit pension scrupulously comply provision may well resulted department paying le money household relevant period circumstance effect conduct disadvantage recipient wife compared would otherwise received difficult understand overpayment would waived seem appropriate rely upon non compliance resulted lower overall payment basis declining waive debt appellant wife already worse financially error neglect course department lost opportunity assessing entitlement relevant time reinforcing importance applicant providing evidence prove relevant fact circumstance importantly whilst case speak notional entitlement sometimes described set debt see examplerobinson secretary department social service 2014 aata 446 term run risk treating notional entitlement amount must set matter law position section 1237aad statutory discretion remains unfettered accurate describe notional entitlement relevant factor rather set even appropriate exercise discretion would often result waiver part debt equivalent likely amount notional entitlement reason still appropriate consider notional entitlement appellant wife couple relevant discretion require strict analogy law equity would impermissibly limit discretion section see generallyangelakos case similar problem arises respect rent assistance appellant failed claim eleven month see whilst rent assistance cannot claimed arrears fact remains appellant failure make claim timely way nonetheless went without assistance loss sum amount clear submission would also relevant consideration determining whether waive debt arises respect amount appellant paid provided appellant proved entitlement benefit relevant time even though claim situation case stand clear contrast case claimant overpaid failure comply rule could received amount paid full compliance situation logical hardship may weighed extent conduct caused overpayment debt caused incorrect claim circumstance correct claim would resulted greater payment department failure waive debt would penalise failed navigate system order advance best interest findingas result find tribunal failed regard important consideration determining much debt waive namely amount would likely paid appellant wife found appellant wife entitled special benefit act claimed full entitlement conclusionin matter found tribunal erred consideration appellant case tribunal failed make necessary finding fact relevant question arose undersection 24of thesocial security act whether appellant treated member couple secondly even tribunal ultimate finding respect tosection 24were correct tribunal failed regard difference appellant received amount pension benefit allowance appellant wife would likely received applied timely manner entitlement appears open therefore allow appeal remit matter tribunal determined according law certify preceding forty nine 49 paragraph true copy reason judgment judge riethmullerassociate date 20 may 2020
Re Evaline Jill Hamlyn v Moppet Grange Pty Limited [1984] FCA 19; (1984) Atpr 40-439 (16 February 1984).txt
evaline jill hamlyn v moppet grange pty limited 1984 fca 19 1984 atpr 40 439 16 february 1984 federal court australiare evaline jill hamlynand moppet grange pty limitednos g375 377 1983trade practice 1984 fca 19 1984 atpr 40 439courtin federal court australianew south wale district registrygeneral divisionneaves j catchwordstrade practice consumer protection child night garment supply good complying prescribed consumer safety standard false representation labelling good particular standard penaltytrade practice act 1974 section 53 62 1 63hearingsydney16 2 1984order1 matter g375 1983 defendant pay fine 1 000 2 matter g376 1983 defendant pay fine 500 3 matter g377 1983 defendant pay fine 500 4 defendant pay prosecutor cost proceeding decisionmoppet grange pty limited defendant entered plea guilty three charge offence againstpart vof thetrade practice act 1974 act one offence paragraph 62 1 act two paragraph 53 offence relate supply trade commerce child night garment understand nature offence necessary refer certain provision act certain declaration made thereunder sub section 1 2 section 63aa act provide 1 minister may notice hand published gazette declare respect good kind specified notice particular standard particular part standard prepared approved standard association australia aprescribed association body standard part standard addition variation specified notice consumer product safety standard purpose ofsection 62or consumer product information standard purpose ofsection 63 2 notice published standard part standard referred notice standard part standard referred addition variation specified notice case may shall deemed prescribed consumer product safety standard purpose ofsection 62or prescribed consumer product information standard purpose ofsection 63 case may paragraph 62 1 act provides corporation shall trade commerce supply good intended used kind likely used consumer good kind respect prescribed consumer product safety standard comply standard sub section 63 1 make offence corporation trade commerce supply good intended used kind likely used consumer good kind respect consumer product information standard prescribed unless corporation complied standard relation good notice dated 11 january 1978 published commonwealth australia gazette 8of 13 january 1978 minister business consumer affair declared respect good specified division 1 schedule notice australian standard 1249 child night clothes reduced fire hazard part 1and2published standard association australia 1 january 1977 andpart 3published association 1 may 1977 variation addition specified notice consumer product safety standard purpose ofsection 62of act good specified division 1 schedule notice child night garment night dress dressing gown pyjama pyjama style overgarment infant sleep bag article nightwear including article headwear footwear handwear size 0 14 specified australian standard 1182 1972 size coding scheme infant child clothing published standard association australia force 1 december 1977 notice dated 15 june 1978 published commonwealth australia gazette 119of 30 june 1978 minister declared respect class good australian standard 1989 1976 classification labelling child night clothers fire hazard published standard association australia 1 december 1976 amended amendment 1 amendment 2 published association 1 may 1977 1 august 1977 respectively varied variation specified notice consumer product information standard purpose ofsection 63of act australian standard 1249 as1249 variation addition specified notice dated 11 january 1978 referred set limitation combustion characteristic design child night clothes standard divided three part separate limitation part 1sets requirement child night clothes low fire hazard type garment complying part classified category 1 accordance australian standard 1989 as1989 comply withpart 1of as1249 garment must made fabric trim comply australian standard 1248 fabric domestic apparel low fire hazard type ascertain whether fabric complies australian standard 1248 tested accordance australian standard 1176 as1176 part 1 2and3 method test combustion characteristic textile material latter standard prescribes test determination ease ignition determination burning time heat output determination surface burning property test last referred applicable fabric pile nap child night garment meet requirement ofpart 1of as1249 classified category 1 accordance as1989 garment must pas test as1176 ignition burning time surface burning time test applicable may design part 2of as1249 specifies requirement child night clothes designed reduce fire hazard garment complying part classified category 2 accordance as1989 essentially form fitting garment comply combustion characteristic specified part 3of as1249 defines limitation use fabric type garment length garment classified category 3 as1989 clause 3 1 category 3 as1989 expressed see clause 4 comprise garment pyjama pyjama style overgarment night dress dressing gown infant sleepbags comply as1249 part 1orpart 2but comply limitation laid as1249 part 3 provision appear somewhat circuitous effect fall withinpart 3of as1249 thus classified category 3 as1989 garment must fall within eitherpart 1orpart 2of as1249 must satisfy limitation prescribed inpart 3of standard limitation specified relate particularly flammable fabric cotton clause 3 5 2 as1249 part 3provides maximum mass per unit area 130 gm m2 fabric composed 50 per cent cellulosic acetate fibre maximum garment length cotton natural cellulosic fibre see appendix b as1249 part 1and2 child night garment made fabric containing 50 per cent cotton fabric must lightweight garment must extend beyond knee length as1989 set requirement labelling child night clothes respect fire hazard specifies wording appear label size letter used wording location label garment durability label laundering labelling prescribed respect fire hazard follows diagram omitted word label category 1 category 2 garment printed red white label background word symbol label category 3 garment printed black red label background virtue provision contrary law supply child night garment comply as1249 also contrary law supply child night garment fall within as1249 garment correctly labelled accordance as1989 turning offence defendant charged reference made provision act paragraph 53 provides corporation shall trade commerce connexion supply possible supply good service connexion promotion mean supply use good service falsely represent good particular standard quality grade composition style model particular history particular previous use person contravenes provision ofpart vof act thansection 52is guilty offence punishable conviction case person body corporate fine exceeding 50 000 sub section 79 1 prosecution offence act brought court given jurisdiction hear determine prosecution section 163 proceeding court accordance withsection 163may instituted summons upon information shall instituted except consent minister person authorised minister writing hand give consent ibid defendant charged 20 february 1983 24 march 1983 sydney state new south wale defendant corporation within meaning act contravene paragraph 62 1 act trade commerce supply good namely child night garment kind likely used consumer good kind respect prescribed consumer product safety standard namely prescribed consumer product safety standard respect child night garment declared notice subsection 63aa 1 act published commonwealth australia gazette numbers8dated 13 january 1978 said good comply standard b 20 february 1983 24 march 1983 sydney state new south wale defendant corporation within meaning act contravene paragraph 53 act trade commerce connexion supply good namely child night clothes falsely represent good particular standard namely good complied withpart 2of australian standard 1249 c 23 march 1983 sydney state new south wale defendant corporation within meaning act contravene paragraph 53 act trade commerce connexion supply good namely child night clothes falsely represent good particular standard namely good complied withpart 2of australian standard 1249 first charge paragraph 62 1 act relates supply defendant gabriella boutique burwood state new south wale absorba brand night dress suitable child 10 year age second charge relates supply retailer absorba brand night dress suitable child 6 year age third charge concern representation made defendant night dress referred second charge sold gabriella boutique officer trade practice commission consent institution proceeding required bysection 163of act given defendant family company paid capital 2 sole shareholder director robert francis beullens patricia iris beullens wife carry business importer wholesaler australian importer absorba brand child garment manufactured france supply absorba brand child garment retailer six australian state australian capital territory mr mr beullens gave evidence also evidence written record interview mr beullens officer trade practice commission 14 april 1983 prior incident involving retailer melbourne october 1982 neither mr beullens wife aware safety labelling standard prescribed respect child nightwear month melbourne retailer informed employee defendant supplied defendant child nightwear bear label required prescribed standard mr beullens arranged obtain stock label form prescribed respect category 2 category 3 as1989 supplied label melbourne retailer attachment garment question 26 october 1982 officer trade practice commission spoke employee defendant concerning supply child nightwear bear appropriate label trade practice commission also arranged defendant receive copy gazette notice referred declaring safety information standard flammability child nightwear copy commission information circular 31 entitled consumer protection mandatory consumer product standard relating safety information copy document described summary 1 19 may 1982 edition dealing flammability safety standard child nightwear mr beullens admitted received document mr beullens agreed cross examination document studied carefully unnecessary refer detail commission information circular 31 document described summary 1 19 may 1982 edition suffice say reader would left doubt mandatory standard prescribed require child night clothes fall within one three category detail given night clothes come within one category may legally supplied also made abundantly clear standard apply transaction level supply e wholesale retail intermediate stage whether transaction supply way sale exchange lease hire hire purchase defendant received shipment absorba garment february 1983 garment labelled accordance as1989 mr beullens made arrangement label attached letter dated 15 february 1983 sent defendant firm trading name royal sport manly vale new south wale letter reading follows enclosed roll label attached garment delivering factory monday 21st white label designed reduce fire danger flammable fabric attached grower two piece tracksuits white label attached piece two piece garment red label warning high fire danger keep away fire attached nightdress dressing gown confirm cost putting label 25 per label according mr beullen evidence 5 300 garment labelled 127 child night dress clear evidence prior instruction given royal sport attach label child night dress defendant aware whether garment complied requirement as1249 step taken defendant either later garment tested compliance mr beullens also gave evidence step taken garment labelled say personally spoke machinist undertake work impressed category 3 label attached child night dress garment returned defendant random check made see label attached accordance instruction given 22 march 1983 officer trade practice commission visited child wear retail shop gabriella boutique burwood new south wale examined number child night garment including absorba brand night dress absorba brand garment carried label indicating made fabric 74 per cent cotton 26 per cent nylon polyamide thirteen absorba garment night dress style appeared knee length nine carried label form prescribed category 3 as1989 four carried label form prescribed category 2 standard proprietor gabriella boutique stated garment supplied defendant 23 march 1983 officer trade practice commission returned gabriella boutique purchased two absorba brand night dress category 2 label one garment 10 year old child garment subject charge paragraph 62 1 act 6 year old child subject two charge absorba night dress 10 year old child subsequently tested compliance as1249 report test show garment comply limitation three category as1249 cannot therefore classified as1989 garment comply withpart 1of as1249 failed ignition time burning time test flammability minimum permitted ignition time 6 second see australian standard 1248 clause 3 whereas mean ignition time inner surface garment test 4 3 second mean permitted burning time 18 second one burning time le 16 second ibid clause 3 b mean burning time garment test 14 4 second minimum burning time 13 8 second maximum burning time 14 8 second garment comply withpart 2of as1249 comply design requirement therein set comply withpart 3of as1249 fabric contains 50 per cent cotton greater mass per unit area maximum permissible fabric 50 per cent cotton must mass per unit area le 130 gm m2 see as1249 part 3 clause 3 5 2 garment question mass per unit area 233 gm m2 defendant admitted supplying garment gabriella boutique delivered time 20 february 1983 24 march 1983 also admitted defendant supplied 114 type child night dress retailer time garment fabric subject test result referred defendant issued two circular letter dated 31 march 1983 one sent customer defendant received garment thought might incorrectly labelled requesting check labelling inform defendant mistake discovered addressed customer supplied absorba brand child night dress circular letter read check record revealed received absorba nightdress winter order would please put nightdress rear shop display sale pending possible recall garment please deduct cost nightdress thus put aside payment u stock received let know immediately know whether may sell nightdress meantime displayed sale defendant became aware result test referred step taken recall customer absorba child night dress remained unsold 127 night dress supplied 119 returned defendant evidence adduced defendant includes copy account defendant respect year ended 30 june 1983 attention directed profit loss report year show total income sale 670 516 84 profit tax 1 289 01 evidence given mr mr beullens paid salary 11 000 year relation seriousness offence counsel informant referred report made august 1982 scientist commonwealth scientific industrial research organisation particular following passage report difficult ascertain quantitatively precision impact child nightwear standard reduction burn limited data collected prior development standard evident every year several death extremely serious injury occurred nightwear involvement quite clearly number burn due child nightwear relatively small death caused inflammable nightwear recorded recent statistic counsel defendant acknowledged seriousness offence relied upon number matter mitigation penalty may summarised follows three charge arise set fact b defendant director believed garment properly labelled unreasonable circumstance director hold belief c director became aware non compliance acted responsibly properly draw attention customer problem result test known recall offending garment defendant previously convicted offence nature charge pleaded guilty e defendant small family company marginally profitable accept matter except relating belief director garment correctly labelled would think fair say given step taken mr beullens director entitled assume instruction given letter dated 15 february 1983 addressed royal sport carried instruction label garment particular way given without basis upon could properly concluded labelling requested accordance prescribed safety information standard defendant taken step garment tested compliance standard even informed person comply evidence establish director ever addressed mind question compliance standard director conduct cannot regarded irresponsible one considers october 1982 shipment arrived detailed information given director prescribed standard made abundantly clear market child nightwear comply standard contrary law taking matter consideration impose fine 1 000 respect offence paragraph 62 1 act fine 500 respect two offence paragraph 53 making total penalty 2 000 defendant pay prosecutor cost proceeding
Dobey & Shey [2019] FamCAFC 68 (24 April 2019).txt
dobey shey 2019 famcafc 68 24 april 2019 last updated 26 april 2019family court australiadobey shey2019 famcafc 68family law application appeal extension time file notice appeal procedural irregularity appeal concern recusal appeal raise matter go administration justice applicant disadvantaged mistake made representative extension time granted application appeal consolidation event extension time granted file notice appeal applicant seek order appeal heard concurrently appeal matter appeal consolidated family law act 1975 cth family law rule 2004 cth rr 22 02 22 03concrete pty ltd v parramatta design development ptyltd 2006 229 clr 577 2006 hca 55ebner v official trustee bankruptcy 2000 205 clr 337 2000 hca 63gallo v dawson 1990 93 alr 479 1990 hca 30kohan kohan 1993 flc 92 340 1992 famca 116applicant mr dobeyrespondent m sheyfile number syc2915of2018appeal number ea17of2019date delivered 24 april 2019place delivered sydneyplace heard sydneyjudgment ryan jhearing date 8 march 2019 written submissionslower court jurisdiction federal circuit court australialower court judgment date 16 november 2018lower court mnc 2018 fcca 3900representationcounsel applicant m bridgersolicitor applicant jo anna f moy solicitorcounsel respondent m christie scsolicitor respondent doolan callaghan family lawyersorders 1 time file notice appeal order judge henderson made 16 november 2018 extended 4 00 pm 26 april 2019 2 appeal ea 159 2018 ea 17 2019 consolidated 3 applicant pay respondent cost incidental application appeal filed 25 february 2019 amount 7 500 within twenty eight 28 day note form order subject entry order court record notedthat publication judgment court pseudonymdobey sheyhas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth 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 r 17 02family law rule 2004 cth appellate jurisdiction family court australia sydneyappeal number ea 17 2019file number syc 2915 2018mr dobeyapplicantandms sheyrespondentreasons judgmentintroductionby application appeal filed 25 february 2019 mr dobey applicant seek extension time file notice appeal ea 17 2019 dismissal application judge henderson recuse proceeding proposed appeal arises context hearing application interim financial order brought m shey respondent applicant hearing counsel applicant made oral application honour recuse order 1 order dated 16 november 2018 application dismissed applicant also seek consolidate hearing proposed appeal ea 17 2019 substantive appeal ea 159 2018 concerning interim order made honour 19 november 2018 order require applicant pay respondent interim spousal maintenance amount 1 255 week order 2 well 2018 bonus order 4 way interim property division basis respondent take responsibility outgoings property child live including mortgage order 3 relevant backgroundso give application context necessary refer brief background fact taken honour reason document filed support application including mentioned written submission filed hearing behalf respondent party commenced relationship 1997 separated approximately 2015 party two adult child together 9 july 2018 respondent commenced property settlement proceeding seems undisputed applicant primary income earner june 2018 applicant paid expense family including mortgage food education medical insurance outgoings maintenance motor vehicle respondent primary carer child homemaker earned income december 2015 essentially worked paid employment since 2003 time interim hearing applicant living working abroad present trial represented counsel applicant contention hearing respondent ineligible spousal maintenance regard matter ins 72and75 2 thefamily law act 1975 cth act accepted primary judge ultimately order made favour respondent basis remark made commencement hearing counsel applicant made oral application primary judge recuse mentioned judge declined honour settled reason judgment relation recusal application published 9 january 2019 settled reason judgment relation interim financial order published 19 december 2018 17 december 2018 applicant filed notice appeal ea 159 2018 time interim financial order one working day time relation recusal order amended notice appeal filed 18 january 2019 matter came appeal registrar fact recusal appeal time raised first time appeal registrar correctly advised applicant separate notice appeal would filed relation order made 16 november 2018 addition pursue appeal dismissal recusal application application leave extend time filing notice appeal required thus registrar made direction relation appeal ea 159 2018 25 february 2019 five day procedural hearing applicant filed application seeking extension time file notice appeal along draft notice appeal upon receipt transcript hearing first time applicant became aware remark made primary judge counsel appellant arrived senior counsel respondent merit lack thereof appellant position outcome proceeding remark said establish ineradicable apprehension prejudgment outcome proceeding would ground appeal amended accordingly respondent submission although honour remark unfortunate intemperate cross line sufficient establish apprehension bias fictional bystander discussionchapter 22 thefamily law rule 2004 cth rule deal appeal rule 22 02sets appeal commenced namely filing notice appeal within timeframe stipulated r 22 03 case last day filing appeal respect ea 17 2019 14 december 2018 principle relating application extension time file appeal set ingallo v dawson 1990 93 alr 479 granting leave automatic involves exercise discretion discretion extend time given sole purpose enabling court justice party determining whether rule work injustice necessary regard history proceeding nature litigation consequence party grant refusal leave already mentioned tranche litigation concern apprehended bias primary judge relation interim financial order order determine whether compliance time fixed rule would rule become instrument injustice necessary consider possible merit proposed appeal point refusal application extend time unmeritorious appeal would work injustice effect affidavit filed behalf applicant support application suggests delay filing initial notice appeal due time taken publication written reason amount time required obtain advice given time year applicant life abroad honour reason submission accepted review various notice appeal filed behalf applicant demonstrates solicitor failed appreciate appeal dismissal recusal application filed 14 december 2018 could included notice appeal filed 17 december 2018 follows instance fact written reason published appeal period expired nothing approach time requirement taken solicitor applicant however seems applicant could legal representative lodge competent appeal dismissal application recusal fault solicitor made mistake mentioned earlier appropriate juncture point applicant legal representative charging rectify mistake thus although explanation delay unsatisfactory consideration also given nature merit proposed appeal necessary set full remark made primary judge flavour gleaned following guess wife child supported always yes lay misere transcript 16 november 2018 p 3 line 11 16 degree circumspection appropriate application sufficient observe stage proposed appeal appears least prospect success raise matter go heart administration justice ebner v official trustee bankruptcy 2000 hca 63 2000 205 clr 337 thus contrary submission made senior counsel respondent matter application interim financial order presented arguably strong ground concrete pty ltd v parramatta design development pty ltd 2006 hca 55 2006 229 clr 577 balance persuaded applicant granted extension time appeal respondent argues extension conditioned upon applicant required prosecute appeal efficiently compliance financial obligation imposed order appeal respect evidence respondent default propose make order effect first order consolidating appeal appeal interim financial order see appeal come hearing near future arise set proceeding appeal ready listed hearing little need done matter also ready hearing simply put proposed order unnecessary condition applicant established serious issue raised appeal persuaded appropriate condition attached issue non compliance preferable matter dealt way enforcement first instance also contended applicant efficient use resource party implication court would see appeal consolidated substantive appeal sensible way proceed order made effect coststhe respondent seek order cost calculated would seem indemnity basis failing seek cost party party basis application opposed applicant contends appropriate order cost application cost appeal making submission applicant fails acknowledge irrespective outcome appeal respondent put unnecessary expense irrelevant problem qua time identified appeal registrar inevitable problem created conduct putative appeal addressed stage little weight attached fact applicant granted extension time thus wholly successful respect case presented applicant evidence adduced case largely irrelevant appears adduced attempt mask mistake made behalf applicant entirely reasonable respondent direct attention salient fact application could determined merit later matter amount circumstance justify order cost weigh heavily favour order otherwise evidence adduced primary judge show applicant financially advantageous position respondent also weighs favour order cost quantum deficiency applicant case sufficient justify indemnity cost kohan kohan 1992 famca 116 1993 flc 92 340 order party party cost including counsel fee appropriate amount 7 500 provides substantial reimbursement cost identified respondent cost schedule dated 15 march 2019 11 936 55 includes gst also recognises many item claimed irrelevant party party cost certify preceding twenty nine 29 paragraph true copy reason judgment honourable justice ryan delivered 24 april 2019 date 24 april 2019
Walton, Alastair --- "Victoria's Affairs" [1985] AboriginalLawB 12; (1985) 1(12) Aboriginal Law Bulletin 18.txt
walton alastair victoria affair 1985 aboriginallawb 12 1985 1 12 aboriginal law bulletin 18victoria affairsvictoria affairsby alastair waltonthe victorian government saboriginal affair discussion paper september 1984 released signal last round negotiation aboriginal land right following brief account paper aim paper get last impression updated proposal theaboriginal land claim bill 1983 appendix report retitled theaboriginal affair bill basically introduction paper discus purpose government policy implementation report continues account proposal consideration aboriginal land right victorian aboriginal council theaboriginal land act 1970 amendment aboriginal heritage legislation accordance section government policy recognises victorian aborigine receive compensation spiritual cultural economic loss due dispossession reference appendix b report given parliamentary social development committee subsequent inquiry compensation dispossession dispersal aboriginal people social development committee resulted report delivered october last year stage aboriginallb copy arrived possible comment comprehensive paper shalll subject article next aboriginallb copy suggest contacting victorian government bookshop noted news section relation aboriginal affair bill report text bill question answer format important change bill occurred since introduced parliament march 1983 since bill renaming preamble added significantly sympathetic nsw act inclusion object clear statement private land cannot claimed detail victorian aboriginal council land claim tribunal membership extended three appeal tribunal made victorian administrative appeal tribunal control mining rewritten outcome bill willl closely tied happens western australia federally relation uniform land right package point considered cover fishing hunting foraging right power rest governor council council forum governor victoria two minister power change schedule elect member land claim tribunal set tribunal pay condition make regulation tribunal respect practice procedure prescribing form dealing royalty generally prescribing matter thing required purpose act addition form appeal land claim tribunal administrative appeal tribunal novel need consideration comment however administrative appeal tribunal become involved aboriginal land claim complex specialised area politically sensitive may lead complication several group aboriginal organisation opposed present format offered several overall opposition directed aboriginal council initiative aboriginal community concept derived alp state bureaucracy compared seaman report western australia land inquiry victorian paper weaker document recommendation format comparison may seen possible due various state factor weree released time making comparison inevitable considering victorian paper reported newspaper new program called australian business report broadcast u canadian cable v network 18 million subscriber 10 minute program economic update victorian government main sponsor new video significance though content news bulletin described tending plug program sponsor court mining industry luscious carrot dangled front mining industry good news government federal decision implement uniform land right legislation whatever may mean victoria aborigine know seems like another poor showing sponsor nothing else
Navarro, Rosario Paz [2000] MRTA 3622 (15 November 2000).txt
navarro rosario paz 2000 mrta 3622 15 november 2000 last updated 8 december 2000 2000 mrta 3622catchwords review visa refusal subclass 820 married relationshipvisa applicant rosario paz navarrotribunal migration review tribunalpresiding member ellen goodmanmrt file number n99 04107dima file number n97 113637date decision 15 november 2000at sydneydecision tribunal remit application made visa applicant extended eligibility temporary class tk visa department reconsideration direction visa applicant taken met following criterion subclass 820 spouse visa subclause 820 211 2 schedule 2 subclause 820 221 1 schedule 2 clause 820 221a schedule 2application review1 application review decision made delegate minister immigration multicultural affair delegate refuse grant extended eligibility temporary class tk visa rosario paz navarro visa applicant female national philippine born 24 january 1955 applied permanent residence spouse ground 26 may 1997 d1 f 31 2 visa application form completed applicant incorporated application permanent visa general residence class visa normally cannot granted 2 year elapsed since lodgement application application temporary visa extended eligibility temporary class tk visa granted immediately permit stay decision made permanent visa process intended test whether relationship continuing 2 year visa application permanent residence confirmed delegate decision refuse grant visa made 10 march 1999 d1 f 125 jurisdiction standing3 visa applicant lodged application internal review review officer miro officer 26 march 1999 d1 f 137 became application review migration review tribunal 1 june 1999 way transitional provision themigration legislation amendment act 1 1998 decision reviewable tribunal application internal review properly made person standing apply review 4 visa applicant lodged one application review form paid one fee question two decision reviewed tribunal decision refuse grant class tk visa decision refuse grant class visa obvious intention behind application review seek review whatever decision prevented visa applicant gaining residence spouse ground necessary first step review decision refuse grant class tk visa tribunal therefore proceeding basis review respect decision refuse grant class tk visa legislation policy5 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 6 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 7 criterion policy immediately relevant review legislation regulation 1 15aof regulationsregulation 1 20jof regulationsitem 1211 schedule 1 regulationspart 820of schedule 2 regulationssubregulation 5 5 migration amendment regulation 1999 13 direction nilpolicy procedure advice manual 3 regulation 1 15a interpretation spouseprocedures advice manual 3 division 1 4b sponsorship nomination spouse prospective spouse interdependency visasprocedures advice manual 3 schedule 2 spouse visa 820cases nil8 tribunal generally regard regulation regulation stood time visa application however subsequent amendment may apply circumstance evidence9 tribunal following document t1 mrt case file n99 04107 folio numbered 1 15 d1 dima file n97 113637 folio numbered 1 140 10 visa applicant first entered australia class ua subclass 670 visa 27 september 1993 departed 20 october 1993 subsequently visa applicant made several visit class ua subclass 672 class uc subclass 456 visa class tr subclass 676 visa last substantive visa held visa applicant visa expired 20 november 1998 since visa applicant held bridging visa granted basis application visa subject review 11 visa applicant nominated connection visa application mr stephen john kamphuis nominator australian citizen born new zealand 20 august 1959 d1 f 18 12 visa applicant claim met nominator business meeting september 1993 married 25 october 1995 manila evidence provided support visa applicant includes copy certificate marriage d1 f 16 statutory declaration three work colleague effect believe marriage genuine continuing relationship d1 ff 10 11 13 13 delegate stated visa granted basis visa applicant produce evidence genuine continuing marriage relationship despite repeated request department d1 f 22 visa applicant stated lodging application review relationship genuine continuing provide documentary evidence soon possible t1 f 132 decision reason decision14 time visa application lodged class tk contained following subclass subclass 445 dependent child subclass 820 spouse subclass 826 interdependency subclass respect claim advanced subclass 820 evidence suggest visa applicant meet key criterion subclass 15 subclass 820 826 removed class tk effect 1 november 1999 transitional provision set subregulation 5 5 migration amendment regulation 1999 13 provides regulation force immediately 1 november 1999 continue apply matter 16 criterion subclass 820 visa tribunal considers relevant whether delegate decision affirmed whether application visa remitted department set subclauses 820 211 2 820 221 1 clause 820 221a question posed visa applicant married relationship nominator time visa application issue dealt nominator australian citizen australian permanent resident eligible new zealand citizen time visa application nominator stephen john kamphuis granted australian citizenship 6 september 1995 d1 f 18 visa applicant holder substantive visa time application visa applicant held substantive visa subclass 456 visa date application 26 may 1997 visa applicant continue spouse nominator time decision issue dealt nomination visa applicant approved based information tribunal neither visa applicant nominator previously sponsored nominated another person 17 regulation 1 15a contains test applied determine whether one person spouse another person whether married de facto relationship regard consideration de facto relationship set regulation evidence issue discussed following heading qualifying element married relationshipthe visa applicant nominator opposite sex 18 married time visa application basis disqualification applies regard circumstance including financial aspect relationship nature household social aspect relationship nature person commitment whether mutual commitment shared life husband wife exclusion others whether relationship genuine continuing noting subregulation 1 15a 5 provides living together address 6 month longer taken strong evidence relationship genuine continuing whether person live together live separately apart permanent basisother mattersthe visa applicant shared identity person used lost passport enter australia apply refugee status d1 f 112 18 decision review would appear involve reaching finding one matter set earlier tribunal make adverse finding one matter appropriate course would affirm decision review tribunal make finding favourable visa applicant relation matter appropriate course would remit application visa dima reconsideration 19 hearing review held 4 october 2000 oral evidence given mr rosario paz navarro visa applicant person 20 visa applicant represented john davy davy associate migration consultant 21 prior hearing visa applicant provided tribunal additional documentary evidence included following 1 statutory declaration sworn nominator dated 5 june 2000 2 statutory declaration sworn mark mccarthy 5 june 2000 3 statutory declaration sworn visa applicant 5 june 2000each declaration testifies genuineness relationship visa applicant nominator 22 hearing visa applicant confirmed migration history testified effect husband met 1994 married one another october 1995 travel frequently business reason husband joint owner property conclusion hearing tribunal explained visa applicant able make decision favourable stage tribunal sufficient evidence attesting genuineness continuity marriage tribunal made suggestion visa applicant regarding type evidence tribunal would find helpful arriving decision response request 11 october 2000 visa applicant submitted following documentary evidence 1 series photograph visa applicant nominator spanning period august 1994 photograph include image taken couple wedding engagement well photograph taken rome taiwan location 2 telstra account addressed mr j kamphuis 89 castle circuit seaforth address provided visa applicant account show many call made number philippine 3 call australia account addressed riptide churinga p l brookvale account also draw attention call made philippine 4 financial statement rarbond superannuation fund page 11 12 document employer contribution name kampuis r navarro appear attached copy income tax return address stephen kamphuis rosario navarro appear address person given 89 castle circuit seaforth nsw 2093 addition rosario paz navarro nominated majority 80 beneficiary rarbond superannuation fund 23 given additional evidence provided visa applicant tribunal satisfied visa applicant nominator mutual commitment shared life husband wife exclusion others relationship genuine continuing live separately apart permanent basis findings24 tribunal make following finding visa applicant holder substantive visa time application visa applicant marital relationship nominator date visa application continues spouse nominator date decision nominator australian citizen nomination approved 25 given finding appropriate course remit application visa dima consider remaining criterion subclass 820 visa visa applicant found meet remaining criterion visa applicant entitled grant subclass 820 visa question subclass visa would need considered decision26 tribunal remit application made visa applicant extended eligibility temporary class tk visa department reconsideration direction visa applicant taken met following criterion subclass 820 spouse visa subclause 820 211 2 schedule 2 subclause 820 221 1 schedule 2 clause 820 221a schedule 2
0909960 [2010] RRTA 1072 (30 November 2010).txt
0909960 2010 rrta 1072 30 november 2010 last updated 3 december 20100909960 2010 rrta 1072 30 november 2010 decision recordrrt case number 0909960diac reference clf2009 108811country reference fijitribunal member m christine longdate 30 november 2010place decision sydneydecision tribunal affirms decision grant applicant protection class xa visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant protection class xa visa unders 65of themigration act 1958 act applicant isacitizen fiji last arrived australia date deleted unders 431 2 themigration act 1958as information would identify applicant may 2009 applied department immigration citizenship protection class xa visa august 2009 delegate decided refuse grant visa november 2009 notified applicant decision review right letter date delegate refused visa application basis applicant person australia protection obligation refugee conventionthe applicant applied tribunal december 2009 review delegate decision tribunal find delegate decision rrt reviewable decision unders 411 1 c act tribunal find applicant made valid application review unders 412of act relevant lawunders 65 1 visa may granted decision maker satisfied prescribed criterion visa satisfied general relevant criterion grant protection visa force visa application lodged although statutory qualification enacted since may also relevant section 36 2 act provides criterion protection visa applicant visa non citizen australia minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention criterion grant protection class xa visa set inpart 866of schedule 2 themigration regulation 1994 definition refugee australia party refugee convention generally speaking protection obligation people refugee defined article 1 convention article 1a 2 relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v miea 1989 169 clr 379 applicant v miea 1997 190 clr 225 miea v guo 1997 191 clr 559 chen shi hai v mima 2000 hca 19 2000 201 clr 293 mima v haji ibrahim 2000 hca 55 2000 204 clr 1 mima v khawar 2002 210 clr 1 mima v respondent s152 2003 2004 222clr1 html class autolink_findacts 222 clr 1
Oxford Investments Tasmania Pty Ltd v Kingborough Council [2006] TASRMPAT 153 (2 August 2006).txt
oxford investment tasmania pty ltd v kingborough council 2006 tasrmpat 153 2 august 2006 last updated 20 november 2006oxford investment tasmania pty ltd v kingborough council 2006 tasrmpat 153 2 aug 2006 file 188 06 p j 153 2006690a sandy bay road hobart section 14 2 resource management planning appeal tribunal act 1993betweenoxford investment tasmania pty ltd appellantandkingborough council respondentpreliminary ruling standing join appeal decision1 notice appeal dated 22ndday june 2006 oxford investment tasmania pty ltd appealed decision kingborough council council refusing grant permit allowing development howden southern tasmania 2 appeal resource management planning appeal tribunal appeal tribunal made pursuant tosection 61 4 theland use planning approval act 1993 land use act 3 part consideration application permit council received representation variety people living general area proposed development 4 direction hearing conducted appeal tribunal 13thof july 2006 m etheridge person made representation council applied behalf group apparently represented join appeal 5 application group howden action group described perhaps unfortunate acronym hag pursuant section 14 2 resource management planning appeal tribunal act 1993 planning appeal act 6 relevant part section provide 14 party appeal appeal tribunal 1 subject section 21 party appeal appellant b person made decision appealed c applicant person whose initial action gave rise decision appealed person made party appeal appeal tribunal application person subsection 2 2 appeal instituted person person whose interest affected decision appealed may subject subsection 3 4 apply writing appeal tribunal made party appeal appeal tribunal may order make person party appeal 3 appeal tribunal may subsection 2 make person party appeal decision respect granting permit undersection 57of theland use planning approval act 1993unless person made representation undersection 57 5 act respect application permit ii tribunal considers person proper interest subject matter appeal reasonable expect person made representation respect application permit b respect granting permit undersection 58of theland use planning approval act 1993unless tribunal considers person proper interest subject matter appeal 4 appeal tribunal may subsection 2 make person party appeal decision issue environment protection notice undersection 27 6 theenvironmental management pollution control act 1994in respect activity unless person made representation respect activity assessment board environmental management pollution control activity b tribunal considers person proper interest subject matter appeal reasonable expect person made representation respect activity 7 neither subsection 3 subsection 4 application current proceeding subsection qualify circumstance person made party appeal qualification apply circumstance articulated subsection namely either appeal decision togranta permit section 57 land use act relation thegrantof permit section 58 land use act 1993 neither circumstance application present appeal since decision appealed arefusaland agrant 8 necessary person applying joined party appeal demonstrate sufficient interest subject matter appeal 9 tribunal satisfied howden action group fact demonstrate person whose interest affected within meaning section 14 2 m etheridge say submission group formed untilafterthe decision made council say member group gave separate written representation council inferred separate mean individual apparently reason group wish made party appeal member consider better representation apply joined individually 10 none matter matter go demonstrate group opposed individual make sufficient interest within term relevant statutory provision 12 circumstance case application howden action group joined party refused 13 determination prevent individual member applying joined party appeal application dealt merit neither anything stop group individual joined individually party joining together run case informal basis dated 2 aug 2006sj cooperchairman
Abbas (Migration) [2019] AATA 2101 (8 May 2019).txt
abbas migration 2019 aata 2101 8 may 2019 last updated 23 july 2019abbas migration 2019 aata 2101 8 may 2019 decision recorddivision migration refugee divisionapplicant mr ghazanfar abbascase number 1829053dibp reference bcc2018 3266579member meredith jacksondate 8 may 2019place decision brisbanedecision tribunal remit application reconsideration direction applicant meet following criterion subclass 500 visa cl 500 213 schedule 2 regulationsstatement made 08 may 2019 12 41pmcatchwordsmigration student temporary class tu visa subclass 500 student visa english requirement met evidence provided decision review remittedlegislationmigration act 1958 65migration regulation 1994 schedule 1 schedule 2 cl 500 213statement decision reasonsapplication reviewthis application review decision made delegate minister immigration refuse grant applicant student temporary class tu visa unders 65of themigration act 1958 act applicant applied visa 29 august 2018 delegate refused grant visa 3 october 2018 delegate made decision basis evidence english language ability provided required satisfy criterion grant visa themigration regulation 1994 regulation 8 may 2019 tribunal received new evidence applicant pearson pte academic test taker score report applicant name recording overall score 43 test taken 30 april 2019 required score pearson test english specified schedule 1 instrument immi 18 015 english language test evidence exemption subclass 500 student visa 42 light new evidence received tribunal satisfied criterion met concluded matter remitted reconsideration decisionthe tribunal remit application reconsideration direction applicant meet following criterion subclass 500 visa cl 500 213 schedule 2 regulationsmeredith jacksonmember
Kerry Albert Pty Ltd t_as Kerry Albert & Co v Fuller (No 2) [2018] NSWDC 383 (4 December 2018).txt
kerry albert pty ltd kerry albert co v fuller 2 2018 nswdc 383 4 december 2018 last updated 12 december 2018district courtnew south walescase name kerry albert pty ltd kerry albert co v fuller 2 medium neutral citation 2018 nswdc 383hearing date 16 november 2018date order 4 december 2018decision date 4 december 2018jurisdiction civilbefore dicker sc dcjdecision relation plaintiff application vary cost order made 7 september 2018 court make following order 1 order 4 made 7 september 2018 vacated 2 pursuant tos 98 4 c thecivil procedure act 2005 nsw defendant pay plaintiff cost notice motion filed 19 july 2018 specified gross sum 15 684 37 3 hear party cost application 4 plaintiff application relation cost otherwise dismissed relation notice motion filed 28 september 2018 defendant 1 notice motion filed 28 september 2018 dismissed 2 defendant pay plaintiff cost notice motion filed 28 september 2018 agreed assessed catchword judgment order whether order made court set aside basis made irregularly whether court set aside vary judgment order matter discretion whether defendant granted leave reopen hearing notice motion finally determinedcontract penalty whether clause agreement penalty default payment uplift factorcosts whether lump sum cost order made favour plaintiff basislegislation cited civil procedure act 2005 nsw uniform civil procedure rule 2005 nsw part 36 15andpart 36 16cases cited andrew v australia new zealand banking group ltd 2012 hca 30 2012 247 clr 205cameron v ubs ag 2000 vsca 222chengcheng aust enterprise melbourne pty ltd v mansfield corp pty ltd 2018 nswca 244dimitrovski v australian executor trustee ltd 2013 nswsc 337first mortgage managed investment pty ltd v pittman 2 2014 nswca 272kassem secatore v koutavas 2012 nswsc 236kendell v carnegie 2006 nswca 302 2016 68 nswlr 193kerry albert pty ltd trading kerry albert co 2018 nswdc 254king network group pty ltd v club club pty ltd 2 2009 nswca 204lachlan v hp mercantile pty ltd 2014 nswsc 356lachlan v hp mercantile pty ltd 2015 nswca 130majak v rose 5 2017 nswca 238mansfield corp pty ltd v chengcheng aust enterprise melbourne pty ltd 2018 nswdc 12mosman municipal council v minister local government 2 2017 nswca 255pavlovic v universal music australia pty ltd 2015 nswca 313power v deputy commissioner taxation 2 2014 nswca 77welker v rinehart 6 2012 nswsc 160zakaria v dr noyce 2012 nswsc 891zenith engineering pty ltd v queensland crane machinery pty ltd 2000 qca 221category principal judgmentparties kerry albert pty ltd kerry albert co plaintiff eric andrew fuller first defendant andrew simon john fuller second defendant fuller holding international pty ltd third defendant bellingen management pty ltd fourth defendant tradebase international pty ltd fifth defendant sunway solar australia pty ltd sixth defendant representation counsel p abdiel plaintiff setting aside application c perry solicitor plaintiff cost application p afshar defendant solicitor pure legal plaintiff philip sim associate defendant file number 2017 00094255judgmentby notice motion filed 19 july 2018 plaintiff proceeding sought order relating agreement allegedly entered party settling litigation court unders 73of thecivil procedure act 2005 nsw court proceeding may exercise jurisdiction determine question dispute party proceeding whether term proceeding compromised settled reason decision handed 7 september 2018 judgment reserved primary decision court found binding agreement plaintiff defendant resolve proceeding certain payment made defendant plaintiff kerry albert pty ltd trading kerry albert co v fuller 2018 nswdc 254 7 september 2018 court made following order 1 judgment plaintiff defendant 2 party bring agreed short minute order within seven day judgment amount together applicable interest 3 notice motion filed 19 july 2018 otherwise dismissed 4 defendant pay plaintiff cost notice motion filed 19 july 2018 agreed assessed 5 leave granted party apply vary cost order paragraph 4 6 exhibit application returned 28 day 7 liberty party apply associate dicker sc dcj three business day notice order could made 7 september 2018 precise sum judgment awarded plaintiff defendant interest needed calculated 14 september 2018 court made following order chamber consent party judgment entered defendant plaintiff sum 248 641 03 together interest amount 3 933 93 making total judgment 252 574 96 plaintiff gave notice wished make application court determine cost notice motion awarded gross sum basis 30 september 2018 solicitor plaintiff m perry forwarded associate way email affidavit m perry sworn 13 september 2018 b outline written submission support cost application 28 september 2018 defendant filed notice motion seeking following prayer relief paragraph 1 3 notice motion 1 order order dicker sc dcj made 14 september 2018 order set aside including pursuant torule 36 15of theuniform civil procedure rule 2005 2 alternative order 1 order granting defendant leave reopen hearing plaintiff notice motion filed 19 july 2018 3 order execution order stayed pending resolution defendant application support notice motion filed 28 september 2018 affidavit philip sim sworn 28 september 2018 due course read application paragraph 4 5 mr sims affidavit sworn 28 september 2018 follows 4 7 september 2018 dicker sc dcj pronounced judgment matter honour judgment pertained deed settlement release copy annexed hereto marked 5 defendant respectfully request court find clause 2 3 2 4 deed nature penalty set aside judgment entered based clause clause 2 3 2 4 contained document entitled deed settlement release deed crucial document court substantive hearing order understand properly argument defendant view necessary set entirety clause 1 2 deed question follows 1 payment settlement sum1 1 upon execution deed party agree following 1 2 eric pay cause paid bank cheque electronic transfer fund kapl bsb 032 576 account 542933 follows 34 925 28 18 march 2018 first settlement payment b 142 800 29 june 2018 second settlement payment collectively settlement sum 1 3 party cause respective legal advisor execute consent order annexed deed marked b c held escrow pure legal 1 4 upon execution deed consent order party cause filed proceeding consent order marked annexed deed 2 dismissal proceedings2 1 upon receipt settlement sum party cause filed proceeding consent order annexed marked b deed 2 2 event first settlement payment paid 18 march 2018 interest run amount 30 june 2018 pursuant tos 101of thecivil procedure actcurrently 7 5 2 3 first settlement sum second settlement payment received pursuant clause 1 2 party agree filing kapl consent order marked annexed c deed 2 4 extent amount paid pursuant clause 1 2 kapl notify court payment cause judgment entered 283 566 31 le amount received together interest accrued arising non payment first settlement payment second settlement sum noted mr sim defendant current solicitor also noted mr sim appeared representing defendant hearing court 16 august 2018 plaintiff claimed binding settlement agreement reached party form deed defendant denied binding agreement reached 16 august 2018 court reserved decision stated handed reason decision 7 september 2018 clear notice motion filed 28 september 2018 defendant seek order setting aside order court made 14 september 2018 related amount judgment debt alternative seek leave reopen hearing notice motion filed 19 july 2018 determined accordance reason decision handed 7 september 2018 basis set mr sim 28september 2018 affidavit clause 2 3 2 4 deed nature penalty accordingly judgment entered defendant wrong amount 9 october 2018 matter mentioned court date counsel appearing defendant handed detailed written submission submission following submitted behalf defendant counsel defendant order made court 14 september 2018 requiring defendant jointly severally pay plaintiff 248 641 03 ought set aside pursuant court general power orparts 36 15and36 16of theuniform civil procedure rule 2005 nsw ucpr basis clause 2 3 deed offends doctrine penalty b primary decision court dated 7 september 2018 court found defendant bound term deed finding dispute defendant application c term deed significant recital deed say accounting fee sought recovered plaintiff alleged owing defendant recital b deed make clear party resolved dispute without admission liability clause 2 3 provides two settlement payment made party agree filing consent order marked annexed c deed recorded judgment amount 283 566 31 clause 7 provides provision illegal void unenforceable severed without invalidating otherwise affecting operation remaining provision deed court power pursuant toparts 36 15and36 16of ucpr set aside judgment order certain circumstance rule read together discretion set aside judgment properly entered requires exercise discretion must exercised judicially part 36 16is applicable application set side vary judgment order filed within 14 day judgment order entered application defendant set aside vary 14 september 2018 order judgment amount made within 14 day judgment order entered e applicant bear onus demonstrating underpart 36 15not irregularity order also sufficient cause order set aside fundamental principle need finality judgment court would exercise power set aside judgment slight uncertain cause irregularity inconsequential however submitted court would set aside judgment entered without legal basis significantly affect party right obligation court would readily allow judgment stand lack proper legal basis otherwise demonstrably unjust f pursuant high court authority contractual requirement pay sum money conditioned failure observe particular contractual stipulation capable penalty regardless whether payable upon breach considering whether clause 2 3 deed penal character test generally whether payment sum proportion interest party purpose provision protect sum stipulated payment default penalty bear relation possible damage interest innocent party arising breach party contractual term g clause 2 3 penalty excised deed considered unenforceable first higher amount deed bear rational relationship whatsoever loss plaintiff suffered likely suffer late payment second instalment substantial uplift factor 100 000 present case cannot considered proper compensation damage arising failure defendant comply clause 1 2 deed regard penalty h secondly claimed amount never acknowledged either expressly implication defendant payable defendant entered deed without admission great significance recital make clear amount disputed time deed made accordingly court grant relief sought application without clause 2 3 deed provide proper legal basis making order made 14 september 2018 problem deed brought court attention promptly discovered soon order made j thirdly sole focus party argument considered primary decision appears whether deed binding rather nature effect clause 2 3 even application succeeded plaintiff relief alternative order could made end plaintiff suffers unfair prejudice court decide clause 2 3 penalty order made 14 september 2018 set aside cost stated course mention counsel defendant deed provided payment higher amount lower amount paid certain time would regarded full satisfaction obligation defendant rather deed provided lower amount paid time higher amount payable submitted classic hallmark penalty 4 october 2018 plaintiff filed second affidavit m perry affidavit sworn 4 october 2018 plaintiff due course read four affidavit m perry sworn 13 september 2018 4 october 2018 16 october 2018 5 november 2018 hearing application fixed lump sum cost order notice motion filed 28 september 2018 subsequent primary decision handed affidavit sworn 4 october 2018 m perry give evidence following matter 10 july 2018 proceeding court listed court placed matter settled list paragraph 3 b 10 july 2018 court made order filing evidence relation alleged settlement proceeding including notice motion listed hearing 16 august 2018 plaintiff subsequently filed notice motion evidence support 19 20 july 2018 paragraph 4 5 c defendant filed evidence reply affidavit defendant andrew fuller eric fuller paragraph 6 notice motion listed heard 16 august 2018 paragraph 7 e defendant messrs fuller present person hearing notice motion represented solicitor mr sim plaintiff represented counsel instructed m perry hearing leave granted mr sim cross examine m perry even though prior notice provided m perry application luncheon break mr sim granted adjournment enable find relevant case law relating principle ostensible authority wished place court mr sim due course relied upon authority ofpavlovic v universal music australia pty ltd 2015 nswca 313 paragraph 8 11 f judgment delivered court 7 september 2018 m perry give evidence forwarded mr sim draft short minute order interest calculation email dated 14 september 2018 mr sim stated inter alia accept short minute order interest judgment amount respect cost still seeking instruction whether cost agreed whether seek assessed letter court relate term short minute order g stated 14 september 2018 court made short minute order judgment amount 248 641 03 together interest amount 3 933 93 paragraph 13 16 h subsequently m perry sent letter dated 18 september 2018 defendant solicitor demanding payment judgment sum paragraph 17 affidavit m perry say payment date affidavit tendered defendant response demand paragraph 18 affidavit m perry state 30 september 2018 upon receipt motion filed 29 september 2018 defendant forwarded email philip sim copy annexed marked f received response email date swearing affidavit paragraph contains inaccuracy notice motion defendant filed 29 september 2018 28 september 2018 email referred m perry mr sim set argument judgment court made irregularly illegally good faith note judgment delivered following defended hearing mr sim appeared defendant claim notice motion attempt litigate issue already determined attempt litigate issue could litigated previous proceeding submitted email defendant notice motion abuse process employed delaying tactic paragraph 19 affidavit m perry note order made court 14 september 2018 form consented mr sim behalf defendant j paragraph 27 33 affidavit m perry set describes heading discretionary factor stated summary paragraph request particular behalf defendant resulted timesheets tax invoice respect plaintiff claim provided defendant solicitor allegedly numerous default court timetable part defendant ii application summary judgment filed 15 november 2017 plaintiff partially successful proceeding listed hearing 1 february 2018 adjourned 7 july 2018 placed settled matter list part judgment debt paid court trust account iii plaintiff accounting firm operation excess 33 year established office coffs harbour m perry instructed director plaintiff event judgment debt paid defendant appeal subsequently filed successful plaintiff would sufficient fund asset repay judgment sum plus interest cost accordance judgment two set written submission filed relied upon plaintiff first prepared m perry filed 4 october 2018 outline submission provides follows outline set procedural history proceeding included mr sim appeared defendant hearing 16 august 2018 made submission behalf defendant granted time consider case relation ostensible authority also noted mr sim consistent m perry affidavit consented form order made 14 september 2018 b order made 14 september 2018 made irregularly illegally good faith within part 36 15 ucpr consented solicitor defendant evidence suggest three requirement established c order judgment obtained irregularly illegally good faith must misconduct dishonourable conduct person procured judgment suggested undermines authority judgment requiring court exercise exceptional course setting aside judgment order kendell v carnegie 2006 nswca 302 2016 68 nswlr 193at 44 53 see alsozakaria v dr noyce 2012 nswsc 891at 22 per davy j honour stated rule sits uneasily judgment obtained hearing complaining party present represented paragraph 24 inzakaria v dr noyce davy j stated follows 24 ordinarily irregularity concerned failure comply rule court arnoldvforsythe 2012 nswca 18at 88 extend position example default judgment obtained statement claim properly plead debt liquidated sum arnoldat 59 plead essential element cause action fenato v chief commissioner state revenue 2010 nswca 80 2010 78 ndwlr 20 39 63 addition judgment entered due irregular alexander v ajax insurance co ltd 1956 viclawrp 70 1956 vlr 436 h r turner son pty ltd v rhodes 1970 1 nswr 305 indimitrovski v australian executor trustee ltd 2013 nswsc 337at 2 pembroke j stated part 36 15 general panacea confined operation strictly limited circumstance must shown order made irregularly quite sufficient cause justify application rule present circumstance paragraph 3 pembroke j stated rule focus step pursuant judgment order given entered made direct attention underlying merit position party decision made rule concerned regularity process judgment obtained correctness decision certainly concerned whether available defence might relied upon time judgment given order made e exercise power part 36 15 considered regard principle finality litigation part requires exercise discretionary power regard principle f relief part discretionary g irregularity illegality lack good faith part plaintiff stage principle finality material notice motion defendant seek agitate matter could dealt part plaintiff notice motion filed 19 july 2018 application alternative involves attempt litigate issue could litigated previous proceeding h matter lead conclusion primary decision order made following ought set aside proceeding reopened following filing plaintiff submission dated 4 october 2018 third affidavit m perry dated 16 october 2018 filed affidavit state m perry preparation mediation occurred party 23 february 2018 received email claiming one defendant fuller family partnership owed plaintiff amount totalling 239 507 91 paragraph 6 b state term retainer agreement plaintiff defendant accounting service included term payment fee within 30 day thereafter interest amount outstanding would calculated 1 5 monthly paragraph 12 c state legal cost disbursement plaintiff notice motion court heard 2 february 2018 summary judgment 14 807 16 paragraph 13 state legal cost incurred plaintiff respect proceeding excluding cost relation notice motion heard 2 february 2018 28 496 09 paragraph 14 e state instruction debt owed plaintiff defendant date 23 february 2018 mediation including fee allegedly owed interest fee legal cost disbursement cost relating mediation 283 566 31 figure appearing annexure c referred clause 2 3 deed asserted defendant penalty see page 23 affidavit stated figure understated amount awarded summary judgment notice motion heard 2 february 2018 unpaid 23 february 2018 mediation date paragraph 16 f hearing 19 july 2018 defendant represented mr sim solicitor m perry present entirety hearing also cross examined mr sim time issue penalty raised issue penalty first raised defendant 28 september 2018 paragraph 34 affidavit philip sim solicitor defendant dated 26 october 2018 filed court day affidavit also later read support 28 september 2018 notice motion affidavit mr sim state engaged eric fuller act defendant supreme court proceeding 1 june 2018 paragraph 2 b state 18 june 2018 requested mr fuller assist respect district court proceeding paragraph 4 c state early july 2018 sought obtained documentation relating district court proceeding paragraph 5 state 3 august 2018 received deed paragraph 6 however appears incorrect deed annexed m perry affidavit dated 10 july 2018 relied hearing 19 july 2018 notice motion affidavit served mr sim letter dated 19 july 2018 see annexure mr perry 5 november 2018 affidavit e state mr sim firm first appeared district court proceeding 10 july 2018 paragraph 7 f state 19 july 2018 notice motion supporting affidavit filed plaintiff paragraph 9 g state 16 august 2018 mr sim handed copy plaintiff submission sitting bar table paragraph 12 detailed written submission filed behalf plaintiff 5 november 2018 dated also date third affidavit m perry sworn 5 november 2018 also filed day affidavit also read hearing application affidavit sworn 5 november 2018 m perry refers documentation suggests defendant previous solicitor copied defendant current solicitor mr sim notice ceasing act b state deed question annexed m perry affidavit sworn 19 july 2018 served upon mr sim around four week prior hearing notice motion considered primary decision appears error deed annexed m perry 10 july 2018 affidavit c mr sim informed m perry acting defendant district court proceeding well matter m perry 4 july 2018 letter mr sim referred specific provision deed yet received request mr sim copy deed e notice motion filed served 19 july 2018 also specifically referred particular provision deed paragraph 8 f asserts mr sim aware ought reasonably aware issue raised notice motion one ostensible authority asserted mr sim time brief counsel wished paragraph relied heavily defendant hearing application establishing 16 august 2018 hearing substance ostensible authority issue secondary g state continuation proceeding substantial effect mr kerry albert principal plaintiff see paragraph 10 stated also filed 5 november 2018 extensive written submission prepared appears m perry current counsel briefed m perry m abdiel written submission lengthy general summary submit follows defendant notice motion dismissed suffers several fundamental defect including barred byanshunestoppel issue estoppel constitutes abuse process b fails technical substantive requirement part 36 15 36 16 ucpr c amount payable virtue clause 2 3 deed constitute penalty amount referable actual pre existing sum owed defendant plaintiff proportion debt owed plaintiff party cannot attempt litigate issue already determined issue estoppel arises present case also ananshunestoppel arises penalty matter raised defendant could litigated previous proceeding could raised notice motion determined primary decision e court clearly jurisdiction entertain question penalty f evidence change circumstance since primary decision handed explaining justifying defendant failure raise matter court time primary application heard g residual discretion court must considered light number factor defendant application h strength argument whether relevant clause deed penalty simply irrelevant application brought court attention adjudicate new argument see comment pembroke j indimitrovski defendant failure raise matter earlier unreasonable wholly within purview court consider unders 73of thecivil procedure act matter abuse process party seeking litigate issue already determined would contradict earlier judicial determination j defendant meet technical requirement ofpart 36 16 defendant identified irregularity judgment defendant identified reason hear matter including relation procedural fairness matter k part 36 16is inapplicable order made 14 september 2018 cannot excised order made 7 september 2018 earlier order court found binding valid settlement agreement party including clause 2 3 court noted judgment could sought amount deed plus interest 7 september 2018 primary judgment would need altered judgment challenged within 14 day defendant time l even requirement ofpart 36 16is met defendant provided showing sufficient cause reopen proceeding examine validity clause 2 3 settlement deed underpart 36 15 order made irregularly injustice misapprehension law fact caused plaintiff must weighed objective finality litigation failing afford defendant opportunity heard discretion exercised permit general reopening case nothing unfair process judgment obtained withindimitrovski irregularity extend error attributable forensic decision party failure raise arguable point rule also cannot used substitute appeal sufficient cause exercise discretion case defendant failed demonstrate irregularity associated judgment procedural unfairness power reopen vary exercisable favour applicant fault failing raise matter issue earlier stage cause rehear matter question penalty raised 28 september 2018 particularly hearing primary notice motion clear interest court general public finality litigation n penalty present case judgment sum bore rational relation proportion debt owed plaintiff judgment sum comprised total amount plaintiff stood awarded cost succeeded ultimate hearing amount paid proportion original debt owed notwithstanding recital deed defendant acknowledge judgment sum full amount pre existing debt agreeing amount would entered judgment plaintiff main proceeding proceeding suit debt basis stay pending resolution defendant application granted discretionary factor determining whether grant stay weigh heavily favour plaintiff defendant filed reply submission dated 15 november 2018 provided general summary follows disputed plaintiff submission b nothing plaintiff submission provided principled basis resisting finding penalty c anshundid apply case court let order stand requiring party pay lawfully due e part 36 15and36 16are limited estoppel f abuse process inapplicable issue litigated g negotiation prior deed irrelevant h thezenithcase strongly support defendant position penalty issue plaintiff argument discretion point underpart 36 16should rejected detailed oral submission made party raised similar submission made written submission variant submission relevant refer oral submission finding facttaking account evidence application submission made behalf party make following finding fact interlocutory basis 1 two application arise district court proceeding plaintiff commenced proceeding court way statement claim filed 28 march 2017 asserted owed money defendant accounting service said provided defendant period 2011 2015 amended defence filed 8 august 2017 defendant disputed liability pay accounting fee sought plaintiff 2 defendant previous solicitor mr andrew ford notice ceasing act filed mr ford 26 june 2018 defendant current solicitor mr philip sim crowther sim lawyer notice appointment mr sim solicitor defendant filed 10 august 2018 3 however mr sim involvement proceeding prior come back issue due course 4 paragraph 6 54 primary decision set background matter 5 prior mediation held matter 23 february 2018 acting judge cowdroy qc made order summary judgment application certain money paid mr eric fuller mr andrew fuller defendant see paragraph 13 primary decision 6 mediation held party 23 february 2018 7 preparation mediation m perry instructed one defendant fuller family partnership owed plaintiff amount totalling 239 507 91 8 substantial legal cost disbursement incurred plaintiff service provided m perry solicitor plaintiff prior mediation 23 february 2018 totalled 43 303 25 9 instruction provided m perry plaintiff alleged debt owed plaintiff defendant date 23 february 2018 mediation including fee allegedly owed defendant plaintiff interest fee legal cost disbursement cost relating mediation 283 566 31 10 figure 283 566 31 figure appearing annexure c deed referred clause 2 3 deed 11 18 june 2018 mr sim requested mr fuller assist respect district court proceeding 12 early july 2018 mr sim sought obtained documentation relating district court proceeding 13 soon 19 july 2018 mr sim provided plaintiff notice motion filed 19 july 2018 m perry affidavit sworn 10 19 july 2018 deed annexure b m perry 10 july 2018 affidavit accordingly mr sim copy deed shortly 19 july 2018 14 mr sim therefore deed clause 2 3 annexure c appeared four week prior hearing notice motion 16 august 2018 15 10 july 2018 court made order notice motion listed hearing 16 august 2018 19 july 2018 notice motion subsequently filed affidavit support 1920 july 2018 16 individual defendant messrs eric andrew fuller present person hearing notice motion 16 august 2018 represented solicitor mr sim plaintiff represented counsel instructed m perry solicitor plaintiff hearing leave granted mr sim cross examine m perry even though prior notice provided m perry application luncheon break mr sim granted short adjournment enable find relevant case law relating principle ostensible authority wished place court 17 subsequently detailed submission made mr sim behalf defendant m hall counsel behalf plaintiff 18 plaintiff written submission provided mr sim bar table 16 august 2018 date also first provided court hearing time taken court apparently mr sim review written submission prepared behalf plaintiff 19 judgment reserved court 16 august 2018 20 court handed reason decision 7 september 2018 made order including judgment given plaintiff defendant ordered party bring agreed short minute order within seven day judgment amount together applicable interest 21 noted paragraph 94 reason decision draft consent order annexure c deed judgment entered plaintiff sum 283 566 31 stated paragraph 94 reason decision however defendant given credit first settlement payment leaving amount outstanding 248 641 03 interest need added sum relevant period 22 14 september 2018 m perry forwarded mr sim draft short minute order interest calculation also 14 september 2018 mr sim sent email m perry stated accepted short minute order interest judgment amount 23 14 september 2018 court made short minute order judgment amount 248 641 03 together interest amount 3 933 93 24 m perry behalf plaintiff sent letter dated 18 september 2018 demanding payment judgment sum payment received 25 notice motion filed defendant set aside order made court filed 14 day order judgment amount 28 september 2018 considerationthe rulesparts 36 15and36 16of theuniform civil procedure rule ucpr provide follows 36 15 general power set aside judgment order cf dcrpart 13 rule 1 part 31 rule 12a lcrpart 11 rule 1 part 26 rule 3 1 judgment order court proceeding may sufficient cause shown set aside order court judgment given entered order made irregularly illegally good faith 2 judgment order court proceeding may set aside order court party proceeding consent 36 16 power set aside vary judgment order cf scrpart 40 rule 9 1 court may set aside vary judgment order notice motion setting aside variation filed entry judgment order 2 court may set aside vary judgment order entered default judgment default judgment given open court b given made absence party whether absent party notice relevant hearing application judgment order c case proceeding possession land given made absence person court ordered added defendant whether absent person notice relevant hearing application judgment order 3 addition power subrules 1 2 court may set aside vary judgment order except far determines claim relief determines question whether fact law arising claim relief b dismisses proceeding dismisses proceeding far concern whole part claim relief 3a notice motion setting aside variation judgment order filed within 14 day judgment order entered court may determine matter appropriate set aside vary judgment order subrule 1 judgment order entered 3b within 14 day judgment order entered court may motion set aside vary judgment order judgment order entered 3c despiterule 1 12 court may extend time limited subrule 3a 3b 4 nothing rule affect power court set aside vary judgment order plaintiff consent order judgment set aside accordingly part 36 15 2 inapplicable question therefore arises whether judgment given entered order made irregularly illegally good faith present case defendant wish raise legal argument clause 2 3 2 4 deed penalty invalid argument could raised defendant hearing notice motion 16 august 2018 evidence suggested failure defendant raise legal argument due fault act plaintiff defendant legally represented mr sim access deed question four week prior hearing clearly able following review deed argument available plaintiff raise penalty argument 16 august 2018 hearing accept submission counsel defendant focus hearing ostensible authority prevent defendant solicitor mr sim raising argument plaintiff example also raised issue ratification 16 august 2018 hearing view part 36 15is inapplicable current situation accept submission behalf plaintiff order judgment order obtained irregularly illegally good faith must generally misconduct dishonourable conduct person procured judgment suggested undermines authority judgment order procedural irregularity requiring court exercise exceptional course setting aside judgment order kendell v carnegie 2006 nswca302 2006 68 nswlr 193at 44 53 zakaria v dr noyce 2012 nswsc 891at 22 24 suggestion present case failure party comply rule court breach rule natural justice present case defendant full opportunity make submission wished conduct behalf plaintiff appears fall within principle stated accept view justice pembroke indimitrovski 2 thatpart 36 15is general panacea confined operation strictly limited circumstance also accept justice pembroke view 3 rule concerned regularity process judgment obtained correctness decision accept honour view concerned whether available defence might relied upon time judgment given order made put forward defendant present case see 3 6 particularly 13 defendant rely onkassem secatore v koutavas 2012 nswsc 236especially 19 ward j stated judgment irregular underpart 36 15where entered due debt paid time order made view would apply situation error calculation oversight payment made relation debt consider honour analysis would cover case like present potential defence substantive claim raised argued hearing lead consideration ofpart 36 16of ucpr plaintiff argues relevant date 7 september 2018 14 september 2018 order made 14 september 2018 cannot excised considered isolation order made 7 september 2018 said earlier order made 7 september 2018 arose primary decision court found valid binding settlement agreement party including clause 2 3 see paragraph 73 85 94 primary decision view argument simplistically attractive see particular reasoning paragraph 94 primary decision however end order made relevantly 7 september 2018 judgment plaintiff defendant clearly reason decision assumed higher amount owed defendant however 14 september 2014 order payment specific sum included alleged penalty amount made entered court balance prefer submission counsel defendant issue reject submission plaintiff view relevant order made 14 september 2018 accordingly notice motion filed defendant filed 28 september 2018 filed within 14 day making relevant order wrong relation finding clearly view part 36 16 3a inapplicable found notice motion setting aside relevant order filed within 14 day order entered question therefore arises whether court set aside vary order order entered penaltythe defendant submit clause 2 3 2 4 deed contain penalty found invalid event defendant pay lower sum referred obliged pay much higher amount significant uplift factor said clear hallmark penalty submitted position would different higher amount obliged paid smaller amount paid would fulfil obligation defendant plaintiff set summary detailed submission made behalf defendant issue inmansfield corp pty ltd v chengcheng aust enterprise melbourne pty ltd 2018 nswdc 12 considered principle relating contractual penalty paragraph 139 158 particularly paragraph 149 154 paragraph 154 ofmansfieldi summarised relevant principle following way 154 accordingly relevant principle follows essence penalty contractual provision payment money terrorem stipulated intimidate punish offending party b penalty stipulation purpose punish real objection penalty clause matter public policy part law contract allow one party punish non performance c critical issue whether sum agreed paid commensurate interest protected bargain test whether impugned provision secondary obligation imposes detriment defendant proportion legitimate interest innocent party enforcement primary obligation reasoning innocent party proper interest simply punishing party determining whether agreed sum commensurate interest protected contractual bargain whether sum remedy stipulated exorbitant unconscionable regard innocent party interest performance contract relevant decision upheld court appeal ground chengcheng aust enterprise melbourne pty ltd v mansfield corp pty ltd 2018 nswca 244 defendant submit nowhere deed defendant concede liability amount referred clause 2 4 recital deed referred party agreeing resolve dispute without admission liability b contractual requirement pay sum money conditional failure observe particular contractual stipulation capable penalty regardless whether payable upon breach c clause 2 3 deed penal character payment sum proportion interest party purpose provision protect sum stipulated payment default penalty bear relation possible damage interest innocent party arising breach party contractual term court followzenith engineering pty ltd v queensland crane machinery pty ltd 2000 qca 221referred apparent approval inlachlan v hp mercantile pty ltd 2015 nswca 130which submitted directly point e evidence plaintiff claim debt owed prior mediation irrelevant plaintiff reject argument submitted plaintiff clause 2 3 penalty judgment sum annexure c deed bore rational relationship proportion debt owed plaintiff submitted judgment sum comprised total amount plaintiff stood awarded cost succeeded ultimate hearing thus proportion original debt owed legitimate interest plaintiff clause 2 3 sought protect agreed amount deed paid time inandrews v australia new zealand banking group ltd 2012 hca 30 2012 247 clr 205the high court stated follows paragraph 10 10 general term stipulation prima facie imposes penalty party first party matter substance collateral accessory primary stipulation favour second party collateral stipulation upon failure primary stipulation imposes upon first party additional detriment penalty benefit second party sense collateral accessory stipulation described nature security terrorem satisfaction primary stipulation compensation made second party prejudice suffered failure primary stipulation collateral stipulation penalty enforced extent compensation first party relieved degree liability satisfy collateral stipulation incameron v ubs ag 2000 vsca 222the victorian court appeal considered dispute non compliance deed settlement judgment obtained defendant switzerland equivalent swiss currency 8 4 million court appeal held provision stated defendant defaulted payment one five one million dollar instalment plaintiff would liberty apply reinstatement proceeding entry judgment sum 8 4 million plus cost le payment made unenforceable penalty sum 8 4 million relate non compliance deed settlement party rather sum due allegedly owing swiss judgment debt see paragraph 4 per winneke p paragraph 19 22 per phillips ja 28 per buchanan ja inzenith engineering pty ltd v queensland crane machinery pty ltd queensland court appeal considered deed sum stipulated clause default amount paid neither form substance present debt merely amount claimed proceeding plaintiff honour held higher amount bore rational relationship loss plaintiff suffered late payment instalment deed clause unenforceable penalty provision pincus ja stated following paragraph 1 2 9 10 1 application leave appeal judgment judge wylie qc given district court question honour whether applicant could recover sum said due deed settlement guarantee applicant sued first respondent money claimed contract carry engineering work defence filed disputing liability certain sum making applicant claim counter claiming alleged bad work negotiation case settled deed settlement required first respondent pay sum 55 000 certain instalment full settlement plaintiff claim defendant counter claim claim finally pleaded action 72 567 13 amount settlement substantially le claim second respondent guaranteed payment money deed 2 five instalment paid deed first second paid time third fourth fifth last instalment paid late payment fourth instalment applicant applied judgment basis cl4 deed reading follows payment made due date respect time agreed essence plaintiff entitled enter judgment defendant full amount claimed amended claim plus interest cost judge wylie qc dismissed application ground default provision constituted penalty 9 opinion law presently stand correctly stated professor rossiter chapter relief penalty principle equity 1996 edited professor parkinson stipulated sum presently due owing debt creditor grant debtor indulgence pay debt instalment penalty creditor provide condition granting indulgence indulgence withdrawn debtor default payment instalment however principle application regard substance notwithstanding form transaction stipulated sum owing present debt 296 stipulated sum neither form substance present debt merely amount claimed case one obligation sought enforced one pay much larger sum agreed due upon default payment agreed instalment latter dunlop pneumatic tyre co ltd v new garage motor co ltd 1914 ukhl 1 1915 ac 79at 87 para4 b learned primary judge pointed additional amount would cl4 deed enforceable become payable bear rational relationship loss applicant suffered late payment instalment 10 agree primary judge view cl4 unenforceable penalty provision similarly 13 white j stated follows 13 seems clear amount claimed pleading disputed defence counterclaim could characterised present debt debt actually due owing dea v allstates leasing system wa pty ltd 1983 hca 3 1983 152 clr 359at 374 case ofzenithappears indistinguishable fact present case amount referred clause 2 4 annexure c total claimed plaintiff proceeding plus interest plus cost never conceded defendant amount owing accordingly amount referred could regarded present debt merely amount claimed recital deed reference recital accounting fee alleged owing fuller party kapl recital b deed without admission liability position inzenithshould contrasted position inlachlan v hp mercantile pty ltd 2014 nswsc 356where recital deed unconditionally affirmed confirmed debt obligation relevant loan darke j found distinguishing fact made fact different tozenith see 52 59 zenithwas criticised darke j appeal inlachlan v hp mercantile pty ltd court appeal confirmed darke j reasoning referred tozenithwithout disapproval 2015 nswca 130at 47 49 54 56 line case raise real issue court one hand plaintiff arguably legitimate interest higher amount clause 2 3 2 4 amount claimed owing proceeding hand simply claim plaintiff determined clear debt whether claim force could determined application view case indistinguishable fromzenith considered appellate judgment another state court opinion follow particularly criticised court appeal inlachlan view clause 2 3 2 4 therefore amount penalty common law followingzenithas obligation pay higher amount arises deed breach deed making relevant payment take account argument plaintiff evidence amount arrived m perry 16 october 2018 affidavit show interest plaintiff deed seeking protect however seems fromzeniththat interest sought protected breach obligation pay second instalment evidence particular loss suffered plaintiff example real estate transaction money required would justify higher amount accordingly view clause 2 3 2 4 deed penal nature would found invalid issue raised defendant 16 august 2018 hearing proceed consider argument plaintiff inpower v deputy commissioner taxation 2 2014 nswca 77the court appeal stated following paragraph 2 6 2 notice motion filed 23 december 2013 appellant applied order order made 12 december 2013 set aside lieu thereof order appeal allowed cost basis application assertion reason court failed deal argument advanced behalf mr power 3 doubt court power open judgment order reconsider point may convinced earlier consideration point proceeded misapprehension fact law matter calling review interest justice require however heavy burden rest upon applicant opening show exceptional course required assumption fault part applicant seede l v director general nsw department community service 2 1997 hca 14 1997 190 clr 207at 215 commissioner suggested fault part mr power would preclude making application 4 two competing objective law must considered dealing application court reconsider point already decided first justice ought done ought seen done accident oversight sometimes occur occasion injustice repaired far high court australia may grant leave appeal intermediate appellate court intermediate appellate court court final court appeal nevertheless injustice resulting oversight intermediate appellate court may difficult remedy competing objective objective finality litigation interest reipublicae ut sit finis litium seerogers v r 1994 hca 42 1994 181 clr 251at 273 object finality reinforces respect shown order final face addressed world large upon conduct may ordered reliance upon binding authority seede l v director general nsw department community service 2 1997 hca 14 1997 190 clr 207at 215 5 present case mr power endeavoured identify accident oversight would occasion injustice misapprehension part court fact law mere absence reference reason judgment submission made party case cited party support submission mean court given consideration submission intermediate appellate court bound give reason required proper determination proceeding enable party appropriate high court see clearly proceeding decided way decided see260 oxford street pty ltd v premetis 2006 nswca 96at 135 6 essence mr power inviting court give consideration oral submission made senior counsel behalf 5 november 2013 court consider jurisdiction open proceeding enlivened present circumstance nevertheless inappropriate make brief observation submission question infirst mortgage managed investment pty ltd v pittman 2 2014 nswca 272 court appeal considered application underpart 36 16 3a court stated follows paragraph 12 13 12 respondent written submission motion stated principle governing application set aside judgment order ucpr r 36 16 first subject one matter fmi challenge respondent statement principle follows principle relevant question discussed insmith v new south wale bar association 1992 hca 36 1992 176 clr 256at 265 267 may summarised follows power discretionary exercised regard public interest maintaining finality litigation b whether relevant avenue appeal c importance matter calling review e embarrassment prejudice party court may open judgment proceeded misapprehension fact law matter calling review interest justice require de l v director general nsw department community service 2 1997 hca 14 1997 190 clr 207at 215 case cited jurisdiction recall judgment order extends beyond case party given opportunity heard issue held determinative castle construction pty ltd v sahab holding pty ltd 2 2013 hca 44 2013 87 aljr 1159at 15 paradigm example whether power exercised court determine centrally relevant issue fails consider submission accepted could materially affect outcome case 13 qualification principle added fmi heavy burden imposed party seek open judgment order inpower v deputy commissioner taxation 2 2014 nswca 77 court explained 3 reason doubt court power open judgment order reconsider point may convinced earlier consideration point proceeded misapprehension fact law matter calling review interest justice require however heavy burden rest upon applicant opening show exceptional course required assumption fault part applicant two competing objective law must considered dealing application court reconsider point already decided first justice ought done ought seen done accident oversight sometimes occur occasion injustice repaired far high court australia may grant leave appeal intermediate appellate court intermediate appellate court court final court appeal nevertheless injustice resulting oversight intermediate appellate court may difficult remedy competing objective objective finality litigation object finality reinforces respect shown order final face addressed world large upon conduct may ordered reliance upon binding authority emphasis added inmosman municipal council v minister local government 2 2017 nswca 255 macfarlan ja sackville aja stated follows paragraph 34 34 minister expressly agreed following statement principle council written submission 10 principle relevant exercise power reopen discussedsmith v new south wale bar association 1992 hca 36 1992 176 clr 256at 265 267 may summarised follows power discretionary exercised regard public interest maintaining finality litigation b whether relevant avenue appeal c importance matter calling review application involves application adduce evidence reason evidence previously tendered e embarrassment prejudice party 11 court may open judgment proceeded misapprehension fact law matter calling review interest justice require de l v director general nsw dept community service 2 1997 hca 14 1997 190 clr 207at 215 case cited jurisdiction recall judgment order extends beyond case party given opportunity heard issue held determinative castle construction pty ltd v sahab holding pty ltd 2 2013 hca 44 2013 87 aljr 1159at 15 12 paradigm example power exercised court determine centrally relevant issue fails consider submission accepted could materially affect outcome case council reply submission accepted qualification statement proposed minister namely heavy burden party seeking reopen order pursuant ucpr r 36 16 court recently emphasised well established jurisdiction set aside order exercised sparingly caution due regard importance finality litigation inmajak v rose 5 2017 nswca 238at 11 13 court appeal stated follows 11 ucpr 36 16 relevantly provides 36 16 power set aside vary judgment order 1 court may set aside vary judgment order notice motion setting aside variation filed entry judgment order 3a notice motion setting aside variation judgment order filed within 14 day judgment order entered court may determine matter appropriate set aside vary judgment order subrule 1 judgment order entered 4 nothing rule affect power court set aside vary judgment order applicant notice motion filed within time prescribed subr 3a accordingly subr 1 applies 12 rule like rule made uniformcivil procedure act 2005 nsw subject overriding purpose facilitating quick cheap resolution real issue party litigation 56 give licence disgruntled litigant agitate hope obtaining favourable outcome issue determined make court sort magic pudding unsuccessful litigant may take slice slice ever hopeful next palatable last rule serious limited purpose permit readily identifiable readily rectifiable inadvertent error corrected without complication expense appeal case court application special leave high court abuse rule detrimental administration justice unnecessarily unfairly litigant taking time court abuse rule facilitate quick cheap resolution issue party contrary unwarranted reliance r 36 16 oppressive successful party drain court resource 13 well established court jurisdiction set aside order exercised sparingly caution due regard importance finality litigation see example wentworth v woollahra municipal council 2 1982 hca 41 1982 149 clr 672at684 1982 hca 41 state rail authority nsw v codelfa construction pty ltd 1982 hca 51 1982 150 clr 29at 38 1982 hca 51 autodesk inc v dyason 2 1993 hca 6 1993 176 clr 300at302 1993 hca 6 rockcote enterprise pty ltd v f architect pty ltd 2 carelli v f architect pty ltd 2 2008 nswca 205at 9 emphasis added light principle turn consider argument raised plaintiff issue estoppelthe argument issue estoppel pressed final submission anshun estoppeli think usual principle relating toanshunestoppel apply asserted plaintiff becausepart 36 16 3a provides particular rule applicable specific situation application made within 14 day particular order entered matter raised relating principle may well relevance discretionary matter court must take account prevent discretion available appropriate circumstance consider thatwelker v rinehart 6 2012 nswsc 160relied plaintiff conflict view abuse processi also consider abuse process penalty issue never considered following hearing 16 august 2018 primary decision raised first time application underpart 36 15and36 16 evidence suggests raised defendant improper reason delay enforcement discretion underpart 36 16having regard view penalty issue court must consider whether exercise discretion set aside order made 14 september 2018 pursuant topart 36 16 3a ucpr power rule discretionary must exercised judicially must exercised taking account matter referred court appeal case set regard public interest maintaining finality litigation seems clear following principle apply court may reopen judgment proceeded misapprehension fact law matter calling review interest justice require b jurisdiction recall judgment order extends beyond case party given opportunity heard issue held determinative c heavy burden party seeking reopen order pursuant ucprpart 36 16 3a well established jurisdiction set aside order exercised sparingly caution due regard importance finality litigation rule subject overriding purpose facilitating quick cheap resolution real issue party litigation in 56of thecivil procedure act 2005 nsw e rule give licence disgruntled litigant agitate issue determined f readily identifiable readily rectifiable inadvertent error may corrected without complication expense appeal g importance matter calling review relevant h prejudice party relevant clear example power exercised court determine centrally relevant issue fails consider submission accepted could materially affect outcome case j whether fault part party important matter consider k final test interest justice regard objective finality litigation submission party relevant matter set generally taken account take account defendant argument follows ostensible authority main issue raised 16 august 2018 hearing b uplift factor clause 2 3 2 4 substantial c plaintiff still judgment reduced amount qualitative nature issue significant e prejudice defendant order cannot altered significant view taking account evidence submission exercise discretion favour defendant following reason legal representative defendant mr sim appeared hearing deed month hearing b clause 2 3 2 4 deed specifically referred prayer numbered 2 notice motion filed 19 july 2018 c defendant solicitor mr sim retain counsel appear hearing notice motion right mr sim appeared defendant hearing notice motion given right cross examine m perry right defendant entitlement make relevant submission e whilst written submission handed counsel plaintiff day mr sim given full opportunity review submission make responsive submission f mr sim given short additional time locate authority wished rely upon g failure defendant raise penalty issue due act omission misrepresentation plaintiff none suggested penalty issue could raised defendant would ruled upon h primary decision deed held reflect agreement entered party practical term delay plaintiff ability pursue amount found due penalty issue raised late whilst application important defendant also important plaintiff practically delay ability recover amount entered j evidence show mr sim agreed order entered 14 september 2018 whilst accept defendant submission true consent form true agreement another opportunity review obligation deed time wished k submission made penalty issue mr sim hearing notice motion submission ignored taken account court considering application misapprehension fact law relating submission made l interest justice significant guiding principle heavy burden rest upon defendant show setting aside order exceptional course adopted fault part plaintiff take account principle court appeal authority referred particularlymajak 12 amount issue large amount side n object finality significant taken account suggestion breach rule natural justice present case error mere error calculation fact failure raise argue substantial legal argument available argued 16 august 2018 regard matter view exercise discretion favour defendant present case p similar reason refuse application defendant reopen hearing notice motion filed 19 july 2018 motion heard reserved considered written judgment handed compelling reason reopen hearing application costsin relation lump sum cost application 98 4 thecivil procedure act2005
Philip Henley v Geraldton Health Service [2002] WAIRComm 5375 (19 April 2002).txt
philip henley v geraldton health service 2002 waircomm 5375 19 april 2002 last updated 6 july 2007100210450against decision dismissal gross misconductwestern australian industrial relation commissionpartiesphilip henleyappellant v geraldton health servicerespondentcorampublic service appeal boardcommissioner p e scott chairpersonmr hill board membermr g edward board memberdeliveredtuesday 23 april 2002file nopsab 1 1999citation 2002 wairc 05375_______________________________________________________________________________resultapplication dismissed want jurisdictionrepresentationappellantmr j tran counsel respondentmr l marrable_______________________________________________________________________________reasons decisionthe commissioner mr g edwardsthis appeal lodged 6 january 1999 made pursuant 80i theindustrial relation act 1979 act decision respondent said made 16 december 1998 dismiss appellant gross misconduct party agreed prior dismissal appellant government officer accordance 80c act appellant employment subject workplace agreement pursuant theworkplace agreement act 1993 wa act appellant submits public service appeal board psab jurisdiction hear appeal basis appeal decision appellant dismissed 80i act claim unfair dismissal pursuant 29 1 b 7g act 8 1 51 wa act appellant party workplace agreement time lodged appeal therefore accordance 43 4 wa act workplace agreement party longer applied limitation arising act longer applied respondent say term 7 7b act party workplace agreement appellant respondent employee employer purpose act accordingly industrial matter arise psab jurisdiction industrial matter must arise respondent also say appeal characterised claim unfair dismissal wa act provides action unfair dismissal brought industrial magistrate court 8 1 51 1 wa act pursuant 7g act otherwise underlining respondent say psab jurisdiction deal matter base psab jurisdiction set 80i act section 80i 1 e relevant provision matter provides 80i appeal 1 subject tosection 52of thepublic sector management act 1994and subsection 3 section board jurisdiction hear determine e appeal appeal undersection 78 1 thepublic sector management act 1994 government officer occupies position carry salary lower prescribed salary decision determination recommendation employer government officer government officer dismissed adjust matter referred paragraph b c e noted fielding sc indragicevich v department resource development psa 2 1999 definition government officer simply mean identifying special class employee public service arbitrator case power normally invested commission psab constituent authority commission although act provide 80i psab jurisdiction limited dealing industrial matter scheme act make clear psab jurisdiction deal certain specified matter subset industrial matter generally psab jurisdiction deal matter go beyond specified industrial matter set within jurisdiction accordingly requirement relationship employer employee psab deal matter appellant respondent party workplace agreement time decision dismiss employer employee purpose act hence industrial matter arises way government officer bound workplace agreement could bring matter commission respect dismissal would workplace agreement contained provision referral claim harsh oppressive unfair dismissal commission pursuant 7g act see alsooliver v ceo goldfield esperance development commission 1997 77 waig 2819
Prahauser and Secretary, Department of Social Services (Social services second review) [2020] AATA 105 (3 February 2020).txt
prahauser secretary department social service social service second review 2020 aata 105 3 february 2020 last updated 5 february 2020prahauser secretary department social service social service second review 2020 aata 105 3 february 2020 division general divisionfile number 2019 1897re gerhard prahauserapplicantand secretary department social servicesrespondentdecisiontribunal thompson memberdate 3 february 2020place adelaidethe tribunal affirms decision review sgnd thompson membercatchwordssocial security disability support pension whether condition fully diagnosed treated stabilised whether impairment rate 20 point decision review affirmed legislationadministrative appeal tribunal act 1975social security administration act 1999social security table assessment work related impairment disability support pension determination 2011casesbobera secretary department family housing community service indigenous affair 2012 aata 922re fanning secretary department social service 2014 aata 447secretary department social service seyfang 2016 aata 243reasons decisioni thomspon3 february 2020introductionthe applicant seek review decision social service child support division administrative appeal tribunal aat1 dated 4 march 2019 affirmed decision reject applicant claim disability support pension dsp applicant gerhard prahauser lodged claim dsp received centrelink 26 june 2017 centrelink rejected claim first instance mr prahauser requested review decision authorised review officer aro centrelink subsequently affirmed decision mr prahauser requested review aat1 decision review affirmed mr prahauser applied general division tribunal second review hearing took place 20 january 2020 mr prahauser attended hearing self represented mr visser represented respondent secretary department social service mr prahauser gave evidence oath tribunal received evidence document lodged accordance withs 37of theadministrative appeal tribunal act 1975together various medical report document 1 mr prahauser 58 year old suffers number medical condition include condition relating upper limb lower limb neck legislation issuessection 94 1 thesocial security act 1991 act provides person qualified dsp person physical intellectual psychiatric impairment b impairment attracts rating 20 point thesocial security table assessment work related impairment disability support pension determination 2011 impairment table c continuing inability work impairment must present time claim within following 13 week specified thesocial security administration act 1999 administration act assessment period case 26 june 2017 25 september 2017 assessment period section 94 act requires person continuing inability work satisfied inability work due accepted impairment 15 hour week b actively participated program support second requirement necessary person severe impairment 20 point single impairment table accordingly mr prahauser qualify dsp tribunal satisfied assessment period one physical intellectual psychiatric impairment secondly impairment rated least 20 point impairment table finally continuing inability work mr prahauser claim dsp listed disability illness injury osteoarthritis especially left side also right side sensory loss finger movement generalised loss mobility weakness arm hand finger well ankle pain cervical spine lower back osteoarthritis 2 secretary accepted mr prahauser suffers impairment therefore satisfied 94 1 act statement fact contention secretary contended 3 cervical spine condition could assigned 5 impairment point b lower back condition lower limb condition could assigned impairment rating c overall impairment rating 5 point satisfy 94 1 b act additionally secretary contended mr prahauser continuing inability work accordingly mr prahauser qualified dsp assessment period secretary accepted applicant actively participated program support 971 day 36 month prior claim dsp accepted po requirement met case mr prahauser also provided tribunal helpful written statement issue fact contention dated 23 september 2019 included comment pain neck lower back knee problem condition cause 4 main issue determination whether mr prahauser impairment could assigned 20 point impairment table assessment period whether continuing inability work evidence mr prahausermr prahauser gave evidence medical condition effect evidence clear consistent honest resides alone suburban adelaide assessment period general routine revolved around looking going walk reading book shopping cooking cleaning home last employment 2010 previously mr prahauser working 12 year lighting industry migrated australia 1995 austria worked many year office factory mr prahauser told tribunal difficulty upper limb assessment period right hand dominant arm would stiffen sometimes would drop thing unexpectedly problem worse left hand described pain rusty causing finger bend claw running hot water finger softened helped push back normal position nothing particular seemed exacerbate problem unpredictable may occur couple time hour hour mr prahauser said us trolley go shop pick object provided heavy picking one litre carton liquid problem something heavier six pack mineral water weighing around five kilogram would require use arm hand generally try avoid heavy lifting cause cramping pain lower back muscle squeezed home mr prahauser used computer two finger typist said difficulty using computer keyboard use pen pencil frequently writing problem tie shoelace button generally without difficulty button tight however occasion experience difficulty mr prahauser long term difficulty knee said late 20 problem started treatment included cortisone injection average daily activity involved walking home beach distance 100 metre take walking stick precautionary measure beach would walk footpath sand unstable could walk 1 kilometre however need rest occasionally park bench enjoyed going walk near beach sitting reading walk shop 200 metre house however sometimes regularly knee would click cause pain said solution bend couple time get knee back correct position thereafter pain gone inside house mr prahauser use walking stick need hold furniture climb step considers one set step would problem however multiple step could tricky time get cramp ankle feeling numbness toe mr prahauser problem spinal function cause difficulty overhead activity get arm readily shoulder height higher without difficulty bend long take care slowly problem bending fill empty dishwasher however cleaning floor vacuuming little troublesome getting dressed sometimes painful especially getting sock bend make sure take care bend slowly moving head caused difficulty twist trunk look side sit chair hour read book without much difficulty moving around chair occasionally maintain comfortable position time mr prahauser suffered fatigue described happening every fortnight month mentioned feel dizzy stand quickly mr prahauser said general principle like medical treatment know outcome would unwilling take risk unfavourable outcome treatment arm hand said treatment problem anyway physiotherapy treatment neck lower back would try pain killer panadol neurofen pain really bad first diagnosed osteoarthritis prescribed cream consulted physiotherapist twice physiotherapist recommended exercise undertaken home every medical evidencedr middleton mr prahauser general medical practitioner provided medical certificate dated 5 may 2017 recorded diagnosis left arm weakness cramp hand left leg weakness 5 medical certificate dated 23 june 2017 6 dr middleton noted osteoarthritis neck left arm weakness together osteoarthritis hand knee lower back described condition permanent impact included left arm weakness sensory loss together generalised loss mobility mr prahauser treated analgesic dr middleton wrote curative treatment possible similarly report dated 23 june 2017 dr middleton referred generalised osteoarthritis caused pressure nerve neck turn resulted left arm weakness loss sensation 7 mri cervical spine dated 15 may 2017 referred mild moderate degenerative change moderate narrowing left side foramen indication foramen stenosis 8 neurologist dr leyden noted 6 june 2017 mr prahauser intermittent altered sensation left arm intermittent feeling weakness left finger grip described symptom relatively minor although likely remain persistent recommended continuation regular gentle exercise degree lower back pain likely result osteoarthritis mr prahauser lower back knee 9 another medical certificate dr middleton 24 september 2017 confirmed diagnosis osteoarthritis neck associated left arm weakness sensory loss diagnosis also osteoarthritis hand knee lower back generalised loss mobility condition described permanent symptom likely persist treatment noted analgesic curative treatment possible 10 report referred generated assessment period subsequent assessment period report dr middleton february 2018 march 2018 confirmed osteoarthritis neck hand knee low back poor mobility 11 mri scan confirmed diagnosis dr middleton wrote report 7 february 2019 12 confirmed diagnosis generalised osteoarthritis involving neck lower back knee ankle finger dr middleton wrote condition permanent treatment change level impairment considered condition fully diagnosed treated stabilised time dsp claim without significant subsequent change dr middleton report included assessment appropriate rating impairment table estimate impact activity using hand arm 5 10 point estimate impact activity involving leg foot 5 10 point estimate impact activity involving spinal function 20 point relation condition dr middleton estimated impact activity requiring physical exertion stamen 5 10 point estimate impact bladder continence 5 point mr prahauser referred pain rehabilitation specialist dr vo october 2019 consultation took place two year assessment period dr vo recommendation included multidisciplinary pain management approach including referral lumbosacral spine x ray mri scan potential referral spinal surgeon assessment referral local physiotherapist gp allied health care plan targeting core strengthening improvement hamstring flexibility application cream bilateral trapezii dr vo report included comment effect mr prahauser various condition could potentially better managed functional gain hopefully could made physical rehabilitation recommendation physical rehabilitation included hydrotherapy walking pilate ten trial 13 subsequent report dated 11 november 2019 dr vo written follow consultation mr prahauser dr vo wrote little changed mr prahauser consulted physiotherapist twice shown floor based exercise program apparently engaging home appointment made see physiotherapist dr vo pointed mr prahauser undertaken trial capsaicin cream dr vo also wrote mr prahauser considers anti vaccination want take oral medication stating want filled medication prove disabled also decline spinal injection back either want stranger fluid body take potential risk associated facet joint sacroiliac joint injection dr vo opinion mr prahauser presentation would considered meeting 20 impairment point impairment table relating spinal function 14 considerationthe tribunal note comment deputy president bean insecretary department social service seyfang 15 required regard state affair assessment period without regard later development whilst may regard evidence came existence assessment period relevant far assist establishing true state affair assessment period rationale approach highlighted comment tribunal inre bobera secretary department family housing community service indigenous affair 16 tribunal consideration whether condition stabilised likely persist foreseeable future tribunal must look situation evidence available time application dsp subsequent 13 week subsequent evolution particular condition might relevant weight tribunal place competing prognostication assessment quality medical report provided notably evidence indicates creator medical report may access relevant information may turned mind relevant issue point important quite frequently case appeal dsp decision arrive tribunal twelve month initial dsp application refused many instance natural course illness injury become obvious thereby confounding professional opinion honestly proffered thorough conscientious treating doctor medical condition progressed since time original dsp application applicant make new dsp application open law tribunal use evidence progression directly award dsp changed circumstance fact way tribunal must ass evidence treatment assessment period discussed number decision inre fanning secretary department social service deputy president handley stated 17 language clause 6 5 6 6 2011 determination forward looking respect whether condition fully stabilised example question tribunal whether reasonable treatment isunlikelyto result significant functional improvement level enabling person undertake work next two year emphasis added hindsight may suggest treatment result improvement within two year question tribunal determine legislation requires tribunal consider treatment taken place intended take place likely effect treatment time claim 13 week thereafter reason evidence treatment efficacy treatment relevant period directly relevant tribunal decision comment particularly relevant present case given significant lapse time lodging dsp claim june 2017 hearing tribunal january 2019 period two half year however task tribunal ass mr prahauser condition time dsp claim assessment period impairment tablesthe impairment table provide mechanism assign rating level functional impact impairment based function rather diagnosis describe functional activity ability symptom limitation section 6 rule applying impairment table state impairment rating assigned impairment person condition causing impairment permanent impairment result condition likely persist two year impairment table provide condition permanent fully diagnosed fully treated fully stabilised functional capacity rated impairment table concern question individual capacity work section 6 5 impairment table provides decision whether condition fully diagnosed fully treated requires consideration corroborating evidence condition treatment rehabilitation person condition whether treatment continuing planned next two year section 6 6 impairment table state part condition fully stabilised person undertaken reasonable treatment reasonable treatment unlikely result significant functional improvement level would enable person undertake work next two year applicable impairment rating mr prahauser condition considered turn reference impairment table estimate doctor patient rating impairment table provide useful guide tribunal determining rating however tribunal bound medical opinion estimated rating must make decision taking account oral evidence documentary evidence submission presented hearing upper limbimpairment table 2 concern upper limb function used person permanent condition resulting functional impairment performing activity require use hand arm diagnosis condition must made qualified medical practitioner self report symptom alone sufficient dr middleton wrote report 7 february 2019 condition regarding hand arm fully diagnosed treated stabilised time dsp claim tribunal satisfied sufficient medical evidence summarised previously confirm upper limb function fully diagnosed treated stabilised assessment period relation mild functional impact impairment table 2 state follows ul none list style none pointsdescriptors5there amildfunctional impact activity using hand arm 1 person manage daily activity requiring use hand arm difficulty following picking heavier object e g 2 litre carton liquid carrying full shopping bag b handling small object e g coin c button reaching pick object job capacity assessment report dated 20 september 2017 assessed mild functional limb impact activity using hand arm 18 mr prahauser evidence reflects impact activity involving hand arm consistent descriptor mild functional impact particularly noting descriptor 1 c functional impact mr prahauser performance activity requiring use hand arm rate five point impairment table 2 lower limbimpairment table 3 relates lower limb function used person permanent condition lead functional impairment performing activity require use leg foot diagnosis condition must made qualified medical practitioner dr middleton report dated 7 february 2019 confirms condition involving lower limb fully diagnosed treated stabilised assessment period tribunal note medical report medical certificate written assessment period described earlier satisfied lower limb condition fully diagnosed treated stabilised assessment period mild functional impact activity using lower limb impairment table 3 state pointsdescriptors5there amildfunctional impact activity using lower limb 1 least one following applies person difficulty walking local facility e g shop bus stop b person difficulty walking around shopping mall supermarket without rest c person difficulty climbing stair 2 least one following applies person unable stand 10 minute b person mobilise effectively need use lower limb prosthesis walking stick job capacity assessment report dated 20 september 2017 19 noted mr prahauser pain kneeling walking knee clicked assessor commented mr prahauser could usually walk 30 60 minute pain started significant problem night also noted mr prahauser pain ankle worse moved foot circular motion taking account evidence including mr prahauser evidence tribunal satisfied impairment lower limb function meet descriptor 1 2 mild functional impact appropriate rating impairment table 3 five point spinalimpairment table 4 spinal function used person permanent condition functional impairment performance activity involving spinal function namely bending turning back trunk neck diagnosis condition appropriately qualified medical practitioner necessary dr middleton report dated 7 february 2019 confirms condition involving lower limb fully diagnosed treated stabilised assessment period noting medical evidence tribunal considers mr prahauser neck condition regarded fully diagnosed treated stabilised assessment period mild functional impact impairment table 4 state pointsdescriptors5there amildfunctional impact activity involving spinal function 1 person difficulty activity overhead height e g activity requiring person look upwards b bending knee level straightening without difficulty c turning trunk moving head e g look side upwards tribunal also note content job capacity assessment report dated 20 september 2017 20 report stated mr prahauser spoke neck pain stiffness started 12 18 month previously became worse 2016 stiffness mostly forward back movement side side movement bad mr prahauser stated nurofen help sleep evidence mr prahauser gave tribunal indicates difficulty activity listed descriptor mild functional impact appropriate impairment rating impairment table 4 five point conditionsevidence mr prahauser continence function included report urologist dr horsell 18 november 2019 dr horsell described urinary symptom dated back 2017 recommended urinary tract ultrasound review following test dr horsell wrote report dated 9 december 2019 concluded mild urinary incontinence noted mr prahauser preferred undertake investigation treatment 21 dr horsell report follow examination conducted considerable time assessment period tribunal satisfied continence function fully diagnosed fully treated stabilised assessment period accordingly cannot rated impairment table reference made condition fatigue dr middleton report dated 7 february 2019 refers impact activity requiring physical exertion stamen dr middleton noted mr prahauser fatigued easily resulted limitation walking ability carry various household duty mr prahauser evidence tribunal paint bleak picture tiredness loss stamen indeed mr prahauser said sometimes get moment fatigue every maybe average every fortnight month also mentioned get quickly suffers dizziness impairment table 1 relates function requiring physical exertion stamen tribunal consider evidence fatigue sufficient conclude fully diagnosed treated stabilised accordingly impairment rating given summarythe tribunal find 94 1 act regarding physical impairment satisfied outlined tribunal find mr prahauser upper limb condition fully diagnosed fully treated fully stabilised assessment period appropriate rating five impairment point mr prahauser lower limb condition fully diagnosed treated stabilised assessment period impairment rating five point appropriate mr prahauser spinal function fully diagnosed treated stabilised assessment period impairment rating five point appropriate total 15 impairment point mr prahauser impairment combination impairment attracting rating least 20 point impairment table assessment period therefore satisfy 94 1 b act circumstance necessary consider whether assessment period mr prahauser continuing inability work within meaning 94 1 c act mr prahauser qualified dsp time lodged claim within 13 week date tribunal obliged affirm decision review decisionthe tribunal affirms decision review certify preceding eighty three 83 paragraph true copy reason decision herein member thompson sgnd associatedated 3 february 2020date hearing 20 january 2020applicant personadvocate respondent mr c visser department human service 1 exhibit 1 6 2 ex 1 t9 131 3 ex 2 4 ex 4 5 ex 1 t13 161 6 ex 1 t13 162 7 ex 1 t13 163 8 ex 1 t13 165 9 ex 1 t13 164 10 ex 1 t13 167 11 ex 1 t13 171 172 12 ex 1 t16 235 13 ex 3 14 ex 3 15 2016 aata 243 23 16 2012 aata 922 34 17 2014 aata 447 33 18 ex 1 t10 136 19 ex 1 t10 136 20 ex 1 t10 136 21 ex 3
'KA' and Commonwealth Bank of Australia Limited [2016] AICmr 80 (25 November 2016).txt
ka commonwealth bank australia limited 2016 aicmr 80 25 november 2016 last updated 1 december 2016 ka commonwealth bank australia limited 2016 aicmr 80 25 november 2016 determination reason determination ofaustralian privacy commissioner timothy pilgrimcomplainant ka respondent commonwealth bank australia limited acn 123 123 124 decision date 25 november 2016application number cp14 03139catchwords privacy privacy act national privacy principle privacy act 1988 cth 52 npp 2 use disclosure personal information npp 4 date security compensation awarded non economic loss aggravated damage awardedcontentsfindingscommonwealth bank australia limited thecba interfered complainant privacy disclosing personal information principal commonwealth bank mortgage innovation agency mia purpose primary purpose collection breach national privacy principle npp 2 1 theprivacy act 1988 cth privacy act andfailing take reasonable step npp 4 1 protect personal information misuse loss unauthorised access modification disclosure redress interference cba shall within 6 week determination issue apology complainant acknowledging interference complainant privacypay complainant 10 000 non economic loss caused interference complainant privacy andreview information handling policy particularly respect access customer information acknowledged potential conflict interest report back within 6 month finding review backgroundthe complainant former employee mia 1 complainant also customer cba june 2011 complainant employment mia terminated principal principal complainant submits response termination took action principal fair work commission fwc 2 complainant alleges fwc proceeding principal two employee mia employee improperly accessed customer profile cba customer management software commsee 3 commsee enables authorised user access single view customer including account customer hold status recent interaction customer bank 4 complainant alleges principal employee repeatedly accessed commsee profile fwc proceeding purpose assisting principal advance defence proceeding particular alleges principal accessed commsee profile purpose tracking worsening financial position allowed settle legal matter significantly lower sum money principal expected also emotionally wore complainant traumatised complainant diminishing continue legal fight 5 commsee maintains client access report access report track record detail access commsee record individual commsee profile date time access along name department person obtained access 24 october 2011 complainant advised cba become aware principal accessed commsee profile least one occasion 6 complainant asked cba provide copy access report dating date termination june 2011 alternatively assure principal access 7 complainant advised cba considers breach privacy nature extremely serious 15 november 2011 cba responded complainant senior legal counsel advising access commsee profile done normal course principal management time non performing loan account bank 8 privacy complaint remedy soughton 2 july 2014 complainant lodged complaint cba office australian information commissioner oaic unders 36of theprivacy act 9 complainant alleges cba interfered privacy improperly disclosing personal information third party principal employee taking reasonable step protect personal information misuse loss unauthorised access modification disclosure complainant contends cba full knowledge fwc proceeding circumstance cba blocked mia access commsee profile 10 15 october 2014 oaic opened investigation complainant allegation unders 40 1 theprivacy act written submission provided complainant cba considered matter able resolved conciliation decided determine matter unders 52of theprivacy act section 52 1 provides investigating complaint may make determination dismissing complaint 52 1 finding complaint substantiated make determination includes one following declaration respondent engaged conduct constituting interference privacy individual must repeat continue conduct 52 1 b b ii respondent must perform reasonable act course conduct redress loss damage suffered complainant iii complainant entitled specified amount way compensation loss damage suffered reason act practice subject complaint s52 1 b iii iv would inappropriate action taken matter complainant seeking declaration cba interfered privacy seeking compensation interference also asks impose penalty cba interference cba providing misleading statement fraudulent falsified document oaic complaint investigation lawat time alleged breach npps standard handling personal information private sector organisation subject theprivacy actwere obliged uphold theprivacy amendment enhancing privacy protection act 2012 privacy amendment act substantively took effect 12 march 2014 replaced npps australian privacy principle considered complaint provision theprivacy actincluding npps effect relevant time section 13a theprivacy actheld act practice breached npp relation personal information purpose act interference privacy individual information section 16arequired organisation act engage practice breach npps personal information defined in 6of theprivacy actas information opinion including information opinion forming part database whether true whether recorded material form individual whose identity apparent reasonably ascertained information opinion 11 complainant commsee profile identifies complainant therefore contains information thus personal information purpose ofs 6of theprivacy act organisation defined unders 6cof theprivacy actto include individual b body corporate c partnership unincorporated association e trustthat small business operator registered political party agency state territory authority prescribed instrumentality state territory cba publicly listed corporation therefore organisation within meaning ofs 6c b theprivacy act npp 2 1 provided organisation must use disclose personal information individual purpose secondary purpose primary purpose collection unless f organisation reason suspect unlawful activity may engaged us discloses personal information necessary part investigation matter reporting concern relevant person authority term use defined theprivacy act however theguidelines national privacy principlesissued office federal privacy commissioner september 2001 explain use personal information refers handling personal information within organisation guideline apps replaced npps 12 march 2014 explain organisation us personal information example access read personal information npp 4 required organisation take reasonable step protect individual personal information misuse loss unauthorised access modification disclosure npp4 replaced app 11 imposes similar obligation organisation protect personal information app 11 1 12 alleged breach npp 2the complainant alleges breach npp 2 basis cba improperly used disclosed personal information principal employee mia complainant contends cba cannot rely exception act 13 cba dispute disclosed complainant personal information principal employee contends disclosure breach npps 14 cba initially contended principal accessed complainant commsee profile course complaint investigation cba submitted access report oaic purported support contention 15 however course complaint investigation complainant submitted evidence oaic supported position employee also accessed commsee profile complainant evidence appeared show copy access report submitted cba incomplete 13 march 2015 oaic sought explanation cba omitted information relevant complaint investigation providing incomplete access report 13 march 2015 cba advised oaic administrative error occurred preparing access report part access report inadvertently missed cba provided revised copy access report time cba also conceded employee addition principal fact accessed complainant commsee profile access report 16 record principal accessed complainant profile 15 june 2011 1 july 2011 4 july 2011 14 july 2011 2 august 2011 14 september 2011 access report record employee accessed complainant profile 28 june 2011 29 june 2011 20 september 2011 17 access report record multiple instance access complainant customer profile date listed note complainant contends revised access report also incomplete unreported access additional listed 18 accept revised access report evidence principal employee accessed complainant commsee profile fwc proceeding cba contends access use information consistent legitimate cba business purpose therefore unauthorised access use might lead breach national privacy principle 2 19 complainant alleges access improper cba restricted mia access customer profile period fwc proceeding principal regard note 14 july 2011 principal sent email cba requesting complainant loan removed mia loan book reason would prefer managing relationship moving forward may conflict interest 20 apparent number access occurred subsequent date initially complainant subsequently oaic cba given various reason addressing view access listed 35 36 interference complainant privacy specifically cba said access management complainant time non performing loansfor reason lendingin accordance mia service agreement maintain continuous client relationship including client maintenance service addressing general product enquiry product introduced cbafor purpose investigating suspected unlawful activity andmade relation investigation alleged fraud note cba response complaint inconsistent cba acknowledged fact 21 response cba reason complainant submits relation management complainant loan neither principal staff responsible managing non performing loan handled another division bank hardship area regular contact l worked get account back order client arrangement place regular contact hardship area need contacted account viewed managed relation lending maintaining continuous client relationship given legal dispute principal directly would never contacted either staff maintenance service product enquiry banking matter however interaction show cba staff contact call centre local branch relation investigating fraud unlawful activity given bank number department sic could investigate activity principal really appropriate person conduct investigation complainant also submits email principal director mia director dated 19 september 2011 note email principal discus sued preference see complainant go fraud lose property commenting least principal wife staff proud final submission oaic 22 cba set background finding investigation circumstance surrounding principal employee accessing complainant commsee profile cba submits investigation show principal access 15 june 2011 4 july 2011 14 september 2011 made relation assessing complainant home loan application provision information cba group security principal prepared cover letter file relating complainant salary income relevant period able establish clear link principal access 1 july 2011 first employee unable recall accessed profile relevant date however cba investigation revealed employee accessed profile 60 client two day issue cba able contact second employee cba submits first employee access consistent review report follow performance account suggests complainant singled second employee access appear relate either review arrears account part investigation potential fraudulent conduct examined relevant cba policy effect 2011 cba external privacy policy stated personal information may also used monitoring evaluating product service gathering aggregating information statistical prudential actuarial research purpose assisting customer query andtaking measure detect prevent credit loss apparent primary purpose cba collection customer personal information allow cba staff authorised user effectively manage customer banking business including protective purpose loss prevention satisfied primary purpose collection would include review account arrears investigation potential fraudulent conduct cba interfered complainant privacy principal employee accessed commsee profile purpose reviewing account arrears part investigation potential fraudulent conduct event way operation exception npp 2 1 f cba interfered complainant privacy commsee profile accessed necessary part investigation unlawful activity throughout complaint investigation cba maintained position access something reviewed relating complainant loan access complainant profile compliant national privacy principle 2 23 finding relation alleged breach npp 2 1permitted use primary purposeas discussed 50 using disclosing personal information individual primary purpose managing customer banking business breach npp 2 discussed 47 cba investigation show first employee accessed 60 separate account relevant two day period agree cba appears first employee singled complainant commsee profile agree cba first employee likely accessed complainant commsee profile purpose review report general follow performance account relation second employee access cba unable contact individual however cba said access appears relate either review arrears account part investigation potential fraudulent conduct evidence would suggest second employee direct involvement fwc proceeding given passage time employee uncontactable report indicates employee accessed complainant commsee profile 24 reason satisfied second employee likely accessed complainant commsee profile proper purpose likely primary purpose reviewing complainant loan relation principal access discussed 47 cba submits investigation show principal access related assessing complainant home loan application provision information cba group security effect preliminary investigation relating propriety complainant loan application discussed 44 complainant question whether surrounding circumstance fwc proceeding principal would appropriate person conduct investigation complainant contends cba number internal department could investigate activity agree complainant principal external mortgage agency complainant currently involved fwc dispute would appropriate person conduct investigation particularly given discussed 41 principal identified potential conflict interest 14 july 2011 asked cba remove complainant loan mia loan book case apparent principal continued access complainant commsee profile two month date multiple occasion 14 september 2011 access report record principal access occurred number occasion hour extended period time one access 10 july 2011 lasted three hour given apparently acrimonious relationship principal complainant fwc proceeding evidenced email referred paragraph 45 25 accept principal properly accessing complainant commsee profile occasion time evidence satisfied cba demonstrated balance probability principal access complainant commsee profile primary purpose particular accept principal accessed profile purpose investigating alleged fraud given cba department investigation agree complainant would inappropriate principal involved investigation particularly given nature fwc dispute time principal recognition conflict interest dispute created accept cba submission principal accessed complainant commsee profile primary purpose managing complainant banking business appears unlikely circumstance note particularly cba unable explain least one access 26 agree complainant disclosing personal information principal cba used personal information improper secondary purpose reason satisfied cba improperly used disclosed complainant personal financial information principal gave principal access complainant commsee profile time principal complainant fwc dispute exception npp 2 1 f unlawful activitythe guideline npps explain npp 2 1 f acknowledges one organisation legitimate function investigate report suspected unlawful activity 27 cba contends disclosure permitted npp 2 1 f cba reason suspect unlawful activity engaged disclosing personal information necessary part investigation 28 given finding cba gave principal access complainant commsee profile improper secondary purpose secondary purpose purpose investigating alleged fraud unnecessary consider whether exception npp 2 1 f applied alleged breach npp 4 1the complainant alleges breach npp 4 1 cba failing take reasonable step protect personal information misuse loss unauthorised access modification use disclosure complainant alleges cba take adequate security measure continued allow mia access commsee profile knowledge fwc proceeding potential conflict interest interest principal guideline npps explain n general term organisation discloses personal information release information others outside organisation 29 relation reasonable step npp guideline explain reasonable step secure personal information depend organisation particular circumstance relevant factor include sensitivity personal information organisation holdsthe harm likely result people breach securityhow organisation store process transmits personal information example paper based electronic record andthe size organisation larger organisation greater level security likely needed 30 finding relation alleged breach npp 4 1as discussed 40 throughout privacy investigation cba acknowledged interfered complainant privacy rather maintained position principal access complainant commsee profile consistent cba business purpose cba largest customer base australian bank employ 52 000 people within commonwealth bank group 31 commsee give authorised user access customer financial information given size organisation sensitivity information stored commsee consider minimum cba process place restrict user access commsee profile immediately becomes aware potential conflict interest customer user case principal maintained access complainant commsee profile fact continued access complainant personal financial information period three month subsequent date informed cba potential conflict interest therefore view cba data security practice reasonable instance satisfied cba met obligation npp 4 1 finding damagesi found cba breached npp 2 1 npp 4 1having found complaint substantiated discretion unders 52 1 b iii theprivacy actto award compensation loss damage suffered reason interference privacy section 52 1a state loss damage include injury complainant feeling humiliation suffered complainant guided principle awarding compensation summarised administrative appeal tribunal ineq office australian information commissioner 32 andrummery federal privacy commissioner 33 discussed principle inrummeryin number previous determination including ir nrma insurance insurance australia limited 34 hw freelancer international pty limited 35 also regard amount awarded privacy determination previously summarised iy business service broker pty ltd telechoice 36 iq nrma insurance insurance australia limited 37 economic lossineq office australian information commissioner aat discus damage economic loss awarded restore individual position would sustained wrong getting compensation 38 relevant principle relation causation causation ultimately question common sense experience determined fact case b law causation question identifying legal responsibility lie rather examine cause event scientific philosophical viewpoint policy issue value judgement role play determining whether legal purpose circumstance found causative loss c analysis sufficient test causation although may guide multiple element one sufficient caused loss causation test may considered satisfied one 39 complainant asserts principal benefited least 100 000 misusing access financial information fwc case 40 complainant submitted email director principal dated 5 october 2011 email principal said also happy take loan book would pay 100k complainant legal fee total cost say 130k basis email complainant asserts principal used knowledge financial position fwc settlement negotiation effect settlement 100 000 le would otherwise agreed agree complainant case causal link made clear email principal referring settlement fwc proceeding likewise think said principal accessed complainant commsee profile complainant would position received additional 100 000 similarly view cannot said common sense approach principal access complainant commsee profile caused receive lesser settlement amount fwc proceeding apparent principal access complainant would able negotiate greater settlement figure circumstance satisfied basis awarding compensation economic loss non economic lossthe complainant submits gained 25kgs result ongoing chronic stress quality life suffered significantly disclosure personal information 41 claim live access bank account information transaction would easy cba staff pinpoint location moment even day incident raised concern personal safety still intense screaming nightmare suffered fwc proceeding complainant submitted evidence beyond statement support claim suffered physical effect anxiety nightmare result breach cba however considered given substantial weight statement satisfied manner cba handled complainant personal information caused complainant considerable distress award damage consequently appropriate particular consider principal informed cba 14 july 2011 may conflict interest cba immediately acted restrict access complainant commsee profile also regard type information disclosed cba complainant submitted accept principal access complainant individual bank account transaction previous two year access financial position income expenditure historically near real time consideration factor consider appropriate award complainant 10 000 compensation non economic loss aggravated damagesthe power award damage in 52of theprivacy actincludes power award aggravated damage addition general damage 42 previously made reference two principle provide useful guidance determining whether award warranted 43 aggravated damage may awarded respondent behaved high handedly maliciously insultingly oppressively committing act discrimination 44 manner defendant conduct case may exacerbate hurt injury suffered plaintiff warrant award additional compensation form aggravated damage discussed 17 complainant asks impose penalty cba interference privacy cba providing misleading statement fraudulent falsified document oaic complaint investigation complainant provided extensive submission addressing view cba behaved poorly investigation privacy complaint carefully considered submission unnecessary go submission detail summary complainant seek cba penalised way dealt complaint note complainant initially sought either copy access report alternatively assurance principal access commsee profile response initial complaint cba response brief letter senior legal counsel provide access address substance complaint view would preferable cba sought resolve complainant concern first instance note cba inconsistent response complainant oaic continues deny breached npps also note cba provided oaic potentially misleading document course privacy investigation partial access report accept cba approach privacy investigation caused complainant additional work delay frustration additional work delay frustration likely caused complainant distress however consider way cba conducted case overall high handed malicious insulting oppressive overall consider cba behaviour inappropriate justify award aggravated damage determinationi declare accordance withs 52 1 b b theprivacy actthat cba complainant complaint substantiatedthe cba breached npp 2 improperly disclosing personal information complainant principalthe cba breached npp 4 failing take reasonable step protect complainant personal information misuse declare accordance withs 52 1 b ii theprivacy actthat cba must issue written apology complainant within six week determination acknowledging interference complainant privacy declare accordance withs 52 1 b ia cba must review information handling policy particularly respect access customer information acknowledged potential conflict interest andreport back within 6 month finding review declare accordance withs 52 1 b iii complainant entitled 10 000 non economic loss suffered result cba interference privacy timothy pilgrimaustralian privacy commissioner25 november 2016review rightsa party may apply unders 96of theprivacy act 1988to decision unders 52 1 1a make determination reviewed administrative appeal tribunal aat aat provides independent merit review administrative decision power set aside vary affirm privacy determination application aat must made within 28 day day person given privacy determination 29 2 theadministrative appeal tribunal act 1975 application fee may payable lodging application review aat information available aat website www aat gov au telephoning 1300 366 700 party may also apply unders 5of theadministrative decision judicial review act 1977to determination reviewed federal circuit court federal court australia court may refer matter back oaic consideration find information commissioner decision wrong law information commissioner power exercised properly application court must lodged within 28 day date determination application fee may payable lodging application court information available court website http www federalcourt gov au contacting nearest district registry 1 commonwealth bank mortgage innovation licensee agency business structure contracted commission sale people sell cba financial product information commonwealth bank mortgage innovation agency see http www commbank com au u news medium release 2004 251104 news sale force html 2 complainant complaint dated 1 july 2014 fair work commission fair work australia time complainant fair work matter 3 complainant complaint dated 1 july 2014 4 commonwealth bank commonwealth bank roll new customer service platform tasmania medium release 13 february 2004 http www commbank com au u news medium release 2004 130204 news customer service tasmania html 5 complainant final submission dated 2 june 2016 page 22 6 complainant email cba dated 24 october 2011 advised cba principal accessed commsee profile 27 september 2011 7 complainant email cba dated 24 october 2011 8 letter dated 15 november 2011 9 complainant complaint dated 1 july 2014 10 substance complainant complaint dated 1 july 2014 11 personal information post 12 march 2014 regime defined mean information opinion identified individual individual reasonably identifiable whether information opinion true b whether information opinion recorded material form 12 app 11 1 obliges app entity take reasonable step protect information misuse interference loss app 11 1 unauthorised access modification disclosure app 11 1 b 13 complainant complaint dated 1 july 2014 14 cba submission dated 16 may 2016 15 email 5 january 2015 16 revised resubmitted version 17 revised resubmitted version 18 final submission dated 2 june 2016 complainant contends report missing two day 9 10 july 2011 complainant alleges 22 access occurred 19 letter oaic dated 16 may 2016 20 email principal cba dated 14 july 2011 9 34 21 letter oaic dated 8 february 2016 16 may 2016 22 dated 16 may 2016 23 cba submission dated 13 march 2015 24 20 september 2011 25 discussed 45 26 principal access 1 july 2011 27 guideline national privacy principle page 40 41 28 response 19 december 2014 29 guideline national privacy principle page 28 30 guideline national privacy principle page 44 45 31 commonwealth bank commonwealth bank overviewhttps www commbank com au u company overview html 32 eq office australian information commissioner freedom information 2016 aata 785 33 rummery federal privacy commissioner 2004 aata 1221 32 34 ir nrma insurance insurance australia limited 2016 aicmr 37 97 35 hw freelancer international pty limited 2015 aicmr 86 351 36 iy business service broker pty ltd telechoice 2016 aicmr 44 53 56 37 iq nrma insurance insurance australia limited 2016 aicmr 36 65 69 38 eq office australian information commissioner freedom information 2016 aata 785 41 47 39 eq office australian information commissioner freedom information 2016 aata 785 47 frommarch v stramare e mh pty ltd 1991 hca 12 1991 171 clr 506 40 complainant letter oaic 2 june 2016 41 complainant letter oaic 2 november 2015 42 rummeryand federal privacy commissioner anor 2004 aata 1221 32 43 v wentworthville league club 2001 aicmr 9 50 v veda advantage information service solution limited 2012 aicmr 33 93 bo v aerocare pty ltd 2014 aicmr 37 57 hw v freelancer international pty limited 2015 aicmr 86 379 44 hall v sheiban pty ltd 1989 fca 72 75
Upfal v South Gippsland SC [2008] VCAT 2112 (21 October 2008).txt
upfal v south gippsland sc 2008 vcat 2112 21 october 2008 last updated 28 october 2008victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1177 2008permit application 2007 417catchwordsapplication undersection 77of theplanning environment act 1987 act reviewa decision refusea permit rural living zone dwelling ambit discretion building envelope building work within 100 metre waterway wetland designated flood plain state local planning policy framework zone purpose applicantd upfalresponsible authoritysouth gippsland shire councilrespondentg brewster west gippsland catchment management authority subject land20 yellow brick road fish creekwhere heldmelbournebeforelaurie hewet memberhearing typehearingdate hearing1 september 2008date order21 october 2008citationupfal v south gippsland sc 2008 vcat 2112orderthe decision responsible authority set aside permit application 2007 417 permit granted directed issued land 20 yellow brick road fish creek permit allows construction building construction carrying work within 100 metre waterway wetland designated flood plain accordance endorsed plan subject condition contained appendix 1 laurie hewetmemberappearances applicantmr g brewster appeared behalf appearance west gippsland catchment management authorityfor responsible authorityms p grace town planner beca planningfor respondentsmr j mcdill town planner city consulting pty ltdinformationdescription proposalbuildings work construction dwelling within 100 metre waterway wetland designated flood plain proposed dwelling ground floor area approximately 36 m2and first floor area approximately 18 m2 pier beam construction used nature applicationapplication undersection 77of theplanning environment act 1987 act reviewa decision refusea permit zone overlaysclause 35 03 rural living zonepermissions requiredclause 35 03 5 construct building within 100 metre waterway wetland designated flood plainrelevant scheme policy provisionsstate planning policy framework clause 15 01 protection catchment waterway ground water clause 15 09 conservation native flora fauna clause 19 03 design built form local planning policy frameworkclause 21 municipal strategic statement clause 21 02 clause 21 04 land descriptionthe review site form part rural living subdivision created recent year lot area 1 1 ha battle axe configuration narrow handle providing access wider portion land yellow brick road site rise slightly north west minor tributary golden creek run southern section site dam located golden creek occupies part adjoining lot extends onto review site dilapidated spillway also located review site site located within rural environment consequence recently approved rural living subdivision dwelling developed lot within subdivision subject building envelope define part lot upon building constructed lot subject agreement made undersection 173of theplanning environment act 1987relating protection remnant vegetation aspect agreement affect review site reasonsmr upfal applied council permit construct dwelling located 100 tributary golden creek waterway traverse southern section land known 20 yellow brick road mr upfal commenced construction dwelling prior making application planning permit following enforcement action council construction work ceased planning permit application submitted council notice application required given three objection application received council also referred application department sustainability environment south gippsland water west gippsland catchment management authority wgcma although none authority referral authority application undersection 55of theplanning environment act1987
MCFARLANE v REFFOLD [2022] SADC 31 (16 March 2022).txt
mcfarlane v reffold 2022 sadc 31 16 march 2022 last updated 18 march 2022district court south australia civil appeal master 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 mcfarlane v reffold 2022 sadc 31judgment honour judge dart16 march 2022appeal new trial procedure south australiaappeal district court master master lifted stay execution warrant sale land error part master demonstrated held 1 appeal dismissed 2 appellant pay respondent cost house v king 1936 55 clr 499 considered mcfarlane v reffold 2022 sadc 311 appeal decision master appeal arises proceeding finalised decade ago 2 appellant plaintiff commenced proceeding 7 april 2008 1 appears proceeding finalised 2014 respondent obtained cost order subsequently taxed since time respondent seeking enforce cost order seek selling land andamooka pursuant warrant sale 3 appellant seek prevent sale obtained stay various time prevent sale stay subject appeal made 27 november 2020 appears appellant filed interlocutory application 19 november 2020 interlocutory application raised issue contempt issue raised application master stayed execution warrant 27 november 2020 stay period approximately month appears stay extended thereafter 4 contempt proceeding continued original action might preferable contempt proceeding prosecuted new action action resolved making final order kept alive artificially interlocutory application 5 application relation alleged contempt dismissed judge durrant 11 november 2021 decision subject appeal justice supreme court listed hearing 21 march 2022 6 judge durrant dismissed contempt proceeding respondent asked master lift stay granted 27 november 2020 17 december 2021 master basis judge durrant dealt contempt proceeding original purpose stay allow contempt proceeding dealt application dismissed purpose stay spent 7 principal argument appeal master blumberg lifted stay complaint decision judge durrant wrong circumstance master realised lifted stay 8 misunderstands system court operate judge court dismissed application subject appeal master cannot undertake consideration merit judgment determine whether correct master simply dealing situation application contempt dismissed action finalised 9 decision grant stay lift discretionary court bound appeal decision inhouse v king 2 error must demonstrated unless done court cannot interfere 10 appellant make submission respect error master say realised judge durrant decision wrong therefore lifted stay substance appeal 11 appeal dismissed appellant pay respondent cost 12 dismissal appeal prevent appellant seeking stay hearing supreme court appeal matter judicial officer hearing appeal determine whether stay warranted 1 mcfarlane v reffold dcciv 08 497 2 1936 55 clr 499
Allen v AAI Limited t_as GIO [2023] NSWPICMR 48 (8 September 2023).txt
allen v aai limited gio 2023 nswpicmr 48 8 september 2023 last updated 27 september 2023certificate determination merit reviewercitation allen v aai limited gio 2023 nswpicmr 48claimant joshua alleninsurer aai limited giomerit reviewer terence riaindate decision 8 september 2023catchwords motor accident motor accident injury act 2017 cost reasonable necessary cost schedule 2 1 aa statutory benefit permanent impairment treatment dispute section 3 27 regulated cost damage claim resolved paper correct preferable claimant press payment 50 disbursement claimant submits referable equal amount settled damage claim treatment dispute statutory matter clause 8 10 themotor accident injury regulation 2017 insurer submits disbursement resolved inclusive cost basis damage settlement merit reviewer jurisdiction ass award legal cost permanent impairment dispute permanent impairment application cost dispute cannot referred commission held merit reviewer jurisdiction determine cost dispute connected whole person impairment assessment application without substance matter dispute resolved party proceeding dismissed undersection 54 b thepersonal injury commission act 2020andrule 77 b iv thepersonal injury commission rule 2021 determination made certificateissued undersection 7 13 4 themotor accident injury act 20171 proceeding dismissed reasonsbackgroundthis merit review application respect treatment dispute psychological treatment motor accident injury regulation 2017 schedule 1 part 2 1 regulation professional cost aspect dispute settled claimant press payment 50 disbursement claimed 2262 75 plus gst claimant say disbursement referable equal amount settled damage claim treatment dispute statutory matter cl 8 10 regulation respect alleged disbursement treatment dispute insurer submits disbursement submitted permanent impairment dispute submitted damage claim paid claim settled on23 february 2023 claimant argument submission insurer express discussion whether permanent impairment cost disbursement included damage claim insurer attitude cost disbursement contemplated damage claim resolved inclusive cost basis insurer referred earlier personal injury commission commission decision 1 confirm merit reviewer jurisdiction deal cost dispute arising damage claim claimant submitted merit reviewer jurisdiction regulation respect permanent impairment dispute claimant submitted themotor accident injury act 2017 mai act actually set different cost regime situation existing themotor accident compensation act 1999 mac act earlier motor accident legislation whereby settlement always contemplated inclusive cost approach directed brief submission provided done accordance timetable set teleconference report 7 august 2023 paperssection 52 3 thepersonal injury commission act 2020 pic act provides 3 commission satisfied sufficient information supplied connection proceeding commission may exercise function act enabling legislation without holding conference formal hearing regard procedural direction pic2 determination matter paper document party submission satisfied sufficient information proceed paper without holding conference formal hearing appropriate course circumstance submissionsclaimant submissionstreatment disputethe claimant claim 50 disbursement set invoice attached application basis item relate equally treatment dispute psychological injury component claimant permanent impairment dispute 50 sum 1 131 38 medical assessor samuell determined dispute provided certificate dated 20 september 2022 respect permanent impairment 6 march 2023 respect treatment care following examined claimant 11 august 2022 claimant relied upon totality claimant prior psychiatric treatment medico legal record purpose application dispute medical assessor samuell referred material submitted purpose issuing certificate permanent impairment disputethe claimant submits 8 10 provides recovery cost relation claim statutory benefit section 8 10 provide entitlement recover legal cost mai act section 8 10 merely intended set legal cost recovery provision relate claim statutory benefit section 7 17 act defines medical dispute including dispute claimant insurer medical assessment matter mai act provides schedule 2 cl 2 medical assessment matter medical assessment matter purpose part 7 dispute resolution include degree permanent impairment injured person division 7 5 mai act make provision respect medical assessment including medical dispute schedule 1 regulation provides cost legal service part 1 cl 2 regulation provides maximum cost legal service connection medical assessment division 7 5 act 16 monetary unit maximum 60 monetary unit per claim schedule 2 part 2 go make provision additional cost claim damage regulation make clear distinction cost relation medical dispute cost relating claim damage claimant submits permanent impairment dispute legal cost insurer submits assessed damage assessment cost insurer submissionsschedule 2 1 aa mai act provides merit reviewer jurisdiction ass legal cost aa whether purpose section 8 10 recovery cost expense relation claim statutory benefit cost expense incurred claimant reasonable necessary insurer submits merit reviewer jurisdiction ass award legal cost permanent impairment dispute 8 10 mai act empowers merit reviewer consider legal cost statutory benefit claim cost relation permanent impairment wpi application assessed damage assessment stage pursuant 7 37 mai act much way 1999 scheme recovery ma dispute legal cost operated damage claim settled permanent impairment application cost dispute cannot referred commission claimant submits regulation distinguishes cost relation medical dispute cost relating damage however failed identify relevant authority support allegation cost permanent impairment dispute arises independently assessment damage merit reviewer jurisdiction ass award legal cost permanent impairment dispute provision schedule 2 act prescribes merit review matter dispute relation cost permanent impairment dispute establish entitlement damage non economic loss claimant failed address fact 8 10 mai act relates expressly cost statutory benefit claim non economic loss head damage statutory benefit legal cost disbursement connected damage claim dealt 7 37 empowers member ass cost damage claim resolved commission damage claim settled dispute cost permanent impairment assessment cannot referred commission insurer maintains application without merit ought dismissed outcomethe cost dispute come capacity merit reviewer accordance schedule 2 cl 1 aa mai act provision empowers determine whether purpose 8 10 cost expense incurred claimant connection statutory benefit claim reasonable necessary section 8 10 1 state 8 10 recovery cost expense relation claim statutory benefit 1 claimant statutory benefit subject section entitled recover insurer claim made reasonable necessary legal cost cost expense incurred claimant connection claim cost expense include cost medical test report schedule 2 cl 1 aa mai act clause merit reviewer would rely resolve cost dispute refers 8 10 empower merit reviewer determine damage claim cost fact medical assessor certificate used one assessment resolve permanent impairment dispute damage treatment dispute cannot change permanent impairment dispute statutory benefit cost dispute also apparent despite claimant submission medical dispute resolved claimant entitlement non economic loss disbursement offered part damage settlement mean disbursement resolved part damage claim disbursement cost resolved totally damage claim settled inclusive cost basis section 7 37 allows commission assessing damage also ass claimant cost including cost legal service fee medico legal service matter disbursement schedule provided insurer damage negotiation aspect legal cost resolved damage dispute settled section 7 37 apply cost dispute proceeding assessing damage division 7 6 mai act find jurisdiction determine cost dispute connected whole person impairment assessment application without substance matter dispute resolved party proceeding dismissed accordance 54 b pic act rule 77 b iv commission rule 1 veli v aai limited aami 2021 nswpicmr 50 foroosh v qbe insurance australia limited 2022 nswpicmr 57
The Registrar v The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch [1996] WAIRComm 21 (2 February 1996).txt
registrar v construction mining energy timberyards sawmill woodworker union australia western australian branch 1996 waircomm 21 2 february 1996 decision 1325 ofwestern australian industrial relation commissionindustrial relation act 1979the registrar applicant construction mining energy timberyards sawmill woodworker union australia western australian branch respondent 1325 1995 honour president 2 february 1996p j sharkeyreasons decisionthe president given extemporaneously hearing matter 22 january 1996 edited examinedrule 6of respondent organisation rule provides termination membership effected three month date union receives written notice intention resign face 64a theindustrial relation act 1979 amended hereinafter referred act provides resignation membership take effect day notice resignation served organisation later date specified notice also satisfied rule 6 requires addition three month notice termination membership notice valid unless member financial expiration three month notice accompanied payment least three month contribution provision contrary inconsistent 64b act provides follows 1 period respect asubscription paid organisation person membership organisation expires b subscription continue orrenew membership paid organisation within 3 month expiry membership end operation subsection end 3 month period 2 subsection 1 apply themembership already ended section 64a rule organisation see also 64a act therefore satisfied rule 6 respondent organisation rule contrary inconsistent 64a 64b act make following order issue minute 1 declare rule 6 rule abovenamed respondent organisation contrary inconsistent 64a 64b act 2 said rule 6 said rule abovenamed respondent organisation hereby disallowed 22 january 1996 appearance m j h smith counsel behalf theapplicant m mactiernan behalf therespondent
Geoffrey William Vines v Australian Securities & Investments Commission [2007] NSWCA 75 (4 April 2007).txt
geoffrey william vine v australian security investment commission 2007 nswca 75 4 april 2007 last updated 26 october 2009new south wale court appealcitation geoffrey william vine v australian security investment commission 2007 nswca 75this decision amended please see end judgment list amendment file number 40490 06hearing date 10 16 17 november 2006judgment date 4 april 2007parties geoffrey william vine appellant australian security investment commission respondent judgment spigelman cj santow ja ipp jalower court jurisdiction supreme court equity divisionlower court file number 3138 2001lower court judicial officer austin jlower court date decision 22 august 2005lower court medium neutral citation asic v vine 2005 nswsc 738asic v vine 2005 nswsc 1349asic v vine 2006 nswsc 760counsel b oslington qc andrew bell sc appellant robb qc r beech jones sc e collins respondent solicitor geoffrey pike sparke helmore appellant georgina hayden asic respondent catchword corporation management administration duty liability officer corporation statutory duty care diligence standard care contravention statutory provision equivalent civil standard s232 4 corporation lawcorporations management administration duty liability officer corporation statutory duty care diligence statutory duty set s232 4 corporation law duty owed corporationcorporations management administration duty liability officer corporation procedural fairness informed context civil penalty proceedingscorporations management administration duty liability officer corporation s1317 s1318 corporation act appellate intervention discretionary judgmentsprocedure judgment order effect delay delivering judgment legislation cited company act 1958 vic s107companies nsw code ss229 1 229 7 corporate law reform act 1992corporations law 1991 ss232 4 232 11 232 8 670a 1001a 1317ea 1317eb 1317ed 1317fa 1317gf 1317gh 1317 ja 1317 hb 1317hd 1317ja 1318 1324uniformcompanies act 1961 s124 1 case cited adler v asic 2003 nswca 131 2003 46 acsr 504akerele v king 1943 ac 255allied pastoral holding pty ltd v commissioner taxation 1983 1 nswlr 1amalgamated television service pty ltd v marsden 2002 nswca 419amp general insurance ltd v victorian workcover authority 2006 vsca 236andrews v dpp 1937 ac 576australian security commission v gallagher 1993 11 war 105asic v adler 2002 nswsc 171 2002 41 acsr 72asic v maxwell 2006 nswsc 1052 2006 59 acsr 373asic v vine 2003 nswsc 1116asic v vine 2005 nswsc 738asic v vine 2005 nswsc 1349asic v vine 2006 nswsc 760awa limited v daniel deloitte haskins sell 1992 7 acsr 759banque commerciale sa en liquidation v akhil holding limited 1990 169 clr 279blackburn v allianz australia insurance ltd 2004 nswca 385 2004 61 nswlr 632briginshaw v briginshaw 1938 hca 34 1938 60 clr 336browne v dunn 1893 6 r 67buller v black 2003 nswca 45 2003 56 nswlr 425byrne v baker 1964 vicrp 57 1964 vr 443callaghan v queen 1952 hca 55 1952 87 clr 115clout v hutchinson 1950 nswstrp 27 1950 51 sr nsw 32coal allied operation pty ltd v airc 2000 hca 47 2000 203 clr 194dabholkar v king 1948 ac 221daniels v anderson 1995 37 nswlr 438dare v pulham 1982 hca 70 1982 148 clr 658darvall v north sydney brick tile co ltd 1987 16 nswlr 212clout v hutchison 1950 nswstrp 27 1950 51 sr nsw 32figliuzzi v yonan 2005 nswca 290flower hart v white industry qld pty ltd 1999 fca 773 1999 87 fcr 134gould v mount oxide mine limited liq or 1916 hca 81 1916 22 clr 490gpg australia trading pty ltd v gio australia holding pty ltd 2001 fca 1761greek herald pty ltd v nikolopoulos 2002 54 nswlr 165house v king 1936 hca 40 1936 55 clr 499leotta v public transport commission new south wale 1976 50 aljr 666martin v rowling 2005 qca 128mercer v commissioner road transport tramway nsw 1936 hca 71 1936 56 clr 580mernhard v salmon249 ny 458 1928 monie v commonwealth australia 2005 nswca 25murphy v overton investment pty ltd 2002 fcafc 129neat holding pty limited v karajan holding pty limited 1992 hca 66 1992 67 aljr 170norbis v norbis 1986 hca 17 1986 161 clr 513palmer v dolman 2005 nswca 361permanent building society liq v wheeler 1994 14 acsr 109perpetual trustee company ltd v khoshaba 2006 nswca 41provident international corporation v international leasing corporation 1969 1 nswlr 424r v bateman 1925 19 crim app r 8r v birks 1990 19 nswlr 677r v 1984 3 nswlr 29r v maxwell 1998 217 alr 452r v minister immigration multicultural indigenous affair ex parte lam 2003 214 clr 1r v white 1951 52 sr nsw 188re city equitable fire insurance co 1925 ch 407re hih insurance ltd prov liq asic v adler 2002 nswsc 171 2002 41 acsr 72re property force consultant pty ltd 1995 13 aclc 1051rich v australian security investment commission 2004 hca 42 2004 220 clr 129russo v aiello 2003 hca 53 2003 215 clr 643seymour v australian broadcasting commission 1977 19 nswlr 219sheahan v verco 2001 sasc 91singer v berghouse 1994 181 clr 207thomas v van den yssel 1976 14 sasr 205townsville city council v chief executive department main road 2005 qca 226vrisakis v australian security commission 1993 9 war 395warren v coombes 1979 hca 9 1979 142 clr 531water board v moustakas 1988 hca 12 1988 180 clr 491whitlam v australian security investment commission 2003 nswca 183 2003 57 nswlr 559wyong shire council v shirt 1980 hca 12 1980 146 clr 40decision 1 appeal judgment austin j asic v vine 2005 nswsc 738 allowed part2 declaration 6 8 9 10 11 set aside3 appeal dismissed respect declaration 1 2 3 4 5 74 appeal judgment austin j asic v vine 2005 nswsc 1349 dismissed5 direct party file submission issue penalty within three week date hereof6 order cost appeal judgment 298 supreme courtof new south walescourt appealca 40490 06spigelman cjsantow jaipp jawednesday 4 april 2007geoffrey william vine v australian security investment commissionin proceeding asic alleged breach s232 4 thecorporations lawby appellant section requires officer corporation exercise care diligence performance duty appellant chartered accountant former auditor chief financial officer gio group director hostile takeover bid gio launched amp limited 1998 appellant general responsibility financial affair gio group undertook specific responsibility respect gio response takeover co ordinating work due diligence committee set purpose alleged contravention related calculation communication concerning profit forecast year 1998 1999 included profit forecast reinsurance division gio insurance ltd gio gio exposed significant claim result hurricane george struck north central america month takeover bid announced consideration impact exposure claim hurricane george profit forecast involved three element magnitude exposure possibility ultimately realised gio obtaining retrocession policy another reinsurer effective protect profit forecast reassessment reserve maintained provide risk gio exposed achieved issue arose period gio preparing part b statement response amp takeover bid conduct mr vine found austin j contravened thecorporations lawcommenced 9 november 1998 continued publication part b statement 16 december 1998 issue inclusion 80 million profit forecast gio gio profit forecast time asic case appellant knew ought known fact led advise improbable company would achieve forecast encompassed within seven contravention profit forecast 9 november 1998 ii report medium release 17 november 1998 iii email 22 november 1998 iv management sign draft part b statement 8 december 1998 v advice due diligence committee 8 december 1998 vi advice auditor 8 december 1998 vii conduct 8 december 1998 appellant sought relief liability s1317ja s1318 thecorporations law appellant asic appealed penalty imposed austin j helda standard negligence 1 per spigelman cj santow ipp jja agreeingthe standard care applicable statutory duty generally similar character respect identification standard care director officer common law duty call higher order negligence established civil penalty regime attach serious consequence finding contravention without additional element seriousness established 134 142 143 146 150 151 587 779 805 rich v australian security investment commission 2004 hca 42 2004 220 clr 129considered city equitable fire insurance co 1925 ch 407 byrne v baker 1964 vicrp 57 1964 vr 443 vrisakis v australian security commission 1993 9 war 395 daniel v anderson 1995 37 nswlr 438explained sheahan v verco 2001 sasc 91 australian security commission v gallagher 1993 11 war 105 awa limited v daniel deloitte haskins sell 1992 7 acsr 759 r v bateman 1925 19 crim app r 8 andrew v dpp 1937 ac 576 akerele v king 1943 ac 255 clout v hutchinson 1950 nswstrp 27 1950 51 sr nsw 32 r v white 1951 52 sr nsw 188 callaghan v queen 1952 hca 55 1952 87 clr 115 dabholkar v king 1948 ac 221 r v 1984 3 nswlr 29referred 2 per spigelman cj ipp ja agreeingthe statutory duty set s232 4 thecorporations lawis duty owed corporation may development law identify duty owed creditor shareholder employee arise case 84 86 805 232 4 based common law duty statutory duty based fiduciary relationship director corporation 85 805 gpg australia trading pty ltd v gio australia holding pty ltd 2001 fca 1761 vrisakis v australian security commission 1993 9 war 395 daniel v anderson 1995 37 nswlr 438 asic v maxwell 2006 nswsc 1052 2006 59 acsr 373referred per santow jathe statutory duty set s232 4 thecorporations lawwhile owed company must accommodated overarching related duty act honestly interest company whole meaning benefit shareholder present future provides perspective judge conduct question context hostile takeover shareholder seek informed choice make whether accept takeover offer want forced sell cheap 580 603 795viii 3 per ipp ja spigelman cj santow ja agreeingthe duty director officer cannot defined without reference nature extent foreseeable risk harm company well prospective benefit conduct question 310 539 600 814 b denial procedural fairness finding outside pleaded case 1 per spigelman cj santow ipp jja agreeingthe context civil penalty proceeding seriousness consequence order sought inform content requirement procedural fairness whether denial procedural fairness occurred finding contravention departs pleaded case must determined context contravention subject fact exists party chosen fight case different basis 55 57 59 586 805 gould v mount oxide mine limited liq or 1916 hca 81 1916 22 clr 490 dare v pulham 1982 hca 70 1982 148 clr 658applied banque commerciale sa en liquidation v akhil holding limited 1990 169 clr 279 leotta v public transport commission new south wale 1976 50 aljr 666considered whitlam v australian security investment commission 2003 nswca 183 2003 57 nswlr 559 adler v asic 2003 nswca 131 2003 46 acsr 504 greek herald pty ltd v nikolopoulos 2002 54 nswlr 165 water board v moustakas 1988 hca 12 1988 180 clr 491 r v minister immigration multicultural indigenous affair ex parte lam 2003 214 clr 1referred 2 departure 12 october 2005 finding pleaded case except respect declaration relating sixth contravention 240 297 301 441 449 478 479 485 535 586 679 706 762 773 805 c denial procedural fairness failure put matter cross examinationper spigelman cj santow ipp jja agreeingwhether rule inbrowne v dunnhas observed matter fact degree determined respect particular contravention however cross examination covered possible contingency context number uncertain variable impractical would oppressive 62 409 588 805 also see 428 r v birks 1990 19 nswlr 677 seymour v australian broadcasting commission 1977 19 nswlr 219 browne v dunn 1893 6 r 67 thomas van den yssel 1976 14 sasr 205 martin v rowling 2005 qca 128 allied pastoral holding pty ltd v commissioner taxation 1983 1 nswlr 1 flower hart v white industry qld pty ltd 1999 fca 773 1999 87 fcr 134 amalgamated television service pty ltd v marsen 2002 nswca 419 townsville city council v chief executive department main road 2005 qca 226referred effect delay delivery contravention judgmentper spigelman cj santow ipp jja agreeingthere substance contention finding contravention compromised delay delivery contravention judgment judgment comprehensive carefully reasoned 26 27 31 588 805 monie v commonwealth australia 2005 nswca 25 r v maxwell 1998 217 alr 452distinguished e relevance briginshawper ipp ja spigelman cj agreeinga serious allegation may proved circumstantial evidence 811 539 briginshaw v briginshaw 1938 hca 34 1938 60 clr 336explained neat holding pty limited v karajan holding pty limited 1992 hca 66 1992 67 aljr 170 palmer v dolman 2005 nswca 361referred contravention 1 first contravention 9 november profit forecastper spigelman cj santow ipp jja agreeingthe appellant contravene statutory duty care diligence making unqualified statement management confidence profit forecast gio board 247 248 670 805 2 second contravention 17 november report medium releaseper spigelman cj santow ipp jja agreeingnotwithstanding fact purpose report medium release advise market appellant conduct contravene statutory duty failing provide information basis profit forecast computed 316 317 679 691 805 3 third contravention 22 november emailper spigelman cj santow ipp jja agreeingit negligent appellant fail include email qualification found necessary austin j respect assumption profit forecast based 359 360 366 697 700 805 4 fourth contravention management sign 8 decemberper spigelman cj ipp ja agreeing santow ja dissentingthe appellant contravened duty care diligence signed management sign failed take positive step advise due diligence committee basis assumption underlying profit forecast 451 453 456 458 460 711 730 733 736 750 759 794 805 874 appellant failed take positive step role responsibility required taken 412 need identify event indicating estimate checked matter 446 449 451 453 per ipp ja spigelman cj agreeingthere warning signal would lead reasonable person position appellant take step verify mr fox advice 419 452 863 866 per santow jaabsent ground suspicion appellant entitled continue rely mr fox estimate exposure hurricane george accordance reporting relationship place required advise due diligence committee basis assumption underlying forecast aware 728 729 734 5 fifth contravention advice due diligence committee 8 decemberper spigelman cj ipp ja agreeing santow ja dissentingthe appellant contravened duty care diligence supported integrity gio profit forecast due diligence committee reason given respect contravention 4 481 489 490 763 764 795 805 874 6 sixth contravention advice auditor 8 decemberper spigelman cj santow ipp jja agreeingthe finding austin j depart pleading relevant test finding party deliberately chosen fight case different basis met asic abandoned cross appeal declaration accordance pleading made 506 515 768 805 dare v pulham 1982 hca 70 1982 148 clr 658 gould v mount oxide mine limited liq or 1916 hca 81 1916 22 clr 490applied 7 seventh contravention conduct 8 decemberper spigelman cj ipp ja agreeing santow ja dissentingthe appellant contravened duty care diligence period part b issued failing give attention whether gio profit forecast would achieved 537 538 774 775 794 805 874 honesty defence 1 per spigelman cj ipp ja agreeing santow ja expressing viewno basis made interfering trial judge discretionary judgment 556 557 560 805 2 per spigelman cj ipp ja santow ja agreeingthe statute requires value judgment prior exercise discretion may invoke le restrictive test appellate intervention 572 556 558 802 805 warren v coombes 1979 hca 9 1979 142 clr 531 house v king 1936 hca 40 1936 55 clr 499considered norbis v norbis 1986 hca 17 1986 161 clr 513 singer v berghouse 1994 181 clr 207 coal allied operation pty ltd v airc 2000 hca 47 2000 203 clr 194 russo v aiello 2003 hca 53 2003 215 clr 643 buller v black 2003 nswca 45 2003 56 nswlr 425 blackburn v allianz australia insurance ltd 2004 nswca 385 2004 61 nswlr 632 figliuzzi v yonan 2005 nswca 290 perpetual trustee company ltd v khoshaba 2006 nswca 41 murphy v overton investment pty ltd 2002 fcafc 129 amp general insurance ltd v victorian workcover authority 2006 vsca 236cited 3 per spigelman cj ipp ja agreeing santow ja dissentingon le restrictive test given seriousness contravention relief granted 561 573 802 805 4 per santow jarelief granted given nature contravention error judgment flagrant involving dishonesty appellant part three seven contravention upheld appeal discounting cumulative factor relied austin j 799 802 supreme courtof new south walescourt appealca 40490 06spigelman cjsantow jaipp jawednesday 4 april 2007geoffrey william vine v australian security investment commissionjudgmenttable contentsparagraphsspigelman cj 1i introduction 2ii ground appeal1 overview202 delay263 departure pleaded case324 failure cross examine60iii standard care 631 austin j analysis standard care662 austin j analysis higher standardsubmission883 statutory duty case law984 standard care crime1175 statutory standard1286 statutory regime1387 conclusion standard care142iv pre contravention events1 appellant role1532 development 80 million forecast1683 extent exposure hurricanegeorges1754 retrocession cover2045 excess reserves217v first contravention profit forecastof 9 november 228vi event 9 november 17 november1 31 october results2502 draft four month results2583 hurricane george register2604 mr vine knowledge2655 american agreement2696 due diligence documents276vii second contravention report andmedia release 17 november 1998280viii third contravention email of22 november 1998 319ix development part b1 federal court judgment3682 american agreement3693 maintaining profit forecast3764 ddc meeting 6 december3835 event 7 december387x part b contraventions1 part b statement3962 position 8 december4023 appellant knowledge 8 december414xi fourth contravention managementsign draft part b 421xii fifth contravention advice duediligence committee 467xiii sixth contravention advice theauditor 492xiv seventh contravention conduct after8 december 1998 517xv reason ipp ja 539xvi honesty defence 540xvii penalty appeal cross appeal 575xviii order 577santow jaxix introduction 579xx statutory duty care diligencein broad application 5911 elaboration role responsibility mr vines6202 outline salient event commentary6283 summing up661xxi contraventions1 first contravention profit forecast of9 november 19986632 second contravention report mediarelease 17 november 1998673a conclusion6913 third contravention email of22 november 1998 6924 fourth contravention managementsign 701a reliance mr vine mr fox723b recapitulation726c conclusion7605 fifth contravention advice duediligence committee 8 december 19987616 sixth contravention advice auditor8 december 19987657 seventh contravention conduct 8december 19987698 contravention whole perspective7789 summation795xxii ought mr vine fairly excused 796xxiii overall conclusion 804ipp jaxxiv issue addressed reason 805xxv relevance ofbriginshaw808xxvi potential harm gio arising frommisleading profit forecast itsrelevance mr vine duty 814xxvii profit forecast part bstatement arrived 824xxviii mr vine responsibility profitforecast835xxix fact known mr vine relating theaccuracy profit forecast 839xxx warning signal 863xxxi conclusion 8751spigelman cj introduction2 appellant appeal judgment justice austin found contravened s232 4 thecorporations law preserved force subsequent legislation proceeding civil penalty instituted respondent asic 3 section 232 4 provided exercise power discharge duty officer corporation must exercise degree care diligence reasonable person like position corporation would exercise corporation circumstance 4 honour rejected case respondent number respect respect honour upheld case made finding contravention appellant appeal 5 convenient refer honour first judgment contravention judgment asic v vine 2005 nswsc 738 55 acsr 617 6 judgment also dealt contravention two officer corporation proceeding heard together proceeding appellant 7 appellant sought relief liability s1317ja s1318 thecorporations law section provide relevantly 1317ja 2 eligible proceeding person appears court person may contravened civil penalty provision person acted honestly b regard circumstance case including applicable connected person appointment officer corporation apart 5 7body person ought fairly excused contravention court may relieve person either wholly partly liability person would otherwise subject might otherwise imposed person contravention 1318 1 civil proceeding person section applies negligence default breach trust breach duty capacity person appears court proceeding taken person may liable respect negligence default breach person acted honestly regard circumstance case including connected person appointment person ought fairly excused negligence default breach court may relieve person either wholly partly liability term court think fit 8 honour rejected defence second judgment asic v vine 2005 nswsc 1349 65 nswlr 281 appellant appeal decision convenient refer honesty judgment 9 save respect aspect appeal honesty judgement directly relevant ground appeal however respondent often referred useful summary contravention judgment without objection furthermore appellant expressly relied without objection elaborate finding contravention judgment limited reference honesty judgment principal appeal circumstance appropriate 10 third judgment honour considered penalty honour made eleven declaration contravention imposed fine 100 000 disqualified mr vine acting director three year asic v vine 2006 nswsc 760 58 acsr 298 convenient refer penalty judgment appellant appeal penalty imposed upon 11 mr vine chief financial officer gio australia holding ltd gio company listed australian stock exchange engaged insurance 25 august 1998 takeover bid share gio announced another insurance company amp limited hostile takeover bid resisted board gio 12 required thecorporations law gio due course published part b statement 16 december 1998 part b statement contained profit forecast year 1998 1999 250 million gio group amount included forecast profit 80 million gio reinsurance division gio insurance ltd subsidiary gio 13 readily appreciated profit forecast considerable significance context hostile takeover battle part b statement accompanied number document pertinent specific contravention refer document context dealing contravention 14 proceeding focused validity 80 million profit forecast gio division exposed significant claim result hurricane george struck puerto rico united state virgin island moved gulf mexico made land fall mississippi period 21 28 september 1998 month takeover bid announced occurred period gio preparing part b statement 15 conduct found contravened thecorporations lawon part mr vine commenced 9 november 1998 continued indeed publication part b statement 16 december 1998 principal issue respect alleged contravention whether mr vine contravened statutory duty care diligence connection profit forecast gio reason impact hurricane george gio appropriate regard matter relating making profit forecast gio group 16 relevantly three element consideration purpose determining profit forecast gio element varied time time 17 first element magnitude exposure hurricane george hurricane occurred final size claim gio policy would respond could estimated 18 second element possibility gio obtaining policy another reinsurer known retrocession policy would enable assert relevantly accounting purpose transferred risk exposure hurricane george exceeding amount 25 million taken account computation 80 million gio profit forecast 19 third element reassessment reserve made way provision risk gio exposed reserve gio exposure professional negligence insurance referred mipi argot insurer used terminology unders over analysis extant reserve would assessed made inadequate provision unders others made excessive provision over mipi accepted one over adjustment needed made ii ground appeal1 overview20 amended notice appeal contains 34 separate ground deal ground series heading subheading encompass following matter failure adopt higher standard negligence ii denial procedural fairness making finding outside pleaded case iii denial procedural fairness failure put matter appellant way cross examination iv effect delay delivery contravention judgment v failure deal full range submission made behalf appellant vi challenge finding fact including assertion finding supported evidence finding made constituent element implication rejection constituent element together specific error finding judgment 916 vii challenge finding contravention consider following subheading contravention dealt order chronologically rather numbered pleading profit forecast 9 november 1998 first contravention report medium release 17 november 1998 second contravention email 22 november 1998 third contravention management sign draft part b 8 december 1998 fourth contravention advice due diligence committee 8 december 1988 fifth contravention advice auditor 8 december 1998 sixth contravention conduct 8 december 1998 seventh contravention 21 noted number contravention found honour occurred 8 december 1998 date content part b statement finalised sting contravention found austin j concerned fact statement made basis 80 million profit forecast gio time appellant knew ought known fact led advise improbable company would achieve forecast 22 substance single course conduct 8 december constituted series discreet act consider noted following sequence execution appellant document headed management sign purpose inclusion part b statement b advice due diligence committee board ddc purpose board approval part b statement c advice price waterhouse cooper security pwc purpose company report included part b statement 23 matter set v vi vii par 20 failure deal submission challenge finding fact finding contravention best considered context contravention set honour factual finding determine overall context finding fact time first contravention thereafter consider contravention chronologically subheading indicated section indicating development contravention 24 respect assertion certain submission dealt note honour express observation outset judgment although judgment long set expressly dealt every written oral submission cfdigi tech australia ltd v brand 2004 nswca 58 282 291 done best consider every submission confined express reason judgment finding fact submission regard material sense significant decision making process seecustoms excise commissioner v 2002 ewca civ 1039 2003 2 er 736 753 4 anddigi techat 284 25 honour approach entirely appropriate submission made authority honour referred inapplicable 2 delay26 appellant relies fact 16 month elapsed conclusion oral submission delivery contravention judgment reliance placed principle applied inr v maxwell 1998 217 alr 452andmonie v commonwealth australia 2005 nswca 25 63 nswlr 729 observe first careful detailed comprehensive judgment austin j appeal case suggest even glimmer comparison either judgment dealt inmaxwellandmonie indeed throughout appellant submission frequent reference made care cogency honour analysis reasoning whenever suit appellant case 27 event appellant reduced submitting whilst honour careful detailed analysis fact full closely reasoned court hold ultimate finding contravention regarded different way 28 course submission appellant relied document produced austin j contravention judgment handed setting 147 correction original judgment almost correction typographical see basis drawing kind adverse inference number context judgment size complexity 147 correction upon appellant relied written submission included significant number omitted comma trifling spelling error missing letter number typescript occasionally inappropriate capitalisation even number 147 correction respondent submitted something like 0 08 percent number word contravention judgment 29 proceeding involved three interrelated case three different individual reason case mr vine one part judgment 56 day hearing 4 740 page transcript around 3 000 page original tender bundle 800 page written submission final judgment consists 1 495 paragraph 292 page lengthy delay expected case magnitude case eithermaxwellormonie 30 event submission reply appellant advanced limited number proposition abandoning number matter emphasised original written submission first said case required greater scrutiny judgment come appeal court given appeal appropriate scrutiny also submitted court readily assume trial judge took account evidence submission expressly referred judgment court habit readily assuming anything character appellant submission effect honour failed deal certain submission made inappropriate factual finding failed make appropriate factual finding dealt merit context respective contravention honour ultimately found 31 length time elapsed delivery final judgment much longer anyone would wished however case involved considerable level complexity numerous factual issue needing decided three separate proceeding heard together furthermore court position allow trial judge concentrate single case exclusion case austin j would interrupted frequently course preparing judgment matter event honour prepared judgment deal comprehensively full range issue sensitive detailed thorough manner reliance placed delay list typographical error appellant entirely unwarranted 3 departure pleaded case32 appellant submits none trial judge finding contravention fall within pleaded case appellant submits finding contravention materially substantially prejudicially outside pleading appellant submits case departure pleading constitute denial procedural fairness submits gravity consequence attend civil penalty proceeding significance departure pleaded case magnified 33 respondent asserts honour finding contravention depart charge pleaded acknowledges trial developed certain particular conduct emerged within scope pleading properly understood particular became subject finding austin j appellant full opportunity deal 34 accordingly asic submits insofar particular either within scope pleading constituted particular matter subject pleading denial procedural fairness appear charge pleaded took form identifying act together generally particular mr vine state knowledge appear matter complaint made particular knowledge therefore departure pleaded case even appears case particular matter sought received issue procedural fairness could still arise necessary ass whether denial procedural fairness respect 35 appellant relied particularly following passage judgment inbanque commerciale sa en liquidation v akhil holding limited 1990 169 clr 279 36 joint judgment mason cj gaudron j honour said 286 function pleading state sufficient clarity case must met gould birbeck bacon v mount oxide mine ltd liq 1916 hca 81 1916 22 clr 490at p517 per isaac rich jj way pleading serve ensure basic requirement procedural fairness party opportunity meeting case incidentally define issue decision rule general relief confined available pleading secures party right basic requirement procedural fairness accordingly circumstance case may decided basis different disclosed pleading limited party deliberately chosen different basis determination respective right liability see e g browne v dunn 1893 6 r p76 mount oxide mine 1916 hca 81 1916 22 clr 490at pp517 518 37 furthermore brennan j said 288 pleading bring party issue court function determine issue grant relief founded pleading unless party allowed alter issue trial without amendment pleading see observation inlondon passenger transport board v moscrop 1942 ac 332at pp340 347 351 356 rule clearly laid judgment court indare v pulham 1982 hca 70 1982 148 clr 658at p664 apart case party choose disregard pleading fight case issue chosen trial relief may granted party must founded pleading gould birbeck baconsupra pp517 518 sri mahant govind rao v sita ram kesho 1898 lr 25 ind app 195at p207 38 appellant also relied observation court inwhitlam v australian security investment commission 2003 nswca 183 2003 57 nswlr 559at 603 court said 164 opinion finding breach 232 2 open way case put respondent charge serious misconduct formulated precision neither two possibility raised canvassed case either pleading twelve day hearing primary judge even advanced respondent either notice contention appropriate way relation natural justice afforded appellant would circumstance right court consider rule upon new basis formulated two possibility 165 circumstance conclusion must even appellant found deliberately failed sign poll paper could way case pleaded conducted found breach 232 2 accordingly think would appropriate order new trial issue 39 response submission respondent referred observation giles ja mason p beazley ja agreed inadler v asic 2003 nswca 131 2003 46 acsr 504 honour said referring tobanque commerciale v akhil holding respect function pleading 139 function foundation procedural fairness mean whether matter within outside asic pleaded case must regard pleading whole approached undue pedantry 40 giles ja went repeat observation mason p ingreek herald pty ltd v nikolopoulos 2002 54 nswlr 165 respect pleading defamatory imputation honour said 18 pleader task capture essence specific matter imputed relation plaintiff necessarily question degree problem arises solution usually found consideration practical justice rather philology per gleeson cj indrummoyne municipal council v australian broadcasting corporation 1990 21 nswlr 135at 137 area pleading serve end justice must permitted assume independent self referential function pleaded imputation remains statement plaintiff alleges publication give reader viewer understand per mahoney ja insingleton v ffrench 1986 5 nswlr 425at 428 straitjacket although rule procedural fairness place limit upon judge jury capacity enlarge issue 41 inadler v asicgiles ja noted 140 particular serve function reason straitjacket honour went refer todare v pulham 1982 hca 70 1982 148 clr 658 refer giles ja concluded 141 underlying regard procedural fairness material whether concluded pleaded particularised case fleshed evidence open party 42 recognised two judgment frombanque commerciale v akhil holdingsthat quoted exception described general rule case confined pleading exception characterised one party deliberately chosen different basis determination issue two high court authority referred proposition aregould v mount oxide mine limited liq or 1916 hca 81 1916 22 clr 490anddare v pulhamsupra respondent relies proposition pertinent set reason high court two case 43 inmount oxide minessupra 517 518 isaac rich jj said undoubtedly general rule fair play one resting fundamental principle man ought put loss without proper opportunity meeting case pleading state sufficient clearness case party whose averment function function discharged case presented reasonable clearness want clearness cured amendment particular pleading mean end party fighting legal battle choose restrict enlarge disregard meet issue fairly fought impossible either hark back pleading treat governing area context qualification doubt case must depend proper application principle upon fact laid privy council rule relief founded pleading granted case said lordship substantial matter constitute title party touched though obscurely issue fully put evidence formed main subject discussion decision three court high court right treating case within rule srimahant govind rao sita ram kesho25 ind app 195at 207 44 indare v pulhamsupra joint judgment high court said 664 pleading particular number function furnish statement case sufficiently clear allow party fair opportunity meet gould birbeck bacon v mount oxide mine ltd liq 1916 hca 81 1916 22 clr 490at p517 define issue decision litigation thereby enable relevance admissibility evidence determined trial miller v cameron 1936 hca 13 1936 54 clr 572at pp576 577 give defendant understanding plaintiff claim aid defendant right make payment court apart case party choose disregard pleading fight case issue chosen trial relief may granted party must founded pleading gould birbeck baconat p517 518 sri mahant govind rao v sita ram kesho 1898 lr 25 ind app 195at p297 departure trial pleaded cause action disconformity evidence particular earlier furnished disentitle party verdict based upon evidence particular may amended evidence trial closed mummery v irving pty ltd 1956 hca 45 1956 96 clr 99at pp111 112 127 though failure amend particular accord precisely fact emerged course evidence necessarily preclude plaintiff seeking verdict cause action alleged reliance upon fact actually established evidence leotta v public transport commission nsw 1976 9 alr 437at p446 50 aljr 666at p668 45 last mentioned authority extract isleotta v public transport commission new south wale 1976 50 aljr 666and reference judgment stephen mason jacob ja said 668 pleading amended order make fact alleged particular negligence precisely conform evidence emerged many year past plaintiff fail refused leave amend failure formally apply amendment evidence disclosed case cause action fit determined tribunal fact honour went contrast situation 668 669 amendment would raise fresh issue based different duty care would amend expression course event fact pleaded would conform evidence given 46 course significance observation made context proceeding negligence damage 47 asic submits appellant submission based simplified version way trial conducted submits simple comparison statement claim reason judgment appropriate required order determine whether trial judge correctly addressed issue contested detailed consideration statement claim certain matter 48 asic submission referred expert witness called asic mr hogendijk giving particular attention nature objection appellant made admissibility mr hogendijk evidence detailed cross examination mr hogendijk together evidence chief given appellant cross examination asic placed particular reliance fact appellant object part mr hogendijk evidence issue appeal basis fell outside pleaded case objection including objection relevance objection basis outside pleaded case submission appears correct particular attention drawn detailed cross examination counsel appellant matter said constitute conduct finding contravention 49 asic also drew attention fact two exception submits material submission made written oral submission austin j effect asic submission respect contravention permissible ground one outside pleaded case 50 asic submitted court appellant adopted unduly technical approach function pleading circumstance contravention squarely raised trial 51 many respect honour accepted evidence given appellant reason made finding adverse asic case set pleading particular provided asic absence knowledge case mounted way defence specific example use appellant unders over schedule refer played significant role evidence number respect basis asic submits conclusion appellant denied procedural fairness circumstance given full opportunity heard 52 conclusion asic submission court specific finding contravention made trial judge always formulated term identical asic pleaded contravention capture substance inconsistent specific matter pleaded reflect evidence trial 53 nevertheless significance stage case including evidence given mr vine case asic seek amend pleading particular may advisable context given fact mr vine obliged disclose case evidence close asic case case could modified consistently requirement procedural fairness closed indeed even indictment amended trial sees21of thecriminal procedure act1986
Stevens v The Secretary Department of Transport [2022] NSWPIC 235 (23 May 2022).txt
stevens v secretary department transport 2022 nswpic 235 23 may 2022 last updated 2 june 2022certificate determination membercitation stevens v secretary department transport 2022 nswpic 235applicant john stevensrespondent secretary department transportmember christopher wooddate decision 23 may 2022catchwords worker compensation application lump sum benefit whole person impairment consequence psychological injury whether applicant suffering secondary psychological injury purpose ofsection 65aof theworkers compensation act 1987which ought taken account medical assessor assessing whole person impairment single area dispute agreed party determined paper moon v conmah pty limited kumar v royal comfort bedding pty limited kooragang cement pty limited v bates held respondent discharged onus applicant received secondary psychological injury consequence physical injury allowance made medical assessor secondary psychological injury matter remitted president referral basis determination made 1 applicant suffer secondary psychological injury arising shoulder injury occurred 6 april 2016 employment respondent 2 applicant claim permanent impairment compensation remitted president referral medical assessment determination permanent impairment arising applicant psychological injury deemed date injury accordance application resolve dispute ard 31 july 2017 3 document referred assist assessment include following certificate determination b ard attachment c reply attachment statement reasonsbackground1 applicant mr john stevens lengthy history employment respondent joined incarnation state rail authority nsw progressed role broadly within account payable section respondent enterprise underwent period privatisation early 2000s 2 applicant took role system administrator financial accounting merged freightcorp national rail corporation entity progressing contract position within rail infrastructure nsw appears period stability applicant 3 february 2007 accepted position within purchasing card section railcorp transferred transport nsw around 2012 4 thereafter applicant went series workplace interaction change proved quite stressful causing suffer psychological injury liability accepted respondent 5 addition psychological injury arising several year exposure workplace incident conflict mr stevens also suffered physical injury right shoulder 6 shoulder injury occurred 6 april 2016 7 mr stevens returned work following period convalescence relation surgery involving injury returning work went period stressful interaction 8 mr stevens make claim lump sum compensation reason psychological injury equating 25 whole person impairment 9 respondent contends mr stevens presenting condition function secondary psychological injury consequent upon physical injury sustained 2016 taken account necessitating whole person impairment medical assessor issue determination10 party agree issue determined mr stevens claim referred medical assessor opinion whole person impairment whether suffered secondary psychological injury consequence injury right shoulder 6 april 2016 consequent surgery purpose ofsection 65a 2 theworkers compensation act 1987 procedure personal injury commission11 party attended telephone conference 25 march 2022 m bathgate solicitor appeared applicant mr kreig respondent 12 agreed point difference party whether mr stevens suffering secondary psychological injury pursuant tosection 65aof theworkers compensation act 1987 taken account medical assessment whole person impairment appropriate commission decide matter paper 13 accordingly order made requiring party file submission 14 primary submission respondent reply applicant short submission respondent 15 order also made requiring previously unsigned statement mr stevens executed one bares date 31 march 2022 direct copy previously unsigned lengthy statement latter statement response matter going thesection 65apoint remains unsigned impact reason set propose regard least ordering chronology event oral evidence16 application leave oral evidence cross examination mr stevens lay witness finding reasonsapplicant evidence statement mr stevens17 mr stevens provided two statement lengthy one dated 31 march 2022 supplementary statement remains undated mention objection taken undated statement respondent submission propose refer evidence proceeding although materially alter matter flow various medical report applicant respondent submission refer 18 mr stevens give history might regarded long loyal service respondent 1980s state rail authority various different operating entity applicant sought deny factor may relevant medical history including childhood sexual abuse appears got thing progressed different role respondent although mr stevens date start bullying type behaviour 2008 seems around 2014 thing began significantly go astray workplace ceased employment july 2017 respondent appear seriously contest matter unnecessarily review purpose reason suffice say various interaction senior management colleague applicant found distressing stressful unacceptable mr stevens felt excluded workplace social function received negative comment subordinate employee effect lousy manager terrible job negative criticism say three decade public service encountered conversation fellow staff member type subjected period 19 mr stevens essentially became insecure anxious change occurred workplace became concerned reform chance retaining employment respondent 20 difficulty occurred 2015 around participation user acceptance testing uat program new employee expense system demand made physically attend training session cbd instead normal workplace burwood requirement attend cbd created difficulty mr stevens walk cane result severe arthritis left ankle damaged knee benefit nsw disability parking permanent condition 21 working long hour 2015 diagnosed diverticulitis thing deteriorated throughout rest year dropped project team without explanation found change workplace accident refers totally confused worried reason exclusion task previously included otherwise qualified said frozen job isolated social contact 22 various matter detailed mr stevens substantive statement consistent involved stressful anxiety producing incident 23 shoulder injury sustained 6 april 2016 time mr stevens continuing experience negative workplace event referred mechanic shoulder injury vary evidence commission 1 however issue around would seem respondent point view lifting computer bag placing desk work seems consistent theme 2 24 eventually mr stevens came surgery significant period work throughout 2016 early 2017 attempted return work march 2017 found returned stressor workplace frustrated saw impediment placed way variously denied access database encountered difficulty relation agreeing adjustment pay mr stevens eventually ceased work july 2017 ultimately long period interaction respondent medically retired 2019 received compensation payment respect right shoulder injury applicant medical evidence25 broad overview applicant statement propose unnecessarily dwell medical history outlining applicant treatment relation physical psychological injury focus discrete point difference party dr owen green26 applicant treating doctor dr green note evidence regarding dr green treatment date shortly shoulder injury significantly reference shoulder injury indeed pain arising apart entry record mr stevens way suffering problem pain consequence injury subsequent surgery 27 pointed applicant counsel submission first mention psychological injury dr green note entry 27 september 2016 refers mr stevens pushed work stressing lot politics work union involved 28 reference dr green note consultation mr stevens 10 july 2017 record mr stevens mood influenced chronic pain stress work 3 29 dr green note otherwise consistent recording work related stressor variously 17 october 2017 16 november 2017 6 december 2017 2 january 2018 1 february 2018 dr green record 6 february 2018 thing worse wife state fixated thing frank talk john mh ongoing fighting case think would better drop case consider option feel showing sign paranoia denies 4 30 reference made mr stevens conflict workplace throughout dr green note 2019 noted one reference pain issue mr stevens dr green note reference consistent extend 2019 mr stevens reporting bullied harassed dr russell hinton31 dr green referred mr stevens different health professional including dr david butler psychiatrist adam wiseman psychologist eventually referred dr russell hinton provided series report detailing consultation mr stevens throughout 2018 2019 report record workplace difficulty stressor involved mr stevens negotiating term ongoing employment later retirement respondent stage reference pain shoulder injury report dr ash takyar32 dr takyar seen mr stevens medico legal purpose providing two report solicitor dated 19 march 2021 11 november 2021 report comprehensive regard treating doctor material record matter might relevant mr stevens presentation including childhood sexual abuse detailed history bullying workplace consistent record said date 2007 incident mr takyar refers based mr stevens statement related period identified earlier approximately 2014 july 2017 33 concludes mr stevens ten year history significant bullying harassment course employment cause psychological injury describing extent exist pre existing condition relative remission 34 dr takyar second report regard question put applicant solicitor concerning respondent medico legal opinion dr glen smith effect pain arising shoulder injury constitutes secondary psychological injury regard assessing whole person impairment 35 dr takyar reiterated diagnosis adjustment disorder mixed anxiety depressed mood following workplace bullying harassment feel physical shoulder injury affecting mental state respondent medical evidence36 respondent primarily relies upon report dr glen smith although submission made behalf also referred extract material relied upon applicant 5 37 report dr smith dated 25 february 2018 25 may 2018 20 july 2021 38 respondent also relies opinion m jasmine sproule provided report dated 25 october 2017 dr glen smith39 dr smith taken detailed history record report 25 february 2018 work stressor consistently reported applicant referred statement dr smith also detailed history applicant previous mental health make reference opioid dependence 40 dr smith opines employment factor main contributing factor development mood disorder 41 report 25 may 2018 dr smith detail view impact pain mr stevens shoulder injury psychological injury rightly conceded respondent primary submission regarded dr smith minor contribution 42 allow respondent properly respond mr stevens claim lump sum compensation dr smith saw applicant provided report dated 20 july 2021 consistency history reference physical shoulder injury 43 previously attributed minor role pain shoulder injury dr smith appears place greater emphasis aspect noting mr stevens persistent pain limitation factor stabilised dr smith opinion longer predominant contributing factor distress continues suffer limitation impact mood m jasmine sproule44 m sproule provided report dated 25 october 2017 respondent insurer qbe 45 report significant precisely period mr stevens seeing dr green regular basis 46 time report m sproule seen mr stevens four time commencing july 2017 entirely clear would seem m sproule reporting insurer relation management shoulder injury claim would focus aspect 47 despite m sproule also aware bullying harassment complaint seemingly discussing mr stevens describes chronic pain result previous injury 6 48 m sproule record relation bullying harassment following john report numerous incident work september 2014 present including desputations sic around pain bullying harassment attempting force john position verbal abuse colleague follow management regarding understand john provided qbe extensive record specific workplace incident 7 49 m sproule go record john report circumstance current employment substantial contributed current symptom report frequently ruminating work much anxiety depressed mood focused work situation reasons50 respondent bares onus case steadfastly adhered position expressed insurer section 78 notice mr stevens suffers primary secondary psychological injury 51 pursuant tosection 65a 1 andsection 65a 2 theworkers compensation act 1987mr stevens entitled lump sum compensation respondent demonstrate suffered secondary psychological injury consequent upon physical injury shoulder april 2016 52 noted second statement supplementary statement mr stevens remains unsigned respondent noted annexure reply objected applicant undated unsigned statement page 1 50 ard included proceeding first statement dated lengthy document second statement remains unsigned reference objection taken respondent submission impact reason set 53 noted respondent bear onus establishing condition ofsection 65 satisfied reference made moon v conmah pty limited 2009 nswwccpd 134 respondent establish mr stevens consequential condition accepted injury accepted injury course respondent point view shoulder injury uncontroversial issue whether mr stevens developed consequential condition secondary psychological condition primary psychological reaction workplace stressor already accepted respondent need description feeling time respondent essentially acknowledges paragraph 7 written submission need apsychologicalinjury although respondent need show applicant suffered frompsychiatricsymptoms resulting physical injury 54 necessary respondent prove secondary psychological condition asection 4injury rather secondary psychological injury result accepted shoulder injury kumar v royal comfort bedding pty limited 2012 nswwccpd 83 55 drawing case respondent referred submission matter common sense evaluation causal chain causation test accordance kooragang cement pty limited v bates 1994 nswlr 452 kooragangcement 56 respondent draw attention dr green recording shoulder injury early 6 may 2016 thereafter regular consultation also complaint pain right shoulder 57 reviewing dr green note put higher word reference mr stevens suffering pain shoulder point causing stress distress compounding primary psychological presentation 58 difficulty mr stevens organising return work following shoulder surgery understand respondent saying however difficulty organising return work amount psychological condition also reference applicant ruminating condition ruminating matter constitute psychological injury even understood layman certainly none medical practitioner emphasised exception dr smith point demonstrating psychological injury 59 attention drawn respondent dr sproule opinion quote full respondent submission understand john experienced chronic pain result previous injury possibly led exacerbation anxiety depressed mood conjunction work stressor 60 drew attention fact m sproule treatment mr stevens coincided regular visit dr green applicant counsel quite rightly stressed word possibly quote significant course m sproule also made reference workplace stressor mr stevens reported dispute 61 respondent quite rightly conceded psychiatric symptom reported various treating doctor primarily due workplace interaction however asserted doubt ongoing chronic pain played part applicant ongoing psychiatric presentation reference made applicant taking nine oxycodone table one day evidence psychiatric condition could referable shoulder pain understand doctor take matter far including dr smith 62 applicant counsel noted respondent need go beyond establishing mr stevens may unhappy frustrated noted ruminating condition including pain satisfy diagnoseable psychiatrist condition satisfy appropriate dsmv criterion 63 dr hinton report detail issue work applicant counsel noted one dr hinton report pain limited function consequence shoulder injury relevant factor assessing psychological condition 64 workplace point view seeking return work following shoulder injury applicant experiencing consistent bullying harassment like standard previously worked least mr stevens perspective longer place encountering interaction never lengthy period service respondent 65 opinion m sproule psychologist set detail already noted applicant counsel could put issue chronic pain possibly leading exacerbation mr stevens anxiety depressed mood conjunction work stressor 66 overwhelming preponderance evidence include history thorough consistent favour argument applicant respondent failed discharge onus mr stevens may destressed ruminating applicant counsel correctly note evidence established psychological condition consequent upon secondary injury 67 respondent reply applicant submission suggests approach adopted applicant flawed law applying kooragang cement principle respondent need establish mr stevens suffered injury defined bysections 4and9aof theworkers compensation act 1987 enough mr stevens suffers symptom result injury 68 easier proposition make context physical injury difficult 69 secondary consequential condition psychological condition rumination sadness hardly constitutes secondary condition rather sadness rumination response pain shoulder highest seen balance medical evidence manifestation response stressor mr stevens experienced lengthy period time change applicant seeking suggest suffering significant ongoing pain based history taken doctor lead conclusion caused seek assistance psychological treatment subsequently provided m sproule dr hinton others note dr hinton report conspicuous absence recording issue arising mr stevens pain 70 regard overwhelming weight evidence find respondent failed discharge onus show applicant received secondary psychological injury matter remitted president pursuant tosection 321aof theworkplace injury management worker compensation act 1998for assessment applicant whole person impairment 1 example dr brian stevenson saw mr stevens medico legal purpose request qbe report dated 19 july 2019 record mr stevens injured shoulder lifting projector onto bench work 2 note clinical record mr stevens treating general practitioner dr owen green commenced time record fact shoulder injury 3 applicant counsel submission quite rightly concedes entry note sole entry dr green note pain shoulder injury surgery factor mr steven mood 4 applicant counsel identifies entry evidence consuming relevance applicant sense bullying 5 page 98 ard extract note dr owen green 6 page 3 dr sproule report 7 page 4 m sproule report
Therapeutic Goods Amendment (2018 Measures No. 1) Regulations 2018 (F2018L01612).txt
therapeutic good amendment 2018 measure 1 regulation 2018 f2018l01612 explanatory statementtherapeutic good amendment 2018 measure 1 regulation 2018 f2018l01612 explanatory statementtherapeutic good act 1989therapeutic good amendment 2018 measure 1 regulation 2018the object thetherapeutic good act 1989 act establish maintain national system control quality safety efficacy timely availability therapeutic good used australia exported australia therapeutic good administration tga part department health department responsible administering act subsection 63 1 act provides governor general may make regulation inconsistent act prescribing matter required permitted prescribed act necessary convenient prescribed carrying giving effect act section 16 act medicine taken separate distinct one another different number specified way instance different name different dosage form model different indication direction use purpose thetherapeutic good amendment 2018 measure 1 regulation 2018 regulation amend thetherapeutic good regulation 1990 tg regulation allow secretary department health reduce application evaluation fee would otherwise payable application marketing approval prescription medicine certain circumstance circumstance principally applicant already medicine marketing approval registered australian register therapeutic good register new medicine would existing product except dosage model direction use secretary satisfied difference necessary ensure safe use good e g particular patient group application require evaluation non clinical quality data secretary information would enable application processed evaluated abridged manner regulation also make small number minor amendment tg regulation make consequential amendment remove reference antiperspirant schedule 5 tg regulation reflect product recently excluded scope regulatory regime minister section 7aa act introduce two fee relating licence manufacture therapeutic good inadvertently left thetherapeutic good legislation amendment fee measure regulation 2018 earlier year fee application vary step manufacture holder manufacturing licence authorised undertake particular site fee application vary manufacturing licence remove manufacturing site remove number redundant reference application relating therapeutic device reflect product time regulated medical device chapter 4 act thetherapeutic good medical device regulation 2002 sponsor medicine registered register wish make change dosage model direction use safety reason must make fresh application marketing approval product rather simply treating change variation existing medicine register circumstance significant fee apply application involving prescription medicine application fee 18 600 evaluation fee 74 200 together 92 800 sponsor cited level fee disincentive seeking marketing approval version existing prescription medicine change detail regulation set theattachment act specifies condition need satisfied power make regulation may exercised regulation legislative instrument purpose thelegislationact 2003 regulation commence day registered federal register legislation consultationthe tga contacted peak therapeutic good industry body medicine australia generic biosimilar medicine association directly september 2018 relation proposed introduction mechanism reduce medicine fee body indicated support measure authority subsection 63 1 thetherapeutic good act 1989
Casey C166 (PSA) [2014] PPV 170 (18 December 2014).txt
casey c166 psa 2014 ppv 170 18 december 2014 last updated 27 january 2015planning environment act 1987panel reportcasey planning schemeamendment c166cranbourne racing complex17 december 2014planning environment act 1987panel report pursuant tosection 25of actamendment c166 casey planning schemecranbourne racing complex lester townsend chair mandy elliott membercontentspagelist figurespagelist abbreviationscdpcranbourne development plan 2007crcsidpcranbourne racing complex surround investment development plandepidepartment environment primary industriesdpodevelopment plan overlaydtplidepartment transport planning local infrastructureepaenvironment protection authorityepbc actenvironment protection biodiversity conservation actesoenvironmental significance overlayevcecological vegetation classlandfill bpemlandfill best practice environmental management siting design operation rehabilitation landfillslppflocal planning policy frameworkmacmajor activity centremssmunicipal strategic statementpuzpublic use zonerbgcroyal botanic garden cranbournesppfstate planning policy frameworksuz 4 special use zone schedule 4 vppvictoria planning provisionsamendment summarythe amendmentcasey c166subject sitethe amendment applies cranbourne racing complex surround consists reserved crown land council owned freehold land land private ownershippurpose amendmentto facilitate redevelopment cranbourne racing complex surroundsthe proponentcity caseyplanning authoritycity caseyauthorisation31 december 2013exhibition29 may 30 june 2014panel processthe panelthe panel appointed delegation minister planning 18 august 2014 comprised lester townsend chair mandy elliott memberdirections hearing8 september 2014 council office narre warrenpanel hearing13 14 october 2014 casey field sport complex cranbournesite inspections13 october 2014post hearing processfollowing hearing revised version special use zone schedule incorporated document circulated number change resulting discussion change incorporated based feedback submitter final version sent panel 10 november 2014submissionstwenty one submission received included 5 submission relevant authority 15 submission private landowner consultant behalf late submission cranbourne dandenong pistol clubsubmissions received listed appendix aappearancescasey city council represented barnaby mcilrath maddocks lawyersl child b waterfall represented john mccaffreymr ploudias president cranbourne dandenong pistol clubcranbourne racing centre recreation reserve committee management cranbourne turf club inc cranbourne harness racing club cranbourne greyhound club trio sport club represented teresa bisucci best hooper solicitorsdate report17 december 2014summaryracing occurred cranbourne racecourse since 1867 today cranbourne racing complex surround integral part cranbourne generating economic recreational entertainment tourist activity cranbourne racecourse equestrian industry long identified area cultural economic driver city casey zoning land facilitate development council preparedthe cranbourne racing complex surround investment development plan crcsidp december 2013 response previous plan concept cranbourne racing complex site crcsidp strategic planning document provides clear direction future use development cranbourne racing complex racing non racing activity amendment would incorporate crcsidp formal incorporated document pursuant clause 81 01 casey planning scheme cranbourne racing centre recreation reserve committee management others support rezoning crcsidp way facilitate economic growth expansion term activity operation area land lead job enhance tourism opportunity submission cranbourne racing centre recreation reserve committee management others state amendment provide integrated suite planning control recognising importance operation activity racecourse land panel agrees amendment provides fair orderly economic sustainable development cranbourne racing complex surround way protects existing cultural recreational ecological area public private interest natural man made environment balance present future interest community recommendationsbased reason set report panel recommends amendment c166 casey planning scheme adopted exhibited subject following modification change schedule special use zone reflect agreed post panel change shown appendix c additional minor typographical formatting paragraph style correction changethe cranbourne racing complex surround investment development planto reflect agreed post panel change shown appendix following change make necessary minor typographical formatting correction including page number reference rbgc include explicit notation incorporated document casey planning scheme theplanning environment act 1987 revise document control preamble administrative update section reflect document status theplanning environment act 1987 panel also recommends council update relevant document control buffer boundary regarding environment protection authoritylandfill best practice environmental management siting design operation rehabilitation landfillshave adequately identified 1 introduction1 1 site surround subject landas shown byfigure 11 amendment applies land located south cranbourne town centre amendment applies five major area described inthe cranbourne racing complex surround investment development plan2014 crcsidp cranbourne racecoursethe cranbourne training complexthe cranbourne recreation reserveo tooles road former depotintensive horse stabling precinct subject land mix permanently temporary reserved crown land council owned freehold land land private ownership northern portion crown land managed cranbourne racing centre recreation reserve committee management incorporated southern portion managed cranbourne training complex committee management incorporated committee appointed thecrown land reserve act1978 cranbourne racing complex area recognised potential habitat endangered southern brown bandicoot well providing important connection cranbourne town centre general community cranbourne racecoursethe cranbourne racecourse crown land permanently reserved racecourse public recreation purpose racecourse tricodes racing venue australia greyhound harness turf thoroughbred race event occurring throughout year venue grandstand trio sport entertainment venue eg allen reserve football netball tennis facility located inside racecourse precinct used overflow facility casey field main recreation reserve casey cranbourne training complexthe cranbourne training complex operating since august 1990 complex largest venue kind southern hemisphere 800 thoroughbred horse using facility daily grant streetballarto roadearlston circuit residential areanoteto reduce electronic size document figure 1 1 removed version report contact planning panel victoria obtain complete copy report figure 11 site precinct surroundsthe cranbourne recreation reservethe cranbourne recreation reserve area open space east cranbourne racecourse north training complex excluding former shire cranbourne tooles road former depot site includes former cranbourne indoor heated pool cranbourne ambulance station cranbourne bowl club cranbourne dandenong pistol club casey comet soccer club facility cranbourne recreation reserve temporarily reserved racecourse recreation purpose 1963 tooles road former depotthe former shire cranbourne tooles road depot site purchased 1971 purpose establishing council depot operated site 1972 1996 site vacant since depot closed subject amendment c23 scheme residential rezoning abandoned council july 2001 intensive horse stabling precinctthe subject land also includes intensive horse stabling precinct cyril beechey laurie cleary lane cranbourne precinct along earlston circuit residential area created intensive horse stabling precinct former shire cranbourne late 1980s provide opportunity horse stabling facility within close proximity cranbourne racing complex application intensive horse stabling policy clause 22 11 casey planning scheme earlston circuit longer designated intensive horse stabling ii surrounding landroyal botanic gardensthe site abuts internationally significant royal botanic garden cranbourne rbgc south environmental significance overlay 3 eso3 applies rbgc land within immediate vicinity rbgc eso3 applied broiler farm proposed solid inert landfillan existing broiler farm proposed solid inert landfill located south west subject site along ballarto road closed landfill former transfer stationa closed landfill former transfer station located west subject land brooklyn green estate amstel golf course west 1 2 amendmentthe amendment required facilitate redevelopment ongoing use cranbourne racing complex surround racecourse equine training centre horse stabling recreation reserve community benefit current zoning number us veterinary clinic support ongoing viability cranbourne racing complex prohibited exhibited amendment proposes rezone land special use zone schedule 4 suz4 public park recreation zone pprz low density residential zone intensive horse stabling precinct public use zone schedule 6 puz6 tooles road former depot delete intensive horse stabling policy clause 22 11 scheme thecranbourne racing complex surround investment development plan revise clause 21 07 remove reference policy insert new incorporated document titledcranbourne racing complex surround investment development plan delete development plan overlay schedule 1 dpo1 applies cranbourne racing complex redundant proposed special use zone suz provides use development land specific purpose proposed purpose provide use development land racing industry related purpose provide use development land community entertainment tourism us event provide protection retention enhancement maintenance native vegetation sensitive ecological corridor ensure combination us hour operation form development prejudice amenity surrounding area provide use development land adjacent cranbourne training centre horse stabling purpose provide use development land accordance withthe cranbourne racing complex surround investment development plan noteto reduce electronic size document figure 1 2 1 3 removed version report contact planning panel victoria obtain complete copy report figure 12 existing zoningfigure 13 proposed zoning1 3 background proposalcouncil preparedthe cranbourne racing complex surround investment development plan crcsidp november 2013 reviewing number previous development plan cranbourne racing complex proposal development former tooles road depot site former cranbourne indoor heated pool building crcsidp also prepared response previous draft cranbourne racecourse master plan submitted council september 2011 crcsidp eight distinct precinct precinct 1 racingprecinct 1 comprises thoroughbred harness greyhound racetrack along eg allen reserve existing pavilion clubroom netball court precinct also contains course dam used irrigation vegetation reserve objective guideline include maximising future track development opportunity thoroughbred harness greyhound racing maintaining community racing related access infrastructure precinct precinct 2 training complexprecinct 2 contains cranbourne training complex provides training facility wider racing industry objective guideline precinct include maximising development opportunity training oncourse stabling racing industry support facility industry access racing precinct pedestrian non racing related equine access public horse trail providing ecological connection royal botanic garden cranbourne noteto reduce electronic size document figure 1 4 removed version report contact planning panel victoria obtain complete copy report figure 14 precinctsprecinct 3 melbourne water easement ecological vegetation protection horse trailsprecinct 3 existing melbourne water easement contains indigenous vegetation provides buffer training complex royal botanic garden cranbourne rbgc function ecological movement corridor rbgc cranbourne racing complex surround beyond precinct also contains number trail used purpose horse training precinct 2 objective precinct protect enhance ecological value drainage function area precinct 4 intensive horse stablingprecinct 4 comprises existing horse stabling established late 1980s provides opportunity horse stabling facility within close proximity cranbourne racing complex precinct reflects objective policy guideline intensive horse stabling policy clause 22 11 casey planning scheme objective support enhance subdivision relevant development opportunity existing horse stabling operation precinct 5 soccer passive recreationprecinct 5 existing soccer passive recreation reserve access tooles road objective guideline precinct support continued use site soccer passive recreational opportunity explore opportunity enhance formalise pedestrian connectivity precinct ecological native flora fauna precinct entertainment tourism racing support precinct precinct 6 tooles roadprecinct 6 contains former shire cranbourne depot objective precinct include exploring redevelopment opportunity site support racing industry includes encouragement us complement role racing complex along requirement provide appropriate landscape interface provided existing residential area north regard ecological value area well measure protection enhancement existing indigenous vegetation biodiversity value precinct 7 ecological native flora faunaprecinct 7 contains cranbourne racecourse recreation reserve area known locally sand dune important biodiversity conservation area precinct objective develop conservation reserve protects enhances existing ecological biodiversity value allowing public access interpretation education precinct 8 entertainment tourism racing supportprecinct 8 currently underutilised part racing complex thereby presenting number opportunity future development precinct also link racing complex cranbourne town centre objective precinct provide future development area multi purpose destination creates new commercial investment job turn support racing industry provision non racing based entertainment tourism accommodation community use event related infrastructure also supported assist consolidating role racing complex precinct focus investment recreation activity employment 1 4 issue dealt reportcouncil submitted principal issue raised submitter amendment summarised follows access racecourse existing crown land traffic impact surrounding road network retention ecological movement corridor existing protection including extension royal botanic garden cranbourne overlay eso3 entire site inclusion additional property amendment area removal intensive horse stabling precinct policy clause 22 11 planning scheme location horse stabling within cranbourne racing complex conflict thecranbourne development plan amenity noise hour operation building design location impact proposed us change us permission mapping suz3 schedule investment development plan panel considered written submission submission presented hearing range material referred includes written submission evidence verbal presentation addressing issue raised submission panel assisted information provided well observation inspection specific site report first address strategic justification amendment deal issue following heading horse stable deleting existing horse stabling policy clause 22 11 horse stable section 1 2 usepistol club landrimfire crescent amenity access crown landretention ecological corridorsklm submissionepa buffer requirementsprohibited usesmaking role document clear 2 strategic justificationcouncil provided response strategic assessment guideline part explanatory report panel reviewed policy context amendment relevant planning strategy 2 1 policy framework state planning policy frameworkcouncil submitted amendment supported sppf cranbourne racing centre recreation reserve committee management others state following clause sppf relevant clause 17 economic development supporting fostering economic growth development providing land facilitating decision resolving land use conflict district may build strength achieve economic potentialclause 19 infrastructure recognising importance racecourse land term contribution community resource facilitiesclause 19 02 3 cultural facility reinforces recreation sporting precinct ii local planning policy frameworkthe council submitted amendment consistent ms lppf contains number specific clause relation cranbourne racing complex surround supporting one major land us network feature casey illustrated framework plan form cranbourne racecourse clause 21 03 reducing escape expenditure dependency external centre developing cranbourne principal activity area building competitive advantage racecourse rbgc location along premier tourist route clause 21 05 22 07 improving access regional facility rbgc cranbourne racing complex clause 21 05 creation cranbourne racing complex surround development plan providing racing non racing employment opportunity cranbourne racing complex surround providing commercial training facility racecourse training complex surrounding area cranbourne town centre clause 21 11 building positive image casey desirable place live order attract business investment create employment opportunity attract future resident instil community pride existing resident supporting ongoing tourism recreation us cranbourne racing complex part one two regional centre cranbourne fountain gate narre warren clause 21 12 supporting cranbourne recreational asset regional significance cranbourne racecourse royal botanic garden cranbourne encouraging location major commercial community facility adjacent two principal activity centre fountain gate narre warren cranbourne clause 21 13 amendment directly support proposed replacement intensive horse stabling policy clause 21 11 subject amendment c50 scheme incorporating aim objective guideline crcsidp special suz4 cranbourne racing centre recreation reserve committee management others state following clause ms relevant clause 21 03 cranbourne racecourse recognised major land use highlighted framework planclause 21 05 local policy relation casey built areaclause 21 13 recognises racecourse land open space recreation 2 2 planning strategy cranbourne development planthecranbourne developmentplan cdp 18 september 2007 applies cranbourne racing complex surround provides direction future use development several site proposed rezoned part amendment c166 ii cranbourne town centre planthecranbourne town centre plan 2011 identifies cranbourne racing complex precinct 9 racecourse tourism entertainment thecranbourne town centre planrecognises racecourse key component cranbourne identity contributes culture area well local economy business attraction employment generation amendment c157 scheme seek implement strategy objective guideline thecranbourne town centre plan 2011 amendment c157 adopted council submitted minister approval 1 august 2014 following receipt supportive panel report thecranbourne town centre planalso includes following objective relation cranbourne racecourse investigate facilitate opportunity tourist accommodation related activity serve nearby cranbourne business racecourse complex rbgc ensure interim redevelopment compromise future potential precinct principal tourism component cranbourne improve connection racing precinct cranbourne town centre provide attractive entrance racing precinct reinforce racecourse complex part cranbourne identity seek redevelop old council depot meet ongoing community need integrate rbgc racecourse precinct cranbourne town centre thecranbourne town centre planincludes finalisation masterplan cranbourne racing complex key implementation project incorporating crcsidp scheme part amendment c166 would fulfil action iii city casey equestrian strategythecity casey equestrian strategy 4 october 2011 includes future trail leading cranbourne racing complex thecranbourne developmentplan includes pedestrian linkage along cyril beechey lane manner preserved amendment provides greater clarity regarding future layout relationship pedestrian equine ecological movement corridor approach better provides balancing ecological economic social need stakeholder strategy reference document scheme noted thecranbourne developmentplan includes existing reference equine trail amendment land amendment c166 build upon existing arrangement 2 3 conclusionthe panel concludes strong policy support amendment supported implement relevant section state local planning policy framework 3 issues3 1 horse stablesthe amendment proposes delete existing horse stabling policy clause 22 11 include cranbourne racing complex surround within special use zone suz4 incorporate thecranbourne racing complex surround investment development plan concern raised exhibited proposal horse stable section 1 permit required use deleting existing horse stabling policy clause 22 11submissionsamendment c50 introduces thecasey c21 strategyinto scheme amending lppf introduction new municipal strategic statement ms clause 21 clause 21 01 21 22 replacing local planning policy clause 22 new suite local policy clause 22 01 22 10 receiving supporting panel report council adopted amendment c50 5 august 2014 amendment currently awaiting approval minister planning panel report stated panel note submission made relation local policy retail policy deletion extractive industry policy amended overlay basis panel made comment aspect amendment approved amendment c50 would remove intensive horse stabling policy scheme according explanatory report c50 existing clause 22 11 deleted related guidance included proposed new clause 21 11 cranbourne racing centre recreation reserve committee management others agree intensive horse stabling policy clause 22 11 deleted considered zone incorporated plan appropriately deal matter addressed policy mr mccaffrey behalf client messrs child waterfall land operate racing stable cyril beechey lane precinct 4 disagrees policy removed mr mccaffrey submits land owned messrs child waterfall long promoted council area reserved racehorse stabling associated cranbourne racing training complex land continues recognised policy identified area purpose concern amendment unreasonably without foundation provides unrestricted development racing stable within racing complex surround mr mccaffrey stated area large investment party including child waterfall made basis council policy support racing industry mr mccaffrey submits document crcsidp incorporated current form suggests either abandoned amended provide justification extent stabling required support complex provide justification document investment plan correct content format error mr mccaffrey client object amendment give recognition significance previous existing policy commitment investment made existing stable owner discussionthe current casey planning scheme recognises role cranbourne training complex clause 21 07 encourage intensive farming us established location including dog breeding keeping devon meadow pearcedale horse stabling adjacent cranbourne racing complex implementation policy includes using horse stabling policy encourage support activity associated racing industry adjacent cranbourne racing complex horse stabling policy clause 22 11 existing intensive horse stabling policy state policy horse stabling encouraged land shown plan 1 clause 22 11 land used horse stabling appropriate lot size minimise detriment adjoining resident positioning stable minimise detriment adjoining resident building work within 10 metre boundary royal botanic garden cranbourne filled land identified environment protection authority designed detract biological value landscape quality amenity nearby royal botanic garden cranbourne application filled land referred environment protection authority use compatible horse stabling discouraged establishing within designated area plan 1 clause 22 11 identifies land precinct 4 apply training complex policy describes strong historical association casey racing industry importance major racing venue training complex local regional economy make optimal use facility council traditionally encouraged horse trainer locate vicinity facility policy acknowledges need provide opportunity horse stabling facility near racecourse training complex policy aim facilitate establishment type us specific area opportunity optimised policy also aim protect area us compatible horse racing industry amendment c50 revise casey municipal strategic statement local policy broadly advocate promoting casey horse racing training centre including consolidation expansion horse related activity local area derived thecasey c21strategy proposed clause 21 15 address cranbourne objective use attraction cranbourne racecourse training complex royal botanic garden cranbourne create distinctive sense place strategy include encourage upgrading significant racing associated tourism facility cranbourne racecourse training complex discourage establishment us incompatible horse stabling activity within designated horse stabling area identified cranbourne local area map ensure new horse stabling facility including upgrade expansion existing facility adversely affect adjoining residential area use policy exercise discretion clause 21 15 includes ensuring future use development land generally accordance cranbourne local area map adopted version map identifies cranbourne racing complex notation maximise potential racing training complex improved infrastructure turf harness greyhound associated facility amendment c50 proposes delete clause 22 11 scheme would encourage upgrading facility cranbourne racecourse training complex arguably maintain level encouragement intensive horse stabling area around laurie cleary lane cyril beechey lane recent vcat hearing child waterfall v casey cc 2014 vcat 1110 considered application horse stable training complex land decision vcat stated think self evident earlier part reason existing proposed scheme policy support cranbourne training complex proposed development horse stable course consistent purpose training complex create specific design development issue site impact give rise reason refuse planning permit find proposal supported existing local planning policy framework policy recognises racing complex seek support use conclusionthe panel concludes merit retaining clause 22 11 already adopted amendment remove rezoning land suz4 including part crcsidp clearer mechanism recognising horse stabling land current zoning policy vcat decided policy act limit stable identified area current policy setting horse stable elsewhere racing complex ruled policy ground ii use incorporated planthe key objective crcsidp secure long term economic viability racing industry cranbourne job creation potential site setting clear direction relation land use planning enhance opportunity recreation us reinforce linkage site cranbourne town centre royal botanic garden cranbourne ensure indigenous vegetation ecological outcome considered part development enhanced appropriate crcsidp developed result review number previous development plan cranbourne racing complex proposal development former tooles road depot site former cranbourne indoor pool panel concludes crcsidp developed based upon number previous development pan work undertaken council council consulted committee management depi key stakeholder preparation crcsidp panel view crcsidp provides balanced consideration array us issue associated eight precinct shown within framework plan iii horse stable section 1 2 use following hearing council circulated revised documentation received comment mr mccaffrey best hooper treatment horse stable varied different version document exhibited versionhorse stable section 1 table us condition revised versionaugust 2014horse stable included section 2 table us basis desirable ass impact new us existing residential interface circulated post panel version28 october 2014this tack change version showed horse stable section 1 table us following condition added must within 30 metre land residential zonemust located precinct 4 version somewhat confusing accepting track change effect deleting horse stable section 1 even though shown marked track change final post panel versionhorse stable section 1 table us following condition must within 30 metre land residential zone must located precinct 2 4 6 council advised change requested post panel process accepted exception following suz4 mr mccaffrey request horse stable permit required use precinct 2 6 accepted council position remains use right precinct 2 4 6 mr mccaffrey submitted refer email mr mcilrath dated 10 november 2014 amending section 1 use provision horse stable proposed schedule 4 special use zone question basis unstated council changed post panel position statement 29 october 10 november mr mccaffrey submitted precinct 2 6 intended cater mix us provide horse stable right area inappropriate unlike precinct 4 specifically reserved stabling clear logic making horse stable section 1 use precinct 2 racing complex precinct 4 intensive horse stabling area objective precinct 2 maximise development opportunity training oncourse stabling racing industry support facility precinct 4 support enhance subdivision relevant development opportunity existing horse stabling operation precinct distance adjoining residential area situation precinct 6 clear cut horse stabling would expansion type use precinct panel note submission 13 specifically objected horse stable precinct 6 horse stable operate early morning potential adverse noise impact adjoining property panel convinced 30 metre adequate buffer stable residential area objective precinct 6 explore redevelopment opportunity site support racing industry including potential horse stabling appropriate public purpose conclusionthe panel difficulty removing planning control house stable precinct 6 strategic work go far explore redevelopment opportunity panel recognises land owned council council could control future develop site considers could done transparently requiring planning permit horse stable proposed 3 2 pistol club land issuea number concern proposal would affect pistol club raised ii submissionsthe pistol club located along cemetery road directly west precinct 7 north precinct 2 ecological movement corridor southern western boundary depicted area c potential investigation area framework plan pistol club licence occupy crown land thecrown land reserve act1978 pistol club established site 1965 first establishing 1956 olympics dandenong grown 24 member 18 month ago 96 member today mr ploudias pistol club provided history club provided panel documentation suggests expansion existing facility allowed therefore mr ploudias submits boundary pistol club larger shown framework plan area c expanded area additional 75 metre east would take pistol club land land covered precinct 7 ecological native flora fauna precinct mr ploudias submits pistol club land approval expand area boundary area c adjusted reflect documentation tabled panel pistol club indicates former shire cranbourne 1992 cranbourne racing centre recreation reserve incorporated committee management time 1992 grant approval pistol club expand area subject town planning approval letter dated 13 april 1994 committee management also allowed placement fill low lying part pistol club expanded area boundary fence could completed pistol club also raised issue equestrian access current land well concern pedestrian access movement corridor ecological movement corridor close site mr ploudias said pedestrian horse moving close site limit activity club event said people use pistol club everyday saturday sunday competition day council say nominating pistol club potential investigation area confusing could misconstrued expansion allowed council suggested panel recommend description area c changed gun club boundary framework plan map instead however council note submission decision could made regarding pistol club boundary licenced area need clarified committee management council also submitted expansion pistol club supported committee management depi appropriate identification crcsidp council submission panel noted significant work would required support planning proposal future development land regard current condition need plan remediation wasted shot direct proximity cemetery road closed landfill existing lsio likelihood view council officer development would controlled action epbc act cranbourne racing centre recreation reserve committee management others position matter pistol club wish expand need embark upon appropriate procedure term planning seeking relevant consent may require word study area investigation area may apt circumstance however m bisucci note development plan presently contemplated prevent expansion pistol club simply requires consideration matter guideline precinct 7 iii discussion conclusionno one hearing could confirm whether previous approval allow expansion still relevant however panel note party make reference appropriate planning environmental approval need obtained expansion area recognised ecological value framework plan indicates smaller parcel land panel position suggest whether additional 75 metre part framework plan however urge committee management sort land tenure issue pistol club depi pistol club make relevant decision future club council determine land noted framework plan panel also mindful existing activity pistol club member occurring site since mid 1960s 3 3 rimfire crescent amenity access crown land issuesubmissions 3 7 10 11 12 20 raised noise amenity concern caused proposed non racing related us development cranbourne racing complex surround proposed amendment relates property along rimfire crescent ii submissionssubmission 20 epa note racing complex potential create adverse amenity impact nearby residential area development plan associated future use racing complex must consider impact particularly noise odour dust epa note noise emitted racing complex must exceed noise objective set sepp control noise commerce industry trade n 1 within sepp control music noise public premise n 2 council state panel process may need resolve extent buffer required rimfire crescent residential area future development council view principle led approach decision making buffer interface adopted council recognise different issue relevant four buffer depicted framework plan cranbourne racing centre recreation reserve committee management others noted occupation crown land rear rimfire crescent opportunistic without relevant consent also suggests time considering width size appropriate treatment time development actually contemplated detail proposed development known appropriate buffer designed iii discussion conclusionthe residential interface crown land particularly associated rimfire crescent residential area important issue need resolved future development proposed crown land area panel noted inspection site seems various activity spilled crown land area abuts residential property rimfire crescent note management issue committee management rather matter dealt panel panel agrees council inclusion landscaping buffer contained crcsidp along decision guideline contained suz4 elsewhere scheme provide sufficient framework resolving balancing issue amenity issue raised submission making decision permit application 3 4 retention ecological corridor issueparts site may contain habitat value endangered southern brown bandicoot retention native vegetation important context existing eso2 rbgc existing eso3 rbgc environs protects royal botanic garden cranbourne located south site ii submissionsdepi provided written submission amendment identified desktop assessment following information regarding biodiversity attribute site site contains area remnant heathy woodland evc along southern south eastern end site area north west grant street site provides potential habitat rare threatened specie southern brown bandicoot southern toadlet swamp skink potential use site adjacent royal botanic garden cranbourne botanic garden site high biodiversity significance impact area adjoining site likely considered high biodiversity risk depi suggested submission ground assessment biodiversity value site encouraged undertaken better inform strategic planning site depi also noted memorandum understanding entered depi cranbourne harness racing club secures offset site two racetrack considered planning area depi also noted council also consider size location feasibility proposed ecological movement corridor context perceived future use surrounding precinct reply depi written submission council acknowledged area ecological value across site stated panel ecological movement network throughout framework plan widened provide larger vegetated area ecological movement submission requested expansion existing eso3 ecological movement corridor although botanic garden submission stated generally agreed intent suz4 support proposed amendment unless number matter addressed incorporated amendment submission requested change amendment documentation ensure protection long term biodiversity botanic garden change include retention existing eso3 land associated intensive horse stabling precinct precinct 4 framework plan application eso majority subject land botanic garden submitted required potential cause direct significant environmental impact long term biodiversity value botanic garden suggested would consistent located west east south garden remove equestrian movement corridor land associated garden shown framework plan via orange arrow botanic garden suggest horse would high environmental impact flora fauna garden regulation associated botanic garden permit entry horse onto property botanic garden suggest orange arrow need end ballarto road botanic garden support inclusion ecological corridor however suggests amended include extension along laurie clearly lane precinct 3 precinct 3 extends within ground race training complex level southern fenceline former tip site main purpose extending ecological corridor allow movement native fauna particularly southern brown bandicoot northern area subject land located along roadway botanic garden also request extension ecological movement corridor precinct 7 connect precinct 3 20 metre wide provide adequate conservation area native fauna habitat endangered specie tooles road precinct botanic garden recommend vegetation area identified precinct excised disturbance development part framework plan area precinct 3 south south precinct 2 includes horse trail cranbourne racing centre recreation reserve committee management others submitted area identified precinct 3 south precinct 2 inappropriately labelled ecological vegetation precinct primary purpose 1997 development horse trail association complex m bisucci suggests healthy revegetation ongoing maintenance area credit training complex committee part implementation previous planning permit condition continued arrangement relation sand trail integral training complex designated secondary vegetation cranbourne racing centre recreation reserve committee management others state submission existence solely consequent upon redevelopment training complex given different precinct number melbourne water easement horse trail nominated first labelling precinct would appropriately record historic existence land use relation area submitted matter could resolved amendment incorporated plan cranbourne racing centre recreation reserve committee management others submitted guideline precinct 3 needed amended include reference horse trailsit agreed council need expand eso3 subject land evidence support expansion iii discussionthe cranbourne site botanic garden located immediately adjacent south cranbourne racing complex associated horse stabling precinct botanic garden scientific organisation responsibility environmental management site state environmental significance major tourism destination local international visitor education resource school within melbourne metropolitan area well recreational destination family proposed extension precinct 3 put forward botanic garden may improve native fauna connection botanic garden subject land particularly unused open space area native vegetation botanic garden record show southern brown bandicoot already occupying area north garden panel considers submission botanic garden may adequate provide narrow strip roadside vegetation slim line planting within fenceline training complex note submission depi state botanic garden site high biodiversity significance impact area adjoining site likely considered high biodiversity risk panel also understands submission cranbourne racing centre recreation reserve committee management others area known sand dune historically established part development horse trail association training complex depi state submission ecological assessment undertaken subject land panel belief would merit undertaking study confirm fauna movement corridor movement need adjusted study completed could occur consultation cranbourne racing club committee management botanic garden iv conclusionthe panel concludes ecological value across site surround belief crcsidp framework plan objective within precinct adequately address requirement protect ecological value whilst still maintaining core function racing complex ideally ecological movement corridor could made wider however flora fauna evidence provided panel order make definitive recommendation matter although depi rbgc state ecological value across site 3 5 klm submissionklm submitted closed landfill former transfer station rezoned special use 4 land included precinct 5 soccer passive recreation panel amendment c50 casey planning scheme stated relation land consider appropriate identify land suitable urban purpose stage number significant issue still resolved particularly relation stevenson road landfill panel think classification legend local area plan adequately deal site panel considers new designation included possible future urban subject investigation inclusion property beyond scope amendment clear panel appropriate future use land ought change zoning land would require investigation taken place land clearly different characteristic land rezoned currently part existing complex racing recreation us strategic equity need include land amendment 3 6 epa buffer requirement issuethe buffer requirement outlined epa publication 788 2landfill best practice environmental management siting design operation rehabilitation landfill landfill bpem need considered context future land use activity subject land ii submissionsthe epa provided written submission amendment subject land within 500 metre closed stevenson road landfill amendment would effect increasing extent development within already encroached 500 metre buffer area epa recommended environmental audit undersection 53vof theenvironment protection act1970
The Owners �e" Strata Plan No 61233 v Arcidiacono; The Owners �e" Strata Plan No 17719 v Arcidiacono [2019] NSWSC 1307 (30 September 2019).txt
owner âe stratum plan 61233 v arcidiacono owner âe stratum plan 17719 v arcidiacono 2019 nswsc 1307 30 september 2019 last updated 3 october 2019supreme courtnew south walescase name owner stratum plan 61233 v arcidiacono owner stratum plan 17719 v arcidiaconomedium neutral citation 2019 nswsc 1307hearing date 18 19 20 21 22 28 29 march 18 april 2019 last written submission received 3 may 2019 decision date 30 september 2019jurisdiction equitybefore henry jdecision see 43 44 621 625 catchword land law easement creation easement creation prescription long use land late 1880 1981 whether doctrine lost modern grant applies identity owner land unknown 1880s 2008 held easement prescription could still arise use sufficiently open diligent owner would aware itland law easement creation easement creation statute application 88kconveyancing act 1919 nsw easement overhang encroaching structure remain repair service considered reasonably necessary element first plaintiff heritage building intrude defendant land compensation awarded unders 88kconveyancing act 1919 nsw easement drainage sewerage water light air refused first plaintiff failed establish easement light air reasonably necessaryland law easement creation easement creation express grant implication old system deed conveyance held general word 1871 deed created right way benefit landlocked plot private lane access public road via lane right way longer accommodate second plaintiff land held second plaintiff benefit existing right wayland law easement owner dominant tenement purported transfer benefit right way land held purported transfer invalid held easement extended upon consolidation landholdingslegislation cited access neighbouring land act 2000 nsw 7civil procedure act 2005 nsw s 56 58 64conveyancing act 1919 nsw 88k schedule 8encroachment building act 1922 nsw 3environmental planning assessment regulation 2000 nsw cl 94real property act 1900 nsw s 28j 28t 42cases cited 117 york street pty ltd v proprietor stratum plan 16123 1998 43 nswlr 504aon risk service australia limited v australian national university 2009 239 clr 175 2009 hca 27archer v timpar nominee pty ltd 1999 wasc 20barkshire v grubb 1881 18 ch 616bass v permanent trustee co ltd 1999 hca 9 1999 198 clr 334bayley v great western railway co 1884 26 ch 434dabbs v seaman 1925 hca 26 1925 36 clr 538diment v nh foot ltd 1974 1 wlr 1427evans v cornish nominee pty ltd 2009 14 bpr 27 257 2009 nswsc 1295fernance v simpson 2003 nswsc 121gallagher v rainbow 1994 179 clr 624 1994 hca 24gangemi v watson 1994 11 war 505hamilton v joyce 1984 3 nswlr 279hanny v lewis 1998 nswsc 385 1998 9 bpr 16 205ing bank australia ltd v shea 2010 nswca 71kent street pty ltd v council city sydney 2001 nswsc 268khattar v wiese 2005 nswsc 1014king v carr gregg 2002 nswsc 379kitching v phillips 2011 278 alr 55 2011 wasca 19laming v jennings 2018 vsca 335liverpool corporation v h coghill son ltd 1918 1 ch 307lock v abercester ltd 1939 1 ch 861lonergan v lewis 2011 nswsc 1133maher v bayview golf club 2004 nswsc 275mills v silver 1991 2 ch 271milne v james 1910 hca 55 1910 13 clr 168moorebank recyclers pty ltd v tanlane pty ltd 2012 nswca 445owners stratum plan 13635 v ryan 2006 nswsc 221pasade holding pty ltd v sydney city council 2006 nswsc 299pasade holding v sydney city council 2003 nswsc 515pasade holding v sydney city council 2003 nswsc 1220plumpton park development pty ltd v sa trustee corp 2018 nswsc 461pugh v savage 1970 ewca civ 9 1970 2 qb 373r beresford v sunderland city council 2003 ukhl 60 2004 1 ac 889rainbowforce pty limited v skyton holding limited 2010 171 lgera 288 2010 nswlec 2re eddowes 1991 2 qd 381re ellenborough park 1956 1 ch 131re maiorana theconveyancing act 1970 1 nswr 627re permanent trustee australia ltd 1997 8 bpr 15 551rixon v horseshoe pastoral co pty ltd 2017 nswsc 129roberts v karr 1809 engr 99 1809 1 taunt 495 127 er 926spencer v commonwealth 1907 5 clr 418sunset property pty ltd v johnston 1975 3 bpr 97 173sunshine retail investment pty ltd v wulff 1999 vsc 415swann v spiropoulos 2006 nswsc 860tehidy v mineral v norman 1971 2 qb 528the owner stratum plan 61233 v arcidiacono 2018 nswsc 1260timpar nominee pty ltd v archer 2001 wasca 430union lighterage co v london graving dock co 1902 2 ch 557walker corporation pty limited v sydney harbour foreshore authority 2008 233 clr 259 2008 hca 5walker v bridgewood 2006 nswsc 149wengarin pty ltd v byron shire council 1991 nswsc 485westfield management limited v perpetual trustee company limited 2007 hca 45 2007 233 clr 528williams v state transit authority nsw 2004 60 nswlr 286 2004 nswca 179woodland v manly municipal council 2003 nswsc 392texts cited bradbrook maccallum bradbrook neave easement restrictive covenant 3rd ed 2011 lexisnexis butterworths b edgeworth butt land law 7th ed 2017 lawbook co english law reform commission fourteenth report acquisition easement profit prescription 1966 j gaunt gale easement 20th ed 2012 sweet maxwell p butt use right 2004 78 alj 162category principal judgmentparties 2016 187360 owner stratum plan 61233 plaintiff john anthony arcidiacono first defendant anna marie arcidiacono second defendant 2016 187385the owner stratum plan 17719 plaintiff john anthony arcidiacono first defendant anna marie arcidiacono second defendant representation counsel 2016 187360 mr rogers plaintiff mr hale sc mr r higgins defendant 2016 187385 m c webster sc plaintiff mr hale sc mr r higgins defendant solicitor 2016 187360 peter prior co solicitor plaintiff russell law defendant 2016 187385 jane crittenden lawyer plaintiff russell law defendant file number 2016 187360 2016 187385judgmentintroductionbackgroundthe party landprocedural historyclarence house amendment applicationissues determination summary conclusions71 york street proceedingsclarence house proceedingsthe gatehistory passage dock relevant land 1839 todayevidenceinitial crown grantsthe passage right way created book 8the dock remnant part private lanethe gardiner landholdingssale clarence house land 1927conversion 71 york street clarence house land torrens title71 york street 1928 1980 sstrata plan clarence house 71 york streetdefendants purchase 100 clarence streetrights way benefit 65 york street 5 7 barrack streettransfer passage dock defendant notification titlesother evidencethe viewlay evidence use passage dock rear area since 1981anthony cookjill yatesgraham brooksanton peetzexpert evidencesurveyor rolf cambridgetraffic engineer ken hollyoakfire safety stephen grubits allan harrimanvaluationspaul daledimity marshallexisting right way passage dock historical grantclarence house existing right way passage dockclarence house submissionsdefendants submissionsconsiderationdid book 124 create right way private lane right way created book 124 continue accommodate clarence house land right way passage dock exist benefit clarence house land today right way passage dock recorded title sp17719 conclusion clarence house claim71 york street right carriageway passageexisting right way easement prescriptionlegal principlesprescriptive easement passage dock71 york street proceeding submissionsclarence house proceeding submissionsconsiderationeasement prescription unknown owner servient tenement71 york street prescriptive easement dockclarence house prescriptive easement passage dockconclusion easement prescription passage dockother prescriptive easement claimed 71 york streeteasements drainage water sewerageencroachments overhangalternative claim right carriageway passage dock 88k conveyancing actrelevant legislationare right carriageway passage dock reasonably necessary legal principles71 york street right carriageway dock reasonable necessary clarence house right carriageway passage dock reasonably necessary submissionsconsiderationare right carriageway inconsistent public interest defendant adequately compensated 71 york streetclarence houseshould court exercise discretion grant easement passage dock level compensationlegal principles71 york streetsubmissionsconsiderationclarence housesubmissionsconsiderationterms 88k easement passage dock71 york street 88k easementsintroduction71 york street submissionsdefendants submissionsconsiderationreasonable necessityoverhang encroachmentsdrainage sewerage waterrepairs serviceslight airpublic interest compensation factorsconclusion 71 york street 88k easementsconclusion ordersannexure 1annexure 2annexure 3annexure 4annexure 5judgmentintroductionthese two proceeding concern two small parcel land sydney cbd first parcel land passage lane run building located 65 71 york street sydney approximately 26 16 metre long 12 foot 3 6 metre wide contained lot 1 deposited plan 619464 passage second small landlocked parcel land measure 2 89 metre 1 99 metre 5 75m² located western end passage contained lot 2 deposited plan 1052948 consistent way described proceeding refer land asthedock although aptly described remnant part lane passage plaintiff seek declaration order benefit various easement passage dock defendant passage dock contest entitlement easement backgroundthe party landthe plaintiff proceeding 2016 187360 body corporate entitled bring proceeding behalf owner lot stratum plan 61233 comprises six storey heritage building 71 york street called company director house reason refer proceeding 2016 187360 71 york street proceeding plaintiff 71 york street land sp 61233 71 york street land company director house 71 york street building 71 york street building used primarily office space recently ground floor space used retail tenant plaintiff proceeding number 2016 187385 body corporate entitled bring proceeding behalf owner lot stratum plan 17719 comprises five storey heritage building 104 118 clarence street called clarence house reason refer proceeding 2016 187385 clarence house proceeding plaintiff clarence house land sp 17719 clarence house land ground floor clarence house used retail space higher floor used residential occupant defendant john arcidiacono anna marie arcidiacono became registered proprietor passage dock february 2008 purchased put sale sydney city council unpaid rate also land contained lot 1 deposited plan 17418 sits seven storey building 100 clarence street 100 clarence street another small parcel land contained lot 1 deposited plan 1052948 run north western end passage 8 ft lane plan annexure 1 plan 1 identifies passage yellow dock green 8 ft lane blue set plan 1 passage commences york street run westward dock passage dock run public road plan 1 also identifies boundary 71 york street land clarence house land 100 clarence street land deposited plan 71977 5 7 barrack street also show land stratum plan 73850 comprises twelve storey building 65 york street 65 york street abuts passage along southern boundary shown plan 1 boundary 71 york street clarence house building open area land rear building part rear open area 71 york street land part clarence house land reason refer open area land rear 71 york street clarence house building therear areaor theloading yard dock immediately adjacent rear area 71 york street land rear area 71 york street clarence house land accessed passage dock need plaintiff say desire defendant contend access rear area land via passage dock led proceeding procedural historyin october 2011 defendant installed gate york street end passage affixed wall building 71 york street 65 york street 8 june 2016 defendant locked gate placed skip bin western end passage dock 71 york street clarence house claimed locked gate skip bin impeded rubbish removal vehicle access rear area building 20 june 2016 71 york street clarence house commenced proceeding urgent basis seeking order restrain defendant obstructing access passage dock consent order made restrain defendant locking gate placing skip bin item passage dock obstruct vehicular access proceeding determined first instance york street clarence house proceeding since progressed way pleading 71 york street filed statement claim 20 july 2016 seek declaration right carriageway passage dock also seek declaration benefit various easement arising way prescription passage dock claim omitted register passage dock brought provision thereal property act1900
DYWIDAG Systems International Pty Limited T_A DSI Underground [2018] FWCA 67 (4 January 2018).txt
dywidag system international pty limited dsi underground 2018 fwca 67 4 january 2018 last updated 8 january 2018 2018 fwca 67fair work commissiondecisionfair work act 2009s 185 enterprise agreementdywidag system international pty limited dsi underground ag2017 6099 dsi underground western australia agreement 2017manufacturing associated industriescommissioner leemelbourne 4 january 2018application approval dsi underground western australia agreement 2017 1 application made approval enterprise agreement known thedsi underground western australia agreement 2017 agreement application made pursuant tos 185of thefair work act 2009 act made dywidag system international pty limited dsi underground agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 redundancy provision clause 12 2 agreement approved basis satisfied clause 3 2 12 1 provide national employment standard apply minimum standard agreement 4 agreement approved accordance withs 54of act operate 11 january 2018 nominal expiry date agreement 30 june 2020 commissionerprinted authority commonwealth government printer ae426794pr599249
Re Mervyn Alfred Hawkins v FK Willis and Others [1981] FCA 159; (1981) 58 FLR 364 NSW (22 October 1981).txt
mervyn alfred hawkins v fk willis others 1981 fca 159 1981 58 flr 364 nsw 22 october 1981 federal court australiare mervyn alfred hawkinsand f k willis others 1981 fca 159 1981 58 flr 364nsw 34 1981industrial law conciliation arbitrationcourtin federal court australianew south wale district registryindustrial divisionsmithers 1 evatt 1 deane 2 jj catchwordsindustrial law rule organization power dismiss elected officer union rule fails comply cwth conciliation arbitration act 1904 133 1 f elected officer found guilty domestic tribunal offence conduct involved characterised tribunal gross neglect duty although officer charged guilty conduct character whether appeal decision domestic tribunal precluded recourse court 140 act distinction decision void lack power decision affected failure accord natural justice conciliation arbitration registered organization validity rule performance observance rule federal executive decision dismissing officer whether officer found guilty gross neglect duty whether rule created offence whether exercise appeal right precluded application federal court conciliation arbitration act 1904 cth s 133 1 f 140 141 applicant officer registered organization charged federal executive found guilty offence contained rule failing observe rule knowingly failing comply federal state executive resolution thereupon federal executive declared relation offence found guilty accordance rule applicant guilty substantial breach rule neglect duty within r 56 v b purported dismiss office r 56 v b federal executive empowered dismiss member found guilty charge section 133 1 f conciliation arbitration act 1904 requires rule registered organization shall provide dismissal office person elected office unless found guilty accordance rule substantial breach rule organization gross neglect duty applicant appealed federal executive decision federal council also sought relief 141 act case stated pursuant tos 25 6 thefederal court australia act 1976 held per curiam 1 rule 56 v b create punishable offence purported provide dismissal elected officer circumstance offence charged found guilty offence commission conduct nature specified 133 1 f act element per deane j rule 56 v b refers primary substantive finding guilty occurred 2 accordingly r 56 v b invalid extent conflict 133 1 f act purported dismissal applicant office conduct contrary valid rule organization per smithers evatt jj 3 step taken applicant appeal federal conference operate exclude jurisdiction court 141 act 4 decision federal executive purporting dismiss applicant nullity effect annamunthodo v oilfield worker trade union 1961 ac 945 applied calvin v carr 1979 ukpc 1 1980 ac 574 referred australian worker union v bowen 2 1948 hca 35 1948 77 clr 601 distinguished hearingsydney 1981 july 9 august 7 17 31 september 14 15 october 22 22 10 1981case stated proceeding brought pursuant 141 conciliation arbitration act 1904 case stated pursuant tos 25 6 thefederal court australia act 1976 j w shaw j katzmann applicant b toomey q c kennedy respondent flint kanan r castan q c f moore f l wright remaining respondent cur adv vult solicitor applicant steve masselos co solicitor respondent flint kanan white barnes mcguire solicitor remaining respondent geoffrey edward co j ginnaneorderthe court order question asked case stated answered follows question 1 whether claimant precluded matter law commencing alternatively proceeding application relief pursuant section 141 conciliation arbitration act 1904 virtue appeal decision federal executive federal conference pursuant rule 56 vii organization appeal made 25th june 1981 answer question 2 whether court discretion refrain hearing refusing hear claimant claim relief pursuant section 141 act reason election appeal decision federal executive federal conference pursuant rule 56 vii b refrain hearing refusing hear claimant claim relief pursuant section 141 act said appeal federal conference pursuant rule 56 vii pending c stay present proceeding claimant appeal federal conference pursuant rule 56 vii heard determined federal conference answer unnecessary answer question question 3 court discretion whether refrain hearing refuse hear claimant application otherwise stay present proceeding answer unnecessary answer question question 4 whether penalty purportedly imposed upon claimant federal executive organisation namely removed every office held rule organisation invalid null void effect charge laid claimant term alternatively effect rule 56 v b b charge laid claimant term alternatively effect section 133 1 f act answer yes c rule organisation permit true interpretation imposition said penalty without requiring charge character specified paragraph b question rule invalid contravene 140 1 act particular contrary fail make provision required 133 1 f act ii contravene 140 1 c act particular contravene rule natural justice answer far rule proper construction purport permit imposition penalty dismissal upon elected officer found guilty offence rule without officer charged found guilty conduct constituting misappropriation fund organization substantial breach rule organization gross misbehaviour gross neglect duty offence accordance rule organization rule invalid contravene 140 1 act contrary provision act question case stated answered accordingly decisionthe applicant sought relief pursuant 141 conciliation arbitration act 1904 act proceeding commenced order nisi dated 2 july 1981 came direction 9 july 7 august 1981 order nisi applicant sought order respondent observe rule australian postal telecommunication union organization treating purported decision federal executive dated 22 june 1981 removing applicant office held organization null void recognizing applicant continues hold office including office secretary new south wale branch organization decision federal executive organization made purported imposition penalty pursuant r 56 v b organization respect finding applicant guilty certain offence charged pursuant provision r 56 organization 12 may 1981 applicant charged committed offence created part b f g h j r 56 organization hearing charge federal executive resolved considered evidence produced relation charge brought mr j wilson mr hawkins made certain finding determination particular allegation mr j wilson federal executive accordance rule 56 x find hawkins guilty failing observe rule union branch namely rule 59 b knowingly failing comply resolution conference federal executive state executive namelyfederal executive resolution contained councillor memorandum 79 45state executive resolution 28 11 11 79s 17 17 1 80 36 2 3 80 27 11 11 79s 10 17 1 80 26 11 11 79s 5 24 10 79s 9 3 12 79s 17 10 1 80 1 15 1 80 20 10 1 80 28 17 1 80 18 2 3 80 1 15 1 80 5 15 1 80 10 15 1 80 22 2 3 80 6 15 4 80 8 15 4 80 10 15 4 80 11 15 4 80 12 15 4 80 14 15 4 80 17 15 4 80 7 13 8 80 19 2 3 80 11 21 4 80 4 5 5 80 21 6 5 80 3 8 10 80and considered question penalty pursuant rule 56 x rule 56 v determines relation offence found guilty mr hawkins committed substantial breach rule union guilty gross neglect duty accordance rule 56 hereby removed every office held rule rule 56 far material following term 56 offence penalty member union may charge member failing observe rule union branch b knowingly failing comply resolution conference federal executive state executive c committing fraudulent act unlawful act relation fund property union relation election held rule knowingly giving false misleading information conference federal executive state executive meeting held rule union officer union matter affecting interest union member e wrongfully holding occupying office position union branch thereof entitled represent union branch capacity f obstructing unreasonably failing assist officer course duty g reasonably requested assist failing assist conference federal executive state executive lawful committee body union way performance function h failing report state executive federal executive member belief guilty breach rule behaving drunken disorderly offensive manner meeting held rule union office union branch j aiding encouraging member offence rule ii charge shall made writing shall made general secretary treasurer branch secretary treasurer officer may think fit shall directed federal executive case branch secretary treasurer state executive summon member charged one body summons shall writing shall state time place hearing name person laying charge substance charge person charged shall given reasonable notice hearing fare place hearing shall paid shall written request supplied particular may necessary indicate precise matter charged iii federal executive state executive shall power hear determine charge rule iv appointed time place time place meeting adjourned postponed member charged notified charge may investigated hearing may proceed absence member charged unless satisfactory explanation absence received hearing member charged must given reasonable opportunity defend call witness upon whose evidence may rely wish tender written submission v federal executive state executive find member guilty charge may fine sum exceeding 20 b hold office position requiring performance duty rule remove office position provided person holder office defined conciliation arbitration act shall removed office unless found guilty accordance rule misappropriation fund union substantial breach rule union gross misbehaviour gross neglect duty ceased according rule union eligible hold office c e impose penalty vi member penalty imposed state executive rule may appeal federal executive may confirm vary annul penalty notice appeal shall given writing general secretary treasurer within twenty one day date member notified state executive decision shall set forth full matter appellant desire considered federal executive shall decide appeal next meeting appeal made appellant shall right attend meeting state case appeal federal executive confirms varies punishment member concerned may appeal conference shall forward notice writing general secretary treasurer within twenty one day date notified decision federal executive shall furnish full particular ground appeal conference decision conference shall final conclusive vii charge heard first instance federal executive member penalty imposed may appeal direct conference shall finally determine matter notice appeal case shall writing given general secretary treasurer within twenty one day date notification decision federal executive condition shall apply content notice appeal procedure hearing appeal case appeal decision state executive federal executive viii application penalty imposed rule shall withheld whilst member exercising right appeal provided rule ix x investigation enquiry appeal provided rule particular rule including appeal conference mentioned sub paragraph vi vii rule sub rule c rule 7 following procedure shall followed inform member charged charge laid rule quote rule member naming member rule book available requires read charge b ask whether member charged pleads guilty guilty c ask person laying charge state case give member charged member tribunal opportunity question person laying charge e ask person making charge call witness evidence f hear evidence witness g give member charged member tribunal opportunity question witness h ask member charged answer case give person laying charge member tribunal opportunity question member charged j ask member charged witness evidence k hear evidence witness l give opportunity person laying charge member tribunal question witness give person laying charge member charged opportunity address member tribunal whole case n ask member charged person laying charge withdraw matter discussed member tribunal inform possible long expected decision given e g telling either wait decision notified writing discus evidence decide whether guilty guilty decide penalty 26 june 1981 applicant lodged appeal federal conference decision federal executive pursuant r 56 vii appeal yet heard direction hearing evatt j contended respondent reason appeal applicant precluded matter law commencing proceeding relief pursuant 141 act event court exercise discretion refrain hearing application relief least stay proceeding hearing applicant appeal federal conference hand applicant contended rule organization permit dismissal office elected officer otherwise charge made determined conduct nature specified 133 1 f act accordingly said rule conflict section failed make provision required thereby thus contravened 140 1 act applicant contended also even r 56 v b valid rule required upon proper construction penalty dismissal imposed respect offence created r 56 charge officer accused committed conduct nature specified 133 1 f formally made member proceeded determined though offence created r 56 respondent contended r 56 v b create offence designed enable federal executive make determination conduct involved offence proved quality substantial breach rule gross neglect duty exercise ancillary imposition appropriate penalty offence charged r 56 regard nature contention evatt j stated court pursuant tos 25 6 thefederal court australia act 1976a case following term case stated1 whether claimant precluded matter law commencing alternatively proceeding application relief pursuant section 141 conciliation arbitration act 1904 virtue appeal decision federal executive federal conference pursuant rule 56 vii organization appeal made 25th june 1981 2 whether court discretion refrain hearing refusing hear claimant claim relief pursuant section 141 act reason election appeal decision federal executive federal conference pursuant rule 56 vii b refrain hearing refusing hear claimant claim relief pursuant section 141 act said appeal federal conference pursuant rule 56 vii pending c stay present proceeding claimant appeal federal conference pursuant rule 56 vii heard determined federal conference 3 court discretion whether refrain hearing refuse hear claimant application otherwise stay present proceeding 4 whether penalty purportedly imposed upon claimant federal executive organisation namely removed every office held rule organisation invalid null void effect charge laid claimant term alternatively effect rule 56 v b b charge laid claimant term alternatively effect section 133 1 f act c rule organisation permit true interpretation imposition said penalty without requiring charge character specified paragraph b question rule invalid contravene 140 1 act particular contrary fail make provision required 133 1 f act ii contravene 140 1 c act particular contravene rule natural justice convenient deal first question asked para 4 b c case stated answer depend construction 133 1 f act section provides addition condition referred sub section 2 132 condition complied organization shall include condition rule organization shall provide dismissal office person elected office within organization unless found guilty accordance rule organization misappropriation fund organization substantial breach rule organization gross misbehaviour gross neglect duty ceased according rule organization eligible hold office said person found guilty pursuant rule organization misappropriation fund organization substantial breach rule organization gross misbehaviour gross neglect duty would ordinarily understood organization rule provide conduct kind specified constituted offence charge might made alleged committed offence heard determined designated tribunal power inflict sanction b person question charged offence charge heard relevant tribunal person question found guilty thereof accordingly construing term 133 1 f act ordinary natural meaning condition registration organization rule shall provide dismissal elected person unless found guilty accordance rule organization misappropriation fund organization substantial breach rule organization gross misbehaviour gross neglect duty effect rule organization provide dismissal office person elected thereto commission conduct specified nature offence rule officer charged therewith found guilty hearing determination charge relevant tribunal rule satisfy condition rule provide dismissal officer found guilty rule satisfy condition section 133 1 f provision designed protect elected officer dismissal unless guilty serious misconduct appropriate construed give measure protection provided section construed according ordinary meaning term accordingly rule organization relating dismissal officer breach rule organization provides dismissal elected officer found guilty conduct specified nature charged therewith tried found guilty thereof accordance appropriate rule rule organization fail comply condition imposed statute neither term offence alleged particular thereunder supplied applicant intimation conduct involved commission offence nature constitute substantial breach rule gross neglect duty hearing charge occupied two day applicant absented hearing time morning first day applicant time formally charged conduct constituting substantial breach rule gross neglect duty said however may established hearing order nisi applicant knew term r 56 v b would aware found guilty offence charged federal executive might proceed consider whether conduct applicant commission relevant offence offence nature constitute substantial breach rule gross neglect duty found might dismiss applicant office pursuant r 56 v b federal executive fact adopt course indicated make finding dismiss applicant office think r 56 v b purport creat offence respect charge might made determined according procedure relating offence created r 56 think respondent submission correct r 56 v b purport permit executive enter upon enquiry whether conduct found involved offence r 56 found proved quality instance substantial breach rule gross neglect duty also rule purport permit enquiry pursued according procedure decided upon executive involving making new charge officer exercise ancillary assessment penalty might impose offence r 56 already found officer guilty would require clear word create punishable offence r 56 v b express provision creating offence relevant term whole enquiry quality conduct question arises proviso operative charge r 56 heard determined person charged also enquiry instituted context relevant exclusively penalty available punishment proved offence r 56 v b dismissal authorised penalty offence created r 56 person found guilty offence elected officer proviso r 56 v b speaks speaks speaks modification opening provision rule context appear proviso word found guilty accordance rule carry implication finding guilt referred finding arrived determination specific charge conduct constituting example substantial breach rule gross neglect duty word accordance rule certainly support expression found guilty r 56 v b refers finding specific charge conduct nature specified proviso dealt rule context strong suggestion prevail offence contemplation r 56 v b created r 56 proviso contemplates characterization conduct involved therein tribunal already decided conduct constituted offence created r 56 proved noted construction r 56 v b significance attached expression found guilty accordance rule differs accorded corresponding expression construction 133 1 f act proviso r 56 v b proviso controlled context purpose whereas term condition registration organization introduced 133 1 f free standing subject context would tend deprive word every implication arising ordinary natural meaning proviso doubt inserted rule intention complying 133 1 f act question draughtsman misconstrue 133 1 f although much said contrary view feel unable avoid conclusion operation contemplated r 56 v b one performed relation conviction offence r 56 namely charge referred opening word r 56 v thus operation directed characterization purpose assessing availability penalty dismissal light foregoing view r 56 v b purport provide dismissal elected officer circumstance offence charged found guilty offence commission conduct nature specified 133 1 f act element true dismissal pursuant rule stated conditional upon convicted officer also found guilty according rule conduct specified nature offence contemplation r 56 v b offence created r 56 although conduct specified nature might support finding guilt certain offence element offence offence might well committed conduct much le serious officer found guilty offence r 56 charged found guilty conduct nature specified proviso r 56 v b dismissed dismissal way penalty offence created r 56 dismissed cannot said found guilty accordance rule within meaning 133 1 f act conduct specified nature follows r 56 v b direct conflict condition applies registration organization question may arise relation situation occurring charge made r 56 instance elected officer charged unlawful act relation fund union particular delivered therein allege conduct relied upon theft union fund finding guilt charge opening word r 56 v b would contravene provision 133 1 f act far applied finding guilt misappropriation union fund made charge misappropriation fund steal union fund misappropriate might well argued finding guilt case finding guilt misappropriation fund within meaning 133 1 f act dismissal would available penalty problem nature arises connection charge applicant found guilty contention r 56 v b construed provision ancillary imposition penalty imposed accordance organization rule offence created rule conflict condition registration imposed 133 1 f act succeed rest upon erroneous view 133 1 f section prescribe condition upon penalty dismissal may imposed offence generally designates limit kind conduct respect offence according rule organization elected officer found guilty thereof may dismissed concerned qualify penalty provided various offence elected officer identify kind offence respect dismissal officer may permissible penalty pursuant rule registered organization provision act rule shall include rule term 133 1 f section lay condition prohibitory nature say rule may contain forbids rule organization contain rule providing dismissal elected officer conduct specified 133 1 f officer charged found guilty accordance rule applicable hearing determination charge rule 56 v b therefore conflict term statutory condition result extent conflict contrary provision act consequence extent conflict invalid force 140 1 act rule conflict statutory condition permit dismissal elected officer albeit determination conduct quality example substantial breach rule gross neglect duty offence element conduct question quality result clear federal executive authority competent impose upon applicant penalty dismissal office purported dismissal applicant office conduct contrary provision valid rule organization follows question 4 b answered affirmative question 4 c answered follows far rule proper construction purport permit imposition penalty dismissal upon elected officer found guilty offence rule without officer charged found guilty conduct constituting misappropriation fund organization substantial breach rule organization gross misbehaviour gross neglect duty accordance rule organization rule invalid contravene 140 1 act contrary provision act remains consider effect step taken applicant appeal federal conference dismissal office said applicant appealed operation resolution federal executive dismissed office suspended occupancy office restored duty arose federal conference hear determine appeal pointed situation existing reason operation valid rule organization suggestion respondent recognize situation scope order based notion observing observe rule organization rule recognizing possibility error part tribunal provided suitable procedure appeal applicant suffers loss office official authority suffer loss unless federal conference determines matter provided r 56 vi vii viii x circumstance urged respondent applicant precluded proceeding seek relief way order 141 act regard lack competence federal executive impose penalty dismissal applicant office question arises whether step taken appeal operate way relevant exercise jurisdiction court relation relief sought order nisi respondent argue r 56 v b permit dismissal term according construction submitted respondent observed say say correctly applicant real complaint would rest allegation accorded natural justice rule cannot construed way r 56 v b invalid insofar purport confer power federal executive dismiss applicant resolution federal executive purporting dismiss applicant nullity cannot effect appeal tribunal would authority dismiss applicant offence found guilty confirm dismissal federal executive course distinction decision affected failure accord natural justice lord wilberforce said calvin v carr 1979 2 a11 e r 440 p 449 void effect existence law declared competent body court decision made entirely without power latter inevitably null void absolute sense moment body question purported make seems u position case appears u therefore opinion annamunthodo v oilfield worker trade union 1961 c 945is much point case court found appellant expelled offence union r 11 7 charged found guilty appeared also annual conference appellant unsuccessfully appealed power use rule see comment lord wilberforce valvin v carr supra p 449 annamunthodo case held power tribunal expel applicant defect rendered decision invalid cured decision annual conference appeal held step taken appeal decision annual conference decision annual conference operate prevent recourse appellant court obtain appropriate relief namely declaration expulsion invalid suggested argument annamunthodo case conflict decision australian worker union v bowen 1948 hca 35 1948 77 c l r 601 latter case decision appealed challenged decision tainted failure extend natural justice annamunthodo case decision one made without power case appropriate relief sought order nisi opinion step taken applicant appeal operate exclude jurisdiction court 141 act regard foregoing answer question one case stated regard answer question one various part question four ground exists refusing delaying exercise jurisdiction court ground applicant lodged notice appeal postulated question two three conceded counsel respondent question 4 answered affirmative applicant must succeed accordingly answer question two three unnecessary conclusion therefore question one case stated namely 1 whether claimant precluded matter law commencing alternatively proceeding application relief pursuant section 141 conciliation arbitration act 1904 virtue appeal decision federal executive federal conference pursuant rule 56 vii organization appeal made 25th june 1981 answered various part question two namely 2 whether court discretion refrain hearing refusing hear claimaint claim relief pursuant section 141 act reason election appeal decision federal executive federal conference pursuant rule 56 vii b refrain hearing refusing hear claimant claim relief pursuant section 141 act said appeal federal conference pursuant rule 56 vii pending c stay present proceeding claimant appeal federal conference pursuant rule 56 vii heard determined federal conference answered question three namely 3 court discretion whether refrain hearing refuse hear claimaint application otherwise stay present proceeding answered part b question four namely 4 whether penalty purportedly imposed upon claimant federal executive organisation namely removed every office held rule organisation invalid null void effect charge laid claimant term alternatively effect rule 56 v b b charge laid claimant term alternatively effect section 133 1 f act answered yes part c namely c rule organisation permit true interpretation imposition said penalty without requiring charge character specified paragraph b question rule invalid contravene 140 1 act particular contrary fail make provision required 133 1 f act ii contravene 140 1 c act particular contravene rule natural justice answered follows far rule proper construction purport permit imposition penalty dismissal upon elected officer found guilty offence rule without officer charged found guilty conduct constituting misappropriation fund organization substantial breach rule organization gross misbehaviour gross neglect duty offence accordance rule organization rule invalid contravene 140 1 act contrary provision act case stated evatt j proceeding mr mervyn alfred hawkins claimant attack validity purported removal office secretary n w branch australian postal telecommunication union organization organization organization employee registered provision conciliation arbitration act 1904 act twelve respondent member federal executive organization rule 56 v b rule organization provides member holder office defined act shall removed office unless found guilty accordance rule misappropriation fund union substantial breach rule union gross misbehaviour gross neglect duty ceased according rule union eligible hold office common ground office n w branch secretary office defined act 22 june 1981 federal executive organization found claimant guilty large number specific charge laid another member organization charge brought claimant failed observe certain rule union ii knowingly failed comply certain resolution federal executive state executive iii obstructed unreasonably failed assist certain officer course duty iv reasonably requested assist failed assist state executive new south wale branch performance function v failed report state executive member believed guilty breach breach rule union vi aided encouraged member certain officer offence rule union charge claimant found guilty failing observe rule 59 rule organization knowingly failing comply one identified resolution federal executive thirty identified resolution state executive resolution federal executive finding claimant guilty charge follows considered evidence produced relation charge brought mr j wilson mr hawkins made certain finding determination particular allegation mr j wilson federal executive accordance rule 56 x find mr hawkins guilty failing observe rule union branch namely rule 59 b knowingly failing comply resolution conference federal executive state executive namelyfederal executive resolutioncontained councillor memorandum 79 45state executive resolution 28 11 11 79s 17 17 1 80 36 2 3 80 27 11 11 79s 10 17 1 80 26 11 11 79s 5 24 10 79s 9 3 12 79s 17 10 1 80 1 15 1 80 20 10 1 80 18 2 3 80 1 15 1 80 5 15 1 80 10 15 1 80 22 2 3 80 6 15 4 80 8 15 4 80 10 15 4 80 11 15 4 80 12 15 4 80 14 15 4 80 17 15 4 80 7 13 8 80 19 2 3 80 11 21 4 80 4 5 5 80 21 6 5 80 3 8 10 80and considered question penalty pursuant rule 56 x rule 56 v determines relation offence found guilty mr hawkins committed substantial breach rule union guilty gross neglect duty accordance rule 56 hereby removed every office held rule primary question raised consideration court raised question 4 case stated essence question whether circumstance claimant could properly said purpose rule 56 v b rule found guilty accordance rule substantial breach rule gross neglect duty notwithstanding fact never specifically charged either offence action federal executive purporting dismiss ultra vires void answer question depends upon construction context provision rule 56 v b section 133 1 f act requires rule organization registered act shall provide dismissal office person elected office within association organization unless found guilty accordance rule association organization misappropriation fund association organization substantial breach rule association organization gross misbehaviour gross neglect duty ceased according rule association organization eligible hold office plain provision rule 56 v b adopted organization purpose ensuring rule complied requirement 133 1 f act word unless found guilty accordance rule substantial breach rule union gross neglect duty rule 56 v b would prima facie expected meaning corresponding word 133 1 f turn first consideration meaning given 133 1 f view take reference 133 1 f person found guilty accordance rule organization one specified offence reference primary substantive finding guilt relevant offence member organization charged particular offence found guilty accordance rule organization cannot view properly said reason finding found guilty accordance rule one offence specified 133 1 f unless charged offence found guilty either corresponds necessarily involves offence offence thus example finding member stolen 100 organization fund would amount finding member guilty misappropriation fund organization hand finding guilt particular offence member charged merely consistent possibility committed one offence specified 133 1 f cannot properly said finding guilt offence charged also amount finding guilt specified offence regard mere fact body making finding guilt charged offence state determining penalty member guilty one specified offence never charged mean within meaning word used 133 1 f also found guilty accordance rule specified offence turn consider whether word found guilty accordance rule substantial breach rule gross neglect duty meaning rule 56 v b 133 1 f rule 56 rule headed offence penalty sub rule rule provides member union may charge member failing observe rule union branch b knowingly failing comply resolution conference federal executive state executive c committing fraudulent act unlawful act relation fund property union relation election held rule knowingly giving false misleading information conference federal executive state executive meeting held rule union officer union matter affecting interest union member e wrongfully holding occupying office position union branch thereof entitled represent union branch capacity f obstructing unreasonably failing assist officer course duty g reasonably requested assist failing assist conference federal executive state executive lawful committee body union way performance function h failing report state executive federal executive member belief guilty breach rule behaving drunken disorderly offensive manner meeting held rule union office union branch j aiding encouraging member offence rule sub rule ii provides inter alia charge shall made writing shall made general secretary treasurer branch secretary treasurer sub rule iii provides federal executive state executive shall power hear determine charge rule sub rule iv provides charge may investigated hearing member charged must given reasonable opportunity defend sub rule v follows federal executive state executive find member guilty charge may fine sum exceeding 20 b hold office position requiring performance duty rule remove office position provided person holder office defined conciliation arbitration act shall removed office unless found guilty accordance rule misappropriation fund union substantial breach rule union gross misbehaviour gross neglect duty ceased according rule union eligible hold office c expel membership union suspend membership specified period happening specified event performance specified act suspension membership shall deprive right benefit membership shall relieve obligation membership shall exceed six month one offence e impose penalty fact provision rule 56 v b plainly included satisfy requirement 133 1 f would much said view reference rule 56 v b member found guilty accordance rule misappropriation fund union substantial breach rule union gross misbehaviour gross neglect duty reference primary substantive finding guilt envisaged assessment fact circumstance involved finding one offence specified rule 56 reason rule contain provision member charged particular matter must found guilty penalty removal office imposed hand reference rule 56 v b member found guilty accordance rule one matter specified would seem indicate requirement found guilty one matter accordance procedure laid rule finding guilt member say procedure laid previous clause rule 56 procedure plainly appropriate find guilty relation matter charged rule contain provision either empowering finding guilt absence charge laid rule authorizing body hearing charge rule add finding guilt respect matter charged finding guilt different offence respect charge laid rule contain guidance supplementary function might discharged would example member body entitled vote supplementary finding favour supplementary finding guilt offence charged latter would absolute majority majority making primary finding guilt necessary sustain supplementary finding guilt different offence may however conclusion appears unavoidable reference rule 56 v b member found guilty one relevant matter given meaning corresponding reference 133 1 f act follows view reference finding guilt rule 56 v b reference primary substantive finding guilt member charged found guilty failing observe rule knowingly failing comply resolution federal state executive mere declaration stage determination imposition appropriate penalty member guilty relation offence substantial breach rule gross neglect duty mean purpose rule 56 v b member found guilty accordance rule substantial breach rule union gross neglect duty consequence conclusion may since rule contain provision bringing hearing charge offence specified 133 1 f rule 56 v b member cannot found guilty accordance rule particular offence case result failure adapt rule substantive requirement prescribed 133 1 f reflected rule 56 v b deficiency rule regard could cured adding offence specified 133 1 f rule 56 v b set rule 56 event construe rule 56 v b authorizing dismissal office case primary substantive finding guilty charge one specified offence would productive conflict requirement 133 1 f least extent conflict consequential invalidity present case claimant never charged offence specified 133 1 f charged offence found guilty failing observe one rule organization knowingly failing comply number resolution finding guilt charge necessarily involve finding guilt offence specified 133 1 f plain material court federal executive make primary substantive finding claimant guilty offence specified 133 1 f resolution federal executive passed discloses federal executive resolve upon primary finding guilt question appropriate penalty consideration record determination effect fact circumstance relevant offence claimant charged found guilty involved two offence specified 133 1 f circumstance statement federal executive determines relation offence found guilty claimant committed substantial breach rule guilty gross neglect duty amounted gloss upon primary substantive finding guilt constitute purpose rule 56 v b finding guilt accordance rule either specified offence result consider purported removal office claimant null void reason fact offence claimant found guilty accordance rule offence charged namely simple failure observe rule knowing failure comply federal executive state executive resolution federal executive declaration relation offence found guilty accordance rule claimant guilty quite different offence substantial breach rule gross neglect duty constitute purpose rule 56 v b finding guilt accordance rule different offence circumstance absence suggestion claimant ceased eligible hold office branch secretary provision rule 56 v b expressly precluded claimant removal office way penalty follows question 4 case stated answered affirmative answer question 4 make unnecessary answer question 4 b c common ground party view answer question 4 question 1 answered negative question 2 3 need answered
SZBDU v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 715 (1 June 2005).txt
szbdu v minister immigration multicultural indigenous affair 2005 fca 715 1 june 2005 last updated 3 june 2005federal court australiaszbdu v minister immigration multicultural indigenous affair 2005 fca 715migration failure appear adjournmentszbdu szbdz v minister immigration multicultural indigenous affairsnsd 282 2005jacobson j1 june 2005sydneyin federal court australianew south wale district registrynsd 282 2005on appeal federal magistrate courtbetween szbdufirst appellantszbdvsecond appellantand minister immigration multicultural indigenous affairsrespondentjudge jacobson jdate order 1 june 2005where made sydneythe court order 1 matter adjourned listed hearing friday 10 june 2005 9 30am note settlement entry order dealt order 36 federal court rule federal court australianew south wale district registrynsd 282 2005on appeal federal magistrate courtbetween szbdufirst appellantszbdvsecond appellantand minister immigration multicultural indigenous affairsrespondentjudge jacobson jdate 1 june 2005place sydneyreasons judgmentintroduction1 matter listed hearing today 10 15 2 last night received facsimile appellant attaching medical certificate dr dimitri tcherkas north strathfield medical centre 3 face certificate suggest possible ground adjournment hearing however certificate verified minister position test whether fact said damaged left knee consequent pain fact severe prevent appellant attending morning hearing 4 nevertheless seem appropriate circumstance grant adjournment although somewhat reluctantly 5 certificate state appellant unable unfit court attendance 7 june 2005 propose adjourn matter hearing 9 30 10 june 2005 certify preceding five 5 numbered paragraph true copy reason judgment herein honourable justice jacobson associate dated 1 june 2005no appearance appellantcounsel respondent mr r bromwichsolicitor respondent clayton utzdate hearing 1 june 2005date judgment 1 june 2005
Turner v Pride [1999] NSWSC 850 (26 August 1999).txt
turner v pride 1999 nswsc 850 26 august 1999 last updated 1 september 1999new south wale supreme courtcitation turner v pride 1999 nswsc 850current jurisdiction common lawfile number 10921 1999hearing date 22 july 1999judgment date 26 08 1999parties ian charles turnervneale dennis pridejudgment master malpasslower court jurisdiction cost assessmentlower court file number 92273 1998lower court judicial officer j goodmancounsel mr j cohen plaintiff n defendant dr c birch amicus curia behalf attorney general nsw solicitor smallwood cathcart plaintiff person defendant catchword assessment cost order payment unspecified amount cost cost assessor obliged comply statutory requirementscompliance may require assessment cost subject objectionbias act cited legal profession act 1987 173 199 202 206 208 208a 208i 208l 208m legal profession regulation 1994 division 3 clause 25 26a division 4 clause 26b 26d division 5 clause 26e 26i decision see paragraph 49judgment supreme courtof new south walescommon law divisionmaster malpassthursday 26 august 199910921 1999ian charles turner v neale dennis pridejudgment1 court told earlier proceeding court plaintiff defendant largely known come material provided plaintiff advance 75 000 00 plaintiff defendant documentation entered party deed trust gave plaintiff beneficial interest property owned defendant plaintiff lodged caveat title property proceeding brought plaintiff extension caveat 2 interlocutory activity proceeding set hearing plaintiff briefed junior counsel proceeding settled first day hearing plaintiff obtained payment sum 105 000 00 consent order made defendant pay plaintiff cost 3 plaintiff prepared party party bill cost order 79 000 00 dispute quantum cost plaintiff made application court assessment cost application stated amount cost dispute whole bill application referred cost assessor mr goodman 4 objection bill cost plaintiff objection came cost assessor total item identified objection order 27 000 00 communication party cost assessor 5 cost assessor issued certificate determination determined cost payable amount order 30 000 00 subsequently cost assessor asked provide reason determination cost assessor responded letter dated 9 april 1999 letter 6 19 april 1999 plaintiff filed summons relief sought pursuant either 208l or 208mof thelegal profession act1987
DPP v Tichy [2017] VCC 52 (8 February 2017).txt
dpp v tichy 2017 vcc 52 8 february 2017 last updated 15 february 2017in county court victoriaat melbournecriminal divisionrevisednot restrictedsuitable publicationcase cr 16 00594director public prosecutionsvjames tichy judge honour judge saccardowhere held melbournedate hearing 21 july 2016date sentence 8 february 2017case may cited dpp v tichymedium neutral citation 2017 vcc 52reasons sentence subject criminal lawcatchwords sentence armed robbery committing armed robbery breach bail sentence total effective sentence 20 month imprisonment 18 month community correction order upon release section 6aaa declaration 4 year imprisonment minimum period serve 3 year compensation order totalling 300 00 appearance counselsolicitorsfor dppmr r cordyoffice public prosecutionsfor accusedmr k reynoldsjames dowsely associateshis honour 1 james tichy pleaded guilty one charge armed robbery offence carry maximum period imprisonment twenty five year one summary offence committing armed robbery breach bail offence carry maximum penalty thirty penalty unit three month imprisonment 2 circumstance offending set prosecution opening issue 3 entered service station imitation firearm pointed victim threat opened cash register handed content register namely 300 4 victim impact statement provided instance put behalf prosecution victim seriously affected conduct provided victim impact statement reason fear may exposed reprisal 5 personal circumstance may summarised follows thirty six year age born 24 january 1981 parent employed correction officer loddon prison throughout life supported continue support 6 educated st anne primary school sunbury attended salesian boy college sunbury left college year 10 relatively young age commenced completed apprenticeship roof tiling 7 father two child son fifteen currently attends sunbury down secondary college life parent castlemaine daughter thirteen life mother separated 8 long history illicit drug use commenced use cannabis casual basis age fifteen progressed use amphetamine two year later 9 approximately five year ago commenced using methamphetamine regular basis immediately prior arrest using methamphetamine daily basis consumed 0 5 1 gram per day use methamphetamine grew stability life dissolved parent sought support assist overcome drug dependency every way possible including provision accommodation wife child assistance effect endpoint drug dependency number conviction satisfied probably directly arise reason drug use appear charge 10 satisfied offending instance occurred circumstance drug addict influence addiction time offending come surprise circumstance offending unplanned spontaneous equally victim service station attendant exposed trauma appeared useable handgun produced someone drug affected made demand upon money target appropriately described soft target victim protection 11 behalf put entered plea earliest possible opportunity accept reasonable prospect rehabilitated given support family fact currently drug free 12 course evidence father described fact always good relationship would continue support spoke relationship difficulty life daily use drug time offending attempt mother assist deal drug addiction succeed said change since detention respect charge remarkable appeared nearly back old self remorseful taken responsibility offending instance 13 father described change since imprisonment recent time able recognise behaviour consistent son know love drug addict deal number year 14 evidence father reinforced information provided mr reynolds morning 15 report dated 20 may 2016 dr carla lechner describes presenting symptom stimulant use disorder adjustment disorder depression latter condition reactive number environmental stress including death friend destructive intimate relationship comment recent period abstinence drug use enabled reflect impact behaviour upon others expressed deep regret shame action 16 m lechner opines depressed year satisfied relationship depression offending appropriately identified relevant sentence impose regard clear influence upon mood behaviour drug addiction 17 clear period detention port phillip prison undertaken number course respect certificate attendance tendered addition number reference tendered behalf described sensible young man whose life spiralled control association drug addiction current time appears free drug use committed regaining life responsible member community 18 penned letter expressing remorse accept genuinely held given evidence father found extremely impressive witness evidence satisfies current controlled environment made real progress addressing addiction 19 position prosecution instance serious offending visited upon soft target far prevalent community respect obligation denounce conduct make appropriate statement general deterrence combine obligate impose sentence imprisonment alone 20 direction underwent detailed assessment suitability imposition community correction order notwithstanding relevant history assessed suitable candidate imposition community correction order assessment rated risk reoffending moderate 21 crime involved serious offending must forgotten crime exposed innocent employee job terrifying situation threatened firearm 22 committed crime within 12 day placed community correction order duration 18 month 23 notwithstanding satisfied drug addiction influenced behaviour chose reoffend soon giving undertaking involved making order behaviour significantly increase culpability associated offending 24 satisfied need deter others type offending instance given prevalence crime type violent crime ever present problem community devastating effect upon victim crime 25 seriousness offence demonstrated fact first charge carry potential sentence imprisonment 25 year involves incident serious offending 26 given age supportive family satisfied prospect rehabilitation whilst guarded still positive gain maintain control drug addiction fact gained control drug use whilst custody something bodes well prospect successful rehabilitation 27 community well served rehabilitation offender community fact may yet make positive contribution community considered context level remorse factor previously referred opinion given appropriate weight sentence impose instance 28 court appeal made number statement crime type must dealt harsh punishment sends clear message would offender 29 weighing circumstance offending involving use firearm timing offending namely committed whilst community correction order timing plea remorse prospect rehabilitation program available recommended part community correction order one imposed instance satisfied sentence involve combination community correction order period imprisonment equally satisfied current period served extended period released commence order 30 upon charge armed robbery convicted sentenced term imprisonment 20 month sentence imprisonment combined imposition community correction order continue 18 month 31 order contain recommendation set assessment report dated 20 january 2017 namely undergo supervision mental health assessment treatment drug assessment treatment testing program reduce reoffending 32 summary offence committing armed robbery breach bail sentenced 1 month imprisonment sentence served concurrently sentence imposed 33 regard period imprisonment associated sentence consider appropriate required undergo unpaid community work part community correction order 34 pursuant 18 4 sentencing act declare total period pre sentence detention taken account time served respect sentence 406 day declaration entered court record 35 plea guilty would imposed term imprisonment 4 year total non parole period 3 year 36 propose make compensation order sought instance prosecution
Van Kuik v Zuanetti [2012] QDC 116 (18 May 2012).txt
van kuik v zuanetti 2012 qdc 116 18 may 2012 last updated 7 june 2012district court queenslandcitation van kuik v zuanetti 2012 qdc 116parties gregory joseph van kuik appellant andj g zuanetti respondent file appeal 191 11 appeal 198 11 mag 00235831 08 2 division proceeding appealoriginating court magistrate court richlandsdelivered 18 may 2012delivered brisbanehearing date 23 april 2012judge mcgill dcjorder appeal 191 11 appeal conviction dismissed extend time within appeal sentence 17 january 2011 appeal sentence allowed sentence set aside lieu thereof order conviction recorded appellant discharged absolutely appeal198 11 appeal dismissed catchword appeal new trial appellate jurisdiction district court criminal appeal plea guilty magistrate court appeal sentence criminal law sentence reopening magistrate court whether power reopen vehicle traffic offence procedure appeal sentence absence certificate inspection criminality conduct technical offence justice act 1886s 147a 222 2 c penalty sentence act1992
MIHAJLOVIC and Tax Practitioners Board [2022] AATA 342 (25 February 2022).txt
mihajlovic tax practitioner board 2022 aata 342 25 february 2022 last updated 9 march 2022mihajlovic tax practitioner board 2022 aata 342 25 february 2022 administrative appeal tribunal ul none list style none administrative appeal tribunal 2021 4829taxation commercial division peter mihajlovicapplicantand tax practitioner boardrespondentdirectiontribunal mr robert reitano memberdate corrigendum 9 march 2022place sydneythe tribunal directs registrar pursuant tosubsection 43aa 1 theadministrative appeal tribunal act 1975 alter text decision application 1 paragraph numbered 104 replaced 55 subsequent paragraph number amended accordingly and2 wording signature paragraph page 26 certifying preceding number paragraph decision changed 142 one hundred forty two 93 ninety three sgd mr robert reitano memberdivision taxation commercial divisionfile number 2021 4829re peter mihajlovicapplicantandtax practitioner boardrespondentdecisiontribunal mr robert reitano memberdate 25 february 2022place sydneyi affirm board decision terminate mr mihajlovic registration prohibit applying registration 12 month date termination sgd mr robert reitano membercatchwordstax agent registration cancellation registration tax agent preclusion registration 12 month condition applied registration limiting service valid condition registration condition breached registration terminated preclusion period applied reapplying registration decision affirmed legislationtax agent service act 2009 cth 20 5 20 20 20 25 40 5 40 25 60 5 60 15 90 5 90 10tax agent service regulation 2009 cth r 8 item 206 207reasons decisionmr robert reitano member25 february 20221 system regulation tax agent service established thetax agent service act 2009 cth act confers privileged status tax agent registered permitting provide tax agent service exclusion others return privilege registered tax agent bound standard behaviour prescribed act 2 standard include remaining satisfaction tax practitioner board board fit proper person abide term code professional conduct code conform condition imposed upon registration 3 last standard decision concerned failure conform condition registration led board decide terminate mr mihajlovic registration preclude applying registration 12 month 4 mr mihajlovic asked tribunal review board decision reviewed board decision decided affirm reason follow regulatory framework5 section 60 5of act put centrepiece regulatory regime establishment board 6 section 60 15of act confers upon board function administering system regulation established act andtax agent service regulation 2009 regulation board authority foundational scheme registration established act 7 section 20 25 give board function registering tax agent upon board satisfaction tax agent eligible registration 8 section 20 25 5 give board power considers appropriate impose one condition registration subject 9 section 20 25 6 qualifies power impose condition condition must relate subject area respect may provide tax agent service phrase subject area defined phrase subject area ordinary english phrase context mean particular topic area concerned taxation generally effect person registration may board considers appropriate confined area area may regard person particular area expertise experience qualification may base board imposing condition confines tax agent subject area 10 section 25 25 7 provides board prescribes condition board must regard requirement prescribed regulation paragraph 20 5 1 b concern educational experience necessary registered subsection confirms 25 25 6 concerned topic area person relevant knowledge experience 11 section 90 5of act defines phrase tax agent service 1 tax agent service service relates ascertaining liability obligation entitlement entity arise could arise taxation law ii advising entity liability obligation entitlement entity another entity arise could arise taxation law iii representing entity dealing commissioner b provided circumstance entity reasonably expected rely service either following purpose satisfy liability obligation arise could arise taxation law ii claim entitlement arise could arise taxation law 2 service specified regulation purpose subsection tax agent service 12 section 90 10of act defines phrase ba service 1 ba service tax agent service relates ascertaining liability obligation entitlement entity arise could arise ba provision ii advising entity liability obligation entitlement entity another entity arise could arise ba provision iii representing entity dealing commissioner relation ba provision b provided circumstance entity reasonably expected rely service either following purpose satisfy liability obligation arise could arise ba provision ii claim entitlement arise could arise ba provision 1a board may legislative instrument specify another service ba service 2 service specified regulation purpose subsection ba service 13 definition 90 inform area qualification experience area particular knowledge person may person may knowledge tax service may knowledge part tax service ba service category subject area reflected definition tax agent service provided act ba service reasonably viewed component tax agent service subject area distinction also well reflected scheme qualification experience regulation different qualification experience needed tax agent ba agent although form part general definition tax service 14 next act necessary refer consequence non compliance condition imposed registration 15 section 40 5 1 c provides termination registration individual 3 registered tax agent ba agent tax financial adviser individual board may terminate registration event affecting continued registration described section 20 45 occurs b cease meet one tax practitioner registration requirement c breach condition registration note board may also terminate registration breach code professional conduct see subdivision 30 b 4 board must terminate registration surrender registration notice writing board b die 5 despite paragraph 2 board need terminate registration surrender registration notice writing board b either board considers due current investigation outcome investigation would inappropriate terminate registration ii board within 30 day receiving surrender notice decides investigate considers would inappropriate terminate registration 16 section 40 25 provides board impose mandatory period exceeding five year person registration terminated precluded applying registration purpose provision act specific general deterrent conduct justifies termination turn operates protect public excluding person altogether prospective registration period time 17 necessary refer briefly part regulation referred mr mihajlovic course correspondence board hearing concern qualification experience board must satisfied person registering tax agent item 206 schedule 2 regulation provides 206 requirement c individual voting member recognised tax agent association individual engaged equivalent 8 year full time relevant experience preceding 10 year 18 item 207 schedule 2 informs relevant experience purpose item 206 provides 207 division 1 relevant experience mean work individual e tax agent registered act f tax agent registered underpart viiaof theincome tax assessment act 1936 g supervision control tax agent registered act h supervision control tax agent registered previous regulatory regime contained inpart viiaof theincome tax assessment act 1936 australian legal practitioner j another kind approved board course individual work included substantial involvement 1 type tax agent service described insection 90 5 act substantial involvement particular area taxation law 1 type tax agent service relate facts19 28 november 2013 mr mihajlovic made application 20 20 act registration tax agent basis considered board satisfied met requirement ofregulation 8of regulation particular requirement referred item 206 division 1 part 2 schedule 2 regulation 20 14 february 2014 mr mihajlovic contacted telephone representative board told board consider necessary experience registered item 206 mr mihajlovic requested information provided written form mr mihajlovic said call expressed surprise information passed telephone asked writing worth noting attitude later departed mr mihajlovic dealing board little odd given later put writing important discussed telephone day 21 17 february 2014 information requested provided mr mihajlovic written form email outlined board position required item 206 email explained board considered mr mihajlovic provided independent verification experience important early piece board highlighted need independent verification relevant experience relevant experience meant relevant period work supervision control registered tax agent email contained following board willing grant registration condition imposed restricting type tax agent service provide ba agent service would accept 22 mr mihajlovic replied email day said amongst thing evidence would provided reply also noteworthy expressly said obviously registration ba agent required precedent tax agent registration would accept similar vein sic prepared complete tertiary education acquire eligibility say regulation 203or 205 23 reference toregulation 203or 205 probably intended reference item 203 division 1 part 2 schedule 2 provides alternate basis registration tax agent require kind experience related qualification laid item 206 taken later requiring 13 440 hour relevant experience last 10 year statement email condition restricted ba service reasonably clear effect accept condition undertake study toward unconditional registration mr mihajlovic explained hearing used word precedent email meaning step along way towards registration tax agent 24 3 march 2014 mr mihajlovic sent email board evidence promised week earlier email went say also prepared accept registration tax agent condition imposed achieve current scholastic certificate considered appropriate tpb prior renewal date registration 25 use word also important conveyed either addition alternative proposed namely condition restricted ba agent service email went make probably unnecessary comment wanting experience run around last year said ifthe tpb desire scholastic certificate please provide list appropriate unit choose 26 perhaps unsurprisingly response 3 march 2014 email one respect least require response indicated condition mr mihajlovic prepared accept order obtain registration condition precedent acceptance contained phrase tpb desire offer condition board mr mihajlovic indicated would accept indication desire part board scholastic certificate nothing said although perhaps courtesy might expected response 27 2 may 2014 board issued registration letter certificate mr mihajlovic relevantly registration letter stated dear mr mihajlovicyou registered individual tax agent tax agent service act tasa subject following condition ba preparersyou may provide service tax agent service defined section 90 5 thetax agent service act 2009that specifically relates good service tax gst law defined insection 195 1 thea new tax system good service tax act 1999and associated legislation pay go payg withholding instalment governed bypart 2 5ofpart 2 10in schedule 1 thetaxation administration act 1953 collection recovery fringe benefit tax governed bypart viiof thefringe benefit tax assessment act 1986 fuel tax law defined insection 110 5 thefuel tax act 2006 wine tax law defined section 33 1 thea new tax system wine equalisation tax act 1999 anda luxury car tax law defined section 27 1 thea new tax system luxury car tax act 1999 amendment replacement provision amendment replacement relate area service subject legislation referenced reminded breach one condition listed board may terminate registration please see attached certificate registration right reviewthe decision impose condition registration may reviewed administrative appeal tribunal interest affected decision may apply subject administrative appeal tribunal act 1975 tribunal review application review made within 28 day please refer enclosed notice right review document information 28 certificate issued letter also contained word condition apply registration condition set board relation provision ofbusiness activity statement service 29 seem anything much ambiguous either importance document letter certificate condition imposed document evidencing fact registration face value obviously important telephone call letter advising registration requirement met document evidenced sought namely registration someone field taxation condition business activity statement service reference particular legislative provision relevant service left little doubt mr mihajlovic suggest 30 7 may 2014 mr mihajlovic telephone conversation tracy board returned call previous day little curious mr mihajlovic earlier surprised matter like one deal telephone rather writing chose thing telephone nonetheless mr mihajlovic astute enough make personal memo conversation recorded substance case actual word said spoken 31 conversation mr mihajlovic inquired restriction tax agent registration received personal memo confirms confirmation needed mr mihajlovic read aware condition contained restriction referred telephone call personal memo went say tracy explained board decided mr mihajlovic enough relevant experience approved tax agent ba preparer nothing else clear mr mihajlovic knew writing letter certificate conversation tracy existence condition 32 discussion mr mihajlovic say told tracy would look obtaining scholastic qualification required regulation 203 via tax institute member surprise given mr mihajlovic raised possibility alternative earlier email mr mihajlovic went say time continue since least 1990 complete tax agent service ian napier check sign submit registration important mr mihajlovic told tracy would since 1990 undertake tax agent service mr napier check sign submit registration memo record tracy said would good would count toward experience hour memo go record mr mihajlovic complaint effect experience counted past understand would count future nothing memo would allow conclusion condition confining mr mihajlovic providing business activity statement service removed mr mihajlovic registration result telephone call even possible occurred 33 mr mihajlovic said least asked question course hearing effect believed conversation tracy rendered ineffective condition imposed registration understanding long worked supervision registered tax agent would permitted lodge tax return using tax agent registration number tracy told much confronted fact memo said told tracy mr napier would check sign submit registration mr mihajlovic changed said suggest mr napier told mr mihajlovic could lodge return mr mihajlovic registration number mr napier board representative mr mihajlovic well knew 34 mr mihajlovic changed evidence told could lodge registration number cast much doubt upon aspect evidence particular whether mr napier mr wong later person mr mihajlovic suggested supervising work fact said anything mr napier called give evidence none provided form confirmed mr mihajlovic said mr napier told given importance statement mr napier made doubt mr mihajlovic evidence said prepared accept mr napier said thing fact mr mihajlovic told tracy one thing would mr napier check sign submit registration something different happened mr mihajlovic version event namely mr wong check sign return submitted mr mihajlovic tax agent registration number rather someone else also cast considerable doubt mr mihajlovic version event 35 forgotten whole conversation tracy context mr mihajlovic claiming relevant experience something board accept reason discussion tracy whether mr mihajlovic period supervised controlled work registered tax agent need registered work constituted relevant experience thus mr mihajlovic said effect would continue thing done mr napier check work lodge return registration number could reasonably believed condition registration required done registered thing evidence time 36 reject mr mihajlovic evidence anyone board said anything bring change condition registration quite apart anything else mr napier representative board tracy even could affected change unlikely could say anything would suggest even attempting 37 end august 2014 mr mihajlovic commenced lodging tax return tax agent number deal number tax return lodged later necessary note number tax return lodged substantial 38 7 march 2017 mr mihajlovic lodged renewal application respect registration application slow processed board told mr mihajlovic problem registration would remain force renewal processed 39 18 january 2018 mr mihajlovic received call someone board named jason ewart 1 mr mihajlovic say mr ewart told eligible clear registration mr ewart suggested mr mihajlovic lodge request vary condition registration mr mihajlovic said mr ewart suggested obtain registration company petnad pty ltd petnad would used provide acn protection client asked petnad application registration filed day telling mr mihajlovic lodge request vary condition one thing certain mr mihajlovic notice formal process removing condition whatever might registration 40 23 january 2018 mr mihajlovic lodged request vary condition registration application contained word wish remove condition allow offer full tax agent service without supervision restriction 41 mr mihajlovic asked mr wong kmn mr mihajlovic version event taken place mr napier forward letter mr ewart confirming detail supervision inception 42 31 january 2018 mr wong apparently wrote board saying reviewed income tax return prepared mr peter mihajlovic also advised tax accounting matter since 2014 letter went say average 3 4 hour per month spent matter something like 227 return prepared mr mihajlovic work done mr mihajlovic high standard accurate thorough reason say apparently wrote letter unsigned letter subsequently signed verified way confirmed mr wong authentic mr wong provide statement give evidence hearing 43 event even letter accepted authentic term letter unhelpful intended establish mr wong supervised controlled mr mihajlovic work even le relevantly intended show mr wong checked work one thing say thing simply referring fact mr wong reviewed income tax return without identifying one many circumstance mr wong gave advice mr mihajlovic without reference anything might connected supervising controlling checking mr mihajlovic work mr wong even attest conclusion opinion exercised supervision control work mr mihajlovic far tax return concerned explanation tax return lodged lodged tax agent registration number rather mr mihajlovic would consistent checking supervising mr mihajlovic work 44 14 february 2018 mr mihajlovic said mr ewart telephoned mr mihajlovic tell previously told eligible clear registration wrong mr mihajlovic withdraw application vary condition mr ewart according mr mihajlovic told mr mihajlovic time mr mihajlovic lodged next renewal application would eligible clear registration basis mr mihajlovic wrote board withdrawing application vary condition must noted taken step one thing mr mihajlovic must known condition remained registration 45 time mr mihajlovic longer according worked supervision say later email dated 15 june 2020 mr ewart said restriction would gone next renewal bother maintaining supervision cannot get someone else sign sre return later sufficient observe nothing mr ewart said done could reasonably led mr mihajlovic believe condition far ba statement service concerned condition matter removed mr mihajlovic could work tax agent without restriction mr ewart conduct could confirmed nothing changed regardless earlier wrong advice mr mihajlovic capacity change tax agent status informed restriction would gone next renewal something happen future even said reasonable basis abandoning condition simple term end result dealing obviously nothing changed 46 8 march 2018 board sent renewal letter certificate mr mihajlovic following term application renewal tax agent tax agent service act 2009 tasa granted 1 march 2018 subject condition business activity statement service reminded breach one condition listed board may terminate registration please see attached certificate registration condition registration registration expire 1 may 2020 right reviewthe decision impose condition registration may reviewed administrative appeal tribunal interest affected decision may apply subject theadministrative appeal tribunal act 1975to tribunal review application review made within 28 days47 condition registration stated tax agent peter mihajlovicregistration number 24706668date registration 15 april 2014the board decided impose condition registration limiting area taxation law may practice business activity statement servicesyou may provide tax agent service ba agent service defined section 90 10 thetax agent service act 2009that specifically relates preparing lodging ba considering one ba provision relating fringe benefit tax fbt good service tax gst wine equalisation tax luxury car tax fuel tax pay go payg withholding instalment including variation 48 mr mihajlovic said record letter 8 march 2018 document term much certificate referred 49 27 april 2020 mr mihajlovic lodged renewal application answered question would like limit tax service particular area type considered 13 440 hour understood barrier full registration 50 8 may 2020 mr mihajlovic told email m naidu board needed lodge request vary condition registration tried 12 may 2020 could instead sent request attachment email m naidu 51 11 june 2020 board made enquiry mr mihajlovic varying condition registration 52 14 june 2020 mr mihajlovic provided detail answer board enquiry included number tax return completed registration number 2014 2020 also evidence completed seven 14 unit diploma accounting correspondence including letter board dated 30 june 2020 set considered history matter referred ba condition continued existence 53 6 july 2020 mr mihajlovic wrote board saying painfully obvious renewal registration 2017 2018 continue provide tax agent service fee reward 54 6 august 2020 board wrote mihajlovic following term dear mr mihajlovic email dated 6 july 2020 requested refer ato system verify lodgement made since may 2014 since reviewed data associated tax agent number 24706668 provides following lodgement per income year per client type 55 56 2014 1557 2015 1658 2016 1759 2017 1860 2018 1961 total62 individuals63 4464 5265 6066 6867 6068 28469 partnership70 071 072 173 274 175 476 trust77 378 379 480 381 382 1683 company84 1185 1086 1187 1288 1089 5490 superfund91 592 393 394 395 196 1597 total98 6399 68100 79101 88102 75103 373 looking data please provide response following 1 confirm lodgement made commissioner taxation tax agent portal using personal tax agent number 24706668 2 ato system recorded lodgement income tax correct please clarify 3 anyone else use tax agent portal 4 anyone else assist prepare return lodgement 5 explain response question 1 4 fit condition registration business activity statement service 104 9 august 2020 mr mihajlovic responded board letter 6 august 2020 email dated 6 august 2020 mr mihajlovic referred fact lodged income tax return australian tax office ato provided tax agent service went beyond business activity statement service specific answer question asked board letter 6 august 2020 1 hereby confirm lodgement ever made since obtained agent number anything income tax return made using tax agent portal personal agent number 24706668 income tax return bar minor number paper return client came extremely old yet lodged income tax return current myob software could cope mailed ato lodged using myob ao lodgement manager everything else ia ba annual gst paygi return lodged logging ato portal via internet keying manually 2 tally income tax return lodged 414 number tally 373 3 knowledge nobody else used tan 4 time time discussed tax matter peer local area completed return supervision mentor kmn taxation service would double check work preparation return lodged 5 say business activity statement service say tax agent service provide plus verify example attach item titled tpb example tax agent service made mihajlovic ran 24706668 wherein placed handwritten cross three tax agent service described tpb say provided one service prepared objection lodged said objection recently fact provide 12 possible 13 tax agent service allows say without doubt provide tax agent service business activity statement service emphasis added 105 2 march 2021 board wrote mr mihajlovic letter said dear mr mihajlovicpotential legal action breach thetax agent service act 2009 registered tax agent condition business activity statement ba service condition registration limit scope tax agent service tax practitioner provide limit service particular area taxation law letter issued 8 march 2018 stated ba agent service defined section 90 10 thetax agent service act 2009that specifically relates preparing lodging ba considering one ba provision relating fringe benefit tax fbt good service tax gst wine equalisation tax luxury car tax fuel tax pay go payg withholding instalment including variation board aware engaging conduct prohibited tasa particularly concerned preparing lodging income tax return registered tax practitioner condition ba service service outside scope ba condition working supervision control registered tax practitioner must doyou must immediately stop conduct referred providing tax agent service must also cease activity whilst condition ba expect written confirmation 17 march 2021 alternatively must provide reason think conduct breach tasa may terminate registration breached condition registration breaching condition registration may also constitute breach code professional conduct 106 penultimate paragraph letter hardly ambiguous required mr mihajlovic stop engaging conduct identified earlier letter conduct involved preparing lodging income tax return registered tax practitioner condition ba service service outside scope ba condition working supervision control registered tax practitioner 107 mr mihajlovic read last paragraph letter providing alternative course stop engaging conduct said thing required confirmation stopped engaging conduct reason consider breach act alternative proffered letter alternative providing written confirmation ceased conduct alternative ceasing conduct reasonable read way 108 7 march 2021 mr mihajlovic responded board letter letter mr mihajlovic referred conversation tracy 2014 conversation mr ewart 2018 particular mistake mr ewart made letter said mr ewart told mr mihajlovic time next review two year due achieved unrestricted status letter went said december 2018 achieved required 13 440 hour required tasr item 206 even sooner achieving tast item 203 advised tpb board representative dispensed supervision underling added 109 referred earlier fact various conversation mr ewart others squarely placed mr mihajlovic notice process necessary removal condition even condition supervision yet appears considered acceptable take matter hand nowhere mr ewart anyone matter say condition registration removed application board fact anything board done said 110 letter important another reason make tolerably clear mr mihajlovic provided tax agent service restriction limiting ba statement service imposed condition registration least december 2018 without suggestion supervision control registered tax agent 111 27 april 2021 mr mihajlovic sought renew registration 12 may 2021 mr mihajlovic sought lodge request vary condition registration 112 3 march 2021 15 july 2021 mr mihajlovic lodged 28 income tax return ato period mr mihajlovic issued board letter directing stop preparing lodging income tax return outside condition registration 113 15 july 2021 board informed mr mihajlovic registration would terminated effect 19 august 2021 mr mihajlovic lodged 32 tax return period 15 july 2021 19 august 2021 114 19 august 2021 tribunal stayed decision terminate mr mihajlovic registration tax agent condition restrict work ba statement service issues115 four issue need addressed condition mr mihajlovic registration period registered condition b mr mihajlovic breach condition c mr mihajlovic registration terminated registration terminated period mr mihajlovic precluded applying registration condition registration 116 set earlier particular word found certificate registration issued respectively 2 may 2014 8 march 2018 mr mihajlovic certificate contain word could reasonably read containing condition registration 117 first certificate registration referred fact registration subject condition heading ba preparers set specifically aspect tax service related area covered preparing ba statement covering letter first certificate registration confirmed condition applied registration certificate registration could reasonably read way suggested anything subject condition condition certificate discussed telephone call tracy mr mihajlovic must aware 118 similarly second certificate registration although little briefer specifically referred condition said business activity statement service fact second certificate registration referred 15 april 2014 date registration 14 april 2014 neither invalidated certificate condition placed registration fact mr mihajlovic say received certificate different form alter anything substance contained certificate form certificate contained exactly condition nothing changed inaccuracy initial date registration form certificate presented 119 case certificate evidence capable resulting conclusion either condition ever removed varied telephone call mr mihajlovic employee board referred time expressed term permitted conclusion condition way taken play th telephone call tracy 7 may 2014 detail recorded personal memo make clear condition relating ba statement service always remained fact least two occasion 23 january 2018 12 may 2020 mr mihajlovic lodged attempted lodge request vary condition registration demonstrates mr mihajlovic notice change condition subject process required least something written form likelihood completion particular form 120 affect matter mr mihajlovic could registered act item regulation ba agent registered tax agent result board entitled restrict work registered tax agent subject area area ba statement service concerned first certificate registration precisely laid service reference various legislative prescription second certificate registration achieved much identifying ba statement service condition board entitled place mr mihajlovic registration 20 25 5 act 121 effect condition clear mr mihajlovic restrict work subject area associated ba statement good service tax pay go withholding instalment collection recovery fringe benefit tax fuel tax law wine tax law luxury tax law completion ba statement particular condition permit preparation lodgement income tax return client condition breached 122 mr mihajlovic prepared lodged tax return behalf client period august 2014 august 2021 admitted mr mihajlovic evident use taxation agent number lodge tax return client period inimical condition restricted ba statement service preparing lodging tax return breach condition 123 far period january 2018 august 2021 concerned question issue mr mihajlovic preparing lodging tax return supervision control registered tax agent might permitted relevant experience regulation mrmihajlovic said told january 2018 restriction would gone next renewal bother maintaining supervision alsosaid december 2018 relinquished supervision considered enough experience inconsistency two date immaterial present purpose either view considerable time date mr mihajlovic cannot possibly suggest work supervision control someone else permitted regulation preparing lodging tax return january 2018 december 2018 mr mihajlovic breach condition registration restricting ba statement service 124 august 2014 january 2018 mr mihajlovic appears two possible answer apparent breach condition followed lodged tax return using tax registration number first misunderstood condition considered condition required work supervision answer lodging tax return client supervision control january 2018 even though using tax agent number lodge answer dealt together follows use word supervise supervision respectively including separate requirement control accompanies supervision relevant part regulation 125 first evidence supervisor effect provided supervision letter mr wong unsigned possible give weight even noted earlier unsigned letter count proposition far say reviewing tax return giving tax advice neither thing amount supervision control mr mihajlovic evidence supervision control self serving almost entirely conclusory provided particular detail concerning supervision control anyone exerted say someone checked return lodged december 2018 126 second fact since august 2014 tax return lodged lodged mr mihajlovic tax agent number inconsistent exertion supervision someone else registered tax agent registration number related mr mihajlovic told tracy namely would ian napier sign submit registration happen mr mihajlovic instead lodged return tax agent number need remembered mr mihajlovic originally said tracy told could lodge return number questioned inconsistency personal memo saying questioning hearing position changed inconsistency pointed suggested mr napier told could lodge tax return number problem mr napier another registered tax agent mr wong check lodge return presumably person supervising work reason would arrangement change far registration number return lodged one fairly obvious explanation work supervised 127 also much doubt mr mihajlovic evidence concerning issue absence corroboration documentary oral testimony mr wong mr napier able accept evidence matter complete absence evidence even signed letter document statement relevant experience simple document used board matter mr mihajlovic aware mr wong mr napier anyone else nothing anyone say supervised controlled mr mihajlovic work january 2018 evidence would difficult obtain existed absence mean independent corroboration independent verification word board confirm mr mihajlovic evidence noted self serving lacking detail respect inconsistent significant doubt 128 borne mind doubt board position dispelled letter 3 march 2021 spelt board considered mr mihajlovic working breach condition registration told certain term stop letter invited mr mihajlovic confirm writing ceased providing general tax agent service breach condition registration explain conduct circumstance explained clearly matter board considered breach condition namely lodging tax return condition limited mr mihajlovic ba statement service circumstance directed mr mihajlovic cease conduct even matter squarely explained mr mihajlovic continued breaching condition registration 129 end real difficulty confronts mr mihajlovic entire period registration condition registration clear simple despite condition provided tax agent service went beyond condition permitted work question satisfy definition relevant experience lodging tax return using tax agent number inference work accord without supervision control evidence would permit finding supervised controlled work time said event january 2018 period three year undertook work breach condition registration 130 satisfied since august 2014 19 august 2021 mr mihajlovic breached condition registration confined provide ba statement service providing tax agent service involved preparation lodgement income tax return registration terminated 131 satisfied breach condition registration also satisfied registration terminated result breach several reason 132 first condition imposed case complex one clear work mr mihajlovic could complete registration certificate registration marked boundary service could provided condition serious enough board spelt written form reasonable person would pay heed writing formal certificate registration issued statutory regulatory authority board 133 second breach condition continued long period time seven year even could accepted work done supervision control registered consider accepted stopped early 2018 three year doubt mr mihajlovic worked completely breach condition basis nothing mr ewart anyone else said could led view permitted 134 third satisfied mr mihajlovic sufficient relevant experience registered tax agent even relevant question required determine consider relevant dealing case condition restricted work ba statement service breached question concerning removal condition application registration found mr mihajlovic undertake work since august 2014 supervision control would count relevant experience purpose regulation 135 fourth since 3 march 2021 face clear statement board regarded mr mihajlovic conduct breach condition mr mihajlovic eschewed board authority continued engage like conduct even agree board position situation remarkable adopt le aggressive stance face board explanation exactly considered board wrong 136 fifth imposition condition upon registration serious matter especially regard purpose namely confining tax agent subject area considered board appropriate imposition condition play important part scheme registration tax agent act disregard condition undermines scheme undermines authority board 137 follows consider appropriate regulatory response circumstance one mean mr mihajlovic registration terminated preclusion period 138 question arises whether period mr mihajlovic precluded reapplying registration purpose power determine preclusion period protect public deterring tax agent whose registration terminated engaging future misconduct deterring tax agent likewise case determination period reinforce tax agent generally tax agent condition registration specifically importance observing condition attached registration 139 case involves serious departure long period time even conservative approach three half year condition laid applied privilege given tax agent provide tax agent service even service limited kind conduct undermines confidence public able tax agent provide tax agent service qualified experienced 140 doubt period preclusion adversely affect mr mihajlovic ability generate livelihood although clear evidence skill interest allow age circumstance matter relevant period precluded applying registration 141 circumstance although consider lower end available range period consider 12 month appropriate period mr mihajlovic precluded applying registration decision142 affirm board decision terminate mr mihajlovic registration prohibit applying registration 12 month certify preceding 142 one hundred forty two paragraph true copy reason decision herein mr robert reitano member sgd associatedated 25 february 2022date hearing 13 december 2021applicant self representedcounsel respondent m e kovacssolicitors respondent tax practitioner board 1 mr mihajlovic initially believed board representative named jason hewitt used reference correspondence board material tribunal later determined spoke mr ewart
Psychology Board of Australia v Treacher [2017] VCAT 1000 (10 July 2017).txt
psychology board australia v treacher 2017 vcat 1000 10 july 2017 last updated 17 july 2017victorian civil administrative tribunaladministrative divisionreview regulation listvcat reference z340 2016catchwordshealth practitioner regulation national law act 2009 vic psychologist registration act 2000 vic section 48 psychologist admitted engaging professional misconduct respect multiple boundary violation psychologist longer registered reprimand applicantpsychology board australiarespondentdonald treacherwhere heldmelbournebeforesenior member dea member g crawford j farhallhearing typehearingdate hearing22 june 2017date order22 june 2017date reasons10 july 2017citationpsychology board australia v treacher review regulation 2017 vcat 1000orderunder section 48 1 thepsychologists registration act 2000 vic tribunal find respondent engaged unprofessional conduct serious nature within meaning paragraph c definition unprofessional conduct section 48 2 c thepsychologists registration act 2000 vic tribunal reprimand respondent noteon 22 june 2017 tribunal made order theopen court act 2013 vic information might enable client subject proceeding identified must published order applies throughout australia order operates order death client senior member deapresiding memberappearances applicantms r ellyard counselfor respondentmr r harper counselreasonsin 2002 mr donald treacher presenter facilitator series human relation session run training organisation attendee session made contact asking could provide psychological treatment mr treacher agreed professional relationship lasted 2004 2002 2004 mr treacher continued involved human relation like session including weekend course client attended accordingly saw consultation event course professional relationship mr treacher engaged conduct client included hugging client permitting client sit knee sending email contained inappropriate language meeting privately human relation session one human relation weekend course mr treacher admitted allowed client woman use ensuite bathroom shower shortage woman facility client left door ajar mr treacher noticed left room midst professional personal dealing client told mr treacher love despite declaration mr treacher continued provide psychological service client allow physical contact occur dealing client outside scheduled consultation emphasise wasno allegationbefore tribunal mr treacher engaged intimate relationship client issue whether personal relationship nevertheless inappropriate crossed boundary stand registered psychologist client hearing 22 june 2017 mr treacher counsel mr harper confirmed number factual matter admitted mr treacher mr harper also confirmed mr treacher accepted admitted conduct amounted unprofessional conduct contrary legislation force thepsychologists registration act 2000 vic pr act informed around november 2016 mr treacher retired practice allowed registration psychologist lapse hearing party finding determination ought made taking account matter agreed decided mr treacher engaged unprofessional conduct conduct amounted professional misconduct andmr treacher reprimanded conduct reason finding determination referral tribunal allegationin january 2014 australian health practitioner regulation agency received mandatory notification mr treacher professional conduct registered psychologist respect client 17 march 2014 board decided investigate mr treacher conduct section 160 thehealth practitioner regulation national law act 2009 national law course investigation mr treacher made number admission around 10 may 2016 board gave mr treacher notice allegation referred tribunal 15 june 2015 1 client attend hearing made statement board investigator 2014 hearing agreed amendment made sole allegation particular relied board allegation tribunal period september 2002 2004 mr treacher engaged unprofessional conduct within meaning paragraph c definition unprofessional conduct contained section 3 pr act mr treacher engaged inappropriate personal relationship client paragraph c definition unprofessional conduct professional misconduct applicable lawthe conduct giving rise proceeding occurred 2002 2004 well national law came force 1 july 2010 time conduct engaged mr treacher conduct regulated pr act dispute consequence transitional provision national law former regulation 30 thehealth practitioner national law regulation tribunal able hear determine allegation relying referring pr act 2 board able proceed investigate determine allegation mr treacher regarding conduct registered section 50 2 b pr act similarly tribunal able stand board shoe make finding determination conduct despite fact mr treacher registered hearing date said mr treacher longer registered finding unprofessional conduct serious nature made limited determination could imposed effect available determination caution reprimand others contained section 48 2 pr act presumed practitioner registered agreed factson 2 may 2017 party signed statement agreed fact statement agreed fact set notification came made detail board investigation necessary recount summarised pertinent matter mr treacher commenced treating client around late 2001 agreed fifth treatment session september 2002 client informed mr treacher thought love response explained whilst could genuine feeling caring two people translate romantic attachment mr treacher noted uncommon patient feel attachment therapist therapist role work patient feeling part therapy mr treacher solicitor wrote response allegation unprofessional conduct february 2014 october 2014 generally response solicitor indicated mr treacher could see professional boundary client may become blurred although considered view relationship distorted acknowledged hind sight engaged inappropriate behaviour permitting client sit knee writing email meeting privately session mr treacher said regret action conceded may construed failure maintain appropriate professional boundary mr treacher solicitor also indicated relevant time mr treacher considered client anxious need high level support said mr treacher object relation therapysupported mr treacher view could continue work client therapeutic relationship although informed love become apparent necessary u canvas content object relation therapyor mr treacher rationale form therapy sought provide client statement agreed fact contained mr treacher specific admission conduct come canvassing expert evidence u dr lenning expert reportthe board obtained lengthy expert report dr christopher lenning made general observation mr treacher admitted conduct responded specific question finding informed content report appropriate detail view dr lenning copy mr treacher note response prepared mr treacher solicitor dr lenning said mr treacher case note allow understanding nature course treatment undertaken dr lenning later described note meagre allowing genuine understanding mr treacher conducted therapy describing psychoanalytical therapy provided dr lenning said therapist working modality required cognisant need maintain professional personal boundary aware seek support via supervision another psychologist manage counter transference regularly review work indication mr treacher supervision time conducted review work dr lenning posited two possible assumption regarding client complaint mr treacher first client experienced feeling attraction mr treacher reciprocated encouraged second client formed fantasy mr treacher love mr treacher seemed prefer characterise client concern latter way dr lenning opinion ample evidence boundary violation encouraging comment signing email love irrespective content dr lenning view quite possible whatever fantasy client may encouraged mr treacher subsequent behaviour dr lenning noted australian psychological society code ethic guideline spell need psychologist respect client perpetuate sexualisation female client said hard see various behaviour mr treacher admitted engaged effect particular permitting hug allowing client sit knee sending email explicit romantic language client professed love mr treacher dr lenning view behoved mr treacher toimmediately understand boundary violation inherent language consider either supervision appropriate referral elsewhere mr treacher note showed consideration allowing physical contact referred described report clearly sexually provocative context client expressed sexual feeling therapist assumed mr treacher severe loss competence actioning preferred theoretical orientation could recognise need appropriate therapeutic boundary dr lenning referred content email sent client mr treacher described mystifying sending romantic email effect love letter could reasonably foreseen encouraging person fall love said conduct suggested significant lack skill knowledge one email sent may 2003 included following word feeling seem come naturally nowhere demanding expressed inevitably increasing deepening sense affection feel towards pop nowhere life endearing funny little way feel ongoing significant warm lovely part life know another life unknown really grown childhood sweetheart loving dr lenning said absolutely way email construed anything love letter mr treacher refers coming creative therapeutic angle maslow approach try break impasse progress client emotional development self justificatory explanation untenable refers client stuck security esteem need based maslow triangle transgressing therapeutic boundary encouraging belief client experiencing love could construed assisting resolving need unimaginable email three followed major transgression boundary email sent client also attracted comment dr lenning described others including significant serious breach boundary creating dual role last email four talked enormous amount love affection mr treacher client expressed regret mr treacher could open free contact client would liked referred 30 year relationship dr lenning said email characteristic grooming described concerning mr treacher could foresee potential interpretation email harm could regard response mr treacher provided allegation via solicitor dr lenning considered mr treacher trying minimise behaviour lacked insight dr lenning expressed concern mr treacher failed turn mind whether therapy benefit client dr lenning stated view mr treacher departed significantly standard acceptable practice counselling psychology time seeing client said mr treacher failed exercise due care diligence controlling manner interaction client described highly psychologically vulnerable woman dr lenning required cross examination accept professional opinion mr treacher conduct conduct amounting boundary violationsin statement agreed fact mr treacher admitted permitted client give hug conclusion limited number consultation b client would talk company others lecture meditation session human relation session c sitting car talking client three occasion human relation session discus issue raised session lecture given including two occasion 30 minute time period would briefly telephone client morning le frequently weekend e conclusion session 8 september 2003 agreed client request sit knee f client came home one occasion purpose consultation room set registered formal consulting room consulted two day per week time g sending four email client may july 2003 regret sending admits contain inappropriate language h client used ensuite occasion camp attendee arranged weekend course three four woman deficient woman facility recall client showered door slightly opened left room immediately client made large number call work particular conduct relied board demonstrate alleged unprofessional conduct contained attachment reason regard mr treacher admission found mr treacher engaged conduct statement agreed fact also included matter mr treacher accepted acknowledged said mr treacher accepted consultation peer seeking supervision would helpful b would wiser strictly adhered therapeutic frame boundary mr treacher acknowledged permitting client hug conclusion limited number consultation b allowing client sit knee conclusion one consultation c sending email referred permitting client sit car referred constituted boundary breach mr treacher acknowledged following weakness professional practice peer supervision support time b open enough possible need refer client another practitioner consequence mr treacher acknowledged conduct described paragraph 46 c e g constituted boundary breach characterisation supported expert opinion dr lenning conduct described part paragraph 46 basis dr lenning opinion extract code ethic code behaviour psychologist referred attachment found conduct also amounted boundary violation unprofessional conduct serious nature52 board alleged mr treacher agreed hearing conduct amounted unprofessional conduct serious nature section 48 1 pr act board alleged mr treacher accepted conduct fell within part definition unprofessional conduct refers professional misconduct 3 finding professional misconduct serious matter mean conduct kind worse conduct falling short standard psychologist peer public would expect mr treacher agreed conduct ought characterised way dr lenning report made plain conduct substantially short would expected competent responsible registered psychologist agree material u point practitioner failed properly identify therapeutic course intended take client told mr treacher love appeared make proper assessment whether therapy appropriate whether appropriate practitioner address client need ongoing contact outside therapeutic session entirely inappropriate ill advised regarded mr treacher behaviour allowed client hug sit knee make use bathroom facility borrow dr lenning word mystifying content email mr treacher sent context professional relationship disturbing cannot help agree dr lenning description love letter accordingly comfortably satisfied making finding section 48 1 pr act mr treacher engaged unprofessional conduct serious nature reprimandsection 48 2 set determination may imposed practitioner respect conduct engaged registered discussed earlier time hearing determination depend ongoing registration available mr treacher registration lapsed retired board submitted mr treacher ought reprimanded counsel agreed appropriate determination reprimand trivial determination professional person potential serious adverse implication 4 tell public client practitioner standard expected practitioner met practitioner censured serious determination tribunal could make given mr treacher longer registered circumstance case satisfied appropriate reprimand mr treacher section 48 2 c pr act ordered hearing board counsel m ellyard stated mr treacher still registered would sought suspension registration determination would sought basis significant boundary violation mr treacher engaged apparently limited insight matter board invited tribunal consider indicating reason whether would suspended mr treacher registration still registered explained hearing declined undertake hypothetical exercise accepted mr treacher still registered would open board seek suspension considered tribunal senior member deapresiding memberattachment aconduct alleged constitute unprofessional conduct amended hearing 22 june 2017 aa client client mr treacher period 2002 2004 queen road melbourne mr treacher practised time bb boundary violation occurred period 2002 2004 cc boundary violation mr treacher hugging ii meeting car iii allowing sit knee iv sending multiple email client containing reference increasing deepening sense affection jm therapeutic v engaging numerous hour telephone call client therapeutic vi allowing use bathroom shower room door open weekend away dd thecode ethic revised 29 september 2002 revised 4 october 2003 australian psychological society stated following member must avoid dual relationship could impair professional judgment increase risk exploitation ee code behaviour psychologist september 1997 psychologist registration board victoria stated following psychologist must avoid improper potentially harmful dual relationship 1 section 193 1 national law 2 see clause 34 part 6 schedule 7 national law 3 term unprofessional conduct defined section 3 pr act include professional conduct lesser standard thepublic might reasonably expect registered psychologist b professional conduct lesser standard might reasonably expected registered psychologist peer c professional misconduct 4 peeke v medical board victoria unreported supreme court victoria 19 january 1993 p 6
White and Australian Postal Corporation [1991] AATA 692 (3 September 1991).txt
white australian postal corporation 1991 aata 692 3 september 1991 last updated 9 july 2008compensation incapacity personal injury worker suffered lumbro sacral ligamentous strain continued suffer chronic back pain lack objective evidence credibility applicant witness whether applicant continued suffer pain whether incapacitated work whether complaint genuine decision set asideadministrative appeal tribunal act 1975 37compensation commonwealth government employee act 1971commonwealth employee rehabilitation compensation act 1988 s 64 131re willis australian telecommunication corporation 1990 19 ald 665behan v australian telecommunication corporation 1991 12 aar 446decision reasonsre john douglas whiteapplicantand australian postal corporationrespondentno s90 168aat decision 7277tribunal deputy president b h burnsdate 3 september 1991place adelaidedecision 1 tribunal decides decision review beset asideand decision substituted respondent liable pay applicant compensation 6 july 1989 accordance thecommonwealth employee rehabilitation compensation act 1988 2 respondent shall pay applicant cost matter absence agreement cost taxed deputy registrar tribunal 3 liberty apply reserved party signed deputy president b h burnsadministrative appeal tribunal s90 168general administrative division john douglas whiteapplicantand australian postalcorporationrespondentreasons decision3 september 1991 deputy president b h burns1 application review reviewable decision reconsideration delegate australian postal corporation respondent dated 24 may 1990 decision affirmed determination another delegate 26 june 1989 respondent liable pay compensation 6 july 1989 application made pursuant thecommonwealth employee rehabilitation compensation act 1988 2 applicant represented tribunal mr r ward counsel respondent mr walsh counsel tribunal document lodged pursuant theadministrative appeal tribunal act 1975 37 document addition applicant tendered agreed statement fact one medical report respondent tendered six exhibit 3 tribunal benefit oral evidence mr john white applicant mr sandra white wife dr g kerry general practitioner mr spitzer orthopaedic surgeon respondent called mr g sorby adam mr munyard orthopaedic surgeon mr r sheedy retired general surgeon specialises medico legal assessment 4 applicant 42 year old married man living wife two year old daughter left school 14 without completing first year secondary education leaving school worked various manual job joining respondent may 1972 motor driver worked various duty driving various type vehicle mainly adelaide metropolitan area ceased work may 1982 5 21 may 1981 applicant work collecting coin tin telephone box port adelaide area said moving tray full coin tin rear van using suffered injury said happened stooped inside van lifting tray angle iron bar fixed floor van described p 18 transcript lifting angled iron bar felt something back thought strained muscle completed shift day without much difficulty night curtail social evening football club pain lumbar region back next day went see general practitioner dr kerry gave three day work 6 applicant said suffered since 1981 constant dull ache lower back explained page 22 transcript always present still today like dull toothache lower back various activity etcetera pain period time expands go groin area leg across buttock period time year pain across back various place stomach groin undergo well precautionary x ray scan ultrasound test make sure nothing else causing problem said symptom substantially since onset 1981 said aggravation included pain left leg ankle pain back knee right leg said little sitting tolerance one page writing get described follows page 75 transcript get pain across back support feel support strength got get got get move got get away said ability wide variety thing repetitive bending lifting twisting cause unbearable pain would accept incapable work 7 applicant returned work 25 may 1981 15 minute pain however finished shift went back doctor dr kerry certified unfit work period totalling five week back pain t9 work 1981 except several short period attempted return 9 september 1981 respondent accepted liability personal injury namely back pain t8 applicant referred dr kerry mr von der borch orthopaedic surgeon applicant referred mr dhillon another orthopaedic surgeon december 1981 assessment commonwealth medical officer mr dhillon diagnosed lumbro sacral ligamentous strain t10 surgeon opinion applicant capable light duty however none provided 8 applicant given relieving work filing clerk may carried duty largely involved sitting desk writing found could cope duty pain caused prolonged sitting writing applicant referred department social security st margaret rehabilitation centre commenced program centre 24 june 1982 file st margaret rehabilitation centre relating applicant marked exhibit r5 hearing applicant said could cope program centre left 1 october 1982 9 respondent submitted applicant decided early 1982 would return work given resigned working caused abandon attempt get back work rather back pain mr walsh relied passge centre discharge summary t13 read john attendance session particular education clerical session markedly erratic making assessment difficult 24 9 82 john advised centre wished withdraw programme due undergo exploratory surgery back contact centre convalesced wish recommence programme submitted applicant made story exploratory surgery excuse leaving program support pointed several place exhibit r5 mentioned 10 applicant gave evidence say operation thought possibility unable find various note report mention back surgery adverse comment contained file marked r5 applicant deliberately avoided rehabilitation given hope returning work 11 applicant generally credible witness believe gave evidence best ability accept truthful gave impression defensive man displayed frustration questioned closely detail past treatment gained impression felt fair treatment respondent saw made attempt employ position suitable disability seemed frustrated believed said pain dr kerry general practitioner since june 1980 accepted truthful page 142 transcript said think ever saw exaggeration 12 30 november 1982 applicant retired invalidity ground dr j pincus commonwealth medical officer reported fit light duty t15 dr kerry opinion applicant retired would preferred see applicant eased back work answer question said p 143 transcript q term capacity work effect putting proposition would like see try capacity work yes q environment first nature duty certainly light duty yes q secondly great deal flexibility yes q built time nature duty order test capacity yes 13 tribunal benefit hearing evidence applicant wife sandra white office manager state bank south australia mr white gave evidence generally supported applicant given accept credible witness indication attempt colour evidence conceal anything order benefit husband found answer frank honest hesitation accepting testimony met applicant 1979 shared house time 1980 event incident involving back said evidence incident applicant went active fit sport minded person sedate quiet withdrawn person said injured back gave virtually sport social life severely curtailed could longer maintain house garden found difficult drive long distance sexual relation diminished markedly difficulty sleeping 14 1983 dr kerry diagnosed applicant suffering duodenal ulcer underwent fundal plication operation nissen procedure july 1986 result operation applicant totally incapacitated work several week dr kerry expressed opinion cause p 112 transcript think got look obvious cause probably ingestion many analgesic anti flammatory tablet man give previous gastric problem factor could see could contributed 24 february 1986 mr byrne reported following review applicant compensation purpose t17 would impression man would fit perform light duty nonmanual nature disability examined 22nd may 1985 restricted light bench work alternative sitting standing discomfort perhaps occurred fit bending duty fit weight lifting duty description floor level probably fit carry light weight 3 5 kilogram bench height return bench height certainly fit climbing extensive driving duty fit manipulate handle heavy machinery applicant evidence accept time 1986 review soon returned home hospital following operation telephoned representative respondent offered old position motor driver refused offer considerable discomfort due fundal plication operation told tribunal page 175 transcript offer light duty put australia post told come back come back former position told 86 told later talk former position nothing quite liberty apply go back former position 15 applicant paid indexed superannuation pension 70 retirement wage date retirement compensation paid 30 motor driver wage 6 july 1989 operative date determination denying liability pay compensation applicant superannuation pension unaffected determination 16 letter dated 3 january 1988 commissioner superannuation notified applicant respondent determination applicant fit specified light duty t18 commissioner letter respondent contained request applicant employed suitable employment notification follows employment invalidity pensionerjohn douglas white retired ground invalidity currently receipt invalidity pension medically examined purpose section 74 thesuperannuation act 1976 act delegate commissioner superannuation satisfied health become restored enable perform light bench work line dr byrne comment dr byrne stated report dated 28 nov 1988 summary would appear mr white still symptom suggesting chronic stretch annulus l5 s1 nonorganic factor involved man involving degree underlying psychological tension worry would appear moderate degree activity playing lawn bowl time time however would still submit fit extensive manipulative task labouring task lifting task probably fit bench work provided opportunity alternative sitting standing believe moment totally permanently disabled full time employment provided light bench type work found respondent made offer employment within dr byrne specification find since retired date hearing applicant offered work respondent original duty motor driver 17 31 may 1989 respondent initiated review liability pay compensation t23 applicant referred mr g sorby adam reported t22 dated 20 june 1989 following alleged trauma 21 5 81 causing current symptom effect trauma occurred time long since passed evidence long lasting injury related form trauma understand patient undegone 2 ct scan lumbar spine patient told normal patient fit well quite capable absorbed work force normal manner related competence far see residual aftermath injury sustained service australia post currently trouble basis determination 26 june 1989 cease payment compensation made 18 21 august 1989 applicant requested reconsideration determination t25 disputed much content mr sorby adam report t22 support claim provided report dr kerry mr spitzer mr byrne dr kerry report dated 28 april 1989 t26 state answer question whether man light bench type work provision able sit stand theoretically would seem quite suitable however main problem mr white would would avoid repetitive rotation lateral flexion either right left repetitive flexion extension thoraco lumbar spine quite often complains pain interscapular region low thoracic spinal region therefore standing bench may aggravating condition however sitting bench may suitable provision taken care unfortunately permanent disability find difficult understand would suitable working proposition future fail see would able go beyond bench type job back full time manual labouring type duty still great difficulty peforming household duty without help others resting occasionally also attempt lawn bowl quite often suffers badly game often seek bed rest massage heat dr kerry resile oral evidence impressive witness gave evidence genuinely objective way accept evidence 19 applicant referred dr kerry mr spitzer orthopaedic surgeon first seen 4 july 1989 mr spitzer reported 9 august 1989 report wrote history work development symptom subsequent clinical course consistent diagnosis lumbar spraining result would ass left residual disability ultimately amounting something approaching 30 total incapacity word say three quarter good would work related injury mr spitzer discovered disc lesion l4 5 level opinion objective evidence condition complained response mr sorby adam comment contained report dated 8 november 1989 exhibit r4 effect pathology irrelevant applicant complaint mr spitzer said page 210 transcript q assuming looking x ray ct scan done would response well pathology think radiologist reported pathology mean say major pathology might even termed irrelevant pathology inasmuch require consideration surgical treatment irrelevant inconsistent history trauma physical examination complaint patient another piece jigsaw happens fit normal x ray think would detract much fact patient suffering assuming believed evidence confirming proving confirming whole story right q saying assist confirm assessment two thing one confirms disc lesion consistent symptom complained possibly importantly demonstrates pathology might give rise symptom tuberculosis cancer bone disease process 20 applicant examined behalf respondent mr munyard whose report exhibit r3 dated 5 february 1991 mr r sheedy whose report exhibit r2 dated 21 november 1990 came conclusion mr sorby adam applicant fit normal work however mr munyard would entirely rule possibility applicant suffered disc lesion mr spitzer diagnosed p 247 transcript mr sheedy conceded conclusion opinion based accepting applicant complaint genuine would rule possibility mr spitzer diagnosis correct p 155 transcript said q mr spitzer provided report know whether saw report yes q given evidence far court completed effect evidence considers evidence basis ct scan think commissioned 1989 disc lesion l4 5 level understand evidence consistent history given patient relation event also manifestation symptom think one would admit possibly consistent ct scan finding consistent patient symptomatology however dealing land shadow put ct scan group say 100 different competent radiologist comment may get quite different comment unimpressed change thought type commonly found age importantly clinical evidence whatsoever could determine careful examination support suggestion personally believe l5 s1 disc significantly affected age one would expect people early change discogenic disease q nonetheless take area may well disputation amongst medical people significance otherwise yes technological thing based interpretation shadow black white separated hundred different fragment radiologist look particular sphere personally believe convincing radiological abnormality q yes addition course may wrong 21 prefer evidence mr spitzer conflict mr sorby adam mr munyard mr sheedy found applicant generally credible witness whose evidence accept also found dr kerry convincing witness known treated applicant long period time said p 114 transcript seen many year retirement failed see would even bother coming try tell ache pain one really impress think year tended believe know symptomatology way presented accept dr kerry evidence evidence consistent evidence applicant wife sandra white found impressive witness cannot accept applicant able deceive wife dr kerry nearly 10 year 22 find evidence dr kerry mr spitzer weight evidence whole applicant permanently incapacitated work consequence sustaining 21 may 1991 injury lower back course employment 23 24 may 1990 delegate respondent m hart reconsidered determination cease payment compensation applicant affirmed determination t32 reviewable decision tribunal accordance thecommonwealth employee rehabilitation compensation act 1988 64 incident give rise applicant claim compensation occurred 1981 therefore entitlement depends thecompensation commonwealth government employee act 1971 1971 act seere willis australian telecommunication commissionaat decision 5220b 23 february 1990 andbehan v australian telecommunication commission 1991 12 aar 446in federal court 24 applicant incapacitated result injury suffered employment respondent respondent time offered work within applicant ability find applicant limitation could reasonably expected obtain employment find respondent liable pay compensation accordance 131 1988 act 6 july 1989 25 accordingly tribunal decides 1 decision review isset asideand decision substituted respondent liable pay compensation applicant 6 july 1989 2 respondent shall pay cost applicant proceeding absence agreement party cost taxed deputy registrar tribunal 3 liberty apply reserved party
BJE16 v Minister for Immigration and Border Protection [2017] FCA 1286 (6 November 2017).txt
bje16 v minister immigration border protection 2017 fca 1286 6 november 2017 last updated 7 november 2017federal court australiabje16 v minister immigration border protection 2017 fca 1286appeal bje16 v minister immigration anor 2017 fcca 1201file number nsd 773 2017judge besanko jdate judgment 6 november 2017catchwords migration consideration appeal decision federal circuit court dismissing application judicial review decision administrative appeal tribunal appellant given notice original decision minister immigration border protection delegate appellant purported lodge application review tribunal outside prescribed period tribunal notified appellant consider application review valid invited make comment tribunal receive comment appellant tribunal decided jurisdiction case appellant application review legislation migration act 1958 cth s 411 412 414 425 494cmigration regulation 1994 cth reg 4 31date hearing 1 november 2017registry new south walesdivision general divisionnational practice area administrative constitutional law human rightscategory catchwordsnumber paragraph 12counsel appellant appellant appeared personsolicitor first respondent m n johnson mill oakleycounsel second respondent second respondent entered submitting notice save costsordersnsd 773 2017between bje16appellantand minister immigration border protectionfirst respondentadministrative appeal tribunalsecond respondentjudge besanko jdate order 6 november 2017the court order appeal dismissed appellant pay first respondent cost incidental appeal note entry order dealt rule 39 32 thefederal court rule 2011 reason judgmentbesanko j appeal order made federal circuit court 5 may 2017 federal circuit court made order dismissing appellant application judicial review decision administrative appeal tribunal bje16 v minister immigration anor 2017 fcca 1201 reason follow appeal dismissed appellant citizen fiji last arrived australia 10 february 2015 15 january 2016 made application protection visa gave current residential address address auburn new south wale 8 march 2016 delegate minister decided appellant application refused appellant advised decision letter appellant auburn address dated 8 march 2016 letter sent post 9 march 2016 delegate decision part 7 reviewable decision withins 411of themigration act 1958 cth act say decision refuse protection visa reason ofs 412of act applicant may make application review decision tribunal validly applicant must make application tribunal within prescribed period period case 28 day notification decision see reg 4 31 2 themigration regulation 1994 cth act provides person taken given notice decision case notice prepaid post place australia address australia 494c 4 provides person taken received document seven working day date document case unchallenged finding notification decision taken given 17 march 2016 appellant purported make application review tribunal 26 april 2016 address given appellant application review auburn address also gave email address 28 april 2016 tribunal sent letter appellant email address advising consider application review valid one inviting make comment 12 may 2016 tribunal receive comment 27 may 2016 tribunal decided jurisdiction case appellant application review operation 412 1 b reg 4 31 494c 4 appellant lodged application judicial review 31 may 2016 application challenged minister decision amended application dated 16 september 2016 challenged tribunal decision ground amended application follows administrative appeal tribunal constructively failed exercise jurisdiction failed recognise take account consideration jurisdiction circumstance particular claim case administrative appeal tribunal constructively failed exercise jurisdiction failed breach ofsection 425of themigration act 1958for failing review application administrative appeal tribunal denied procedural fairness decision legally unreasonable failed recognise take account consideration jurisdiction given fact minister notified decision according law brought case viewable decision according law tribunal jurisdiction also rely alternative ground original application addition ground outlined paragraph 1 3 error original appellant appeared person court assistance interpreter said relied matter relied federal circuit court submission made primary judge referred ground original application said open court review minister decision right seek review decision tribunal conclusion correct primary judge turned consider appellant amended application rejected appellant allegation tribunal failed exercise jurisdiction relation application review obligation review unders 414of act arose relation valid application review unders 412of act appellant made valid application review unders 412 primary judge also rejected argument tribunal failed comply withs 425of act failure obligation give applicant opportunity appear arose relation decision review decision review primary judge rejected complaint denial procedural fairness observing one area tribunal obliged afford appellant procedural fairness e view appellant made valid application review done carefully considered reason primary judge opinion err circumstance appeal must dismissed cost certify preceding twelve 12 numbered paragraph true copy reason judgment herein honourable justice besanko associate dated 6 november 2017
Aumann v Manningham CC [2004] VCAT 1969 (7 October 2004).txt
aumann v manningham cc 2004 vcat 1969 7 october 2004 last updated 26 october 2004victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1819 2004permit pl03 014491catchwordssection 80 planning environment act 1987 manningham planning scheme subdivision condition permit safe driveway access provision section 173 agreement applicantaumann familyresponsible authoritymanningham city councilsubject landharris gully road warrandytewhere heldmelbournebeforemargaret baird senior memberhearing typefull hearingdate hearing5 october 2004date order7 october 2004citation 2004 vcat 1969orderin permit pl03 014491 decision responsible authority varied follows description address land amended deletion reference volume 79 folio 492 condition 1 varied follows part deleted replaced following nomination driveway envelope proposed lot 9 405ha access harris gully road approximately 100 metre north existing access track existing lot 2 02ha part c deleted part e numbered b new part added follows c identification lot number accordance plan annotated victorian civil administrative tribunal application review p1819 2004 condition 4 varied follows word lot first line part replaced word lot 1 6 8 9 shown plan annotated victorian civil administrative tribunal application review p1819 2004 part b deleted replaced following b ensure native tree lot 1 6 8 9 including dead tree marked removed endorsed plan destroyed felled lopped ring barked uprooted without written approval responsible authority part c word lot deleted replaced following lot 1 6 8 9 part word lot 1 2 3 6 8 9 added word envelope first line part e deleted part f deleted replaced following e ensure tennis court constructed lot 1 6 8 9 without written approval responsible authority part g numbered f amended addition word lot 8 9 word common driveway area first line part h numbered g amended addition following word unless manningham planning scheme amended planning control introduced enables subdivision land responsible authority directed issue permit accordance order margaret bairdsenior memberappearancesfor applicantmr p bisset solicitor minter ellison lawyer responsible authorityms n swan senior planner reasons1 application undersection 80of theplanning environment act1987
LJ Hannaford and EG Allen v Hobart City Council [2001] TASRMPAT 217 (17 December 2001).txt
lj hannaford eg allen v hobart city council 2001 tasrmpat 217 17 december 2001 lj hannaford eg allen v hobart city council 2001 tasrmpat 217 17 december 2001 file 185 01 p j 217 2001s54 lupaa 1993 request information house residential 2 reserved residential zone whether discretionary permittedbetweenlj hannaford eg allen appellantsandhobart city council respondentthis appeal request hobart city council information respect application pursuant tosection 54of theland use planning approval act 1993 respect land 1a enterprise road sandy bay application heard hobart 19 november 2001a spence counsel appeared behalf appellantsr barron counsel appeared behalf hobart city council decision1 application made permit construct house land upper slope mount nelson land partly residential 2 zone part land zoned reserved residential land also partly hill face zone land subject city hobart planning scheme 1982 scheme house sited wholly within reserved residential zone within precinct 37d scheme access obtained via existing track frontage property enterprise road proposal undertake work respect land within hill face zone 2 hobart city council made request information applicant pursuant tosection 54of theland use planning approval act 1993 land use act section read additional information54 1 planning authority may notice writing served applicant within period 21 day day receives application permit require applicant provide additional information considers application 2 planning authority requires applicant provide additional information period referred insection 57 6 b or58 2 whichever applicable run request information answered satisfaction planning authority 3 appellant lodged appeal request information upon ground insofar necessary referred later decision 4 fact dispute tribunal find according 5 preliminary issue whether proposed development properly classified within permitted discretionary use class scheme 6 clause 1 6 1 scheme provision made called exemption provision relevantly read 1 6 1 notwithstanding provision section 1 5 1 planning approval shall required following development h location formation layout construction driveway compliance requirement city engineer case access state classified road sought requirement department infrastructure energy resource 7 consequence notwithstanding use class driveway might otherwise fall notwithstanding zone precinct land might access driveway exempt requirement planning approval question classification whether permitted discretionary otherwise relevant 8 table a1 schedule relevantly provides residential 2 zone precinct 37d residence permitted use hill face zone residence discretionary use note e hill face zone read control zone also apply part precinct 35c 37d designated reserve residential reticulated service become available us parent precinct apply 9 principal house noted entirely within residential 2 zone precinct 37d within area designated reserved residential specified amongst fact referred council tribunal infers reticulated service presently available area within proposed construct house event case note e table a1 schedule applies 10 submitted appellant intention drafter scheme house precinct 35c 37d discretionary would clearly stated put would mean extra entry table us respect relevant precinct stating use group 1 house discretionary use precinct pointed note table contain number specified departure stated certain use either discretionary prohibited within zone example note f g h j k l n p q r u v therefore contended council wished determine use group 1 proposal discretionary precinct 35c 37d would note residential 2 along following line except 35c 37d use group 11 also contended word control denoted something different classification use density control schedule b siting landscape schedule schedule traffic access parking clause schedule e signage provision schedule g capable applying present proposal contended control referred note e table a1 control refer use classification table 12 literal sense force contention also important look purpose table note appears control purpose provision made note e clearly control development relevant precinct reticulated service become available stage use control parent precinct apply matter density siting landscape traffic access signage also either unrelated remotely related question reticulated service nothing apparent purpose note e factor density siting landscape traffic access parking possibly signage would affected presence residence consequent use reticulated service need subject matter note e construe note e referring control rather whether house may constructed permitted opposed discretionary basis would mean note e would effect house consequent use service would permitted rather discretionary however house discretionary availability could taken account determining whether house allowed 13 reason tribunal considers note e schedule table a1 scheme effect portion subject site proposed construct appellant house one use classification applicable hill face apply therefore house discretionary use development 14 relevance access way hill face zone referred contended fact planned gain access hill face zone affect consequence construction note e table a1 tribunal agrees proposition 15 contended behalf appellant effect schedule 1 scheme clearing vegetation required purpose fire hazard reduction would exempt requirement permit scheme involve removal destruction tree listed appendix 1 schedule scheme tree dimension specified appendix conceded appellant asserted proposed clearing purpose fire hazard reduction therefore exempt applicant would adequately support assertion council respond contention save seek reserve right make submission matter tribunal found application discretionary schedule scheme tribunal found application discretionary council made submission respect effect schedule 1 receives information tribunal observe present stage schedule permit required criterion set schedule satisfied council need know whether application one permitted discretionary development order comply notification process case may council therefore need know part application information supplied applicant case pursuant section 54 request sufficient determine whether application involves removal 500 m2 removal destruction tress listed appendix 1 tree specified dimension 16 consideration apply provision additional information respect height schedule c scheme applies council need information determine whether schedule c scheme applies require exercise discretion 17 information respect vegetation clearance required event schedule applies notwithstanding construction driveway exempt requirement permit proposed construction driveway invokes schedule schedule carry requirement planning approval event appellant required supply information necessitated provision 18 gratuitous observation following site visit viewing various location tribunal note instead passing bay along access driveway island vegetation one way access passing either side provided would considerably reduced visual impact location narrower access would readily screened vegetation 19 uncertain whether council wish make submission respect particular tribunal order supplied council address matter written submission 20 absence submission tribunal would order matter referred mr shephard undated proof evidence commencing introduction proof evidence 19th october 2001 follows paragraph 2 2 also regent street churchill avenue city clark road fitzroy place adjacent southern outlet paragraph 2 2 b c e amended read indication site plan tree greater 5 metre height 40 centimetre circumference required removed enable construction site structure work access fire protection 21 addition tribunal would order detail servicing including detail location size shape colour finish proposed tank detail storm water disposal supplied 22 contended council particular sewerage disposal supplied sewerage disposal matter addressed thebuilding regulation appropriate leave detail application 23 contended council flora fauna survey provided matter referred following paragraph subject submission sufficient 24 upon basis submission made behalf appellant tribunal would presently intend uphold requirement cultural impact assessment vegetation tree vegetation clearance plan term suggested paragraph 8 2 page seagers submission 26th november 2001 25 matter however determined receipt submission council wish make matter within 10 day date decision 26 tribunal entertain application order cost appeal made tribunal writing supporting submission within next fourteen day requested tribunal reconvene hear evidence respect matter bearing order cost 27 absence application order cost order tribunal party bear cost dated 17 december 2001bh mcneillkam pitt qcmemberchairman
Australian Securities and Investments Commission v Accounts Control Management Services Pty Ltd [2012] FCA 1164 (26 October 2012).txt
australian security investment commission v account control management service pty ltd 2012 fca 1164 26 october 2012 last updated 29 october 2012federal court australiaaustralian security investment commission v account control management service pty ltd 2012 fca 1164citation australian security investment commission v account control management service pty ltd 2012 fca 1164parties australian security investment commission v account control management service pty ltd acn 050 268 141 acm group ltd acn 127 181 097file number nsd 684 2011judge perram jdate judgment 26 october 2012catchwords trade practice misleading deceptive conduct application australian security investment commission alleging misleading deceptive conduct debt collection agency allegation agency misled debtor making various representation inter alia likelihood imminence possible impact court proceeding whether misleading deceptive conduct establishedtrade practice unduly harassing coercive conduct application australian security investment commission alleging unduly harassing coercive conduct debt collection agency allegation agency engaged unduly harassing coercive conduct inter alia threatening legal proceeding contacting third party threatening consequence whether unduly harassing coercive conduct establishedwords phrase unduly harassing coercive consideration meaning given word unduly context debt collection whether unduly qualifies harassing coercive legislation australian security investment commission act 2001 cth s 12da 12djpayment system regulation act 1998 cth 11trade practice act 1974 cth 52 60australian security investment commission regulation 2001 cth reg 2bcases cited ahmed v harbour radio pty ltd 2009 fca 1113 2009 180 fcr 313appliedaustralian competition consumer commission v maritime union australia 2001 fca 1549 2001 114 fcr 472appliedaustralian competition consumer commission v mccaskey 2000 fca 1037 2000 104 fcr 8appliedaustralian competition consumer commission v msy technology pty ltd 2 2011 279 alr 609 2011 fca 382citeddate hearing 23 24 26 27 april 16 may 2012place sydneydivision general divisioncategory catchwordsnumber paragraph 350counsel plaintiff stacksolicitor plaintiff australian security investment commissioncounsel defendant g sirtes sc j petrolosolicitor defendant beilby poulden costelloin federal court australianew south wale district registrygeneral divisionnsd 684 2011between australian security investment commissionplaintiffand account control management service pty ltd acn 050 268 141first defendantacm group ltd acn 127 181 097second defendantjudge perram jdate order 26 october 2012where made sydneythe court order party bring short minute order give effect reason within 14 day note entry order dealt rule 39 32 federal court rule 2011 federal court australianew south wale district registrygeneral divisionnsd 684 2011between australian security investment commissionplaintiffand account control management service pty ltd acn 050 268 141first defendantacm group ltd acn 127 181 097second defendantjudge perram jdate 26 october 2012place sydneyreasons judgmenti introduction 1 ii relevant principle 10 iii general fact 19 iv telephone call 45 debtor one 49 call 1 27 march 2009 56 call 2 31 march 2009 60 call 3 3 april 2009 63 call 4 8 april 2009 65 call 5 17 april 2009 68 call 6 28 april 2009 72 call 7 6 may 2009 75 call 8 7 may 2009 78 call 9 11 may 2009 80 call 10 13 may 2009 82 call 11 13 may 2009 83 call 12 15 may 2009 86 call 13 15 may 2009 88 call 14 15 may 2009 90 call 15 15 may 2009 92 call 16 15 may 2009 94 call 17 15 may 2009 96 call 18 18 may 2009 100 call 19 22 may 2009 102 call 20 25 may 2009 105 call 21 25 may 2009 108 call 22 25 may 2009 110 call 23 27 may 2009 114 call 24 27 29 may 2009 9 june 2009 116 call 28 11 june 2009 118 conclusion debtor one 120 b debtor two 126 call 29 22 december 2008 130 call 30 22 december 2008 132 call 31 33 19 march 2009 21 april 2009 136 conclusion debtor two 138 c debtor three 141 call 34 3 december 2008 146 call 35 4 december 2008 149 call 36 22 december 2008 151 call 37 18 march 2009 153 call 38 18 march 2009 155 call 39 15 april 2009 158 conclusion debtor three 160 debtor four 165 call 40 30 april 2009 170 call 41 44 25 june 2009 22 september 2009 172 call 45 2 october 2009 174 call 46 24 november 2009 176 call 47 25 november 2009 179 call 48 27 november 2009 181 call 49 27 november 2009 184 call 50 30 november 2009 189 call 51 30 november 2009 191 call 52 11 december 2009 194 conclusion debtor four 196 e debtor five 200 call 53 24 november 2008 204 call 54 57 3 december 2008 6 january 2009 206 call 58 13 february 2009 209 call 59 17 february 2009 211 call 60 20 february 2009 213 call 61 20 april 2009 215 call 62 11 august 2009 217 call 63 23 december 2009 219 call 64 8 january 2010 221 call 65 19 january 2010 223 call 66 19 march 2010 225 call 67 19 march 2010 227 call 68 24 march 2010 229 call 69 25 march 2010 231 conclusion debtor five 233 f debtor six 236 call 70 16 december 2008 240 call 71 17 december 2008 242 call 72 23 december 2008 245 conclusion debtor six 247 g debtor seven 251 call 73 28 may 2009 254 call 74 2 june 2009 256 call 75 4 june 2009 259 call 76 26 june 2009 261 call 77 26 june 2009 262 call 78 26 june 2009 264 call 79 26 june 2009 266 conclusion debtor seven 268 h debtor eight 272 call 80 14 july 2009 276 call 81 14 july 2009 278 call 82 20 july 2009 280 call 83 16 december 2009 282 call 84 4 january 2010 284 call 85 4 january 2010 286 call 86 4 january 2010 288 call 87 4 january 2010 290 call 88 4 january 2010 292 call 89 5 january 2010 293 call 90 16 june 2010 295 call 91 16 june 2010 296 call 92 16 june 2010 298 call 93 17 june 2010 299 call 94 18 june 2010 301 call 95 18 june 2010 303 call 96 21 june 2010 305 conclusion debtor eight 307 v whether grant declaratory relief 313 misleading deceptive conduct 315 significance contravention 315 b change manual 316 c change ownership 317 form declaration 321 unduly harassing coercive conduct 323 significance nature contravention 323 b change ownership 325 vi whether grant injunctive relief 327 vii claim asic act maintained 329 viii relief 350 introductionthe second defendant acm group ltd debt collector first defendant account control management service pty ltd predecessor entity second defendant assumed conduct first defendant business july 2009 except context otherwise requires refer business regardless entity conducting relevant time acm acm purchase outstanding debt financial institution national australia bank nab corporates telstra acquired debt us workforce seek recover portion face value debt question buy debt steep discount face value typically discount 79 99 need recover much making profit case concerned method adopted acm pursue recalcitrant debtor make pay generally done telephone call outward bound call centre employee acm plaintiff asic alleges large number occasion telephone call acm employee said thing true example lawyer retained sue debtor conversation unduly harassing coercive acm recorded call asic relied upon large quantity transcript telephone call together audio file transcript drawn submitted number instance hectoring tone took place could wholly grasped written word page illegal engage misleading deceptive conduct conduct unduly harassing coercive asic claimed relief defendant court issue injunction restraining engaging conduct future declaratory relief also sought defendant accepted instance upon asic relied misleading deceptive conduct established whilst accepted accuracy recording transcript disputed least instance asic characterisation conduct misleading deceptive insofar allegation defendant engaged conduct unduly harassing coercive concerned defendant accepted factual substratum asic case denied case conduct bore characterisation asic sought put inherent defensive posture least far factual argument concerned contravention would found defendant submitted relief would withheld asic three related reason first viewed full context contravention minor historical secondly particularly case second defendant successor first defendant many breach identified asic related first defendant conduct thirdly internal arrangement acm altered overcome whatever systemic difficulty past staff manual revised staff question moved taken altogether need relief granted put matter compendiously nothing wrong possibility line defence might prove insufficient acm deployed supplementary legal argument noted asic claim relief premised least initially onss 12daand12djof theaustralian security investment commission act 2001 cth asic act depended enlivenment upon whether defendant could said providing financial service within meaning act acm submitted debt recovery activity could plausibly described provision financial service relief asic act unavailable asic course denied weather eye invoked identical provision formertrade practice act 1974 cth tpa however dependent upon presence financial service enlivenment defendant countered beyond asic statutory function seek remedy former tpa short defendant submitted asic act former tpa stool asic betwixt upon insofar fact concerned asic case advanced relation eight debtor refer debtor one eight preserve anonymity turn first relevant principle ii relevant principlesonly two area discourse involved misleading deceptive conduct conduct said unduly harassing coercive former debate party asic case simply thing said call centre staff true related future matter lacked reasonable basis contention made good subject defendant general argument non application asic act former tpa breach relevant section would established section 12da 1 asic act person must trade commerce engage conduct relation financial service misleading deceptive likely mislead deceive 52 1 former tpa corporation shall trade commerce engage conduct misleading deceptive likely mislead deceive section 52 relevant provision rather corresponding provision thecompetition consumer act 2010 cth event question antedate commencement agreed correctly effect transitional provision legislation operation provision explained inaustralian competition consumer commission v msy technology pty ltd 2 2011 279 alr 609 2011 fca 382at 5 6 minor debate party question undue harassment coercion approached relevant proscription contained 12dj 1 asic act follows person contravenes subsection person us physical force undue harassment coercion b person us force harassment coercion connection supply possibly supply financial service consumer payment financial service consumer relevant section former tpa 60 follows corporation shall use physical force undue harassment coercion connection supply possible supply good service consumer payment good service consumer present circumstance word matter use physical force undue harassment coercion first matter clear rule undue harassment rather mere harassment content word undue vary circumstance context confronting business debt collection likely significant impact definition class person find fallen hand debt collection agency likely whatever reason met legal obligation necessary context one therefore law contract ordinary usage lending failed secure compliance debtor obligation repay expected case debt collector must proceed prayer meeting course limit everything inaustralian competition consumer commission v mccaskey 2000 fca 1037 2000 104 fcr 8at 27 48 french j thought context debt collection frequency nature content approach communication debt collector calculated intimidate demoralise tire exhaust debtor rather convey demand associated legitimate threat proceeding harassment undue view endorsed hill j inaustralian competition consumer commission v maritime union australia 2001 fca 1549 2001 114 fcr 472at 485 60 foster j inahmed v harbour radio pty ltd 2009 fca 1113 2009 180 fcr 313at 321 323 33 test ass unduly harassing coercive nature call turning coercion debate whether undue qualifies harassment whether instead qualifies coercion well reason given hill j inaustralian competition consumer commission v maritime union australiaat 485 58 likely french j regard coercion governed undue hill j reached contrary view undue qualify coercion see 485 486 59 62 agree view hill j nothing add consequently required coercion however stronger word harassment connotes hill j observed inaustralian competition consumer commission v maritime union australiaat 485 61 negation choice freedom act course whether particular discussion conversation revealed unduly harassing coercive depend upon line line analysis rather overall impression turn fact iii general factsasic case based misleading deceptive conduct premised claim acm told debtor nature business intended action false example said acm litigation firm commence proceeding correctness otherwise claim may assessed necessary grasp broad outline day day way acm business conducted acm employ around 280 staff around 90 collection officer staff work acm premise melbourne sydney sydney two set office one elizabeth street castlereagh street central business district collection officer organised team presided team leader collection officer portfolio debtor debtor could fall different category credit card debtor personal loan debtor corporate debtor telstra customer according one acm former employee called mr tompson acm debtor debt outstanding considerable time size collection officer portfolio fluctuated unusual 300 debtor mr tompson work involved easy many debtor might naturally expected abusive others 80 total evasive return call became uncontrollable strategy used debtor varied general aim get debtor pay account full agree kind arrangement debt would paid time interest sometimes interest freeze might offered detail history debtor recorded computer system called debtsmart allowed collection officer see history debtor perhaps result rather confrontational nature work turnover rate collection officer quite high 50 per annum work collection officer always phone never face face sending email letter collection officer upon hired acm employee given training manual time relevant event subject present proceeding manual form exhibit 2 manual suggested various script might used assist debtor coming decision pay manual made plain debtor threatened litigation one responsibility collection officer according manual use litigation speaking debtor suggested litigation threat ranged relatively innocuous wish offer opportunity settle account legal proceeding commence developed threat one mr mr m surname reason call today courtesy call due fact received physical file morning solicitor unfortunately requested solicitor put forward final recommendation reference outstanding amount balance need finalise recommendation later note exact time paper refer back later part conversation looking file give time noticed file statement liquidated claim drawn set issuance local court sydney give exact date give exact time pause mr mr m debtor surname understand statement liquidated claim debtor answer yes ask debtor explain confirm debtor answer explain saying series document basically called summons emphasis original many part manual encouraged collection officer make strong suggestion lawyer already involved account example script important phrase received strict instruction solicitor proceed litigation even know matter solicitor sic file come meeting solicitor respect 3 matter unfortunately 1 one closing call receive receipt time account deemed paid adbide sic agreement unfortunately hand final recommendation solicitorsor new line help help solicitor good look file sic advised assist tomorrow 3 00pm account accumulate 350 00 worth legals sic fee last chance go court account brought solicitor office expecting response proceed litigation 2 30pm afternoon reminder solicitor given one last chance settle account true defendant legal section employed 4 5 people also true completely unheard defendant pursue proceeding however fairly rare event mr brabazon acm chief operating officer gave evidence would occur recommendation section manager would result referral debtor legal section section consideration matter might sent external solicitor percentage debtor subject legal action quite small mr brabazon shown exhibit 18 schedule total number account month period september 2008 january 2010 also showed number account legal status indicated b judgment obtained c legal fee charged month march 2009 typical 489 752 open debtor account 2071 legal status 95 pursued judgment 458 involved charging legal fee one cannot precise matter percentage debtor account sent legal department le 0 5 number legal fee incurred le 0 1 one take defendant legal department sense common part business refer debtor section matter referred legal section done recommendation section manager individual collection officer way collection officer position threaten commence litigation least threat accurate mean course manual first defendant prepared suggesting collection officer make statement true misleading conduct ensued hardly surprising turn statement actually made asic contended make number specific factual finding defendant business specific finding formed basis later claim acm engaged misleading deceptive conduct particular matter defendant employ house lawyersit follow said 28 29 contention correct defendant small legal section b defendant specialise commencing legal proceeding debtor recovery debtsi accept contention whilst defendant infrequently commence proceeding minor aspect business could described speciality c defendant infrequently commenced legal proceeding debtor recovery debtsfor reason already given accept proposition defendant utilise officer sheriff new south wale serve originating process affidavit swornat trial one able point practice new south wale service taking evidence effected manner acm manual however encouraged collection officer tell debtor court document would served sheriff officer stress dressed like police man sic come marked car e defendant position immediately commence proceeding debtorsalthough acm legal department small frequently cause proceeding commenced mean legal department incapable commencing proceeding particular debtor could rapidly necessary reject proposition paragraph 24 27 referred manual distributed collection officer asic began inquiry chief operation manager mr brabazon decided examine little carefully mr brabazon commenced acm 2008 perhaps little surprising acquainted manual 2010 asic began inquiry little made would appropriate take aspect matter mr brabazon opinion mine also many aspect manual encouraged collection officer engage misleading conduct dealt already perhaps matter best summarised mr brabazon evidence t106 case collection officer involved legal process correct sorry collection officer involved legal process per se term process adopted legal proceeding would involve others organisation yes became aware problem mr brabazon reviewed manual result produced new manual misleading part excised noted earlier manual encourage misleading deceptive conduct encourage collection officer engage unduly harassing coercive conduct way behaviour described 12 17 indeed manual repeatedly instructed collection officer conduct professional manner manual stand alone collection officer given phase initial training mr brabazon gave evidence process going training consisting ad hoc session well additional training might arise collection officer review asic submit training arrangement unsatisfactory although comparison operator call centre might suggested regular training could structured nevertheless suggested say mr brabazon gave evidence call monitoring often aware often call monitored call monitored regularly monthly complaint made primarily responsible reviewing monitoring call section manager call staff complaint come mr oates office listens call asic submit level call monitoring inadequate although decide matter basis seem quite unrealistic expect much adherence procedure specified manual operator monitored infrequently upshot result mr brabazon review manual place encourage misleading behaviour training régime whose particular aspect subject criticism system call monitoring alleged asic inadequate pressed counsel asic conceded since introduction new manual evidence new complaint consistent inference minded draw new manual largely eliminated difficulty identified insofar misleading deceptive conduct concerned asic submitted significant acm compliance officer called fact chief operation officer rewrote manual called quite see asic submission advance matter mr brabazon cross examined old manual accepted inappropriate many way unsurprising evidence since already elicited chief challenged evidence training call monitoring absence attack difficult know would go rejecting mr brabazon evidence matter failure call compliance manager might aid process circumstance conclude misleading deceptive conduct occurred largely function manual place b manual replaced evidence repetition former conduct second important factual matter concern structure acm group current entity operating business second defendant acm group ltd business formerly operated first defendant australian control management service pty ltd entity ultimately control mr humberto vieira mr brabazon evidence decided business would floated way initial public offering ipo ipo proceeded aspect ipo business transferred first defendant second defendant end undated deed executed assigning debt owned first defendant second defendant mr brabazon evidence deed executed july 2009 asic sceptical evidence suggesting obliquely instead device avoiding granting relief scepticism however would needed put case occurred groundwork argument opinion place circumstance conclude transfer business aspect ipo abandoned b impact day day running business c business remains control mr vierira day day management mr brabazon iv telephone callsasic case traced trial tribulation eight debtor hand acm 96 separate call must dealt useful note introductory matter evidence asic regulator course compulsory power examination used power extensively antecedent investigation particular examined number acm employee including call centre staff transcript examination oath taken minor objection asic tendered following transcript included brief description employee position wade dennis collection officer ex 8rebecca thompson collection officer ex 9alex khalil collection officer later team leader ex 10ryan clarke collection officer later team leader section manager ex 11melissa teuma collection officer later senior staff member ex 12paul brabazon chief operating officer ex 13i find way asic dealt material helpful provided nine page document entitled important passage employee transcript contained 96 reference give flavour one entry read page 14 line 25 page 16 line 17 training 95 entry precisely meant sort submission unclear end decided ignore luxury available case 96 telephone call upon party relied necessary deal position debtor debtor oneit appears debtor one formerly credit card debt commonwealth bank acm purchased debt time came acm hand vicinity 21 690 13 debtor one initially entered collection system 14 may 2008 acm ledger entry debtor one 13 page long record many discussion took place various collection officer acm 14 may 2008 8 july 2009 married husband unaware existence credit card debt ultimately asic relied upon 21 individual telephone discussion acm also relied upon number broadly speaking seven way asic alleged acm engaged misleading deceptive conduct acm represented debtor one husband neighbour friend acm employed house lawyer b acm specialised commencing legal proceeding debtor recovery debt c acm frequently commenced legal proceeding debtor recovery debt matter referred acm lawyer purpose commencing legal proceeding e acm decided could would commence legal proceeding shortly debtor one could would f acm going send sheriff officer serve document upon g acm going commence bankruptcy proceeding debtor one noted 30 already rejected basis acmdoesemploy house lawyer also rejected e extent suggests acm could commence legal proceeding rapidly additionally asic also submitted acm engaged undue harassment coercion threatening inform debtor one husband indebtedness debtor one already told acm husband know want know b threatening call debtor one friend employer repaid debt c threatening sherriff officer attend house effect service going happen threatening immediately commence bankruptcy proceeding going happen e calling third party employer neighbour friend expectation would tell debtor one acm contacted f making representation outlined 50 set portion transcript various call upon party rely present purpose feature noted persistent suggestion husband would informed debt either directly one case suggestion would work marked car site b discussion took place debtor one neighbour c constant threat legal action various kind offensive nature remark turn conversation say party created colour coded chart indicating position call part call issue extracted useful coloured yellow relied upon asic pink relied upon party blue relied upon acm neither party made submission particular call misleading deceptive unduly harassing coercive acm admit asic allegation likewise colour coded pleading although extensively end necessary ass call debtor one case 28 relevant call call 1 27 march 2009asic relied call following exchange took place male speaker receiving letter soon transfer credit card outstanding debt litigation company company acm debtor one okay male speaker commonwealth bank sold debt u debtor one okaymale speaker okay handling affair legal department basically commonwealth bank exhausted attempt reclaim amount sent legal department department male speaker legal case pending two aspect simply wrong recovery officer legal department acm litigation company court case pending misleading conduct established neither unduly harassing coercive conduct established however noted 14 unduly harassing conduct shown exist frequency nature content approach communication debt collector calculated intimidate demoralise tire exhaust debtor shown exist demand threat legal proceeding legal proceeding legitimate option open creditor think mere communication threat legal action without amount unduly harassing conduct even term threat misleading deceptive furthermore conduct call 1 coercive attempt remove debtor one freedom act see 16 call 2 31 march 2009both acm asic relied upon call 2 took place debtor one received letter referred call 1 included following quang planning take matter legal debtor one yes quang commonwealth bank sold company debtor one yes quang specialise litigation take matter court judge ask receipt account detail see whether pay quang debtor one need document course legal department stat dec get hand stat dec quang sent litigation department debtor one okay quang bank debtor one yes quang deal customer service debtor one sure quang take debtor court dealt although case acm escalate matter legal department one evidence suggests date proposal escalate matter way misleading suggest proposal misleading claim acm company specialising litigation caller legal department case call unduly harassing coercive reason given relation call 1 call 3 3 april 2009both acm asic relied upon call 3 included following male speaker spoke believe husband name given name given debtor one male speaker aware aware debt debtor one male speaker obviously want kept rug debtor one oh definitely yes nothing misleading exchange think anything unduly harassing coercive considered isolation however seen information gleaned acm exchange recorded acm ledger report debtor one used subsequent call harass coerce debtor one call harassing coercive lay groundwork subsequent unduly harassing coercive conduct call 4 8 april 2009both acm asic relied upon call 4 included following male speaker yes need know yes might proceed legal action expressed remark might happen future attempt made submit debtor one case prospect accept small number case litigation occur explained circumstance might trigger action circumstance cannot find statement admittedly couched somewhat uncertain term reasonable basis accordingly misleading call unduly harassing coercive reason given relation call 1 call 5 17 april 2009asic relied upon call included following male speaker yes understand matter brink going legal giving call many time willing give 27th male speaker 27th tell legal department receive result go legal debtor one okay male speaker big amount 21 000 go legal serve statement liquidated claim debtor one okay male speaker address two sheriff debtor one okay male speaker sign paper tell matter going court know want husband know happens marked marked car going driveway hand letter sure would finally realise problem spoken husband maybe help male speaker legal department know either property let pull file address given belongs debtor one right male speaker either husband know property also know work full time know position pay u debt debt owe enforce enforce law debtor one okay male speaker unfortunately debtor one indistinct male speaker like said job going enforce lawyer solicitor going enforce male speaker bank require payment week sticking neck said know lady genuine give time sure come money male speaker okay put note calling back 27th update legal department regard matter right misleading collection officer going tell legal department shown matter go legal statement claim issued sheriff coming lawyer act speaker going update legal department suggestion would marked car debtor one house two sheriff officer combined observation collection officer knew debtor want husband know situation effect tactic officer sought intimidate debtor suborn thereby unduly harassing coercive hand reference debtor one home ownership neither unduly harassing coercive legal proceeding followed enforcement debtor one property legitimate option acm see 14 call 6 28 april 2009asic relied upon call included following quang yeah thing debtor one listen getting grilled legal team debtor one yes okay quang last week last couple day debtor one yes quang asking proceeded legal action quang telling legal department overtaking case debtor one okay quang maybe three four day already conducted land title search know name given husband debtor one mmm hmm quang owns property believe address given debtor one mmm hmm quang yes gathering evidence whether reasonable take legal action quang whether overwritten legal department know quang litigate matter operate like bank provide customer service oh yes give one week another week another week take legal misleading collection officer grilled legal team legal action imminent legal department take case 3 4 day image projected acm litigate matter correct business context previous call reference debtor husband veiled threat expose reason previously given unduly harassing coercive reason given relation previous call however reference home ownership neither unduly harassing coercive call 7 6 may 2009both asic acm relied upon call 7 included following quang yes legal action commence 48 hour court document drafted name debtor one right quang stamped magistrate debtor one right quang becomes legal document serve address two sheriff officer marked car misleading legal action imminent magistrate stamped process going sheriff officer would marked car reason given relation call 5 reference sheriff officer marked car coercive call 8 7 may 2009asic relied upon call 8 included following quang like letter say legal document drafted need approval go ahead get stamped magistrate become court document misleading reason previous call unduly harassing coercive reason given relation call 1 call 9 11 may 2009both asic acm relied upon call 9 followsquang spoken legal department debtor one please one last chance wednesday please quang debtor one take personally matter debtor one know quang legal department quang could suggest legal department choose already drafted document process collecting information property speak 22 000 case quang 90 likelihood come back say need time free whatever case looking recovering 22 000 debtor one yes quang legally debtor one yes quang quite confident telling quang okay look put suggestion meeting today vote whether case going quang telling right still ascertaining legal document know delaying ball keep rolling soon snowball unfortunately hand misleading legal action imminent matter referred lawyer unduly harassing coercive reason given relation call 1 call 10 13 may 2009both asic acm relied upon call 10 though neither party drew attention part call placed acm business debtor one apparently used work whose employ left time call reviewed call find nothing improper acm mislead business unduly harassing coercive towards debtor one unaware call cannot misled unduly harassed coerced call 11 13 may 2009both asic acm relied upon call 11 included following quang yes listen kept word waited long time unfortunately going hand case solicitor quang 2 000 200 case 22 000 case whole team waiting authority debtor one know quang process legally quang debtor one played way play way least play one forcing look hold legal action hold authority sign let solicitor handle case need figure commit paying friday quang take back solicitor telling whole room laughing giving someone someone owes money debtor many chance know going fall solicitor working industry 20 year seen many excuse kidding always fall quang okay go back solicitor saying took stat dec hold liable way could save arse way got extension win win situation misleading implied fictional interaction legal department reason given relation call 1 unduly harassing coercive conduct call 12 15 may 2009asic relied upon call 12 included following debtor one well husband rang said someone called quang litigation debtor one talking quang one litigation department called take collection officer made good threat speak husband coercive rather occurs coercion failed doubt circumstance specie harassment question whether undue harassment opinion improper conduct debt unrelated husband likely although inevitable consequence contacting husband marital strife one need determine whether wrong interfere debtor relationship husband suffices instead observe certainly wrong interfere husband relationship debtor third party involved undue harassment call 13 15 may 2009asic relied upon call 13 acm called one debtor one neighbour included following male speaker yes hello residence address given neighbour yes male speaker yes going know surname given family address given phone working surname given residence neighbour surname given yes male speaker yes phone working neighbour neighbour phone male speaker calling acm group litigation department urgent civil message unfortunately council advised phone cut temporarily unavailable neighbour oh male speaker yeah possible pas message neighbour yes well male speaker quite quite urgent need answer five clock today neighbour acm male speaker correct neighbour yes male speaker legal department neighbour legal male speaker asks neighbour pas message debtor one husband call acm male speaker yes great message simple debtor one husband misleading call legal department contacting debtor neighbour asking pas message debtor husband opposed debtor also distinctly unsavoury tactic specie harassment coercion showing dichotomous quite unacceptable involving third party machination carried implicit suggestion exposure might expected future harassment undue call 14 15 may 2009asic relied upon call 14 included following quang yeah thing supervisor connie told left go court meeting instruction gave would stick like say spoke spoke couple day ago handling matter legal department already passed file debtor one yes someone someone called husband someone called around rang next door neighbour something quang believe debtor one told husband quang believe investigation telling husband left message get contact quang believe husband know better inform case together account quang even though appreciate investigation department gone contacting well know breach privacy act tell husband debt told urgent matter quang provide stat dec monday forward legal department misleading insofar referred legal department provision free marriage counselling inappropriate neither unduly harassing coercive call 15 15 may 2009asic relied upon call 15 debtor one husband responded message left neighbour included following debtor one husband apparently neighbour mine got call shell yep debtor one husband woman trying contact managed contact neighbour said civil matter got idea shell okay get full name debtor one husband name given shell debtor one husband okay okay okay date birth debtor one husband debtor one husband birth date given shell spell debtor one husband name debtor one husband yes shell mmm debtor one husband talking company shell litigation company debtor one husband sorry shell litigation company debtor one husband litigation shell yes debtor one husband hear gone voice gone really shell hear debtor one husband yes shell yep litigation company debtor one husband okay shell answered call acm transfer debtor one husband quang quang yes trying get contact debtor one unfortunately think phone switched possible leave message pas quang legal matter debtor one husband mmm hmm quang due due privacy reason really tell breaching certain article privacy act debtor one husband uh quang could leave message debtor one husband mm hmm quang get call u back debtor one husband yes quang would fantastic urgent legal matter quang got got strict instruction solicitor pas message quang okay well call speak legal department anyone could pick pick call handle matter basically person letter quang yes acm group litigation department quang okay within 48 hour urgent matter need addressed misleading acm litigation company speaker instruction strict otherwise solicitor also harassment undue kind contacting husband reason given relation call 12 call 16 15 may 2009asic relied upon call 16 included following quang help solicitor good look file advised assist must understand important pay amount quang need need pas need pas one legal legal advisor put hold please debtor one well go ring back 2 30 got go back work ring back two three quang well look look tell pas file legal advisor unfortunately help debtor one please give little bit time quang trying get together quang yes need speak legal advisor moment debtor one yes go work call back always said always know quang well call call back 2 30 debtor one okay quang pas legal advisor debtor one right quang handling account misleading legal adviser unduly harassing coercive reason given relation call 1 however next call show collection officer passing matter someone else call 17 15 may 2009asic relied upon call setting next call worthwhile noting transcript capture tone connie appears quang supervisor turn rude condescending vicious description call later effort adequately capture offensiveness involved call 17 included following connie husband secondary cardholder debtor one connie know card debtor one connie scared debtor one yes connie time previous debtor acted account served paper take home understand connie going serving paper debtor one okay connie necessarily serve person turn family home serve husband paper find connie right house name husband name connie going start legals served address given connie moment go court magistrate going see nothing promise broken promise know much know much debt connie right lisa full name given debtor one family friend connie actually even tried get touch get sorted connie never got actually got number ring connie would red alert really want husband know debtor one yes connie going find going lose home let tell connie husband lose house critical talking 2 000 connie mm okay get suspicious conversation given u po box number instead address told u staying told u working told u working casual really really going subpoena court tell u everything think connie never done anything debt even got call recorded commonwealth bank collection story promised promised even tried contact husband know connie telephone number provided tried contact name provided name provided husband connie yeah well go eventually debtor one know know know keep saying know sorry know else say stage please please leave please give benefit doubt debtor one monday going get stat dec connie stat dec going say debtor one stat dec going say promise pay connie promise pay exercise unpleasantness conveyed several misleading statement paper going served legal action commenced magistrate would soon involved would contained least two threat threat bring debtor husband whole picture threat bring family friend matter reason already given relation call 5 6 undue harassment coercion call 18 18 may 2009asic relied upon call 18 included following connie going going serve bankruptcy paper okay connie going today probably next couple day get home address connie giving conversation go quang put absolutely given following following okay asked quang organise neighbour get touch husband something broken promise understand debtor one debtor one understand saying connie back square one take next step debtor one connie bankruptcy way debtor one discussing connie something connie enough equity family home suggest put sale home pay debt meantime issue bankruptcy paper therefore choice okay misleading bankruptcy proceeding commenced reason given relation call 1 neither unduly harassing coercive call 19 22 may 2009asic relied upon call 19 acm family friend debtor one lisa referred call 17 included following connie good wondering whether could help got application form front regarding debtor one husband debtor one know debtor one lisa yes connie trying locate work know working moment lisa may ask connie legal matter civil matter lisa okay connie yes put name application form lisa oh okay talk think connie oh would lisa yes connie okay husband get husband give call well husband connie yes sure connie acm legal group sydney lisa acm legal connie legal lisa yes connie group regarding civil matter lisa yes connie touch last couple week answering mobile lisa okay yes connie wanted know okay firstly need talk urgently lisa okay connie could let know got number ring whenever know available whatever lisa matter connie well put name application form connie okay yes need talk urgently could let husband know connie called one would great suggested erroneously acm kind legal firm way misleading although would regard reference matter civil matter misleading context reference acm legal group likely convey impression litigation involved therefore misleading unsurprising given manual suggested conveyed apparent call third party identified submission friend debtor one opinion proper contact third party way reason given relation call debtor one neighbour call 13 unduly harassing coercive call 20 25 may 2009asic relied upon call 20 connie called debtor one neighbour asked message left included following connie looking debtor one life next door neighbour yes connie trying ring home number engaged day tonight ringing wondering whether could let know trying call neighbour yes home though connie yes answering home phone neighbour connie really worried thought would answered neighbour connie want give message neighbour yes speaking connie connie neighbour connie related connie regarding legal matter connie acm legal group neighbour acm legal connie group give name given husband regarding legal matter misleading combined effect reference acm legal civil matter implied acm legal firm discussed specie litigation reason already given relation call 13 contacting neighbour leaving misleading message undue harassment add although cannot sure although submission made point may different neighbour featured call 13 call 21 25 may 2009asic rely call 21 acm submitted assisted case call involved debtor one husband returning call connie speaking woman called tenille call follows tenille would need authorisation speak debtor one husband sorry tenille debtor one debtor one husband really returning call tenille message call debtor one debtor one husband mmm hmm tenille need debtor one call u back want speak u want want like speak u instead debtor one husband yes right saying yes tenille yes well matter need need debtor one husband yes tenille put supervisor phone need give verbal authorisation speak debtor one husband okay go ahead tenille okay well speak debtor one husband another call tenille mind waiting like debtor one husband look bit silly connie woman rang tenille yes know debtor one husband tenille message debtor one say name say debtor one name leave debtor one husband say tenille message left debtor one message debtor one husband yes say tenille silly due privacy act cannot talk anyone debtor one say okay silly law accept neither misleading harassing accept effect nature call call 22 25 may 2009asic relied upon call 22 debtor one spoke quang connie included following quang proceeding legal action quang know lot opportunity backtrack know stop legal thing going connie started legal action morning meeting morning solicitor debtor one okay connie served connie really say got money serve bankruptcy paper simple finished couple four week done connie right people know okay come house serve husband connie know called friend got list people call every time avoid u calling somebody else connie want go magistrate connie going make another note file going make look worse go court know connie think going get trouble calling u going keep u away like said called friend answer phone answer phone wednesday call husband work connie debtor one want ask friend relative work got list people ring think got lisa number connie oh unbelievable unbelievable going answer magistrate know connie stalling u going whack another 2 000 legal fee account end week go 25 000 debtor one okay connie wasted much mine quang everybody else time work got nothing point waiting wednesday call tell debtor one said connie said go said let stall bit longer well guess going ring husband today try get working good day end telephone conversation certainly misleading legal action proceeding legal action started morning operator meeting solicitor debtor going served bankruptcy paper preparation magistrate going looking matter also unduly harassing coercive operator threatening contact friend relative implicitly tell debtor difficulty although chronology suggests husband already aware attempt intimidate debtor one negate freedom choice need consider whether regard theprivacy act 1998 cth threat engage unlawful behaviour regardless well beyond bound legitimate conduct completeness audio file call reveals connie use hectoring bullying tone manner augments unduly harassing coercive nature call call 23 27 may 2009it acm asic relied upon call included exchange connie offer settlement amount take money debtor one okay connie put goodwill minimum 10 000 debtor one right connie monthly repayment somewhere around 500 600 month debtor one okay connie way paying much interest misconduct call call 24 27 29 may 2009 9 june 2009acm relied four call involved debtor one acm employee called thomas described section manager call apparently occurred debtor one contacted consumer action law centre attention drawn following passage call 24thomas apologise know due call 12 got caught meeting went lot longer expected okay talk debtor one yes surethomas okay debtor one sorry calling tom thomas yes tom acm regarding commonwealth bank account message give call debtor one oh yes yes jillian right thomas sorry debtor one jillian one solicitor right thomas calling acm group debtor one oh thomas people purchased commonwealth bank account call 25thomas able call back received fax regarding consumer action law centre obviously want provide answer debtor one okay thomas obviously given given u sort notice period want ensure obliging end debtor one okay call 26thomas know really much much debtor one thomas know mean debtor one yes thomas yes debtor one thank really nice know like yes going go detail ask said something goodwill payment thomas yes call 27thomas asking made inquires speak tomorrow debtor one yes thomas position actually get something concrete happening obviously know talk right moment debtor one yes yes thomas obviously want keep going around around circle want conduct call appropriate thomas demeanour measured professional accept conclusion consequence call opposite conclusion reached call 28 11 june 2009again call acm rather asic relied included following thomas yeah mean even like short term like try get something started getting discussion make type payment know 500 1 000 transfer account got something ticking mean stage appreciate know know ongoing conversation whole process know solicitor solicitor asking u particularly proceeded action thomas probably going enough hold legal action like going need something think assist acm reference solicitor legal action misleading asic rely upon however disregard aspect apart call take matter far one way unduly harassing coercive conclusion debtor onedebtor one debt marked acm ledger settled full june 2009 following payment husband 19 000 represented 3 607 21 discount time payment debtor one debt 21 690 13 increased 917 08 result interest late fee acm paid 21 le face value debt acquire mr brabazon said typical 19 000 received still substantially paid would le 4 600 doubt period 27 march 2009 11 june 2009 acm several operator persistently engaged misleading conduct implying debtor one acquaintance relation acm firm specialised commencing legal proceeding recovery debt b acm frequently commenced proceeding c matter referred acm lawyer purpose commencing legal proceeding acm decided commence legal proceeding debtor one e legal proceeding including bankruptcy proceeding would commenced immediately would f acm would cause nsw sheriff officer attend home serve document impossible also accept isolated behaviour rather inevitable working process described manual hand whilst accept operator time time suggest acm house lawyer cannot conclude misleading fact number house lawyer conclusion applies representation acm position immediately commence legal proceeding representation made reason 30 misleading accept asic submission several instance operator behaved towards debtor one way unduly harassing coercive specifically find acm engaged unduly harassing coercive conduct threatening inform debtor one husband indebtedness debtor one already told acm husband know want know b threatening call debtor one friend employer repaid debt c threatening sherriff officer attend house effect service going happen calling third party neighbour friend expectation would tell debtor one acm contacted operator connie behaviour quite unacceptable said solely confined threat speak third party wholly inappropriate course carrying threat also regard threat made accordance manual sheriff officer come serve document marked car unduly harassing coercive reject asic contention acm misleading conduct threat commence legal proceeding including bankruptcy proceeding also unduly harassing coercive b debtor twodebtor two debt 13 399 23 initially owed national australia bank respect gold visa card appears made way acm hand 15 may 2006 acm ledger entry 16 page long span period 15 may 2006 4 june 2009 conduct involving debtor two taken range 22 december 2008 21 april 2009 asic alleges relation debtor two acm engaged misleading deceptive conduct representing acm commenced legal proceeding debtor two b acm arranged sheriff officer serve document debtor two c one call caller senior legal adviser asic alleges acm engaged unduly harassing coercive conduct towards debtor two suggesting debtor two asset watched b representing legal proceeding commenced acm debtor two c representing acm arranged sheriff officer serve document debtor two suggesting debtor two limited intelligence unable manage affair e representing one call caller senior legal adviser call 29 22 december 2008it acm relied upon call 29 included following susanna calling regard gold visa card national bank debtor two oh yeah yeah heard something yeah look going get back next year really actually got idea going know sort thing going seek legal advice think either got confused somebody else something like going know mean like yeah yeah people actually spoken suggested know basically seek legal advice know yeah really know stress leave next year going situation leave next year everyone back holiday rest know get contact youse still waiting receive sort letter anything like whole situation receive something writing forward solicitor sort let know going susanna okay debtor two nobody seems idea talking point acm reliance call think show debtor engaged degree misleading conduct accept although relevant question whether acm engaged misleading deceptive conduct form part context meaning must placed expression undue harassment coercion call 30 22 december 2008asic relied upon call 30 included following alex debtor two silver holden barina alex calling regarding legal matter look listen got two sheriff officer organised come home place serve court document best time alex seems like person clue talking adult chance debtor two want give authorisation speak someone might understand exactly talking alex heard exactly said would would anyone basically understand exactly talking want give authorisation speak someone else debtor two whatever alex debtor two said someone would basically understand level speak please alex one supervisor senior legal advisor tell ha ha debtor two debtor two see everything telling taking joke see flipped file taken everything joke telling right anyone want speak understand exactly talking maybe basically knock bit bit know sense tell rather serious alex promise tell said going send someone serve court document promise make threat know might make threat make promise misleading sheriff officer coming operator senior legal advisor asic alleged alex represented proceeding already commenced think representation made asic allege misrepresentation proceeding commenced consequently make finding regard hand exchange certainly insulting thereby coercive although certainly specie harassment question whether undue harassment difficult debtor two previous discussion call 29 included spurious suggestion debtor obvious asking pleasantly money unlikely effective tactic whilst behaviour collection officer plainly poor taste regard context prepared say harassment undue call 31 33 19 march 2009 21 april 2009it acm asic relied call 31 33 follows call 31di oh okay cool debtor two mother yeah di well like debtor two mother see see going legal proceeding moment di yeah need talk could give call maybe monday office till 8 pm sydney time 7 30 time think think half hour ahead south australia debtor two mother yes think find contact going victorian legal aid call 32di good calling regard sic served debtor two yep di mcintyre okay calling see intention debtor two already sent letter defence today melbourne magistrate court di mcintyre okay dealing solicitor debtor two yeah well actually dealing three di mcintyre oh okay call 33janine ground owe interest court going asking point passage show case legal proceeding foot around march 2009 find nothing inappropriate note call 31 involved acm calling asking debtor two suggestion calling speak mother conclusion debtor twodebtor two debtor proceeding acm actually commenced proceeding party agreed legal proceeding debtor two recommended 6 february 2009 approved acm legal department 20 february 2009 proceeding commenced magistrate court victoria 23 february 2009 debtor two served 3 march 2009 debtor two settled debt acm way 20 000 payment 29 april 2009 represented discount 6 395 10 original debt 13 399 23 incurred 10 987 51 interest 990 late fee 998 36 legal fee according acm ledger report accept asic established call 30 acm engaged misleading conduct implying sheriff officer going serve court document b alex senior legal officer conduct become reasonably based merely february following year proceeding commenced hand accept debtor two subject undue harassment coercion way pleaded c debtor threedebtor three first entered acm debt recovery system 19 january 2005 initial debt 5 939 12 owed national australia bank personal loan debtor three acm ledger report 15 page long span period 19 january 2005 18 june 2009 call involving debtor three commenced 3 december 2008 concluded 15 april 2009 asic alleges acm engaged misleading deceptive conduct representing debtor three acm commenced legal proceeding debtor three b acm would cause sheriff officer attend debtor three home serve document affidavit evidence sworn would c acm employed house lawyer acm specialised commencing legal proceeding debtor recovery debt e acm frequently commenced legal proceeding debtor recovery debt f matter referred acm lawyer purpose commencing legal proceeding g acm decided could would commence legal proceeding shortly debtor three could would 30 rejected factual base c g insofar relates capacity acm commence legal proceeding quickly asic also alleges acm engaged unduly harassing coercive conduct representing debtor three commenced proceeding b threatening send sheriff officer serve document c making representation outlined 143 c g call 34 3 december 2008both party relied upon call 34 included following faatu yeah nancy um passed file sign want confirm address legal file served address given correct debtor three live faatu sorry debtor three live faatu yeah address serve legal document faatu know bother take straight magistrate explain okay thank debtor three time first thing take debtor three co operative would give address also denied debt threatened contact asic second thing note collection officer may implied proceeding commenced imply asic submitted proceedingshad alreadybeen commenced misleading conduct pleaded therefore made accept undue harassment coercion reason given relation call 1 call 35 4 december 2008both party relied call 35 included following alex okay say give call back got power place injunction file debtor three mean hold proceeding file need know intention intention matter personal loan account alex wise man basically letter demand mail addressed po box telling owe debt claim mine call follow matter explained magistrate happy basically tell magistrate happened alex going ask one time answer correctly terminate call said debtor serious magistrate care le got big pocket got big pocket say debtor three really tell truth willing go court worry alex okay yeah said listen got documentation debtor three indistinct yeah know know know alex got documentation prove debt debtor three indistinct know alex said got big big pocket mate sure sure debtor three got mate got money pay back got simple know alex debtor three debtor three work full time guarantee take legal action obtain judgment legal channel obviously garnish wage tell right get something alex okay going gunna allow solicitor whatever want escalate send sheriff sheriff officer serve court document got number wait late wait sheriff come contained threat proceeding would commenced sheriff officer would effect service hand would fair say debtor three mostly unmoved pointing money inviting acm go ahead commence proceeding opinion misleading probably unsuccessful find undue harassment coercion call 36 22 december 2008both party relied call 36 included following geoff geoff acms legal department geoff ringing acms legal department debtor three yeah know know could anyone ringing geoff well case need know telling debtor three know geoff trying contact debtor three well like geoff debtor three regard outstanding civil matter geoff told geoff acms legal department geoff confirmed acms legal department wishing speak debtor three geoff okay well case use talking may well take litigation straight away prepared actually assist geoff acms legal department geoff may well take litigation action straight away contained implication matter hand acm lawyer litigation would commenced acm dealt litigation implication misleading also show debtor three could give good got challenge operator identify show cannot discern undue harassment coercion call 37 18 march 2009both party relied call 37 included following nancy okay solicitor basically want give one last courtesy call see anything want go court maybe want handle outside court legal cost pay etc etc want something got two option particular time nancy however solicitor need know want really know anything debt really want deal consequence magistrate look back call audit trail conversation recorded call see actually tried tell nancy know magistrate see tried tell tried talk done nothing standing court paying legal cost reason could nancy telstra send letter let know call getting recorded incoming outgoing legal department telecommunication nancy take magistrate think acm obtains benefit call hand accept misleading solicitor engaged nancy legal department proceeding imminent accept involved undue harassment coercion reason given relation call 1 call 38 18 march 2009both party relied upon call 38 included following nancy okay fine take court enter judgment nancy see last time information go sheriff officer basically investigation investigation team get involved got nothing u becomes legal department matter basically assume acm reliance upon call 38 show operator suggesting segment business worked litigation centre hand first comment misleading suggested proceeding would commenced find undue harassment coercion reason given relation call 1 call 39 15 april 2009both party relied call 39 included following nancy okay incurred debt basically hesitant providing u document prove actually sign affidavit state debtor three yeah whatever nancy right want pick affidavit want u send sheriff sign nancy affidavit basically legal binding contract declare know account debtor three yeah mean like mean like nancy magistrate find kind evidence prove prosecuted government basically basically account get closed fraud nancy right want send sheriff affidavit sign think misleading least way asic put case debtor three denying falsely debtor collection officer attempting get provide evidence make good proposition course debtor three resisting true reference sheriff officer perhaps little wide mark context regard nature flourish debtor three response included enduringly popular expression yeah whatever plainly stronger word necessary context also reject assertion call involved unduly harassing coercive conduct conclusion debtor threeacm trail debtor three appears gone cold letter sent returned bad address early june 2009 though ledger report debtor three printed three week later debtor three appears never paid money acm last payment 5 000 apparently made acm purchased debt date printing ledger report debtor three original debt 5 939 12 joined 4 095 58 interest 1 190 late fee accept acm engaged misleading deceptive conduct representing debtor three acm would cause sheriff officer attend debtor three home serve document would b acm specialised commencing legal proceeding debtor recovery debt c acm frequently commenced legal proceeding debtor recovery debt acm decided would commence legal proceeding shortly debtor three could would found 148 representation proceeding commenced think unlikely however debtor three actually misled think acm conduct towards debtor three unduly harassing coercive debtor fourdebtor four debt 4 199 11 related nab visa card first appeared acm ledger 31 january 2005 debtor four ledger report tendered 20 page long call involving debtor four range 30 april 2009 11 december 2009 asic alleges call acm engaged misleading deceptive conduct representing debtor four partner employer acm employed house lawyer b acm specialised commencing legal proceeding debtor recovery debt c acm frequently commenced legal proceeding debtor recovery debt matter referred acm lawyer purpose commencing legal proceeding e acm decided could would commence legal proceeding shortly debtor four could would furthermore asic alleges acm engaged misleading deceptive conduct seeking obtain information debtor four false pretence asic also alleges acm engaged unduly harassing coercive conduct calling debtor four employer b suggesting debtor four outstanding debt might adversely affect partner application custody child previous relationship c saying acm ruthless came collecting debt suggesting acm tracking e making representation referred 167 168 call 40 30 april 2009asic relied upon call 40 included following tamalii okay look reason giving call though know last day month settle account need either close force legal proceeding account received payment since november manage contact mean back december january said going start making regular payment going make another payment 500 100 week yeah receive either receive notification phone call advising u know let u know debtor four yep tamalii happening debtor four yep tamalii pretty much account sitting know waiting legal proceeding begin tamalii find happening know nothing know gone yet know thought give call see happening see speak look comment end month acm would close force legal proceeding respect account misleading insofar suggested acm frequently commenced proceeding specialised proceeding debtor four imminent assertion account sitting waiting legal proceeding begin suggested debtor four case legal proceeding next step also misleading think exchange example undue harassment coercion reason given relation call 1 call 41 44 25 june 2009 22 september 2009it acm relied upon call included following call 41danny right well know going trying help well mean debtor four cool purely understand danny know yeah yeah get sorted next friday okay debtor four yep danny reason would call mean know got reason unless know get contact mobile call 42tamalii yeah actually address file spell debtor four yeah dorelle tamalii suburb debtor four said yeah like given address said oh yeah worry carry legal whatever call 43sam right start payment debtor four next week would good sam okay much looking per week per fortnight debtor four probably 200 fortnight 100 week sam okay start next week debtor four yep call 44kim 100 let check 100 fortnight debtor four okay yeah kim yeah debtor four yeah sure fine yeah kim need come 500 first come back darwin need pay 500 first able put back arrangement 100 fortnight exchange contain specie misconduct call 45 2 october 2009asic relied upon call included following kimi okay grab receipt number show solicitor actually made payment come monday get get fax receipt misleading solicitor hand nothing unduly harassing coercive call call 46 24 november 2009asic relied upon call 46 acm placed debtor four employer included following ashleigh good morning name employer ashleigh speaking collection officer yeah sorry actually calling financial institution regard credit application gone actually person actually put listed guy employer wondering speak hr resourcing anything like regard person ashleigh mmm hmm yeah speak like collection officer okay say work 30 plus hour week correct ashleigh yeah definitely collection officer yeah definitely would imagine contracting really trying read writing say got annual anywhere 55 50 ashleigh mmm collection officer look like 55 60 ashleigh right collection officer would able confirm ashleigh yeah moment look file yeah around say average yeah 50 plus collection officer stick 50 55 collection officer okay worry give call let know application went thanks much misleading confidential information elicited statement knowingly false namely call purpose processing credit application seems reasonably serious matter apprehend asic advance case company affected conduct subject coercion asic advance case however calling debtor four employer unduly harassing coercive acm intended employer would ask debtor four question call debtor four would thereby discover acm calling employer made apparent call 49 debtor four find acm called employer conclude case made acm engaged unduly harassing coercive conduct call 47 25 november 2009asic relied upon call 47 also placed debtor four employer included following barbra good afternoon name employer barbra collection officer hi barbra sorry bother actually looking send document employee working name employer right barbra yep collection officer yeah believe always job site wondering would mean particular know need need actually give document person come post document would called collect would barbra collection officer site barbra would give one guy going whatever job collection officer okay barbra site collection officer okay want say basically legal document need served actual person collection officer yeah see gave name would able keep barbara yeah collection officer really want already said lot barbara mmm collection officer fairly urgent send document name debtor four barbara okay yeah collection officer yeah told still work company job site wondering job site someone come paper would would take would someone take would actually personally serve see accept misleading deceptive reference legal document insufficient context call infer imminence legal proceeding reason given relation call 46 however call involved undue harassment coercion call 48 27 november 2009asic relied upon call also debtor four employer included following kerry morning name employer kerry speaking kush hi kerry name kush wondering leave message one employee kerry calling kush name kush wanting leave message one employee work kerry sure kush yep name debtor four kerry yeah kush yeah let know calling company sydney one senior legal adviser dorelle spelt r e l l e kerry mmm hmm kush expecting call back 3pm today direct yep sorry direct number kush yep need call back 3pm today direct number number given misleading vi à vi employer information passed purely conduit debtor four hand would accept likely suggest debtor four dorelle senior legal advisor misleading suggested acm employed lawyer looking debtor four debt however unduly harassing coercive although made debtor four employer call distinguished call 46 47 acm leave message debtor four laced though misleading reference senior legal adviser call 49 27 november 2009both party relied call 49 included following male speaker prior debtor four answering phone say transferring legal manager dorelle yeah place hold get speak manager okay dorelle good debtor four kush one staff member handling account given take court debtor four quite bit breadwinner moment court custody partner child got two girl dorelle yeah well look good case know debt collector ah chasing debtor four yeah dorelle debt going look good case using support income understand left job partner work place anymore debtor four yeah right dorelle yeah debtor four calling dorelle well tracking mate indistinct dorelle yeah already spoken pay payroll understand income around 50k year correct debtor four beg pardon dorelle already spoken payroll officer understand pay around 50k year correct debtor four mate privacy fuckin breach privacy dorelle yes tell go court garnish wage court show court much make leave bare minimum 239 74 le get rest serious matter trust debtor four know said matter going legal think going go court magistrate going tell come pay debt going slap wrist put instalment order debtor four like mate acm group number one debt collection agency australia right ruthless mate dorelle put put name google mate lot people regret went ever talk went court okay going give final opportunity mate okay need come goodwill payment need come least 50 per cent debt put back arrangement debtor four oh really oh really dorelle yeah yeah serve paper mate get garnishee order dorelle yeah called judgment court judgment judgment 12 year mean next 12 year acm group able sort legal enforcement action recover debt 10 000 account dorelle yeah well know got weekend know proceed matter till 3pm monday got till see come come close take consideration made 1 100 worth payment take consideration got till monday kush give call dorelle laugh watch language debtor four still take court get judgment 12 year dorelle yeah got understand stuck neck right look like fool go back recommence court proceeding right gave word stick agreement make payment thing mate right family man understand everyone got debt pay understand kid expensive take care right debtor four yes indistinct dorelle put promise something yeah want promise something want keep would keep call say listen make payment look reduce payment mate contact u avoiding u okay contacted number many time still replied back call message kush right go point investigate matter threatening legal proceeding right called back got attention dorelle debt going get bigger due due legal fee well debtor four sorry lost dorelle advise going get bigger due late legal fee well dorelle hold hey kush legal fee added account dorelle yeah looking file preparing going court monday cost money mate added charge yet right owe 8 969 97 monday different story mate misleading dorelle legal manager take matter court paper served judgment garnishment imminent case going court monday although may question lawfulness manner acm came know debtor four salary see armed information harassing coercive use debtor four asic also alleged relation call unduly harassing coercive suggest debt would threaten custody application b say acm ruthless mate c say tracking although close line think context debt recovery business escape perhaps narrow margin characterised unduly harassing coercive conduct call 50 30 november 2009both party relied upon call 50 made acm debtor four partner included following kush followed 100 weekly arrangement 29th october review three month one legal manager also stated clearly accordance agreement hold legal proceeding unless arrangement default basically happened know debtor four told legal adviser spoke last week debtor four partner mmm hmm kush advising deadline 3pm today 4 000 payment u put arrangement signing legal document kush agreement debtor four partner agreement today kush trying explain gotten point made payment year left many many message phone tried tried tried said call u back want talk time got call back said going go legal time got call back manager like stuck neck go back solicitor happy trying tell kush ready sign want happen know indistinct explained situation kush solicitor say nothing overrule job kush okay yeah worry going basically happens indistinct ordered mean summons ordered served either work home either way someone take behalf served got 28 day act happens couple option either payment pay payment full kush thing got enough basically happened going telling straight right judge going say okay last payment made say okay 7th 8th 2009 said okay deal go got writing got signature got phone conversation saying would pay 500 two month followed 100 weekly many payment get got 1 000 weekly payment go know okay done order get contact tried call left message found working moved address locate left message never responded got stage got legal said going legal finally got call back demanded certain amount balance order go away rejected come back 500 say okay fine year payment bang done sealed kush debtor four said u want pay solicitor explained exactly said going happen debtor four partner yeah kush going happen like solicitor said sorry want passing message kush got meeting 3 30 give call back take five minute give call back debtor four mobile debtor four partner yeah kush speak solicitor see say let know misleading lawyer involved considering proceeding prospect judge saying anything debt however wholly inappropriate dealing debtor four partner specie improper tactic unduly harassing reason given relation call 12 call 51 30 november 2009both party relied upon call 51 also acm debtor four partner acm placed call included following kush hey kush calling acm group literally walked meeting tell exactly debtor four partner yeah kush said okay happy hold legal kush yeah need punch otherwise going go nah basically said end business today said kush okay give one time need done want go okay sorry given specific order follow debtor four partner guy allowed indistinct known allowed contact work time kush unless allowed contact work unless told specifically never told indistinct lisa request information kush indistinct lisa request information kush said said asked said lisa yeahkush financial institution lisa yes kush asked asked could ask question regard debtor four said lisa mmm hmm kush fine ask question whether answered say gave basic information basically hr anything like asked question pretence asked question said could answer said try asked simple lisa yeah allowed reading actual signed unless unless written consent allowed indistinct kush yeah lisa indistinct kush voluntarily volunteered information thing ask straight want know person misleading operator gave impression legal team involved proceeding abeyance operator also said called debtor four employer speak human resource anything like pretence true call 46 caller infer kush similarity voice fact kush admitted calling debtor four employer asked speak human resource told ashleigh could assist b said calling relation credit application misleading reason given relation call 50 unduly harassing acm business seeking strongarm debtor four partner call 52 11 december 2009asic relied upon call included following debtor four yeah danny yeah debtor four debtor four danny calling acm legal department ya danny mate matter paid money calling legal department understand danny depends depends made payment made payment know like made payment online bank whatever take anywhere 24 48 hour know reason calling debtor four want legal proceeding going know done right thing u know mean giving courtesy call calling argue danny would like actually need hard copy receipt payment got would actually take solicitor know mean know company protocol like know work moment know get go post office like fax received monday give call misleading extent suggested involvement legal department also extent suggested solicitor retained litigation would commenced payment forthcoming think unduly harassing coercive reason given relation call 1 conclusion debtor fourthe printout debtor four ledger report dated 18 february 2010 show activity day point 4 199 11 initial debt incurred interest 5 370 35 990 late fee debtor four point made 2 036 10 repayment meaning 8 523 36 arrears last payment 148 made approximately five week earlier ledger report note status arrangement broken reasonably clear operator engaged misleading deceptive conduct relation debtor four specifically find acm engaged misleading deceptive conduct representing acm specialised commencing legal proceeding debtor recovery debt b representing acm frequently commenced legal proceeding debtor recovery debt c representing matter referred acm lawyer purpose commencing legal proceeding representing acm decided would commence legal proceeding shortly debtor four could would e seeking obtain information debtor four employer false pretence reason given 30 reject asic claim acm engaged misleading deceptive conduct representing acm employed house lawyer b acm could commence legal proceeding shortly debtor four also find acm engaged unduly harassing conduct call placed debtor four employer partner e debtor fivedebtor five debt incurred visa card issued national australia bank first appeared acm system 4 june 2004 ledger report 21 page length cover period 4 june 2004 15 april 2010 attention drawn 17 call asic alleges call acm engaged misleading deceptive conduct representing debtor five father acm employed house lawyer b acm specialised commencing legal proceeding debtor recovery debt c acm frequently commenced legal proceeding debtor recovery debt matter referred acm lawyer purpose commencing legal proceeding e acm decided could would commence legal proceeding shortly debtor five could would f acm would arrange sheriff officer serve document debtor five asic also alleges acm engaged unduly harassing coercive conduct making representation call 53 24 november 2008both party relied upon call 53 acm calling debtor five spoke father included following mafa mafa calling acms legal department sydney mafa regard legal matter regard credit mafa yep legal department sydney mafa proceeding litigation taking matter court misleading operator calling legal department proceed litigation hand unduly harassing coercive call 54 57 3 december 2008 6 january 2009asic relied call 54 57 voicemail message left debtor five included following call 54mafa debtor five must call acms legal department call 55mafa calling acms legal department sydney mafa failure call u result sheriff sent address address given call 56mafa give u call account pending legal call 57celine hi debtor five celine calling acm legal department could contact number given quote legal file number misleading call legal department failure return call would result visit sheriff file pending legal however unduly harassing coercive although concluded case conversation threat bring sheriff made unduly harassing coercive think relatively limited context call 55 call 58 13 february 2009both party relied upon call 58 included following mafa hi name mafa calling acms legal department sydney debtor five yep yep mafa look calling regard nab credit card account debtor five yes mafa quite sure aware forwarded u proceed litigation debtor five okay mafa stage process preparing document proceed account court debtor five right mafa actually advised hold account get contact try get contact mafa account pending legal preparing document take court stamp serve mafa maybe work go back say look stop know baby going say well like want mafa get statement kind repayment afford take management solicitor talk see accept give call back misleading suggested erroneously acm commence proceeding litigation occur document stamped hand accept call example undue harassment coercion call 59 17 february 2009asic relied upon call 59 included following speaker debtor five contact acm legal department number given quoting reference number number given regard urgent legal matter misleading extent call legal department think conveyed existence imminence proceeding unduly harassing coercive call 60 20 february 2009asic relied upon call 60 included following speaker hi debtor five indistinct calling acm group legal department sydney please contact number given quote legal file number number given mafa hi debtor five mafa calling acm group legal department sydney calling regard nab credit card account call back regard need find sheriff address yet call back asap number given quoting reference number number given regard urgent matter misleading whatever nature legal file involved reference sheriff would created incorrect impression proceeding hand unduly harassing coercive similar reason given relation call 55 call 61 20 april 2009asic relied upon call 61 included following mafa debtor five contact acm legal department number given quoting reference number number given regard urgent matter need discussed misleading reason call 59 similarly neither unduly harassing coercive call 62 11 august 2009both party relied upon call 62 included following leena therefore mafa signed account month ago request legal proceeding leena person authorises legal action want know basically happening agreement broken accept legal procedure happen leena look stage need definite answer want said definitely come fund therefore moment management looking writ execution mean indistinct go live confiscate good like tv computer stuff state belongs partner anyone else house need provide receipt provide receipt confiscate pretty sure want happen leena arrangement solicitor going ask putting people repayment arrangement instead proceeding legal leena money last courtesy call relation account misleading suggested proceeding imminent evidence hand although strongly expressed think unduly harassing coercive reason given relation call 1 call 63 23 december 2009acm relied upon call 63 although acm contended relying call point particular part reviewed consider part misleading unduly harassing coercive call 64 8 january 2010both party relied upon call 64 included following hala basically need review file legal action hala want one stamp file debtor five request legal hala account still referred legal department review possibility concerning history u six arrangement alone 2009 going good debtor five yep hala going honest know going appreciate moment yeah suppose best get situation go legal process okay debtor five okay yeah sound fine hala okay sorry burden know need actually informed unfortunately put debtor five yep hala mean want make payment sort please going helping debtor five mmm hmm hala suppose would achieve collect fund legal process new south wale legal process misleading suggested involvement legal department imminence proceeding unduly harassing coercive reason given relation call 1 call 65 19 january 2010acm relied upon call 65 although acm contended relying call point particular part reviewed consider part misleading unduly harassing coercive call 66 19 march 2010asic relied upon call 66 included following victoria actually based legal department reviewing file stage victoria given strict instruction solicitor stage file gain two year plus need closed meaning debtor five amount 2 423 must closed today victoria decide indistinct signed take solicitor take court taken court stamped get served actual legal document victoria yeah well agent uniform serve payroll officer going go garnishee going garnishee wage leaf approximately 300 victoria thing say possibly help debtor five provide discount amount approve point 30 per cent pretty good though mean better paying full amount liable debt legal department approve 30 per cent victoria reference number legal reference number could get back minute need answer victoria signing file 3 clock need call 2 30 let know yes proceed misleading victoria based legal department given strict instruction solicitor uniformed agent serve payroll officer debtor five wage garnished taken altogether left impression proceeding imminent unduly harassing coercive threat serve garnishee notice third party kind conduct example serving person workplace involves direct embarrassment call 67 19 march 2010asic relied upon call 67 call occurred debtor five contacted asic advice included following debtor five asic basically said pay today guideline whatever breach guideline said able organise stay agreement victoria okay understand new south wale legal practice sound like believe understand new south wale legal practice sure enough debtor five want go fair enough leave sign file take court get signed get served need know time serve please victoria work going get served work sorry messenger request time service conveyed inaccurately proceeding commenced threat serve debtor work specie coercion false threat humiliate debtor front colleague call 68 24 march 2010both party relied upon call 68 included following mafa reason account frozen going legal action mafa letter sent yeah look stage account going legal action see mind holding get like physical file mafa okay actually got supposed get document legal file suppose get document last friday something delay possibly might friday friday looking indistinct proceed debtor five mmmm hmmm okay mafa page missing know might yeah stage happening account come across yet called found happens account fallen broken arrangement broken arrangement account like everyone within company broken arrangement account go straight solicitor department mafa okay happens document stamped put legal fee added onto account debtor five yeah ok mafa thousand dollar happens sheriff uniformed sheriff unmarked car come address serve debtor five yep mafa anyone house debtor five okay mafa document show date actual case appearing court debtor five yep mafa go court say mafa payment fallen ask solicitor hold next week get five hundred paid mafa yeah ok indistinct go speak solicitor hold next week get first payment abundantly hinted commencement proceeding thereby misleading reference involvement solicitor sheriff officer also misleading suggestion broken arrangement account go straight solicitor department think unduly harassing coercive call 69 25 march 2010acm relied call although acm contended relying call point particular part reviewed consider part misleading unduly harassing coercive conclusion debtor fivedebtor five still making fortnightly repayment 100 ledger report evidence printed original debt 3 863 31 added 1 471 38 interest 450 late fee made repayment totalling 3 530 outstanding balance 2 254 69 satisfied acm engage misleading deceptive conduct relation debtor five call 67 unduly harassing coercive conduct specifically find acm engaged misleading deceptive conduct representing matter referred acm lawyer b acm decided would commence legal proceeding shortly debtor five c acm would arrange sheriff officer serve document debtor five satisfied acm misleadingly represented acm employed house lawyer b acm specialised commencing legal proceeding debtor recovery debt c acm frequently commenced legal proceeding debtor recovery debt acm could commence legal proceeding shortly debtor five f debtor sixdebtor six debt originally accumulated gold visa card issued national australia bank appears transferred acm debt collection system 29 september 2003 time sum 17 118 29 three call touching upon debtor referred commenced 16 december 2008 continued 23 december 2008 asic alleges acm engaged misleading deceptive conduct representing debtor six acm employed house lawyer b acm specialised commencing legal proceeding debtor recovery debt c acm frequently commenced legal proceeding debtor recovery debt matter referred acm lawyer purpose commencing legal proceeding e acm decided could would commence legal proceeding shortly debtor six could would asic also alleges acm engaged unduly harassing coercive conduct making representation referred previous paragraph b threatening proceed examination summons c threatening issue warrant debtor six arrest threatening take action would result debtor six taxi licence revoked e threatening take action would result debtor six unable travel overseas f making statement debtor six previously left australia avoid debt call 70 16 december 2008both party relied upon call 70 call 70 term selin going good reason today actually calling see legal department ok go ahead legal proceeding okay selin yes understand sir like said actually go ahead legal proceeding immediately selin yeah yeah yeah understand know thing understand tell solicitor something tomorrow debtor six sorry selin tell lawyer something tomorrow selin courtesy call understand debtor six right selin actually want go ahead legal proceeding want take court selin take court debtor six rightselin serve judgment last 12 year selin need something tomorrow like said today reason calling let know going start signing selin going go tell solicitor find money sign paper selin like lawyer stop lawyer indistinct debtor six indistinct mean fair tell wrong anything thing bad position know selin yeah understand believe like said anything going going angry saying giving u answer selin make sure please call thursday 3 clock solicitor going come say 3 clock look going give answer call make sure call 3 clock 3 clock dot 3 clock least 2 2 30 misleading suggested selin legal department report solicitor next day proceeding would commenced shortly hand unduly harassing coercive reason given relation call 1 call 71 17 december 2008both party relied upon call 71 included following kurt proceed examination summons appear issue warrant arrest need need get fixed address kurt understand force bankruptcy go legal debtor six right kurt risk losing taxi driver licence kurt collection agency debt reached legal department collection agency debtor six right kurt basically purchase debt debtor six purely purpose litigation basically reason ali giving courtesy call lucky getting phone call like kurt deadline account friday 3pm like said solicitor requested full outstanding balance able need work something force bankruptcy risk losing taxi licence kurt confirm address friday proceeding legal action misleading matter reached legal department debtor six made bankrupt arrested lose taxi licence acm purpose solely even modestly litigation solicitor also regard threat debtor six arrested taxi licence revoked unduly harassing basis calculated intimidate debtor six asic also submitted threat proceed examination summons unduly harassing coercive conduct reject nothing threat legitimate legal proceeding see 14 asic submitted call acm engaged unduly harassing coercive conduct alleging debtor six previously left australia dishonestly avoid debt allegation contained passage directed call 72 23 december 2008both party relied upon call included following selin hi selin calling acms legal department debtor six sorry selin selin acms legal selin wait long wait long wait long solicitor asking something keep telling keep waiting selin yes go bankrupt want go bankrupt debtor six know selin think easy going court oh money anything simple selin job even supposed making arrangement debtor six supposed legal department take straight court selin yeah court decide listen friend court decide give better payment believe ask full payment fine want negotiate u fine selin yeah see last day finished today going today sign paper leave selin going sign paper end story finished selin yeah know rule know legal system either talking like court like playground walk debtor six transferred selin supervisor ryan ryan file signed afternoon received payment ryan yes today well getting served unfortunately getting served address given ryan well telling going served going force bankruptcy passport may taken unable travel ryan hold taxi licence bankrupt think debtor six guy harassing ryan harassing debtor six take court yes ryan harassing debtor six telling going take court going cancel government debt collector okay spoke asic got got appointment ryan saying fraud need get police involved debtor six indistinct credit ryan need get police involved fraud matter debtor six ryan well telling right proceeding debtor six well ryan okay decided want misleading many way neither operator legal department service occur bankruptcy hand debtor six passport taxi licence risk comment legal department take straight court also implied erroneously acm specialised commencing proceeding debtor frequently also think threat relating debtor six passport taxi licence calculated intimidate see 14 therefore unduly harassing conclusion debtor sixas 8 may 2009 ledger report debtor six evidence printed debtor six original debt 17 118 29 increased 21 292 10 thanks 4 094 81 interest 180 late fee one part ledger report say last payment made debtor six order 2 300 8 august 2007 another part say payment ever made know make accept acm engaged misleading deceptive conduct relation debtor six well undue harassment coercion specifically find acm engaged misleading deceptive conduct representing acm specialised commencing legal proceeding debtor recovery debt b acm frequently commenced legal proceeding debtor recovery debt c matter referred acm lawyer purpose commencing legal proceeding acm decided would commence legal proceeding shortly debtor six could would find acm misleadingly represent employed house lawyer b could commence proceeding immediately matter fact could see 30 also find acm engaged unduly harassing coercive conduct threatening issue warrant debtor six arrest b threatening take action would result debtor six taxi licence revoked c threatening take action would result debtor six unable travel overseas g debtor sevendebtor seven visa card issued national australia bank appears incurred debt 6 431 75 debt transferred acm 30 december 2002 attention drawn seven call involving debtor seven seven call asic alleges acm engaged misleading deceptive conduct representing debtor seven mother acm commenced legal proceeding debtor seven obtained judgment proceeding bankrupt debtor seven process would involve debtor seven house repossessed nothing sort occurred b acm employed house lawyer c acm specialised commencing legal proceeding debtor recovery debt acm frequently commenced legal proceeding debtor recovery debt e matter referred acm lawyer purpose commencing legal proceeding f acm decided could would commence legal proceeding shortly debtor seven could would asic also alleged acm engaged unduly harassing coercive conduct making representation referred previous paragraph call 73 28 may 2009asic relied upon call 73 included following charmaine right let know happening moment account pending legal credit rating listed yet look like account due go legal 12th defaulting credit rating 5th debtor seven want charmaine yeah unless know either come something account otherwise going keep proceeding charmaine able tell getting fund need know know fact account meeting solicitor tell like honest charmaine mean account pending legal look proceeding bankruptcy charmaine address given debtor seven yeah charmaine part owner debtor seven right charmaine yeah understand go bankruptcy house get repossessed debtor seven know ahh shit charmaine lot zero yeah got see next meeting got meeting today 4 30 file explained happened asic pleading misleading deceptive conduct related call alleged acm represented legal proceeding already commenced judgment obtained acm proceeding bankrupt debtor seven would involve repossession accept first two representation made although accept third conclude aspect misleading deceptive conduct case made find unduly harassing coercive conduct reason given relation call 1 call 74 2 june 2009asic relied upon call 74 acm debtor seven mother included following jade aware debtor seven mother jade bank hardship jade well letting know bank hardship know debtor seven mother jade nab bank debtor seven mother threatened people jade actually threatening debtor seven mother jade son debt threatening debtor seven mother indistinct ill ill jade threatening debtor seven mother capable jade oh sound really upset debtor seven mother mean know going making special consideration one person jade look mind holding going speak solicitor moment debtor seven mother jade okay well mean mean national australia bank going buy debt back totally know going discus anything know planning buying debt back know accept arrangement solicitor jade well saying hardship well debtor seven mother personally think really put chaos got agoraphobia moment well mean leave house half problem car accident end end last year debtor seven mother yeah charmaine another collection officer seem want know debtor seven problem started threatening sort thing need moment either stress tablet well finding difficult process well jade look one thing know think charmaine would threatened type person debtor seven mother well indistinct jade charmaine charmaine would never threaten anybody type person know work threatening person debtor seven mother well indistinct jade would mentioned may happen debtor seven mother well sell home jade well know looking best interest know mean want debtor seven get bad credit mean selling home paying debt sure debtor seven mother 6 000 jade giving option debtor seven mother say said got 700 000 house said could sell force u sell house pay debt correct characterisation argument heat adequately captured transcript debtor seven mother taken exception acm method nevertheless aspect misleading reference solicitor involved apt suggest legal action pending likely incorrect specie harassment house might sold settle son 6 000 debt circumstance might impression mother believe find call involved misleading deceptive conduct undue harassment coercion also note although acm placed call debtor seven mother opening exchange made clear operator debtor seven mother spoken know initiated contact acm debtor seven mother make finding acm communication improper call 75 4 june 2009both party relied call acm debtor seven mother included following jade okay understand debtor seven mother got understand going best try stop legal proceeding unfortunately jade say going take measure happen debtor seven mother well touch people said bullying pensioner family told debtor seven mother phone morning hardship department national australia bank know urgency know got got 48 hour demand misleading proceeding imminent unduly harassing coercive mother reason given relation call 74 call 76 26 june 2009asic relied upon call 76 refer particular passage call particularly heated discussion jade debtor four mother neither conducted might called civil manner nothing misleading unduly harassing coercive call 77 26 june 2009asic relied upon call 77 took place shortly call 76 party included following jade appreciate hung debtor seven mother jade well guess debtor seven mother drawing court paper right national australia bank contact today send serving order debtor seven mother well like jade address debtor seven mother involved anymore indistinct jade far concerned still debtor seven mother like threaten jade serve debtor seven debtor seven mother court paper jade serve debtor seven address given debtor seven mother jade yes debtor seven mother ringing national australia bank telling also ringing banking ombudsman telling jade ring banking ombudsman misleading court paper drawn service happen despite highly uncivil conversation unduly harassing coercive rudeness went direction call 78 26 june 2009asic relied upon call 78 also took place jade debtor seven mother day included following debtor seven mother right went touch got touch national australia bank spoke gentleman said passed national australia bank said take two week come across said someone ringing today compliance manager advising stop action account informed morning debtor seven mother filing something court jade say say putting word mouth say jade said drawing paper yes debtor seven mother right well said jade mean going go court straightaway misleading deceptive paper drawn find undue harassment coercion must say though rudeness party time reached significant level found following remark jade particularly distasteful debtor seven mother please reasonable know national australia bank yet contacted acm notify buying debt back know long thing take retail furniture store home rostered day today got son vomiting heart since heard said jade oh look debtor seven mother telling son vomiting heart telling debtor seven mother indistinct jade totally irrelevant debtor seven mother irrelevant got jade give bucket vomiting got nothing debtor seven mother stressed got mental depression jade care debtor seven mother unfortunately son vomiting got nothing talking call 79 26 june 2009asic relied upon call 79 included following jade fine saying stop legal proceeding national australia bank contact jade fault son vomiting debtor seven mother stressed mentally ill stressed jade unfortunate debtor seven mother indistinct jade got understand debtor seven mother solicitor misleading legal proceeding solicitor however unduly harassing coercive conduct conclusion debtor sevendebtor seven debt ultimately bought back national australia bank apparently urging mother told trial reason hardship seen fell deaf ear acm conclude acm engaged misleading deceptive conduct relation debtor seven specifically find acm engaged misleading deceptive conduct representing acm proceeding bankrupt debtor seven process would involve house repossessed b matter referred acm lawyer c acm decided would commence legal proceeding shortly debtor seven see representation passage taken effect acm specialised commencing legal proceeding debtor recovery debt b acm frequently commenced legal proceeding debtor recovery debt despite claim debtor seven mother son medical condition prepared use basis conclusion undue harassment coercion h debtor eightdebtor eight public servant owed three debt transferred acm debt 4 531 55 owed national australia bank mastercard first appeared acm ledger report 11 february 2008 b debt 658 94 owed national australia bank visa card first appeared acm ledger report 8 october 2008 c debt 9 935 11 initially owed commonwealth bank respect variable rate personal loan debt first appeared acm ledger report 30 april 2009 acm seeking extract therefore total 15 125 60 plus interest late fee might accrue debtor eight attention drawn seventeen call asic alleged call acm engaged misleading deceptive conduct representing debtor eight mother father acm employed house lawyer b acm specialised commencing legal proceeding debtor recovery debt c acm frequently commenced legal proceeding debtor recovery debt matter referred acm lawyer purpose commencing legal proceeding e acm decided could would commence legal proceeding shortly debtor eight could would asic also alleged acm engaged unduly harassing coercive conduct calling debtor eight mother attempt put pressure debtor eight including threatening commence legal proceeding b making representation referred previous paragraph call 80 14 july 2009asic relied upon call 80 voicemail message left acm included following clarizze please advised regard civil matter requires urgent attention regard misleading although teeter brink unduly harassing coercive call 81 14 july 2009asic relied upon call 81 another voicemail message included female voice please contact acm group regard urgent legal matter need discus regard misleading although close unduly harassing coercive call 82 20 july 2009acm relied upon call 82 acm called debtor eight father submitted asic anything inappropriate fact call included following rachel right problem debtor eight father square rachel pardon debtor eight father square rachel yes yes debtor eight father well important thing rachel yes everything fine end debtor eight father thank professional nothing inappropriate exchange call 83 16 december 2009asic relied upon call 83 another voicemail message left debtor eight included female voice regarding reference number number given urgent legal matter misleading unduly harassing coercive call 84 4 january 2010asic relied upon call 84 another voicemail message included following female voice regard urgent legal matter misleading unduly harassing coercive call 85 4 january 2010both asic acm relied upon call 85 acm called debtor eight mother included following emily yes hi debtor eight mother emily well acm credit management group relation account legal matter really discus due privacy act emily well got one account pending debtor eight mother sort account emily legal action debtor eight mother sorry emily pending legal action passed u debtor eight mother soon legal action allowed say vicinity amount emily ask debtor eight mother dollar emily sorry debtor eight mother going dollar emily mean dollar talking debtor eight mother point talking general vicinity emily talking several thousand debtor eight mother huh emily talking several thousand debtor eight mother okay misleading pending legal action unduly harassing coercive context call included fact earlier non objectionable discussion father operator initial reluctance discus matter call 86 4 january 2010asic relied upon call 86 another voicemail message included following female voice regarding urgent legal matter misleading deceptive unduly harassing coercive call 87 4 january 2010asic relied upon call 87 another voicemail message included following female voice hi debtor eight let know fax number stat declaration form number given number given expecting stat dec 5pm tomorrow okay great thank bye misleading deceptive unduly harassing coercive call 88 4 january 2010asic relied upon call 88 specify particular passage reviewed call find nothing improper call 89 5 january 2010acm relied upon call 89 debtor eight called acm included following john okay right debtor eight kind disclosed everything fax read suffer psychiatric illness caused problem first place john right okay debtor eight stabilised somewhat overcommitted know mean john yeah take get back foot something like debtor eight yeah need make sure leave enough medication also health cover well cover psychiatric important health perspective otherwise go rail completely want put something good faith know commit track make different arrangement see made lump sum past john yeah nothing inappropriate call 90 16 june 2010asic relied upon call 90 specify particular part reviewed call find nothing inappropriate call 91 16 june 2010both acm asic relied upon call 91 included following debtor eight suffer severe case bipolar greg okay well stop paying account consider one legal account amount owe 10 283 greg yeah put back arrangement sorry see go legal indistinct greg well choice account marked legal action help ya greg give fax number every letter received u debtor eight okay provide greg difference trying achieve understand writing bipolar something like trying write u greg requested solicitor file see relaying message back greg go bankrupt debtor eight pardon greg go bankrupt greg realise company go legal proceed bankruptcy going issue later stage think misleading legal action commence solicitor involved whilst certainly insensitive suggest debtor eight mental illness irrelevant think thing considered unduly harassing coercive call 92 16 june 2010asic relied upon call 92 draw attention particular part reviewed nothing inappropriate call 93 17 june 2010both acm asic relied upon call 93 included following debtor eight okay planning either thing happen aside would also like indication status matter moment like guy point date set referred civil action freg give date debtor eight greg signed legal action yet greg well honest going make payment 30th reasonable agreement reached 30th month signing debtor eight stay proceeding able ass option take take promptly greg offer one 50 per cent debt legal proceeding go breach arrangement work anywhere greg indistinct work 9 clock go court come back greg give day legal action commence signed greg someone provide date issued yet know mean indistinct everyone else get stamped advise date greg go speak solicitor see approve 30th nothing going happen debtor eight demand legal action made greg yeah debtor eight usually required time frame reasonable time frame greg 2009 indistinct 12 time frame write date debtor eight even understand conversation status matter want know greg understand wanted settlement offer gave settlement offer debtor eight okay going include paid 30 june greg voided yeah debtor eight sign legal action right greg going say voided going put misleading operator go court solicitor compendiously inference proceeding hand correct unduly harassing coercive reason given relation call 1 call 94 18 june 2010asic relied upon call 94 included following jasmina yes case manager legal meeting moment going take message okay misleading albeit minor way legal meeting unduly harassing coercive reason given relation call 1 call 95 18 june 2010both acm asic relied upon call 95 acm called debtor eight father included following debtor eight father first heard couple day ago rung upset know anything apparently arrangement repay debt 100 month day late greg mmm hmm debtor eight father threatening take court declare bankrupt et cetra et cetra right greg account hit legal status mean legal recovery action may commence account come sort amicable agreement debtor eight father yep greg amount owing 10 283 solicitor advised willing take offer 8 700 close account come 50 per cent amount actual debt owing placed back arrangement debtor eight father hopefully cure situation greg go solicitor say settled shortly forthwith eight seven absolute bottom line greg yep assure debtor eight father actually spoke personally know one guy personally sympathise circumstance put line put head towards lowest amount go 10 283 large amount drop usually give couple hundred dollar 500 max 8 700 close account debtor eight father yeah greg nothing debtor eight father believe industry honest misleading solicitor involved inference proceeding close hand correct however unduly harassing coercive reason given relation call 1 call 96 21 june 2010acm relied upon call 96 included following rebecca debtor eight father rebecca acm group today debtor eight father hello rebecca spoken rebecca dealing greg debtor eight father know mean last year another matter daughter rebecca daughter name debtor eight father debtor eight rebecca recall speaking debtor eight father okay rebecca rebecca work department well nothing untoward conclusion debtor eightdebtor eight three ledger report one debt printed 11 november 2010 time debt 4 531 55 owed national australia bank mastercard increased 4 544 31 due addition 12 76 interest b debt 658 94 owed national australia bank visa card joined 11 52 interest 30 late fee leaving total debt 700 46 c debt 9 935 11 initially owed commonwealth bank respect variable rate personal loan increased 10 743 75 763 64 interest 45 late fee added three debt account marked settled full however debt b settled payment 4 800 made debtor eight father 17 july 2009 representing 444 77 discount debt c settled 25 june 2010 debtor eight father made payment apparently credit card 8 700 seems total 9 160 paid debtor eight behalf settle debt c found relation debtor eight acm engage misleading deceptive conduct though extent alleged asic specifically find acm engaged misleading deceptive conduct representing matter referred acm lawyer b acm decided would commence legal proceeding shortly debtor eight think shown acm misleadingly represented acm employed house lawyer b acm specialised commencing legal proceeding debtor recovery debt c acm frequently commenced legal proceeding debtor recovery debt acm could commence legal proceeding shortly debtor eight furthermore think shown acm engaged unduly harassing coercive conduct turn legal issue v whether grant declaratory reliefi consider section whether defendant argument relating financial service see infra section vii accepted instead section consider following matter whether contravention small scope hence whether declaratory relief declined basis b whether change defendant manual mean would little point granting declaratory relief c whether alteration ownership business mean longer useful grant declaratory relief useful consider issue misleading deceptive conduct first misleading deceptive conduct significance contraventionsat least insofar question misleading deceptive conduct concerned really doubt mind conduct widespread indeed constant reference litigation accident intended outcome house manual promoted threatening litigation mean achieving recovery operator told make reference legal proceeding lawyer natural example many faithfully drew imagery referred manual uniformed sheriff officer arriving marked car see 30 occurred widespread systemic b change manualswhen mr brabazon became aware manual content direct result asic enquiry changed since changed evidence contravention accepting alter need clear happened past may provide grist argument risk future repetition low indeed inclined accept view thing even think provides good reason decline relief c change ownershipi accept july 2009 business first defendant transferred second defendant evidence mr brabazon restructuring occurred part aborted preparation ipo level formality majority conduct identified conduct new entity predecessor said circumstance utility declaring entity longer engaged business engaged misleading deceptive conduct limited agree 96 call referred 36 occurred 1 july 2009 recent call 96 took place 21 june 2010 last instance misleading deceptive conduct call 95 18 june 2010 last instance unduly harassing coercive conduct call 67 19 march 2010 well july 2009 may circumstance fact entity ceased trade may provide good reason make declaratory order think purpose declaration identify business community specie unacceptable behaviour also serve purpose vindicating asic claim circumstance subject legal issue still resolved discretionary consideration favour granting declaratory relief defendant form declarationi would however willing make declaration form proposed asic ran 66 page dealt detail position debtor although prepared entertain debate present seems appropriate declaration would defendant engaged misleading deceptive conduct informing debtor pursued unpaid account acquired third party creditor sue b file hand lawyer c decision made sue would shortly served court process sheriffwhen none true turn question whether declared defendant engaged conduct unduly harassing coercive unduly harassing coercive conduct significance nature contraventionshere question difficult example behaviour limited conduct occurred result manual place see 34 systemic defendant submit best viewed series isolated example resulting errant operator always argument run bad employee particularly defendant employ several hundred staff large turnover doubt behaviour seen qualitatively different misleading deceptive conduct result manual however evidence acm suggested conduct employee mean responsible although evidence operator occasionally monitored evidence suggest find done regular basis taken evidence would shown call monitor given specified matter watch individual operator counselled disciplined place basic systemic guideline ensure compliance consumer protection requirement b change ownershipthis consideration influence decision whether make declaration unduly harassing coercive conduct way misleading deceptive conduct circumstance think would right withhold declaratory relief first defendant would embrace declaration suggested asic instead would declare defendant engaged unduly harassing coercive conduct recovering debt debtor purchased third party creditor heaping personal abuse upon b blackmailing threatening reveal position debtor relative friend employer neighbour vi whether grant injunctive reliefasic also sought injunctive relief case unduly harassing coercive conduct think relief granted occurrence result certain mindset amongst employee way sort bullying stop second defendant make stop think declaration serve end sufficiently without expressing concluded view appropriate form injunctive relief likely directed second defendant procedure call monitoring rather bare order unduly harass coerce hear party question however necessary situation misleading deceptive conduct case le clear conduct result earlier manual manual revised asic point contravention since revision notwithstanding concluded injunctive relief granted ensure second defendant give effect manual see utility granting injective relief first defendant asic vindication relation properly served declaratory relief indicated turn central question case namely whether relief claimed asic legally foreclosed vii claim asic act maintained asic claim asic act related misleading deceptive conduct 12da 1 undue harassment coercion 12dj 1 case conduct must connected financial service case 12da 1 misleading deceptive conduct must relation financial service case 12dj 1 undue harassment coercion must connection supply possible supply financial service consumer payment financial service consumer case defendant challenge asic straightforward business extracting money overdue debtor involve provision financial service asic submitted situation defendant covered 12bab 1 g provided purpose division person provides financial service g provide service otherwise supplied relation financial productthe financial product involved said loan contract credit card contract previously existed debtor original creditor case nab commonwealth bank contract assigned acm service provided debtor relation financial product said provision debtor going credit accept loan credit card contract debtor original creditor financial product two step conclusion first contract would credit facility within meaning reg 2b theaustralian security investment commission regulation 2001 cth pertinent part regulation thus 1 paragraph 12baa 7 k act following acredit facility provision credit period ii without prior agreement credit provider debtor iii whether credit debit facility available 3 regulation creditmeans contract arrangement understanding payment debt owed one person adebtor another person acredit provider defined ii one person adebtor incurs deferred debt another person acredit provider b including following form financial accommodation iii credit provided purchase good service v article known credit card charge card ix financial benefit arising result loan x assistance obtaining financial benefit arising result loan original debt arisen credit card account debtor nab also personal loan one nab one commonwealth bank fell within definition credit facility within reg 2b contract assigned acm think altered character credit facility occurred moment assignment acm identity one party changed right remained second step reaching conclusion contract exposed credit facility reg 2b financial product challenging term 12baa 7 k asic act relevantly tell anyone got far subject subsection 8 following arefinancial productsfor purpose division k credit facility within meaning regulation since know contract credit facility challenge 12baa 7 k present obvious lie however relatively innocuous opening word subject subsection 8 section 12baa 8 tell one thing financial product section 12baa 8 e f include list e facility designated payment system purpose thepayment system regulation act 1998 f facility exchange settlement non cash payment see subsection b provider non cash payment facilitieson 11 april 2001 reserve bank australia designated credit card scheme operated bankcard mastercard visa payment system unders 11of thepayment system regulation act 1998 cth think individual contract question facility designated payment system doubt part payment system e requires likewise individual contract facility exchange settlement bank involved best merely part system follows carve out 12baa 8 e f engaged contract acm acm group debtor therefore financial product question becomes whether asic submitted defendant use language 12bab 1 g provid ed service otherwise supplied relation financial product recalled would taken provide financial service asic submitted providing going credit debtor defendant providing service service supplied relation financial product viz loan credit card contract accept latter submission given breadth word relation attention therefore confined whether defendant provided service consisting going credit service defined 12ba 1 include right including right relation interest real personal property benefit privilege facility provided granted conferred trade commerce subject irrelevant exception accept granting debtor time pay granting right namely right relieved immediate obligation pay occurred trade commerce essential part collection officer job get debtor payment plan necessarily provision payment plan albeit unusual sense provision credit doubt difficult view unpleasant call debtor received service call service rather merely encouragement take service follows conclude provision financial service debtor occasion time extended brings one back length s 12da 1 12dj 1 former requires misleading conduct occur relation financial service satisfied misleading conduct identified relation provision financial service identified hence 12ba 1 requires relation financial service also follows unduly harassing coercive conduct identified said connection supply possible supply financial service consumer within meaning 12dj 1 circumstance asic entitled pursue defendant two provision asic also pursued relief equivalent provision former tpa defendant submitted asic authority pursue relief act since concluded s 12da 1 12dj 1 apply resolution debate presently lack utility resolution necessary viii reliefasic entitled relief indicated defendant pay asic cost party bring short minute order giving effect reason within 14 day cannot agreed matter relisted resolve remaining debate certify preceding three hundred fifty 350 numbered paragraph true copy reason judgment herein honourable justice perram associate dated 26 october 2012
Banks and Commissioner for Land & Planning and Waldren [2001] ACTAAT 8 (21 March 2001).txt
bank commissioner land planning waldren 2001 actaat 8 21 march 2001 last updated 22 march 2001australian capital territoryadministrative appeal tribunalcitation g h bank commissioner land planning j f waldren or 2001 actaat 8 21 march 2001 at00 96catchwords land planning development application review decision approve dual occupancy heritage precinct whether proposed development meet requirement design siting code multi dwelling development issue relating streetscape overshadowing private open spaceland planning environment act 1991territory planbonansea commissioner land planning or 2001 actaat 4 13 february 2001 tribunal m p neil senior memberdate 21 march 2001australian capital territory administrative appeal tribunal at00 96land planning division gary helenbanksapplicantsand commissioner forland planningrespondentand john fionawaldrene f tagliettianne forresth h hamiltonb c rosek gordonn w eganj l preissparties joineddecisiontribunal m p neil senior memberdate 21 march 2001decision decision review set aside substituted decision development application approved senior memberaustralian capital territory administrative appeal tribunal at00 96land planning division gary helenbanksapplicantsand commissioner forland planningrespondentand john fionawaldrene f tagliettianne forresth h hamiltonb c rosek gordonn w eganj l preissparties joinedreasons decision21 march 2001 m p neil senior memberthis review decision commissioner land planning respondent approve development application demolish existing house erect two new house plus carport garage associated landscaping block 1 section 10 griffith block located intersection bass garden durville street within blandfordia 5 precinct place act heritage place register review sought gary helen bank applicant live next door bass garden supported opposition development enrico francesca taglietti live next door durville street resident griffith developer john fiona waldren also joined party review 2 matter raised principal issue dispute firstly whether requirement design siting code multi dwelling development code form appendix iii 2 territory plan met secondly whether requirement heritage citation blandfordia 5 form part variation 102 territory plan met decision maker cannot approve development comply territory plan included 3 discussion representative act heritage council took place prior development application submitted leading change original proposal act heritage council generally support application meeting heritage requirement although view supported mr eric martin heritage architect gave evidence applicant mr graham melville experienced architect designed development also gave oral evidence party opposed 4 block 1 067 square metre face north towards bass garden slope north south towards rear virtue position intersection durville street circular bass garden block somewhat unusual shape curved projection towards intersection angle le 90 degree existing house face intersection rather either street frontage characteristic early canberra subdivision accordance requirement act heritage council larger proposed two new house likewise address intersection similarly proposed house single storey accord traditional style precinct smaller one tucked behind larger house carport lower rear corner block order reduce visibility attached double garage screen durville street larger house 207 square metre including double carport smaller house 150 square metre 5 combined effect factor appears although plot ratio exceed specified maximum 35 percent outcome achieved lack compliance number performance measure code failure meet performance measure mean requirement code satisfied necessary consider whether related criterion objective code satisfied among area possible non compliance identified setback four boundary location private open space overshadowing access sunlight smaller house design siting code building relation front side boundaries6 code provides performance measure d2 1 setback larger corner block 6 metre one street frontage 4 metre street frontage minimum setback along bass garden 4 65 metre one point articulation building retreat 7 1 metre similar circumstance prevail relation durville street frontage building 9 metre boundary although approach within 5 metre boundary two point mr martin offered view awkwardly shaped block could minor encroachment although considered intrusion offend heritage value place accept view respondent representative mr ray brown element offset appropriate case balance consider intrusion minimum setback larger house acceptable relative overall setback building especially given difficulty posed unusual shape block 7 setback house along bass garden east block located closer street intersection durville street approached accordingly think intrusion larger house front setback acceptable perspective since arced pattern maintained find objective criterion code regard front boundary setback met possible exception design location carport larger house separate partially enclosed brick building tiled roof lower larger house one end project forward setback bass garden impact carport considered 8 intrusion setback boundary minimum setback 3 metre rear side boundary specified performance measure d3 1 laundry smaller house intrudes angle minimum setback along southern boundary taglietti block already old brick shed removed even closer boundary proposed new house reason commissioner representative suggested new intrusion setback required territory plan could disregarded cannot accept argument fact earlier time building located place would allowed today reason allow problem persist intrusion side rear setback potential adversely affect neighbour limit use land however note intrusion taglietti side quite limited 9 cannot said intrusion setback eastern side side wall carport larger house located 1 metre boundary applicant land way described minimum insignificant departure d3 1 considered design siting point view constitutes major departure performance measure code 10 performance measure d2 2 specifically requires carport comply minimum setback relevant objective performance criterion o2 1 provide attractive streetscapes reinforce function street enhance amenity dwelling p2 1 setback street frontage appropriate streetscape character efficient use site amenity resident 11 streetscape defined territory plan streetscapeincludes visible component within street part street including private land facing building including form building treatment setback fencing existing tree landscaping driveway street layout surface utility service street furniture lighting sign barrier bus shelter 12 regard relevant performance criterion effect streetscape location carport corner highest point block concern intrudes front setback particular side setback north east corner within 5 metre front boundary one metre side boundary mr martin mr melville different view impact carport streetscape would partially screened vegetation lower street fall land mr melville felt design would cause appear relatively open brick wall roof carport close street would nevertheless quite visible bass garden would result appreciable loss open space applicant house building block viewed bass garden although space landscaping would still available applicant side boundary balance find siting carport would result detriment streetscape relevant performance criterion objective met 13 siting carport larger house problematic close north smaller house within metre closest point 14 relevant objective performance criterion o3 1 site building meet projected user requirement privacy daylighting o3 2 site design building promote energy efficiency access sunshine p3 2 dwelling sited enable northern facade receive adequate sunshine winter p3 3 dwelling sited ensure good sunlight access main private open space p3 4 building sited minimise overshadowing northern facade adjacent dwelling private outdoor space p3 5 building wall sited length height ensure significant loss amenity adjacent dwelling private open space 15 acknowledged overshadowing part wall kitchen family room smaller house mid winter shadow diagram available 22 june 9 00am 2 00pm criterion appear met since siting smaller house partially overshadowed carport larger house private open space design siting code private open space16 relevant objective performance criterion o4 1 provide dwelling withprivate open spacethat meet reasonable recreational service storage need resident p4 1private open spaceareas dimension suit projected requirement dwelling occupant accommodate outdoor recreation need well providing space service function clothes drying domestic storage p4 2 part theprivate open spaceto capable enabling extension function dwelling relaxation dining entertainment recreation child play directly accessible dwelling p4 3 location ofprivate open spaceto take account outlook natural feature site neighbouring building open space provide maximum year round use 17 performance measure d4 3 code requires dwelling available private open space minimum dimension 6 metre adjoining main living room directly accessible drawing show private open space larger house located front house facing bass garden well placed access living area dwelling directly accessible street would probably suitable identified purpose child play private open space generally preferably located away street afford privacy sometimes provided forward building line especially case location offer greater access sunlight case courtyard wall similar device may screen proposed screened case presumably order offend heritage requirement note however space face onto parkland opposite dwelling tree shrub hedge provide privacy area still exposed extent street case larger house identified location private open space may difficulty space available rear 18 rear larger house however face directly onto proposed private open space smaller house raise interface issue see unlike occupant larger house occupant second house access much useable alternative outdoor space identified available best barely meet minimum dimension 6 metre identified code area near applicant fence shown first drawing private open space smaller house rejected planning official partially south carport thus overshadowed problem designated open space smaller house certain amount overshadowing winter shadow diagram show addition overshadowing part smaller house carport identified private open space smaller house would subject overshadowing different time day part proposed building however designated open space would appear receive four hour probably direct sunlight mid winter 19 proposed arrangement private open space le optimal balance cannot find deficient justify rejection proposal ground alone design siting code interface dwellings20 relevant objective performance criterion o7 2 limit overlooking private open space enable resident effectively control outlook room adjacent dwelling p7 2 private open space living room adjacent dwelling protected direct overlooking dwelling layout screening device distance landscaping 21 related issue private open space interface building well problem overshadowing private open space available smaller house question arises rear larger house face directly onto proposed private open space lower smaller house distance part two house appear meet requirement provided performance measure dealing interface building screening provided le optimal privacy mr melville confirmed hearing barrier would open fence metal paling supplemented shrub 22 tribunal observed inbonansea commissioner land planning or 2001 actaat 4dated 13 february 2001 difficulty however case accepting landscaping proposal acceptable solution otherwise unacceptable building development sometimes difficulty determining quickly new planting create screening effect effectiveness screening provides 23 case tribunal case provided professionally prepared landscape plan significant evidence rely event shrub provide limited privacy house 8 metre apart window dining family room opposite without shrubbery doubt requirement code respect relationship two house would met palm assessment may 2000 o7 1 read somewhat cryptically rear dwelling le advantaged assessment occurred time drawing showed read solid barrier wall two house respondent decision part relied upon palm assessment little direct evidence rely screening effective particularly given layout dwelling living area facing must regard also overshadowing part building private open space available smaller dwelling accordingly cannot satisfied criterion 7 2 objective 7 2 met 24 provision landscaping condition approval would necessarily overcome problem overlooking living area residential landscaping exempt requirement land planning environment act 1991 although landscaping requirement imposed respect heritage requirement protected control act blunt instrument least possible landscaping facing bass garden may protected long term contribution heritage value area cannot accept shrub along internal fence separating two proposed house would thought make contribution heritage value blandfordia 5 would attract legislative control conclusion25 reaching decision case helpful consider purpose territory plan design siting requirement heritage requirement relationship provision design siting code apply equally act residential development regardless location aim protect reasonable level safety health amenity community consistent residential land use policy plan heritage citation included territory plan fulfil different purpose namely protect heritage significance place identified appropriate apply code stringently heritage area suggested proposal opponent apply le stringently function part territory plan different must separately satisfied 26 analysis illustrates smaller two house would face number disadvantage would winter overshadowing part wall kitchen family area proximity carport north designated private open space limited would also partially overshadowed space living dining family area smaller house screened family dining area larger house shrub although distance large 27 accept territory plan encourages dual occupancy appropriate case balance need found allows development retaining heritage value case however appears effort ensure heritage sympathetic development comprised two modern house within constraint awkwardly shaped sloping block compromised amenity second smaller house unacceptable degree demonstrated failure meet number performance standard code 28 found also siting carport minimise detriment streetscape required code 29 given extent non compliance objective performance criterion code believe preferable decision development application approved decided unnecessary ass application separately heritage citation finding30 decision review set aside form 33publication detailsto publishedto completed member staff________________________________________________________________________part afile at00 96applicants gary helen banksrespondent commissioner land planningparties joined john fiona waldren e f taglietti anne forrest h h hamilton b c rose k gordon n w egan j l preisscounsel appearing applicant respondent party joined mr r arthur waldren solicitor applicant respondent party joined ken johnston bedford co waldren applicant mr g banksrespondent mr r brownparties joined mr g bank hamilton rose gordon egan dr e tagliettims forrestmr j preisstribunal member m p neil senior memberdate hearing 6 8 february 2001place canberradate decision 21 march 2001place canberra_______________________________________________________________________part brecommendation full report x case note unreported decision comment
Construction, Forestry, Maritime, Mining and Energy Union [2018] FWCA 6414 (16 October 2018).txt
construction forestry maritime mining energy union 2018 fwca 6414 16 october 2018 last updated 23 october 2018last updated 23 october 2018 2018 fwca 6414fair work commissiondecisionfair work act 2009s 185 enterprise agreementconstruction forestry maritime mining energy union ag2018 4722 trulogic pty ltd cfmeu collective agreement 2018building metal civil construction industriescommissioner leemelbourne 16 october 2018application approval trulogic pty ltd cfmeu collective agreement 2018 1 application made approval enterprise agreement known thetrulogic pty ltd cfmeu collective agreement 2018 agreement application made pursuant tos 185of thefair work act 2009 act made construction forestry maritime mining energy union agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 construction forestry maritime mining energy union bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 4 agreement approved accordance withs 54of act operate 23 october 2018 nominal expiry date agreement 31 december 2018 commissionerprinted authority commonwealth government printer ae500474pr701378
Compass Group (Australia) Ply Ltd T_A Compass Group [2022] FWCA 1064 (25 March 2022).txt
compass group australia ply ltd compass group 2022 fwca 1064 25 march 2022 last updated 31 march 2022 2022 fwca 1064fair work commissiondecisionfair work act 2009s 185 enterprise agreementcompass group australia ply ltd compass group ag2022 734 compass group es offshore oil gas australian worker union shell prelude greenfields agreement 2022hospitality industrydeputy president beaumontperth 25 march 2022application approval compass group es offshore oil gas australian worker union shell prelude greenfields agreement 2022 1 application made approval greenfields agreement known thecompass group es offshore oil gas australian worker union shell prelude greenfields agreement 2022 theagreement application made compass group australia ply ltd compass group pursuant tos 185of thefair work act 2009 theact 2 greenfields agreement meet requirement ofs 172 2 b act satisfied requirement ofss 186and187of act relevant application approval met accordance withs 187 5 act satisfied australian worker union entitled represent industrial interest majority employee covered agreement relation work performed also satisfied public interest approve agreement 3 applicant provided written undertaking copy undertaking attached annexure accordance withs 191 2 act undertaking taken term agreement 4 pursuant tos 53 2 b act note agreement made australian worker union agreement cover organisation 5 agreement approved accordance withs 54of act operate 1 april 2022 nominal expiry date agreement 12 november 2024 deputy presidentprinted authority commonwealth government printer ae515484pr739695 annexure
Sutikno & Ors v Minister for Immigration & Anor [2015] FCCA 686 (24 March 2015).txt
sutikno or v minister immigration anor 2015 fcca 686 24 march 2015 last updated 31 march 2015federal circuit court australiasutikno or v minister immigration anor 2015 fcca 686catchwords migration review migration review tribunal decision refusal skilled residence visa interlocutory dismissal show cause application arguable case jurisdictional error legislation federal circuit court rule 2001 cth migration act 1958 cth 353migration amendment regulation 2007 7 migration regulation 1994 cth minister immigration 2013 hca 18 2013 249 clr 332thapaliya v minister immigration 2013 fcca 456first applicant ida surjati sutiknosecond applicant petrus herman susilothird applicant natasha valeskafirst respondent minister immigration border protectionsecond respondent migration review tribunalfile number syg 1107 2014judgment judge driverhearing date 24 march 2015delivered sydneydelivered 24 march 2015representationthe first applicant appeared personsolicitors respondent mr speirs clayton utzinterlocutory order 1 application dismissed pursuant rule 44 12 1 thefederal circuit court rule 2001 cth 2 first second applicant pay first respondent cost disbursement incidental application including cost thrown away fixed sum 3 500 federal circuit courtof australiaat sydneysyg 1107 2014ida surjati sutiknofirst applicantpetrus herman susilosecond applicantnatasha valeskathird applicantandminister immigration border protectionfirst respondentmigration review tribunalsecond respondentreasons judgment revised transcript show cause application seeking review decision migration review tribunal tribunal tribunal affirmed decision delegate minister grant applicant skilled residence visa three applicant husband wife child first applicant mr sutikno made relevant visa claim applicant mother reference applicant reason intended reference background fact relating visa application tribunal decision set minister written submission filed 3 december 2014 criterion skilled visa set part 485 schedule 2 themigration regulation 1994 cth regulation critical criterion flowed clause 485 215 required m sutikno competent english expression defined byregulation 1 15cof applicable version regulation 1 stated person competent english person satisfies minister person achieved test conducted 2 year day application lodged ielts test score least 6 4 test component speaking reading writing listening ii score specified minister instrument writing subsubparagraph b language test specified minister instrument b hold passport type specified minister instrument writing paragraph purpose ofregulation 1 15c m sutikno could satisfy competent english requirement undertook achieved requisite test score following language test international english language test system ielts test requires test score least 6 four component speaking reading writing listening oran occupational english test oet requires score least b four component oet orheld passport type specified minister e united kingdom united state america canada new zealand republic ireland citizen country tribunal proceedingsin invitation hearing tribunal invited m sutikno provide evidence among thing competent english evidence provided prior hearing 2 tribunal hearing 15 october 2013 m sutikno provided evidence latest score ielts test undertaken 29 august 2013 3 m sutikno failed attain score least 6 four required component m sutikno told tribunal taking english class undertaken several ielts test unable attain requisite score tribunal agreed allow 15 november 2013 submit evidence 4 following hearing m sutikno provided tribunal receipt ielts test scheduled 30 november 2013 date english course 5 tribunal agreed wait 18 december 2013 making decision 23 december 2013 m sutikno advised tribunal delay production result requested extension tribunal agreed allow 9 january 2014 6 8 january 2014 m sutikno requested additional time claimed still received result 20 february 2014 received nothing m sutikno tribunal contacted advised would allow 28 february 2014 production november ielts result 28 february 2014 m sutikno provided result demonstrated score 5 5 listening 4 5 reading 4 5 writing 5 5 speaking advised booked another test 8 march 2014 requested additional time 18 march 2014 tribunal contacted m sutikno result advised required 22 march 2014 31 march 2014 tribunal contacted m sutikno advised would make decision based upon material 4 april 2014 7 m sutikno responded email 31 march 2014 requesting tribunal give extra time take ielts test every two week give daughter opportunity finish year 12 year result march ielts test attached indicated score 6 0 listening 4 5 reading 5 5 writing 5 5 speaking 8 tribunal considered m sutikno ample time opportunity demonstrate competent english noting approximately three year passed since visa application made almost six month passed since tribunal hearing following tribunal allowed several extension time last adjournment sought effectively indefinite regard score previously attained tribunal considered nothing suggest satisfactory ielts result around corner accordingly tribunal refused adjournment request affirmed decision delegate 9 present proceedingsthese proceeding began show cause application filed 23 april 2014 one ground application applicant entitled skilled provisional class vc 485 visa application accordance relevant provision migration act regulation application supported short affidavit filed accepted 1 3 affidavit evidence received 4 5 submission relevantly applicant say believe eligible granted skilled provisional class vc subclass 485 visa application respectfully submit mrt given thorough consideration aspect possibility application decision reversible way methodology mrt application gfu internal review ombudsman ministerial intervention etc matter came first court date direction 19 june 2014 time mr busby appeared applicant provided applicant opportunity file serve amended application additional evidence taken opportunity consent matter listed show cause hearing 10 december 2014 10 december 2014 mr norbert kelvin appeared applicant sought obtained adjournment show cause hearing recently mr kelvin filed notice intention withdraw filed 5 march 2015 notice purportedly served applicant note however m sutikno course oral argument asserted unaware withdrawal mr kelvin appear however accept applicant disadvantaged circumstance received evidence court book filed 4 july 2014 plainly class visa applicant sought required establish competence english language time visa application able satisfy criterion time tribunal decision relevantly needed establish passing score 6 element ielts test tribunal m sutikno stated made several attempt obtained passing score element test sought obtained several adjournment review give opportunity pas test ultimately however tribunal found given m sutikno sufficient time tribunal reasoning relevantly set 18 10 basis m sutikno ielts test result tribunal found achieved passing score meant none visa applicant could receive class visa sought m sutikno appeared person today made oral submission told continuing english study apparently still achieved passing english language score recognises difficulty regard partly due age hopeful ultimately successful support friend seek time achieve passing score difficulty however underscore conclusion tribunal act unreasonably proceeding decision arguable ground legal unreasonablenesson consideration application available material confidentially satisfied arguable case jurisdictional error tribunal regard regard agree minister submission minister submits recognisable error identified statement asserted affidavit filed 23 april 2014 minister submits tribunal obligation give thorough consideration possibility application decision reversible way methodology basis themigration actor otherwise imposing obligation upon tribunal tribunal decision record reflects tribunal allowed m sutikno numerous adjournment respect m sutikno receiving ielts result sitting additional ielts test minister submits legal unreasonableness ground kind found inminister immigration 11 li open fact case agree unlike inli clearlyan intelligible justification tribunal refusal adjournment present case indeed tribunal reasoning regard set decision record summary tribunal express regard tos 353 1 themigration act refers role tribunal providing review fair economical quick 12 considered m sutikno previous result received 6 one test component test nothing suggest successful ielts test result attainable near future 13 tribunal already allowed m sutikno number adjournment assist sitting additional test receiving ielts result andthe adjournment sought indefinite duration minister submits clearly case tribunal entitled conclude enough enough 14 agree conclude arguable case jurisdictional error tribunal accordingly order application dismissed pursuant rule 44 12 1 thefederal circuit court rule 2001 cth consequence dismissal application minister seek order cost 10 december 2014 ordered applicant pay minister cost thrown away reason adjournment time minister seek order cost fixed amount 3 500 including cost thrown away order first second applicant pay first respondent cost disbursement incidental application including cost thrown away fixed sum 3 500 certify preceding thirty 30 paragraph true copy reason judgment judge driverassociate date 30 march 2015 1 applicable version regulation 1 15c introduced themigration amendment regulation 2007 7 force prior amendment made themigration amendment regulation 2011 3 change made latter apply visa application made 1 july 2011 2 cb 147 8 3 cb 148 14 4 cb 147 14 5 cb 147 15 6 cb 147 15 7 cb 147 15 8 cb 147 15 9 cb 149 22 10 cb 149 11 2013 hca 18 2013 249 clr 332 12 cb 149 17 13 cb 149 16 see thapaliya v minister immigration 2013 fcca 456at 31 32 14 seeliat 82
Nl [2001] MRTA 3979 (30 August 2001).txt
nl 2001 mrta 3979 30 august 2001 last updated 31 october 2001 2001 mrta 3979catchwords review visa refusal subclass 826 health criterion opinion medical officer waiverreview applicant nlvisa applicant abovetribunal migration review tribunalpresiding member ann grahammrt file number v00 00667dima file number v97 101891date decision 30 august 2001at melbournedecision tribunal remit application made visa applicant extended eligibility temporary class tk visa department reconsideration direction visa applicant taken met following criterion subclass 826 interdependency visa public interest criterion 4007 schedule 4statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate refuse grant extended eligibility temporary class tk visa subclass 826 nl visa applicant male national thailand born 3 december 1967 applied permanent residence spouse ground 18 april 1997 1 f 40 2 visa application form completed applicant incorporated application permanent visa general residence class visa normally cannot granted 2 year elapsed since lodgement application application temporary visa extended eligibility temporary class tk visa granted immediately permit stay decision made permanent visa 1 f 40 process intended test whether relationship continuing 2 year visa application permanent residence confirmed delegate decision refuse grant visa health requirement made 20 january 2000 1 f 133 jurisdiction standing3 visa applicant lodged application review tribunal 11 february 2000 t1 f 9 decision reviewable tribunal application review properly made person standing apply review legislation policy4 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 5 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 6 criterion policy immediately relevant review legislation regulation 1 09aof regulationsitem 1211 schedule 1 regulationssubclass 820 schedule 2 regulationssubregulation 5 5 migration amendment regulation 1999 13 policy procedure advice manual 3 schedule 4 public interest criterion criterion 4005 4007 commentary case bui v minister immigration multicultural affair 1999 fca 118 1 march 1999 minister immigration multicultural affair v seligman 1999 fca 117 7 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence8 tribunal following document t1 mrt case file v00 00667 folio numbered 1 144 d1 dima case file v97 101891 folio numbered 1 135 9 visa applicant first entered australia january 1995 holder 670 tourist short stay visa departed 7 february 1995 visa applicant returned australia 7 april 1996 tourist short stay visa subclass 676 granted long stay visitor class tn visa subclass 686 3 july 1996 ceased 26 december 1996 visa applicant since held bridging visa granted basis application visa subject review 10 visa applicant nominated connection visa application jah nominator australian citizen born australia 8 april 1949 1 f 19 29 11 visa applicant claim met nominator july 1995 thailand party decided commence interdependent relationship november 1995 whilst nominator thailand 1 f 37 12 visa applicant migration agent notified delegate april 1997 visa applicant diagnosed hiv submitted medical report dr n j roth stated visa applicant early stage disease d1 f 56 medical officer commonwealth moc subsequently assessed visa applicant failing meet health requirement moc report dated 19 may 1997 stated part d1 f 73 reaching opinion took account medical examination associated report 6 5 97 report dr roth dated 14 4 97 condition deteriorates applicant likely require ongoing treatment frequent specialist visit regular need pathology testing possible hospitalisation also likely treatment expensive medication used extended period time course illness likely applicant also reach stage able continue employment due medical condition would render applicant medically eligible form social service domiciliary care 13 visa applicant invited submit claim delegate consideration waiver provision health requirement 30 july 1999 1 f 96 delegate also referred moc opinion form 884 health service australia 3 august 1999 advice likely cost australian community 1 f 97 visa applicant migration agent submitted report dr roth dated 8 september 1999 stated 1 f 113 since previous 14 april 1997 report nl continued enjoy excellent health nl prognosis remains excellent repeat observation two year ago increasing confidence people group may well near normal health life expectancy mr larkiang immediate foreseeable medical reason able work full time otherwise make normal contribution society contrast nl forced return native thailand future would dbleak could possibly afford continue treatment highly likely illness would progress fatal outcome within little five ten year visa applicant migration agent also submitted report dr anne mijch alfred infectious disease unit dated 22 november 1999 stated 1 f 114 opportunistic infection complication 14 health waiver costing advice dated 20 december 1999 made medical officer commonwealth 1 f 118 moc stated assessing cost australian community moc stated cost medical surveillance medication estimated 10 800 27 000 per year treatment complication increasing incapacity lead escalation cost opinion likely lifetime cost australian community health care community service 240 000 15 application refused 20 january 2000 1 f 133 delegate stated circumstance particular case compelling enough warrant exercise health waiver delegate stated 1 f 127 although department satisfied interdependent relationship applicant nominator genuine ongoing cannot identify distinguishing factor outweigh significant cost australian community 16 visa applicant migration agent t1 f 25 submitted compassionate circumstance apply exercise waiver stated nominator suffered 2 failed relationship first wife 8 year second relationship interdependent ended nominator 45 year old man mid forty isolating lonely experience july 1995 trip thailand nominator met visa applicant november 1995 interdependent relationship developed met often possible either australia thailand visa applicant become aware illness undertook medical examination prior application notwithstanding visa applicant illness nominator encouraged visa applicant lodge application permanent residence nominator placed anti depressant since application refused nominator three adult child supportive application however none three live melbourne nominator father deceased mother life mt gambier three sibling live interstate direct family member close 17 relation consideration humanitarian circumstance agent submitted stated report dr roth visa applicant excellent health minimal risk developing related complication foreseeable future unlikely require hospital treatment medication dr roth stated visa applicant health good returned thailand future would bleak highly likely illness would progress fatal outcome within little five ten year d1 f 113 agent also quoted report dr anne mijch infectious disease unit alfred hospital visa applicant complete suppression problem relation immunosuppression disease visa applicant mother deceased father sister live thailand unaware medical condition agent added visa applicant father sister would unlikely able care return thailand 18 compelling issue agent submitted prospect nominator moving thailand visa refused provision thai law enable nominator make application residence based relationship visa applicant amongst reason agent submitted visa applicant health excellent employed full time continues complete private health insurance guarantee cost community significant element considered favour migration agent submitted nominator visa applicant interdependent relationship 5 year relevant considering factor together 1 ff 14 25 included submission copy medical report dr freeman nominator health february 2000 dr freeman stated nominator suffered anxiety number panic attack suffered depression 1 f 11 19 report clinical psychologist mr eric timewell provided tribunal agent 4 october 2000 t1 f 45 49 mr timewell described visa applicant family background circumstance thailand report mr timewell described visa applicant family relatively poor medical treatment poor readily available visa applicant close attachment anyone except grandmother nominator visa applicant previous relationship feel defenceless prevent separated nominator feel defenceless illness nominator shown pattern loyal devoted relationship according mr timewell visa applicant fail granted visa would unlikely nominator would form relationship another partner would candidate long term depressive illness 20 agent also provided tribunal report consultant psychiatrist dr sue brann dated 25 september 2000 1f 51 68 report dr brann stated context relationship visa applicant nominator limited access establish another similar relationship dr brann referred attached medical opinion dr mijch documentation provided supporting visa applicant good health good prognosis dr brann referred compassionate compelling argument supporting visa application behalf nominator stated nominator prone panic attack added whilst party respective illness treatable duration intensity symptom negatively influenced stress loss prognosis 21 may 2001 tribunal invited visa applicant provide medical information referral review medical officer commonwealth invitation submit compelling compassionate reason consideration health requirement 1 f 73 agent contacted tribunal 13 june 2001 advised visa applicant obtained new medical report intend dispute original finding medical officer commonwealth 1 f 74 agent subsequently provided medical report dr anne mijch dated 14 june 2001 dr roth dated 22 may 2001 letter nominator one letter support friend party relationship t1 f 75 83 dr mijch stated opinion visa applicant well remained since previous report visa applicant continued therapy dr mijch added visa applicant medium long term outcome excellent report dr roth dated 22 may 2001 statedinter aliathat 1 f 77 nl prognosis remains excellent repeat observation four year ago increasing confidence people group may well near normal health life expectancy nl immediate foreseeable medical reason able work full time otherwise make normal contribution society contrast nl forced return native thailand future would bleak could possibly afford continue treatment highly likely illness would progress fatal outcome within little five ten year 22 statement dated 12 june 2001 nominator stated visa applicant maintain strong relationship totally committed nominator added would financial emotional support friend needed visa applicant purchased property investment visa applicant could sold support needed statement made friend six year standing made support party relationship loving long term 1 f 75 76 23 hearing conducted 9 august 2001 visa applicant nominator nominator treating general practitioner dr bella freeman gave evidence friend party mr rl m lh m bm also gave evidence request visa applicant gave evidence without assistance interpreter visa applicant stated meet nominator july 1995 thailand began intimate relationship time stated developed strong feeling nominator visit thailand accepted nominator invitation visit australia although visa applicant came australia 1996 holiday stated fell love nominator living together since time stated party purchased house together march 2000 visa applicant stated told family homosexuality hiv status believe australia working holiday 24 nominator stated travel agent able travel thailand twice 1995 1996 invited visa applicant come australia nominator stated hoped long term relationship visa applicant time next twelve month australia bond became even stronger nominator stated visa applicant initially worked nominator business working food preparation major hotel nearly three year stated visa applicant 200 000 equity home transferred joint name shortly nominator stated unable purchase property joint name originally foreign investment restriction changed nominator stated visa applicant sole beneficiary life insurance nominator stated visa applicant private health insurance visa applicant excellent health pay additional medical cost stated visa applicant full sick leave entitlement hotel taken sick leave three year nominator stated investment home major asset use retirement payment medical cost incurred visa applicant future nominator stated age difference visa applicant issue either share large group mixed age friend 25 nominator stated visa applicant important person life thai law would permit settle permanently thailand visa applicant application unsuccessful stated would travel regularly australia thailand maintain relationship would detrimental business future staff nominator stated visa applicant might able get adequate health care thailand would cost large sum money would rapidly deplete nominator resource 26 mr rl stated would help party cover additional medical cost future known nominator 20 year belief party strong sincere genuine relationship stated nominator primary focus life relationship visa applicant would unlikely would find another long term partner mr rl stated nominator business would suffer application unsuccessful m lh stated shared house nominator three four year travelled thailand 1995 believed age difference visa applicant nominator issue nominator youthful outlook life m lh stated would contribute financially meet medical cost incurred visa applicant future m bm stated also known nominator 20 year met visa applicant thailand 1995 stated relationship party one endure believed nominator would follow visa applicant thailand application unsuccessful stated seen nominator deteriorate emotionally since visa refusal also stated would contribute financially future medical cost incurred visa applicant 27 visa applicant migration agent submitted cost estimate moc date suggested tribunal relied estimate dr mijch lifetime estimate person hiv would le 200 000 submitted tribunal examine impact relocation thailand visa applicant case would likely suffer significant disadvantage treatment hiv whose life expectancy would shortened considerably submitted compelling compassionate circumstance application outweigh cost australia community tribunal ought exercise health waiver 28 written submission together financial document requested tribunal received tribunal 15 august 2001 t1 f 134 144 visa applicant migration agent submitted visa applicant condition would likely prejudice access australian citizen health care stated australia hiv treated person general practitioner individual treatment programme medication required manufactured commercial application short supply submitted use one person resource limit access person treatment visa applicant migration agent submitted case issue prejudice access raised moc indication considered significance 29 visa applicant migration agent provided copy nominator life insurance policy nominating visa applicant sole beneficiary together current health insurance statement party t1 f 134 141 findings30 time visa application lodged class tk contained following subclass subclass 445 dependent child subclass 820 spouse subclass 826 interdependency subclass respect claim advanced subclass 826 evidence suggest visa applicant meet key criterion subclass 31 subclass 820 826 removed class tk effect 1 november 1999 transitional provision set subregulation 5 5 migration amendment regulation 1999 13 provides regulation force immediately 1 november 1999 continue apply matter 32 1 march 1999 regulation 2 25b held invalid full federal court decision ofminister immigration multicultural affair vseligman 1999 fca 117 regulation amended part 4 4 themigration amendment regulation 1999 6 statutory rule 81 1999 amongst thing amending schedule 4 substituting new paragraph 4007 1 c applicant c subject subclause 2 person disease condition following subparagraphs apply disease condition person would likely require health care community service b meet medical criterion provision community service period applicant proposed stay australia ii provision health care community service relating disease condition would likely result significant cost australian community area health care community service b prejudice access australian citizen permanent resident health care community service regardless whether health care community service actually used connection applicant andregulation 4007 2 provides 2 minister may waive requirement paragraph 1 c applicant satisfies criterion grant visa applied b minister satisfied granting visa would unlikely result undue cost australian community ii undue prejudice access health care community service australian citizen permanent resident 33 transitional regulation 6 3 statutory rule 81 1999 provides amended version applies application made finally determined within meaning subsection 5 9 act 1 july 1999 well application made 1 july 1999 application finally determined longer subject form review part 5 7 act application review finally determined 1 july 1999 transitional amendment applies 34 issue criterion taken account considering waiver paragraph 4007 2 considered full court federal court inbui v minister immigration multicultural affair 1999 fca 118 1 march 1999 court statedthere obviously broad judgement made determining amount undue cost undue prejudice reading together criterion item 4007 1 c criterion waiver 4007 2 b apparent occasion exercise waiver arise already established cost australia visa granted likely significant minister therefore need satisfied likely significant cost nevertheless undue former determination evidently bound opinion medical officer commonwealth evaluative judgment whether cost australian community prejudice others visa granted undue may import consideration compassionate circumstance may australia benefit moral term admit person even though could anticipated person make significant call upon health community service may circumstance compelling character included compassionate category mandate outcome consideration likelihood cost prejudice undue discretionary element ministerial waiver within discretion compassionate circumstance widely expressed compelling circumstance may properly part play 35 determining whether waiver subclause 4007 2 applies tribunal note pam 3 provides guideline exercise waiver pam 3 state moc provide estimate cost health care community service description service involved range cost relevant individual applicant effect regulation 2 25a officer may consider waiver provision mocha provided opinion visa applicant satisfy paragraph 4007 1 c tribunal note moc purpose providing opinion whether prescribed health criterion regulation met formed opinion visa applicant cannot meet prescribed health criterion set paragraph 4007 1 c person disease condition proposed period stay australia would likely result significant cost australian community area health care community service 36 moc estimated likely lifetime cost australian community community service 240 000 00 ongoing treatment tribunal find amount issignificant legislation defineunduein relation toundue costin paragraph 4007 2 b oxford english dictionary definesundueasnot accordance right unjustifiable going beyond appropriate warranted natural excessive paragraph 2 5 attachment 6 schedule 4 pam 3 state officer consider following determining whether cost prejudice listed paragraph 4007 2 c would undue extent social welfare medical hospital institutional day care likely required australia education occupational need prospect applicant australia whole period intended stay potential applicant state health deteriorate taking account known medical factor also influence strain adjusting new environment life style occupation etc applicable visa class individual overall lifetime lesser period according intended length stay charge australian public fund willingness ability sponsor family member person body provide care support public cost merit case e g strength humanitarian compassionate factors37 material presented tribunal find extent social welfare medical hospital institutional care likely required australia would significant visa applicant would require ongoing medical treatment medication far visa applicant prospect independent life concerned moc opinion visa applicant require lifetime medication medical care recent medical report doctor roth mijch stated visa applicant health prognosis medium long term prospect good working full time maintaining medication currently normal immune function undetectable viral load 38 regard overall lifetime charge australian public fund tribunal take account moc opinion cost taxpayer would long term nature likely total cost australian taxpayer would 240 000 00 tribunal note report dr mijch suggests current lifetime estimate medical cost person hiv calculated 93 000 1992 1993 price possible tribunal extrapolate 1992 1993 figure 2001 tribunal adopts figure offered moc purpose application 39 regarding willingness ability others provide care visa applicant agent submitted visa applicant long term relationship nominator approximately six year tribunal accepts nominator party friend would provide whatever financial support required visa applicant event significant deterioration health note visa applicant joint owner party home access fund right tribunal also note neither nominator friend bound undertaking provide visa applicant future financial need accepts nominator done everything possible combine party financial affair would likely comply undertaking future 40 agent submitted compassionate compelling reason consideration waiver provision tribunal accepts application unsuccessful nominator would able live thailand visa applicant forced return thailand health would deteriorate lack access medication stated dr roth visa applicant could afford continue treatment highly likely illness would progress fatal outcome within little five ten year visa applicant migration agent also submitted nominator unlikely find another compatible partner 41 pam 3 directs decision maker consider merit case particularly humanitarian compassionate factor tribunal give considerable weight duration strength relationship party would result nominator travel regularly thailand visa applicant returned permanently country likely adverse consequence nominator business financial position tribunal accepts nominator would suffer considerable emotional distress visa applicant returned permanently thailand might result serious deterioration mental health tribunal also give considerable weight fact visa applicant would necessarily able obtain adequate health care cost health care might prohibitive ultimately life expectancy would significantly reduced return permanently thailand 42 circumstance taking account relevant factor including nature care provided applying test inbui tribunal find compassionate compelling circumstance exist exercise health waiver therefore grant subclass 826 visa visa applicant would likely result undue cost australian community paragraph 4007 2 b tribunal also find moc offer opinion whether visa applicant disease would likely cause undue prejudice access health care australian citizen evidence upon finding could made tribunal find therefore grant subclass 826 visa visa applicant would result undue prejudice australia citizen paragraph 4007 2 b ii 43 tribunal waif requirement paragraph 4007 1 c relation application review conclusion44 given finding appropriate course remit application visa department immigration multicultural affair consider remaining criterion subclass 820 visa visa applicant found meet remaining criterion visa applicant entitled grant subclass 820 visa question subclass visa would need considered decision45 tribunal remit application made visa applicant extended eligibility temporary class tk visa dima reconsideration direction visa applicant taken met following criterion extended eligibility temporary class tk visa subclass 826 interdependency visa public interest criterion 4007 schedule 4
0800394 [2008] MRTA 519 (26 May 2008).txt
0800394 2008 mrta 519 26 may 2008 last updated 14 july 20080800394 2008 mrta 519 26 may 2008 decision recordapplicant mr daniel souza nascimentomrt case number 0800394diac reference clf2008 362tribunal member giles shortdate decision signed 26 may 2008place decision sydneydecision tribunal affirms decision cancel applicant subclass 572 vocational education training sector visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship cancel applicant subclass 572 vocational education training sector visa unders 116of themigration act 1958 act department immigration citizenship granted applicant subclass 572 vocational education training sector visa 25 may 2006 applicant notified delegate minister considering cancelling subclass 572 visa decision cancel visa made 11 january 2008 applicant notified decision review right daythe delegate cancelled applicant subclass 572 visa unders 116on basis applicant breached work limitation condition condition 8105 applying visa applicant applied tribunal 21 january 2008 review delegate decision satisfied delegate decision mrt reviewable decision unders 338 3 act applicant non citizen subject decision made valid application review unders 347of act relevant lawsection 116gives minister power cancel visa visa holder complied condition visa relevantly state 116 power cancel 1 subject subsection 2 3 minister may cancel visa satisfied b holder complied condition visa 3 minister may cancel visa subsection 1 minister must exist prescribed circumstance visa must cancelled regulation 2 43 2 themigration regulation 1994 regulation set prescribed circumstance referred in 116 3 minister must cancel visa case student temporary class tu visa class includes subclass 572 vocational education training sector visa circumstance include minister satisfied visa holder complied condition 8104 8105 condition applies visa r 2 43 2 b effect ofs 116 3 r 2 43 2 b tribunal satisfied visa holder complied condition 8105 itmustcancel visa tribunal discretion set aside visa cancellation breach condition 8105 non compliance condition established tribunal bound operation ofs 116 3 affirm visa cancellation seeminister immigration multicultural indigenous affair v alam 2005 fcafc 132 2005 145 fcr 345at 13 per wilcox j condition 8105condition 8105 found item 8105 schedule 8 regulation place restriction visa holder capacity engage work relevant version condition must considered determining whether non compliance version applicable time visa grant pradhan v minister immigration multicultural affair 1999 fca 1240 1999 94 fcr 91at 19 per gyles j version condition 8105 applied 25 may 2006 date applicant visa granted stated follows 1 subject subclause 2 holder must engage work australia 20 hour week week holder course study training session 2 subclause 1 apply work specified requirement course course particular entered commonwealth register institution course overseas student work regulation 1 03of regulation defines work activity australia normally attracts remuneration definition provided r 1 03 may include activity individual visa holder remunerated sufficient activity normally attracts remuneration braun v minister immigration local government ethnic affair 1991 fca 611 1991 33 fcr 152 considered definition r 2 work also defined activity australia normally attracts remuneration inbraun however french j acknowledged individual engage activity domestic social character case activity regarded work assessment whether activity regarded work matter evaluation degree 156 inkim v witton 1995 fca 1508 1995 59 fcr 258 sackville j stated 268 test whether individual performing activity receives remuneration whether performs activity commercial purpose reason test applied objective one namely whether activity performed individual normally attracts remuneration australia test requires going beyond nature activity question particular context assistance provided commercial social domestic altruistic motivation may context fact case assist determining whether particular activity undertaken voluntarily one normally attracts remuneration dib v minister immigration multicultural affair 1998 fca 415 1998 82 fcr 489 495 496 per einfeld j week visa holder engaged work within meaning r 1 03 condition 8105 requires 20 hour week week holder course study training session word week context refers week commencing day session commences week seven day period commencing day first day session seealam v minister immigration multicultural affair 2004 fmca 583 however 20 hour week limitation condition 8105 1 apply work specified requirement course course particular entered commonwealth register institution course overseas student cricos 8105 2 claim evidencethe tribunal department file clf2008 362 relating applicant theapplicant appeared tribunal 26 may 2008 give evidence present argument applicant unrepresented beginning 2007 applicant began studying lloyd international college diploma information technology system administration see folio 11 department file clf2008 362 course session 8 october 2007 17 december 2007 see folio 10 pay report provided employer frf holding pty ltd courier company period march 2007 november 2007 indicate week monday 8 october 2007 friday 12 october 2007 applicant worked 46 50 hour week 15 october 19 october 2007 worked 37 75 hour week 22 october 26 october 2007 worked 49 hour week 29 october 2 november 2007 worked 44 hour see folio 6 7 applicant issued notice intention consider cancellation unders 116of act 11 january 2008 referring information set paragraph 17 stating basis information appeared ground cancelling applicant visa unders 116of act applicant invited provide comment interview 11 january 2008 according note made delegate applicant disagree information set paragraph 17 agreed worked 20 hour week course session breach condition 8105 said aware condition aware exactly meant said used working 80 hour week brazil prior coming australia applicant said passing course qualified radiologist wanted apply permanent residence australia delegate proceeded cancel applicant visa breach condition 8105 referred hearing explained applicant going give information course hearing considered would reason part reason affirming decision review indicated would explain information understood relevant review would also explain consequence information relied upon affirming decision review indicated would ask comment respond information indicated wanted additional time comment respond information could tell would consider whether adjourn review give additional time noted applicant aware visa cancelled breach work limitation condition condition 8105 provided could engage work 20 hour week week course study session noted relevant time applicant studying lloyd college calendar indicated course study session 8 october 17 december 2007 noted pay report provided applicant employer frf holding pty ltd indicated week 8 october 12 october 2007 applicant worked 46 50 hour week 15 october 19 october 2007 worked 37 75 hour week 22 october 26 october 2007 worked 49 hour week 29 october 2 november 2007 worked 44 hour explained applicant information relevant review suggested fact breached work limitation condition applying visa worked 20 hour week course session explained relied information concluded breached condition 8105 applying visa would alternative affirm decision cancelling visa stressed discretionthe applicant said understood invited comment respond information applicant said come australia working 70 hour week brazil said working lot saving money come australia stated saying known could work 20 hour misunderstood said come worked first worked domino pizza four month worked 15 20 hour week said told could work 20 hour week student visa said worked year started working frf company said working 40 50 hour week said know law misunderstood law said really working lot asked applicant understood found breached condition discretion would affirm decision cancelling visa noted applicant appeared saying breached condition intended misunderstood law applicant noted worked since january 2008 want break law said wanted live want go back brazil produced copy statement professional qualification radiology technician brazil said come australia intention working hospital said initially improve english noted mentioned applicant entitled seek additional time comment respond information given course hearing asked needed time noted could grant time satisfied reasonably needed comment respond information given course hearing noted appeared acknowledged breached condition applicant repeated done purpose noted discretion take account order overlook breach applicant said understood australia needed professional said one reason wanted apply job emphasised discretion applicant repeated want leave suggested seek independent advice relation option might finding reasonsthe tribunal must determine whether ground cancellation unders 116 1 identified delegate made onus establishing fact may lead cancellation minister review tribunal although visa holder must invited show ground cancellation exist place onus visa holder rebut possible ground cancellation identified seezhao v minister immigration multicultural affair 2000 fca 1235 referred applicant visa cancelled unders 116 1 b act basis failure comply condition visa namely condition 8105 delegate found applicant complied condition 8105 worked 20 hour week week course session whether non compliance visa conditionfor following reason satisfied applicant comply condition 8105 applying visa find evidence relevant session applicant course ran monday 8 october 2007 monday 17 december 2007 find evidence week beginning 8 october 2007 applicant worked 46 50 hour week beginning 15 october 2007 worked 37 75 hour week beginning 22 october worked 49 hour week beginning 29 october 2007 worked 44 hour find work undertaking employer frf holding pty ltd work defined r 1 03 regulation activity australia normally attracts remuneration suggestion present case work undertaken applicant domestic social character find therefore applicant engaged work australia 20 hour week number week course study session suggestion present case work applicant engaged course requirement referred item 8105 2 schedule 8 regulation accordingly satisfied applicant comply condition 8105 applying visa therefore satisfied ground cancellation in 116 1 b exists ground involves circumstance require cancellation visa unders 116 3 act decisionthe tribunal affirms decision cancel applicant subclass 572 vocational education training sector visa giles shortsenior member date
Eagle Fuels Pty Ltd v Slidecross Pty ltd & Anor [2014] VCC 596 (14 May 2014).txt
eagle fuel pty ltd v slidecross pty ltd anor 2014 vcc 596 14 may 2014 eagle fuel pty ltd v slidecross pty ltd anor 2014 vcc 596 14 may 2014 last updated 22 may 2014in county court victoriaat melbournecivil divisionrevisednot restrictedcommercial listgeneral case divisioncase ci 13 03930eagles fuel pty ltd acn 136 452 429 plaintiffvslidecross pty ltd liquidation acn 006 529 559 first defendantandpaul ribberasecond defendant judge honour judge kennedywhere held melbournedate hearing 6 7 8 may 2014date judgment 14 may 2014case may cited eagle fuel pty ltd v slidecross pty ltd anormedium neutral citation 2014 vcc 596reasons judgment catchword contract claim guarantee whether guarantee covered amount owed first defendant binding agreement claimed whether guarantor discharged reason variation guarantee whether repayment 50 000 allocated amount allegedly owing first defendant appearance counselsolicitorsfor plaintiffmr g mukherjislater gordonfor first defendantno appearanceno appearancefor second defendantmr w gilliesferraro company pty ltdher honour current proceeding concern claim 150 000 pursuant guarantee given second defendant mr ribbera relation amount owing supply delivery fuel first defendant slidecross pty ltd first defendant liquidation proceeding currently stayed 1 liquidator aware proceeding indicated intend participate proceeding 2 party thereby accepted proceeding could dismissed first defendant order cost although second defendant raised various issue amended defence three issue remained determination trial first issue concerned proper identity primary debtor thus mr ribbera alleged contract supply fuel fact company named el zorro transport pty ltd slidecross covered guarantee second issue raised whether extension credit primary debtor beyond amount 200 000 discharged guarantee pursuant principle inankar pty ltd v national westminster finance australia ltd 3 finally issue proper accounting two repayment 50 000 made 28 march 2013 15 april 2013 party therefore agreed issue determined follows whether money owing slidecross pty ltd eagle fuel pty ltd supply delivery fuel form subject guarantee executed mr ribbera b yes whether amount owing limited 200 000 ii whether eagle fuel failed properly credit two amount 50 000 paid 28 march 15 april reason tender remittance advice 15 april el zorro issue concerning repayment contained advice gave instruction payment 15 april invoice sent first defendant slidecross light specific advice plaintiff accepted payment 50 000 15 april credited total amount claimed left amount outstanding second defendant 150 000 200 000 50 000 4 background factsthe plaintiff provider fuel ceo mr kelly described niche market speedy provision fuel people site circumstance could necessarily go service station example might train boat mr cowie initial contact mr ribbera operation manager plaintiff second defendant mr ribbera operation manager first defendant slidecross pty ltd 2012 2013 mr ribbera wife director slidecross company obtained fuel various source including plaintiff biofuel delivery january 2013 mr ribbera also employed company called el zorro transport pty ltd project manager el zorro rail company operated locomotive carted rail freight related either plaintiff defendant evidence mr kelly fuel delivered el zorro three different base 2013 first period early january 21 february 2013 plaintiff delivered fuel cash sale account basis described akin el zorro going milk bar buying sandwich set invoice produced dated 14 january 11 february related first period directed particular entity described cash sale account see exhibit 1 second period concern invoice subject proceeding name slidecross covered period 21 february 5 march 2013 final period 8 march 2013 covered period el zorro invoiced directly customer february arrangement second period term second period evidence mr cowie advised mr ribbera truck plaintiff workshop broken needed fuel delivered called mr ribbera telephone february 2013 mr ribbera said needed get someone cart fuel slidecross el zorro fuel tank fuel supplier el zorro new south wale victoria two men agreed meet evidence mr cowie occurred café whereupon told slidecross fuel carrier el zorro mr ribbera truck action needed someone else cart fuel mr cowie thereupon provided mr ribbera credit application complete mr ribbera advised would need 14 day credit getting paid el zorro 7 day basis mr ribbera dispute conversation mr cowie also accepted executed account application guarantee filled document got wife forward never heard anything back result application document tendered evidence dated 21 february 2013 three part account application two page term condition deed guarantee account application give slidecross pty ltd legal entity trading name slidecross payment term given 14 day delivery document also state credit limit requested 200 000 term condition said bind eagle fuel customer party agreeing future dealing would governed term condition set general term including term payment term interest deed guarantee contains clause whereby guarantor guarantee payment eagle fuel customer money owing eagle fuel hereafter continuance guarantee may become owing customer account whatsoever delivery invoicingthe evidence mr ribbera subsequently ordered fuel mr cowie invoice raised sent passed invoice el zorro made payment also accepted mr kelly el zorro entity receiving fuel direct train also tank junee although evidence mr kelly risk assessing company atradius approved 200 000 credit limit slidecross internal correspondence 1 march 2013 addressed plaintiff slidecross never notified whether credit request 200 000 ever approved despite 22 february 5 march invoice amount 303 265 47 issued slidecross see exhibit c outstanding amount subsequently reduced payment 97 969 18 made 7 march el zorro leaving outstanding amount 205 296 29 payment 50 000 made 28 march also originally applied slidecross invoice shown schedule attached email mr kelly 15 april despite oral evidence mr kelly described error result plaintiff demanded outstanding amount issued proceedingswitnessesthe plaintiff called mr cowie operation manager well ceo mr kelly mr ribbera witness called second defendant evidence witness generally little assistance thus evidence mr cowie somewhat vague evidence mr kelly confident time conclusory generalised mr ribbera presented relatively unsophisticated readily gave appropriate concession one aspect evidence however found unsatisfactory thus upon asked response advice received 1 march slidecross owed 198 000 gave evidence rang someone el zorro suggest debt owed el zorro find evidence credible particularly since appeared never communicated objection invoice name slidecross commenced 22 february event evidence objection communicated plaintiff oral evidence therefore generally limited utility accordingly placed considerable weight contemporaneous objective evidence extent available slidecross primary debtor purpose guarantee language account application read term condition clear documentation identifies first defendant customer also confirmed subsequent invoice name slidecross indicated already also never written objection invoice basis identity term whether binding contract made true mr ribbera receive formal acceptance however acceptance conveyed conduct 5 case consider subsequent delivery fuel invoice slidecross constituted acceptance term condition conduct particular consider plaintiff clearly agreed provide fuel slidecross term condition set 14 day term mr ribbera emphasized delivery actually made el zorro also made payment consideration term related storage handling particularly clause 4 suggested customer entity actually receiving good however fact delivery made third party alter identity contracting party fact el zorro made payment particular evidence infer contract really plaintiff el zorro reason agency contrary oral evidence confirmed contracting party intended slidecross moreover nothing clause 4 term suggest delivery could made premise third party clause 4 simply indicated customer comply relevant law relating storage handling would operate insofar law applicable potentially complicating feature case slidecross invoice later reissued name el zorro thus email 7 march m navneet arora el zorro plaintiff stated authorising change slidecross invoice el zorro transport pty ltd subsequently occurred mr kelly giving evidence el zorro advised needed invoicing done tax purpose although entirely satisfactory action alter identity contracting party particular mere administrative act reissuing invoice evidence novation agreement el zorro substituted slidecross consent three relevant party pleaded event therefore satisfied money owing slidecross pty ltd el zorro eagle fuel pty ltd february 2013 supply delivery fuel form subject guarantee executed mr ribbera answer question therefore yes guarantor discharged reason extension credit beyond 200 000 general proposition surety obligation discharged conduct part creditor without consent surety effect altering surety right unless alteration unsubstantial prejudicial surety 6 order ass whether principle operation necessary consider whether extension credit constituted variation within principle whether extension consented event clause 1 term condition customer agreed pay full invoice amount prior upon delivery unlessthe plaintiff agreed writing provide credit term customer pursuant clause 1 b plaintiff provided credit term plaintiff must receive payment within term otherwise payment due 21 day end month invoice dated account application included amount 200 000 credit limit requested payment term said 14 day delivery indicated already formal notification communicated response application indeed 1 march plaintiff wrote mr ribbera asking pay one two outstanding invoice total 198 813 82 credit limit approved yet 7 notwithstanding internal approval atradius dated 1 march therefore appeared case approval credit determined order order basis price determined 8 depending choice supplier actual authorised credit limit agreed although credit sought granted 1 march beyond amount 200 000 initially requested agreement party altered given fixed credit ever communicated instead plaintiff chose provide credit facility requested 14 day term pursuant clause 1 original term condition seen light granting credit beyond 200 000 material variation attracted theankarprinciples event term guarantee provided guarantee ofall money owing eagle fuel hereafter continuation guarantee may become owing customer account whatsoever also emphasized second last paragraph guarantee provides guarantee secure monies may become payable customer proper construction guarantee obligation mr ribbera thereby included unlimited amount agreement provide credit even agreement constituted variation initial term condition 9 finally find mr ribbera given consent extension credit 10 evidence showed 1 march credit extended 198 000 evidence also showed mr ribbera explicitly aware fact given received email 1 march attached list invoice showing total invoiced point 198 813 82 however despite state account order fuel placed 1 march 5 march resulted total credit extended 300 000 evidence also showed mr ribbera person responsible ordering fuel cross examination mr ribbera claimed figure front going limit field however email 6 march mr ribbera stated paying invoice least 90 friday suggested generally taking responsibility arranging payment position determine payment fact made given made explicitly aware balance 1 march almost 200 000 chose place order consider action ordering fuel 1 march amounted consent extension credit issue expressly subject reply however mr ribbera cross examined generally knowledge fuel order state account early march without objection matter also subject submission counsel also unable point prejudice matter consent raised possible forensic advantage eliciting evidence consent examination chief therefore consider appropriate plaintiff permitted raise issue consent satisfied mr ribbera consented extension guarantee fact extension occurred follows reason set consider principle inankarhas operation mr ribbera discharged guarantee answer question b therefore amount 50 000 received 28 march credited amount outstanding slidecross evidencein email mr kelly mr weily el zorro 15 april attached receivables schedule wherein payment 50 000 28 march shown applied slidecross invoice 11 mr kelly describes error evidence mr ribbera also conversation mr kelly late april wherein mr kelly said going recover money el zorro el zorro paying offthe old debt last payment would paid last delivery junee time would paid mr kelly generally accepted conversation however later conversation mr ribbera couple week later mr kelly told mr ribbera el zorro retracted payment put debt would liable money mr kelly remember conversation although objective evidence generally suggests revision retraction occur consistent mr ribbera evidence mr kelly also claimed el zorro paid amount 50 000 basis would continue supply mr kelly generally described payment good faith payment continued support however identified document person el zorro agreed treatment anyone el zorro called however adduce formal proof debt june 2013 el zorro administration wherein plaintiff claimed amount owing 22 839 67 consistent amount 50 000 credited el zorro point prior june 2013 see exhibit 3 resolutionmr ribbera relied principle inclayton scase 12 suggest payment attributed earlier invoice basis first first rule however rule application payment question properly appropriated party application distinct separate debt 13 view treatment 50 000 account together oral communication mr kelly suggest party intended amount appropriated slidecross debt open circumstance plaintiff change position seek 14 insofar plaintiff suggests arrangement treat 50 000 payment good faith payment el zorro evidence support proposition indeed remittance advice provided relation second payment 50 000 inconsistent arrangement generally reached therefore satisfied amount 50 000 paid 28 march attributed slidecross invoice agreed result amount outstanding 100 000 light concession plaintiff 50 000 payment 15 april answer question b ii yes conclusionsubject hearing party final form order consider following order appropriate judgment plaintiff second defendant amount 100 000 interest agreed second defendant pay plaintiff cost proceeding party party basis taxed default agreement andthe proceeding dismissed first defendant order cost
Willson V Traikbridge Pty Limited [1996] IRCA 479 (29 September 1996).txt
willson v traikbridge pty limited 1996 irca 479 29 september 1996 decision 410 96 industrial relation court australia new south wale district registry ni 4365 1995 gregory james willson applicantand traikbridge pty limited c n 008 605 301 trading c f kitchen respondentbefore judicial registrar linkenbagh place sydney date 22 august 1996 reason decision delivered ex tempore revised transcript application pursuant provision section 170ea theindustrial relation act 1988in applicant application filed court 9 november 1995 seek remedy respect termination employment respondent commenced employment respondent 28 august 1994 last date worked respondent 30 july 1995 applicant employed cabinet maker according application evidence show worked part respondent factory dedicated construction bench top kitchen installed domestic premise canberra issue taken quality performance applicant duty respondent brought working life respondent end effectively sustained injury work 31 july 1995 rotator cuff tear injury left shoulder thoracic sprain injury applicant treated hospital day certified unfit work next couple month applicant sought treatment doctor provided respondent medical certificate time time significant medical certificate certificate dr azam part exhibit a3 certificate indicates applicant examined doctor 6 september 1995 doctor certified unfit duty thereafter 3 october 1995 accept applicant evidence forwarded certificate respondent mail respondent witness mr schiller acknowledged receipt certificate although evidence actual date receipt certificate satisfied mr schiller receive certificate long 6 september 1995 applicant made worker compensation claim respect injury manufacturer mutual insurance limited insurer company notified applicant required attend examination dr colin moore sydney 22 september 1995 applicant attended examination accept applicant evidence examination dr moore informed service respondent terminated information fact came dr moore something surprise applicant contacted mr schiller find contact telephone wednesday 27 september 1995 accept applicant recollection two telephone conversation mr schiller day first telephone conversation mr schiller informed applicant employment terminated mr schiller perception risk injury applicant continue employment second telephone conversation mr schiller informed applicant position made redundant additional reason termination employment second telephone conversation agreed mr schiller applicant order applicant entitled payment severance pay pursuant clause 14a 3 building construction industry act award 1991 mr schiller would satisfied applicant fact fit work time mr schiller possession medical certificate showed applicant unfit work estimated would unfit work 3 october requested applicant obtain certificate indicating presently fit work applicant agreed 29 september applicant saw erindale immediate health care medical centre obtained certificate dr curtotti effect left shoulder injury resolved return full duty 29 september 1995 applicant provided certificate respondent 29 september subsequently received payment money due respect termination employment including equivalent four week pay severance pay find applicant 29 september indicated mr schiller verbally happy position placed evidence applicant mr schiller conflict whether two men spoke 29 september applicant say conversation saw mr schiller factory premise speak mr schiller evidence saw applicant spoke sighted medical certificate indicated applicant would make necessary arrangement payment money due satisfied applicant mr schiller conversation factory 29 september finding significant also relation question extension time filing application applicant 29 september sought advice union might described want better term right obtained document evidence australian industrial relation commission document included form application court appropriate proceeding kind application indicates signed applicant 16 october 1995 evidence posted court sydney document filed court 9 november 1995 satisfied written notice termination employment given respondent applicant applicant obliged provision section 170ea 3 file application within 14 day receipt written notice termination said interchange mr schiller applicant 29 september significant regard mr schiller evidence 27 september prepared letter anticipated handing applicant 29 september applicant came factory furnish medical certificate already referred nothing evidence constitutes written notice termination perhaps oversight part representative respondent document marked identification document put evidence left regard provision written notice mr schiller evidence handed letter applicant 29 september letter dated 27 september informed applicant writing termination employment applicant asserts receive letter day first time saw letter course proceeding shown solicitor note applicant completed application relief proceeding responded question 11 given written notice termination ticking box marked support view applicant fact received written notice termination completed lodged application think reasonable presume possession anything 16 october character written notice would answered question 11 way satisfied written notice handed applicant mr schiller state evidence 29 september event must say even written notice given even written notice evidence given principle court espoused decision beazley j turner v k j truck pty limited beazley j unreported judgment 360 95 10 august 1995 would difficulty deciding case appropriate grant application extension time filing application application filed 41 day date alleged written notice given 27 day outside time limit allowed section 170ea 3 long delay applicant offered explanation inaction already referred evidence prejudice suffered respondent relation delay filing application say party would suffered prejudice delay progress matter since filing application another matter also substantive merit application must relevant consideration granting extension time institute proceeding first instance view application merit reason propose grant application extension time filing application 9 november 1995 turning substance matter respondent case valid reason termination employment valid reason related operational requirement respondent business great difficulty accepting genuinely reason termination employment already referred fact dr moore told applicant employment terminated put decision terminate employment time 22 september 1995 reason asserted mr schiller 27 september firstly question assessment applicant resuming duty would exposed risk injury secondly question redundancy looking first decision mr schiller terminate basis injury risk injury opinion mr schiller formed regrettably view contrary medical evidence available time mr schiller form view one would thought would rely upon medical evidence dr moore examined applicant 22 september result examination evidence mr schiller way medical information time evidence two medical certificate referred one said applicant unfit 3 october dated 29 september indicated applicant fit resume full duty day medical opinion fly directly face mr schiller assertion return full duty would involve risk injury prudent course mr schiller adopted circumstance would surely seek expert opinion coming conclusion came relation likely risk injury addition medical evidence note mr schiller evidence applicant phoned 27 september applicant said fit resume duty said applicant mr schiller informed applicant applicant service would terminated second reason asserted respondent validity termination alleged redundancy doubt evidence employee respondent organisation retrenched august september 1995 may well applicant position one might properly targeted redundancy time difficulty respondent however follow procedure set clause 14a relevant award procedure along line pronouncement court relation affording procedural fairness employee redundancy situation evidence procedure followed mr schiller admission frank honest admission must say consult applicant possibility applicant position becoming redundant therefore satisfied valid reason based operational requirement enterprise wrong valid reason certainly failure follow procedure set award requirement law set decision court relation procedural fairness would make termination otherwise harsh unjust unreasonable therefore find respondent breach section 170de 1 act also find respondent breach section 170df 1 termination employment included one prohibited reason set section 170df 1 temporary absence work illness injury make finding reason already indicated relation formation view mr schiller applicant injury precluded continuing employment note also relation genuineness stated reason respondent termination employment mr schiller evidence employee receipt worker compensation benefit usual practice respondent respondent pay usual wage employee reimbursed insurance company mr schiller evidence usual practice varied way directing insurance company pay benefit direct employee employee totally incapacitated likely return work evidence exhibit b2 letter respondent insurance company directing make payment direct mr willson 19 august 1995 taking exhibit mr schiller evidence conclusion must drawn date letter 16 september 1995 mr schiller viewed applicant employment end turning question remedy reinstatement primary remedy court may grant note applicant evidence october 1995 wanted job sydney exhibit f set effort made obtain work clearly indicates applied job sydney 22 september onwards may well employment terminated applicant would left return employment sydney could obtained employment sydney event also mindful respondent fact engaged process retrenching employee might well employment applicant continued retrenched using proper procedure retrenchment would happened sooner rather later accept mr schiller evidence job available factory canberra would suit applicant present time note also applicant resident sydney reason view reinstatement practicable case alternative reinstatement compensation considerable delay matter coming hearing note listed hearing 28 march 1995 date adjourned party apparently entered negotiation attempt resolve matter delay hearing matter cannot said fault either party effect period greater 6 month since date termination employment passed period applicant worked labourer earned income two week obliged amendment legislation came effect 15 january 1996 take circumstance case account assessing appropriate amount compensation said likely employment would come end stage 29 september 1995 employment continued beyond date well known principle espoused chief justice court nicholson v heaven earth gallery pty limited 1994 126 alr 233require take view account view also relevant assessing whole circumstance case another circumstance relevant applicant received four week pay way severance pay applicant time termination certainly agreed obtain medical certificate give employer 29 september purpose find primary purpose becoming entitled severance pay however bear mind evidence mr schiller applicant attitude 29 september towards termination employment cannot agree mr gillingham submission fact applicant agreed get medical certificate could obtain retrenchment pay led company believe would challenged applicant taking step took obtain payment money view fully aware consequence action nevertheless though receive money receipt money taken account one circumstance case assessing appropriate amount compensation mr harris submitted action respondent end september terminating employment hasty agree probably level respondent acted hastily acted reason right reason time say employment may come end event fullness time circumstance case believe appropriate applicant receive payment amount equivalent maximum available pursuant provision section 170ee wage time termination employment 438 40 per week believe appropriate amount addition money received taking account money received reason termination employment would 5000 propose make order compensation sum also make order consent sum 155 36 satisfaction money due respondent applicant wage entitlement date termination employment bring end outstanding issue party order make today 1 identity name respondent changed traikbridge pty limited c n 008 605 301 trading c f kitchen 2 pursuant provision section 170ea 3 theindustrial relation act 1988the time filing application extended 9 november 1995 3 consent respondent pay applicant sum 155 36 satisfaction money due wage entitlement 29 september 1996 respect employment applicant respondent 4 respondent breach section 170de 1 df 1 theindustrial relation act 1988and pursuant section 170ee 2 3 act respondent pay applicant compensation sum five thousand dollar 5000 00 certify preceding 11 page true copy reason decision judicial registrar linkenbagh recorded transcript revised judicial registrar associate dated 22 august 1996 appearance solicitor applicant mr g harriswillis bowringindustrial advocate respondent mr f gillinghammasters builder association c date hearing 22 august 1996catchwords industrial law termination employment unlawful termination extension time valid reason termination prohibited reason compensationindustrial relation act 1988 s 170de 1 170df 1 170ea 170ee turner v k j truck coffs harbour pty limited unreported judgment 360 95 beazley j 10 august 1995 nicholson v heaven earth gallery pty ltd 1994 126 alr 233gregory james willson v traikbridge pty limited c n 008 605 301 trading c f kitchen ni 4365 1995 coram linkenbagh jr place sydney date 22 august 1996 industrial relation court australia new south wale district registry ni 4365 1995 gregory james willson applicantand traikbridge pty limited c n 008 605 301 trading c f kitchen respondentcoram judicial registrar linkenbagh place sydney date 22 august 1996 minute order court order identity name respondent changed traikbridge pty limited c n 008 605 301 trading c f kitchen 2 pursuant provision section 170ea 3 theindustrial relation act 1988the time filing application extended 9 november 1995 3 consent respondent pay applicant sum 155 36 satisfaction money due wage entitlement 29 september 1996 respect employment applicant respondent 4 respondent breach section 170de 1 df 1 theindustrial relation act 1988and pursuant section 170ee 2 3 act respondent pay applicant compensation sum five thousand dollar 5000 00 note settlement entry order dealt order 36 industrial relation court rule 13 1
Health Care Complaints Commission (HCCC) v Guilfoyle [2007] NSWPST 1 (15 February 2007).txt
health care complaint commission hccc v guilfoyle 2007 nswpst 1 15 february 2007 last updated 28 september 2007psychologists tribunalof new south walesmatter number 1 2007registration number 0026040inquiry section 109psychologists act 2001in matter ofliam joseph guilfoylereasons decisionsuppression orderschedule anotto copied___________________________________________________________________suppression order applycitation hccc v guilfoyle 2007 nswpst 1parties nsw health care complaint commission complainant represented mr patrick griffin counsel instructed mr michael darmody mr liam guilfoyle respondent represented mr dennis ronzani counsel instructed mccabe terrill lawyer m rukmi sen file number 0026040 1 2007coram m joanne muller chairperson mr brian sheridan psychologist member m judith marriott psychologist member dr siew liew lay member date hearing 23 24 25 october 2006date decision 15 february 2007 complaint date order 15 february 2007 s53 order order summary tribunal order respondent reprimanded condition placed upon practice respondent pay 20 hccc cost catchword unsatisfactory professional conduct professional boundary breach confidentiality failure make keep safe clinical note failure adequately terminate professional relationship legislation cited psychologist act 2001 clause 6 schedule 5 s25 s53 s44 2 s47 3 health registration legislation amendment act 2004 statute law miscellaneous provision act 2 2004 suitor fund act 1951 case cited bannister v walton unreported court appeal 30 april 1992 briginshaw v briginshaw 1938 hca 34 1938 60 clr 336 clyne v new south wale bar association 1960 hca 40 1960 104 clr 186 hccc v litchfield 1997 nswsc 297 1997 41 nswlr 630 richter v walton court appeal 15 september 1993 unreported reason decisiona psychologist tribunal tribunal held inquiry appeal decision psychologist board nsw board decision dated 28 december 2005 appeal made m karen mobbs director proceeding health care complaint commission hccc dated 3 february 2006 complaint come tribunal alleges unsatisfactory professional conduct higher level professional misconduct provided thepsychologists act 2001 act particular 6 complaint board tribunal form complaint alleges psychologist respondent psychologist registered act complainthas guilty unsatisfactory professional conduct within meaning ofsection 25of act psychologist engaged conduct demonstrates knowledge skill judgment possessed care exercised psychologist practice psychology significantly standard reasonably expected psychologist equivalent level training experience ii guilty improper unethical conduct course practice purported practice psychology particular complaintduring 2000 psychologist provided psychological service client client b 1in early 2003 psychologist inappropriately disclosed sensitive personal information client client b issued client invoice number 2523 behalf l psychological counselling nursing dated 27 11 2000 stated following client b client association u terminated son disclosed heavy user cannabis 2on 21 august 2000 5 september 2000 19 september 2000 psychologist provided psychological service client without making clinical note content outcome session without recording current status assessment client 3on 3 october 2000 psychologist informed client client b using cannabis psychologist make record information client file client 4during course providing psychological service client psychologist visited client home psychologist make record intervention client file client 5on 3 september 2000 psychologist state client withdrew care adequately terminate professional relationship client creating closure summary indicating date reason termination counselling appearancesthe respondent present throughout inquiry legally represented mccabe terrill lawyer m sen instructed mr ronzani counsel hccc represented mr griffin counsel instructed mr darmody hccc suppression orderthe tribunal made order accordance clause 6 schedule 5 act name detail tend identify client b son published schedule marked containing identity people attached original reason decision copy forwarded party schedule reproduced copy reason document made reason provide appeal court party take care ensure schedule copied summary admissionsthe respondent admitted particular 1 2 4 complaint respondent doesnotadmit particular 3 5 noted particular 6 complaint originally board pressed hccc inquiry witnessesms greta goldberg peer reviewer attended give evidence behalf hccc mr greg father attended give expert opinion evidence behalf respondent client b required cross examination hccc taken step request attendance facsimile letter hccc dated 16 october 2006 client b stated wish exercise right cease personal involvement matter neither party requested tribunal issue summons secure attendance either client client b circumstance matter tribunal require cross examination correctly submitted party tribunal proceeded cautiously evidence served accordance tribunal direction provided produced client b respondent also gave evidence oath inquiry evidence tribunal substantially relied upon documentationthe hccc tendered following document came evidence exhibit 1 37 1 complaint board inquiry dated 9 november 20052 notice appealproposed amendment complaint appeal3 complaint form client dated 29 march 20044 statutory declaration client dated 7 july 20045 letter psychologist registration board client b client dated 14 july 2004 attachmentsletter hccc client b client dated 14 july 2004 attachments6 letter client b client hccc dated 29 july 2004 attachmentsletter hccc client b client dated 29 july 2004 attachments7 statement client dated 7 july 20048 statement client b dated 7 july 20049 letter client b client hccc dated 8 june 200510 patient note file mr guilfoyle client a11 client billing card handwritten client a12 telephone message note file client dated 3 october 200013 invoice issued client 27 11 200014 invoice breakdown issued client 200315 report mr guilfoyle mr tim concannan carroll dea solicitor dated 12 january 200116 letter hccc m greta goldberg dated 18 april 200517 report m greta goldberg dated 3 may 200518 letter hccc m greta goldberg dated 23 may 200519 supplementary report m greta goldberg dated 9 june 200520 letter hccc m greta goldberg dated 12 july 200521 second supplementary report m greta goldberg dated 21 july 200522 letter psychologist registration board mr guilfoyle undated july 2004 attachments23 letter hccc mr guilfoyle dated 27 may 2004 attachments24 letter mr guilfoyle hccc dated 28 july 200425 letter hccc mr guilfoyle dated 16 august 200426 letter mr guilfoyle hccc dated 4 march 200527 letter hccc mr guilfoyle undated received hccc 8 april 2005 attachment 28 letter mr guilfoyle hccc dated 12 july 200529 letter hccc mr guilfoyle undated response hccc letter 12 july 2005 30 letter mr guilfoyle hccc dated 17 august 200531 letter hccc mr guilfoyle dated 19 september 200532 letter psychologist registration board mr guilfoyle dated 24 november 2005 33 australian psychological society code ethic revised 2 october 1999 34 australian psychological society guideline confidentiality including working minor dated july 199935 nsw psychologist registration board code conduct 3 november 199736 health professional registration board certificate registration status liam joseph guilfoyle37 guideline professional reviewer adviser hccc publication may 200238 outcome board inquiry matter liam guilfoyle respondent also tendered document objected hccc came evidence exhibit r1 3 follows r1 supplementary report mr greg father dated 23 october 2003 including one page cv correction dr mr r2 letter dr patrick morrris dated 24 october 2006 mc cabe terrill e mail reply dr patrick morris dated 24 october 2006 cvr3 facsimile transmission dated 25 october 2004 dr james heiner including one page cvrelevant lawunsatisfactory professional misconductpsychologists act 2001section 25 relevantly defines unsatisfactory professional conduct follows purpose act unsatisfactory professional conduct relation registered psychologist includes following conduct demonstrates knowledge skill judgment possessed care exercised psychologist practice psychology significantly standard reasonably expected psychologist equivalent level training experience definition unsatisfactory professional conduct amended byhealth registration legislation amendment act 2004 schedule 1 commenced 1 march 2005 particular complaint filed respondent relate incident occurred prior 1 march 2005 however pursuant transitional provision statute law miscellaneous provision act 2 schedule 4 relevant law applied tribunal force time complaint filed complaint currently tribunal dated 13 january 2006 consequently definition unsatisfactory professional conduct applicable proceeding definition contained current legislation breach confidentialitythe nsw psychologist registration board code ethic 3 november 1997 applicable registered psychologist provides 2 unless required law duty care client others psychologist even supervision must release information unless client specifically authorise release preferably writing even circumstance psychologist aware need preserve much confidentiality possible psychologist patient confidentiality essential promoting open communication ability maintain client confidentiality fundamental open honest communication therefore therapeutic relationship psychologist breach confidentiality bespeaks lack knowledge skill judgment care inbannistervwalton appeal decision medical tribunal new south wale unreported court appeal 30 april 1992 mahoney ja said right practice medicine affords practitioner privilege opportunity available others expected maintain relationship patient affected character relationship one touch matter trust confidence confidentiality right conduct clinical capacity mean consideration regard determining whether person appropriate practice medicine necessary public protected though appropriate skill character opportunity privilege right practice give standard proof requiredalthough standard proof required establish complaint jurisdiction civil standard seriousness allegation gravity consequence tribunal must comfortably satisfied particular complaint established inbriginshawvbriginshaw 1938 hca 34 1938 60 clr 336 dixon j said 362 363 seriousness allegation made inherent unlikelihood occurrence given description gravity consequence flowing particular finding consideration must affect answer question whether issue proved reasonable satisfaction tribunal matter reasonable satisfaction produced inexact proof indefinite testimony indirect inference mean standard persuasion fixed intermediate satisfaction beyond reasonable doubt required upon criminal inquest reasonable satisfaction civil issue may must based preponderance probability mean nature issue necessarily affect process reasonable satisfaction attained jurisdiction exercised tribunal protective punitive dual reason inclyne v new south wale bar association 1960 hca 40 1960 104 clr 186at 201 202 high court said although sometimes referred penalty disbarment must emphasised disbarring order sense punitive character order made made public point view protection require protection professional point view order abuse privilege may lead loss privilege trust placed psychologist analogous placed medical professional necessity client disclose highly personal information psychologist course treatment trust necessarily placed psychologist public public requires protection psychologist whose knowledge skill judgment care significantly standard expected looking issue improper unethical behaviour one matter tribunal regard relevant code conduct psychologist registered new south wale bound published code conduct updated considerable consideration discussion although code changed time time essence remains protection public protection client protection psychologist reputation profession practice board forward copy relevant code practitioner registering first time copy new code registered psychologist whenever updated also freely available upon request board code conduct relevant matter code adopted 1986 another document provides guidance psychologist document published australian psychological society aps matter publication aps take additional significance respondent member aps whilst publication may taken indication general view profession virtue membership respondent agreed bound code ethic passage cited approval inhealth care complaint commission v litchfield 1997 nswsc 297 1997 41 nswlr 630at 638 priestley ja said inrichter v walton court appeal 15 september 1993 unreported degree trust patient necessarily give doctor may vary according condition take patient doctor even regard commonplace medical matter trust patient place doctor considerable case present seems example patient trust cannot help almost absolute doctor power regard patient case also great mean power abstract way matter fact extent power vary according temperament patient doctor patient limited period relationship temporarily placed position whatever doctor want body patient one reason doctor subject correspondingly great obligation expected maintain high standard much public interest tribunal view comment applicable psychologist doctor background materialthe respondentthe respondent b 22 january 1939 first registered psychologist 1 september 1992 currently registered 30 june 2007 respondent extensive background helping profession cv record 20 year practical experience juvenile justice department period respondent completed among course degree social science psychology 1984 graduate diploma counselling psychology 1986 respondent commenced working registered psychologist private practice april 1994 continued practice present time respondent presented extensive list short course conference seminar attendance additionally respondent completed formal study adult mental health study problem emerging childhood adolescent development aspect later two qualification included 250 hour 180 hour respectively supervised practice part private practice respondent contracted provide psychological service vietnam veteran counselling service access program department veteran affair victim compensation tribunal health service australia tribunal make observation respondent experienced practitioner well qualified tribunal note complaint occasion respondent practice drawn adverse attention client bclient married client b middle aged couple reside coastal area new south wale son also resides information provided client b written form appears last 5 year involved number matter may described litigation hence last year would least unsettling client aclient first consulted respondent 29 february 2000 statement dated 7 july 2004 hccc indicates general practitioner dr philip hayden referred respondent management letter dr hayden evidence file respondent ascertain stated clinical reason referral evidence tribunal indicates regular session held respondent client client b attending occasion 29 february 2000 4 july 2000 inclusive client b attend appointment scheduled 11 july 2000 appears early session indicated written record agreement respondent would write report time future support worker compensation claim made client clinical note made respondent indicate client significant emotional problem regarding mother treatment received child present time fact clinical note highlight view respondent issue sidetracking therapy session extent tax invoice respondent practice exhibited document record client b attended 3 consultation 21 august 2000 5 19 september 2000 cognitive behaviour therapy clinical note file elaborate attendance form basis particular 3 letter dated 16 october 2000 local firm solicitor acting proprietor jewellery shop defending sexual harassment victimisation claim made client anti discrimination board indicates client worked local jewellery shop exhibit 15 report dated 12 november 2001 written another registered psychologist new psychologist partner sydney firm solicitor instructed act relation client worker compensation claim also related time worked local jewellery shop client company client b first consulted registered psychologist 27 february 2001 subsequently request counselling victim compensation tribunal vct lodged application accepted vct approval 18 psychological counselling session obtained client 12 session time report mentioned written report dated 12 november 2001 indicated new psychologist considered likely traumatic event occurred client early life left vulnerable situation like alleged sexual harassment described report confirms concurrently sexual harassment allegation employer jewellery shop client claimed worker compensation back injury say sustained result type work required report also indicated client exhibited low score coping ability back pain also evidence exhibited document client resolved claim worker compensation back injury occurred 2000 appears tribunal one claim worker compensation related back injury alleged occurred whilst working jewellery shop claim settled way commutation settlement sum 60 000 see client statement dated 7 july 2004 statutory declaration june 2003 solicitor partner sydney firm statutory declaration solicitor state client made aware responsible paying fee owed respondent treatment acknowledged written note copy exhibited document tribunal note copy written note made client obtained sydney firm employee respondent dispute regarding payment fee became apparent client bthere evidence apart attending client client b attended respondent consultation counselling session approved victim compensation tribunal vct trauma sustained client b cheek alleged assault inflicted community meeting 17 july 1998 see letter dr philip hayden dated 12 march 1999 messers marriott oliver solicitor letter approval vct also appears document evidence client b attended respondent management relation condition subject worker compensation claim client b referred dr hayden 14 april 2000 review advice treatment required client b history long standing employee employer dispute exhibit 23 enclosure r worker compensation claim made client b employer settled commutation settlement 19 february 2002 40 000 00 statutory declaration dated 17 june 2003 sydney solicitor acted client statutory declaration document clearly unambiguously declared client b also made aware knew responsibility outstanding fee due respondent treatment relation worker compensation copy document exhibited material copy document obtained sydney solicitor office member respondent staff exhibit 23 letter respondent hccc attache attachment h facsimile dated 15 may 2000 received respondent client b asking report written contains request respondent write report support proposition able ever return type employment facsimile also tribunal view upon plain reading document put pressure upon respondent provide report soon possible report said intended used secure early pay client b superannuation age earlier usual retirement age basis inability ever return employment background complaintthe tribunal note complaint made dispute arose regarding payment invoice respondent service although particular 1 complaint relates written comment one edition invoice matter subject complaint already occurred could subject earlier complaint client b chosen significant consideration complaint tribunal observation provide complete picture circumstance surrounding matter client made complaint hccc around march 2004 complaint alleged client assured respondent therapy session would paid victim compensation tribunal original complaint hccc stated client sent bill followed letter demand fee complaint also detail allegation respondent made inappropriate remark drug use reference written comment one edition invoice allegation become particular complaint clear client unhappy fact received bill service provided respondent also complaining treatment received respondent exhibit 10 comprises clinical note kept respondent session client 27 june 2000 clinical note made respondent relation session client noting client b also attendance record asked ever using cannabis note read tribunal indicating asked question earlier time mention use cannabis note 4 july 2000 11 july 2000 respondent note contain following entry client b attend 11 7 2000 presumed upset questioned use cannabis appears document evidence tribunal telephone call received person practice respondent son client b son alleged son stated parent cannabis user considerable noise background telephone call suggestion noise made client b influence cannabis telephone call therapy session either client b respondent contact appears letter facsimile transmission possibly telephone call appear relate issue respondent outstanding fee service letter demand respondent took action agent local court recover outstanding fee evidence exhibited documentsparticular 1 regarding entry cannabis bottom invoicein bundle document exhibited matter least two version invoice respondent professional service client one version invoice following notation exhibit 14 client b client association u terminated son disclosed heavy user cannabis respondent gave evidence notation may come invoice document agrees notation put onto document office prior sent office also gave evidence practice signing invoice left office detail respondent oral evidence regard set particular 2 failure make note sessionsthe respondent admits statement oral evidence made record session nothing contrary exhibited document particular 3 failure record information received telephone cannabis use although respondent admit particular gave oral evidence member staff took note conversation information relayed onto record conversation exhibited document notation invoice set particular 1 particular 4 home visitthe respondent admits made clinical note note kind regarding telephone contact likely client b alerting alleged suicide attempt made client subsequent visit home client b number document setting view respondent regarding client alleged suicide attempt subsequent attendance home client b part exhibit 27 psychological report written respondent dated 15 november 2001 sydney solicitor acting client relation worker compensation claim report respondent express opinion psychometric testing result client indicated depression moderate severe range anxiety severe range hopelessness severe range heading suggested therapeutic program respondent say pharmacological agent considered begin succumb depression particular attention given anticipate quell danger suicide episode another document respondent letter hccc received 8 april 2005 exhibit 27 respondent stated still stand clinical opinion client suicidal time care far aware may never attempted suicide one hand appears respondent extremely doubtful client ever attempted suicide unconcerned unconvinced suicide attempt make clinical note regarding home visit next day content report create picture need high vigilance including pharmacological intervention required manage future suicide attempt episode difficult tribunal reconcile two position said point later particular 5 failure adequately terminate professional relationshipthere nothing exhibited document oral evidence respondent indicate respondent took step terminate professional relationship client creating closure summary dr patrick morrisduring inquiry respondent sought leave rely evidence dr patrick morris consultant psychiatrist email letter dated 24 october 2006 dr morris solicitor acting respondent tendered received evidence last day inquiry letter informs tribunal dr morris running psychiatric practice clinic department veteran affair respondent room 2 day per fortnight last 4 5 year dr morris state referred patient respondent via general practitioner discussed patient shared care informally provided advice assistance respondent regarding care general feed back shared patient satisfied clinical intervention respondent found accessible supportive helpful dr morris stated view respondent significant benefit many veteran referred dr james heinera report dr heiner dated 24 october 2006 also tendered accepted evidence last day inquiry dr heiner also consultant psychiatrist report dr heiner state two year ago ran outpatient clinic area respondent practises one day week dr heiner confirmed professional contact respondent last 4 year number patient common estimated 10 15 coincidentally seen respondent others referred respondent second opinion psychiatric management dr heiner stated communicated respondent mail telephone urgency dictated regarding clinical management number client evidence respondentin relation cannabis use notation invoice respondent accepts ultimately responsibility ensure disclosure type nature occur written statement respondent said sent error page 1 exhibit 32 oral evidence respondent said signed invoice sent practice instance see notation would allowed sent respondent gave evidence fail make clinical note three occasion 2000 certainly evidence clinical note consultation exhibited document noted index exhibited document set respondent made written statement received hccc 1 june 2004 document became exhibit 23 page 4 document respondent make following statement 3rdof october 2000 client client b 15 year old son name deleted phoned office sounded distressed informed receptionist sherrie word effect mum dad fighting face always face yelling screaming abusing sister stoned marijuana said coming today later day boy phone told sherrie forget happened earlier needed assistance would call liam information received transaction information received counselling session child involved appeared situation abuse circumstance would consider information necessarily confidential treated care believe therefore agree act disclosure personal information breach confidentiality information received either client client b within counselling session information provided child distress client b appeared great difficulty disclose directly receptionist personal assistant sherrie waldron nee smith client b probably felt could trust met single visit home met sister disclosure clarified difficulty client b reporting seemed paranoia delusionary time could find reason difficulty known heavy user cannabis would able assist exhibit 23 page 6 respondent set detail visit home client client b respondent admits statement make clinical note record concerning visit respondent make following remark also wish advise one occasion visited home client b received phone call client b informing client tried hang morning question saturday morning visiting another victim crime client nearby location made arrangement visit client b home essentially ensure client danger also meet child visit approximately 30 minute duration sharing coffee family left done duty care one client time ever went home client b oral evidence respondent agreed written closure summary note view circumstance matter warrant statement respondent also gave oral evidence made substantial change record keeping within practice respect clinical note well issuing invoice respondent also said change made quite time ago notification complaint tribunal receive example specific detail change peer reviewerboth m goldberg mr father gave evidence nature peer review evidence opinion peer reviewer broadly accord agreed sensitive material disclosed invoice respondent practice disclosure made also agreed respondent always keep adequate record particularly disapproved respondent failure document home visit alleged suicide attempt client record detail telephone call son m goldberg critical lack case closure summary mr father general term disapprove omission depending circumstance submission made hcccthe hccc submitted five particular complaint made conduct amounted unsatisfactory conduct hccc noted respondent made admission relation particular 1 2 4 oral evidence effectively admitted particular 3 5 submitted peer review evidence broadly accordance breach confidentialitythe hccc submits tribunal find notation invoice clerical error respondent evidence signed every invoice left office failure make notesthe hccc submits tribunal accept admission respondent regarding failure make note three session relation failure record receipt information regarding cannabis use hccc submits de facto admission part respondent regarding particular 3 hccc note particular 4 admitted respondent contention home visit casual visit accepted evidence demonstrated respondent conducted formal assessment client suicidal ideation telephone call home visit therefore home visit formal recorded failure make closure summarythe hccc submits respondent write closure summary file client tribunal find particular 5 made ordersthe hccc submitted respondent experienced practitioner appropriate order matter would condition placed upon practice appropriate condition include auditing practice short period time supervision condition incorporated level auditing ensure appropriate change respondent practice submitted respondent ordered undertake ethic course approved board hccc also submitted would appropriate tribunal order respondent pay cost basis board erred investigation finding therefore necessary hccc appeal matter hccc confirmed adopted observer role board inquiry taken active part process submission made respondentthe respondent made written submission supplemented oral submission submitted evidence respondent able relate difficult client substantial part written submission respondent set paragraph 8 17 follows 8the respondent admitted complaint numbered 1 2 4 admitted complaint numbered 3 5 respectfully submitted tribunal ought comfortably satisfied balance probability admission respondent 1 respondent disclose sensitive information two client disclosed 2 respondent fail keep adequate record three occasion provided psychological service client 3 respondent adequately record particular information record relation client albeit client file client 4 respondent fail record intervention home visit client 5 respondent fail adequately terminate professional relationship client overall respondent depart acceptable minimum standard provision psychological service client b particular complaint 3 3 october 2000 psychologist informed client client b using cannabis psychologist make record information client file client 9 submitted whole evidence tribunal find two record kept client first client record patient record card second record patient clinical note 10 submitted tribunal find given source information fact respondent seeing client b jointly respondent subject information gravamen complaint always available within practice 11 submitted tribunal ought find would unlikely respondent overlooked information relation future psychological service might provide client 12 evidence discloses respondent received message form note receptionist sherrie smith file note placed within file client reasonable respondent believe time action sufficient circumstance particular since information came third party son client b 13 also reasonable respondent respectfully submitted consider time circumstance given respondent know whether information true notation made within file client particular complaint 5 3 september 2000 psychologist state client withdrew care adequately terminate professional relationship client creating closure summary indicating date reason termination counselling 14 submitted tribunal accept respondent account experience providing psychological service various category client particular contact often followed event client attending treatment particular occasion client simply dropping quote evidence 15 submitted whole evidence experience tribunal respondent account experience regard accord occurs practice psychology time time importantly submitted constitute unsatisfactory professional conduct defined bysection 25of thepsychologists act 2001 16 appears evidence fact occurred officially file two client never closed two client simply stopped attending least view respondent took time submitted view reasonably open 17 respondent provide final report submitted solicitor acting client upon reasonable reading report seen whole case involving client summarised indeed used purpose seeking compensation client proceeding submitted error respondent go significantly health safety member public particular client b put risk respect psychological treatment submitted home visit indicated action respondent attending home client response crisis sign commitment client respondent also submitted without significance complaint client made attempt recover fee owed respondent made opportunity account client b tested positive regard fact incident occurred quite time past respondent responded rapidly complaint changing system practice ensure circumstance occur future respondent indicated would accept condition practise included spot audit married supervision ethic specific course submitted respondent bear cost matter appeal decision board board open opportunity legally assisted undersection 44 2 act hccc afforded required opportunity make submission board inquiry section 47 3 act reference made effect situation provision suitor fund act 1951 would apply jurisdiction cost follows event provision followed occasion submitted appropriate order would party pay cost tribunal finding factin making finding fact matter tribunal substantially relies admission respondent exhibited evidence far supported admission set evidence complicated fact client b declined voluntarily attend tribunal give evidence party tribunal consider issue summons attendance warranted tribunal expressed concern general way manner respondent handled suicide attempt conflicting documentation regarding respondent view matter noted however tribunal relied upon concern forming view matter issue form part complaint raised reason document may matter supervisor take respondent use reference point discussion regarding record keeping liaising health care practitioner certain circumstance boundary safe practice tribunal comfortably satisfied respondent signed invoice notation regarding cannabis use accepts respondent acknowledgement ultimately responsible inappropriate disclosure sensitive personal information particular 1 established tribunal accepts admission respondent regarding failure make note three session particular 2 complaint established tribunal comfortably satisfied respondent failed make record information received son client b practice client file client one function client file record significant event interaction client practitioner assist amongst thing practitioner write accurate report regarding treatment provided information given patient date information given also useful tool planning evaluation treatment client also allows another practitioner take care management patient circumstance practitioner unable tribunal unable accept respondent submission placing telephone message within file client reasonable sufficient circumstance constituted record information client file particular 3 established tribunal find respondent attended home client failed make record visit assessment tribunal note admission respondent based evidence noting tribunal comment regarding keeping record find particular 4 made tribunal accepts respondent make closure summary relation client note tribunal find particular 5 established view tribunal client file require closure summary tribunal view registered psychologist responsible least attempting terminate therapeutic professional relationship appropriate manner termination even attempted case highly probable end professional relationship recorded file record circumstance termination would facilitate resumption therapeutic relationship client return care registered psychologist also serve record future treating practitioner circumstance matter relationship deteriorated quite rapidly point litigation court occurred party tribunal view clinical note contained closure summary even one sentence length may sufficed tribunal finding relation complainthaving found particular complaint made set tribunal find conduct totality subject comment amount unsatisfactory professional conduct demonstrates knowledge skill judgment possessed care exercised respondent practice psychology significantly standard reasonably expected registered psychologist particularly one level experience equivalent respondent tribunal therefore find complaint made tribunal record stage minor criticism conduct set particular 5 complaint level criticism contributed finding unsatisfactory professional conduct tribunal heard evidence respondent changed record keeping accounting invoicing practises despite submission change occurred quite time ago tribunal provided physical corroborative evidence tribunal accepts evidence respondent change occurred real ability ass quality change nature information disclosed invoice particular 1 significant concern tribunal little moment tribunal whether respondent knowledge notation invoice left office respondent gave clear evidence signed document prior posted suggestion staff employed respondent office worked direction anyone respondent tribunal view would appropriate practice respondent audited ensure appropriate record kept appropriate practice employed relation making keeping clinical record respect accounting practises audit cover aspect practice board appointed auditor see fit information regarding board appointed auditor contained order set evidence tribunal paint picture respondent hard working dedicated practise psychology tribunal accepts accurate picture evidence tribunal also paint picture client b difficult demanding client would expected cause undue difficulty registered psychologist full registration rather provisional registration let alone experienced registered psychologist also view tribunal type matter would appropriate engage dialogue supervisor tribunal concerned evidence given respondent regarding level supervision practice tribunal using term supervision sense understood registered psychologist simple term mean regular contact peer purpose discussing client essential element practice registered psychologist matter qualification nature practice senior profession may form another essential part practice whilst acknowledging evidence drs morris heiner tribunal view supervision element respondent practice gravely lacking may well contributed circumstance respondent find e conduct inquired given nature finding tribunal would appropriate respondent act supervisor psychologist whilst condition remain practice view tribunal finding made matter would different previous definition unsatisfactory professional conduct applied tribunal tribunal note cost provision act commonly known cost follow event provision tribunal also note matter come tribunal result appeal decision board held inquiry hccc played observer role complaint made made one lower degree severity provided act unsatisfactory professional conduct respondent made admission relatively early stage one particular complaint pursued hccc hearing held three day due undue delay part tribunal main part failure client b attend availability witness planned expected client b would attending inquiry late call peer expert opinion behalf respondent evidence drs morris heiner also provided extremely late stage jurisdiction access fund accordance thesuitors fund act 1951 tribunal therefore decide whether circumstance warrant activation provision relevant circumstance tribunal view order respondent pay 20 cost hccc appropriate section 53 protective ordersthe tribunal make following order matter 1 respondent hereby reprimanded term set annexure b hereto 2 following condition imposed respondent registration respondent allow audit practice undertaken scope audit cover clinical record accounting procedure respondent practice audit include examination keeping appropriate clinical record adequacy record system safe keeping record account generation system aspect determined board auditor appointed consideration given reason decision audit may undertaken one auditor determined board audit undertaken within 4 month date appointment auditor board respondent must give full co operation ensure staff also give full co operation auditor facilitate process far possible respondent authorise auditor report fully board writing outcome audit authority writing copy authority forwarded board board nominated auditor received copy respondent written authority auditor tribunal suggests board forward copy reason decision document auditor b within 28 day date document respondent forward list least three registered psychologist include copy curriculum vitae prepared act auditor accordance order 2 b board may call upon respondent provide name nominate one writing c respondent provide auditor full set document exhibited matter see list request auditor respondent undertake formal professional supervision practice least fortnightly basis two hour per fortnight minimum period twelve month respondent nominate appropriately qualified senior psychologist undertake supervision supervisor must approved board respondent write board seeking approval nominated supervisor provide sufficient detail board properly consider suitability supervisor e within 14 day written notification board regarding suitability nominated supervising psychologist respondent provide copy written authorisation supervising psychologist provide written report board every four month time board advises supervising psychologist respondent writing report longer required f period twelve month date tribunal decision respondent may apply board writing condition imposed 2 b removed provided board satisfied result audit received least three satisfactory report supervising psychologist board considers respondent longer requires supervision g respondent becomes employee wherein required provide psychological service service rely upon qualification psychologist provide current employer employer reason decision document respondent provide copy reason decision every new employer minimum period twelve month time board considers supervision 2 b remain place condition meant apply work undertaken respondent contractual basis situation becomes employee h time board receive report supervising psychologist content report received practitioner contains material concern board result audit unsatisfactory board authorised take action considers appropriate including referral complaint hccc respondent complied condition registration imposed order condition placed upon practice respondent order may lifted writing board respondent complied order made tribunal minimum period 12 month board satisfied report received appropriate order lifted j respondent provide written confirmation completed reading article listed board document entitled approved ethical practice psychology suggested reading within 6 month date order 3 respondent responsible paying cost associated undertaking complying order set herein 4 whilst condition contained order 2 b applies registration respondent undertake supervision registered psychologist whether provisionally registered student unless requirement employed work written approval work supervisor seeking permission board 5 respondent pay 20 hccc cost agreed party agreement cannot reached party leave list matter purpose tribunal assessing cost publicationa copy reason decision document forwarded registry 1 respondent legal advisers2 hccc legal advisers3 others board see fit dated 15 february 2007_______________________joanne muller_______________________judith marriott_______________________brian sheridan_______________________siew liewannexure reprimandannexure b schedule suppressed name kept original reason decision document copied schedule ahccc v guilfoylereprimandliam joseph guilfoyleliam guilfoyle found guilty unsatisfactory professional conduct tribunal find showed several error judgment management personal information record keeping practise psychology finding guilty unsatisfactory professional conduct tribunal took account eventual admission particular complaint experienced practitioner like aware necessity ensure proper professional management practice order arrive appropriate order tribunal taken account context behaviour reprimanded tribunal failure guard unreasonable disclosure personal information failure keep adequate record particularly circumstance client evidencing potential risk suicide knew would required write medico legal report client future condition placed practice assist develop judgment required maintain appropriate professional standard time relation administration management practice audit clinical supervision reading ethic potential assist recognising avoiding behaviour fall required standard future schedule bhccc v guilfoylenot copied
Hsieh & Chow [2007] FamCA 470 (24 May 2007).txt
hsieh chow 2007 famca 470 24 may 2007 last updated 18 july 2007family court australiahsieh chow 2007 famca 470family law property settlement value overseas asset contribution equitable outcomeapplicant m hsiehrespondent mr chowfile number paf1483of2005date delivered 24 may 2007place delivered parramattajudgment stevenson jhearing date 26 27 march 2007 11 12 april 2007representationcounsel applicant mr durasolicitor applicant psk legalcounsel respondent mr gersbachsolicitor respondent hughes taylorsolicitorsorders1 within 3 three month date order husband pay wife sum 181 000 2 event husband fails pay sum 181 000 wife within period 3 month party shall thing necessary effect sale former matrimonial home situate known b state new south wale distribute proceeds sale follows 2 1 payment agent commission expenses2 2 payment wife sum 181 0002 3 payment balance husband3 party declared solely entitled item property whether real personal presently respective possession family court australia parramattafile number paf 1483 2005ms hsiehapplicantandmr chowrespondentreasons judgmentthe proceedings1 mr chow m hsieh dispute settlement property agreement identity value asset extent liability also issue whether asset asset global approach adopted background2 party married korea march 1997 aged 57 60 year respectively party married previously husband first wife two daughter child wife previous marriage 3 seems party commenced relationship 1996 introduced australia mutual friend husband lived australia since 1972 wife holiday country 4 date marriage wife significant asset korea owned apartment property commercial premise known g property also substantial amount cash korean bank account evidence value husband korean asset date marriage 5 commencement cohabitation husband cash saving volvo motor vehicle various chattel issue much cash husband possessed date marriage consider relevant evidence context source purchase money party former matrimonial home 6 march 1996 husband wife purchased former matrimonial home b 155 000 disagreement amount contributed respectively mr chow m hsieh view evidence however wife injected money purchase mr chow fund borrowed acquire property 7 purchase b property wife spent considerable time korea record department immigration exhibit 2 show spent following period australia march 1996 separation september 2002 9 april 1996 18 april 1996 9 november 1996 19 november 1996 20 december 1996 11 january 1997 31 october 1997 17 november 1997 26 july 1998 8 september 1998 22 january 1999 28 february 1999 12 september 1999 10 october 1999 4 november 1999 14 november 1999 26 july 2000 17 march 2002 4 june 2002 17 september 2002following separation wife australia 1 september 2003 11 september 2003 31 march 2004 9 april 2004 8 relationship party operated number bank account wife maintained account bendigo bank exhibit 3 westpac bank exhibit 4 husband saving investment account commonwealth bank exhibit 11 party operated joint account westpac bank exhibit 6 7 8 also joint imb account exhibit 10 9 dispute concerning party dealing fund various account evidence fell way short enabling make proper determination issue extent possible material attempt analysis source fate fund passed various bank account 10 husband conceded wife spent 25 000 30 000 furniture fund said also took item property returned korea separation assertion challenged wife 11 since wife departed korea 17 september 2002 husband sole occupation b property claimed carried improvement maintenance home since separation allegation disputed wife 12 husband first wife separated either 1994 1995 5 november 2003 entered binding financial agreement effect constitute two child sole registered proprietor former matrimonial home f husband claimed received payment approximately 80 000 first wife informal property settlement contention disputed wife approach proceedings13 according guideline established series leading decision court required determine following matter evidence firstly asset liability financial resource party marriage determined secondly relevant contribution party within meaning paragraph c section 79 4 must identified weighed thirdly matter paragraph g section 79 4 particularly paragraph e take reference provision section 75 2 must considered determination made alteration made entitlement party earlier assessed account contribution finally order section 79 must made unless court satisfied circumstance equitable make order asset liability financial resourcesthe assets14 agreed party asset superannuation following value 1 b j 312 5002 g korea property w 740 0003 volvo car h 1 5004 share h 6 4005 cba saving h 6 9736 westpac saving h 8457 bendigo bank saving w 2 3878 westpac bank saving w 2 0809 household content h 3 00010 household content w 50011 personal effect h 1 00012 jewellery w 2 00013 paid legal fee h 9 48514 paid legal fee w 5 98515 superannuation benefit h 22715 following issue arose relation list asset 1 value wife property 2 wife undisclosed saving cash korea 3 sum 58 035 withdrawn wife joint imb account added back list asset 4 amount 50 000 withdrawn joint westpac account husband 1999 added back list asset 1 value property16 husband wife attributed value 174 313 110 000 respectively property husband figure said admission interest made wife financial statement sworn 31 january 2005 wife figure said admission interest made later financial statement sworn 13 march 2007 17 behalf husband submitted wife held admission interest first financial statement said gave unconvincing explanation alleged reduction value subsequent period two year evidence essence property reduced value 17 year old large number apartment built city pusan recent time 18 behalf wife pointed rely earlier financial statement evidence case document tendered counsel husband said evidence relation value property therefore wife admission interest financial statement sworn 13 march 2007 19 view difficulty submission wife acknowledged cross examination attributed value 174 313 apartment 2005 financial statement evidence therefore admission interest apartment property valued 174 313 31 january 2005 20 absence expert evidence real basis upon prefer one wife admission interest value apartment property neither party adduced expert evidence value korean property although husband signalled intention aborted hearing november 2006 seems best evidence value wife korean apartment recent estimate circumstance propose adopt wife admission interest financial statement sworn 13 march 2007 find value property 110 000 2 wife undisclosed saving cash korea 21 wife made reference bank account korea financial statement sworn 13 march 2007 cross examination denied specifically presently korean bank account 22 find denial difficult accept number reason firstly wife evidence concerning payment rental commercial property korea unconvincing financial statement sworn 13 march 2007 included item rent e 220 part weekly income suggested commercial premise untenanted year claimed weekly payment represents arrears rental accrued absent korea said receives money cash pay expense relation property cash seemed strange unlikely arrangement leasing commercial property 23 addition wife 4 loan korean financial institution repayment total approximately 250 per week would unusual view loan serviced entirely way cash payment 24 wife conceded withdrew 58 035 joint imb account 4 september 2003 admitted deposited money westpac bank account withdrew 58 035 5 day later said took korea consider unlikely wife departed australia approximately 58 000 cash 25 reason seems probable wife bank saving cash korea failed disclose obviously impossible available evidence quantify cash reserve 3 58 035 withdrawn wife westpac band account added back 4 50 000 withdrawn joint westpac account husband 1999 added back 26 two issue inter related considered together 27 said 4 september 2003 wife withdrew joint imb account sum 59 966 93 total credit balance deposited money westpac bank account withdrew 58 035 9 september 2003 oral evidence wife said took money korea mean doubt wife used money purpose thus appears appropriate money added back list asset subject qualification 28 remembered wife unchallenged evidence paid 5 985 account legal cost money withdrew joint imb account agreed paid legal cost included list asset thus necessary subtract amount 58 035 avoid double counting propose therefore add back list asset amount 52 050 rather 58 035 29 behalf husband submitted 50 000 withdrawn joint account 1999 added back list asset dispute fund spent approximately 30 000 lengthy trip around australia took said however expenditure offset withdrawal approximately 31 700 wife westpac bank account july 2002 september 2002 said husband spent 20 000 renovation b property separation 30 submitted behalf wife proposition must rejected number reason firstly said cross examination wife withdrawal westpac account prior separation follows said cannot inferred received sole benefit money consequence according counsel wife sum 31 700 30 000 spent husband holiday cancel 31 history husband westpac account exhibit 4 account opened 11 november 1996 dormant since 1 october 2003 account held 31 852 1 july 2002 2 080 date last transaction 1 october 2003 amount 2 080 included agreement list asset 32 reject submission behalf wife cannot assumed made withdrawal totalling 31 700 westpac bank account received sole benefit money account sole name evidence husband withdrawal authority put made withdrawal received benefit money thus proper amount 31 700 added back list asset 33 second submission put behalf wife add back 50 000 evidence support husband contention spent 20 000 renovation b property true objection taken estimate amount money spent property separation granted leave adduce evidence proper form material forthcoming husband case 34 affidavit sworn 27 april 2006 husband deposed follows since date separation undertaken paid upkeep b property paid cost erecting dividing fence repair roof yard erected brick wall installed alarm system erected two awning replaced window laid concrete footpath said husband estimate spent 20 000 objected affidavit leave granted adduce evidence expenditure proper form taken 35 affidavit sworn 30 march 2005 husband said since date separation undertaken paid upkeep n property paid cost erecting dividing fence repair roof yard erected brick wall installed alarm system erected two awning replaced window laid concrete footpath objection taken estimate expenditure 20 000 purpose leave adduce evidence proper form granted taken husband case 36 circumstance propose add back sum 50 000 withdrawn husband joint westpac account 1999 consider evidence husband post separation expenditure b property context contribution party 37 thus find asset party follows 1 b property j 312 5002 g property w 740 0003 property w 110 0004 volvo car h 1 5005 share h 6 4006 cba saving h 6 9737 westpac saving h 8458 bendigo bank saving w 2 3879 westpac bank saving w 2 08010 household content h 3 00011 household content w 50012 personal effect h 1 00013 jewellery w 2 00014 paid legal fee h 9 48515 paid legal fee w 5 98516 money withdrawn joint bank account husband 50 00017 money withdrawn westpac account wife 31 70018 money withdrawn joint imb account wife 52 05019 superannuation h 227total 1 338 632liabilities38 party agreed following liability 1advance daughter legal cost h 8 9852 bank loan 80 million wan w 103 8963 bank loan 30 million wan w 38 9614 bank loan 5 million wan w 6 4935 bank loan 19 972 436 wan w 25 93839 husband disputed wife following additional liability 1 m kh 120 million wan 164 0002 35 million wan 48 0003 hl 30 million wan 41 0004 various friend 15 million wan 20 00040 evidence alleged liability bare reference thereto wife financial statement sworn 13 march 2007 corroborating evidence whatsoever existence loan practically evidence circumstance debt allegedly arose exception limited evidence relation loan m kh wife said m kh niece loaned money took collateral mortgage apartment property evidence purpose loan condition repayment 41 circumstance propose include alleged debt wife list liability view simply insufficient evidence enable properly 42 thus find liability party follows 1 husband debt daughter paid legal cost 8 9852 wife korean bank loan 103 8963 wife korean bank loan 38 9614 wife korean bank loan 25 9385 wife korean bank loan 6 493total 184 27343 husband sought include liability unquantified amount legal cost owed wife 21 november 2006 cost reserved hearing aborted determine whether husband receive order cost independently exercise identification valuation net pool property financial resources44 evidence either party posse financial resource find asset asset global approach 45 clear either two approach permissible according circumstance particular casenorbis norbis 1986 hca 17 1986 flc 91 712 highcourt australia considered adopting asset asset approach matter following reason relationship party subsisted relatively short period early 1996 september 2002 wife owned substantial asset korea well marriage nothing evidence suggests husband made contribution wife korean asset intermingling party fund confined primarily entirely b property various australian bank account period marriage bring substantial change relative financial position parties46 asset asset approach readily adopted respect item property example wife korean apartment commercial premise much difficult asset acquired course relationship approach becomes problematic circumstance husband wife cohabited mingled fund 6 year example practically impossible apply asset asset approach amount remaining withdrawn various bank account outline case document filed behalf wife urged adoption two pool approach essentially wife korean asset property owned prior marriage would constitute one pool adopt modified version suggested approach contribution parties47 husband wife made direct financial contribution acquisition b property unsatisfactory way evidence presented make difficult quantify precisely amount money contributed party purchase price 48 settlement statement annexed affidavit husband sworn 27 april 2006 show purchase price 155 000 10 april 1996 amount 39 200 105 516 58 deposited trust account conveyancing solicitor 49 husband withdrawal 39 200 commonwealth bank account 10 april 1996 obviously match deposit amount solicitor trust account husband account opened 19 march 1996 cash deposit 10 22 march 1996 deposit 41 270 followed entry titled term deposit husband said money part informal property settlement first wife following withdrawal 2 000 28 march 1996 39 200 10 april 1996 account dormant balance approximately 10 50 sum 105 523 withdrawn joint westpac bank account 10 april 1996 doubt money came fund transmitted wife korea march april 1996 relevant bank statement show series telegraphic transfer amounting total approximately 109 800 prior withdrawal additional deposit sum 1 000 account opened must follow therefore wife contributed sum 105 516 purchase b property 51 husband maintained paid deposit 15 500 said money came joint account previously operated first wife connection business known company said money another component informal property settlement 52 although documentary evidence support husband contention paid deposit business account inclined accept withdrawal joint westpac account match payment deposit money deposit could come wife westpac bendigo bank account exist b property purchased exhibit 3 4 53 thus find husband contributed approximately 54 700 purchase b property find wife contribution purchase price approximately 105 500 54 husband also claimed 10 000 cash commencement relationship said money also part informal property settlement first wife corroborating evidence money inclined accept truthful regard gave evidence use made money 55 following purchase former matrimonial home substantial additional fund transmitted korea joint westpac bank account rough total deposit identified telegraphic transfer overseas amount approximately 159 000 additional deposit account amounting around 88 000 identified way little evidence source deposit originate overseas seem common ground wife brought cash returned frequent trip korea 56 husband alleged telegraphic transfer joint westpac account part scheme conducted wife people avoid restriction currently transfer imposed korean law admissible evidence regard found affidavit m p sworn 27 april 2006 57 m p deposed husband required money korean bank account assist daughter education already transferred australia annual maximum u 10 000 permitted korean law m p said arranged two withdrawal korean bank account 2 june 1997 5 june 1997 date noted diary arrangement made two amount u 5 000 transferred account name wife husband said husband attended home husband handed approximately 13 000 cash m p evidence tested cross examination 58 telegraphic transfer 3 june 1997 6 563 6 460 6 june 1997 statement relating joint westpac bank account exhibit 8 accord m p evidence might say pattern proximity telegraphic transfer withdrawal certainly appears suggest wife operated currency transfer scheme evidence fall far short enabling find event argument floated case husband never developed submission put treat evidence m p 59 otherwise deposit joint westpac bank account consisted husband pension ranged 316 345 per fortnight credit attributable pension would thus total around 43 000 60 husband wife operated joint imb account september 1999 september 2003 opening deposit 13 september 1999 consisted cash 15 000 multiple cheque 41 000 statement exhibit 10 show several correction entry initial deposit evidence source money lodged account contained wife affidavit said made entire financial contribution account evidence unchallenged 61 wife maintained husband made withdrawal account without knowledge consent evidence enable find relevant bank statement show withdrawal 1 000 5 000 30 may 2003 29 august 2003 neither party questioned responsible transaction 62 wife operated westpac bank account sole name 11 november 1996 suggestion husband deposited fund account 63 wife also operated bendigo bank account name deposited pension payment began receive australian pension march 2002 64 husband maintained responsible maintenance b property prior separation proposition seriously disputed wife husband must solely responsible maintenance property since separation wife lived korea since time sole occupation home 65 dispute whether one party carried greater proportion domestic duty household impossible make determination issue available evidence conclusion contribution66 outline case document behalf wife stated wife submits asset asset approach court would find wife contribution date 80 recording concession 5 adjustment favour husband account section 75 2 factor case outline behalf wife continued accordingly wife asserts equitable division party jointly acquired asset ought 75 25 favour wife 67 said case outline filed wife behalf seemed suggest matter considered basis two pool property first pool would consist b property addbacks money withdrawn various bank account remaining asset liability would constitute second pool approach seems hold advantage term achieving justice equity party adopt modified version approach suggested counsel wife 68 case outline submitted behalf husband stated husband submits contribution date hearing found 25 husband counsel urged global approach adopted 69 seems husband could claim made contribution acquisition conservation improvement following asset wife 1 g property 740 0002 property 110 0003 household content 5004 jewellery 2 00070 similarly seems wife could claim made contribution acquisition husband paid legal fee 8 985 came daughter arguably wife made contribution conservation following asset husband 1 share 6 4002 volvo car 1 5003 household content 3 0004 superannuation 227she provided substantial fund joint benefit party period husband ownership item 71 clear intermingling party fund respect following asset 1 b property j 312 5002 cba saving h 6 9733 westpac bank saving h 8454 bendigo bank saving h 2 3875 westpac bank saving w 2 0806 husband paid legal fee ex advance daughter 5007 wife paid legal fee 5 9858 money withdrawn joint westpac account husband 50 0009 money withdrawn joint imb account wife 52 05010 money withdrawn westpac bank account wife 31 700 465 02072 husband began receive social security pension 1998 1996 financial year total income 3 941 evidence income 1997 financial year follows could made significant contribution credit balance various bank account operated party relationship fact 1998 position contribute aged pension available fund may retained amount cash informal property settlement first wife 73 referred rough analysis credit joint westpac bank account total vicinity 290 000 deposited account 43 000 came husband pension balance must come either wife friend entered arrangement extract money korea evidence enable determine deposit consisted wife fund 74 safely concluded money deposited joint imb account wife westpac bank account came husband simply could supplied fund suggest 75 husband evidence two daughter provided financial assistance recently seems probable substantial component cba saving came source may also case saving consist money remaining 50 000 withdrew joint westpac bank account 1999 76 remembered relatively substantial increase value b property since 1996 purchase price 155 000 agreed present value 312 500 mean property increased value 157 500 component net pool property simply windfall 77 obvious wife contribution outweigh husband significant extent said seem husband made contribution conservation wife korean asset arguable however wife made contribution conservation husband pre marriage asset quite simply provided significant amount cash joint benefit party time fund husband available aged pension cash informal property settlement first wife 78 accept husband made contribution conservation b property following separation hand sole occupation home relieved obligation pay rent mortgage instalment 79 relation asset acquired generated relationship set paragraph 71 clear wife contribution significantly exceed husband contributed greater sum purchase price b property provided larger sum money benefit party relationship hand reasonably significant component pool property comprised windfall increase value b property 80 would ass contribution husband wife net pool property identified paragraph 72 35 65 respectively find checking exercise finding would equate 16 husband 84 wife relation overall net pool property without regard pre marriage korean saving wife contributed least 60 pool way existing net asset referring korean real estate le liability korean financial institution consideration given wife transfer cash australian bank account readily apparent contribution would exceed 60 substantial extent section 75 2 factors81 refer factor set section 75 2 appear relevant present proceeding section 75 2 age state health partiessection 75 2 b income property financial resource party physical mental capacity appropriate gainful employment82 husband wife aged 65 68 year respectively retired neither expected engage gainful employment future 83 wife seems health problem suffered stroke requires regular kidney dialysis medical evidence adduced case state health deficiency much moment view age precludes gainful employment event 84 husband income aged pension term available income situation highly unlikely improve future wife commercial property korea position derive income said suspicion wife undisclosed cash reserve bank account korea section 75 2 fact circumstance opinion court justice case requires taken account85 husband unchallenged evidence wife spent approximately 25 000 30 000 furniture took korea upon separation wife attribute value 500 household content seems highly likely undervalued asset hand dispute purchased item money held prior marriage referred already suspicion wife undisclosed asset korea 86 seems convenient husband rather coincidence entered binding financial agreement first wife following separation wife husband voluntarily divested interest valuable piece real estate conclusion section 75 2 factors87 wife conceded 5 adjustment favour husband account section 75 2 factor reference party jointly acquired asset opinion concession appropriate regard disparity respective capital base result88 result find division 60 wife 40 husband respect following item property 1 b property j 312 5002 cba saving h 6 9733 westpac bank saving h 8454 bendigo bank saving h 2 3875 westpac bank saving w 2 0806 husband paid legal fee ex advance daughter 5007 wife paid legal fee 5 9858 money withdrawn joint westpac account husband 50 0009 money withdrawn joint imb account wife 52 05010 money withdrawn westpac bank account wife 31 700 465 02060 figure equal 279 012 40 equal 186 008 89 husband wish retain b property home last 10 11 year basis husband daughter provided financial assistance past structure order provide opportunity buy wife interest property include default provision sale cover situation husband daughter person elect provide assistance 90 pool property husband hold asset value 370 818 exceeds entitlement 184 810 wife hold asset value 94 202 fall 184 810 short entitlement 279 012 cross checking exercise outcome represents division overall net pool property 83 wife 17 husband 91 overall result would wife maintains korean asset one provides income could discharge debt either money paid husband share sale proceeds b property husband would continuing benefit b home amount around 127 500 property sold result seems equitable outcome husband application costs92 hearing fixed 21 november 2006 could proceed wife failed attend provided late notice intend present argued behalf wife husband application cost compromised failure adduce evidence korean property indicated would regard submission persuasive wife failure attend court 3 day hearing meant entire process aborted 93 propose make order cost favour husband estimate cost thrown away follows counsel fee inclusive gst one day reading preparation 2 500 one day hearing 2 500 3 day reserved hearingno charge 5 000solicitor cost conferring counsel client preparation commencement hearing communication wife solicitor client counsel relation advice wife attend court 9 00am 20 november 2006 attending court 21 november 20065 hour 290 1 400gst 10 140 1 540total 6 540 includes time continuing benefit work need repeated94 allow 2 500 counsel reading preparation earlier work must reduced amount time necessary prepare matter hearing similarly allow time spent husband solicitor conference allow 4 5 hour claimed solicitor 290 per hour 1 day fee counsel 2 500 making total 3 732 including gst 95 husband need pay wife amount 184 810 order retain b property convenient course would deduct sum 3 732 figure would mean husband pay wife 181 078 exercise discretion round amount 181 000 certify preceding ninety five 95 paragraph true copy reason judgment honourable justice stevensonassociate date 24 may 2007it notedthat judgment publication reporting purpose referred hsieh chow
State Central Authority & Abbas [2009] FamCA 44 (9 January 2009).txt
state central authority abbas 2009 famca 44 9 january 2009 last updated 13 february 2009family court australiastate central authority abbas 2009 famca 44family law injunction ex parte interlocutory state central authority airport watch listfamily court australia 1975 cth applicant secretary department human service state central authorityrespondent mr abbasfile number mlc169of2009date delivered 9 january 2009place delivered melbourneplace heard melbournejudgment cronin jhearing date 9 january 2009representationcounsel applicant m porrittsolicitor applicant department human servicesordersthat applicant leave proceed without notice respondent order respondent mr abbas personally servant agent hereby restrained removing attempting remove child born march 1999 commonwealth australia b removing attempting remove said child state victoria c causing permitting suffering current place residence said child changed without prior written consent applicant consent unreasonably withheld respondent servant agent forthwith deliver registrar family court australia melbourne safe custody passport held name said child upon said child appears restrained applying passport said child pending order court thereafter party liberty inspect passport upon arrangement made registry manager officer department human service victoria secretary department may time time direct requested permitted visit enter place residence respondent access said child may reasonably require purpose investigating determining welfare said child requested australian federal police give effect sub paragraph 2 order placing name said child airport watch list force point arrival departure commonwealth australia maintain said child name watch list order court ordered applicant forthwith provide sealed copy order australian federal police applicant serve copy order form 2 application respondent soon practicable thereafter respondent forthwith file notice address service application adjourned 16 january 2009 justice bennett making order direction including direction filing document expedited hearing respondent attends court said child adjourned date applicant respondent liberty vary set aside order short notice reason transcribed notedthat publication judgment pseudonymstate central authority abbasis approved pursuant tos 121 9 g thefamily law act 1975 cth family court australia melbournefile number mlc 169 2009state central authorityapplicantandmr abbasrespondentreasons judgmentthis urgent application brought delegate state central authority secretary department human service victoria brought without notice father application thefamily law child abduction convention regulation 1986 comprehensive file embodied affidavit relating child daughter born march 1999 child history would appear unfortunate tragic appears evidence order made dutch court giving care child n foundation father taken child father according material australian resident said f suburb melbourne convention requires swift action determine whether child returned regardless circumstance case think important regard read court move swiftly sort two important consideration first asked make airport watch order second department need ascertain circumstance child living affidavit material told bar table department received advice morning father expressed intention former wife return africa noted file child born shown african nationality according indication morning father wish return africa purpose female circumcision issue address shown material would appear father mother address shown document australian citizen detail otherwise known circumstance see prejudice father proceed absence also prevent leaving australia short period time child case purpose mentioned fact mind addition think important document served department intervenes see circumstance child living material show child interviewed welfare authority holland expressed concern throughout september october 2008 seemed little different november 2008 notwithstanding change still expressed concern circumstance child living circumstance appropriate make order certify preceding seven 7 paragraph true copy reason judgment honourable justice croninassociate date 15 january 2009
Ige v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1008 (9 November 2023).txt
ige v minister immigration citizenship multicultural affair 2023 fedcfamc2g 1008 9 november 2023 last updated 9 november 2023federal circuit family court australia division 2 ige v minister immigration citizenship multicultural affair 2023 fedcfamc2g 1008file number syg 2110 2019judgment judge laingdate judgment 9 november 2023catchwords migration application judicial review decision administrative appeal tribunal whether tribunal misconstrued misapplied cl 802 211 schedule 2 themigration regulation 1994 cth application dismissedlegislation migration act 1958 cth 48migration regulation 1994 cth rr 1 03 1 05a sch 2 cl 802 211 802 212 802 215cases cited ige v minister immigration citizenship multicultural affair 2023 fedcfamc2g 1007minister immigration border protection v kim 2014 fcafc 47 2014 221 fcr 523division division 2 general federal lawnumber paragraph 37date hearing 23 october 2023place sydneycounsel applicant mr jonessolicitor applicant dobbie devine immigration lawyerscounsel first respondent mr g johnsonsolicitor first respondent minterellisonsecond respondent submitting appearance save costsorderssyg 2110 2019federal circuit family court australia division 2 ayodeji mofolaoluwami igeapplicantand minister immigration citizenship multicultural affairsfirst respondentadministrative appeal tribunalsecond respondentorder made judge laingdate order 9 november 2023the court order application dismissed note form order subject entry court record note court may vary set aside judgment order remedy minor typographical grammatical error r 17 05 2 g federal circuit family court australia division 2 general federal law rule 2021 cth record variation order pursuant r 17 05federal circuit family court australia division 2 general federal law rule 2021 cth reason judgmentjudge laing court application judicial review decision administrative appeal tribunal tribunal tribunal affirmed decision delegate delegate first respondent minister grant applicant child residence class bt visa child residence visa matter related another matter judgment delivered today concerning applicant brother ige v minister immigration citizenship multicultural affair 2023 fedcfamc2g 1007 backgroundthe applicant born nigeria entered australia 2014 holder visitor business stream subclass 600 visa mother brother applicant mother made application substantive visa onshore 2014 applicant brother recorded dependent secondary visa applicant visa application subsequently refused 2017 applicant applied child residence visa applicant sponsored visa father sponsor brother made similar visa application 21 september 2018 delegate refused applicant application applicant applied tribunal review delegate decision 12 october 2018 attended combined hearing brother tribunal 10 july 2019 17 july 2019 tribunal affirmed delegate decision applicant matter relevant lawsection 48of themigration act 1958 cth act relevantly operated preclude person hold substantive visa relevant visa refused since last entry australia applying visa australia except within prescribed visa class child residence visa prescribed visa class clause 802 211 802 212 schedule 2 themigration regulation 1994 cth regulation relevantly required following criterion met 802 21 criterion satisfied time application802 211if applicant person section 48 act applies applicant refused visa visa cancelled undersection 501of act b since last applying substantive visa become dependent child australian citizen ii holder permanent visa iii eligible new zealand citizen 802 212 1 applicant dependent child person australian citizen holder permanent visa eligible new zealand citizen b subject subclause 2 turned 25 1a applicant step child person mentioned paragraph 1 applicant step child within meaning paragraph b definition ofstep child 2 paragraph 1 b apply applicant time making application dependent child within meaning subparagraph b ii definition ofdependent child clause 802 215 relevantly provided 802 215the applicant b sponsored person turned 18 ii australian citizen holder permanent visa eligible new zealand citizen iii australian citizen holder permanent visa eligible new zealand citizen mentioned paragraph 802 212 1 b cohabiting spouse de facto partner australian citizen holder permanent visa eligible new zealand citizen mentioned paragraph 802 212 1 following definition r 1 03 regulation relevant 1 03 definition dependent child person mean child step child person child step child engaged married spouse de facto partner child step child turned 18 b turned 18 dependent person ii incapacitated work due total partial loss child step child bodily mental function step child relation parent mean person child parent child parent current spouse de facto partner b person child parent child parent former spouse former de facto partner ii turned 18 iii relation parent parenting order force thefamily law act 1975under parent person child live responsible child long term day day care welfare development b guardianship custody whether jointly otherwise commonwealth state territory law law force foreign country term dependent defined r 1 05a regulation follows 1 05a dependent 1 subject subregulation 2 person thefirst person dependent another person time necessary establish whether first person dependent person first person substantial period immediately time wholly substantially reliant person financial support meet first person basic need food clothing shelter ii first person reliance person greater reliance first person person source support financial support meet first person basic need food clothing shelter b first person wholly substantially reliant person financial support first person incapacitated work due total partial loss first person bodily mental function tribunal decisionthe tribunal observed issue whether applicant become dependent child australian citizen permanent visa holder eligible new zealand citizen since last applying substantive visa whilst australia cl 802 211 b schedule 2 regulation 7 tribunal observed criterion applied applicant person whoms 48of act applied due previous inclusion dependent substantive visa application 11 13 tribunal summarised evidence 17 27 including sponsor evidence supporting applicant brother financially emotionally since came care april 2017 18 tribunal reasoned follows 22 27 tribunal told applicant sponsor must consider whether applicant become dependent child sponsor since last applying substantive visa applicant told tribunal following sponsor came australia applicant one year old prior applicant coming australia lived mother brother nigeria time sponsor paid food clothing accommodation schooling since coming australia sponsor provided financially lived campsie ashfield mother sponsor paid child support also gave additional money mother friend dropped sponsor home lived sponsor wife child short time september 2016 completed hsc hsc worked one half year apprentice carpenter worked monday friday 7 00 4 30 pm earned 350 weekly worked voluntary basis two week beginning work gourmet company work five day week 3 30 pm 11 30 pm earns 800 per week sponsor pay accommodation pay food clothing sponsor told tribunal following prior coming australia lived applicant mother year applicant born 1999 entered australia 2000 sent money applicant mother parent support applicant provided applicant food clothing accommodation schooling married wife 2003 lived new zealand 2005 2010 supporting applicant financially australia since child support agency contacted gave information broadly agreement applicant evidence applicant schooling employment living circumstance stated made wrong decision disclose relationship applicant biological mother applicant applying partner visa regret including applicant application said wife know applicant came australia placed strain relationship wife counselling remain together sponsor wife told tribunal following know sponsor child discovered child shocked marriage sponsor difficult time come time shared concern applicant emotionally psychologically demanding time considers applicant part family one else sponsor family applicant born 1999 turned 18 4 day visa application lodged law applicant deemed dependent child sponsor turned 18 therefore 27 june 2014 applied substantive visa applicant already dependent child sponsor basis tribunal satisfied since last applying substantive visa applicant become dependent child australian citizen holder permanent visa eligible new zealand citizen therefore applicant satisfy cl 802 211 b schedule 2 regulation regard tribunal concluded applicant could meet criterion child residence visa affirmed delegate decision 28 30 proceeding courtthe applicant commenced current proceeding application filed 14 august 2019 amended application filed 26 july 2023 containing following ground second respondent made jurisdictional error misconstruing misapplying cl 802 211 sch 2 read reg 1 03 reg 1 05a themigration regulation 1994 cth tribunal paragraph 27 decision proceeded basis applicant automatically dependent child sponsor reg 1 03 account aged 18 become dependent child turning 18 would require dependency reg 1 05a ii tribunal thereby misinterpreted misapplied cl 802 211 applicant turned 18 status dependent child automatic fell assessed dependency reg 1 05a upon assessment found satisfy reg 1 05a applicant would become dependent child cl 802 211 b despite turned 18 iii tribunal error material applicant become dependent child despite turning 18 reference reg 1 05a applicant would done since application substantive visa 27 june 2014 cl 802 211 b would satisfied iv alternative tribunal paragraph 27 decision proceeded basis sole question whether applicant sponsor australian citizen purpose cl 802 211 b v tribunal thus impliedly interpreted cl 802 211 b though australian citizen referred confined applicant sponsor cl 802 215 vi tribunal construction erroneous cl 802 211 b unlike cl 802 212 expressly mentioned cl 802 215 b iii restricted applicant sponsor extends australian citizen vii tribunal otherwise failed apply mind question legislation prescribes far cl 802 211 b extends beyond applicant sponsor szszq v minister immigration 2018 fca 403at 69 viii tribunal error material another potentially relevant australian citizen wife applicant sponsor ix tribunal upon remittal could realistically conclude applicant dependent child wife applicant sponsor purpose cl 802 211 b basis applicant became stepchild applicant applied previous substantive visa x particular realistically possible tribunal could conclude applicant became step child wife applicant sponsor became aware applicant existence reg 1 03 basis person could step child another person purpose reg 1 03 person aware fact minister immigration border protection v kim 2014 fcafc 47 221 fcr 523 applicant observed tribunal reason included assessment sponsor cl 802 211 b applicant accepted tribunal correct conclude applicant necessarily dependent child sponsor whilst 18 however applicant observed turned 18 day child residence visa application automatically sponsor dependent child applicant submitted tribunal determine whether dependent sponsor within meaning r 1 05a turning 18 assumed question arise due previous status dependent child applicant submitted circumstance longer necessarily dependent child turning 18 needed assessed dependency r 1 05a status found would meant become dependent child sense qualifying accepted regard applicant relied upon following definition word become theoxford english dictionary becomeverb becomes becoming pastbecame bi keim past principlebecome noobject withcomplement begin became angry sulked day becoming clear new situation grow develop child become adult person qualify accepted wanted become doctor become question happen would become applicant submitted alternative construction would involve surplusage manner person could become dependent child becoming step child perhaps adopted child submitted cl 802 211 b limited manner applicant submitted tribunal therefore misinterpreted misapplied cl 802 211 b unable accept applicant argument submitted minister insufficient basis interpreting cl 802 211 manner proposed ordinary meaning word become within context appears favour interpretation adopted tribunal interpretation although basis applicant status dependent child changed turned 18 status dependent child consistent evidence put forward support applicant application effect continued dependency upon sponsor within meaning r 1 05a definition within provision set 16 tribunal decision tribunal consideration definition together applicant evidence regarding dependency upon sponsor indicates tribunal consider whether dependent upon sponsor turning 18 whilst tribunal appears proceeded basis acceptance case found become dependent child sponsor status regard changed ever ceased continued alternative basis meeting definition b therefore although basis applicant status changed upon turning 18 status dependent child sponsor tribunal reasoning tribunal accordingly found applicant become sponsor dependent child since last applying substantive visa accept minister submission reasoning part tribunal involve misconstruction misapplication cl 802 211 persuaded provision ought interpreted manner contended applicant applicant contended tribunal alternatively additionally erred proceeding basis australian citizen relevant cl 802 211 b sponsor submitted involved construing cl 802 211 b australian citizen referred needed person australian citizen sponsoring applicant cl 802 215 b applicant submitted limitation existed cl 802 211 b contrast cl 802 215 required australian citizen identical sponsor applicant contended error material cl 802 211 b potentially capable met sponsor wife applicant submitted possible r 1 03 regulation referring parent step child describing parent unaware existence step child said consistent reasoning inminister immigration border protection v kim 2014 fcafc 47 2014 221 fcr 523 kim referred 37 construction 48 act desirability person knowledge event relevant operation provision rather unknowingly bearing consequence evidence sponsor wife found applicant existence arrival australia may post dated previous substantive visa application submitted cl 802 211 b might therefore satisfied reference sponsor wife accept minister submission least two reason applicant argument regard unable succeed firstly manner applicant advanced case tribunal applicant case based upon dependency sponsor explains tribunal assessed sponsor relation cl 802 211 b fact tribunal therefore demonstrate tribunal undertook closed approach cl 802 211 applicant claim able meet cl 802 211 b reference sponsor spouse applicant established reference material claim clearly arose absence claim difficult applicant establish alleged misconstruction tribunal basis tribunal deal claim secondly material applicant unable satisfy cl 802 211 b basis relationship sponsor spouse definition step child set applicant satisfied definition last substantive visa application made prior turning 18 circumstance relevant marriage occurred 2003 therefore even applicant could regarded dependent child sponsor spouse period turned 18 would continuation status result become dependent child last substantive visa application applicant sought overcome difficulty suggesting definition dependent child implied knowledge step parent existence step child however accept minister submission construction supported text regulation relevantly required according definition r 1 03 sponsor wife sponsor spouse de facto partner although accept knowledge played significant role inkim case concerned different legislative provision context question case whether minor whose behalf visa application made relevantly applied visa within meaning 48 therefore held exclusionary consequence provision definitional provision r 1 03 step child different nature concerned defining relationship visa applicant parent spouse de facto partner applicant unable point directly applicable authority proposition knowledge essential yet unarticulated requirement meeting definition third difficulty relied upon minister concerned relationship cl 802 211 802 212 802 215 provision set clause 802 212 1 relevantly required applicant dependent child australian citizen clause 802 215 b iii relevantly required applicant sponsored australian citizen referred cl 802 212 1 requirement identity would still needed met even applicant able meet cl 802 211 applicant sought overcome submitting reference person definition dependent r 1 05a 1 potentially reference one person minister contested submitting hearing applicant construction would circumvent essence definition distinguish one person another person reference requirement reliance upon person greater reliance person ultimately consider unnecessary decide question limited submission made issue taken authority directly point view appropriate question construction determined case capable affecting outcome event reason given persuaded tribunal fell jurisdictional error misinterpreting misapplying cl 802 211 b act conclusioni accepted tribunal decision affected jurisdictional error follows obliged dismiss application court difficult considerable sympathy applicant brother family australia applicant brother came australia child abandoned mother claim tribunal dispute dependent upon father face prospect separation family australia departure country lived since child matter unable influence decision matter however circumstance case may desirable consideration given minister available avenue ministerial intervention hear party relation cost certify preceding thirty seven 37 numbered paragraph true copy reason judgment judge laing associate dated 9 november 2023
Industrial Relations Commission Decision 930_1994 [1994] AIRC 981; (28 June 1994).txt
industrial relation commission decision 930 1994 1994 airc 981 28 june 1994 industrial relation commission decision 930 1994 n0173 dec 930 94 print l3394 australian industrial relation commissionindustrial relation act 1988s 113application variation national union worker c 32107 1993 national warehousing distribution nuw interim award 1993 odn c 32518 1992 print k7881 n0173 store distribution worker storage service commissioner lewin adelaide 28 june 1994 change condition employment termination change redundancy provision award variation sought include termination dispute settlement procedure relating unfair dismissal provision accordance tcr principle award varied direction issued decision decision edited first given transcript melbourne 25 november 1993 application national union worker vary national warehousing distribution nuw interim award 1993 application seek vary award including two new subclauses clause 31 existing award provision clause 31 titled termination employment contains number provision dealing subject proposed insert two additional paragraph relate unfair dismissal dispute settlement procedure relation alleged unfair dismissal application amended effect amendment clarify scope proposed provision application amended consented behalf australian chamber manufacture metal trade industry association victorian employer chamber commerce industry note named respondent malvern star bicycle served notification today hearing provision sought applicant accordance principle commission relating unfair dismissal settlement dispute concerning alleged unfair dismissal arising case known termination change redundancy print f6230 circumstance public interest make variation sought applicant order issue accordingly order come force today date remain force period six month form draft order amended attached application propose deal another matter referred generally proceeding issue arisen correspondence australian chamber manufacture union number issue going provision clause 31 generally raised proposed motion hear determine inclusion otherwise certain proposal set letter 19 november 1993 signed stan gower senior human resource counsellor consumer product industry behalf chamber decline direct mr gower formulate proposed change form draft order circulate respondent award covering letter explaining origin proposal letter also explain matter subject today proceeding commission declined act motion hear determine matter waived rule commission extent draft order submitted mr gower considered future date purpose hearing determination inclusion award meantime direct party confer relation foreshadowed application term application reduced form draft order directed hear matter conference taken place advised result furthermore direct chamber particular mr gower provide office copy draft order formulated correspondence respondent award direct mr gower advise office relation conduct conference proceeding required relation matter appearance l freeburn national union worker driscoll metal trade industry association gower australian chamber manufacture g v amoroso victorian employer chamber commerce industry hearing detail 1993 melbourne november 25 end text end text
Short and Linfox Transport Pty Ltd (Compensation) [2019] AATA 613 (2 April 2019).txt
short linfox transport pty ltd compensation 2019 aata 613 2 april 2019 last updated 18 april 2019short linfox transport pty ltd compensation 2019 aata 613 2 april 2019 administrative appeal tribunaladministrative appeal tribunal 2016 4343general division 2016 60172017 03442017 5781re john shortapplicantand linfox australia pty ltdrespondentdirectiontribunal deputy president j w constancedate corrigendum 18 april 2019place sydneyit directed pursuant tosubsection 43aa 1 theadministrative appeal tribunal act 1975 cth text decision application altered follows name respondent page 1 changed linfox transport pty ltd linfox australia pty ltd reference linfox transport pty ltd paragraph 1 decision application 2017 0344 changed linfox australia pty ltd reference linfox transport pty ltd paragraph 2 decision application 2017 0344 changed linfox australia pty ltd reference linfox transport pty ltd paragraph 1 decision application 2016 4343 changed linfox australia pty ltd reference linfox transport pty ltd paragraph 2 decision application 2016 4343 changed linfox australia pty ltd reference linfox transport pty ltd paragraph 1 decision application 2016 6017 changed linfox australia pty ltd reference linfox transport pty ltd paragraph 2 decision application 2016 6017 changed linfox australia pty ltd reference linfox transport pty ltd paragraph 1 decision application 2017 5781 changed linfox australia pty ltd reference linfox transport pty ltd paragraph 2 decision application 2017 5781 changed linfox australia pty ltd reference linfox transport pty ltd decision cost application 2016 4343 2017 0344 2016 6017 2017 5781 changed linfox australia pty ltd reference linfox transport pty ltd paragraph 102 reason decision changed linfox australia pty ltd reference linfox transport pty ltd paragraph 103 reason decision changed linfox australia pty ltd reference linfox transport pty ltd paragraph 104 reason decision changed linfox australia pty ltd reference linfox transport pty ltd paragraph 105 reason decision changed linfox australia pty ltd reference linfox transport pty ltd paragraph 106 reason decision changed linfox australia pty ltd reference linfox transport pty ltd paragraph 107 reason decision changed linfox australia pty ltd reference linfox transport pty ltd paragraph 108 reason decision changed linfox australia pty ltd reference linfox transport pty ltd paragraph 109 reason decision changed linfox australia pty ltd andthe reference linfox transport pty ltd paragraph 110 reason decision changed linfox australia pty ltd sgd j w constancedeputy presidentdivision general divisionfile number 2016 43432016 60172017 03442017 5781re john shortapplicantandlinfox transport pty ltdrespondentdecisiontribunal deputy president j w constancedate 2 april 2019place sydneyapplication 2017 0344the decision review decision made linfox transport pty ltd 12 january 2017 set aside substitution decided linfox transport pty ltd liable pay compensation mr short accordance reason respect injury c6 7 right posterior lateral disc protrusion occurred 15 march 2013 application 2016 4343the decision review decision made linfox transport pty ltd 12 january 2017 set aside substitution decided linfox transport pty ltd liable pay compensation mr short accordance reason respect injury aggravation c6 7 right posterior lateral disc protrusion aggravation occurred 5 july 2013 application 2016 6017the decision review decision made linfox transport pty ltd 23 june 2016 set aside substitution decided linfox transport pty ltd liable pay compensation mr short accordance reason respect injury increased c6 7 right posterior lateral disc protrusion occurred 15 march 2016 application 2017 5781the decision review decision made linfox transport pty ltd 18 september 2017 set aside matter remitted linfox transport pty ltd reconsideration accordance reason direction mr short suffered injury namely c6 7 right posterior lateral disc protrusion resulted permanent impairment application 2016 4343 2017 0344 2016 6017 2017 5781within 14 day date decision party may apply tribunal direction relation cost application made linfox transport pty ltd shall pay cost incurred mr short proceeding sgd deputy president j w constancecatchwordscompensation worker compensation c6 7 right posterior lateral disc protrusion immediate physiological change condition c6 7 disc whether injury purpose act whether injury arising course applicant employment decision set aside substitutedcompensation worker compensation aggravation c6 7 right posterior lateral disc protrusion whether injury purpose act whether aggravation injury whether aggravation arising course applicant employment decision set aside substitutedcompensation worker compensation c6 7 right posterior lateral disc protrusion immediate physiological change condition c6 7 disc whether injury purpose act whether injury arising course applicant employment decision set aside substitutedcompensation worker compensation c6 7 right posterior lateral disc protrusion whether injury resulted permanent impairment purpose act decision set aside remittedlegislationsafety rehabilitation compensation act 1988 cth casesabrahams v comcare 2006 fca 1829 2006 93 ald 147humphrey earl ltd v speechley 1951 hca 75 1951 84 clr 126military rehabilitation compensation commission v may 2016 hca 19 2016 257 clr 468telstra corporation ltd v bowden 2012 fca 576 2012 206 fcr 207secondary materialscomcare guide assessment degree permanent impairment edition 2 1reasons decisiondeputy president j w constancea introductionmr short commenced employment driver deliveryman linfox australia pty ltd linfox 2007 delivered full keg beer customer collected empty keg return depot based hard manual work often without mechanical assistance mr short experienced significant problem back neck incident march 2013 suffered pain neck right shoulder manoeuvring full keg back delivery truck received medical treatment continued working following incident continued experience pain neck shoulder suffered similar symptom july 2013 lifting keg occasion treated physiotherapy medication pain relief march 2016 mr short moving full keg back delivery truck occasion felt pop neck followed severe pain consulted neurosurgeon professor owler diagnosed suffering severe right c7 radiculopathy result large right c6 7 disc protrusion august 2016 professor owler performed c6 7 anterior cervical discectomy fusion although procedure provided mr short relief symptom able return full time duty last worked linfox may 2016 b application determination proceedingsapplication 2017 0344 claimed injury 15 march 2013 9 november 2016 mr short made claim compensation injury neck shoulder right arm described injury disease aggravation injury disease due nature condition employment linfox since commencing employment 2006 date 1 stated first noticed symptom claimed condition 15 march 2013 2 medical certificate issued dr park 29 november 2016 lodged support claim recorded diagnosis disc prolapse cervical spine c5 6 c6 7 treated anterior discectomy fusion 3 mr short seek review decision dated 12 january 2017 linfox affirmed determination 21 december 2016 deny liability compensate mr short claimed condition application 2016 4343 claimed injury week ending 5 july 2013 6 june 2016 mr short made claim compensation injury suffered week ending 5 july 2013 described multiple disc protrusion prolapse indent cervical cordthickened endplate margin lippingnarrowing intervertebral foramen 4 mr short seek review decision dated 29 july 2016 linfox affirmed determination 30 june 2016 deny liability compensate mr short claimed spinal condition application 2016 6017 claimed injury 15 march 2016 application relates injury described right trapezal strain suffered 15 march 2016 26 may 2017 linfox accepted liability compensate mr short respect injury period 15 march 2016 28 april 2016 mr short seek review decision affirm determination dated 23 june 2016 application 2017 5781 permanent impairment claim 29 june 2017 mr short made claim compensation injury resulted permanent impairment 5 injury respect claim made accepted muscle strain injury sustained 15 march 2016 6 subject application 2016 6017 mr short seek review decision dated 18 september 2017 linfox affirmed determination 17 august 2017 mr short entitlement lump sum permanent impairment compensation 7 c relevant provision thesafety rehabilitation compensation act 1988 cth subsection 14 1 provides 1 subject part comcare liable pay compensation accordance act respect injury suffered employee injury result death incapacity work impairment subsection 5a 1 provides 1 act injurymeans disease suffered employee b injury disease suffered employee physical mental injury arising course employee employment c aggravation physical mental injury disease suffered employee whether injury arose course employee employment aggravation arose course employment include disease injury aggravation suffered result reasonable administrative action taken reasonable manner respect employee employment diseaseis defined insection 5b 1 act diseasemeans ailment suffered employee b aggravation ailment contributed significant degree employee employment commonwealth licensee 2 determining whether ailment aggravation contributed significant degree employee employment commonwealth licensee following matter may taken account duration employment b nature particular task involved employment c predisposition employee ailment aggravation activity employee related employment e matter affecting employee health subsection limit matter may taken account 3 act significant degreemeans degree substantially material subsection 4 1 definesailmentas physical mental ailment disorder defect morbid condition whether sudden onset gradual development section 24and27provide compensation payable respect injury employee result permanent impairment mr short first three application review seek compensation accordance withs 14of act fourth application claim permanent impairment made accordance withss 24and27 mr short employment linfoxunless stated otherwise finding fact reason made basis evidence mr short satisfied honest witness gave evidence best recollection mr short commenced full time employment linfox 24 may 2007 time 25 year old outset mr short employed truck driver deliveryman delivering keg beer collecting empty keg keg varied weight approximately 15 kilogram empty 65 kilogram full regular starting time would often start 5 30am work evening mr short working day always started linfox depot sydney truck would loaded ready drive arrived work flat top vehicle gate side back keep keg place 8 normal load comprised 126 full keg bottom layer 60 70 top layer flat board placed top first layer support second load could include two size keg 30 litre keg weighed 40 kilogram 50 litre keg weighed 65 kilogram delivery run mr short accompanied fellow worker assist unloading full keg loading empty normal day would involve two three delivery collection load would require delivery several location occasion full keg unloaded hand usually involved mr short reaching head right hand taking hold one handle top keg top row pulling towards keg came truck would keep hold right hand guide left arm landed side cork mat ground time keg would fall awkwardly pulling right arm similar process involved unloading bottom row unloading keg middle tray mr short would stand bar side truck drag keg towards drop ground occasion necessary stand top second row pull keg bottom row positioning edge truck ready unloaded ground manner keg transferred customer storage varied venue mr short would use rope hook lower full keg cellar ground level pull empty keg done without assistance occasion would bear full weight keg hit cellar floor venue slide ground level cellar method transferring keg required mr short hold full keg slide cellar man took weight time keg would move slide pulling mr short forward causing heavy jerk mr short arm layout venue meant keg unloaded rolling side truck premise venue trolley used empty keg removed way time mr short assistant required lift keg tray truck doorway head large entertainment sporting venue keg removed using forklift loading empty usual practice load bottom row place board top row repeat two row mr short would pick keg carry truck horizontal position right hand top keg load twisting motion stood vertically pushed keg place right hand keg positioned middle row either level lean forward sometimes keg would become jammed difficult push load top row empty mr short lift keg head turn time would lift keg waist height right hand use hand lift head mr short work physically demanding time would feel muscle stiffness busy day work however 2013 experienced significant pain neck shoulder back taken time work sought medical treatment neck shoulder injury general practitioner note 4 december 2012 9 record following yesterday pulled something right upper back neck brushing teeth entry incident 15 march 2013on 15 march 2013 mr short manoeuvring keg back truck felt pain stiffness neck right shoulder 3 april 2013 consulted dr abi hanna general practitioner nominated linfox day lodged application worker compensation diagnosed suffered right trapezius parascapular strain treated physiotherapy strapping performed light duty day returning normal duty since incident mr short continued suffer pain fluctuated generally worsened time incident 5 july 2013in statement made 25 may 2017 mr short described incident follows 5 july 2013 lifting keg experienced pain neck loss strength right arm reported injury transport manager mr benetti vili organised consultation dr saad injury time work time although perform light duty dr saad referred mri underwent 30 july 2013 mri showed disc bulge sic along spine point told merely sustained muscular strain 10 mr short continued usual work following incident performed normal duty endeavoured cautious possible avoid complication found difficult physically demanding nature work suffered constant pain neck arm frequent episode severe pain also experienced stiffness limited range movement neck treated physiotherapist prescribed medication pain relief medication provided significant relief drug lyrica prescribed late 2016 mri cervical spine 30 july 2013the report mri scan mr short cervical spine dated 30 july 2013 stated c6 7 level right posterior lateral disc protrusion occurred endplate margin also thickened early lipping right intervertebral foramen narrowed 11 incident 24 february 2015in statement made 25 may 2017 mr short described incident follows 24 february 2015 2015 sic lifting large board used stack keg held either side board lifted upwards momentum lifted upwards board caught wind sic force wind board put pressure board arm caused experience immediate pain neck uncommon symptom like throughout working day reported injury employer taken see dr mason medical expense covered employer believe saw dr mason approximately three occasion whilst symptom fluctuated significantly year generally since march 2013 12 incident 15 march 2016mr short described incident follows 15 march 2016 sustained injury whilst pulling full keg across one side truck sic side felt pop neck experienced immediate severe pain neck right arm reported manager taken see dr homsi day lodged another worker compensation claim form lin750352 time work stage still aware severity injury thought pain caused recurring muscular strain 13 mri cervical spine 1 april 2016the report scan included following observation c6 7 moderate marked right sided disc osteophyte disease appears mainly disc protrusion 8mm 14 subsequent treatmentby mid 2016 mr short experiencing severe pain neck right arm radiated finger condition deteriorating difficulty sleeping supporting right arm significantly weakened front chest early august 2016 mr short consulted professor owler neurosurgeon 22 august 2016 professor owler performed c6 7 anterior cervical discectomy fusion mr short following day mr short noticed significant improvement relation tingling numbness right arm hand cessation work linfoxmr short last worked linfox may 2016 e linfox argumentlinfox contends reviewable decision affirmed argued based evidence dr mellick find prior since 15 march 2013 mr short suffered degenerative spinal condition symptom suffers result degenerative condition mr short employment made contribution alternatively argued based evidence professor mcgill find mr short employment linfox caused aggravation pre existing degenerative condition 2013 2016 satisfied 2013 aggravation ceased effect within three month 2016 aggravation ceased effect within six month surgery performed professor owler august 2016 f evidence health professionalsdr sherif radiologistdr sherif reported mri scan taken mr short cervical spine 1 april 2016 30 july 2013 report prepared request professor steadman 5 september 2017 15 24 october 2017 16 dr sherif reviewed report original film case 5 september 2017 dr sherif reported disc protrusion 2013 measured 8x5x13mm protrusion 2016 measured 23x15x6mm expressed opinion compressive disc likely occurred sudden jolt twisting injury accompanied acute pain neurology usually peaking 6 hour post event given smaller disc protrusion 3 year earlier albeit much smaller previous discopathy likely functionally healed although healing never regains original strength annular fibre thus would weak point injury report 24 october 2017 dr sherif recorded one question respond identified difference imaging consistent progression degenerative disease cervical spine likely indicative occurrence specific event trauma survival spine please provide reason answer dr sherif responded minor endplate osteophyte lipping c6 c7 indicative early evidence degeneration far compressive stage disc protrusion usually multifactorial however young person degenerative change le contributory traumatic event usual main contributing factor professor owler neurosurgeonmr short referred professor owler general practitioner dr kumar professor owler provided report dated 9 august 2016 17 22 august 2016 18 also gave evidence hearing 9 august 2016 professor owler reported part follows 2013 suffer injury developed pain right side neck shoulder treated conservative management treated compensable work related injury went process group called body active reviewed physiotherapist site work also involved strapping shoulder time diagnosis made time trapezius strain mri scan cervical spine 30thjuly 2013 demonstrate focal c5 6 disc significant c6 7 right posterolateral disc protrusion narrowing neural exit foramen would affect c7 nerve likely cause problem stage since time problem never completely resolved continued work full duty unfortunately march 2016 delivery pulled keg across truck felt pop neck intense pain neck shooting pain arm paraesthesia placed light duty coincided time work subsequently stood diagnosed trapezius strain clearly severe right c7 radiculopathy pain improved although still quite significant pain three week ago started lyrica currently taking 150mgs hd examination loss muscle bulk right shoulder particularly triceps muscle reviewed current mri scan show previous small c5 6 disc large right c6 7 protrusion markedly increased compared scan 2013 clear gentleman muscle strain fact doubt muscle strain 2013 diagnosis severe right c7 radiculopathy due large right c6 7 disc protrusion clearly work related injury acute disc recurrence large extrusion almost certainly caused activity work march 2016 discussed option treatment including conservative management cortisone injection surgery think best chance c6 7 anterior cervical discectomy fusion professor owler performed c6 7 anterior cervical discectomy fusion 22 august 2016 19 hearing professor owler gave evidence common injury c7 level cause symptom suffered mr short following incident march 2013 mri 30 july 2013 show long standing degenerative change change bony plate develop matter month thickening endplate margin reaction body endeavour repair damage occur period month injury 2016 severe previous injury fact mri scan showed acute change clearly consistent history given mr short feeling pop neck usually experienced disc protrusion suddenly occurs result tearing annulus fibrous layer disc pop indicates timing disc protrusion unlikely cause mr short presentation august 2016 requirement surgery result degenerative change symptom suffered mr short followed normal everyday pattern symptom expected unusual person aged 34 year suffer symptom degenerative change condition mr short spine time discectomy clear case injury rather degenerative change 20 dr pillemer orthopaedic surgeondr pillemer assessed mr short 30 august 2017 request applicant solicitor provided report dated 30 august 2017 21 gave evidence hearing history taken dr pillemer noted mr short felt ongoing problem neck trapezius shoulder region original injury symptom never really settling completely 22 opinion dr pillemer disc protrusion mri done july 2013 lesion would significantly aggravated march 2016 disc protrusion would occurred causing discomfort radiating right arm mr short ongoing symptom due original injury march 2013 aggravation year particularly marked aggravation march 2016 23 gave evidence dr pillemer said fact mr short experienced pain free period prior 2016 change opinion agree proposition put counsel linfox repeated heavy lifting alter course degenerative change neck dr pillemer agree opinion professor mcgill aggravation mr short degenerative condition would cease within three month view disc lesion disc never completely heals remains weak link give way sufficient force opinion degenerative change normal person 60 70 develop disc protrusion usually result incident opinion dr pillemer mr short need surgery related injury 2013 incident march 2016 mr short experienced popping sensation immediate pain indicated disc protrusion significantly increased time coming contact nerve causing pain radiate arm dr pillemer assessed mr short degree whole person impairment 28 24 accordance table 9 15 thecomcare guide 25 table includes loss motion motion segment due developmental fusion successful unsuccessful attempt surgical arthrodesis dr mellick neurologistdr mellick assessed mr short 28 april 2016 request solicitor linfox dr mellick provided report dated 28 april 2016 9 may 2016 20 june 2016 26 also gave evidence hearing 28 april 2016 dr mellick reported part follows indication cervical spinal injury neural injury level neck radiologist comment radiological data establish presence radiculopathy c6 7 level emphasised absence evidence radiculopathy clinical ground time examination despite radiological change noted approximately three year ago osteoarthritic change degenerative change constitutional long standing due injury pathology present osteoarthritis context constitutional matter pattern osteoarthritis indicative presence spinal injury reasoning based pattern history finding examination correlation radiological data probable muscle strain occurred background cervical spondylosis normal pattern resolution symptom period four six week current symptom therefore explicable result ongoing traumatic pathology agree lack relationship mr short work presence degenerative disease including foraminal narrowing nerve root compromise 27 report 9 may 2016 dr mellick stated could find organically based problem preventing mr short returning pre injury duty 28 20 june 2016 expressed opinion multiple possible cause degenerative change none work related 29 dr mellick gave evidence agreed symptom right arm described mr short indicative radiculopathy included tingling reduced reflex reduced strength also agreed right bicep right handed person normally larger left case examined mr short asked whether agreed likely time incident 15 march 2016 change physiology disc came contact nerve dr mellick said possible interpretation 30 clinical associate professor mcgill consultant rheumatologistprofessor mcgill assessed mr short 1 march 2017 request solicitor linfox provided report dated 1 march 2017 31 gave evidence hearing professor mcgill reported part follows earliest imaging cervical spine july 2013 showed chronic degenerative change including thickening vertebral endplate margin early lipping c6 7 degenerative change cervical spine clearly present prior development symptom nevertheless performing physical activity work time symptom first occurred although substantial injury think appropriate conclude work duty 2013 2016 cause aggravation pre existing degenerative change cervical spine respect probable duration aggravation result work performed july 2013 although today reported neck symptom never fully settled thus may mild permanent aggravation think probable aggravation time temporary ceased within three month think aggravation related work duty march 2016 precipitated requirement cervical spine surgery surgery performed work related aggravation pre existing degenerative disc disease light problem occurred c6 7 level fact degeneration also c5 6 think would unwise perform heavy lifting 20kg requirement restriction become apparent work related aggravation cervical spine disease restriction going forward related underlying change work injury presumption previous work moving keg beer would time involved equivalent lifting weight excess 20kg think fit return previous work duty fit continue current work duty full time basis fit work involving driving lifting 20kg general activity work requiring prolonged awkward posturing neck would appropriate inability continue normal work duty subsequent injury march 2016 related work injury sustained time effect injury respect work capacity would continued recovered cervical spine surgery six month following surgery appropriate time point 23 february 2016 32 oral evidence professor mcgill said state mr short cervical spine july 2013 worse average atypical 33 view possible thatits condition july 2013 developed since march 2013 particular would unusual injury cause change two level shown mri carried 30 july 2013 professor mcgill gave evidence degenerative disc initially bulge protrude symptom develop protrusion irritates nerve considered mr short case event 2013 temporary aggravation would ceased effect within three month agreed incident march 2016 followed immediately severe pain indicated slight physiological change spine whereby protruding disc came contact nerve agreed surgery performed professor owler appropriate associate professor steadman consultant orthopaedic surgeonprofessor steadman assessed mr short december 2016 december 2017 request solicitor linfox provided report dated 20 december 2016 34 4 january 2018 35 gave evidence hearing december 2016 professor steadman reported part follows john short suffered degenerative disc protrusion neck mri show multilevel disease mechanism injury would suggest degeneration went surgical intervention successful opinion would fit return truck driving fact already although think could lift heavy keg order previous level 1000 per week 36 january 2018 professor steadman reported ultimately picture conclude one constitutional insidious progression degenerative disease cervical spine degenerative disease cover aspect finding including case protrusion ultimately led nerve compression rather singular event real issue incremental increase symptom long period time result multiple event background degeneration every event necessarily major contributing factor complaint sum many lead final event straw break camel sic back 37 gave evidence professor steadman said appeared mr short suffered c6 compression later c7 became involved could nerve involvement level agreed march 2016 likely mr short suffered micro trauma started process becoming symptomatic 38 time variation mr short clinical picture resulted new pathology professor steadman assessed mr short degree whole person impairment 28 reason cervical fusion 39 general practitioner record 40 record consultation kept mr short general practitioner include following relevant entry 04 12 2012yesterday pulled something right upper back neck brushing teeth 11 06 2015 pinched nerve right neck radiating scapula 14 06 2015 muscular pain since thu r neck r scapulaold injury 3 yr ago w recurrent symptom c spine full rom tender r neck r scapula r shoulder normalpower tone reflex sensation upper limb normal17 06 2015 still neck pain29 03 2016 gvne celebrex tramadol 20mg helping cramping pain01 06 2016 requesitng anaagement worsend lower cervical c5 6 c6 7 disc protrusion leaning right c7 cervicla root uch pain prev intemirttne numbness righ rlaterl a2 gfinger s08 06 2016 nil pain last 1 week use lyrica alllifted 10kg eski wet clothers basket home comfrtably numbness fingers15 06 2016 resistance trianing homrlig ftignwet clothes basket23 06 2016 gym 5 day lifted 60 kg waist 50kg shoulder muscle ache sleeping wellnil parasthesiaetkainglyrica 75mg bd sleeping wellfeel sfit return work run sick leave record galen gray medical practitionersfollowing incident 15 march 2013 mr short consulted dr abi hanna request linfox dr abi hanna note 3 april 2013 41 record c right post shoulder painwas pushing keg back front truck right hand onlyfelt pain back right shoulder neck sinceon 27 3 13continued normal pid sincedoinf stretchesnil analgesia takenno previous shoulder neck injurywell otherwisenkaexamination mild right trapezius lev scap tenderness spasmfull rom shoulder necknil bony tendernessnil shoulder impingement note 14 april 2013 42 dr saad record reviewed fridaysignificant improvement physio continue strengthening exercisecan trial pidwill issue final clearance next review sydney west sport medicine record 43 consultation record dated 12 march 2015 dr mason took following history mr short 33 year old male linfox truck driver delivering keg 60 kg present r v right shoulder pain 2 week duration sudden onset lifting board caught wind progressively worsened rest day background right perscapular pain 2 year ago 2 bulging disc 17 march 2015 mr abi arrage noted relevantly pain level significantly decreased though still get pain lateral right arm pulling 19 march 2015 dr mason report currently pain level improved intermittent pain pain right ut residual pain medial inferior angle right scaspula note mr abi arrage dated 24 march 2015 record pt report feeling much better rx last week major discomfit pain report residual niggle infero medial border right scap though low intensity neck pain shoulder pain dr mason report 26 march 2015 mr short currently working normal duty hour issue right shoulder cervical spine email sydney west sport medicine dated 23 march 2016 mr webb body active physio reported relevantly saw john today right neck shoulder pain reported sudden onset right neck shoulder pain 15 3 16 pulling keg work followed period low grade discomfort region couple week prior john also number similar work related episode right neck shoulder pain past year g reasoninghaving accepted mr short truthful witness determination issue application requires consideration varying opinion expressed medical expert taking account evidence prefer opinion professor owler dr pillemer practitioner relied upon linfox professor owler advantage operated mr short spine within five month sudden increase symptom march 2016 professor owler dr pillemer gave clear considered reason opinion expressed opinion consistent evidence given mr short particularly able meet extraordinary physical demand job almost six year without difficulty view supported report dr sherif also taken account fact mr short 32 year old 2013 unusual person age suffer degenerative spinal condition nature described dr mellick professor mcgill satisfactorily explain formed opinion mr short recovered 2013 2016 injury yet continued suffer symptom present prior march 2013 despite undertaken heavy manual work since 2007 agreed symptom develop disc protrusion irritates nerve dr mellick explain mr short would suffer symptom gave evidence dr mellick view nerve root compromise dr mellick alone suggesting mr short able return pre injury duty within six week operation professor owler basis evidence professor owler dr pillemer mr short satisfied balance probability 15 march 2013 mr short suffered c6 7 right posterior lateral disc protrusion moving keg part duty employee linfox 5 july 2013 mr short suffered aggravation injury suffered 15 march 2013 15 march 2016 mr short suffered protrusion c6 7 disc moving keg part duty employee linfox mr short fully recovered effect condition mr short suffered injury disease injury disease defined insection 5aof act section 5ais set paragraph 6 reason inmilitary rehabilitation compensation commission v may 44 high court considered definition injury prior insertion ofs 5a relevant wording ofs 5ais considered court majority said meaning injury act part follows set condition answering definition injury act relevantly comprises two sub set disease injury disease latter sometimes referred necessarily helpfully injury simpliciter comprise separate related base liability different meaning statutory scheme injury para b used primary sense gleeson cj kirby j explained inkennedy cleaning service pty ltd v petkoska something described asudden ascertainable dramatic physiological change disturbance normal physiological state may qualify characterisation injury primary sense word emphasis added physiological change disturbance normal physiological state may internal external body employee may example breaking limb breaking artery detachment piece lining artery rupture arterial wall lesion brain would described injury primary sense however full court correctly held suddenness necessary injury primary sense physiological change might sudden ascertainable physiological change might dramatic employee condition might disturbance normal physiological state injury primary sense arise described variety way mean suddenness irrelevant full court said suddenness often useful need distinguish physiological change natural progress underlying one sense closely related disease occurred inzickar v mgh plastic industry pty ltdandkennedy cleaning physiological change nature incident change remains central footnote omitted 45 high court provided guidance tribunal manner proceed determine whether employee suffered injury within meaning act precise evidence must considered fact fact basis 46 tribunal must consider whether employee suffered disease answer necessary consider whether employee suffered injury disease contention behalf linfox mr short suffers ailment degenerative spinal condition employment contributed basis clear condition disease within meaning ofs 5b event accepted evidence professor owler dr pillemer mr short suffer degenerative condition satisfied time incident march 2013 march 2016 occurred immediate physiological change condition c6 7 disc addition evidence professor owler dr pillemer dr sherif also taken account evidence professor mcgill slight physiological change mr short cervical spine protruding disc came contact nerve dr mellick agreed possible interpretation note also opinion professor steadman likely mr short suffered micro trauma precipitated symptomatology question causation relation disc protrusion accepted evidence professor owler dr pillemer occasion caused mr short activity moving keg back delivery truck part employment basis satisfied injury arose mr short employment 47 causal relationship thus established although unnecessary purpose application view finding previous paragraph satisfied also temporal relationship established 48 basis evidence professor owler dr pillemer mr short satisfied occasion mr short suffered injury disease physical injury arising course employment evidence satisfied 5 july 2013 mr short suffered aggravation injury cervical spine suffered 15 march 2013 application 2017 0344 injury 15 march 2013 although original claim made injury caused nature condition mr short employment claim must considered broadly include claim injury suffered circumstance described 49 reason set satisfied 15 march 2013 mr short suffered injury within meaning act since time date decision review application continues suffer effect injury linfox liable pay compensation respect injury accordance withs 14 application 2016 4343 injury week ending 5 july 2013 basis evidence mr short satisfied 5 july 2013 experienced pain neck loss strength arm whilst moving keg work restricted light duty time underwent mri treated medication pain relief physiotherapy basis evidence professor owler dr pillemer satisfied occasion suffered aggravation injury cervical spine occurred 15 march 2013 application 2016 6017 injury 15 march 2016 reason set satisfied 15 march 2016 mr short suffered injury within meaning act since time date decision review application continues suffer effect injury linfox liable pay compensation respect injury accordance withs 14 application 2017 5781 permanent impairment claim basis evidence dr pillemer associate professor steadman satisfied mr short suffered 28 whole person impairment resulting injury cervical spine 15 march 2013 15 march 2016 note claim compensation referred injury muscle strain suffered 15 march 2016 basis evidence referred satisfied injury properly diagnosed c6 7 right posterior lateral disc protrusion h conclusionapplication 2017 0344 injury 15 march 2013 decision review decision made linfox transport pty ltd 12 january 2017 set aside substitution decided linfox transport pty ltd liable pay compensation mr short accordance reason respect injury c6 7 right posterior lateral disc protrusion occurred 15 march 2013 application 2016 4343 injury week ending 5 july 2013 decision review decision made linfox transport pty ltd 12 january 2017 set aside substitution decided linfox transport pty ltd liable pay compensation mr short accordance reason respect injury aggravation c6 7 right posterior lateral disc protrusion aggravation occurred 5 july 2013 application 2016 6017 injury 15 march 2016 decision review decision made linfox transport pty ltd 23 june 2016 set aside substitution decided linfox transport pty ltd liable pay compensation mr short accordance reason respect injury increased c6 7 right posterior lateral disc protrusion occurred 15 march 2016 application 2017 5781 permanent impairment claim decision review decision made linfox transport pty ltd 18 september 2017 set aside matter remitted linfox transport pty ltd reconsideration accordance reason direction mr short suffered injury namely c6 7 right posterior lateral disc protrusion resulted permanent impairment application 2016 4343 2016 6017 2017 0344 2017 5781within 14 day date decision party may apply tribunal direction relation cost application made linfox transport pty ltd shall pay cost incurred mr short proceeding ul none list style none certify preceding 110 one hundred ten paragraph true copy reason decision herein deputy president j w constance associatedated 2 april 2019date hearing 14 15 16 17 18 may 2018counsel applicant mr k pattendensolicitors applicant santone lawyerscounsel respondent mr c clarksolicitors respondent moray agnew lawyer 1 exhibit j36 2 exhibit j36 3 exhibit j38 4 exhibit j26 5 exhibit j39 6 exhibit j40 7 exhibit j42 8 exhibit a7 9 exhibit r1 10 exhibit a4 9 11 exhibit j14 12 exhibit a4 14 15 13 exhibit a4 16 14 exhibit j19 1 15 exhibit a2 16 exhibit a3 17 exhibit a10 18 exhibit a11 19 exhibit a11 20 transcript 15 may 2018 21 exhibit a9 22 exhibit a9 2 23 exhibit a9 p 4 24 exhibit a9 4 25 comcare guide assessment degree permanent impairment edition 2 1 26 exhibit r7 r8 r9 respectively 27 exhibit r7 4 5 28 exhibit r8 3 29 exhibit r9 2 30 transcript 17 may 2018 31 exhibit r6 32 exhibit r6 5 6 33 transcript 16 may 2018 34 exhibit r10 35 exhibit r11 36 exhibit r10 5 37 exhibit r11 11 38 transcript 18 may 2018 39 exhibit r11 9 40 exhibit r1 error original 41 exhibit r2 error original 42 exhibit r2 43 exhibit r3 error original 44 2016 hca 19 2016 257 clr 468 45 military rehabilitation compensation commission v may 2016 hca 19 2016 257 clr 468at 479 481 42 45 47 46 military rehabilitation compensation commission v may 2016 hca 19 2016 257 clr 468at 481 49 47 seetelstra corporation ltd v bowden 2012 fca 576 2012 206 fcr 207 48 seehumphrey earl ltd v speechley 1951 hca 75 1951 84 clr 126at 133 dixon j said question whether occurs course employment must depend upon answer question whether workman something reasonably required expected authorized order carry duty 49 seeabrahams v comcare 2006 fca 1829 2006 93 ald 147
Robert Half Australia Pty Ltd [2023] FWCA 1686 (9 June 2023).txt
robert half australia pty ltd 2023 fwca 1686 9 june 2023 last updated 9 june 2023 2023 fwca 1686fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementrobert half australia pty ltd ag2023 1649 robert half australia pty ltd administrative service agreement 2023clerical industrydeputy president deancanberra 9 june 2023application approval robert half australia pty ltd administrative service agreement 2023 1 application made approval enterprise agreement known therobert half australia pty ltd administrative service agreement 2023 agreement application made pursuant tos 185of thefair work act 2009 act made robert half australia pty ltd 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 agreement approved accordance withs 54of act operate 16 june 2023 nominal expiry date agreement 8 june 2027 deputy presidentprinted authority commonwealth government printer ae520302pr762939 annexure
AAS v NRMA Ltd [2021] NSWPICMR 11 (19 May 2021).txt
aa v nrma ltd 2021 nswpicmr 11 19 may 2021 last updated 2 june 2021certificate determination merit reviewercitation aa v nrma ltd 2021 nswpicmr 11applicant aasrespondent nrma ltdmerit reviewer roohi koyadate decision 19 may 2021catchwords motor accident merit review amount weekly payment statutory benefit division 3 3 themotor accident injury act 2017 date accident 27 september 2020 decision pay statutory benefit 28 september 2020 31 december 2020 late claim made within 28 day date motor accident act guideline provide exception 28 day time frame discretion held affirm insurer decision determination made reviewable decision affirmedthis decision take effect 14 may 2021 backgroundthere dispute aa claimant insurer payment made section 3 6 3 7 themotor accident injury act 2017 act aa involved motor vehicle accident 27 september 2020 sustained injury 1 january 2021 insurer received claim aa payment statutory benefit act insurer accepted liability agreed pay aa statutory benefit act 1 january 2021 instead date accident 15 january 2021 claimant requested internal review nrma claim team decision pay statutory benefit 28 september 2020 31 december 2020 internal review completed insurer 19 january 2021 affirming nrma claim team decision 19 february 2021 aa made application dispute resolution service front consider submissionsthe claimant submits follows badly injured 3 month energy body enable complete claim payment statutory benefit b therefore entitled payment statutory benefit period 28 september 2020 31 december 2020 denied insurer insurer submits follows insurer note whilst may discretion respect accepting late claim reference section 6 13 1 act however discretion provide respect section 6 13 2 b order income loss payment received date accident application person injury benefit needed lodged within 28 day date accident c application lodged 1 january 2021 aa entitled weekly payment statutory benefit respect period claim made reasonsthe following matter arise determination claim payment statutory benefit made per time frame set act b aa entitled receive statutory benefit period 1 january 2021 sub section 6 13 2 act state 2 claim statutory benefit made within 28 day date motor accident weekly payment statutory benefit payable respect period claim made motor accident guideline clarifies clause 4 15 per division 6 3 section 6 12 section 6 13 act make claim statutory benefit claimant must give notice claim relevant insurer within following timeframes three month date motor accident claim relates b entitled receive weekly payment statutory benefit day date motor accident within 28 day date accident act guideline provide exception 28 day time frame noted respective provision quoted submission aa noted badly hurt 3 month energy body file claim thereby indicating injury medical condition cause delay lodging claim statutory benefit insurer guideline note clause 4 9 insurer must communicate friend claimant afriendassists claimant claim clarifies therefore aa could lodged claim assistance friend able evidence front say aa sought assistance friend making claim based fact evidence front therefore agree insurer assertion discretion permit commencement statutory benefit date accident circumstance claim lodged outside 28 day period find therefore aa satisfy requirement section 6 13 2 act decision insurer deny payment period 28 september 2020 31 december 2020 within provision section 6 13 act accordingly affirm insurer decision conclusionthe reviewabledecision affirmed decision take effect 14 may 2021 legal cost applicable legislation guidelinesin making decision considered following application reply supporting documentation motor accident injury act2017
Addinsall & Ors v Bell [2016] ICQ 2 (19 February 2016).txt
addinsall or v bell 2016 icq 2 19 february 2016 last updated 25 february 2016industrial court queenslandcitation addinsall or v bell 2016 icq 002parties file party file party file party file tony john addinsall appellant vstewart lynn bell respondent c 2015 10edward coleman appellant vstewart lynn bell respondent c 2015 11william james mcdonald appellant vstewart lynn bell respondent c 2015 12mcg quarry pty ltd appellant vstewart lynn bell respondent c 2015 13proceeding appealdelivered 19 february 2016hearing date 9 june 2015member martin j presidentorder matter c 2015 10 appeal dismissed matter c 2015 11 appeal dismissed matter c 2015 12 appeal dismissed matter c 2015 13 appeal dismissed catchword magistrate commencement proceeding duplicity ambiguity uncertainty generally respondent made complaint appellant industrial magistrate dismissed appellant application complaint struck stayed appellant appeal decision respondent filed notice contention respect appeal whether charge referred irrelevant regulation failed disclose offence known law whether charge proceeded basis breach themining quarrying safety health regulation2001 amounted breach themining quarrying safety health act1999 insufficiently precise resulted duplicityacts interpretation act1954mining quarrying safety health act1999 s 6 7 19 1 20 31 32 34 35 36 39 234mining quarrying safety health regulation2001 4 100cases clarke v la franchisupreme court victoria appeal division unreported 10 june 1994diemould tooling service pty ltd v oaten 2008 sasc 197kirk v industrial court nsw 2010 239 clr 531 2010 hca 1nk collins industry pty ltd v president industrial court 2013 qca 179 2014 2 qd r 304st clair v timtalla pty ltd anor 2 2010 qsc 480appearances e wilson qc scott instructed mill oakley appellantsp j davis qc ryan instructed mcinnes wilson respondent 1 5 june 2012 sean scovell working crushing plant moranbah south quarry performing maintenance work plant mr scovell seriously injured result injury died 2 3 june 2013 stewart bell made four complaint themining quarrying safety health act1999 act complaint alleged contravention act respondent appellant appeal caused mr scovell death 3 person charged mcg quarry pty ltd mcg operator quarry b william mcdonald executive officer mcg c tony addinsall site senior executive sse 5 june 2012 edward coleman sse 17 october 2010 14 february 2012 4 person charged applied industrial magistrate charge either struck stayed concise set reason industrial magistrate accepted argument advanced mr bell respondent appeal dismissed application four appeal brought industrial magistrate decision mr bell also filed notice contention appeal argument presented industrial magistrate repeated appeal 5 party proceeded basis decision one appeal would apart additional argument appeal mr coleman determine outcome appeal therefore decided issue one appeal applied appeal tony john addinsallvstewart lynn bellthe legislation 6 complaint assert contravention act order understand argument necessary set part act 1 7 section 6 provides object act b require risk injury illness person resulting operation acceptable level 8 section 7 provides object act achieved imposing safety health obligation person operate mine may affect safety health others mine c making regulation guideline mining industry require promote risk management control 9 section 19 1 defines risk risk injury illness person arising hazard section 20 defines hazard thing situation potential cause injury illness person 10 section 31 provides person safety health obligation imposed must discharge obligation 11 section 32 person safety health obligation imposed may subject 1 safety health obligation 12 discharge obligation act dealt following section 34 obligation discharged regulation guideline made 1 regulation prescribes way achieving acceptable level risk person may discharge person safety health obligation relation risk following prescribed way 2 regulation prohibits exposure risk person may discharge person safety health obligation relation risk ensuring prohibition contravened 3 subject subsection 1 2 guideline state way way achieving acceptable level risk person discharge person safety health obligation relation risk adopting following stated way b adopting following another way achieves level risk equal better acceptable level obligation discharged regulation guideline made 1 section applies regulation guideline prescribing stating way discharge person safety health obligation relation risk 2 person may choose appropriate way discharge person safety health obligation relation risk 3 however person discharge person safety health obligation relation risk person take reasonable precaution exercise proper diligence ensure obligation discharged 13 relevant obligation provided following section 36 obligation person generally 1 worker person mine person may affect safety health person mine result operation following obligation comply act standard work instruction procedure applying worker person form part safety health management system mine b worker person information person need know fulfil obligation duty act protect risk injury illness give information person c take reasonable necessary course action ensure person exposed unacceptable level risk 2 worker person mine following additional obligation mine manage risk injury illness person worker person work activity risk acceptable level b ensure extent responsibility duty allocated worker person risk injury illness person managed work activity worker person control supervision leadership risk acceptable level c extent worker person involvement participate conform risk management practice operation comply instruction given safety health person mine operator site senior executive mine supervisor mine e work mine worker person fit condition carry work without affecting safety health others f anything wilfully recklessly might adversely affect safety health someone else mine 39 obligation site senior executive mine 1 site senior executive mine following obligation relation safety health person may affected operation ensure risk person operation acceptable level b ensure risk person plant substance provided site senior executive performance work someone site senior executive worker acceptable level c develop implement single safety health management system person mine develop implement maintain management structure mine help ensure safety health person mine e train worker competent perform duty f provide adequate planning organisation leadership control operation ii carrying critical work mine requires particular technical competency iii adequate supervision control operation shift mine iv regular monitoring assessment working environment work procedure equipment installation mine v appropriate inspection workplace mine including necessary pre shift inspection 2 subsection 1 c apply site senior executive mine opal gem mine 10 worker employed mine 3 however regulation may specify opal gem mine mentioned subsection 2 mine subsection 1 c applies size nature complexity mine operation 14 section 234 deal proceeding offence 234 proceeding offence 1 prosecution offence act way summary proceeding industrial magistrate 2 1 contravention safety health obligation section 31 may charged single charge act omission giving rise claimed contravention happened within period relation mine 15 themining quarrying safety health regulation2001 regulation also relevant section 4 regulation provides 1 chapter section 60b 1 60c 2 87 5 120 1 2 131 6 138 3 prescribes way achieving acceptable level risk mine circumstance mentioned chapter 2 however chapter deal circumstance expose someone risk mine 3 person may discharge person safety health obligation circumstance mentioned chapter following prescribed way editor note see section 31 discharge obligation act penalty failing discharge obligation complaint 16 order understand argument party necessary term complaint set complaint stewart lynn bell 61 mary street brisbane state queensland public officer within meaning section 142a thejusticesact1886and commissioner within meaning section 234 5 themining andquarrying safety health act1999made 3rd day june 2013 undersigned justice peace said state say charge 1 5 june 2012 near moranbah magistrate court district clermont state queensland tony john adinsall sic person safety health obligation imposed section 39 1 themining quarrying safetyand health act1999did fail discharge said obligation contravention section 31 said act said contravention said act caused death sean raymond scovell particularsthe moranbah south quarry quarry within meaning term 11 said act quarry situated approximately 15 kilometre moranbah quarry site operation defined said act carried quarry site material time 15 february 2012 tony addinsall appointed site senior executive sse quarry purpose said act sse within meaning term 22 said act date including 5 june 2012 sse quarry tony addinsall specific safety health obligation 39 said act relation safety health person affected operation 5 june 2012 fixed crushing plant plant operated quarry site used operation quarry 7 00 pm 5 june 2012 sean raymond scovell working operator plant capacity person whose safety health affected operation mr scovell left designated control room operation plant whilst conveyor conveyor plant operation mr scovell proceeded walkway conveyor 2 plant carrying grease gun purpose performing maintenance plant mr scovell positioned close conveyor near first change direction pulley bearing housing caught operating conveyor system consequence caught operating conveyor system mr scovell suffered fatal injury tony addinsall sse quarry failed ensure required 39 1 said act risk person operation acceptable level person obligation manage risk quarry far reasonably practicable ensure hazard control namely engineering control form guard conveyor system first change direction pulley place required 8 1 themining andquarrying safety health regulation2001 regulation oras sse failed ensure mr scovell given appropriate induction training periodical assessment ensure mr scovell adequate knowledge quarry site procedure practice required 91 regulation oras sse failed ensure mr scovell trained appropriately assessed ensure adequate skill operate plant required 93 1 regulation oras sse failed ensure mr scovell given supervision assistance competent person necessary achieve acceptable level risk required 95 2 regulation oras person obligation act manage risk quarry relation operation plant failed ensure plant operated way created unacceptable level risk required 106 regulation orhe failed ensure quarry written specification plant instruction use available worker operating said plant identified hazard conducting maintenance plant operating required 112 1 2 3 regulation orit necessary manage risk regard nature level risk hazard warning instruction use displayed near plant warned worker conduct maintenance plant whilst operation failed ensure warning instruction use displayed required 112 4 regulation orhe failed ensure quarry written procedure standard work instruction carrying maintenance involving said plant required 114 2 regulation orhe failed ensure person working operator plant including mr scovell aware written procedure standard work instruction carrying maintenance plant required 115 regulation copy document available operator orhe failed ensure written procedure maintenance plant met requirement 116 regulation orhe failed ensure standard work instruction maintenance plant meeting requirement 117 regulation charge 2 5 june 2012 near moranbah magistrate court district clermont state queensland tony john addinsall person safety health obligation imposed section 39 1 e themining quarrying safetyand health act1999did fail discharge said obligation contravention section 31 said act said contravention said act caused death sean raymond scovell particularsthe moranbah south quarry quarry within meaning term 11 said act quarry situated approximately 15 kilometre moranbah quarry site operation defined said act carried quarry site material time 15 february 2012 tony addinsall appointed site senior executive sse quarry purpose said act sse within meaning term 22 said act date including 5 june 2012 sse quarry tony addinsall specific safety health obligation 39 said act relation safety health person affected operation 5 june 2012 fixed crushing plant plant operated quarry site used operation quarry 7 00 pm 5 june 2012 sean raymond scovell working operator plant capacity person whose safety health affected operation mr scovell left designated control room operation plant whilst conveyor conveyor plant operation mr scovell proceeded walkway conveyor 2 plant carrying grease gun purpose performing maintenance plant mr scovell positioned close conveyor near first change direction pulley bearing housing caught operating conveyor system consequence caught operating conveyor system mr scovell suffered fatal injury tony addinsall sse quarry failed train sean raymond scovell competent perform duty operator plant required 39 1 e said act failed ensure mr scovell adequately trained assessed mr scovell adequate knowledge safely operate plant required 93 1 themining andquarrying safety health regulation2001 charge 3 5 june 2012 near moranbah magistrate court district clermont state queensland tony john addinsall person safety health obligation imposed section 39 1 f iii themining quarryingsafety health act1999did fail discharge said obligation contravention section 31 said act said contravention said act caused death sean raymond scovell particularsthe moranbah south quarry quarry within meaning term 11 said act quarry situated approximately 15 kilometre moranbah quarry site operation defined said act carried quarry site material time 15 february 2012 tony addinsall appointed site senior executive sse quarry purpose said act sse within meaning term 22 said act date including 5 june 2012 sse quarry tony addinsall specific safety health obligation 39 said act relation safety health person affected operation 5 june 2012 fixed crushing plant plant operated quarry site used operation quarry 7 00 pm 5 june 2012 sean raymond scovell working operator plant capacity person whose safety health affected operation mr scovell left designated control room operation plant whilst conveyor conveyor plant operation mr scovell proceeded walkway conveyor 2 plant carrying grease gun purpose performing maintenance plant mr scovell positioned close conveyor near first change direction pulley bearing housing caught operating conveyor system consequence caught operating conveyor system mr scovell suffered fatal injury tony addinsall sse quarry failed train sean raymond scovell competent perform duty operator plant required 39 1 f iii said act failed ensure mr scovell adequately trained assessed mr scovell adequate knowledge safely operate plant required 95 2 themining andquarrying safety health regulation2001 charge 4 5 june 2012 near moranbah magistrate court district clermont state queensland tony john addinsall person safety health obligation imposed section 39 1 f iv themining quarryingsafety health act1999did fail discharge said obligation contravention section 31 said act said contravention said act caused death sean raymond scovellparticularsthe moranbah south quarry quarry within meaning term 11 said act quarry situated approximately 15 kilometre moranbah quarry site operation defined said act carried quarry site material time 15 february 2012 tony addinsall appointed site senior executive sse quarry purpose said act sse within meaning term 22 said act date including 5 june 2012 sse quarry tony addinsall specific safety health obligation 39 said act relation safety health person affected operation 5 june 2012 fixed crushing plant plant operated quarry site used operation quarry 7 00 pm 5 june 2012 sean raymond scovell working operator plant capacity person whose safety health affected operation mr scovell left designated control room operation plant whilst conveyor conveyor plant operation mr scovell proceeded walkway conveyor 2 plant carrying grease gun purpose performing maintenance plant mr scovell positioned close conveyor near first change direction pulley bearing housing caught operating conveyor system consequence caught operating conveyor system mr scovell suffered fatal injury tony addinsall sse quarry failed train sean raymond scovell competent perform duty operator plant required 39 1 f iv said act failed ensure mr scovell adequately trained assessed mr scovell adequate knowledge safely operate plant required 8 1 themining andquarrying safety health regulation2001 charge 5 5 june 2012 near moranbah magistrate court district clermont state queensland tony john addinsall person safety health obligation imposed section 36 1 themining quarrying safetyand health act1999did fail discharge said obligation contravention section 31 said act said contravention said act caused death sean raymond scovell particularsthe moranbah south quarry quarry within meaning term 11 said act quarry situated approximately 15 kilometre moranbah quarry site operation defined said act carried quarry site material time 15 february 2012 tony addinsall appointed site senior executive sse quarry purpose said act sse within meaning term 22 said act date including 5 june 2012 sse quarry tony addinsall specific safety health obligation 39 said act relation safety health person affected operation 5 june 2012 fixed crushing plant plant operated quarry site used operation quarry 7 00 pm 5 june 2012 sean raymond scovell working operator plant capacity person whose safety health affected operation mr scovell left designated control room operation plant whilst conveyor conveyor plant operation mr scovell proceeded walkway conveyor 2 plant carrying grease gun purpose performing maintenance plant mr scovell positioned close conveyor near first change direction pulley bearing housing caught operating conveyor system consequence caught operating conveyor system mr scovell suffered fatal injury tony addinsall person affected safety health person quarry failed comply obligation 36 1 said act ensure required item 28 safety health management system quarry plant complied relevant australian standard namely australian standard 1755 2000 conveyor safety guarding fitted conveyor structure first change direction pulley point charge 6 5 june 2012 near moranbah magistrate court district clermont state queensland tony john addinsall person safety health obligation imposed section 36 1 c themining quarrying safetyand health act1999did fail discharge said obligation contravention section 31 said act said contravention said act caused death sean raymond scovell particularsthe moranbah south quarry quarry within meaning term 11 said act quarry situated approximately 15 kilometre moranbah quarry site operation defined said act carried quarry site material time 15 february 2012 tony addinsall appointed site senior executive sse quarry purpose said act sse within meaning term 22 said act date including 5 june 2012 sse quarry tony addinsall specific safety health obligation 39 said act relation safety health person affected operation 5 june 2012 fixed crushing plant plant operated quarry site used operation quarry 7 00 pm 5 june 2012 sean raymond scovell working operator plant capacity person whose safety health affected operation mr scovell left designated control room operation plant whilst conveyor conveyor plant operation mr scovell proceeded walkway conveyor 2 plant carrying grease gun purpose performing maintenance plant mr scovell positioned close conveyor near first change direction pulley bearing housing caught operating conveyor system consequence caught operating conveyor system mr scovell suffered fatal injury tony addinsall person affected safety health person quarry failed comply obligation 36 1 c taking reasonable necessary course action ensure mr scovell exposed unacceptable risk person obligation manage risk quarry far reasonably practicable ensure hazard control namely engineering control form guarding conveyor structure placed site first change direction pulley required 8 1 themining andquarrying safety healthregulation 2001 regulation oras person obligation said act manage risk quarry relation operation said plant failed ensure plant operated way created unacceptable level risk required 106 regulation notice appeal 17 notice appeal seek order magistrate decision set aside charge 1 2 3 4 6 struck alternatively charge 1 6 stayed 18 two issue arise appeal referred party irrelevant regulation issue unintelligibility charge issue deal matter using classification irrelevant regulation issue 19 basis appellant argument magistrate court jurisdiction hear determine charge 1 2 3 4 6 none charge disclose offence known law failed disclose offence argued charge allege offence plead matter relevant different offence 20 matter charge like charge appeal alleged appellant contravened 31 act failing discharge certain specified safety health obligation alleged contravention arose contravention certain provision regulation argued requirement safety health obligation referred charge appellant must comply specified provision regulation word appellant breach obligation simply breaching regulation 21 appellant contends one safety health obligation requires compliance regulation namely 36 1 act section imposes obligation comply act reference act includes regulation 22 argument turn upon construction s 34 35 act argued element safety health obligation may obligation holder required take action prescribed regulation two matter satisfied relevant obligation obligation relation risk andthe relevant regulation prescribes way achieving acceptable level risk relation risk 2 23 appellant relies uponkirk v industrial court nsw 3 andnk collins industry pty ltd v president industrial court queensland 4 proposition obligation relation risk obligation take particular measure prevent identifiable risk eventuating 24 argued supported definition risk act risk defined risk injury illness person arising hazard 5 hazard defined thing situation potential cause injury illness person 6 appellant draw two thing safety health obligation prescribed act directed specifically risk others mention risk thus obligation breached failure act accordance term rather failure comply regulation method achieving acceptable level particular risk prescribed 35 act engaged obligation holder may choose measure wish take respect risk regulation irrelevant 25 reasoning appellant argues none regulation relied specific charge purport prescribe way achieving acceptable level risk simply generic set general requirement irrelevant obligation pleaded 26 respect charge subject appeal appellant made following submission charge 1 charge alleges obligation 39 1 act breached failure take measure required number identified regulation argued failure follow provision breach obligation 39 1 provision prescribe way rendering acceptable risk subject charge complaint served appellant identifiable risk particularised though set better particular identified risk death injury worker quarry particular injury sustained contact working part mechanism plant appellant say none regulation prescribe measure address risk identified prosecution identify specific measure must employed specify general term respect specific risk charge 2 3 4 6 subject submission 27 argument advanced industrial magistrate rejecting argument industrial magistrate relied upon 4 regulation section provides chapter 2 regulation excluding certain section prescribes way achieving acceptable level risk mine circumstance mentioned chapter appellant contends industrial magistrate erred relying provision argued content safety health obligation provided act determined proper construction act regulation appellant argues question whether regulation prescribes way achieving acceptable level risk whether prescribes way achieving acceptable level risk relation risk subject charge 28 industrial magistrate correct rely upon 4 regulation assist construction succeeding section chapter 2 regulation term 4 regulation consistent reference obligation s 34 35 act argument appellant appears unless identification risk referred charge regulation assist cannot correct regulation designed provide delineation mean obligation holder satisfy requirement act would impossible set regulation drafted basis need identify possible risk identify mean identified risk might dealt 29 section 34 act provides regulation prescribes way achieving acceptable level risk person may discharge person safety health obligation relation risk following prescribed way example charge 1 complainant relies upon 8 1 regulation section identify prescribed way reducing risk specifically prescribing measure address risk case hazard posed absence guard conveyor constituted risk 30 construction particular section regulation commences heading chapter 2 regulation way achieving acceptable level risk heading chapter part act 7 may called aid interpreting act regulation 31 order regulation relevant sense breach could support charge complainant need demonstrate relevance breach risk referred charge necessary would possible distinct regulation deal every possible permutation combination risk might arise mine 32 mean complaint general set considered number authority includingkirk v industrial court nsw 14 said statement offence must identify act omission said constitute contravention may expected many instance specification measure taken identify risk addressed 33 similarly innk collins industriesit said relevant breach measure taken act omission employer 34 provision regulation relied upon respondent shown relate specific risk inevitable regulation constructed way may apply risk sought addressed possible find 100 1 b iii regulation specific reference matter relates fact case regulation obligation ensure necessary reasonably practical plant incorporate appropriate engineering control example guard moving part provided 35 appellant demonstrated industrial magistrate fell error construing act regulation application complaint unintelligibility charge issue 36 complaint appellant argument charge globally allege contravention safety health obligation leave open multiple possible formulation number identity contravention charged specific complaint relates use conjunction appellant appears argue industrial magistrate erred proceeding assumption breach regulation identified particular separate offence industrial magistrate go great detail criticism industrial magistrate clear honour relied upon reasoning defendant entitlement complaint identified precision satisfied manner complaint individual charge set 37 use term commended another decision already made comment term repeat 8 11 pleading replete device accurately described viscount simon lc inbonitto v fuerst bros co ltd 1944 ac 75at 82 bastard conjunction commercial court contribution basic english term generally regarded unacceptable commercial document pleading inre moage limited 1998 fca 296 1998 153 alr 711 burchett j said 716 717 although lord reid declared injohn g stein co ltd v hanlon 1965 ac 890at 904 symbol yet part english language long recognized loose expression conveying vague meaning early version found incuthbert v cumming 1855 24 lj ex 198 alderson b said 199 contract face charter party party load full complete cargo sugar molasses lawful produce according contract party either load full complete cargo sugar molasses lawful produce full cargo sugar molasses full cargo lawful produce leaving open every way reason word introduced charter party similarly infurness v charles tennant son co 1892 8 tlr 336 lord herschell construed charter party requiring loading full complete cargo sugar hogshead bag lawful merchandise entitling charterers discharge obligation loading cargo sugar either hogshead bag partly hogshead partly bag expression symbol lord reid preferred call found create difficulty inmillen v grove 1945 viclawrp 45 1945 vlr 259at 260 gavan duffy j referred notice quit invited trouble common deplorable affection form inlooke v parbury henty co pty ltd 1950 viclawrp 18 1950 vlr 94at 98 barry j said agree expression commonly indication draftsman clear mind matter deal cf piesse element drafting pp 52 57 inneame v neame trs 1956 slt 57 majority court read deed meaning nothing lord president lord clyde said 62 would unfortunate confusing expression become common feature scottish marriage contract testamentary settlement lord carmont differed majority went said 64 opinion obscurity radical lord russell concluded judgment comment 64 would venture add judgment phrase best loose ambiguous term would better used formal legal writ affecting patrimonial interest lord sorn joined chorus disapproval said also 64 expression happy one occurring simple gift might give rise serious problem construction opinion expression particularly unhappy used statement claim express precisely foundation proceeding present case explained almost endless series additional alternative allegation would conveyed analysis claim made way 12 inemployers mutual liability insurance co wisconsin v tollefsen 1935 263 nw 376fowler j said 377 manifest confronted task first construing befuddling nameless thing janus faced verbal monstrosity neither word phrase child brain someone lazy dull express precise meaning dull know mean commonly used lawyer drafting legal document carelessness ignorance cunning device conceal rather express meaning view furthering interest client even observed thing statute opinion court statement brief counsel learned 13 honour choleric exegesis might call agreement element difficult register general agreement underlying protest 14 conjunction almost commonplace commercial document form legal drafting used pleading pleading intended clarify concentrate issue action language used leaf open reasonable construction large number permutation combination occurs case pleading join defendant many place thus construction range alleging one defendant five liable defendant liable 38 inclarke v la franchi 9 appeal division supreme court victoria dealt challenge validity charge brought thebuilding society act1986
R v Sabbouh [2022] NSWDC 281 (19 May 2022).txt
r v sabbouh 2022 nswdc 281 19 may 2022 last updated 4 august 2022district courtnew south walescase name r v sabbouhmedium neutral citation 2022 nswdc 281hearing date 17 may 2022date order 19 may 2022decision date 19 may 2022jurisdiction criminalbefore bennett sc dcjdecision aggregate term imprisonment 2 year 4 month served way intensive correction communitycatchwords crime firearm offence unauthorised use possession firearmsentencing penalty intensive correction orderslegislation cited crime act 1900crimes sentencing procedure act 1999firearms act 1996cases cited bonett v r 2013 nswcca 234imbornone v r 2017 nswcca 144veen v queen 1988 hca 14muldrock v queen 2011 hca 39munda v state western australia 2013 hca 38r v cartwright 1989 17 nswlr 243r v quinlin 2021 nswcca 284r v qutami 2001 nswcca 353r v serratore 2000 nswsc 696r v ward 2004 nswsc 420tepania v r 2018 nswcca 247category sentenceparties regina crown nashat sabbouh offender representation tara reddy solicitor odpp michael coroneos counsel offender director public prosecution nsw crown file number 2020 00233197revised ex tempore judgementintroductionnadim sabbouh nashat sabbouh brother appeared sentenced proceeding upon charge arising event 9 august 2020 nadim sabbouh discharged multiple shot firearm suburban street near home occupied nashat sabbouh matter commenced tuesday 17 may 2022 thereafter proceeding nashat sabbouh adjourned judgement sentence today 19 may 2022 nadim sabbouh adjourned 21 june 2022 hearing offence nadim sabbouh charged sequence 3on 9 august 2020 chester hill state new south wale acquire firearm contravention firearm prohibition order force 74 1 firearm act 1996sequence 4on 9 august 2020 chester hill state new south wale fire firearm disregard safety gary minchenko 93g 1 c crime act 1900these subject evidence next occasion included detail charge highlight disparity predicament faced nadim sabbouh contrast brother nashat party concede difference case parity matter significant concern offencesthe offence nashat sabbouh charged sequence 3on 10 august 2020 chester hill state new south wale acquire firearm part without authority 50aa 1 firearm act 1996sequence 4on 9 august 2020 chester hill state new south wale nadim sabbouh fire firearm disregard safety gary minchenko nashat sabbouh knowing said nadim sabbouh committed said serious indictable offence 9 august 2020 assist nadim sabbouh 93g 1 c crime act 1900penaltiesthe maximum penalty offence charged sequence 3 offender imprisonment five year offence charged sequence 4 imprisonment ten year standard non parole period specified either offence purpose ofpart 4div 1acrimes sentencing procedure act 1999 timing plea guiltythe offender pleaded guilty local court burwood committal proceeding offender adhered plea guilty called upon court matter whichpart 3div 1acrimes sentencing procedure act 1999applies accordance withs 25d 2 theactthe discount utility plea guilty 25 sentence would otherwise identified offence admitted pre sentence custody constraintthe offender spent time custody prior determination sentence arrested 10 august 2020 remained custody granted bail supreme court 29 october 2020 period held two month 20 day bail condition imposed restrictive 1 appear court directed 2 good behaviour commit criminal offence 3 reside specified address 4 absent premise required live 8pm 6am except company wife 5 present front premise required live direction police officer believed reasonable ground necessary regard right occupant premise peace privacy confirm compliance curfew condition 6 associate communicate mean legal representative co accused including brother nadim sabbouh witness 7 go within 1 kilometre two nominated address 8 report officer charge granville police station day 8am 8pm 9 use one mobile telephone provide oic service number imei number user password code within 24 hour acquiring resuming possession following release bail offender consent permit police examine content communication made telephone 10 apply new passport travel document time whilst bail 11 enter domestic international airport time whilst bail 12 leave state new south wale time whilst bail 9 november 2021 condition varied exclude curfew condition non association condition condition requiring remain away nominated premise reporting condition condition limiting access phone thus 9 november 2021 present time condition bail 1 appear court directed 2 good behaviour commit criminal offence 3 reside nominated address 4 apply new passport travel document time whilst bail 5 enter domestic international airport time whilst bail 6 leave state new south wale time whilst bail offender counsel urged proposition restrictive condition especially 9 november 2021 treated quasi custody r v quinlin 2021 nswcca 284was offered support para 88 following judgement provides 88 nevertheless occasion bail condition harsh restrictive may require conclusion least part period bail treated notional equivalent custody conveniently referred quasi custody onus establishing whether offender bail condition amount quasi custody fall offender balance probability garling j explained concurrence basten ja la v r 43 sentencing court entitled take account condition bail granted offender awaiting sentence condition may particularly harsh restrictive term often referred quasi custody prior court taking account condition quasi custody basis reducing sentence commencing sentence earlier date otherwise would evidentiary foundation establish nature kind effect restriction seebonett v r 2013 nswcca 234at 50 adamson j said whether restriction outside gaol amount quasi custody question fact see exampler v cartwright 1989 17 nswlr 243at 258 per hunt badgery parker jj andr v serratore 2000 nswsc 696per kirby j 31 35 weight given quasi custody reducing sentence imposed matter discretion sentencing judge although quasi custody may relevant consideration mandatory relevant consideration however circumstance evidentiary foundation taken account sentencing judge may obliged circumstance regard even specifically asked 89 assessment whether person bail condition amount quasi custody whether extent allowance made backdating sentence discretionary decision made sentencing judge light particular fact circumstance case decision reviewable court accordance principle ofhouse v king crown submitted condition restrictive amount quasi custody attracting reduction sentence earlier commencement date otherwise would apply agree initial condition impose significant constraint upon offender liberty little one year brought account part punishment suffered offender process synthesis factor upon court engaged without quantification period incarceration might represent considered representation offender wife offender document shall come accept impact bail condition upon life challenging might found extend level circumstance afflicting applicant inr v quinlinibid persuaded sentencing judge reduce backdate sentence selected decision disrupted appellate court although satisfied course imprisonment appropriate case intend sentence served way intensive correction order commence today bringing account punishment implicit bail condition referred respect aggregate sentence shall announce due course pursuant 53acrimes sentencing procedure act 1999 factsthe accuracy detail statement agreed fact presented crown acknowledged behalf offender without qualification offender give evidence decision entitled make enlivened consideration guidance offered smart aj inr v qutami 2001 nswcca 353and recently offered wilson j inimbornone v r 2017 nswcca 144 regarding court representation made bringing authority account come view notwithstanding given sworn evidence faced cross examination accept bring account favourable representation making challenged crown shooting prosecution offender brother arose evening 9 august 2020 9 20pm alpha street chester hill 9 august 202 nashat sabbouh friend aaren minchenko victim nephew friend two three year 23 june 2020 aaren minchenko offender together offender volkswagen golf involved serious car accident according aaren minchenko offender driving vehicle time hold valid driver licence police arrived aaren minchenko nominated driver vehicle offender would charged aaren minchenko charged serious criminal offence including dangerous driving occasioning grievous bodily harm early august 2020 victim observed nephew asked going nephew disclosed charged relation driving incident took blame despite driver victim tried persuade nephew go police tell truth offered help nephew called offender spoke issue offender agreed speak issue person victim offered drive offender home granville police station 25 minute phone call 9 20pm victim arrived offender house sat alone vehicle called offender 9 21pm offender brother came outside offender victim following brief conversation offender hey man ya victim yeah man ready go offender worry brother want talk quickly offender joined brother stood driver door window victim vehicle brother said let talk victim said talk nash talk station offender brother said jump car let talk like men come inside talk victim said want talk jump car offender brother said aaren victim said police station minute later vehicle pulled middle road near victim vehicle stopped offender approached driver side window vehicle spoke person inside crown allege person link made contribution event co offender brother remained driver side window victim vehicle said thing come outside come outside 9 24 20 time taken closed circuit television image victim decided leave started drive away offender remained driver side window second vehicle co offender brother moved toward offender offender brother looked direction victim car drove away slowly paced street direction 9 24 57 co offender brother reached pocket produced firearm offender heard closed circuit television product yelling oi oi oi oi brother fired shot direction victim vehicle alpha street six shot heard closed circuit television product victim heard gunshot felt vehicle struck bullet conduct founding offence offender brother charged offender brother moved alpha street opposite direction running jogging away shot fired police arrived 15 minute later 9 36pm police recovered five 9 millimetre parabellum cartridge case roadway ballistics examination confirmed fired weapon examination victim car revealed three impact mark consistent caused bullet passenger side vehicle two located passenger side back tray utility one located cabin passenger side door police obtained search warrant offender house alpha street chester hill wife told police husband people lived address police located 9 millimetre parabellum calibre detachable box magazine designed suit self loading pistol circumstance founding sequence 3 offender item loosely wrapped tissue paper inside plastic sandwich bag placed inside loose piece exterior wall cladding package tested found positive offender dna fingerprint agreed item used shooting placed location found offender positive act assistance assist brother avoid justice offender arrested search warrant residence 10 august 2020 taken bankstown police station police seized mobile phone participated electronically recorded interview made following assertion asked whereabouts brother 9 august 2020 although expressed assertion offender clearly inquiry made interview term offender exercised right silence relation specific allegation investigation offender statement interview proved misleading untruthful whereabouts whereabouts brother part conduct found offence accessory fact brother arrested 16 september 2020 included crown material video recording captured closed circuit television premise nearby incident occurred uncontroversial depicts victim motor vehicle travelling modest speed along street offender brother seen walk direction offender seen walking also direction proceed fashion voice heard acknowledged offender consistent calling brother attempting attention brother disappears field vision right whereupon offender voice heard uttering word described statement fact heard rapid succession six shot discharged according agreed statement fact noted five shot casing retrieved three projectile struck victim vehicle recording concludes offender jogging opposite direction followed brother assessment gravity offendingto ass gravity offending underpinning charge first noted offence charged sequence 3 acquiring firearm part without authority part conduct found charge accessory fact offence discharging firearm sequence 4 context offence occurred began involvement offender motor vehicle collision drove without licence agreement victim nephew take responsibility driving followed decision nephew consultation family correct information given police investigating collision course offender brother sought thwart confrontation victim driver uncle culminating discharge weapon six time three shot striking victim vehicle drove cctv depicts vehicle departing sedate pace disappears right screen context concludes offender misrepresentation interview brother whereabouts time offence also part conduct founding sequence 4 intepania v r 2018 nswcca 247johnson j dealt assessment objective gravity moral culpability standard non parole period offence without standard non parole period dealing provision introducing standard non parole period honour continued 112 sentencing offence whether standard non parole period offence court make assessment objective gravity offence applying general law principle factor bear upon seriousness offence taken account unless excluded statute factor motive provocation non exculpatory duress may taken account way regard may factor personal offender causally connected materially contributed commission offence including case mental disorder mental impairment 113 concept moral culpability used sentencing judge case submission court term moral culpability used somewhat flexible way part general law sentencing term may found several decision high court inveen v queen 1988 hca 14 observed 476 477 mental abnormality may diminish moral culpability antecedent criminal history may illuminate moral culpability 114 inmuldrock v queen 2011 hca 39 140 58 observed applicant limited moral culpability may mean retribution denunciation require significant emphasis 115 inmunda v state western australia 2013 hca 38 621 57 said circumstance appellant affected environment abuse alcohol common must taken account assessing personal moral culpability must balanced seriousness offending assessed objective gravity misconduct upon offender engaged mid range significantly toward lower end range misconduct submitted behalf accept crown contention objective gravity offending placed level reaching view considered crown submission nature predicate offence respect offender face accessorial reliability circumstance brought victim offender brother proximity absence circumstance might ameliorate offender moral culpability revealed role extent assessment objective gravity must made respect offence find offence sequence 3 lower sequence 4 considering one aspect assistance offender provided brother consider placement magazine pistol used shooting protect discovery serious matter offender aware significance item predicate offence upon count 4 charged commission circumstance offender well knew called brother could desist accept offender support brother decision made produce discharge weapon graphically depicted cctv material might suggest offender burdened mental health consequence difficulty formative year might reduce assessment moral culpability modest record antecedent offence bear significantly upon assessment moral culpability assessment objective gravity ultimately however offender must face consequence step took assist brother aware circumstance leading confrontation victim discharge weapon six time direction victim drove scene gained advantage avoiding arrangement attend upon police put right circumstance friend victim nephew take blame driving offence material followed disclosure offender driver collision leading grievous bodily harm another simply must put thorough analysis information one side thus upon consideration assessed seriousness misconduct offenderthe offender born second part 1999 therefore approaching 21 year age time offence 23 year age married daughter born earlier year antecedent offence limited driving licence cancelled suspended possession prescribed restricted substance experience custody limited remand period granted bail referred record misconduct gaol faced detention application allegedly breaching bail condition 23 november 2021 alleged occurred changed address without notifying police supervising bail police attended nominated address found vacant learned relocation upon canvas neighbour affidavit provided wife represents pregnancy seven month decision change address certain lease arrangement notification goal lawyer advice remain change address notification without furniture removed new address mattress slept interim might visible outside inspection premise appears unchallenged crown bail continued sentence assessment report prepared upon interview offender contact partner record raised police corrective service informs life wife new born baby close supportive relationship extended family fulltime employment tree lopper minimal history offending attributed expression disappointment offence claimed accept know co offender brother firearm person made every attempt stop brother discharging firearm find fact admitted took firearm home said attempt conceal weapon behalf co offender pause note come decision upon term charge agreed statement fact assert took firearm home box magazine firearm purpose attended meeting victim alpha street chester hill speak without intention violence accept showed insight impact offending upon victim community safety attributed following believe happened nothing meant conversation look happened agreeable intervention community service work previously supervised assessed low risk offending provided letter written 8 february 2022 express apology action offered information allow court insight time spent custody critical wakeup call say circumstance incarceration included confinement due covid inappropriate response corrective service officer given task supervising could one point green clothing whatever reason left wear street clothes attracted unwanted attention inmate criticises unhygienic facility forced take shower bail learned wife expecting baby since born progressed improving circumstance day writes always employed full time asserts made promise proceeding concluded continue work toward changing life better writes difficulty landlord police knocking door confirm compliance bail writes stress occasioned heavily pregnant wife read extend blame officer performing duty required accepts consequence wife suffered product criminality paraphrase record perception provided court reference provided principal company employed carpenter author speak positive term offender personally employee reference provided friend known offender five year assessed person dependable hardworking positive member community reference managing landlord premise alpha street chester hill document speaks offender wife relationship tenant speaks well might sit inconsistent contained offender letter closer analysis whatever stress wife experiencing embarrassment arising obligation police attend verify bail compliance discourage author letter providing reference support another reference friend known offender three half year speaking well offender family reference provided another brother co offender speaking quality characteristic positive term character reference provided current employer work tree lopper positive term finally document provided offender wife speaking life together understanding gravity misconduct quality motivated gifted young man strong work ethic good father good husband attribute expression remorse speaks bail monitoring undertaken embarrassment caused landlord speaks growth continued present time submissionssubmissions writing provided crown counsel appearing offender crown reminds background offending crown note imposition intensive correction order one available brother assessment sentence upon material far conceded counsel submission made first occasion question raised application 5crimes sentencing procedure act 1999in respect accepted must remain gaol conclude custodial component sentence yet identified option intensive correction order though available offender crown reminds maximum penalty pre sentence custody addressed objective seriousness already referred crown noted offence accessory fact extends across array misconduct simple larceny maximum penalty five year broad range predicate principal offence part premise crown urge view objective seriousness offence misconduct least respect accessorial charge placed mid range crown reminded level knowledge offender principal predicate offence already referred assistance give brother summarised including taking box magazine essential component pistol provision misleading untruthful information crown concedes motivation must arisen relationship brother submits lessen seriousness offence drawing upon decision r hulme j inr v ward 2004 nswsc 420 crown noted evidence threat pressure conduct part offender brother matter upon already made comment crown concedes absence aggravating factor crown concedes absence significant previous record plea guilty availability discount 25 21d 2 crime sentencing procedure act 1999 reminded purpose sentencing consideration must brought account determining whether sentence may served way intensive correction order crown made submission finding offender demonstrated contrition remorse offered behalf offender address present circumstance including family relationship employment history limited antecedent record said voluntarily participated interview police overlooked response included representation assist brother avoid detection upon crown relies part conduct sequence 4 submission include reference prior custody bail condition absence aggravating factor mitigating factor absence significant prior record 21a 3 e prior good character 23a 3 f though qualified extent prior modest record misconduct involved step avoid consequence driving collision resulted injury another unlikely offend 23a 3 g prospect rehabilitation 23a 3 h remorse 23a 3 plea guilty 23a 3 k provision set forth thecrimes sentencing procedure act 1999 reminded principle totality must applied aggregate sentence identified involves modest aggregation individual sentence identified offence reflect although principle parity disregarded disparity case brother requires significantly different outcome party ad idem upon point prior example sentence similar prosecution include decision intensive correction order employed submitted community correction order would suffice instance upon application 5crimes sentencing procedure act 1999 findingsi dealt assessment objective gravity moral culpability agree reason discussed offender moral culpability misconduct assessed significant crown submits high level would place purpose sentencing articulated in 3acrimes sentencing procedure act 1999require comment general deterrence must attract significant weight particularly considering proliferation offence involving discharge firearm public intending harm others endeavour protect perpetrator consequence misdeed doubt reason relationship brother justify finding general deterrence attract lesser weight need personal deterrence constrained case considering offender progress towards rehabilitation little risk harm offender upon assessment progress must made accountable done must denounced must recognition harm done victim community assist brother escape consequence would impact upon victim upon community judgement accept submission urging imposition community correction order satisfied penalty imprisonment appropriate however accept sentence may served way intensive correction order brought account 66crimes sentencing procedure act 1999 community safety paramount consideration satisfied intensive correction order likely address risk offending satisfied provided sufficient material come view ordersmy order offender convicted offence pleaded guilty local court adhered court sentence identified appropriate follow offence sequence 3 acquire firearm part sentence 1 year 3 month term reduced discount 25 plea guilty offence accessory fact sentence 2 year 3 month term reduced discount 25 plea guilty decided impose aggregate sentence imprisonment sentence impose one 2 year 4 month commence today 19 may 2022 expire 18 september 2024 aggregate sentence served way intensive correction order pursuant 7crimes sentencing procedure act 1999 order commences today pursuant tos 73standard condition apply thus offender must commit offence must submit supervision pursuant tos 73a 2 theactthe offender perform 50 hour community service concluding completion document registry offender contact community correction office bankstown necessary arrangement order sought term sentence repeated information party offender consequence breach explained exhibit remain file amendments04 august 2022 corrected typo section offender charged
Australian Chamber of Commerce and Industry v Australian Council of Trade Unions [2015] FCAFC 131 (14 September 2015).txt
australian chamber commerce industry v australian council trade union 2015 fcafc 131 14 september 2015 last updated 14 september 2015federal court australiaaustralian chamber commerce industry v australian council trade union 2015 fcafc 131citation australian chamber commerce industry v australian council trade union 2015 fcafc 131parties australian chamber commerce industry v australian council trade union construction forestry mining energy union mining energy division construction forestry mining energy union construction division construction forestry mining energy union forestry division association professional engineer scientist manager australia shop distributive allied employee association victorian branch shop distributive allied employee association western australia branch shop distributive allied employee association south australia northern territory broken hill branch automotive food metal engineering printing kindred industry union known australian manufacturing worker union automotive food metal engineering printing kindred industry union known australian manufacturing worker union vehicle division australian municipal administrative clerical service union australian worker union textile clothing footwear union australia australian nursing midwifery federation fair work commissionfile number nsd 569 2015judge north buchanan flick jjdate judgment 14 september 2015catchwords industrial law inclusion modern award allowance employee county yancowinna new south wale whether allowance prohibited bysection 154 1 thefair work act 2009 cth allowance properly construed disability allowance undersection 139 1 g iii allowance prohibited bysection 154 1 legislation act interpretation act 1901 cth 23 b fair work act 2009 cth ch 2 pt 2 3 div 2 s 134 134 1 g div 3 subdiv 136 136 1 136 1 136 1 b 136 2 136 2 137 subdiv b 139 139 1 139 1 g 139 1 g iii 139 2 subdiv 154 154 1 154 1 154 1 b 154 2 284 1 e workplace relation act 1996 cth 354 4 f iii fair work bill 2008 cth supplementary explanatory memorandumcases cited australian builder labourer federated union worker v transfield construction pty ltd 1994 74 waig 667australian railway union v commissioner railway new south wale 1939 41 car 614australian worker union wa branch v western mining corporation ltd 1995 75 waig 167carr v western australia 2007 hca 47 2007 232 clr 138chief commissioner police v kerley 2008 fcafc 41 2008 171 ir 420civil service association western australia inc v public service commission 1994 74 waig 901commonwealth railway commissioner v australian worker union 1932 31 car 815construction forestry mining energy union v mammoet australia pty ltd 2013 hca 36 2013 248 clr 619independent commission corruption v cunneen 2015 hca 14 89 aljr 475manildra flour mill manufacturing pty ltd v national union worker 2012 fca 1010mutual acceptance co ltd v federal commissioner taxation 1944 hca 34 1944 69 clr 389re 4 yearly review modern award transitional provision 2014 fwcfb 7767re 4 yearly review modern award transitional provision 2015 fwcfb 644re 4 yearly review modern award transitional provision 2015 fwcfb 28354 yearly review modern award transitional provisionspr561201 determination 7 may 2015 general retail industry award 2010 cth 4 yearly review modern award transitional provisionspr561203 determination 7 may 2015 fast food industry award 2010 cth 4 yearly review modern award transitional provisionspr561204 determination 7 may 2015 hair beauty industry award 2010 cth 4 yearly review modern award transitional provisionspr561205 determination 7 may 2015 pharmacy industry award 2010 cth date hearing 21 august 2015place sydneydivision fair work divisioncategory catchwordsnumber paragraph 54counsel applicant mr shariff mr kanesolicitor applicant australian business lawyer advisorscounsel first second third fourth fifth sixth eighth ninth tenth eleventh twelfth thirteenth fifteenth respondent mr taylor sc mr fagirsolicitor first respondent australian council trade unionssolicitor second respondent construction forestry mining energy union mining energy divisionsolicitor third respondent construction forestry mining energy union construction divisionsolicitor fourth respondent construction forestry mining energy union forestry divisionsolicitor fifth respondent association professional engineer scientist manager australiasolicitor sixth respondent shop distributive allied employee association victorian branchsolicitor eighth respondent shop distributive allied employee association south australia northern territory broken hill branch solicitor ninth respondent automotive food metal engineering printing kindred industry union known australian manufacturing worker unionsolicitor tenth respondent automotive food metal engineering printing kindred industry union known australian manufacturing worker union vehicle divisionsolicitor eleventh respondent australian municipal administrative clerical service unionsolicitor twelfth respondent australian worker unionsolicitor thirteenth respondent textile clothing footwear union australiasolicitor fifteenth respondent australian nursing midwifery federationcounsel seventh respondent seventh respondent filed submitting noticecounsel sixteenth respondent sixteenth respondent filed submitting noticein federal court australianew south wale district registryfair work divisionnsd 569 2015between australian chamber commerce industryapplicantand australian council trade unionsfirst respondentconstruction forestry mining energy union mining energy divisionsecond respondentconstruction forestry mining energy union construction divisionthird respondentconstruction forestry mining energy union forestry divisionfourth respondentassociation professional engineer scientist manager australiafifth respondentshop distributive allied employee association victorian branchsixth respondentshop distributive allied employee association western australia branchseventh respondentshop distributive allied employee association south australia northern territory broken hill branch eighth respondent automotive food metal engineering printing kindred industry union known australian manufacturing worker unionninth respondent automotive food metal engineering printing kindred industry union known australian manufacturing worker union vehicle divisiontenth respondentaustralian municipal administrative clerical service unioneleventh respondentthe australian worker uniontwelfth respondenttextile clothing footwear union australiathirteenth respondentaustralian nursing midwifery federationfifteenth respondentfair work commissionsixteenth respondentjudges north buchanan flick jjdate order 14 september 2015where made sydneythe court order application dismissed note entry order dealt rule 39 32 thefederal court rule 2011 federal court australianew south wale district registryfair work divisionnsd 569 2015between australian chamber commerce industryapplicantand australian council trade unionsfirst respondentconstruction forestry mining energy union mining energy divisionsecond respondentconstruction forestry mining energy union construction divisionthird respondentconstruction forestry mining energy union forestry divisionfourth respondentassociation professional engineer scientist manager australiafifth respondentshop distributive allied employee association victorian branchsixth respondentshop distributive allied employee association western australia branchseventh respondentshop distributive allied employee association south australia northern territory broken hill branch eighth respondent automotive food metal engineering printing kindred industry union known australian manufacturing worker unionninth respondent automotive food metal engineering printing kindred industry union known australian manufacturing worker union vehicle divisiontenth respondentaustralian municipal administrative clerical service unioneleventh respondentthe australian worker uniontwelfth respondenttextile clothing footwear union australiathirteenth respondentaustralian nursing midwifery federationfifteenth respondentfair work commissionsixteenth respondentjudges north buchanan flick jjdate 14 september 2015place sydneyreasons judgmentnorth j agree buchanan j application dismissed also agree reason give order certify preceding one 1 numbered paragraph true copy reason judgment herein honourable justice north associate dated 14 september 2015in federal court australianew south wale district registryfair work divisionnsd 569 2015between australian chamber commerce industryapplicantand australian council trade unionsfirst respondentconstruction forestry mining energy union mining energy divisionsecond respondentconstruction forestry mining energy union construction divisionthird respondentconstruction forestry mining energy union forestry divisionfourth respondentassociation professional engineer scientist manager australiafifth respondentshop distributive allied employee association victorian branchsixth respondentshop distributive allied employee association western australia branchseventh respondentshop distributive allied employee association south australia northern territory broken hill branch eighth respondent automotive food metal engineering printing kindred industry union known australian manufacturing worker unionninth respondent automotive food metal engineering printing kindred industry union known australian manufacturing worker union vehicle divisiontenth respondentaustralian municipal administrative clerical service unioneleventh respondentthe australian worker uniontwelfth respondenttextile clothing footwear union australiathirteenth respondentaustralian nursing midwifery federationfifteenth respondentfair work commissionsixteenth respondentjudges north buchanan flick jjdate 14 september 2015place sydneyreasons judgmentbuchanan j order made 7 may 2015 full bench fair work commission fwc added term broken hill term four modern award made thefair work act 2009 cth fw act follows broken hillan employee county yancowinna new south wale broken hill addition payment paid allowance exigency working broken hill 4 28 standard rate order made similar term appeared four modern award expressed operate 31 december 2014 earlier provision applied five year 1 january 2010 four modern award took effect pursuant 154 2 fw act provides 154 term contain state based difference state based difference term may included 2 however modern award may include state based difference term term included award award modernisation process b accordance subsection 3 5 year starting day first modern award included term came operation apparently view taken time allowance question may state based difference term whatever reason seems fwc hold longer hold view general rule 154 1 154 2 provided limited five year exception addressed due course whether broken hill term state based difference term central matter present proceeding directed award modernisation process commenced theworkplace relation act 1996 cth continued fw act division 3 part 2 3 chapter 2 fw act state number matter must may must included subject term modern award relevantly moment 136 1 b 2 137 provide included modern awardsterms may must included 1 modern award must include term permitted required subdivision b deal term may included modern award b subdivision c deal term must included modern award note omitted term must included 2 modern award must include term contravene subdivision deal term must included modern award note provision referred subsection 2 limit term included modern award provision referred subsection 1 term contravene section 136 effecta term modern award effect extent contravenes section 136 section 154 subdivision division 3 part 2 3 chapter 2 fw act section 154 1 154 2 provides exception set provides 154 term contain state based differencesgeneral rule state based difference term must included 1 modern award must include term condition employment state based difference term determined reference state territory boundary b expressed operate one every state territory emphasis original present proceeding court asked declare broken hill term fall within 154 1 b therefore prohibited 136 2 effect reason 137 submission also made effect fwc exceeded jurisdiction power prescribed broken hill term accepted contention requires separate attention primary submission upheld court deal contested issue operation 154 1 b noted 154 1 b contemplate different enquiry section 154 1 example would extend prohibit term condition fixed differently fixed different time different state territory award modernisation common federal award apply one state territory contain term fixed one state territory different time different award proceeding clearly enough difference difference procedural treatment state based origin case concerned matter directly 154 1 eliminates determination term condition employment reference state territory boundary term 154 1 b le clear might one reading 154 1 b applies term onlystate based term term apply generally state territory nothing say term apply generally state territory view would considerable complete overlap 154 1 overlap would extend example case term fixed different time different state territory term would fall 154 1 necessarily 154 1 b view 154 1 b requires term exist modern award expressed apply uniformly throughout australia regardless local difference condition supplementary explanatory memorandum directed thefair work bill 2008 cth bill amendment proposed present term 154 said 69 state based differences69 item 4 designed make clear requirement term modern award expressed operate state territory necessarily mean term always effect state territory circumstance specific state territory example modern award could contain provision allowed payment remote location allowance tropical allowance even provision would effect particular state territory supplementary explanatory memorandum view cast helpful light issue arises consideration case could interpreted way distraction attempt resolve ambiguity extrinsic material term statute must construed extrinsic material question preferable construction 154 1 b addressed two matter relevant assessment question fact present case may usefully referred one general origin clause like broken hill term addressed particular circumstance working unattractive taxing location way matter referred fw act district locality zone isolation climatic allowance feature federal state award landscape long time variously justified mean compensation additional difficulty discomfort associated particular work legitimate mean inducing employee work particular area present case origin kind may also seen language broken hill term allowance exigency working broken hill 1932 drake brockman j sitting commonwealth court conciliation arbitration referred second aspect inducement connection railway construction development incommonwealth railway commissioner v australian worker union 1932 31 car 815 820 zone district isolation climatic allowance variously called many year granted australia historically appear granted purpose inducing labour go remote locality pioneering period tendency appears diminish amount locality concerned became settled social amenity increased improved allowance sum deemed sufficient attract labour naturally varied time time place place factor consistent appears amount induce required labour go locality concerned factor naturally varied condition labour market different locality time factor mentioned seems prevailing influence period railway construction determining varying amount allowance main still exist drake brockman j repeated thesis seven year later observed inaustralian railway union v commissioner railway new south wale 1939 41 car 614 620 climatic allowance provided award reading clause appear allowance disability climate nothing else however evidence argument proceeding think word used loosely better one would inducement whatever pragmatic foundation allowance kind became commonplace federal award federal state public sector employment form loading paid climatic condition isolation many year example special arrangement made employee northern territory federal public servant new south wale common western district allowance paid e g new south wale public servant including teacher industrial award history new south wale county yancowinna e broken hill together neighbouring town silverton surround special case new south wale award usually excluded county yancowinna coverage operation altogether leaving local arrangement negotiated directly employer auspex barrier industrial council county yancowinna separated rest new south wale time also observing australian central time standard daylight rather australian eastern time special award arrangement longer exist four modern award issue present case apply county yancowinna equally rest australia unsurprising however clause like broken hill term survived transition suggested present case term meritless would question fwc retention clause tends proposition rather argument present case clause allowance preserve abolished 154 1 b interest uniformity contention appears fw act continues nevertheless recognise historical practical significance disability based location section 139 subdivision b division 3 part 2 3 chapter 2 fw act state kind award term may included modern award amongst list matter set 139 1 j appears 139 1 g follows term may included modern award general 1 modern award may include term following matter g allowance including following expense incurred course employment ii responsibility skill taken account rate pay iii disability associated performance particular task work particular condition location section 139 1 g iii particular interest reference particular location raise important question operation effect 154 1 b present case broken hill term properly described disability allowance theacts interpretation act 1901 cth 23 b word plural number include singular reference particular location 139 1 g iii therefore includes reference particular location unless contrary intention appears see contrary intention 139 applicant answer 154 necessary work confining term kind referred 139 1 g iii within limit imposed 154 1 b shall return question first important establish merely academic section 139 1 g iii particular significance present case unless broken hill term may first fairly described disability allowance particular location view may described disabling feature allowance provided expressed percentage amount rather money figure many traditional allowance expressed inmutual acceptance co ltd v federal commissioner taxation 1944 hca 34 1944 69 clr 389 latham cj described characteristic allowance incident employment follows 396 397 word used connection relation employer employee mean opinion grant something additional ordinary wage purpose meeting particular requirement connected service rendered employee compensation unusual condition service expense allowance travel allowance entertainment allowance payment additional ordinary wage made purpose meeting certain requirement service tropical allowance overtime allowance extra pay way dirt money allowance compensation unusual condition service far fw act concerned 139 2 requires term may included modern award general 2 allowance included modern award must separately clearly identified award requirement clearly met indeed clause described fwc broken hill allowance describes payment provides allowance however disability allowance fact may stage element inducement allowance kind signify compensate real disability disadvantage view reference exigency working broken hill extra amount payable adequate apt convey substance allowance disability allowance work particular location classical reference dictionary definition would suggest compensation demand working broken hill neither add detracts plain meaning present context earlier history referred additional rate inducement element overcome circumstance present allowance expressed unarguably form compensation burden employee rather aid employer recruit attract labour therefore difficulty concluding broken hill term disability allowance particular location within meaning 139 1 g iii accordingly term may prima facie least included modern award next question returning matter upon party concentrated whether 154 1 b nevertheless directs must longer included modern award debate fact term appears expressly authorised 139 neutral circumstance least introduces circumstance competing legislative priority purpose may need assessed incarr v western australia 2007 hca 47 2007 232 clr 138 gleeson cj said 5 passage adopted cited unanimous judgment high court inconstruction forestry mining energy union v mammoet australia pty ltd 2013 hca 36 2013 248 clr 619at 40 general rule interpretation however may little assistance statutory provision strike balance competing interest problem interpretation uncertainty far provision go seeking achieve underlying purpose object act legislation rarely pursues single purpose cost problem one doubt extent legislation pursues purpose stating purpose unlikely solve problem emphasis added applicant thesis 154 1 b prevents modern award term expressed operatein even throughout one state territory ensures term must operate every state territory indeed language broken hill term county yancowinna new south wale said identify particular vice 154 1 b directed term clearly operated one state applicant also appealed idea 154 1 b given meaning co extensive 154 1 support construction construction 154 1 b urged applicant present case would render impermissible disability allowance expressed reference location location state territory number state territory unless language even substance term exclude state territory e included every state territory test would satisfied naming eight location particular allowance applied e least one state territory lesser number suggestion appeared proper way comply 154 1 b would describe location feature accompanying circumstance heat cold isolation etc rather identify geographically individually case tropical allowance fact allowance would never paid tasmania ignored geographical reality expressed term similarly allowance working snow could regarded applicable interest uniformity northern territory employee working expressly excluded entitlement approach suggests drafter fw act set elevate form substance find suggested approach artificial accept intended section 134 1 g fw act state particular objective 134 modern award objectivewhat modern award objective 1 fwc must ensure modern award together national employment standard provide fair relevant minimum safety net term condition taking account g need ensure simple easy understand stable sustainable modern award system australia avoids unnecessary overlap modern award provision one statute construed harmoniously possible rule construction provision must read though mutually exclusive though wholly distinct separate field operation independent commission corruption v cunneen 2015 hca 14 89 aljr 475at 31 39 40 view limb 154 1 directed general objective although address question reference different possibility intended exclude objective prohibit difference entitlement state territory e eliminate state based difference two element 154 1 address different matter section 154 1 address manner determination term including possibility entitlement applying one state one might fixed differently others e g different time different amount subject different qualifying condition etc section 154 1 b prevents possibility term condition might apply e matter general application one every state territory thereby discriminating facially least employee state territory excluded particularly proposition modern award term must operate uniformly throughout australia view impossible reconcile 139 1 g iii although note 136 indicates 136 2 incorporates limit imposed 154 prevails permissive mandatory provision referred 136 1 conflict obvious intent 139 1 g iii construction 154 1 b urged applicant stark take account resolved finding applicant construction 154 1 b otherwise 139 1 g iii would useful work unless achieved contrivance artifice section 154 view prohibit disability allowance forparticularlocations foraparticular location restriction upon award compensation matter found limitation expressed 139 allowance disability applies particular location location separately clearly expressed modern award view 154 1 apply prevent prohibit broken hill term would dismiss application certify preceding forty 40 numbered paragraph true copy reason judgment herein honourable justice buchanan associate dated 14 september 2015in federal court australianew south wale district registryfair work divisionnsd 569 2015between australian chamber commerce industryapplicantand australian council trade unionsfirst respondentconstruction forestry mining energy union mining energy divisionsecond respondentconstruction forestry mining energy union construction divisionthird respondentconstruction forestry mining energy union forestry divisionfourth respondentassociation professional engineer scientist manager australiafifth respondentshop distributive allied employee association victorian branchsixth respondentshop distributive allied employee association western australia branchseventh respondentshop distributive allied employee association south australia northern territory broken hill branch eighth respondent automotive food metal engineering printing kindred industry union known australian manufacturing worker unionninth respondent automotive food metal engineering printing kindred industry union known australian manufacturing worker union vehicle divisiontenth respondentaustralian municipal administrative clerical service unioneleventh respondentthe australian worker uniontwelfth respondenttextile clothing footwear union australiathirteenth respondentaustralian nursing midwifery federationfifteenth respondentfair work commissionsixteenth respondentjudges north buchanan flick jjdate 14 september 2015place sydneyreasons judgmentflick j section 154 1 b thefair work act2009
Industrial Relations Commission Decision 222_1990 [1990] AIRC 185; (7 March 1990).txt
industrial relation commission decision 222 1990 1990 airc 185 7 march 1990 industrial relation commission decision 222 1990 dec 222 90 print j1786 australian industrial relation commissionindustrial relation act 1988s 113applications variation australian federation air pilot c no 30186 8 1990 ansett airline australia pilot award 1989 1 odn c 36153 1989 australian airline pilot award 1989 2 odn c 36153 1989 ipec aviation pilot award 1989 3 odn c 36153 1989 east west airline operation limited pilot award 1989 4 odn c 36153 1989 ansett wa pilot award 1989 5 odn c 36153 1989 ansett air freight pilot award 1989 6 odn c 36153 1989 air nsw pilot award 1989 7 odn c 36153 1989 air pilot airline operation commissioner maher melbourne 7 march 1990 award award respondency australian federation air pilot sought respondency award involving domestic airline operator pilot currently employed australian federation air pilot agreed abide principle accept commission decision impediment limitation placed member offering employment company potentially significant development proposed conference test commitment opposed employer employed pilot commission determined conference appropriate conference scheduled statement australian federation air pilot made application seeking added respondent number award involving domestic airline operator pilot currently employed since last august federation pressed commission indicate whether abide requirement act commission principle process generally undertaking sought range separate matter presided first instance mr justice coldham secondly full bench comprising five commission member thirdly full bench comprising mr justice maddern president deputy president hancock commissioner paine separately commissioner paine number occasion _ _ 1 print j0004 a514 2 print j0001 a511 3 print j0006 i052 4 print h9978 e071 5 print j0005 a515 6 print j0003 a513 7 print j0002 a512 2 statement airline operation decision 10 october 1989 full bench commission noted afap registered organisation responsibility representing member subject act rule step taken company alter position therefore prima facie case afap bound award made decision bench indicated would appropriate afap make application bound award appropriate time provided ban seeking employment company lifted provided afap prepared undertake accept decision commission provided afap prepared give necessary undertaking required national wage case decision commissioner paine decision 20 december 1989 said open afap make application become party award provided observed directive full bench added view well federation would address implication ofsections 111 1 g iv v act current application federation indicated abide full bench directive federation responded question commission explicit fashion saying firstly abide principle secondly accept decision commission thirdly impediment limitation placed member offering employment company federation also indicated wished whole matter proceed auspex commission considered expression least demonstrably marked change past potential accepted able represent major significant new approach federation commission however indicated commitment would first tested adequacy first step testing process proposed commission convene conference comprising mr connell captain mccarthy representing afap mr dowling qc mr ginnane representing currently employed pilot one senior representative airline chief executive mr guidice company opposed approach involving conference party argued strongly matter argued determined arbitration raised particular company concern federation alleged action support ban supported mr dowling commission faced following position afap responded full bench statement would appropriate make application bound award afap set forward first time list commitment consider meet term full bench directive afap said want work within system seek assistance commission afap organisation registered act separately given commitment respect significant current award commission statement airline operation 3 afap told commission undertaking given today cannot accepted face value must subject examination commission company representative pilot currently employed commission advised afap full interest pilot currently employed protected still view process involving conference appropriate satisfaction afap undertaking achieved ability test matter formal arbitration still available seem much expect extraordinary matter federation finally come forward offer comply meeting party cannot take place hear sound one without prejudice one arbitration always option circumstance intend matter subject conference 10 30 friday 9 march 1990 end text end text end text
VSAD v & Anor v Minister for Immigration [2004] FMCA 760 (15 October 2004).txt
vsad v anor v minister immigration 2004 fmca 760 15 october 2004 last updated 19 november 2004federal magistrate court australiavsad anor v minister immigration 2004 fmca 760migration review decision refugee review tribunal whether rrt decision lacking supporting evidence finding credit whetherwednesburyunreasonableness jurisdictional error application dismissed judiciary act 1903 cth minister immigration multicultural affair ex parte durairajasingham 2000 168 alr 407re minister immigration multicultural affair ex parte applicants20 2002 appellant s106 2002 v minister immigration multicultural affair 2003 hca 30 2003 198 alr 59applicants vsad vsaerespondent minister immigration multicultural indigenous affairsfile mlg 1010 2003delivered 15 october 2004delivered melbournehearing date 15 october 2004judgment hartnett fmrepresentationcounsel applicant mr fernandezsolicitors applicant ruwan samarakooncounsel respondent mr greysolicitors respondent australian government solicitororder 1 application dismissed 2 applicant pay respondent cost fixed sum 6 500 00 3 pursuant torule 21 15of thefederal magistrate court rules2001
Melonas & Dietz [2020] FamCA 492 (13 May 2020).txt
melonas dietz 2020 famca 492 13 may 2020 last updated 23 july 2020family court australiamelonas dietz 2020 famca 492family law practice procedure parenting matter non appearance mother request department health human service intervene family law act 1975 cth applicant mr melonasrespondent m dietzindependent child lawyer m liafile number adc954of2018date delivered 13 may 2020place delivered melbourneplace heard melbournejudgment bennett jhearing date 13 may 2020representationcounsel applicant applicablesolicitor applicant prendergast lawyerscounsel respondent appearancesolicitor respondent self representedcounsel independent child lawyer m hessionsolicitor independent child lawyer sarah liaordersupon notingthat requirement ofs 102na 2 thefamily law act 1975apply cross examination occurring proceeding 11 september 2019 notingthat parent advised court pursuant requirement neither parent may cross examine parent personally b pursuant requirement cross examination either parent may conducted legal practitioner acting behalf parent c availability commonwealth family violence cross examination party scheme mean may apply scheme provision lawyer copy order provided court victoria legal aid administers said scheme ordered 1 proceeding adjourned tuesday 7 july 2020 10 00 adjourned date noting event family report m b published party independent child lawyer may obtain administrative adjournment date follow publication report essential prior hearing adjourned date party opportunity read digested family report 2 mother forthwith make application victoria legal aid representation pursuant tos 102na 2 thefamily law act 1975 3 order made 15 january 2020 amended deleting paragraph 12 thereof 4 noted interview family report assessment scheduled take place 10 june 2020 requested 5 pursuant tosection 91bof thefamily law act 1975the secretary department human service victoria intervene proceeding 6 proper officer department health human service contact independent child lawyer obtain independent child lawyer current residential address mother purpose conducting home visit ascertain physical emotional wellbeing child x born 2013 child ascertain school child currently enrolled inform independent child lawyer school ordered 7 time compliance mother paragraph 1 order made 15 january 2020 provide updated report treating psychologist psychiatrist extended 10 june 2020 8 associate provide copy exhibit c1 father practitioner independent child lawyer noting mother email address obscured 9 extent party need permission may cause unlimited number subpoena produce document issue independent child lawyer forthwith serve subpoena dr c dr f centre k street suburb victoria detail record mother child 10 purpose implementation paragraph 2 order made 15 january 2020 independent child lawyer provide party recommendation suitably qualified psychologist provide assessment child independent child lawyer party act thing necessary apply victoria legal aid funding enable assessment undertaken avoidance doubt appropriate assessing psychologist child past present treating psychologist 11 mother contact chamber conduct test use microsoft team platform anticipation adjourned date 12 reason decision day transcribed settled placed court file copy provided party department health human service together copy order 13 henceforth party file document via commonwealth court portal contains confidential information revealed party directed 14 literature published court document 4 family violence information sheet document 5 family violence personal cross examination ban annexed order 15 email mother court day marked exhibit icl 1 remain court file envelope marked judicial officer placed pocket reserved correspondence note form order subject entry order court record notedthat publication judgment court pseudonymmelonas dietzhas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth 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 r 17 02family law rule 2004 cth family court australia melbournefile number adc 954 2018mr melonasapplicantandms dietzrespondentandindependent child lawyerex tempore reason judgmentthis matter come first day parenting hearing concerning x born 2013 application court father application filed 2018 spend time x spent time x since january 2018 hearing conducted using court microsoft team platform party provided detail use connectivity 15 january 2020 made order mother provide updated report treating psychologist psychiatrist independent child lawyer applicant father failed neglected also ordered child psychologically assessed suitably qualified psychologist occurred mother directed attend g service together father separately purpose placing family name waiting list notification received g service supervised time would appropriate family father open making application another supervised contact service history matter somewhat concerning informative child parent issue assessment completed m b family consultant dated 15 july 2019 helpfully recites history matter including various assessment party mention particular z m b reported 27 38 child safety wellbeingx reportedly exposed ongoing significant family violence parent identifying primary perpetrator parent described x time held one parent whilst parent reportedly perpetrating family violence neither parent indicated attempt protect x exposure x also reportedly exposed pornographic violent image mr melonas reportedly perceiving given age stage development time would understand content would harm example reportedly stating would know rape father alleges mother physically disciplined x inappropriately locked dark room form discipline acted neglectful manner leaving cry inside house whilst outside smoking parent subjected x excessive use suppository address constipation reportedly blood stool neither parent sought medical advice regarding issue likely x would adversely emotionally affected practice according mother ongoing issue toileting x also exposed parent using illicit substance consuming alcohol excess also compromised mental health possible likely time neither parent emotionally psychologically present meet child need parent accuses using x conflict pawn attempt manipulate control involvement department child protectionthe response notice risk undated record thedepartment child protection investigative involvement family substantive investigation assessment report file child drug alcoholboth parent history using illicit substance alcohol including cannabis methamphetamine neither parent able acknowledge impact illicit substance use consumption alcohol parenting young daughter subsequent impact parent capacity attuned child likely compromised result use illicit substance time physical need may neglected report prepared dr h dated 06 06 2019 record mr melonas provided three urine screen detect illicit substance addition per court order mr melonas also submitted hair analysis test positive illicit substance mr melonas completed alcohol smoking substance involvement screening test assist result indicated moderate risk tobacco related harm low risk substance mental healthmr melonas attended court ordered assessment dr j 13 12 2018 psycho sexual report prepared dr j record summary evidence personality difficulty anti social trait based historical offence contributed allegation violence potential substance use particularly methamphetamine use may contributed significantly problem mr melonas advised attended counselling psychologist assist manage impact family violence allegedly perpetrated m dietz also assist emotion result contact x extended period m dietz long history mental health issue including self harming behaviour attended court ordered assessment dr j 20 11 2018 psychological evaluation prepared dr j record m dietz present picture personality difficulty borderline personality feature experienced past anxiety depressive symptom recently post trauma type symptom m dietz advised attended psychological counselling throughout 2018 2019 dr psychologist filed affidavit 22 08 2018 deposed m dietz meet diagnostic criterion diagnosis post traumatic stress disorder ptsd m b concludes 41 48 evaluationthis assessment concern future parenting arrangement x born 2013 x spent time communicated father since mid january 2018 reportedly exposed significant frequent family violence parent alleging primary perpetrator family violence allegation include verbal emotional physical sexual abuse information provided would appear relationship highly dysfunctional abusive increasing lack trust m dietz narrative consistent information affidavit filed 04 04 2018 dynamic described consistent literature family violence identified coercive controlling violence m dietz expressed ongoing fear x safety spend time mr melonas without formal supervision addition expressed considerable anxiety contact required facilitate x spending time x attending psychological counselling since early 2018 continues attend regular basis according m dietz many symptom indicative trauma response reduced past eighteen month since left mr melonas returned victoria x essential therapeutic relationship undermined therefore rather record subpoenaed court assisted preparation assessment report x treating psychologist report address impact x experience alleged prolonged exposure significant family violence progress date possible impact emotional psychological wellbeing spend time father hind sight m dietz recognises experience alleged significant family violence affected capacity present attuned parent advised x limited experience interaction child also regular predictable routine expressed significant regret contribution x emotional psychological wellbeing compromised future directionsthe following future direction respectfully offered court parent consideration interim stage x continues live mothertime father reservedan assessment report provided court x treating psychologistthe court assisted updated report parent treating practitioner assessment via family report may assistance court non appearance motherwhen matter came judicial duty list 15 january 2020 mother represented matter alstergren cj 25 february 2020 mother failed neglected appear appears mother kept court informed current email address telephone number correspondence sent court sent previous email address mother operational prior commencing hearing morning legal associate obtained email address detail independent child lawyer immediately sent notification mother email address instruction appear video join hearing mother join microsoft team meeting video 9 25am today mother sent response court follows inclusive spelling grammatical error respectable associate thechonourabe jystice bennet due mental health able come courtroom today requested matter adjourned month ago according honourable justice bennet instruction jan 15th hearing solicitor n lawyer filed notice ceasing act covid19 restriction enforced rendering helpless matter yet information aware required time detail x treating psychologist follows dr cdr respectively treating f centrek streetsuburb mdue extreme financial emotional hardship housing arrangement report drawn time hearing appointment met due cancellation request matter adjourned already heard former legal representation require new legal representation time time settle mammoth emotional traumatic period since last time matter heard faithfully m dietzmy legal associate provided instruction mother appear telephone opposed video including instruction appear private telephone number mother telephone number would shared father 1 13pm mother sent chamber following email apologise tried know caller id thing tech savvy 91b referral dhhsmy concern mother may purposefully avoiding proceeding sporadic contact independent child lawyer last contact monday 4 may 2020 independent child lawyer provided mother current residential address concerned verification mother fact residing furthermore due mother referring mammoth emotional traumatic period since 15 january 2020 concerned checking welfare x purpose make request pursuant tos 91bof thefamily law act1975
Nikpour, Ali [1999] MRTA 211 (13 September 1999).txt
nikpour ali 1999 mrta 211 13 september 1999 last updated 5 november 1999mrta 211visa applicant mr ali reza nikpourreviewapplicant mr ali reza nikpourtribunal migration review tribunalpresidingmember michael northcottmrt file number n99 05782dima file number n99 110197 n95 701702date decision 13 september 1999decision tribunal affirms decision review refusing grant applicant bridging class visa subclass 050 general catchword abide conditionsstatement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair detail follows visa applicant detail mr ali reza nikpour12 december 1964maleiraniandecision type visa refusalvisa class sub class bridging e class date visa application 27 august 1999date primary decision 02 september 1999jurisdiction standing2 application review validly made section 338 act go decision reviewable tribunal complies section 347 go standing review applicant review applicant mr ali reza nikpourdate review application 03 september 1999relationship visa applicant selflegislation visa criterion policy3 themigration act 1958 amended act themigration regulation 1994 regulation provide different class visa government policy guideline aid interpretation application prescribed criterion visa policy guideline set procedure advice manual pam 3 issued department immigration multicultural affair dima 4 reaching decision tribunal bound act regulation applies relevant government policy lawful general policy guideline applied tribunal unless cogent reason contrary general policy direction issued minister pursuant section 499 act applied wherever relevant see generallyre drake minister immigration ethnic affair 2 1979 aata 179 1979 2 ald 634andalivminister immigration local government ethnic affair 1992 fca 453 1992 38 fcr 144 5 applicant entitled grant visa act regulation make valid application visa specified class satisfies criterion prescribed act regulation visa class applicant bridging visa must eligible non citizen meaning applicant must immigration cleared must come within certain class person set regulation see section 72 73 andregulation 2 20 6 order application bridging e class visa subclass 050 general valid must made way required item 1305 schedule 1 regulation see section 45 46 andregulation 2 07 non citizen visa application refused cancelled undersection 501 501a 501b act may make application visa protection visa 7 applicant bridging visa subclass 050 general must satisfy primary criterion set inpart 050of schedule 2 regulation date application date decision secondary criterion visa 8 summary criterion met tribunal satisfied 8 1 applicant unlawful non citizen holder bridging e class visa subclause 050 211 1 and8 2 applicant eligible non citizen kind set subregulation 2 20 7 8 9 10 11 subclause 050 211 2 and8 3 applicant meet requirement one subclauses 2 3 3a 4 5 6 7 8 clause 050 212 requirement clause 050 212 include following applicant making subject acceptable arrangement depart australia applicant made 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 8 4 bridging e visa granted applicant abide condition imposed clause 050 213 condition mandatory condition found schedule 8 regulation and8 5 security requested lodged clause 050 214 9 relevant policy guideline set dima series instruction msi 219 bridging e visa subclass 050 legislative framework guideline msi issued 21 april 1999 tribunal follow policy unless cogent reason contrary 10 particular case criterion issue clause 050 213 minister satisfied bridging visa granted applicant applicant abide condition imposed clause 050 214 security lodged applicant asked officer authorised undersection 269of act deal security compliance act clause must met time application decision evidence findings11 review decision refusing grant bridging e class visa subclass 050 general visa applicant applicant 12 finding based evidence received mr nickpour hearing written material file tribunal dima also heard evidence m fakhraltaj bastani iranian community organization 13 prior hearing tribunal sent applicant pursuant section 359a act particular information adverse applicant applicant also invited make comment adverse information interview mr nikpour commented true cooperated dima signing travel document joined lie class action 14 interview applicant stated evidence would given hearing 15 document dima file disclose following outline applicant migration history mr nickpour arrived australia 16 february 1994 holder three month visitor visa visa expired 16 may 1994 mr nickpour failed leave australia 30 september 1994 mr nickpour lodged protection visa application application refused dima 14 march 1995 affirmed refugee review tribunal 23 october 1995 mr nickpour made application federal court refused mr nickpour subsequent appeal high court withdrawn mr nickpour since written minister several occasion seeking intervention minister refused request mr nickpour valid visa attended compliance section 19 november 1998 date taken custody remained since date mr nickpour recently joined lie class action subsequently 27 august 1999 filed application bridging visa advised lie class may determined high court january 2000 16 mr nickpour evidence set mr nickpour always valid visa time australia b released mr nickpour would live friend hassan afshari 6 16a wigram street harris park mr afshari student part time job rent unit life mr afshari would provide mr nickpour food would require mr nickpour pay rent mr nickpour ask mr afshari attend hearing mr nickpour know much mr afshari earned far mr nickpour knew mr afshari sufficient fund support mr nickpour c prior detainment mr nickpour lived matthew talbot hostel two day prior mission sacred heart drummoyne eighteen month mr nickpour pay anything mission support mr nickpour 200 e mr nickpour would comply condition imposed f mr nickpour unable provide security payment g mr nickpour applied bridging visa heard lie class action h mr nickpour said good health medication said dr h samai would look released became unwell mr nickpour would leave australia appeal appeal high court unsuccessful 17 m bastani evidence representative iranian community organization would could help mr nickpour organization able provide security payment mr nickpour would help providing food money requested said contact would ring knew number would visit week requested knew lived asked believed mr nickpour would leave appeal high court unsuccessful said would leave would valid visa promised go asked believed promise said would like believe 18 file discloses following evidence mr nickpour admitted without valid visa attended compliance office 19 november 1998 b mr nickpour signed application travel document 24 august 1999 mr nickpour asked sign travel document application november 1998 refused promised sign document surgery took place december 1998 refused asked 18 june refused sign document mr nickpour joined lie class action prior 24 august 1999 19 find mr nickpour credible witness stated always valid visa australia material file show visitor visa expired 16 may 1994 mr nickpour remained australia date visa time file also show admitted compliance officer 19 november 1998 without valid visa time stated cooperated dima signing travel document joined lie class action travel document dated 24 august 1999 date joined class action witness m amirchian able tell believed mr nickpour would leave country appeal high court unsuccessful 20 find mr nickpour access fund provide security 21 find mr nickpour continue reside harris park friend mr ashfari mr ashfari available give evidence support mr nickpour mr nickpour made sufficient enquiry mr ashfari show mr ashfari capacity support mr nickpour mr ashfari circumstance described mr nickpour would able support mr nickpour period mr nickpour awaits high court decision mr nickpour history show relied upon charitable institution past help iranian community organization provides though valuable would provided mr nickpour requested believe mr nickpour would always seek help iranian community organization needed m bastiani also difficulty believing mr nickpour reason decision22 evidence departmental file find applicant meet requirement clause 050 212 4a 23 consider whether application meet clause 050 213 condition considered appropriate impose follows 8401 holder must report time time b place specified minister purpose8505 holder must continue live address specified holderbefore grant visa 8506 holder must notify immigration least 2 working day advanceof change holder address 24 applicant credible witness believe abide condition also uncooperative department may prepared try abide condition prior decision high court high court decision unfavourable mr nickpour believe leave country thereafter fail comply condition 25 also consider security lodged circumstance mr nickpour unable provide security decision26 tribunal affirms decision review refusing grant applicant bridging e class visa subclass 050 general
Unsworth v Tristar Steering and Suspension Australia Limited [2008] FCA 1224 (13 August 2008).txt
unsworth v tristar steering suspension australia limited 2008 fca 1224 13 august 2008 last updated 13 august 2008federal court australiaunsworth v tristar steering suspension australia limited 2008 fca 1224industrial law conduct employer alleged breach ofs 792of theworkplace relation act 1996 cth employer business substantially ceased redundancy clause certified agreement included generous redundancy provision long term employee involuntarily retrenched breach redundancy clause alleged whether employer failure dismiss employee conduct employer whether failure dismiss caused injury prejudicial alteration position employee whether failure dismiss prohibited reason proceeding dismissedwords phrase injure alter prejudice prohibited reason workplace relation act 1996 cth s 3 170lj 298k 400 402 778 779 789 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 807 809 810 811 812 813australian international pilot association v qantas airway ltd 2006 fca 1441 2006 160 ir 1 citedaustralian colliery staff association v bhp coal pty ltd 2000 fca 318 2000 99 fcr 137referred toaustralian worker union v bhp iron ore pty ltd 2001 106 fcr 482 followedbhp iron ore pty ltd v australian worker union 2000 fca 430 2000 102 fcr 97followedblackadder v ramsey butchering service pty ltd 2005 2005 hca 22 221 clr 539citedblair v australian motor industry ltd 1982 61 flr 283citedbrackenridge v toyota motor corporation australia ltd 1996 irca 628 1996 142 alr 99citedburnie port corp pty ltd v maritime union australia 2000 fca 1768 2000 104 fcr 440citedcommonwealth bank australia v finance sector union australia 2007 fcafc 18 2007 157 fcr 329discussedcommonwealth bank australia v finance sector union australia 2002 fcafc 193 2002 125 fcr 9citedcommunity public sector union v telstra corp ltd 2001 fca 267 2001 107 fcr 93citedconnington v municipality kogarah 1913 ar nsw 40citeddowne v sydney west area health service 2 2008 nswsc 159citedfinance sector union australia v commonwealth bank australia 2001 fca 1613 2001 111 ir 241 citedgrayndler v broun 1928 ar nsw 46citedgrayndler v cunich 1939 hca 32 1939 62 clr 573citedgreater dandenong city council v australian municipal administrative clerical service union 2001 fca 349 2001 112 fcr 232discussedhunt v railway commissioner nsw ex parte brown smith 1928 ar nsw 151citedklanjscek v silver 1961 4 flr 182citedmaritime union australia v csl australia pty ltd 2002 fca 513 2002 113 ir 326 citedmaritime union australia v geraldton port authority 1999 fca 899 1999 93 fcr 34discussedmartech international pty ltd v energy world corp ltd 2007 fcafc 35citedmoss v fantil pty ltd central coast security service 1994 58 ir 118citednational union worker v qenos pty ltd 2001 fca 178 2001 108 fcr 90followedpatrick stevedore operation 2 pty ltd v maritime union australia 3 1998 hca 30 1998 195 clr 1referred toproject blue sky inc v australian broadcasting authority 1998 hca 28 1998 194 clr 355citedsquires v flight steward assn australia 1982 2 ir 155 citedwesten v union de assurance de paris 1996 88 ir 259 citedinspector ian unsworth workplace ombudsman v tristar steering suspension australia limited acn 004 311 111nsd 232 2007gyles j13 august 2008sydneyin federal court australianew south wale district registrynsd 232 2007between inspector ian unsworth workplace ombudsman applicantand tristar steering suspension australia limited acn 004 311 111respondentjudge gyles jdate order 13 august 2008where made sydneythe court order proceeding dismissed note settlement entry order dealt order 36 federal court rule text entered order located using esearch court website federal court australianew south wale district registrynsd 232 2007between inspector ian unsworth workplace ombudsman applicantand tristar steering suspension australia limited acn 004 311 111respondentjudge gyles jdate 13 august 2008place sydneyreasons judgment1 case unusual respondent tristar steering suspension australia limited tristar accused contravening section theworkplace relation act 1996 cth act designed far relevant case protect freedom association victimised discriminated employee dismissing facts2 critical fact gleaned agreed chronology copy editing attached schedule judgment part redundancy provision 2003 certified agreement centre applicant case follows 21 5 severance paymentemployees retrenched involuntarily voluntarily paid following basis le 1 year service nil1 year service rate 4 week per year including pro rata partially completed year computed commencement employmentin event voluntary redundancy maximum severance payment shall capped 52 week course one clause comprehensive collective agreement cannot read isolation however view provision remarkably generous particularly long serving employee involuntarily retrenched 3 gist applicant case although spelled different way substantial surplus employee tristar manufacturing effectively ceased 2006 tristar thereafter managed shedding surplus labour minimise obligation pay severance pay compulsory redundancy particular nominated employee retained without meaningful work view expiration certified agreement dismissal long serving employee would entitled considerable severance payment made redundant gist tristar case shedding labour done accordance certified agreement employee question retained skill experience suited work remanufacturing work might arise overseas joint venture purpose avoiding large redundancy payment denied 4 satisfied effort tristar obtain remanufacturing work pursuit overseas joint venture genuine reasonable retain labour carry work obtained retained employee skill experience would useful carrying work hand satisfied term cl 21 5 certified agreement factor deciding many employee retain length service undoubtedly significant reason retention particular employee extent evidence witness tristar contrary reject number employee retained greater necessary cope work might reasonably eventuated short medium term difficult find objective basis retention least employee apart length service redundancy followed extension operation certified agreement point direction evidence tristar decision maker impressive 5 doubt retained employee seriously underemployed number work work kind qualified previously employed satisfied retained employee found experience disturbing stressful suffered lasting psychological trauma however cannot overlooked tristar union shop industrial campaign foot union tristar political implication dispute whether employee could directed undertake remanufacturing work one aspect campaign took many month resolve retained employee work period choice one sense foot soldier victim wider campaign conducted general certified agreement6 certified agreement tristar one hand four union certified pursuant 170lj act stood 2003 2004 relevant term agreement follows 6 operation application agreement6 1 agreement shall take effect beginning first pay period commence date upon certified australian industrial relation commission 6 2 agreement shall remain force 30 september 2006 three month prior end life agreement party agree commence negotiation aim formulating new agreement expiry date agreement reached 6 3 agreement shall apply party referred clause 4 respect employment tristar steering suspension australia limited employee covered metal engineering associated industry award 1998parts 1and2 10 relationship parent awardthis agreement shall read wholly conjunction metal engineering associated industry award 1998part 1and2 inconsistency agreement award agreement shall apply company life agreement offer employee australian workplace agreement 11 consultation11 1 party acknowledge important factor meeting aim objective agreement develop maintain consultative process section employee kept informed development tssa opportunity input decision affect work working environment 11 2 party accept responsibility creating maintaining consultative working environment work together create culture 11 3 introduction change duty notifywhere company made definite decision introduce major change production programme organisation structure technology likely significant effect employee company shall notify employee respective union delegate may affected proposed change 11 4 significant effect include termination employment major change composition operation size workforce skill required elimination diminution job opportunity promotion opportunity job tenure alteration hour work need training transfer employee work location restructuring job provided award make provision alteration matter referred herein alteration shall deemed significant effect duty discus change11 5 company shall discus effected sic employee union introduction change referred paragraph 11 3 effect change likely employee measure avert mitigate possible adverse effect change employee company shall give prompt consideration matter raised employee union relation change 11 6 discussion employee affected union shall commence early practicable activity referred paragraph 11 4 hereof 11 7 purpose discussion company shall provide employee concerned union relevant information change including nature change proposed expected effect change employee matter likely affect employee provided company shall required disclose confidential information disclosure would damaging company interest 11 8 requested employer shall provide information language english employee non english speaking background 21 redundancy21 1where company made definite decision longer wish job employee performed anyone decision may lead termination employment company shall hold discussion employee affected union 21 2 discussion shall take place soon practicable employer made definite decision invoke provision paragraph 1 hereof shall cover reason proposed termination measure avoid minimise termination measure mitigate adverse effect termination employee concerned 21 3 purpose discussion company shall soon practicable making decision termination provide writing employee concerned union relevant information proposed termination provided company shall required disclose confidential information disclosure would inimical company interest 21 4 noticeretrenched employee given four week notice termination employment four week pay lieu notice company discretion employee aged 45 year least 2 year service shall entitled 1 extra week notice per clause 4 3 1 b metal engineering associated industry award 1998 21 5 severance paymentemployees retrenched involuntarily voluntarily paid following basis le 1 year service nil1 year service rate 4 week per year including pro rata partially completed year computed commencement employmentin event voluntary redundancy maximum severance payment shall capped 52 week 21 6 loading 17 5 applied full pro rata annual leave entitlement retrenchment 21 7 subject satisfactory evidence arranged job interview employee given 1 day worked week notice without loss pay attend interview 21 8 employee supplied certificate service separation certificate time retrenchment itemised statement entitlement supplied retrenched employee 21 9selection redundant employee surplus staff exists identify number redundant position employment category location employment b call volunteer within identified area employment employment category company attempt accommodate request voluntary retrenchment however final decision acceptance rejection request lie company c insufficient acceptable volunteer fill identified number following apply compulsory redundancy regard maintaining balance skill experience within department company nominate employee wish made redundant 21 10 employee retrenched may leave time notice period take another position event employee paid period notice worked severance entitlement redundancy provision 21 11 retrenched employee receive payment accumulated sick leave 21 12 employee elect voluntary redundancy untaken rdos date termination shall paid lieu day ordinary rate event compulsory retrenchment employee shall receive payment lieu untaken rdos payment penalty rate day stand alone maximum 3 day event untaken rdos exceed 3 day additional day shall paid ordinary rate case compulsory retrenchment employee required take rdos notice period unable absence exceptional circumstance employee shall paid 3 day penalty rate day stand alone untaken day excess 3 shall paid ordinary rate 21 13 long service leave forcibly retrenched employee paid based prorata year service commencement employment 21 14 shift allowance used calculation employee date termination afternoon nightshift including rotating shift least 6 month immediate 12 month prior termination employment 21 15 event employee notice retrenchment dying prior actual date termination benefit payable relation provision agreement shall apply paid employee estate 21 16 event redundancy company agrees make available suitable financial counseling outplacement service provided cost company providing service shall exceed 300 per employee emphasis added statutory provisions7section 792of act contained div 4 ofpt 16 part 16is headed freedom association object part set in 778as follows addition object set insection 3 part following object ensure employer employee independent contractor free become become member industrial association b ensure employer employee independent contractor discriminated victimised member officer industrial association c provide effective relief employer employee independent contractor prevented inhibited exercising right freedom association provide effective remedy penalise deter person engage conduct prevents inhibits employer employee independent contractor exercising right freedom association 8 following definition included in 779 1 industrial association mean association employee independent contractor association employer registered recognised association however described industrial law b association employee independent contractor principal purpose protection promotion interest matter concerning employment interest independent contractor case requires c association employer principal purpose protection promotion interest matter concerning employment independent contractor includes branch association organisation industrial body mean commission b court commission however designated exercising industrial law power function corresponding conferred commission act c court commission however designated exercising industrial law power function corresponding conferred commission registration accountability organisation schedule industrial instrument mean award agreement however designated made recognised industrial law b concern relationship employer employer employee provides prevention settlement dispute employer employer employee industrial law mean act registration accountability organisation schedule law however designated commonwealth state territory regulates relationship employer employee provides prevention settlement dispute employer employee 9section 3relevantly provides follows 3 principal object principal object act provide framework cooperative workplace relation promotes economic prosperity welfare people australia ensuring far possible primary responsibility determining matter affecting employment relationship rest employer employee workplace enterprise level e enabling employer employee choose appropriate form agreement particular circumstance f ensuring compliance minimum standard industrial instrument bargaining process providing effective mean investigation enforcement employee entitlement ii right obligation employer employee organisation j ensuring freedom association including right employee employer join organisation association choice join organisation association 10 division 1 ofpt 16is preliminary div 2 deal jurisdictional aspect div 3 entitled general prohibition relating freedom association consisting ofs 789dealing coercion 790dealing false misleading statement membership industrial association ands 791dealing industrial action reason relating membership industrial association division 4 deal conduct employer person engaging independent contractor come back division central case division 5 deal conduct employee independent contractor consisting ofs 795which follows 795 cessation work 1 employee independent contractor must cease work service employer person engaged independent contractor case requires employer person officer member industrial association b entitled benefit industrial instrument order industrial body c made proposes make inquiry complaint person body capacity industrial law seek compliance law ii observance person right industrial instrument participated proposes participate time proposed participate proceeding industrial law e given evidence proceeding industrial law 2 subsection 1 civil remedy provision 11 division 6 ofpt 16deals conduct industrial association officer member industrial association consists ofs 796dealing industrial association acting employer 797 industrial association acting employee 798 industrial association acting member 799 industrial association acting independent contractor 800 industrial association acting independent contractor encourage contravention 801 industrial association demand bargaining service fee 802 action coerce person pay bargaining service fee ands 803 industrial association prevented entering contract provision bargaining service division 7 deal conduct relation industrial instrument consists ofs 804 discrimination employer relation industrial instrument division 8 deal false misleading representation bargaining service fee etc constituted bys 805 division 9 deal enforcement two part shall return division 10 deal objectionable provision 810defines objectionable provision section 810 1 follows 1 purpose division following provision however described document concerned anobjectionable provision provision requires permit conduct would contravene part would contravene part division 2 disregarded b provision directly indirectly requires person encourage another person become remain member industrial association ii discourage another person becoming remaining member industrial association c provision indicates support person member industrial association provision indicates opposition person member industrial association e provision requires permit payment bargaining service fee industrial association section 811deals objectionable provision industrial instrument ands 812deals removal objectionable provision award division 11 miscellaneous section 813deals freedom association dependent whether person holder conscientious objection certificate 12part 8of act deal workplace agreement division 10 deal prohibited conduct section 400prohibited relevant date action intent coerce another person agree agree make approve lodge vary terminate collective agreement australian workplace agreement instrument section 401prohibits false misleading statement causing person make approve lodge vary terminate workplace agreement make approve lodge vary terminate workplace agreement section 402is follows employer discriminate unionist non unionist 1 employer must negotiating collective agreement variation collective agreement discriminate employee employer employee member organisation employee others member organisation b employee member particular organisation employee others member organisation member different organisation employee 2 subsection 1 civil remedy provision 13part 9deals industrial action part 10deals award part 12deals minimum entitlement employee div 4 deal termination employment part 14deals compliance div 2 deal penalty remedy contravention applicable provision div 3 deal general provision relating civil remedy part 22deals sham arrangement connection purported independent contracting arrangement 14 returning div 4 ofpt 16 792 far relevant follows 792 dismissal etc member industrial association etc 1 employer must prohibited reason reason include prohibited reason threaten following dismiss employee b injure employee employment c alter position employee employee prejudice refuse employ another person employee e discriminate another person term condition employer offer employ person employee 2 subsection 1 civil remedy provision 3 purpose paragraph 1 employer refuse employ another person employer intend employ anyone 4 employer contravene subsection 1 paragraph 793 1 unless entitlement described paragraph sole dominant reason employer thing described paragraph 1 b c e section emphasis added 15section 793is headed prohibited reason follows 1 conduct referred insubsection 792 1 5 aprohibited reasonif carried employee independent contractor person concerned proposes become time proposed become officer delegate member industrial association b propose become proposes cease member industrial association c case refusal engage another person independent contractor one employee propose become member industrial association paid propose pay fee however described industrial association e refused failed join industrial action f case employee refused failed agree consent vote favour making agreement industrial association employee member would party g made proposes make time proposed make application industrial body order industrial law holding secret ballot h participated proposes participate time proposed participate secret ballot ordered industrial body industrial law entitled benefit industrial instrument order industrial body australian fair pay condition standard j made proposes make inquiry complaint person body capacity industrial law seek compliance law ii observance person right industrial instrument k participated proposes participate time proposed participate proceeding industrial law l given proposes give evidence proceeding industrial law case employee independent contractor member industrial association seeking better industrial condition dissatisfied condition n case employee independent contractor absented work without leave absence purpose carrying duty exercising right officer industrial association ii employee independent contractor applied leave absenting leave unreasonably refused withheld officer member industrial association done proposes act thing purpose furthering protecting industrial interest industrial association act thing lawful ii within limit authority expressly conferred employee independent contractor person industrial association rule p case employee independent contractor paid agreed pay propose pay bargaining service fee 2 threat made engage conduct referred insubsection 792 1 5 b one prohibited reason subsection 1 section refers person proposing particular act proposing particular act c threat made intent dissuading preventing person act coercing person act case requires threat taken made prohibited reason emphasis added 16section 794deals inducement cease membership etc industrial association etc proceeding brought pursuant tos 807 ands 809is applicable following term proof required reason intention conduct 1 application undersection 807relating person conduct alleged conduct carried particular reason particular intent b person carry conduct reason intent would constitute contravention part presumed proceeding division arising application conduct carried reason intent unless person prof otherwise 17 referred literally dozen case high court australia dealing application similar provision earlier commonwealth legislation dating back 1904 state legislation authority need approached considerable caution take account significant change introduced firstly 1996 commonwealth act none act stood time event following called work choice legislation 2005 large relate situation like present none dealt comparable fact many single judge decision fact indeed existence body authority distract task construing act stand refer decision relevance case 18 part 16 deal freedom association aspect principal object 3 j set object aspect principal object identified 3 e f dealt part act particular pt 8 pt 10 pt 13 pt 14 structure act general object pt 16 dealing freedom association quite different pertained history industrial relation australia post federation regulation way award negotiated trade union employer representative arbitrated industrial tribunal mason j said ingeneral motor holdens pty ltd v bowling 1976 12 alr 605at 616 dealing 5 theconciliation arbitration act 1904 cth two subsection broadly speaking designed protect officer delegate member organization discrimination employer legislative history extends back turn century trade union fragile institution today stood need large measure protection employer honour later referred protection trade union representative discrimination victimization employer extended employee member union took advantage union negotiated award 19 act stood 2006 contain vestige special protection trade union member trade union compared employer organisation employer particularly belong trade union nonetheless benefit freedom association afforded wish belong trade union well 20 observed object b 778 pick word discriminated victimised traditionally used field opinion provision stand taken context 792 sensible operation unless involves discrimination victimisation employee basis connected union membership matter broadly pleaded case21 relevant portion second amended statement claim take account certain event commencement proceeding omitting particular except case paragraph 7 follows 5a least june 2006 relevant date respondent longer wished job job relevant employee relevant date performed anyone b made definite decision effect 5b least since relevant date respondent engaged thereafter continued engage period relevant employee following conduct relation one relevant employee conduct relation one relevant employee collectively alternative separately called respondent conduct a1 respondent compulsorily retrenched relevant employee remain employed respondent withstanding fact matter set paragraph 5a second amended statement claim contrary expectation relevant employee a2 respect relevant employee compulsorily retrenched respondent compulsorily retrench relevant employee period june 2006 respective termination date notwithstanding fact matter set paragraph 5a second amended statement claim contrary expectation relevant employee b respondent provided relevant employee work materially similar kind performing relevant date c respondent provided alternative ceased provide relevant employee work alternative meaningful productive work respondent provided alternative ceased provide relevant employee opportunity perform work alternative meaningful productive work e respondent lost contract order disposed plant equipment retrenched employee enabled position provide relevant employee work materially similar kind performing relevant date ii meaningful productive work f premise set subparagraphs 5b b c e second amended statement claim respondent made substantial exceptional far reaching change duty work working condition relevant employee g respondent case relevant employee made change referred subparagraph 5b f second amended statement claim unilaterally without consent relevant employee h premise set subparagraphs 5b b c f second amended statement claim respondent denied relevant employee alternative substantially reduced opportunity perform work alternative meaningful productive work ii obtain benefit meaningful productive employment iii use maintain develop skill competence training iv obtain alternative employment respondent failed neglected consult counsel assist relevant employee relation fact matter referred subparagraphs 5b b c e f h j premise set subparagraphs 5b b c e f h second amended statement claim respondent damaged diminished undermined relevant employee feeling worth confidence ii caused relevant employee suffer insecurity stress anxiety iii exposed relevant employee risk psychological injury k respondent conducted towards relevant employee manner likely damage destroy relationship trust confidence neither good considerate neglected health safety welfare treated without dignity respect 5c respondent conduct either collectively alternative one separate instance respondent conduct set paragraph 5b second amended statement claim respondent injured one relevant employee employment within meaning paragraph 792 1 b act 5d alternative paragraph 5c amended statement claim respondent conduct either collectively alternative one separate instance respondent conduct set paragraph 5b second amended statement claim respondent altered position one relevant employee prejudice within meaning paragraph 792 1 c act 5e respondent engaged respondent conduct either collectively alternative one separate instance respondent conduct set paragraph 5b second amended statement claim reason alternative reason include reason relevant employee entitled benefit certified agreement particular redundancy provision continue termination redundancy provision set subparagraphs 3 e f second amended statement claim 6 premise respondent contravened continues contravene subsection 792 1 act 7 premise relevant employee suffered respect relevant employee compulsorily retrenched continue suffer damage result respondent contravention subsection 792 1 act aforesaid particular damage suffered relevant employeesthe damage relevant employee suffered respect relevant employee compulsorily retrenched continue suffer includes following premise set subparagraph 5b second amended statement claim relevant employee compulsorily retrenched denied benefit redundancy provision b premise set subparagraphs 5b b c e second amended statement claim relevant employee imposed unilaterally without consent substantial exceptional far reaching change duty work working condition particular given schedule c premise set subparagraphs 5b b c f second amended statement claim relevant employee denied alternative substantial reduction opportunity perform work alternative meaningful productive work ii obtain benefit meaningful productive employment iii use maintain develop skill competence training iv obtain alternative employment particular given schedule premise set subparagraphs 5b b c e f h second amended statement claim relevant employee feeling worth confidence damaged diminished undermined ii suffered insecurity stress anxiety iii exposed risk psychological injury particular given schedule principal case22 principal basis upon case put tristar injured altered position employee employer prejudice dismissing particular employee thus disentitling severance payment accordance cl 21 5 certified agreement opinion case cannot succeed problem underlying circumstance loss business rather operative decision tristar 2000 370 person employed january 2006 number reduced 177 major manufacturing ceased obvious would need significant reduction employee clause 21 certified agreement designed cope situation particularly cl 21 9 dealt selection redundant employee surplus staff existed obvious purpose clause avoid unnecessary involuntary retrenchment manage process clause make clear ultimately employer discretion employee would subject compulsory redundancy august 2006 number reduced 50 production employee 19 staff employee august 2007 production employee reduced 19 staff position 13 allegation case tristar breached cl 21 respect 23 applicant contention tantamount treating cl 21 5 conditional contractual benefit affected employee like long service leave superannuation unstated premise contention employer duty dismiss misconception purpose effect cl 21 complaint made proceeding failure tristar follow procedure laid cl 21 could subject dispute referred australian industrial relation commission possibly proceeding court compel compliance far aspect case concerned tristar simply maintained employee position status quo remained anything injure employee alter position employee 24 test usually applied see whether injury prejudicial alteration position employee reason act employer eg per evatt j inblair v australian motor industry ltd 1982 61 flr 283at 289 3 ir 176 per branson j incommonwealth bank australia v finance sector union australia 2007 fcafc 18 2007 157 fcr 329at 127 applying said full court earlier interlocutory appeal bhp iron ore pty ltd v australian worker union 2000 fca 430 2000 102 fcr 97at 35 succinctly put kenny j inaustralian worker union v bhp iron ore pty ltd 2001 106 fcr 482 54 follows 298k 1 apply must possible say employee individually speaking worse situation employer act deterioration caused act act intentional sense employer intended deterioration occur clarification approach full court incommunity public sector union v telstra corp ltd 2001 fca 267 2001 107 fcr 93at 21 detract present purpose question must asked negative answer limb 25 tracey j usefully summarised authority former 298k inaustralian international pilot association v qantas airway ltd 2006 fca 1441 2006 160 ir 1 13 22 injury concerned adverse effect upon existing legal right compensable injury prejudicial alteration position go beyond concept many example case sufficient refer topatrick stevedore operation 2 pty ltd v maritime union australia 3 1998 1998 hca 30 195 clr 1per brennan cj mchugh gummow kirby hayne jj 37 38 community public sector union v telstra corp ltd 2001 fca 267 107 fcr 93at 17 22 greater dandenong city council v australian municipal administrative clerical service union 2001 fca 349 2001 112 fcr 232 andcommonwealth bank australia v finance sector union australia 2007 fcafc 18 157 fcr 329 26 decision inmaritime union australia v geraldton port authority 1999 fca 899 1999 93 fcr 34is good illustration dividing line might drawn case non contravening side line includeburnie port corp pty ltd v maritime union australia 2000 fca 1768 2000 104 fcr 440andaustralian worker union v bhp iron ore pty ltd106 fcr 482 case similarity present isnational union worker v qenos pty ltd 2001 fca 178 2001 108 fcr 90 dealt situation surplus employee genuine business reason spill fill selection retrenchment process held capable giving rise injury particular employee employment could said altered position individual employee prejudice see alsoaustralian international pilot association v qantas airway ltd 2006 fca 1441 2006 160 ir 1 29 31 27 duty dismiss owed argument seems tristar owed duty every employee covered certified agreement dismiss employee course 2006 major manufacturing ceased however manufacturing remanufacturing work continued time thereafter said tristar genuine seeking business entitled retain employee carry actual potential work employer choice individual employee could claim obligation upon tristar dismiss employee order trigger cl 21 5 alternative case28 alternative case based upon change duty particular lack productive work available said accept many employee gave evidence found experience unpleasant psychological damage done difficulty applicant case tristar essentially passive far particular employee concerned work available constrained commercial consideration suggestion contriving win work ulterior purpose decision took relation premise plant equipment result commercial reality said concerning arrangement continuing employee given task available none affected employee obliged stay condition intolerable none subject long term contract doubt voluntary redundancy would available 29 respectable argument employee cannot indefinitely denied work work appropriate kind available blackadder v ramsey butchering service pty ltd 2005 hca 22 2005 221 clr 539 particularly per callinan heydon jj 80 squire v flight steward assn australia 1982 2 ir 155 164 downe v sydney west area health service 2 2008 nswsc 159at 410 431 appropriate work available 30 may circumstance conduct employer towards employee employee upon leaving assert constructively dismissed triggering whatever right employee may upon dismissal westen v union de assurance de paris 1996 88 ir 259 261 brackenridge v toyota motor corporation australia ltd 1996 irca 628 1996 142 alr 99at 106 case position redundancy seecommonwealth bank australia v finance sector union australia 2002 fcafc 193 2002 125 fcr 9at 27 cfmartech international pty ltd v energy world corp ltd 2007 fcafc 35at 19 present case may included claim pursuant cl 21 5 case could pursued behalf employee course adopted infinance sector union australia v commonwealth bank australia 2001 fca 1613 2001 111 ir 241 although set aside result appealcommonwealth bank australia v finance sector union australia 2002 fcafc 193 125 fcr 9 rather choice made seek use freedom association provision effect act mean specific enforcement cl 21 5 31 short whatever employee suffered way psychological distress caused act tristar rather choice made continue employment operative reason prejudice maritime union australia v csl australia pty ltd 2002 fca 513 2002 113 ir 326 53 54 opinion none employee injured position prejudicially altered act employer required 792 prohibited reason32 even necessary injury alteration position established sole dominant prohibited reason established 792 4 selection employee retrenchment scintilla connection freedom association employee covered certified agreement benefit agreement without discrimination suggestion selection retrenchment made reason associated union membership non membership union activity non activity employee covered certified agreement potential person affected covered agreement simply basis suggestion discrimination victimisation relevant respect employee subject proceeding proportion workforce stood 2006 33 far 793 1 concerned affected employee entitled benefit certified agreement common production employee discrimination employee respect suggestion person benefit certified agreement discriminated compared people benefit agreement fact employer may advantaged dismissing particular employee way cl 21 5 worked pertinent statutory obligation content effect agreement may always irrelevant example way particular clause operates related relevant form discrimination decision full court ingreater dandenong city council 2001 fca 349 112 fcr 232may provide example although difficult decision branson j said incsl australia pty ltd 2002 fca 513 113 ir 326 54 easy derive ratio decidendi decision incommonwealth bank australia v finance sector union australia 2007 fcafc 18 157 fcr 329may another case employer work done employed pursuant industrial instrument proposed change meant work would done willing take alternative employment pursuant different industrial instrument perhaps industrial instrument case 34 another instance may provided said street j inhunt v railway commissioner nsw ex parte brown smith 1928 ar nsw 151at 154 albeit dealing differently framed section dismissal must think dismissal employer really matter victimisation capricious use power dismiss order retaliate upon employee dared assert claim right award dealing section evatt j ingrayndler v cunich 1939 hca 32 1939 62 clr 573said 595 investigating case business department closed case employer determined 1 enterprise whole shall conducted entirely upon condition private bargaining le favourable employee award condition also 2 every employee qualifies obtain better award condition shall immediately dismissed one obvious case sec 9 designed cover case analogous example 35 early history provision established could used restrict genuine business decision employer notwithstanding objective provision protection union collective action connington v municipality kogarah 1913 ar nsw 40at 44 grayndler v broun 1928 ar nsw 46at 49 klanjscek v silver 1961 4 flr 182at 187 moss v fantil pty ltd central coast security service 1994 58 ir 118 127 underlying principle decision may affect employee class employee discriminate victimise employee employee taken sound business reason principle applied various situation recent time considering prohibited reason within meaning 793 similar provision example includeqenos pty ltd 2001 fca 178 108 fcr 90at 119 126 australian colliery staff association v bhp coal pty ltd 2000 fca 318 2000 99 fcr 137 particularly 66 67 csl australia pty ltd 2002 fca 513 113 ir 326 particularly 55 60 bhp iron ore pty ltd v australian worker union 2000 fca 430 102 fcr 97at 48 andgeraldton port authority 1999 fca 899 93 fcr 34 particularly 294 302 36 causal link injury alteration position might found incurred alleged prohibited reason case one view 809 work circumstance cfcsl australia pty ltd 2002 fca 513 113 ir 326 56 60 event evidence led tristar inconsistent existence particular reason intent connected 793 1 notwithstanding accept length service employee factor taken account dismissing size severance payment would made endeavoured show establish conduct tristar prohibited reason manner particular clause certified agreement worked practice fall within 793 1 construed context rest 793 1 rest pt 16 object structure act whole project blue sky inc v australian broadcasting authority 1998 hca 28 1998 194 clr 355 conclusion37 conclusion mean case must dismissed necessity consider position staff employee directly entitled benefit certified agreement distinguish named employee way order cost find proceeding instituted vexatiously without reasonable cause although end concluded basis relief claimed conclusion arrived evidence argument analysis unsworth v tristar steering suspension australia ltdchronologydateevent1921respondent founded 27 march 1962john anderson commenced employment respondent november 1964james parson commenced employment respondent 1965charles schofield commenced employment respondent 28 february 1970peter bitmead commenced employment respondent november 1971malcolm brabant commenced employment respondent 22 january 1973john gosano commenced employment respondent 28 january 1974cecilia maiolo commenced employment respondent 7 april 1975simeon kokinovski commenced employment respondent october 1975greg rutherford commenced employment respondent 1 june 1976jone tui vukici commenced employment respondent 7 march 1977antonia karabasis commenced employment respondent 10 october 1977george kaloustian commenced employment respondent 6 february 1978keith sayles commenced employment respondent 11 september 1978jordanka brsakovska commenced employment respondent 19 november 1979katerini georganda commenced employment respondent may 1983toula sousalis commenced employment respondent 20 june 1983mitre mitrevski commenced employment respondent 27 october 1983michael rutherford commenced employment respondent 2 october 1984george stojcevski commenced employment respondent july 1986james hoose commenced employment respondent second time following three year break 11 november 1986milos sajinovic commenced employment respondent 15 july 1987the da jason duong commenced employment respondent 11 april 1988veselin balovski commenced employment respondent 27 april 1988van nhan lam commenced employment respondent 29 may 1989nicolas el hawi commenced employment respondent 1 september 1990gavin avery commenced employment respondent 1993respondent acquired steering gear business owned james n kirby product pty ltd 5 december 1995timothy white commenced employment respondent 1 november 1996othman jasmani commenced employment respondent 1997respondent sold remanufacturing business 3 february 1997huuson sunny nguyen commenced employment respondent 27 october 1997blagojce bill kotevski commenced employment respondent 7 june 1999respondent informed staff employee entitlement redundancy 8 july 1999respondent offered guarantee employee redundancy entitlement inducement enter 1999 certified agreement 16 august 1999the australian industrial relation commission airc certified respondent 1999 certified agreement 20 december 1999arrowcrest group pty limited purchased issued share respondent 20 december 1999respondent employed 390 employee time arrowcrest acquired issued share respondent 6 january 2000respondent changed name trw steering suspension australia limited tristar steering suspension australia limited 6 january 2000cheng hong commenced role managing director respondent 17 march 2000respondent entered insurance bond national australia trustee limited respect employee redundancy entitlement 15 december 2000mr hong intended terminate insurance bond expiry bond 1 march 2001 2001cheng hong directed vincent kong core returned warranty retained use asset could remanufactured 30 april 2001respondent entered five year agreement holden december 2001respondent entered five year agreement ford steering gear 14 february 2002respondent entered insurance bond agreement national australia trustee limited 2002respondent contract ford came end 6 march 2002the airc certified respondent 2002 certified agreement 13 march 2002respondent informed staff employee entitlement redundancy certification 2002 certified agreement 18 april 2002mr hong reported director believed respondent forging business dying hong also reported new business obtained mitsubishi new quotation submitted holden 13 june 2002mr hong advised director arrowcrest respondent loss toyota dana business 1 july 2002mr vincent kong became director respondent 20 february 2003mr hong advised director mr kong would visiting china early march follow business opportunity believed high growth market automotive product march 2003mr hong mr kong visit china follow business opportunity 22 october 2003mr hong reported director arrowcrest visit china meet representative nanjing auto group expressed interest joint venture manufacture steering gear hefei winking asset co ltd 6 january 2004respondent entered three year lease option renew three year marrickville factory 19 february 2004mr hong reported director arrowcrest nanjing auto group accepted head agreement however requested equity 50 50 1 april 2004mr gwinnett reported director arrowcrest joint venture agreement signed nanjing automotive company may 2004mr hong mr kong visit china 6 may 2004respondent entered insurance bond agreement national australia trustee limited 24 may 2004respondent 2003 certified agreement certified agreement certified airc nominal expiry date certified agreement 30 september 2006 19 august 2004mr hong reported director arrowcrest negotiation nanjing automobile group reached deadlock mr hong also reported discussion held another chinese company shanghai shenzhen19 august 2004cheng hong reported director arrowcrest current profit could sustain rental cost respondent would move site 7 september 2004respondent revised amount insurance bond 17 057 312 december 2004respondent closed forge 1 2005a pilot run 30 remanufactured gear conducted 1 march 2005respondent announced rationalisation tool room die shop new department known tool die support application voluntary redundancy sought 1 march 2005spicer axle australia terminated supply contract forged axle respondent result respondent sought application voluntary redundancy march 2005respondent contract spicer axle came end april 2005managing director ningbo yongxin mon forging limited india visited tristar discus possible forging joint venture may 2005mr hong mr kong visit china continue negotiation nanjing july 2005respondent commenced working batch remanufactured steering gear trial august 2005respondent entered head agreement ningbo yongxin company ltd joint venture manufacture forging component china october 2005mr hong mr kong visit china negotiation several company 5 december 2005respondent entered joint venture agreement ningbo yongxin set forging manufacturing business ninghai december 2005respondent closed forge 2 january 2006 march 2006respondent contract mitsubishi came end january 2006respondent employed 177 employee following redundancy 2005 1 january 2006 1 april 2006respondent commenced discussion australian power steering relation possible acquisition respondent part whole australian power steering march 2006respondent sold 30 remanufactured steering gear made pilot program power steering part australia 150 12 april 2006respondent postponed march 2006 salary review due uncertainty future business may 2006respondent discussion foshan hengwei steering gear company come halt may 2006respondent continued discussion australian power steering relation possible acquisition respondent part whole company may 2006respondent ball joint assembly department ceased substantive operation may 2006vincent kong wrote australian manufacturing worker union amwu inform respondent pursuing business opportunity china australia market business june 2006mr kong asked mr sayles whether wanted head forge china part proposed joint venture mr sayles declined june 2006amit misra discussion amwu official martin schutz union delegate colin williams respondent desire remanufacturing work schutz said would speak employee june 2006a meeting convened canteen 50 60 respondent worker present shortly meeting schutz advised misra employee want remanufacturing work june 2006respondent made contact repco relation potential sale remanufactured steering gear june 2006respondent made contact burson auto part relation potential sale remanufactured steering gearsjune 2006 july 2006mr misra told cecilia maiolo employed respondent long get redundancy admitted respondent june 2006most respondent business manufacturing original equipment come end june august 2006respondent production department ceased substantive operations22 june 2006respondent notifies employee afternoon shift employee required work day shift 31 july 2006 27 june 2006the respondent planned 68 employee end august 2006 27 june 2006respondent decided pursue acquisition australian power steering july 2006respondent made first contact coventry relation potential sale remanufactured steering gear july 2006respondent made first contact supercheap auto brisbane relation potential sale remanufactured steering gear july 2006respondent contract holden came end 4 july 2006mr morelli mr koorey mr kong met graeme heine repco explore opportunity supply remanufactured steering gear 4 july 2006respondent knew australian power steering secured repco agreement exclusive supply remanufactured steering gear three year 1 march 2006 july 2006 december 2006respondent removed marrickville premise equipment four steering gear assembly line two input shaft assembly line pinion line sleeve line rack line plating line tie rod line 13 july 2006mr kong mr morelli met martin farrell bursons 13 july 2006respondent made presentation repco 19 july 2006planning meeting feasibility remanufacturing steering gear discussed respondent managerial supervisory employee including mr duong mr hirdle mr kong mr misra mr greg rutherford mr haschynski mr hodson mr koorey meeting mr kong said get business repco 22 july 2006one joint venture pursued respondent china came halt 25 july 2006the dispute subject arbitration sdp cartwright notified behalf respondent employee airc 27 july 2006vincent kong george koorey met product category manager supercheap auto july august 2006the union invoked status quo clause enterprise agreement misra understood mean company could require remanufacturing employee perform remanufacturing packing work dispute resolved 1 august 2006 30 september 2006vincent kong ceased work role general manager respondent result mr misra became respondent senior manager nsw 18 august 2006repco identifies shortcoming respondent proposal supply remanufactured steering gear august september 2006respondent tool room ceased substantive operation save couple job september 2006respondent electrical maintenance department ceased substantive operation 1 september 2006 1 october 2006respondent decided remove excess equipment required remanufacturing marrickville premise caringbah september 2006 october 2006respondent completed production part accessory car manufacturer save 5 000 tie rod assembly produced respondent toyota 1 september 2006mr kong mr morelli met mr heine discus repco concern 1 september 2006respondent intended replace 2003 union certified agreement employee certified agreement september 2006 january 2007respondent instructed electrician disconnect machine marrickville factory 7 september 15 september 16 october 27 october 1 december 2006hearing dispute sdp cartwright airc 7 september 2006martin schutz amwu gave evidence airc employee held view job packing work formerly undertaken employee made redundant respondent 8 september 2006respondent made offer supply remanufactured steering rack repco september 2006during hearing airc aron neilson amwu advised amit misra respondent agreed extend eba dispute could remanufacturing work would performed without issue september 2006vincent kong ceased respondent general manager september 2006amit misra took work panel consider question employee made redundant b make recommendation cheng hong september 2006 october 2006vincent kong left sydney work adelaide china joint venture project 4 october 2006respondent applied airc terminate certified agreement 17 october 2006respondent put landlord proposal new lease 19 october 2006respondent confirmed need space leased october november 2006toyota placed order respondent 5000 ball joint connection order respondent outsourced forging work part machining work third party capability work house october november 2006respondent ceased inspection part november 2006respondent maintenance department ceased substantive operation 10 november 2006submission respondent wanted terminate certified agreement order enhance prospect maintaining viable business november 2006 february 2007respondent met union number occasion attempt negotiate new redundancy package 1 december 2006respondent confirmed one important criterion deciding would made redundant employee length service respondent 1 december 2006respondent confirmed presently contract remanufacture steering gear early december 2006mark morelli told george koorey respondent effort try get repco business failed4 december 2006martin schutz amwu gave evidence airc dispute senior deputy president cartwright concerned whether respondent could transfer employee afternoon shift day shift whether respondent could transfer employee position made redundant whether respondent ability direct employee carry duty previously performed form part contract employment remanufacturing duty schutz indicated respondent sought employee perform remanufacturing work response employee indicated work company would continue guarantee current condition employment set certified agreement employee would prepared discussion respondent duty early december 2006respondent completed work toyota tie rod end contract 15 december 2006john anderson accepted voluntary redundancy stopped working respondent december 2006vincent kong handed responsibility amit misra finding customer respondent remanufactured steering gears31 december 2006respondent 15 staff employee 29 shop floor employee left december 2006respondent warehouse ceased substantive operation late december 2006respondent shut christmas break late december 2006 early january 2007remaining machine moved respondent premise january 2007 february 2007respondent shipped forging equipment sold india 5 january 2007respondent lease marrickville factory expired 6 january 2007respondent entered new one year lease respect 1 400 square metre part marrickville factory 10 size factory formerly leased respondent 9 january 2007senior deputy president cartwright handed decision requiring respondent employee comply respondent direction undertake duty remanufacturing steering gear task may within skill competence training 15 january 2007respondent employee returned work christmas shutdown 15 january 2007senior deputy president cartwright decision took effect 15 january 2007amit misra advised aron neilson amwu respondent would require employee perform remanufacturing work 16 january 2007amit misra held tool box meeting inform employee airc delivered decision confirming respondent able direct perform remanufacturing work 16 january 2007gavin avery accepted voluntary redundancy ceased employment respondent 17 january 2007 february 2007amit misra absent work three week due family circumstance january 2007amit misra took responsibility management respondent marrickville operation 22 january 2007senior deputy president marsh handed decision terminating 2003 certified agreement30 january 2007orders made marsh sdp certified agreement terminated effect 6 february 2007 b redundancy provision certified agreement preserved operation 6 february 2008 early february 2007cheng hong became aware marsh sdp ordered termination certified agreement redundancy provision would come end early 2008 february 2007respondent sold 100 core australian power steering 19 february 2007applicant commenced proceeding federal court australia 23 february 2007mitre mitrevski accepted voluntary redundancy employment respondent came end 23 february 2007veselin balovski accepted voluntary redundancy employment respondent came end 28 february 2007vincent kong approached jason duong liaison person china joint venture based office brownbuilt caringbah mr duong declined saying employed work product engineer translator march 2007 april 2007amit misra became desperate respondent lack customer remanufactured steering gear mr hong gave mr misra authority go look prospective customer 15 march 2007mr misra offered mr duong new job operation manager china mr duong declined saying skill job keen travelling china time family responsibility 23 march 2007timothy white accepted voluntary redundancy employment respondent came end 23 march 2007huuson nguyen accepted voluntary redundancy employment respondent came end 28 march 2007respondent confirmed order remanufactured equipment 28 march 2007respondent confirmed presently party joint venture manufacturing undertaken april 2007mr kong asked mr parson wanted become involved joint venture china mr parson declined position able travel china light wife health april 2007respondent expected china joint venture building completed third week june 2007 3 april 2007respondent offered sell remanufactured steering gear power steering part australia pty limited following expression interest april 2007mark morelli left respondent employ april 2007vincent kong left respondent employ 7 may 2007peter mcmahon power steering part australia informed respondent trouble selling respondent remanufactured steering gear rebuilder market still talking customer attempt sell gear 15 june 2007 15 july 2007mr misra met representative sree lakshmi industrial forge india 21 june 2007full bench airc handed decision set aside previous decision marsh sdp terminating certified agreement effect full bench decision together amendment theworkplace relation act terminate certified agreement extend operation redundancy provision certified agreement 21 june 2009 22 june 2007proposed commencement date new certified agreement intended cover respondent remaining employee june 2007cheng hong became aware redundancy provision certified agreement would continue apply middle 2009 july 2007 august 2007the respondent attempt secure remanufacturing business motospecs come nothing 15 july 2007cheng hong amit misra commenced discussion making employee redundant july 2007amit misra first attempted make contact repco 27 july 2007amit misra sent email cheng hong attaching proposal make employee redundant 30 july 2007amit misra commenced discussion union attempt cut deal redundancy 15 august 2007amit misra told cheng hong negotiation union probably going come conclusion satisfactory respondent 30 august 2007respondent announced redundancy 31 august 2007peter mcmahon pspa visited amit misra 31 august 2007telephone discussion amit misra cheng hong mr misra told mr hong peter mcmahon visit 31 august 2007cecilia maiolo antonia karabasis michael rutherford james hoose malcolm brabant charles schofield jordanka brsakovska katerini georganda nicolas el hawi derek gentle george kaloustian peter bitmead made redundant 3 september 2007cheng hong told amit misra remanufacturing work cease least time 3 september 2007respondent announced redundancy 30 november 2007date relevant employee made redundant 21 june 2009redundancy provision certified agreement expire certify preceding thirty seven 37 numbered paragraph schedule true copy reason judgment herein honourable justice gyles associate dated 13 august 2008counsel applicant mr neil sc mr saunderssolicitor applicant clayton utzcounsel respondent mr moses mr shortsolicitor respondent minter ellisondates hearing 16 20 july 6 10 14 september 2007 15 february 2008date judgment 13 august 2008
Geitonia Pty Limited v Leichhardt Council [2012] NSWLEC 1263 (6 September 2012).txt
geitonia pty limited v leichhardt council 2012 nswlec 1263 6 september 2012 last updated 28 september 2012land environment courtnew south walescase title geitonia pty limited v leichhardt councilmedium neutral citation 2012 nswlec 1263hearing date 5 6 september 2012decision date 06 september 2012jurisdiction class 1before moore scdecision 1 appeal dismissed 2 application modify development consent 2002 668 granted leichhardt council 22 december 2005 determined refusal 3 exhibit exhibit b 5 returned catchword modification development consistency original approval quantitative qualitative assessmentlegislation cited environmental planning assessment act 1979state environmental planning policy 1leichhardt local environmental plan 2000cases cited moto project 2 pty limited v north sydney council 1999 nswlec 280 1999 106 lgera 298north sydney council v michael standley associate pty ltd 1998 nswsc 163 1998 43 nswlr 468vacik pty limited v penrith city council 1992 nswlec 8texts cited category principal judgmentparties geitonia pty limited applicant leichhardt council respondent representation counsel dr berveling applicant m hemmings respondent solicitor m penklispenklis lawyer applicant m r mccullochpikes verekers lawyer respondent file number 10527 2012publication restriction ex tempore judgmentsenior commissioner 100 year building 113 parramatta road annandale formed part streetscape northern side road leading johnson creek hill johnston street annandale contribution built form frontage building made parramatta road deteriorated latter period life evidenced two document material first heritage study prepared john oultram heritage design may 2001 second photographic record building exterior prepared cam consulting dated 8 july 2011 site subject development consent granted 22 december 2005 construction mixed use development described term consent retention part existing building including majority front side facade stepped front veranda cantilevered parramatta road footpath demolition excavation construction mixed commercial residential development comprising eleven commercial unit twenty four residential unit two separate building basement car park accommodating forty car associated work including landscaping remediation site plan referred development consent include plan prepared taylor consulting pty limited facade proposed retained supported protected course demolition could retained incorporated development would finally constructed envisaged development consent reason irrelevant consideration retention façade occurred intent purpose respect parramatta road frontage demolished limited portion eastern western return wing retained matter come determination whether application modify development consent fashion would façade reconstructed partially new material extent possible salvaged material original façade approved pursuant tos 96 2 theenvironmental planning assessment act1979
Plaspak Food Packaging v WorkCover (No 3) [2001] SAWLRP 1 (16 January 2001).txt
plaspak food packaging v workcover 3 2001 sawlrp 1 16 january 2001 last updated 19 june 2002 2001 sawlrp 1workcover levy review panelworkers rehabilitation compensation act 1986plaspak food packaging pty ltd employer e13730303 applicant v workcover corporation south australia respondent 3 panel president g masonmember c matthewsmember p eblenreasons decisionpublished 16thjanuary 2001 application review supplementary levy imposed following termination employment partially incapacitated worker hearing commenced adjourned part heard party reaching agreement adjournment agreement involving withdrawal application review imposition supplementary levy closed period whether application may withdrawn whether determination consent may made panel analysis legislative scheme emphasis consensual settlement scheme mandate act without regard technicality legal form ss58band72 95and96 repealed worker rehabilitation compensation act 1986 case referred woolworth v krascek 1993 170 lsjs 143arrowcrest group v watson 1992 4 wcatr 312state v belluco 1993 168 lsjs 334 5 wcatr 1mcculloch v workcover 1993 5 wcatr 21workcover v hojski g 1993 170 lsjs 129dickson v workcover 1993 173 lsjs 90 5 wcatr 408jones v workcover 1994 175 lsjs 8plaspak v workcover 2000 wlrp 2plaspak v workcover 2 2000 wlrp 4santos v saunders 1988 49 sasr 556commissioner price consumer affair v chas moore 1977 hca 38 1975 139 clr 449walkely v dairy vale co operative preliminary issue 1972 39 sair pt 1 327collett v alsop 1982 49 sair pt 1 309ory v betamore 1993 sasc 3996 1993 60 sasr 393trittenheim v h h gill nominee 1994 63 sasr 434appearances mr g nash business sa applicant employer mr f morris respondent corporation decisionintroductionthe applicant employer letter dated 31 december 1999 sought review pursuant tosection 72of theworkers rehabilitation compensation act 1986 theact decision made respondent workcover corporation south australia workcover supplementary levy imposed upon employer background matter set preliminary determination adjournment dated 29 september 25 october 2000 plaspak v workcover 2000 wlrp 2 andplaspak v workcover 2 2000 wlrp 4 matter proceeded hearing 8 december 2000 sworn evidence received saheen gobbo administration manager david faulkner divisional manager applicant employer various document tendered issue arising case relates dismissal employer partially incapacitated worker may 1999 disputed dismissal would contrary tosection 58b 1 theactand thus attract sanction supplementary levy unless circumstance provided insection 58b 2 could shown employer apply matter adjourned part heard evidence submission presented appears party discussion following adjournment hearing resolved difference panel received copy following letter employer representative addressed workcover representative proceeding mr nash letter dated 20 december 2000 business sa letterhead addressed mr morris read refer previous discussion regarding matter advise plaspak food packaging withdraws application pursuant tosection 72of theworkers rehabilitation compensation actas result corporation removing supplementary levy 1 november 2000 please advise workcover levy review panel invite panel enter consent determination term mr morris covering letter dated 27 december 2000 following term please find attached original letter greg nash business sa withdrawing thesection 72application based workcover removing supplementary levy 1 november 2000 plaspak food packaging believe withdrawal indicates employer desire pursue matter panel ask matter finalised manner determined panel representative raised informally question procedure followed terminate proceeding accordance agreement mindful various authority worker compensation appeal tribunal relating procedural constraint review officer former worker compensation review panel case ofwoolworths v krascek 1993 170 lsjs 143 example worker compensation appeal tribunal questioned right party proceeding former panel withdraw application review filed reference made fundamental obligation review officer make fresh determination matter decision subject review relates additionally difficulty worker compensation review panel entering determination consent seearrowcrest group v watson 1992 4 wcatr 312 even party managed settle difference agreement thensection 95 6 theactexplicitly commanded endeavour question ability give effect agreement obvious mean namely making relevant compensating authority new decision 1 seestate v belluco 1993 168 lsjs 334 5 wcatr 1 2 although see alsomcculloch v workcover 1993 5 wcatr 21 tribunal differently constituted appeared see difficulty corporation proceeding withdrawing decision substituting new one party abandoned interest dispute ceased attend hearing former worker compensation review panel thought power strike review application want prosecution seedickson v workcover 1993 173 lsjs 90 5 wcatr 408 see alsojones v workcover 1994 175 lsjs 8 review officer eventually learnt deal constraint device hearing joint submission party effect particular jointly desired determination appropriate justified circumstance case basis uncontradicted submission making finding determination accordingly may nevertheless thought proliferation formal hearing purpose inefficient contrary modern case management principle find favour court day workcover levy review panel heard submission mr nash mr morris matter however view panel accordance wish party opportunity peruse copy determination draft extended without request opportunity make submission panel respectfully offer following observation focus conciliation asection 72reviewthe authority referred andwoolworths v krascek 1993 170 lsjs 143in particular arose might referred respectfully zealous interpretation specific wording formersection 96 2 theact counterpart formersection 96 2 insection 72 lest observation thought undermine reasoning inplaspak v workcover 2000 wlrp 2 andplaspak v workcover 2 2000 wlrp 4 nature review undersection 72 drew heavily uponsantos v saunders 1988 49 sasr 556 stress general nature procedure name appearing enactment ought presumed obviously parliamentary intent make variation detail implementation must given effect therefore conclude whatever procedural formality parliament might thought intended apply tosection 95reviews theactas first enacted 1986 intend apply formal constraint tosection 72reviews add case thought thatsection 72 4 way governs situation limiting power board delegate may exercise review controlling word ofsection 72 4 may paragraph way sensibly taken exhaustive list board option dealing matter event present situation applicant seek withdraw application occasion exercising power arises section 72 4 even way limit power board delegate purport limit right applicant also instructive note clause 8 2 board determination setting workcover levy review panel delegating board power undersection 72 seesouth australian government gazetteof 29 june 2000 page 3472 enjoins panel inter alia act according equity good conscience substantial merit case without regard technicality legal form approach board undoubtedly able adopt acting pursuant tosection 72and therefore able stipulate exercising power delegation abundant case law exists effect expression 3 fair say least allows latitude procedural evidentiary rule might possible body court invested mandate existence flexibility allow party withdraw application seek determination consent logical conclusion drawn approach additionally although appear expressly insection 72itself term delegation setting workcover levy review panel seesouth australian government gazetteof 29 june 2000 page 3472 lay heavy emphasis conciliation application conciliation may clearly seen preferred mean resolution rather formal adjudication sense panel may seen similar position worker compensation tribunal current incarnation particularly noteworthy clause 7 3 board determination 29 june 2000 provides 3 hearing matter appears panel realistic prospect negotiated outcome achieved may refer matter back conciliation panel may make attempt promote conciliation think appropriate workcover levy review panel therefore given direct responsibility promotion settlement outside formal adjudication process process conciliation given importance process hard overstate moreover conciliation given extremely wide meaning clause 7 4 read 4 clause conciliation includes counselling b mediation c neutral evaluation case appraisal e conciliation f combination format conciliation particular case shall discretion conciliator consultation party proviso confidential information provided conciliation shall divulged panel unless provider information agrees clearly contemplates high degree flexibility term conciliator defined would appear include person group actually conducting organising process conciliation confined official conciliator employed attached panel registry could include panel acting accordance clause 7 3 whoever conciliator may evident apparent directive power conciliator determine form conciliation used way contrary expressed wish party conciliation must always belong first foremost party dispute delicacy subtlety conciliation always well understood attempt direct conciliation way contrary aspiration party able form agreed aspiration would antithesis conciliation almost conceivable circumstance conciliator facilitative rather directive effectiveness role often likely maximised conciliator input appears invisible follows party able wish discus resolve matter without formal supervision official conciliator surely within spirit emphasis scheme consensual settlement agreement genuinely freely arrived disputing party long resolve case even narrow issue dispute lawful way barrier put way would appear consistent legislative scheme comprisingsection 72and board determination 29 june 2000 present case following unsuccessful conciliation attempt much 2000 first day hearing december 2000 party indeed managed initiate discussion possibly informed experience first hearing day reached agreement live surely ultimate objective conciliation discouraged accordingly reason find agreement party reached reached accordance spirit legislative scheme emphasis conciliation even though involve formal supervision impugned account informality process conclusionin opinion competent party reached agreement recorded business sa letter set result agreement applicant employer withdraw application review would equally competent party seek panel make determination application term agreement reached indicate would make determination called upon wrong opinion indicate result evidence heard document tendered u would also merit lean towards conclusion effect namely supplementary levy correctly appropriately applied exercise board discretion undersection 72 would apply shorter period ending shortly time matter came u determinationnoting application review u withdrawn competently upon reaching party agreement resolving issue determine proceeding end gary masonpresidentpaul eblenmemberchris matthewsmember 1 specific power inserted intos 53on 24th february 1994 2 chief justice also referred finality corporation claim decision inworkcover v hojski g 1993 170 lsjs 129 clear context honour mind rule word wasunilateralchanges decision corporation consent technically consent emerge part conciliation process constitute step direction dispute resolution 3 see example walkley v dairyvale co operative ltd 1972 39 sair 327 commissioner price consumer affair v chas moore 1977 hca 38 1975 139 clr 449 collett v alsop 1982 49 sair pt 1 309 318 ory v betamore 1993 sasc 3996 1993 60 sasr 393 trittenheim v h h gill nominee 1994 63 sasr 434
MASSIE and PETER STANNARD HOMES (Decision 0.1361) [2003] WABDT 48 (1 September 2003).txt
massie peter stannard home decision 0 1361 2003 wabdt 48 1 september 2003 jurisdictionbuilding dispute tribunalcorammr forrester deputy chairpersonheard1 september 2003orders issued10 september 2003written reasonspublished10 september 2003complaint noo 1361betweenloren massiecomplainant owner andpeter stannard homesrespondent builder catchwordsclaims cost expense substantial hearing proof cost incurred notice loss incurred due delay jurisdiction chairperson sitting alone representationcomplainantsmrs massierespondentms watson counsel mr g wilsoncases referred toin decisionseaman civil procedure western australia supreme court paragraph 66 21 1victoria laundry ltd v newman ltd 1949 2kb 528reasons decision1 0 background1 1 party entered contract 20 january 1998 early september brickwork commenced immediate concern raised owner standard colour mortar building came halt inspection made expert including builder registration board 12 november 1998 solicitor drawn party eventually 11 december builder pulled exterior wall negotiation building resumed march 1999 direction hearing held 2 march 1999 resulted one report agreed supplied otherwise matter adjourned sine die 1 2 result enquiry tribunal owner advised 1 september 1999 wished retain right claim cost asked file left open six month 8 september 2000 matter resurrected request hearing cost incurred owner matter complicated owner separate claim aspect workmanship tribunal heard separately 1 3 matter listed 12 march 2003 hearing counsel builder raised preliminary objection concerning item correspondence resolved decision dated 19 march 2003 claim owner came hearing 1 september 2003 2 0 claim costs2 1 letter dated 12 january 2003 owner claimed seven item one withdrawn remaining six item legal fee paid kott gunning 3 320 report dated 2 november 1998 associated building consultant 180 report mortar analysis dated 4 november 1998 cbm laboratory pty ltd 300 report dated 17 november 1998 robin salter assoc engineer 398 incidental 250 cost delay 5 600 1 2 1 legal fee cover period 3 november 1998 january 1999 contained schedule date relating attendance telephone call meeting 1 2 2 bill firm associated building consultant file amount claimed correct relates inspection report brickwork inspection 2 november 1 2 3 bill report laboratory analysis mortar file 1 2 4 bill report robin salter file relates inspection done firm 17 november brickwork sum claimed correct 1 2 5 claim incidental documentary support owner claimed nurse staff covered absent attending problem house approximately 80 involved loss income photocopier cost came 84 three copy 28 page submission 1 2 6 cost delay arose result owner allegedly continue live residential house claremont unable rent house intended moving new house alleged original date completion 10 january 1999 house actually completed 25 june 1999 handover 30 june 1999 file assessment rent 285 valuer actual rent received let 280 per week owner said advised builder intention rent delay loss builder strenuously denied advice received owner asked produce letter notice actually sent prior date signing contract given one week date signing contract 20 january 1998 owner produced letter notice sent prior date date valuation 6 november 1998 3 0 decision builder objections3 1 1 counsel builder stated substantive hearing therefore legal cost could claimed neither could legal cost claimed final decision tribunal also alleged clause 19 general condition contract relating defect liability notice applied discharge builder cost builder produce case 3 1 2 first matter supreme court rule order 66 rule 21 relates cost substantive trial counsel stated could charged court order 66 rule 21 allow see commentary seaman supreme court rule stated rule may also apply reasonable remuneration sought preliminary work cannot properly described getting trial effect taxing officer allow reasonable sum must exceed normal cost item claim looked number way builder registration board able make report 12 november tribunal could brought time allowing cost date amount 885 amount allowed total 3 320 3 1 3 reference clause 19 relates obligation builder contract complete work builder absolved every otherclaim every made would action available defect subsequently become apparent within next six year meaning clause 19 therefore interpreted within context building work subject contract date completion 3 2 3 3 and3 4 report obtained used persuade builder defective work builder object pay basis accept liability decision demolish rebuild commercial decision nothing liability might found hearing tribunal position claim lodged tribunal committee called matter settled party building issue purely basis demolition rebuilding effect builder claim cost included settlement therefore outside jurisdiction tribunal pursuance matter commercial decision resolved issue owner time agree result matter remained tribunal albeit considerable delay cost incurred directly referred matter raised complaint form lodged tribunal 29 september 1998 remained existence despite subsequent arrangement party remained part case tribunal claim allowed 180 300 398 respectively total 878 3 5 proof incidental cost form account receipt appreciated incurred one form another claim loss earnings particular vague might made time certain amount written printed proof reasonably required claim without claim must dismissed 3 6 1 claim loss renting income requires prior notice respondent principle set case victoria laundry ltd v newman ltd 1949 2kb 428 noted person suffers loss placed situation regard damage contract performed however defendant claim directly made aware potential loss liable reasonable person could concluded loss question liable come enough could foresee likely result 3 6 2 instance alleged builder ought foreseen owner existing house would using investment letting rent evidence owner advised builder prior contract signed 20 january 1998 owner even ascertained rent could get 6 november 1998 law requires builder advised potential loss contract signed becomes term contract builder alerted question therefore whether could reasonably foreseen builder existing house would rented could also sold givento child tribunal usually award sum loss owner property renting awaiting completion house foreseen loss occurred circumstance considered builder liable since given notice potential loss contract signed exact rent per week need stated estimated cost notified claim therefore dismissed 4 0 jurisdiction tribunal4 1 counsel builder also claimed matter simple dispute dealt full tribunal deputy chairperson sitting alone section 35 2a builder registration actgives tribunal authority deputy chairperson sit alone simple dispute simple dispute stated 4 2 matter almost legal nature section 36 2 act matter determined deputy chairperson legal authority 4 3 apart legal issue complication evidence builder query actual make account apart legal fee 4 4 section leaf matter discretion chairperson deputy chairperson nothing current claim make essential determination full tribunal 4 5 complicated factual issue objection cannot sustained 5 0 ordersthere order therefore builder pay owner sum 885 legal cost plus 878 report total 1 763 within 14 day date order dated deputy chairman
Gleeson, Cherry (2011 TASCD 344) [2011] TasCorC 51 (15 September 2011).txt
gleeson cherry 2011 tascd 344 2011 tascorc 51 15 september 2011 record investigation death without hearing coroner act 1995coroners rule 2006rule 11i christopher p webster coroner investigated death cherry gleesonwithout holding inquestfind cherry gleeson mr gleeson died 13 15 february2010at star garter hotel carpark high street new norfolk tasmania aged 56 year b mr gleeson born 13 february 1954 campbell town married one daughter disability pensioner time death c mr gleeson died result probable hyperthermia environmental heat exposure due entrapment car boot background mr gleeson married woman lived husband mr david gleeson new norfolk family home daughter miss brooke gleeson resided home new norfolk mr gleeson worked receptionist 1999 became disability pensioner due cognitive effect brain aneurism suffered 1998 beginning 1998 mr gleeson suffered subarachnoid haemorrhage required long admission hospital surgical intervention neurosurgical proceedues left mr gleeson cognitive impairment able still function judgement wasimpaired also developed anxiety attack treated alprazolam general practitioner dr peter 2001 mr gleeson remained medication however known whether taking medication six month prior death 2006 mr gleeson sought treatment gp sensory disturbance effecting finger foot consultation led provisional diagnosis peripheral neuropathy damage nerve peripheral nervous system revealed liver disease mr gleeson admitted consuming bottle wine three four time week referred consultant physician dr nightingale suggested problem related excess alcohol intake suffering alcoholic liver disease peripheral neuropathy doctor tried emphasize importance abstinence alcohol time mr gleeson consulted gp four occasion last january 2010 swine flu vaccination dr peter noted seemed quite well visit futher noted mr gleeson spite residual cognitive disability resulting neurosurgery managed function reasonably well history alcoholism became aware 2006 aggravated mental state seen 20 01 2010 presented quite well well dressed sign personal neglect seemed quite happy mr gleeson generally good relationship husband difficulty occurring consuming alcohol mr gleeson known usually consume wine noted since brain aneurism consumed alcohol also noted marked increase alcohol consumption death close friend 2007 mr gleeson would ofter go smith hotel new norfolk day met mary watt lived next star garter hotel high street new norfolk would often stay away home day time mobile phone come home mr gleeson would often drive around new norfolk looking often located vehicle parked high street outside house next hotel car park behind pub sometimes m watt would contact mr gleeson ask collect mr gleeson would consumed large amount alcohol would often go home mr gleeson would sleep spare room every couple week 3 4 day whenever stayed away day drinking heavily would get upset angry alcohol consumption stayed away home preferred speak issue felt like want argue circumstance surrounding death 2 00pm 13 february 2010 mr gleeson went star garter bottleshop rear hotel high street new norfolk purchased two bottle trevi asti wine speaking owner bottleshop m debbie simpson left car m simpson closed shop evening noticed mr gleeson car bottom corner hotel car park m simpson think unusual noticed mr gleeson often parked visiting m watt vehicle would stay overnight drinking alcohol 2 00pm 14 february 2010 m simpson noticed mr gleeson car still parked position mr gleeson noted go bottleshop day car moved closing evening repeated following day mr gleeson last saw mr gleeson late morning 13 february 2010 birthday brief conversation 12 30pm went lachlan fire station continue work returned home later afternoon one home evening went new norfolk buy dinner saw mr gleeson vehicle parked star garter hotel car park thought nothing friend m watt following evening drove new norfolk saw car location sunday 14 february 2010was mr mr gleeson wedding anniversary originally planning take mr gleeson orford weekend changed mind away home week decided want stay home alone went drive dunalley returned richmond checked joint bank account returning new norfolk found money withdrawn since last checked day previously checked hotel carpark finding mr gleeson car still parked used spare key check inside found nothing ordinary 4 30pm 15 february 2010 mr gleeson checked hotel carpark mr gleeson car vehicle still position opening vehicle noticed smell previous day opened hatchback car found mr gleeson lying curled along handbag unsuccessfully tried wake immediately called ambulance arrived soon along police ambulance personnel confirmed mr gleeson deceased police initially treated area crime scene extensive police investigation followed revealed along result post mortem examination suspicious circumstance surrounding tragic death mr gleeson indication history self harm mr gleeson one component police investigation examination hatchback door mechanism closing opening inside determined hatchback vehicle could easily closed inside also hatchback closed 40cm opening weight door would cause close shut testing indicated hatch could closed without locking importantly could opened inside using latch positioned locking mechanism pushed released door day mr gleeson missing reported maximum temperature 20 22 degree 14 february 25 28 degree 15 february 2010 forensic testing inside temperature mr gleeson vehicle maximum air temperature 23 degree revealed 38 degree mr gleeson vehicle direct sunlight 15 february 2010 maximum day temperature least five degree higher concluded temperature inside vehicle day would also higher test day appears mr gleeson crawled boot hatch section vehicle intention sleep knowing could opened inside closing hatchback possible sometime later become disoriented dark unable locate latch open hatchback door inside gone sleep tragically mr gleeson died 13 14 february 2010 hatch vehicle parked hotel carpark star garter hotel new norfolk post mortem examination conducted forensic pathologist drdonald ritchey dr ritchey determined cause death probable hyperthermia environmental heat exposure due entrapment car boot stated significant contributing factor chronic alcoholism perimortem ethanol intoxication finding comment find police conducted thourough comprehensive investigation circumstance surrounding death mr gleeson satisfied investigation reveal involvement person matter mr gleeson died circumstance creation secured rear vehicle believe action time intended fatal consequence ensued agree conclusion reached dr ritchey mr gleeson probably died result heat exposure entrapped rear vehicle convey sincere condolence mr gleeson family dated 15september 2011athobartin state tasmaniachristopher p webstercoroner
R v M A G [2005] VSCA 47 (18 March 2005).txt
r v g 2005 vsca 47 18 march 2005 last updated 21 march 2005supreme court victoriacourt appealno 294of 2003the queenv g judge winneke p chernov j cummins j held melbournedate hearing 21 february 2005date judgment 18 march 2005medium neutral citation 2005 vsca47 criminal law sexual offence child admission recent complaint evidence evidence capable qualifying recent complaint direction respect complaint evidence inadequate consequence failure take exception judge comment experience court complaint evidence prejudicial undesirable judge erring permitting vate tape evidence replayed jury without cautioning jury give unnecessary weight evidence appeal conviction allowed retrial ordered appearance counselsolicitorsfor crownmrs c quinsolicitor public prosecutionsfor applicantmr p g priest q c mr gillespie jonespaul vale pty winneke p applicant presented county court melbourne september 2003 presentment containing 14 count alleging principally sexual assault two young daughter de facto partner call daughter respectively c time alleged offending c aged approximately 14 15 year aged approximately 11 12 year 11 count presentment alleged offence c remaining three alleged offence offending alleged occurred june 2000 june 2001 premise party lived bacchus marsh trial conducted several day evidence called defence jury convicted applicant seven count involving c namely count 1 threat kill count 2 7 incest count 3 attempted indecent act count 9 10 11 indecent act applicant convicted one count namely count 12 incest three count involving count 12 14 applicant acquitted count 4 5 6 8 13 14 3 october 2003 judge sentenced applicant total effective sentence four year imprisonment directed serve 2½ year term becoming eligible parole applicant applied court leave appeal conviction upon number ground ground assert ground 2 misdirection respect recent complaint
Cliff Rd Developments Pty Ltd v City of Parramatta Council [2018] NSWLEC 1290 (15 June 2018).txt
cliff rd development pty ltd v city parramatta council 2018 nswlec 1290 15 june 2018 last updated 18 june 2018land environment courtnew south walescase name cliff rd development pty ltd v city parramatta councilmedium neutral citation 2018 nswlec 1290hearing date conciliation conference 1 10 24 may 2018 7 june 2018date order 15 june 2018decision date 15 june 2018jurisdiction class 1before walsh cdecision see 4 belowcatchwords development application conciliation conference agreement party orderslegislation cited environmental planning assessment act 1979land environment court act 1979category principal judgmentparties cliff rd development pty ltd applicant city parramatta council respondent representation solicitor arraj blackstone waterhouse lawyer applicant c drury sparke helmore lawyer respondent file number 2017 339411publication restriction nojudgmentcommissioner matter conciliation conference agreement unders 34 3 theland environment court act 1979 court act reached party term decision proceeding acceptable party presiding commissioner satisfied decision one court could made proper exercise function test applied 34 3 court act consequence 34 3 act required dispose proceeding accordance decision court act also required set writing term decision 34 3 b order made give effect agreement constitute document making order give effect agreement party required make made merit assessment issue originally dispute party final order give effect party agreement unders 34 3 theland environment court act 1979are 1 applicant granted leave amend development application da 1127 2016 substituting following plan documentation plan documentation relied upon purpose development application numberrevtitleauthordatea0 01gdrawing list development summaryaplus design group11 05 2018a2 01dbasement 3aplus design group11 05 2018a2 02dbasement 2aplus design group11 05 2018a2 03ebasement 1aplus design group11 05 2018a2 04glower ground floor planaplus design group11 05 2018a2 05iupper ground floor planaplus design group11 05 2018a2 06elevel 1 2aplus design group11 05 2018a2 06bblevel 3aplus design group11 05 2018a2 07flevel 4aplus design group11 05 2018a2 08dlevel 5 communal open spaceaplus design group11 05 2018a2 09eroof planaplus design group11 05 2018a3 01fnorth south elevationsaplus design group11 05 2018a3 02feast west elevationaplus design group11 05 2018a4 01esection aaplus design group11 05 2018a4 02esection b baplus design group11 05 2018a4 05aramp sectionaplus design group11 05 2018a4 10asection c caplus design group11 05 2018a4 11asection daplus design group11 05 2018a6 04cviews sunaplus design group11 05 2018a6 05cviews sunaplus design group11 05 2018a7 01fcross ventilation solar access analysisaplus design group11 05 2018a7 02dunit scheduleaplus design group11 05 2018a7 03ecommunal open spacesaplus design group11 05 2018a7 04fdeep soil area calculationaplus design group11 05 2018101jlandscape plan lower ground groundsite image10 05 2018102dlandscape plan roofsite image10 05 2018501jlandscape detailssite image10 05 2018601alandscape sectionssite image10 05 2018 2 pursuant tosection 8 15of theenvironmental planning assessment act 1979 applicant pay cost respondent thrown away result amending development application lump sum 12 500 00 3 appeal upheld 4 development application da 1127 2016 demolition existing structure subdivision construction five storey residential flat building basement level parking 33 35 cliff road epping approved subject condition set hereto inannexure peter walshcommissioner courtannexure 325 kb pdf annexure b 8 03 mb pdf
R v Minnis [2014] ACTSC 268 (23 September 2014).txt
r v minnis 2014 actsc 268 23 september 2014 last updated 16 october 2014supreme court australian capital territorycase title r v minniscitation 2014 actsc 268hearing date 22 23 september 2014decisiondate 23 september 2014before murrell cjdecision see 25 26 category sentencecatchwords criminal law sentence found guilty following jury trial aggravated burglary company armed offensive weapon assault occasioning actual bodily harm violent home invasion conditional liberty rehabilitationlegislation cited crime sentencing act 2005 act s 7 12 33crimes act 1900 act 24criminal code 2002 act 312parties queen crown rian christopher minnis offender representation counselmr fernandez crown mr j lawton offender solicitorsdirector public prosecution act crown john keefe offender file number scc 39 2014murrell cj introduction1 following trial jury found offender guilty three count
L T & D Harris Pty Ltd t_a Ray White Holland Park re Ray White Holland Park Enterprise Agreement 2010 [2010] FWAA 5348 (19 July 2010).txt
l harris pty ltd ray white holland park ray white holland park enterprise agreement 2010 2010 fwaa 5348 19 july 2010 fair work australiadecisionfair work act 2009s 185 approval enterprise agreementl harris pty ltd ray white holland park ag2010 8874 ray white holland park enterprise agreement 2010real estate industrysenior deputy president richardsbrisbane 19 july 2010application approval ray white holland park enterprise agreement 2010 1 30 april 2010 application pursuant tos 185of thefair work act 2009 act made l harris pty ltd ray white holland park approval single enterprise agreement known ray white holland park enterprise agreement 2010 agreement 2 satisfied requirement ofss 186 187and188of act relevant application approval met 3 agreement approved operate accordance withs 54of act senior deputy presidentprinted authority commonwealth government printer price code g ae879209 pr999467
Kay v South Eastern Sydney Area Health Service [2003] NSWSC 292 (3 April 2003).txt
kay v south eastern sydney area health service 2003 nswsc 292 3 april 2003 last updated 14 april 2003new south wale supreme courtcitation kay v south eastern sydney area health service 2003 nswsc 292current jurisdiction equity divisionfile number 5038 02hearing date 03 04 03judgment date 03 04 2003parties stephen kay p south eastern sydney area health service d1 guide dog association new south wale act d2 seeing eye dog australia d3 eric williams d4 judgment young cj eqlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel john wilson p gray solicitor d1 miss sneddon d4 solicitor patrick grime co p deacon d1 boyd house partner d4 catchword charity 89 effect racist gift exemption anti discrimination legislation intent testator succession 143 construction significance punctuation denial benefit next kin effect presumption intestacy effect condition void uncertainty act cited anti discrimination act 1977 55race relation act 1976 34racial discrimination act clth 1975 8 2 decision gift containing racially discriminatory condition valid since exempted legislation operation anti discrimination law construed executor received gift house judgment supreme courtof new south walesequity divisionyoung cj eqthursday 3 april 20035038 02 kay v south eastern sydney area health servicejudgment1young cj eq plaintiff executor named marjorie ellen williams died 2 january 2002 first made published last testament 21 december 1998 probate whereof duly granted plaintiff 9 may 2002 2 holograph made form principal provision follows appoint stephen kay executor trustee expect carry order without change one contest give royal north shore hospital 10 000 liver department give child hospital randwick 10 000 treatment white white underlined twice baby give blind dog 10 000 dog pet elderly give pink lady ryde hospital 5000 finished craft sell shop brother wife descendant underlined twice get anything house 1 cent money stephen kay want sell house must sell young white white underlined twice australian couple reasonable price sell auction developer stephen kay want handle pay someone else solicitor like stephen kay get house content money left expense paid money st george bank investment esanda finance nothing house sold given anyone need charity even rotary garage sale smith family st vincent de paul one want go tip goodbye anyone interested 3 deceased left home 18a gaza road west ryde valued 400 000 84 000 st george bank car worth 1500 43 000 money esanda st george bank 4 executor asked court determine question construction doubtful doubtful point part set italic 5 first question whether gift child hospital randwick good gift 6 first problem hospital exact name child hospital randwick child spelt capital c prima facie testatrix meant particular hospital however evidence one hospital could meet testatrix description sydney child hospital randwick operated first defendant corporation 7 main debate significance word white baby 8 submission put limitation use money contrary public policy 9 effect according mr john wilson plaintiff trustee invalidate condition money would pas first defendant unconditionally 10 argument miss margaret sneddon next kin fourth defendant whole gift destroyed residue clause 10 000 gift would lapse fall residue thus go client intestacy 11 debate significance theracial discrimination act1975 commonwealth parliament theanti discrimination act1977 state parliament 12 seems gift white baby actually gift discriminates ground race true semantic sense however legislation dealing racial discrimination includes reference discrimination ground colour point academic 13 perceived wisdom textbook exemplified bywilliams wills8th ed butterworths london 2002 para 9 38 trust discriminates potential beneficiary ground colour void contrary public policy gift succeeds run foul relevant statute 14 english case law back statement inwilliams leading authority isin lysaght 1966 ch 191where gift scholarship male student son duly qualified british born medical man british born subject jewish roman catholic faith buckley j distinguished situation testator true paramount intention effect charitable purpose condition impracticable situation particular charitable intent donor meant take effect condition could fulfilled lordship held thatinre lysaghtthe trust fell first category could settle cy pres scheme charity relevant trustee would accept office operate charity testator set 15 earlier case ofin dominion student hall trustee 1947 ch 183is line case assist present case apart getting rid possible odour contravention public policy would agree miss sneddon submission sensible interpretation gift child hospital white baby integral part gift particular method implementing general charitable gift 16 england way problem gift appears contrary spirit theracial discrimination actis handled 34 therace relation act1976 operates gift may used confer life benefit person generally restriction colour disregarded 17 however australian legislation taken different tack 8 2 theracial discrimination actand 55 theanti discrimination actprovide deed confers charitable benefit person class identified reference one ground discrimination referred legislation affected act 18 far research go counsel decision interpretation provision miss sneddon put argument 8 theracial discrimination actdid apply present gift cannot see case squarely within word section section obviously recognises generally speaking testator capricious like wish benefit charity respect even discriminatory group liberty 19 accordingly view gift valid charitable gift gift treat sick child hospital course open hospital accept gift would expect pragmatic approach would receipt fund benefit white baby would mean general fund hospital would available treat non white baby due course despite testatrix intention thing even 20 also considered expression white baby might void uncertainty number situation case general phrase used entitling disentitling people benefaction court indicated even though ordinary man woman street might consider know expression mean nonetheless void uncertainty thusin tarnpolsk 1958 1 wlr 1157 danckwerts j held impossible give sufficient meaning phrase person jewish race 21 inin allen 1953 ch 810at 817 819 lord evershed mr held word tall would vid uncertainty gift testator descendant might tall result would follow gift pure blooded englishman 22 however conclusion reached principal point necessary consider white baby whether term vague void uncertainty accordingly collateral problem effect white baby part clause whether void considered accordingly uphold gift 23 second part cause problem gift blind dog institution exactly answer description although two charity australia provide seeing eye dog material suggests likely testatrix meant second defendant guide dog association new south wale act evidence showing charity particular program known pet therapy program elderly evidence competing charity program note although charity duly served neither appeared hearing summons leaving counsel trustee court construe view small amount involved commended 24 lead final part italicised question whether plaintiff entitled gift stephen kay get house content money left expense paid gift content house plus money whether house well content money 25 party would indication direction looking whole significant testatrix particularly careful use comma punctuation mark punctuation mark occur time time especially full stop comma always used grammarian would used sometimes used would 26 case law significance given punctuation lack punctuation will said aswilliamsdoes para 50 14 whilst different view importance punctuation prevailing view appears one guided punctuation mark lack punctuation mark see instance houston v burn 1918 ac 337 342 jeffrey 1948 2 er 131 oppenheim v henrywhich reported note towalker v tipping 1852 engr 318 1852 9 hare 800 803 1852 engr 318 68 er 740 742 andre crocombe 1949 sastrp 19 1949 sasr 302 304 27 depends way testatrix generally used punctuation much influence instant case seem punctuation great guide working whether put notional comma house content dispositive clause 28 matter go towards reading word house content house content residual clause testatrix tried dispose almost every piece property rose dinner set finished craft work couple item specifically mentioned commercial value yet must sentimental value testatrix made sure disposed mentioned every piece property mr wilson put would unusual intended also dispose major asset house 29 furthermore mention house least two occasion view reinforced presumption intestacy presumption intestacy actually reinforced instant case reference brother get anything house 1 cent money stronger expression referred certain relative merely get anything brother fourth defendant sole next kin whilst clause brother get anything house 1 cent money widely construed would remove brother benefit law intestacy seepedulla v nasti 1990 20 nswlr 720 mind reinforce presumption intestacy 30 however may well clause brother wife getting anything house may refer final paragraph anyone need anything house take even think flavour brother receive benefaction would strange testatrix must known brother next kin left doorway open take intestacy 31 argument way includes focusing actual word used house content phrase mean house rather house money left seems suggest sale house content rather gift house word appear immediately stephen kay want handle sale house pay someone else would quite unnecessary intended stephen house however relevant paragraph reference stephen kay want sell house 32 raise problem whichever way one look mr wilson focus word want meaning gift house must beneficial otherwise executor want would matter way looking word want mean decision circumstance appropriate refers executorship reinforced ability appoint agent 33 power given expressly executor sell strange possible disposition house put term 34 view answer particular problem testatrix lady strong dislike wanted make sure solicitor far know one solicitor involved present case like make money transaction command sold house sold young white australian couple cannot value except indicate purpose gift hospital really mean said white baby young white australian couple must expression void uncertainty apart difficulty working white couple difficulty working australian mean australian birth person since obtained australian nationality mean member couple must australian couple mean couple different sex include sex couple etc etc etc far room uncertainty word white baby 35 gift course stephen outright proviso would void attempt restrain alienation fee simple seehall v busst 1960 hca 84 1960 104 clr 206 great degree matter impression view submission made mr wilson likely reflect testatrix desire gift house content pass real property 18a gaza road west ryde 36 accordingly answer question 1 yes question 2 yes question 3 yes question 3 ii question 4 applicable 37 make order 5 summons order cost plaintiff indemnity basis cost defendant paid estate late marjorie ellen williams last updated 10 04 2003
Richmond Football Club Ltd at Wantirna Club premises (Gaming-EGM increase) [2015] VCGLR 31 (24 July 2015).txt
richmond football club ltd wantirna club premise gaming egm increase 2015 vcglr 31 24 july 2015 last updated 31 october 2016decision reason decisionin matter application section 3 4 17 1 b thegambling regulation act 2003by richmond football club limited amendment venue operator licence vary number electronic gaming machine approved premise wantirna club located 250 stud road wantirna eighty seven 87 ninety seven 97 commission dr bruce cohen chairmiss gail owen deputy chairappearances m sarah porritt counsel applicant instructed bazzani scully priddle mr justin ghattas counsel assisting commissiondate hearing 18 june 2015date decision 24 july 2015date reason 24 july 2015decision application granted subject condition outlined paragraph 107 reason decision signed bruce cohenchairreasons decisionintroductionthis application richmond football club limited applicant victorian commission gambling liquor regulation commission amendment venue operator licence vary number electronic gaming machine egms operating wantirna club 350 stud road wantirna premise 87 97 application premise located city knox knox relevant municipal authority knox city council council letter dated 25 may 2015 commission council indicated oppose application basis council make submission appear hearing application legislation task commissiongambling egms legal recreational commercial activity victoria long done accordance thegambling regulation act 2003 act act recognises notwithstanding individual right self determination gaming egms cause harm community member community reason act includes safeguard ensure appropriate balance struck lawful legitimate recreational activity potentially harmful activity others objective act set 1 1 provides inter alia 2 main objective act foster responsible gambling order minimise harm caused problem gambling ii accommodate gamble without harming others ab ensure minor neither encouraged gamble allowed b ensure gaming gaming machine conducted honestly c ensure management gaming equipment monitoring equipment free criminal influence exploitation ensure form gambling permitted act conducted honestly management free criminal influence exploitation e ensure community charitable gaming benefit community charitable organisation concerned ii practice could undermine public confidence community charitable gaming eliminated iii bingo centre operator act unfairly providing commercial service community charitable organisation f promote tourism employment economic development generally state chapter 3 act deal regulation gaming machine section 3 1 1 act set purpose chapter 3 follows 1 purpose chapter establish system regulation supervision control gaming equipment monitoring equipment aim ensuring gaming gaming machine conducted honestly b ensuring management gaming equipment monitoring equipment free criminal influence exploitation c regulating use gaming machine casino approved venue liquor sold regulating activity person gaming machine industry e promoting tourism employment economic development generally state f fostering responsible gambling order minimise harm caused problem gambling ii accommodate gamble without harming others 2 purpose chapter also provide allocation gaming machine entitlement order maximise financial social benefit victorian community within regulatory framework applying allocation entitlement b promote competitive gaming industry aim providing financial social benefit victorian community relevant provision concerning particular application found 3 4 17 1 b act provides 1 condition venue operator licence including b variation number gaming machine permitted approved venue c may amended accordance division section 3 4 20 set matter consideration commission respect proposed amendment relevantly application section provides inter alia 1 without limiting matter commission may consider deciding whether make proposed amendment commission must amend venue operator licence unless b proposed amendment result increase number gaming machine permitted approved venue commission satisfied regional limit municipal limit gaming machine region municipal district approved venue located exceeded making amendment c proposed amendment result increase number gaming machine permitted approved venue commission satisfied net economic social impact amendment detrimental well community municipal district approved venue located paragraph 3 4 20 1 c provides commonly described net detriment test requires commission satisfied net detriment arising approval positively objectively establishing net economic social impact detrimental well community 1 act specify matter commission must consider deciding whether net detriment test satisfied however statutory signpost provided test commission must consider likely economic impact approval likely social impact approval andthe net effect impact well relevant community 2 net detriment test composite test requiring consideration single net impact economic social term well community 3 test satisfied following weighing likely impact commission satisfied net economic social impact approval well relevant community either neutral positive commission recognises task identifying likely benefit disbenefits always straightforward given overlap socio economic issue quality availability relevant data cogent evidence economic outcome may social consequence vice versa 4 review decision victorian civil administrative tribunal vcat held impact may economic social example benefit gaming consumption matter whether impact considered economic side social side long included double counted ultimate composite test 5 commission also note review indicated vcat table likely economic social benefit disbenefits comment relevant relative weight given particular factor useful way transparently dealing net detriment test might perhaps considered wider application 6 approach adopted number vcat decision 7 facilitate greater consistency commission vcat commission adopted approach instance commission satisfied net detriment test met clearly fatal application given opening word 3 4 20 1 act test mandatory pre condition approval however although 3 4 20 1 set certain mandatory consideration commission provision cast exhaustive term commission satisfied net detriment test met still ultimate discretion whether grant approval 8 commission must decide whether make proposed amendment without change proposed applicant even applicant satisfied minimum threshold net detriment test 9 considering exercise discretion must exercised regard purpose act particular specific purpose chapter 3 act dealing regulation supervision control gaming machine 10 andit may also influenced factor broad policy consideration drawn content objective act whole 11 commission agrees comment deputy president dwyer inmount alexander shire council v victorian commission gambling liquor regulation or 12 thatif mandatory consideration act favour grant approval one would expect ultimate discretion commonly favour approval relatively rare exceptional circumstance arising particular case case circumstance separately transparently identified material commissionthe applicant provided commission following material support application social economic impact assessment prepared urbis pty ltd urbis dated april 2015 b expenditure report prepared shinewing australia pty ltd shinewing dated 2 april 2015 c witness statement michael francis stahl chief operating officer company secretary applicant dated april 2015 witness statement kevin william mcmaster general manager premise dated april 2015 e witness statement sharon cassidy gaming attendant premise dated april 2015 f letter dated 16 june 2015 applicant confirming michal francis stahl authorised board applicant give evidence commission represent applicant respect commission following material prepared commission officer provided applicant considered commission report titledeconomic social impact report dated june 2015 b report titledpre hearing inspection compliance report dated 16 june 2015 city knox wantirna clubthe premise located close intersection stud road major arterial road burwood highway provides access premise surrounding suburb scoresby knoxfield vermont area variety land us including school university police station aged care facility council premise large retail shopping precinct westfield knox complex premise currently comprises 120 seat bistro area additional alfresco seating b lounge bar c function room gaming room 87 egms knox metropolitan local government area lga located approximately 30 kilometre east city melbourne cover approximately 114 square kilometre major centre within knox include ferntree gully boronia rowville knox estimated adult population 122 085 annual rate population growth projected victorian department transport planning local infrastructure 0 4 period 2011 2016 compared victorian average 1 81 knox subject municipal limit 1 173 egms 13 currently 11 gaming venue within municipality approval operate total 851 egms however number egms actually operation venue opposed number permitted operated 763 egms commission satisfied accordance 3 4 20 1 b approval application would increase number licensed egms within knox 861 result municipal limit would exceeded knox egm density 6 25 egms per 1000 adult 13 4 higher metropolitan average 5 51 7 4 higher state average 5 82 rank knox 12thhighest 31 metropolitan municipality term egm density per 1000 adult application approved would rise 1 3 6 33 egms per 1000 adult knox average gaming expenditure 608 per adult 6 2 higher metropolitan average 572 10 7 higher state average 549 applying estimate increased gaming expenditure received applicant approval application would result increase average gaming expenditure per adult 0 05 overall gaming expenditure within knox decreased 18 37 real term past five year greater decrease metropolitan average 8 96 real term past five year relation area immediately surrounding premise e within 2 5km le 10 sa1s 14 within 2 5km premise two disadvantaged quintiles seifa 15 index relative socio economic disadvantage score 60 sa1s fourth fifth quintiles unemployment rate knox 5 72 metropolitan unemployment rate 6 68 unemployment knox increased 4 82 5 72 past 12 month applicant witness submissionsmr michael francis stahlmr stahl provided oral evidence commission operation financial position premise mr stahl stated premise recently become profitable venture applicant almost entirely basis operation egms part premise bistro remained unprofitable mr stahl stated premise received financial boost due temporary closure nearby competitor knox tavern september 2014 however upon knox tavern reopening expected end 2015 mr stahl expects premise return original circumstance existed prior temporary closure may necessarily include loss patron utilized premise instead knox tavern mr stahl submitted significant renovation work part business plan formulated 2009 10 included forecasted revenue result approval 2010 gaming application made commission proposed increase 77 87 egms expected draw additional 666 000 per annum additional egms installed premise 1 february 2011 mr stahl indicated actual increase revenue closer 100 000 per annum significant shortfall forecast whilst minor renovation undertaken result shortfall applicant unable undertake substantial work premise installation lift joining ground floor upper level financial year ending 31 october 2011 mr stahl stated premise lost approximately 480 000 following financial year ending 31 october 2012 premise lost approximately 290 000 evidence mr stahl prospective booking function space cancelled cannot accepted premise increased accessibility required mr stahl believed installation lift crucial benefit application would allow greater utility function space situated upper level currently limited use accessed stair mr stahl acknowledged applicant seen little financial benefit premise nonetheless considered important venue purpose applicant maintaining presence area consolidating strong membership base providing broader social economic benefit community virtue activity applicant undertakes mr stahl stated applicant sends four afl footballer attend premise month allowing local community interact senior afl player well providing connection region generally mr stahl submitted although premise recently become profitable generated profit returned upgrading gaming product given competitive area premise operates well continuing maintain upgrade physical cosmetic part premise mr stahl submitted increase number egms premise would result taxation saving would allow approximately 100 000 per annum added cash profit premise would approximately 340 000 per annum increase profit would allow premise commit installation lift cost approximately 130 000 improve accessibility first floor facility including function space mr stahl submitted applicant would commit additional 15 000 per annum cash contribution community organisation within municipality suggestedconditions submitted applicant provided contribution would indexed annually inflation evidence mr stahl contribution would made addition applicant current community contribution 5 900 current contribution comprise 5000 wantirna south junior football club nine 100 meal voucher provided community organisation mr stahl concluded granting application would allow premise become profitable would turn allow greater provision gaming diversity community contribution access range facility available patron mr timothy james stillwellmr stillwell director shinewing accounting advisory firm mr stillwell 18 year experience accounting industry time advised broad cross section industry including gaming hospitality commission accepts mr stillwell qualified give expert opinion relating accounting taxation matter application way background mr stillwell provided commission information respect number egms permitted knox within regulatory framework well reason decline occurred particular mr stillwell stated municipal cap place knox would still significantly greater current number egms operation municipality even application granted commission b number egms knox declined recent year due mainly regulatory requirement hotel operator must greater 35 egm entitlement c gaming trend knox relatively equivalent state trend decline expenditure past five year occurring state municipal level considering factor combination evidence mr stillwell municipal level knox concerning municipality term gaming statistic profile venue level mr stillwell indicated premise historically moderately performing club venue recently experienced noticeable upturn revenue probably due temporary closure knox tavern mr stillwell also noted report considered financial ramification knox tavern reopening however evidence result knox tavern reopening annualised gaming expenditure estimate approximately 5 8 million based utilisation survey undertaken premise closure knox tavern would likely slight overestimate given firm date reopening knox tavern mr stillwell unable determine event would impact estimate however mr stillwell indicate current level expenditure premise historical high necessarily maintainable level knox tavern reopens gaming revenue derived result current closure could characterised one windfall gain evidence mr stillwell estimated gaming revenue 97 egms would lower estimate 5 8 million per annum revenue achieved prior closure knox tavern 4 2 million per annum result utilisation survey undertaken premise october 2014 indicate currently little unmet demand access egms mr stillwell indicated two week period period utilisation reached 70 egms premise two hour period 60 utilisation achieved mr stillwell surmised increase egms premise result approval application would likely derive immaterial amount additional expenditure mr stillwell supported forecast premise would experience modest increase gaming expenditure reference gaming matter subject venue namely kilmore racing club kangaroo flat sport club experienced low egm utilisation additional egms installed evidence mr stillwell especially low mid performing venue increase egms necessarily translate increased utilisation rate mr stillwell indicated commission use 70 utilisation figure industry standard anecdotally adopted extensive period time across several application previously made commission mr stillwell estimated grant application increase number egms premise would generate 0 58 429 new gaming expenditure estimate supported historical data indicating previous increase premise resulted relatively modest increase new gaming expenditure mr stillwell estimated approximately 40 23 371 new gaming expenditure would transferred venue within municipality considered application transferred expenditure estimate often significantly higher 40 mr stillwell indicated application estimate conservative wantirna highly competitive municipality relation gaming b premise club area several hotel form main competition municipality evidence mr stillwell transfer club hotel vice versa uncommon due difference patronage profile service offering environment transfer generally occur like venue type hotel hotel club club summary mr stillwell considered would marginal increase egm expenditure density would material impact result grant application mr kevin william mcmastermr mcmaster managed numerous hotel venue since 1999 employed premise 11 year mr mcmaster indicated substantive renovation improvement undertaken premise since opening 17 year ago generally improvement premise characterised mr mcmaster mainly cosmetic change involving repainting recarpeting updating signage premise mr mcmaster indicated patronage premise primarily aged 60 year old service offered tailored group premise located area several retirement village vicinity well good transport access coupled regular activity attribute make premise particularly appealing older age bracket according mr mcmaster activity available premise allow focus non gaming offering available use egms secondary consideration mr mcmaster indicated morning melody program involving variety notable entertainer extremely popular often booked month advance evidence mr mcmaster staff premise formed strong relationship patron generally regular attendee premise premise employ approximately 40 staff eight full time management supervisory position remaining position filled casual basis mr mcmaster indicated approval application would attract patron premise virtue greater variety egms available well impact installation lift would enabling increased number function responding question commission mr mcmaster indicated commission granted application boardroom function space would continue available charge community sporting group relation community contribution applicant already make mr mcmaster indicated wantirna south junior football club main recipient commitment major sponsorship 5000 remaining contribution way nine 100 meal voucher made available community organisation application premise mr mcmaster also outlined step place overcome issue identified commission inspector evidence mr mcmaster hopper may properly filled coin may caused variance identified inspector audit mr mcmaster indicated applicant working resolve matter soon possible changed rostering premise relation responsible service gaming obligation mr mcmaster indicated premise strong relationship gambler help make regular visit premise mr mcmaster confident additional egms premise allow increased competition venue area well providing revenue fund installation lift m sharon leanne cassidyms cassidy gaming attendant premise 14 year m cassidy indicated staff also employed premise considerable period time least five staff member mostly gaming area approximately eight year experience premise m cassidy outlined patron profile premise whilst supporting evidence mr mcmaster m cassidy outlined older patron often attend premise family extended family m cassidy indicated three quarter patron premise would consider regular m cassidy described method used utilize responsible service gaming training patron risk problem gambling m cassidy indicated close relationship staff enjoy patron allows conversational approach issue may identified concern approach also used circumstance self excluded patron premise evidence m cassidy premise rsg practice high standard provides safe welcoming environment patron mr rhys matthew quickmr rhys quick director urbis prepared social economic impact assessment mr quick qualified economist mr quick acknowledged qualified social planner commission accepts broad experience undertake provide expert opinion level combined socio economic review done application mr quick assessed local area within 2 5 kilometre 5 kilometre premise exhibit significantly lower average level disadvantage mr quick also submitted also true municipality knox whole considering small pocket disadvantage within 2 5 kilometre radius premise mr quick indicated sa1 area included retirement village may skew measurement disadvantage concentration low income individual within particular area evidence mr quick high level elderly patron premise represented low risk group respect propensity engage problem gambling may insulate premise generally instance problem gambling research victorian department justice doj referenced support conclusion mr quick indicates whilst elderly patron may utilise egms frequently age group represented group respect problem gambling respect economic benefit disbenefits evidence mr quick egm utilisation premise generally quite low peaked time social activity occurring premise example period weekday lunch coincided conclusion morning bingo premise mr quick indicated heightened instance utilization occur approximately one hour generally utilization consistent net machine revenue nmr quite low b nmr premise second lowest venue knox indicative low number patron utilising egms low level spend relative number egms premise c general characteristic knox quite robust community knox could considered particularly disadvantaged generally well view mr quick community would able sustain increase number egms premise benefit disbenefits application fairly minor whilst proposed benefit applicant overwhelming proposed 15 000 community contribution negative aspect e installation lift premise cost 130 000 social benefit term impact community also economic benefit respect short term employment created construction phase f given forecasted increase new expenditure maximum approximately 58 500 view mr quick flow impact increase would negligible g obvious disbenefits application problem gambling could considered somewhat capped impact accepted portion expenditure attributable problem gambling small increase expenditure coupled nature patron profile premise reasonable conclude amount attributable problem gambling similarly small contrast taxation decrease allowing installation lift increase accessibility would significant benefit patron community questioning commission mr quick responded whilst decrease taxation liability may benefit applicant could also considered disbenefit community virtue reducing amount taxation revenue collected state victoria however view mr quick disbenefit diluted spread across victoria disbenefit would impact directly community knox accurately would discernible mr quick also provided evidence taxation payable victoria may reduced therefore become benefit applicant may benefit community knox instance proposed taxation reduction approximately 100 000 per annum returned applicant capacity financier premise respect social benefit disbenefits evidence mr quick increased accessibility premise would allow people access upper level premise b instance sponsorship wantirna south junior football club whilst sponsorship amount 5000 considered economic benefit research support social benefit organisation four fold increase total benefit generated relative expenditure went first place essentially social impact economic benefit sponsorship magnified organisation football club mr quick assessment social economic impact grant application would slightly positive benefit community knox net detriment testturning commission consideration net detriment test set summarised tabular form appendix one commission assessment economic benefit disbenefits social benefit disbenefits associated application including weighting given impact economic impactsthe commission accepts approval application likely result increase gaming expenditure premise greater 58 429 first 12 month consisting approximately 35 058 new expenditure 23 371 transferred expenditure gaming venue knox commission find portion new expenditure attributed problem gambling economic benefit although benefit likely derived patron live outside knox event extent additional expenditure large low weight given benefit extent portion new expenditure attributable problem gambling represents economic disbenefit 16 assessing extent disbenefit commission recognises include transferred expenditure expenditure cannot exacerbate problem gambling 17 given low level anticipated additional expenditure demographic profile knox age profile patron premise commission accepts increase problem gambling result application likely minor hence low weight placed impact commission find approval additional egms create improved financial position application enable installation new lift venue estimated cost 130 000 primarily result taxation saving considered installation lift premise provide economic benefit enabling premise operated efficiently allowing better use facility first floor benefit given moderate weight commission commission also considers installation lift premise offer marginal economic benefit community virtue short term employment created economic stimulus result construction installation balanced benefit employment additional economic activity isolated entirely knox commission considers community contribution 15 000 per annum applicant volunteered make application approved economic benefit community although large moderate weight application nature commission also considers various economic benefit disbenefits associated application low weight given increase competition gaming knox important factor light statutory purpose act consumer benefit derive competition economic benefit given low weight current application given number egms operating knox number additional machine proposed premise current usage rate existing machine premise suggests level unsatisfied demand low level consistent low estimate additional revenue anticipated flow application approved b diversion trade segment economy economic disbenefit expected low given low increase egm number venue low level anticipated transferred expenditure size lga economy c decreased government revenue evidence given application approved estimated reduction state government revenue 100 000 per annum significant amount relative impact associated application given little weight context net detriment test reduction revenue otherwise enjoyed municipality know small proportion total impact given little weight context net detriment test consideration given effect application government revenue regard commission ultimate discretion determining whether approve application applicant also made submission application approved associated economic benefit would ongoing viability club reference made previous decision commission respect premise issue viability considered commission importance 18 instance commission consider significant weight given matter premise appears operating profitably regard evidence mr stahl current number egms estimated profit venue year ending 31 october 2014 240 000 overall commission considers minor positive economic impact knox community application approved social impactswherever accessibility egms increased always risk increase problem gambling lead cost lost productivity increased health social service requirement social cost accordingly commission accepts potential negative social cost possible increased problem gambling expenditure commission accepts evidence mr quick premise exhibit number factor may decrease risk problem gambling operating club rather hotel older patron profile utilising premise commission find application directly alter factor introduction 10 egms commission considers likely protective factor impact risk problem gambling premise commission also considers risk increase problem gambling result application approved limited already high accessibility egms knox low nmr premise commission recognises knox average number egms per 1 000 adult however president morris noted inkilsyth mountain district basketball association inc v victorian commission gambling regulation occupational business regulation 2007 vcat 2 11 january 2007 59 unrealistic municipality expect number gaming machine municipality per 1 000 adult average average almost inevitable average number gaming machine per 1 000 adult municipality greater metropolitan average municipality le metropolitan average overall taking account extremely marginal increase egm density egm expenditure per adult together socio economic profile municipality commission find knox present particularly vulnerable problem gambling satisfied potential increase problem gambling low commission find increased number egms premise better serve need gaming patron providing wider variety egms choose however given current number egms utilisation rate premise commission considers negligible social benefit hence one place low weight commission also find increased number egms enable applicant renovate enhance facility premise commission place moderate weight benefit accepts installation lift would better enable use first floor older patron currently accessible stair relation proposed community contribution commission considers level community contribution impact local community organisation small social benefit given low weight commission note applicant proposed part community contribution available body concerned problem gambling proposed method distribution would preclude outcome considering social benefit proposal balanced detriment commission considers balance likely minor positive social impact proposal net economic social impactthe net detriment test section 3 4 20 1 c act requires commission weigh likely positive social economic impact application likely negative social economic impact test satisfied following weighing likely impact commission satisfied net economic social impact approval well relevant community either neutral positive 19 consideration material put forward applicant weighted outlined summarised tabular form appendix one reason decision commission concluded likely minor net positive social economic impact well community municipal district premise located application approved relevant considerationshaving determined net detriment test satisfied remains discretion commission determine whether approve application feature application according evidence mr stahl approved applicant enjoy estimated tax saving 100 000 per annum noted commission accepted saving enable applicant commit installation lift make first floor usable cost approximately 130 000 also enable applicant commit additional community contribution municipality 15 000 per annum commission determined benefit contributed assessment net detriment test satisfied commission determined saving relate state revenue base knox would receive small proportionate share reduction tax significant disbenefit purpose net detriment test commission recognise nonetheless approved state finance adversely affected exercising discretion commission required regard purpose act particular specific purpose chapter 3 act dealing regulation supervision control gaming machine may influenced broader policy consideration drawn content objective act whole issue commission application whether approval granted regard matter given reduction state taxation revenue result considering exercise discretion instance commission benefited applicant supplementary submission relation matter circumstance net detriment test satisfied commission accepts exercise overriding discretion requires clear compelling justification amount compelling justification depend circumstance individual application commission also agrees applicant purpose set chapter 3 broad purpose said relevant decision discretion set chapter 3 example purpose set 3 1 1 2 act commences word provide allocation gaming machine entitlement hence including reference financial benefit relevant application purpose set chapter 3 include inter alia promote competitive gaming industry aim providing financial social benefit victorian community see 3 1 1 2 b commission agrees applicant supplementary submission use term financial sub section 3 1 1 likely le wide term economic used elsewhere section also 1 1 set objective act first blush use term financial compared economic benefit suggests regard required given narrower financial outcome impact gaming state revenue base rather broader economic activity commission regard specific purpose set 3 1 1 2 b requires consideration financial impact state decision commission also recognises need read context provision overall refers first instance promotion competition generally commission recognises exercise discretion may also made regard broader policy consideration drawn content objective act whole regard regulatory framework specifically provides differential treatment club hotel including different treatment taxation purpose extent approval application result reduction taxation revenue taxation arrangement specifically structured government result outcome generally consistent six policy principle enunciated minister gaming second reading speech relation gaming regulation bill commission recognises act establishes regulatory framework giving effect policy principle operates balance financial benefit derive state operation egms outcome circumstance case applicant benefit reduction gaming tax commission instance consider clear compelling basis exercise discretion approve application material put commission satisfied matter section 3 4 20 1 commission also satisfied applicant understands continue act accordance obligation far reasonable take measure prevent problem gambling accordingly commission satisfied exercise discretion approve application commission provided draft condition applicant would willing accept application approved granting approval commission belief appropriate approval subject condition nature condition follows 1 community contribution operator premise venue operator undertakes following establish wantirna club community fund fund ii make cash contribution referred condition 1 iii whilst long additional ten 10 additional electronic gaming machine additionalegms operate premise 15 august 2022 iii annual cash contribution sum 15 000 indexed year cpi group melbourne contribution iv contribution allocated year profit community group sporting organisation providing service facility resident city knox b distribution contribution accordance condition 1 would determined committee committee established venue operator comprising two representative venue operator ii one representative council event council unwilling provide representative community representative nominated venue operator c committee advertise annually newspaper circulating city knox area submission profit community sporting organisation providing service facility resident within city knox regarding distribution contribution made venue operator year committee ass request cash contribution accordance guideline established committee venue operator currently make cash contribution range community sporting group city knox sum le 5 900 00 per annum existing contribution venue operator continue pay year existing contribution whilst long additional egms operate premise 15 august 2022 2 work work premise defined clause 2 b must substantially completed satisfaction victorian commission gambling liquor regulation commission date twelve 12 month commencement operation additional egms premise b purpose clause workscomprise installation new lift linking ground first floor premise c work referred condition 2 b substantially completed date twelve 12 month commencement operation additional egms premise approval operate additional egms premise lapse commission may request venue operator agree extend time completion work referred condition 2 b request must made later date 11 month commencement operation additional egms request extension time must include explanation work substantially completed preceding paragraph true copy reason decision dr bruce cohen chair miss gail owen deputy chair appendix onesummary social economic impactseconomic impactsimpactcomment relevant weightbenefitgaming expenditure associated problem gamblingdirect measureable benefit community extent additional expenditure large low weight installation lift improving efficiency premise operationsimproved position primarily result taxation saving enables installation lift improve access enable efficient usage facility premise moderate weightshort term employment creationconstruction installation lift premise balanced employment economic activity isolated entirely knox marginal weight community contribution additional 15 000 per annumalthough large contribution respect actual amount significant considered application whole moderate weight increased gaming competition knoximportant factor light statutory purpose act consumer benefit derive competition however current application extent benefit limited number egms already operating knox number additional machine proposed premise current low utilisation rate existing machine premise indicating level unsatisfied demand low level low weight disbenefitdiversion trade segment economyexpected low given low increase egm number venue low level anticipated transferred expenditure size lga economy low weight decreased government revenueestimated reduction government revenue 100 000 per annum context net detriment test reduction revenue base state share enjoyed municipality knox would anticipated small proportion low weight ongoing economic viability applicanthaving regard evidence mr stahl current number egms estimated profit venue year ending 31 october 2014 240 000 premise operating profitability appear issue ongoing economic viability significant weight possibility increased incidence impact problem gambling low level anticipated additional expenditure demographic profile knox age profile patron venue suggests increase problem gambling likely minor low weight social impactsimpactcomment relevant weightbenefitincreased gaming opportunity enjoy gamingincreased number egms provide wider variety egms choose however given current number egms utilisation rate premise commission considers negligible social benefit low weight improved facility enabling greater access function spacethe installation lift would better enable use first floor older patron currently accessible stair moderate weight increased community contributionslevel community contribution impact local community organisation small social benefit applicant proposed part community contribution available body concerned problem gambling proposed method distribution would preclude outcome low weight disbenefitpossibility increased incidence impact problem gambling communityaccept evidence premise exhibit number factor may decrease risk problem gambling operating club rather hotel older patron profile utilising premise risk increase problem gambling also limited instance given existing accessibility egms knox low nmr premise approval would result marginal increase egm density egm expenditure per adult across municipality risk increase problem gambling minimal low weight 1 mount alexander shire council v victorian commission gambling liquor regulation or 2013 vcat 101 52 per dwyer dp 2 macedon range shire council v romsey hotel pty ltd 2008 vsca 45 2008 19 vr 422 42 43 per warren cj maxwell p osborn aja 3 romsey hotel pty ltd v victorian commission gambling regulation romsey 2 2009 vcat 2275 332 348 per bell j cited inmount alexander shire council v victorian commission gambling liquor regulation or 2013 vcat 101 58 per dwyer dp 4 mount alexander shire council v victorian commission gambling liquor regulation or 2013 vcat 101 57 per dwyer dp 5 see romsey hotel pty ltd v victorian commission gambling regulation romsey 2 2009 vcat 2275 352 per bell j mount alexander shire council v victorian commission gambling liquor regulation or 2013 vcat 101 58 per dwyer dp 6 mount alexander shire council v victorian commission gambling liquor regulation or 2013 vcat 101 60 per dwyer dp 7 see example darebin cc v victorian commission gambling liquor regulation anor 2013 vcat 1389 melbourne cc v kingfish victoria pty ltd anor 2013 vcat 1130 monash cc v l unico pty ltd 2013 vcat 1545 baker arm hotel pty ltd v victorian commission gambling liquor regulation 2014 vcat 1192 8 seeocean grove bowling club v victorian commission gaming regulation 2006 vcat 1921 32 following per morris j baker arm hotel pty ltd v victorian commission gambling liquor regulation 2014 vcat 1192 126 per code pm nelthorpe see alsomount alexander shire council v victorian commission gambling liquor regulation or 2013 vcat 101 97 following per dwyer dp respect 3 3 7 9 gambling regulation act 2003 section 3 4 20 2 10 mount alexander shire council v victorian commission gambling liquor regulation or 2013 vcat 101 98 per dwyer dp 11 ocean grove bowling club v victorian commission gaming regulation 2006 vcat 1921 32 per morris j mount alexander shire council v victorian commission gambling liquor regulation or 2013 vcat 101 99 per dwyer dp baker arm hotel pty ltd v victorian commission gambling liquor regulation 2014 vcat 1192 126 per code pm nelthorpe policy principle identified consideration see macedon range shire council v romsey hotel pty ltd 2008 vsca 45 2008 19 vr 422 7 per warren cj maxwell p osborn aja 12 2013 vcat 101 98 13 pursuant section 3 4a 5 3a b act victorian commission gambling liquor regulation determined accordance criterion specified minister gaming order 15 august 2012 maximum permissible number gaming machine entitlement gaming may conducted region 14 statistical area level 1 sa1 designed australian bureau statistic ab smallest unit release census data 15 socio economic index area seifa product developed ab rank area australia according relative socio economic advantage disadvantage consists four different index including index relative socio economic disadvantage 16 commission recognises review key likely disbenefit problem gambling convenience treated heading social impact various instance seemount dandenong tourist hotel pty ltd v greater shepparton cc 2012 vcat 1899 121 following melbourne cc v kingfish victoria pty ltd anor 2013 vcat 1130 47 per martin pm naylor however approach uniformly adopted see example mount alexander shire council v victorian commission gambling liquor regulation or 2013 vcat 101 178 following per dwyer dp completeness commission considers economic social impact problem gambling assessment application 17 seebakers arm hotel pty ltd v victorian commission gambling liquor regulation 2014 vcat 1192 113 per code pm nelthorpe kilsyth mountain district basketball association inc v victorian commission gambling regulation 2007 vcat 2 40 per morris j 18 application richmond football club 2010 vcglr 9 march 2010 commissioner thompson owen 19 mount alexander shire council v victorian commission gambling liquor regulation or 2013 vcat 101 52 per dwyer dp
Commonwealth of Australia v Yunupingu (on behalf of the Gumatj Clan or Estate Group) & Ors [2023] HCATrans 157 (13 November 2023).txt
commonwealth australia v yunupingu behalf gumatj clan estate group or 2023 hcatrans 157 13 november 2023 last updated 15 november 2023 2023 hcatrans 157in high court australiaoffice registrydarwin d5 2023b e w e e n commonwealth australiaappellantandyunupingu behalf gumatj clan estate group others named schedulerespondentsgageler cjtranscript proceedingsat canberra video connectionon monday 13 november 2023 9 30 amcopyright high court australiahis honour accordance protocol remote hearing announce appearance party m n kidson kcappears appellant instructed australian government solicitor mr r moses scappears first respondent instructed bowden mccormack lawyer adviser mr l peattieappears second respondent instructed solicitor northern territory mr woodappears 25th 28th respondent instructed minterellison mr glacken kcappears 29th 32nd respondent instructed northern land council m r j webb kcappears withms c taggartfor 34th respondent instructed crown law queensland honour submitting appearance 31st 33rd respondent appearance third fourth 10th 12th 13th 14th 15th 16th 18th 19th 20th 21st 23rd 30th respondent note counsel appearing m kidson mr moses mr wood mr glacken m webb appearing video link mr peattie appearing telephonically party notified court available sit darwin week commencing 5 august specifically hearing matter proposing three day week wednesday 7th thursday 8th friday 9th helpfully appellant first respondent proposed minute procedural order view matter ready hearing week considered slight difference two document inclination subject hearing anyone present morning adopt order proposed first respondent modifying incorporate date proposed appellant taking proposed minute order first respondent order 1 would date 28 march 2024 order 2 would date 15 april 2024 order 3 would date 27 may 2024 order 4 would 10 june 2024 order 5 would 1 july 2024 order 6 would 15 july 2024 order 7 would 7 8 9 august 2024 give virtually present opportunity comment proposal m kidson m kidson may please court appreciate court nominated three day hearing contemplated additional time may required working three day would ask page limit proposed appellant believe gumatj respondent moment got primary party 40 page asked 50 page would ask endeavour ensure latitude record writing would better enable u meet three day hearing period say honour still difference issue full court issue court substantially reduced although dropped one issue relation mission lease still three substantial issue particularly first constitutional issue proceed largely different basis full court instead focused principally argument whether court inwurridjaldid produce ratio overrulingteori tau argument primarily directed substantive section 122 issue traversed full court need fully presented orally writing court similarly second constitutional issue say full court address central argument commonwealth case based judgment justice brennan inmabo 2 consequence argument court form need fully presented orally writing court page limit set 100 page circumstance factual controversy submission point law really asked half court circumstance would submit substantial reduction complexity number issue ultimately addressed reason ask page limit provided order term reply asked increase appellant reply 25 page certainly experience court respondent effectively run case much overlap appellant reply submission dealing really four substantial set submission running large extent different argument ask 25 page reply submission limit honour thank mr moses mr moses honour anything say respect direction honour proposed respond learned friend said say must appearing different case agree characterisation learned friend said full court approached matter matter deal hearing honour thank mr peattie hear mr peattie thank honour yes apologise mode appearance today technical difficulty apparently supportive commonwealth comment honour noting court indication matter would listed three day estimated might four day matter noting matter likely intervention well attorney general matter confined three day would support page limit commonwealth proposed otherwise anything add m kidson said honour mr peattie would anticipate intervention australian capital territory mr peattie suspect jurisdiction greatest interest sorry honour yes relation first constitutional question australian capital territory also relation two question perhaps south australia western australia noting queensland already intervened therefore party honour thank mr wood mr wood thank honour anything say opposition course outlined client would resist proposal commonwealth 50 page page limit matter accept might need increase usual 20 page limit proposed client part consider issue could dealt many fewer page context client submission court 20 page dealt two issue say accept could room think 50 well outside range matter honour thank mr glacken mr glacken honour encourage anything longer 40 page factual issue matter factual evaluation court 40 page chief ample honour thank m webb m webb honour anything say content 20 page comment page limit thank honour yes prepared accede commonwealth request slightly longer page limit change 40 page 50 page order 1 order 2 1 order 3 also change 20 page 25 page order 5 procedural order make follows 28 march 2024 appellant file serve written submission exceeding 50 page appellant book material chronology 15 april 2024 second respondent file serve written submission exceeding 50 page respondent intervener support appellant ground file serve written submission exceeding 20 page 27 may 2024 first respondent 25th 26th 27th 28th respondent 29th respondent 32nd respondent file serve written submission exceeding 50 page book material 10 june 2024 respondent intervener support first respondent ground support one party support party file serve written submission exceeding 20 page 1 july 2024 appellant file serve written submission reply exceeding 25 page 15 july 2024 appellant file serve joint book authority appeal listed 7 8 9 august 2024 darwin based estimate three day order make thank attendance court adjourn 9 43 matter adjourned
Klick, Jonathan --- "Introduction: law and economics of federalism" [2017] ELECD 229; in Klick, Jonathan (ed), "The Law and Economics of Federalism" (Edward Elgar Publishing, 2017) vii.txt
klick jonathan introduction law economics federalism 2017 elecd 229 klick jonathan ed law economics federalism edward elgar publishing 2017 viibook title law economics federalismeditor klick jonathanpublisher edward elgar publishingisbn hard cover 9781849803625section title introduction law economics federalismauthor klick jonathannumber page 4extract introduction law economics offederalismjonathan klickthe economic theory federalism well discussed theyears wallace oates 1972 largely started systematic study eco nomic federalism normative positive perspective andthe subsequent fiscal federalism literature well developed 1 basictheoretical framework involves recognition preferenceheterogeneity across jurisdiction affect optimal level ofpublic good provision pushing favor smaller decision making unit balanced possibility cross jurisdictional externality existas well potential gain scale economy production theoptimal system one set marginal loss increasing thejurisdictional level decision regarding public good madeequal gain achieved internalizing jurisdictional externality andexploiting economy scale called decentralization subsidi arity principle embodies trade subsequent economic discussion federalism included theirpolitical economy aspect see example inman rubinfeld 1997and weingast 2009 including analysis constitutional economicsperspective mueller 1996 buchanan 2001 legal scholar used theeconomic model federalism also critiqued failing torecognize important practical limitation failure distinguishbetween regulatory fiscal federalism see example super 2005 beyond criticism legal scholar distinguished among coop erative competitive federalism well uncooperative federalism bulman pozen gerken 2009 model perspectiveshelp
Douglas and Australian Securities and Investments Commission [2022] AATA 2415 (1 August 2022).txt
douglas australian security investment commission 2022 aata 2415 1 august 2022 last updated 9 september 2022douglas australian security investment commission 2022 aata 2415 1 august 2022 division general divisionfile number 2022 4716re donald douglasapplicantandaustralian security investment commissionrespondentdecisiontribunal mr p w taylor sc senior memberdate 1 august 2022place sydneythe 7 june 2022 stay application refused sgd mr p w taylor sc senior membercatchwordsself managed superannuation fund non compliance relevant standard disqualification approved self managed superannuation fund auditor stay disqualification decision pending appeallegislationadministrative appeal tribunal act 1975 cth superannuation industry supervision act 1993 cth corporate law economic reform program audit reform corporate disclosure act 2004 cth australian security investment commission act 2001 cth casesaustralian security investment commission v administrative appeal tribunal 2009 fcafc 185 2009 181 fcr 130re scott australian security investment commission 2009 aata 798 2009 51 aar 114levi v company auditor liquidator disciplinary board 2013 fca 719secretary department social service mcnamara 2016 aata 189allied asia holding aust pty ltd v australian security investment commission 2002 fca 566secondary materialssuperannuation industry supervision regulation 1994guidance statement g 009 auditing self managed superannuation fund september 2015reasons decisionmr p w taylor sc senior member1 august 2022mr douglas became registered approved self managed superannuation fund smsf auditor august 2013 24 february 2022 exercise power conferred bys 130f 2 thesuperannuation industry supervision act 1993 si act asic disqualified mr douglas approved smsf auditor disqualification decision took effect 3 march 2022 26 april 2022 internal review process asic confirmed disqualification decision asic disqualification decision principally though exclusively based criticism mr douglas conduct relation audit three smsfs asic determinative finding outlined later reason see paragraph 23to 28below 7 june 2022 mr douglas lodged review application tribunal time sought extension time stay disqualification decision asic dispute appropriateness extending time regularise mr douglas review application oppose stay disqualification decision tribunal stay powerthe tribunal power stay operation implementation reviewable decision extent considers appropriate purpose securing effectiveness hearing determination application review administrative appeal tribunal act 1975 aat 41 2 power permit tribunal impose condition upon determine period stay aat act 41 6 exercise discretionary power preconditioned tribunal taking account interest person may affected review determinative criterion exercise tribunal stay power satisfaction desirability appropriateness proposed order purpose securing effectiveness hearing determination application review permissibly general expression seeaustralian security investment commission v administrative appeal tribunal 2009 fcafc 185 2009 181 fcr 130at 71 81 breadth power indicates notwithstanding possible limitation connoted expression effectiveness hearing consideration informing exercise stay power limited mere procedure conduct review hearing basic nature tribunal review function requires regard statutory scheme governing subject matter reviewable decision seeaustralian security investment commission v administrative appeal tribunal 2009 fcafc 185 2009 181 fcr 130at 51 54 56 57 per downes jagot jj statutory scheme contributes proper understanding practical consequence reviewable decision also contributes appreciation materiality public interest decision exercise stay discretion exercise stay power subject requirement take account interest person may affected review decision maker position relation stay application see aat act s 41 2 41 4 provision previous decision federal court australia tribunal seere scott australian security investment commission 2009 aata 798 2009 51 aar 114 levi v company auditor liquidator disciplinary board 2013 fca 719at 14 15 secretary department social service mcnamara 2016 aata 189 support view wide range consideration permissibly inform exercise stay power range permissibly relation matter necessarily relevant consideration include nature reviewable decision including finding based b function responsibility statutory decision maker public interest relating c practical consequence decision review party interested person unless operation subject stay taking account timing reviewable decision application likely review hearing ii ability applicant pursue review proceeding effectively iii likely practical utility favourable review outcome iv condition might imposed term stay applicant prospect obtaining materially favourable outcome result review proceeding e reason proffered support oppose stay application potential practical consequence stay nature statutory scheme including procedure involved reviewable decision specificity finding involved decision reason interest particularly public interest exercise statutory power intended serve may provide proper basis refusing stay application allied asia holding aust pty ltd v australian security investment commission 2002 fca 566at 10 particularly likely available material conduce appropriate degree satisfaction review process real prospect favourable outcome even tribunal satisfied prospect outcome kind permissibly relevant consideration may provide proper basis refusing stay operation decision review si act provision related standard relating smsf auditorsan smsf trustee must appoint approved auditor report annually operation superannuation fund si act 35c asic regulator function relation approval registration disqualification smsf auditor see si act s 5 6 part 16 division 1 3 registration essence conditional upon asic satisfaction auditor prescribed qualification experience competency ii unlikely contravene statutory obligation smsf auditor iii otherwise fit proper person approved smsf auditor iv subject suspension disqualification si act 128b 1 2 4 registration approved auditor may conditional ii endures cancelled asic person disqualified asic auditor death si act 128b 8 128d approved smsf auditor statutory obligation include completing prescribed continuing professional development requirement si act 128f b holding prescribed level professional indemnity insurance si act 128f b c complying asic competency standard auditing assurance standard auditing assurance standard board si act 128f c 128q complying prescribed independence requirement si act 128f e providing approved form annual statement asic approved form report trustee audited smsf entity 1 si act s 35c 1 5 6 128g f prompt reporting asic fund trustee opinion relevant contravention unsatisfactory financial position audited superannuation entity si act s 129 3 130 1 2 g timely reporting asic attempt unduly influence interfere conduct audit si act 130ba asic may either cancel suspend person smsf auditor registration disqualify person approved smsf auditor various ground include auditor written request si act 128e 1 cancellation b failure comply registration condition si act 128e 2 cancellation si act 130f 2 b suspension disqualification c audit inactivity continuous period 5 year si act 128e 2 b cancellation failure provide asic annual statement audit activity si act 128e 2 c cancellation e cessation australian residence si act 128e 2 cancellation f failure comply relevant audit function duty si act 130f 2 suspension disqualification g false statement relating either application registration annual compliance statement si act 128g 130f 2 c suspension disqualification h lack fitness registration si act 130f 2 suspension disqualification smsf auditor disqualification order made asic operates specified date date within 28 day order si act 130f 4 b may revoked asic time subject asic satisfaction person fitness registration likely dutiful compliance si act 130f 8 10 c reviewable decision si act 10 definition paragraph rh may subject valid internal review request stayed aat purpose securing effectiveness internal review request si act 344 10 aat act 41 2 e may subject internal review asic response complying timely request si act 344 1 3 f may revoked asic confirmed varied internal review si act 344 4 g confirmed varied asic internal review may subject review application aat si act 344 8 9 auditing assurance standard board auasb see paragraph 12 c statutory entity established 2004 see thecorporate law economic reform program audit reform corporate disclosure act 2004 schedule 1part 1 auasb function include formulation auditing standard purpose corporation act 2011 b formulation auditing assurance standard purpose c providing guidance auditing assurance matter seeaustralian security investment commission act 2001s 227a 1 c auasb published standard guidance relevant approved smsf auditor include following document listed order respective date issue guidance statement g 009 auditing self managed superannuation fund issued september 2015 replacing previous guidance statement auasb issued september 2013 b standard assurance engagement asae 3100 compliance engagement issued february 2017 replacing version issued october 2008 applying assurance engagement 1 january 2018 onwards standard described complementing asae 3000 c standard assurance engagement asae 3000 assurance engagement audit review historical financial information issued may 2017 described providing overarching requirement assurance engagement relating historical financial information auditing standard asa 230 audit documentation issued december 2018 e auditing standard asa 230 audit evidence also issued december 2018 september 2015 version guidance statement g 009 preceded smsf audit asic based february 2022 disqualification decision reason well specific focus g 009 smsf audit self proclaimed purpose aiding understanding compliance auasb standard appropriate least present purpose give primary attention apparently relevant material content guidance statement include following proposition precedent referring relationship audit compliance standard asa asae standard although explicitly stated different application financial statement audit one hand compliance audit hand relevance smsf auditor given required content audit report see paragraph 12 e essentially similar underlying principle essential requirement g 009 para 7 9 24 135 140 financial statement audit 269 360 si act compliance b referring asa 210 agreeing term audit engagement smsf auditor must agree term engagement trustee engagement letter suitable form written agreement auditor must obtain trustee acknowledgement trustee responsibility relation fund g 009 para 22 c c referring asa 230 audit documentation smsf auditor must prepare sufficient documentation enable experienced third party auditor understand nature audit procedure result professional audit judgment audit conclusion g 009 para 22 e referring asa 300 planning audit financial report asa 315 identifying assessing risk material misstatement understanding entity environment asa 320 materiality planning performing audit smsf auditor must evaluate compliance relation independence documenting audit strategy determining scope timing audit perhaps especially audit involves supervision others review work audit preparation activity strategy formulation require auditor understand nature smsf operation control determine materiality purpose assessing evaluating audit risk g 009 para 22 j 22 l e referring asa 500 audit evidence asa 505 external confirmation smsf auditor design perform audit procedure appropriate circumstance obtain sufficient appropriate audit evidence provide reasonable basis audit opinion auditor must request external confirmation considered necessary obtain sufficient appropriate audit evidence g 009 paragraph 22 p 22 r f referring asa 580 written representation smsf auditor must request trustee provide written representation trustee acknowledged responsibility content fund financial statement ii completeness financial statement ii provision relevant information auditor g 009 paragraph 22 z g providing illustrative precedent five appendix g 009 address following matter appendix 1 example smsf audit engagement letter ii appendix 2 example trustee representation letter iii appendix 3 example audit checklist iv appendix 4 example financial audit procedure v appendix 5 example smsf independence risk related safeguard prescribed continuing professional development requirement smsf auditor set thesuperannuation industry supervision regulation 1994 si regs undertaking every 3 year 120 hour development activity could reasonably expected enhance approved smsf auditor technical skill professional service delivery b undertaking part 120 hour total least 8 hour continuing professional development relating smsf audit 22 additional hour relating superannuation c keeping written record development undertaken si regs 9a 04 prescribed professional indemnity requirement smsf auditor also set si regs alternative requirement maintain level insurance either set relevant limitation liability scheme professional standard organisation ii provides coverage least 500 000 individual claim aggregate otherwise contains term likely provide indemnity liability arising smsf audit conduct omission si regs 9a 05 independence requirement smsf auditor also prescribed si regs independence requirement set code ethic ape 110 accounting professional ethical standard board si regs 9a 06 overview smsf auditor audit requirementsthe extensive requirement outlined preceding paragraph reason compel conclusion statutory intention demand high level integrity competence sound professional judgment conduct smsf audit emphasising demand statutory provision evidence intention require smsf auditor inform document audit work objectively verifiable manner demand intention evident prescriptive statutory requirement implicit recognition important public interest smsf audit regime intended serve protection revenue state benefit superannuation fund member public interest background relevant observe distinction drawn understanding nature statutory audit requirement inflexible depend essentially properly informed necessarily subjective assessment individual auditor others require ultimate conclusion necessarily dependent extent quality basic audit activity auditor professional competence opinion illustrative example necessarily impressionistic distinction inflexible requirement continuing professional development indemnity insurance written audit engagement agreement trustee representation signed fund financial statement audit report approved form see paragraph 12 b 12 e 17 b f b subjective assessment compliance independence requirement sufficiency written audit agreement sufficiency audit plan strategy audit documentation see paragraph 12 17 c 17 e 17 g v 20above c ultimate conclusion opinion superannuation contravention interference audit conduct see paragraph 12 f 12 f asic substantive criticism mr douglas audit conductin latter part 2019 australian taxation office conducted compliance review three superannuation audit undertaken mr douglas 2 review prompted ato concern si act contravention one superannuation fund reported review process involved meeting mr douglas 9 october 2019 later presentation position paper dated 7 february 2020 ato outlined various concern also involved mr douglas providing ato february 2020 additional audit related document informationthe compliance review process ultimately resulted ato 18 december 2020 referral mr douglas audit conduct asic si act 128p 3 stated reason referral asic ato opinion mr douglas performed adequate smaf audit ii contravened superannuation law referral accompanied statement reason referral statement substantially repeated criticism ato articulated february 2020 position paper despite acknowledging content submission mr douglas march 2020 made response position paper subsequently asic 20 may 2021 concern letter mr douglas raised substantive concern concern also reflected finding asic made basis february 2022 disqualification decision 4 schedule reason attempted provide comprehensible necessarily abbreviated outline matter raised ato asic regard schedule show providing outline differentiated specific obligation relating process conducting smsf audit ii compliance obligation relation smsf audit report iii matter relating mr douglas general obligation status approved smsf auditor particular matter apparently involved failure either smsf trustee mr douglas auditor comply si act provision related regulation indicated relevant provision schedule outline schedule least read awareness content february 2020 position paper may 2021 concern letter 24 february 2022 statement reason indicates range criticism mr douglas audit competence conduct relation former asic satisfied mr douglas sufficiently aware current smsf statutory requirement relation audit conduct asic criticism summarised 24 february 2022 statement reason mr douglas failure comply apparently inflexible audit requirement namely undertake complying professional development activity ii maintain required professional indemnity insurance iii provide audit report approved form b apparently subjective audit assessment requirement relation compliance applicable australian auditing assurance standard concerning planning documentation audit c ultimate audit conclusion requirement particularly obligation report si act contravention specifically relation statutory requirement concerning smsf asset composition smsf borrowing determinative consideration february 2022 statement reason mr douglas failure perform smsf audit duty adequately properly made appropriate remain approved auditor appropriate disqualified mr douglas stay submissionsmr douglas march 2022 internal review request supported various ground included contention ill health prevented providing full response asic concern ii irregularity relied asic concerning three smsf audit client aberrant event warrant disqualification although asic 26 april 2022 decision confirmed initial disqualification must taken rejected least second ground mr douglas contends granting stay disqualification decision would involve significant public risk whereas allowing disqualification decision continue operate pending outcome substantive review application would involve significant financial hardship relies following proposition support essential contention able provide additional information considered asic ato would conduce favourable review outcome b asic criticism involve allegation dishonesty intentional misconduct c exemplary record company auditor since july 1991 approved smsf auditor since august 2013 asic criticism relate current conduct involve matter occurred tax year prior year ended jun 2019 substantially addressed subsequent procedural reform seeking emphasise small number audit file underlying ato asic criticism mr douglas claim february 2022 decision averaged 79 audit client per year however clear involve smsf audit information summarised ato 7 february 2020 position paper indicates december 2019 mr douglas annual smsf audit client numbered fewer 30 approximate order several year may well mr douglas able provide material additional information inform review proceeding example material currently included section 37 document lodged tribunal appear include following audit file criticised audit ii report audit iii reason asic 26 april 2022 decision iv information relating smsf audit mr douglas carried neither appear least content 24 february 2022 statement reason significant consideration given suspension cancellation see paragraph 13above appropriate alternative disqualification finally apart matter referred following paragraph yet evidence mr douglas post december 2019 smsf audit conduct token mr douglas claim availability material additional information far persuasive given absence material also consideration notice asic concern since may 2021 ii march 2020 three month june 2022 affidavit first sought stay disqualification decision june 2022 affidavit mr douglas claim lockdown apparently referring unspecified period covid 19 restriction victoria complied continuing professional development activity duly recorded however generality statement establish either fact due compliance relevance mr douglas conduct relation audit carried prior december 2019 procedural reform mr douglas relies appear establishment permanent file audit client see paragraph 36below ii implementation checklist ensure compliance audit standard former assertion part mr douglas march 2020 submission ato latter assertion made apparently first time mr douglas june 2022 affidavit asic opposition stay disqualification decisionasic interprets mr douglas stay submission effectively limited reliance asserted financial hardship said occasioned continued operation disqualification decision basis asic dispute stay power aat act 41 enlivened alternatively asic submits limited evidence submission advanced mr douglas conduce satisfaction stay desirable asic contends discretionary stay power exercised circumstance present matter including likely imminence substantive hearing primary regard public interest considerationone aspect asic criticism mr douglas audit conduct relate inadequate planning documentary substantiation audit process mr douglas must taken implicitly acknowledged appropriateness least part criticism march 2020 response ato position paper asserted process establishing permanent file smsf audit client content permanent file would include essential detail fund including trust deed history member entitlement together summary relevant statutory accounting requirement another aspect asic criticism mr douglas lack awareness least lack compliance current accounting standard mr douglas must also taken accept validity criticism march 2020 response indicated relied publication australian accounting research foundation 1997 publication could referred statutorily stipulated accounting standard applicable period 2013 2022 ie duration mr douglas smsf auditor registration appears date unlikely provided acceptable equivalent prescription apart limited concession implicit mr douglas march 2020 response asserted availability material additional information mr douglas provided explanation aspect conduct underlying asic criticism aspect include absence audit file confirmation enquiry sufficient establish smsf eligibility three audited fund b failure obtain trustee representation letter signed financial statement three smsf c failure provide audit report approved form failure obtain least document market valuation e failure obtain investment strategy smsf f failure obtain least record examination smsf minute background substance asic criticism concession implicit mr douglas date limited response absence presently available material substance response asic criticism mr douglas stay application relies insubstantial unpersuasive ground circumstance necessary hence desirable express concluded view asic contention tribunal stay power even enlivened matter principally assertion financial hardship mr douglas relied earlier indicated significant public interest underlying si act smsf audit requirement light requirement mr douglas financial interest securing stay disqualification decision reputational interest interest audit client conduce satisfaction stay disqualification decision desirable far mr douglas financial interest concerned far clear would likely level smsf audit activity apart inconclusive evidence alluded paragraph 31above mr douglas incommoded ill health following fall hospitalisation december 2021 even reasonable regard interest substantial period elapsed since february 2020 decision well imminence substantive hearing listed commence 8 august 2022 tend satisfaction stay decision desirable conclusion applies relation mr douglas reputational interest decision express concluded opinion either justification asic criticism appropriate evaluation criticism review proceeding result favourable outcome mr douglas reputational interest sufficiently protected far mr douglas audit client concerned consider interest currently best protected ensuring smsf audit undertaken auditor currently entitled registration subject adverse finding asic made mr douglas indicated preceding paragraph nothing reason regarded expressing view providing basis predicting ultimate outcome review hearing either adverse favourable mr douglas reason think information reasoning least potentially relevant outcome found currently available material see paragraph 32above conclusionmr douglas failed establish stay seek desirable purpose tribunal statutory power 7 june 2022 stay application refused ul none list style none certify preceding 42 forty two paragraph true copy reason decision herein mr p w taylor sc senior member sgd associatedated 1 august 2022date hearing 8 june 2022solicitors applicant sandra ardeleancounsel respondent felicity bentleysolicitors respondent aldo paciocco 1 auditor report smsf trustee must relate fund statutorily required annual financial statement ii include statement auditor independence iii include auditor opinion smsf trustee compliance specified statutory superannuation requirement si act 35c 5 2 three superannuation fund audit bluegum superannuation ye 2016 ii le mark executive superannuation fund ye 2016 iii pavlos superannuation fund ye 2018 3 ato referral discretion contingent opinion auditor fit proper person approved smsf auditor ii failed comply duty properly perform audit function see si act 128p 4 aat act 37 document lodged february 2022 statement reason included attachment asic 27 april 2022 notice confirmation although 24 february 26 april 2022 decision made different asic delegate clear document lodged whether 26 april 2022 decision maker prepared provided separate additional statement reason confirmation decision see 37 doc t1 page 8 t2 page 17 18 32 t9 page 130 131 145 146 given content 37 document status 26 april 2022 decision confirmation assumed 7 february 2022 statement reason reflects substance reason 26 april 2022 reviewable decision
D'Amico and Comcare (Compensation) [2018] AATA 54 (19 January 2018).txt
amico comcare compensation 2018 aata 54 19 january 2018 last updated 23 january 2018d amico comcare compensation 2018 aata 54 19 january 2018 division general divisionfile number 2016 4934re donato amicoapplicantandcomcarerespondentdecisiontribunal deputy president j sossodate 19 january 2018place canberrathe decision review affirmed deputy president j sossocatchwordscompensation interpretation phrase relation in 16of thesafety rehabilitation compensation act 1988 threshold question whether massage treatment received applicant obtained relation original compensable injury conflicting medical evidence balance preferable weight given specialist physician expert field opinion general practitioner unqualified person treating doctor may advocate dispassionate professional definition medical treatment therapeutic treatment aggravation applicant underlying condition brought original compensable injury resolved injury back moving furniture 1984 degenerative spinal disease diabetes reviewable decision affirmed legislationsafety rehabilitation compensation act 1988 cth s 4and16casesd amico comcare 2007 aata 77howes v comcare 2016 fca 1521kennon v spry 2008 238 clr 366manns comcare 2012 aata 462pratt comcare 2004 aata 1281telstra corporation ltd v hannaford 2006 fcafc 87 2006 151 fcr 253workers compensation board v technical product pty ltd 1988 hca 49 1998 165 clr 642reasons decisiondeputy president j sosso19 january 2018introductionmr donato amico applicant employed security attendant old parliament house injured back 1 may 1984 moving furniture accepted sustained personal injury lumbago pain arising course employment exhibit 1 t3 pp 15 17 apart short period applicant attempted return work unable engage remunerative employment since time 78 year age background applicant injury history many form treatment received rehabilitation relief pain set decision senior member constance ind amico comcare 2007 aata 77 senior member constance noted applicant tried following form treatment heat pack wearing brace hydrotherapy chiropractic treatment laser treatment physiotherapy needle acupuncture analgesic neuralgic medication massage 9 10 1 july 2016 response claim remedial massage determination made comcare respondent denying liability pay compensation massage therapy unders 16of thesafety rehabilitation compensation act 1988 theact exhibit 1 27 pp 92 93 respondent noted determination applicant received time approximately 1016 massage session stated exhibit 1 t27 p 93 taking consideration dr guirguis letter dated 24 april 2016 amount massage treatment received far consider dr guirguis evidence demonstrated effectiveness treatment empowered self manage injury given amount massage received reasonable conclude claimed therapeutic benefit doubtful accordingly satisfied ongoing massage still considered reasonable 12 july 2016 applicant sought reconsideration determination respondent exhibit 1 28 p 96 four reason advanced applicant however present purpose first relevance dr guirguis support ongoing remedial treatment accept year many remedial massage accept resolve underlying compensable injury remedial massage help cope consequence injury namely impact injury mobility help manage pain undertook rehabilitation exercise program recently assist medical treatment assist remedial massage 5 august 2016 mr j harrison review officer affirmed determination exhibit 1 t1 pp 8 13 reaching decision mr harrison made following observation p 12 review evidence satisfied massage remains passive therapy comcare record indicate period 19 year received 1 206 massage treatment date determination number treatment period time received relevant assessment demonstrate massage treatment equates long term passive therapy furthermore medical evidence support treatment provided temporary symptomatic relief function session consequently consider ongoing massage treatment longer reasonably justified applicant seek review decision exhibit 1 t1 pp 6 7 matter heard canberra 12 13 december 2017 applicant appeared person assisted ably daughter law mr anna amico respondent represented m kristy katavic counsel instructed mr henry chang australian government solicitor applicant gave evidence cross examined applicant called dr george guirguis mr chris radnedge sport spinal physiotherapy respondent called dr janaka seneviratne consultant neurologist clinical neurophysiologist issue determinationthere potentially two issue requiring determination tribunal massage treatment received applicant obtained relation injury b treatment reasonable applicant obtain circumstance first question answered affirmative second question need considered legislative frameworksubsection 16 1 thesafety rehabilitation compensation act 1988 act provides 1 employee suffers injury comcare liable pay respect cost medical treatment obtained relation injury treatment reasonable employee obtain circumstance compensation amount comcare determines appropriate medical treatment term medical treatment defined bys 4 1 act include inter alia medical surgical treatment supervision legally qualified medical practitioner b therapeutic treatment obtained direction legally qualified medical practitioner therapeutic treatment supervision physiotherapist osteopath masseur chiropractor registered law state territory providing registration physiotherapist osteopath masseur chiropractor case may term therapeutic treatment defined in 4 1 including examination test analysis done purpose diagnosing treatment given purpose alleviating injury historical medical evidencewith consent party tribunal admitted evidence document marked exhibit 1 document filed pursuant tos 37of theadministrative appeal tribunal act 1975 included document medical report prepared various medical specialist extended period time september 2003 applicant examined dr derrick billett consultant orthopaedic surgeon report dated 9 september 2003 dr billett made following observation exhibit 1 t5 pp 23 24 following incident 1 may 1984 mr amico experienced pain lumbar region resumed gainful employment since time since 1984 lumbar pain remained constant daily basis although variable accompanied intermittent pain right leg foot occurring course week paraesthesia similar manner treatment conservative quite surprisingly massage treatment 15 year two year ago consider prolonged treatment would benefit also laser treatment twice per week since last year however consider prolonged treatment would benefit clinical examination produced evidence intervertebral disc prolapse nerve root irritation mri study documented marked degenerative change throughout lumbar spine facet joint ligamentum flavum disc change occur course work constitutional age related degenerative type incident 1 may 1984 would led change would led increase anatomical component summary incident may 1984 resulted aggravation pre existing constitutional age related degenerative change lumbar spine quite marked effect would resolved many year thus relationship incident may 1984 would attribute pain experience underlying pre existing constitutional age related degenerative change disc facet joint lumbar spine impairment would due underlying degenerative change applicant also assessed dr virginia pascall occupational physician 7 december 2005 extensive report dated 20 january 2006 made following observation exhibit 1 t7 p 36 clear mr amico symptom degenerative change since 1978 even incident work whilst may small injury aggravation degenerative change abating several month degenerative change aggravated 31stjuly reason unrelated work according gp note definite change worse mr amico symptom 31stjuly possible slight musculoligamentous injury may 1984 sudden onset symptom may instability lumbar spine causing irritation already slightly arthritic facet joint aggravation almost abated required little probably treatment time experienced flare degenerative change several month later acceleration degenerative change caused work related injury degenerative change continued gradually increasing worsening nature aggravation occurred due incident work long since resolved superceded non work related aggravation mr amico back pain caused work incident would ceased august september 1984 particularly resumed normal lifestyle sooner mr amico experience day way back pain referred pain leg unrelated work circumstance apart problem caused condition originally associated worker compensation claim compounded inability get back workplace time unfortunately original treatment overly conservative compounding mr amico thinking suffered severe injury later report dr pascall opined exhibit 1 t7 p 38 factor contribute current lumbar condition non work related degenerative spine solely constitutional disorder mr amico case objective evidence permanent injury spine related structure caused either work incident incident could contributed degenerative change dr pascall also made observation efficacy massage treatment exhibit 1 t7 p 42 mr amico treatment dr cassar group apart medication prescription could supplied general practitioner appears laser massage repeated endlessly cochraine collaboration deemed massage likely work combined exercise usually stretching education hand massage alone inferior manipulation ten machine equal compared corset exercise better acupuncture self care education therefore dealing mr amico chronic low back pain massage without activity stretching going provide benefit noted dr pascall critical treatment prescribed time dr edwin cassar applicant treating physician opined p 42 mr amico obtained long term benefit dr cassar treatment le active 1990s dr cassar treatment began dr cassar began treating applicant 2002 applicant referred dr george guirguis gp dr cassar consultant physician cardiology rheumatology prepared report dated 29 march 2006 dr cassar determined applicant continue massage therapy prescribed needle acupuncture pain management tool addition applicant also prescribed analgesic panadeine forte neuralgic epilim high dosage medication dr cassar made following observation exhibit 1 t8 p 48 summary treating client past four year history documentation client continuous chronic low back lower extremity pain since alleged incident work lifting table injuring lower back process 22 year period since onset low back right leg pain significant period without back pain complaint might suggest total resolution injury taken place furthermore occasioned separate aggravating injury change symptom complaint alleged type disability period loss pain management control occasioned 2001 dealt relapse avoided continuous combination needle acupuncture massage therapy allied health therapy support evidence based scientific study reason believe client would undertaking requesting treatment essential better pain control better functional capacity earlier report dated 8 august 2003 dr cassar emphatic 1984 work incident cause applicant ongoing low back spasm opined follows exhibit 1 t4 pp 18 19 claimant current specific diagnosis mechanical back disorder mechanical nerve root impingement right side l5 nerve root background progressive degenerative spondylosis including disc deemed related initiating work injury 1984 consider condition contributed employee commonwealth employment ceased superceded another episode although possible opinion probable mr amico current condition related pre existing congenital constitutional underlying condition natural progression underlying condition probable worsening condition way mechanical back disorder accompanying mechanical radiculopathy nerve root irritation l5 probable contribution progressive degeneration part natural aging process consideration health issue factor unrelated commonwealth employment contributing lumbago right l5 nerve root condition consider effect mr amico condition far worked sic related temporary nature senior member constance decision referred report dr cairn orthopaedic surgeon dated 23 september 1988 report included document matter interest dr cairn opined 2007 aata 77 30 evidence suggests suffered aggravation symptom related pre existent degenerative change lumbo sacral spine aggravation reasonably expected resolved within 8 12 week overt sign clinical examination confirm psychogenic magnification symptom believe major ongoing disabling factor senior member constance made determination medical report obtained report prepared dr g griffith consultant surgeon dated 31 august 2007 dr griffith summarised finding follows exhibit 1 t10 pp 61 62 client suffering pre index injury lumbar spondylosis moderate degree almost certainly suffered temporary aggravation time index injury 1stmay 1984 basis history obtained description pain time description pain since cause discogenic spite fact period decade progressive degenerative change occurred involving disc facet joint currently exhibit multi level minor disc bulge facet joint arthrosis active except two level ats1and t9 basis bone scan taken 2004 sequela included chronic back pain referred lower limb true sciatica base statement fact neurological sign distally either motor sensory evidence muscle wasting asymmetric reflex change clinical finding suggesting possibility peripheral vascular disease probably associated diabetes hypertension related causally index injury gone develop chronic pain state high level dependence physical therapy without lasting relief cure principal sequel perception pain adoption chronic invalid lifestyle marked ability manipulate medical adviser worker compensation insurer third party benefit notwithstanding though undoubtedly succeeded particularly regard achieving access massage decade improved life essentially vegetative existence current medical evidencethe focus recent medical report efficacy continuing massage therapy distinct assessment whether applicant underlying condition connected 1984 workplace injury tribunal presented two report dr janaka seneviratne dr seneviratne briefed medical evidence outlined previously report 24 february 2017 dr seneviratne provided following assessment exhibit 5 p 5 mr amico 78 year oldright handed male suffered back injury parliament may 1984 accepted work related injury lower back problem predominantly related aggravation pre existing degenerative change lumbar spine well initially musculoligamentous injury lumbar spine appropriately investigated treated condition describes ongoing pain symptom improved much multiple treatment measure past opinion justification continuing massage therapy unlikely improve medical condition pain symptom significant degree reasonable continue current neuropathic medication lyrica mr amico suffered back injury whilst work 1984 predominantly musculoskeletal musculoligamentous injury lumbar spine well temporary aggravation pre existing lumbar spine degenerative disease possible developed chronic pain condition following dr seneviratne also gave oral evidence 13 december 2017 testified opinion applicant 1984 workplace injury likely resolved pain discomfort experienced likely combination age related lumbar spine disease effect diabetes suffering since least 1996 dr seneviratne testified opinion diabetes taken stated could totally exclude could ongoing contribution 1984 injury opinion significant contribution evidence dr seneviratne testified applicant pain varied year view regard applicant high blood sugar level pain leg due diabetes testified make sense applicant massage therapy focused lower back distributed part body insofar massage therapy applied area body lower back right leg dr seneviratne opined treatment connected workplace injury tribunal also benefit receiving written report hearing oral evidence dr george guirguis applicant gp since circa 1985 treated applicant 30 year dr guirguis unique position give broad historical analysis medical state report prepared comcare dated 24 april 2016 dr guirguis made following observation exhibit 1 26 pp 90 91 1 mr amico suffers lower back pain lumbago right sciatica background degenerative lumbosacral spine disease aggravated work injury 1 may 1984 2 recommended treatment remedial massage aiming relieving pain promoting mobility help mr amico perform activity daily living aware mr amico maintains regular domestic activity performs home based exercise medical therapy form analgesic pain modulators 3 effectiveness treatment gauged subjective pain relief mobility ability perform activity daily living treatment gain short lasting symptomatic therefore treatment expected ongoing 4 gentle transition independent self management implemented collaborative approach mr amico competent physiotherapist comcare unable forecast date achieve treatment goal would expect ongoing process started 31 year ago 5 advancing age aware co existing biopsychosocial factor dr guirguis testified conceding applicant may developed dependency massage therapy nevertheless firm opinion lost efficacy opined massage therapy worked well applicant condition effective treatment helping cope everyday living moreover dr guirguis stated massage therapy safe treatment obvious deleterious side effect cross examination dr guirguis testified applicant suffers degenerative back disease diabetes opined 1984 workplace accident aggravated underlying back condition believed accident ongoing impact applicant finally dr guirguis view massage treatment therapeutic benefit applicant inter alia improved functionality tribunal provided medical material dr seneviratne briefed comcare exhibit 3 included material earlier report dr guirguis dated 11 june 2006 view expressed report consistent oral testimony gave 12 december 2017 outlined relevant extract report exhibit 3 pp 111 112 3 examination year demonstrated tenderness palpation lower back reduced mobility restricted leg raising weakness right leg 4 diagnosis acute disc injury result work injury 1 may 1984 aggravating pre existing degenerative lumbo sacral spinal disease 5 opinion probable disability caused work accident 1 may 1984 9 recommended treatment revolves around multidisciplinary pain management mainly physical therapeutic modality minimal pharmacological agent mr amico significant comorbidity pain relief anti inflammatory medication potential interaction medication may also detrimental effect various body organ 10 believe mr amico pre existing degenerative lumbo sacral disease prior work accident 1 may 1984 aggravated injury resulting long suffering although condition mr amico suffered pre existing largely asymptomatic work injury 1 may 1984 led cascade symptom pain reduced mobility pathological change mentioned earlier permanent nature pathological process tissue remodeling following injury fact fibrous tissue formation irreversible believe mentioned aggravation extends indefinitely applicant also called mr chris radnedge give evidence soft tissue therapist treating applicant two year mostly remedial massage therapy mr radnedge testified massage therapy ceased lose efficacy treatment applicant opinion provided temporary pain relief increased functionality mr radnedge conceded applicant aged spinal condition worsened effluxion time need supplement massage therapy exercise program strengthen lower back case applicant mr radnedge observed suffering degeneration spine together osteo arthritis facet joint mr radnedge also opined 1984 workplace accident ongoing deleterious impact applicant condition considerationis massage treatment obtained relation injury threshold question determined whether medical treatment obtained applicant matter massage therapy relation workplace injury sustained 1984 phrase relation given broad expansive interpretation court inkennon v spry 2008 238 clr 366 kiefel j opined 217 relation wide general import read absence compelling reason expression also understood contextually inworkers compensation board v technical product pty ltd 1988 hca 49 1998 165 clr 642at 653 654 deane dawson toohey jj observed phrase gather meaning context appears context determine matter extends helpful tribunal determination proper interpretation relation 16 context ispratt comcare 2004 aata 1281 matter comcare refused compensation cost stenting operation carried five month mr pratt suffered myocardial infarct work comcare accepted myocardial infarct compensable injury determined stenting medical treatment obtained relation injury tribunal set aside reviewable decision gave following reason 25 phrase relation section 16 need looked context part beneficial legislation within section provides generally payment medical expense compensation scheme set legislation interpret phrase widely unless context requires read comcare contends interpreted meaning medical treatment compensation payable restricted treatment injury argument stenting procedure treatmentofthe underlying condition treatmentofthe injury accept argument parliament intended restrict compensation treatment way could simply said using far restrictive preposition rather obtained relation 26 find cost whole stenting procedure compensable dr cole professor rourke agreed stenting would used treat myocardial infarct provided procedure could undertaken within short period injury occurring circumstance clearly procedure part would treatment infarct part treatment underlying condition reduce risk recurrence infarct reason stated section interpreted broadly include mr pratt treatment case dr cole stated stenting prevent recurrence injury became necessary injury mr pratt already suffered sufficient connection purpose section 16 act recent tribunal determination relevance ismanns comcare 2012 aata 462 tribunal made follow pertinent observation 22 relevant connection required 16 1 phrase relation broad meaning confined direct proximate relationship cause effect simply signifies relational connection two matter presently relational connection medical treatment m mann obtained right knee injury comcare accepted liability closeness relational connection must ascertained reference nature purpose provision question context appears matter degree determined evidence applying reasonable satisfaction civil standard without resort indefinite evidence indirect inference footnote omitted m katavic drew tribunal attention recent federal court decision ofhowes v comcare 2016 fca 1521 court considered three question law first two question follows 23 1 whether tribunal misconstruedsection 16of thesafety rehabilitation compensation act 1988 srca holding surgery undertaken advice treating medical practitioner express purpose ameliorating pain associated accepted injury surgery undertaken relation injury word appear insection 16of srca 2 whether tribunal misconstruedsection 16of thesafety rehabilitation compensation act 1988 srca holding word relation injury appear insection 16of srca bear purposive connotation whether purpose patient medical practitioner honour justice griffith dealt question follows 53 55 evident aat reason proceeding determining whether breast reduction surgery relation applicant compensable injury consideration given inter alia evidence applicant various medical advisor well evidence dr maxwell case senior member consider applicant medical evidence regard irrelevant question whether surgery relation compensable injury plainly view relevant preferred accept dr maxwell evidence effect breast reduction surgery could affected symptom applicant compensable injury aat approached central issue basis relational connexion surgery compensable injury determined objectively reference relevant evidence accept comcare submission order determine whether relational connexion existed necessary aat consider nature compensable injury seemanns v comcare 2012 aata 462at 22 23 contrary applicant contention dr maxwell evidence relevant issue reasonableness consider relevant prior question whether surgery relation injury open aat prefer evidence question consider simply involved finding fact suggested comcare aat conclusion surgery relation injury accurately described evaluative conclusion based primary fact seecomcare v martinez 2 2013 fca 439 212 fcr 272at 88 per robertson j subjective view either applicant medical advisor determinative matter aat consider weigh conflicting medical evidence apart fact decade passed since matter last subject scrutiny legal medical tribunal year decade medical quasi medical analysis applicant tribunal presented range medical opinion put professional manner always difficult matter form conclusive view clear conflicting professional opinion firmly honestly based however mandate tribunal fact general rule tribunal give weight evidence treating doctor compared evidence medico legal witness always case tribunal give weight specialist physician expert field opinion general practitioner person hold degree medicine caution required receiving evidence gp treating person many year often case circumstance bond familiarity friendship subconsciously erode professional impartiality born le familiar lengthy relationship often case treating doctor fall error becoming advocate dispassionate professional added criticism simply reflection vicissitude human empathy dispute applicant suffered workplace injury 1984 appropriate acceptance liability matter comcare contends tribunal make finding fact contrary original acceptance liability unders 14 telstra corporation ltd v hannaford 2006 fcafc 87 2006 151 fcr 253 threshold matter contention whether applicant current condition related incident whether suffering inter alia effect degenerative spine well diabetes hypertension one hand tribunal presented report dr cassar dr guirguis mr radnedge opined applicant current condition causally related 1984 workplace incident acknowledging applicant suffers degenerative spinal disease diabetes nonetheless gentleman strongly view 1984 accident continues play role regard expansive beneficial interpretation relation would sufficient accepted meet threshold test tribunal note gentleman interaction applicant extended period time case dr guirguis two decade also case broad range experience relevant qualification circumstance tribunal presented unequivocal diagnosis suitably qualified person tribunal accept medical evidence presented make appropriate determination however matter tribunal presented equally unequivocal diagnosis specialist medical practitioner effect 1984 workplace injury dissipated applicant current condition caused degenerative spinal disease diabetes apart extensive 16 page report dr virginia pascall prepared 2006 tribunal also presented report dr derrick billett consultant orthopaedic surgeon prepared 2003 dr griffith consultant surgeon prepared 2007 detailed extensive report provide clear unambiguous diagnosis 1984 accident resulted quote dr griffith temporary aggravation degenerative spinal condition exhibit 1 t10 p 61 dr billett opined lumbar spine pain experienced applicant would due entirely underlying degenerative change disc facet joint lumbar spine effect aggravation caused 1984 accident 2003 would resolved completely exhibit 1 t5 p 24 dr pascall even blunt opined acceleration degenerative change caused work related injury degenerative change continued gradually increasing worsening nature aggravation occurred due incident work long since resolved exhibit 1 t7 p 36 dr pascall opined applicant assisted original treatment categorised overly conservative compounded mr amico thinking suffered severe injury exhibit 1 7 p 36 material tribunal tends support dr pascall view applicant refused various treatment may assisted dr calder report dated 11 april 1985 said exhibit 1 t8 p 52 reviewed mr amico today unfortunately better lot trouble coping woden valley rehabilitation programme ear ache dizziness pool may well worthwhile investigating also increased back pain said prepared needle spine therefore cannot give epidural elucidate level pathology closely think ct scan help case therefore nothing offer think least attempting minimize symptom refer back dr griffith examined applicant 10 july 2007 18 month dr pascall examined 7 december 2005 briefed dr pascall report well decision senior member constance together radiology report dating back 1987 dr griffith made observation exhibit 1 t10 pp 58 59 dr billett comment received 15 year massage treatment without benefit opinion episode may 1984 resulted aggravation age related degenerative change aggravation would resolved within month underlying condition continuing progress accordance natural history considered whole person impairment 10 probably term first edition comcare guide permanent impairment table 9 6 would due underlying pre existing constitutional age related change index incident way comment agree report dr virginia pascall conducted forensic dissection client history physical finding report quite incongruous straight leg raising seated recumbent clear indication embellishment true sciatica merely referred pain lower back objective neurological sign lower limb interest peripheral pulse diminished though still present marked left right decreased capillary return remembered currently diabetic peripheral circulatory problem well recognised complication condition present year peripheral neuropathy also theoretical complication dr cassar claim suffered acute lumbar disc compression injury discitis subsequent disc degeneration l4 5 believe opinion cannot sustained particular relation discitis rarely suffered primary sequel lifting incident nature claimed acute lumbar disc compression demonstrated merely slow progression degenerative disease opinion dr cassar statement based erroneous concept pathology present cannot justified basis proven radiology fact disc virtually stable period many year documented repeated mri c t lumbar spine view dr pascall analysis situation precise accurate based observable fact regard investigation physical finding also noted symptom sufficiently abeyance 90 engage golfing regular basis addition tribunal benefit listening evidence given dr janaka seneviratne experienced consultant neurologist specialist interest nerve injury neuromuscular disorder dr seneviratne briefed respondent 6 february 2017 32 document including report dr cassar presented tribunal well medical report drs billett pascall griffith exhibit 3 dr seneviratne doubt applicant 1984 injury resolved pain associated problem currently experiencing due age related spinal disease diabetes tribunal impressed testimony dr seneviratne expressed opinion objective manner open making concession totally convinced proposition short gave measured balanced evidence task required tribunal ascertain relational connection massage therapy compensable injury question determined objectively reference relevant evidence presentedcentral task consideration various medical evidence presented finding conflicting evidence balance preferable overwhelming weight specialist medical evidence support contention respondent 1984 injury longer negatively impact applicant condition underlying spinal disease diabetes taken short aggravation applicant underlying condition brought 1984 accident resolved longer cause let alone primary cause current condition summing tribunal taken account following matter applicant suffered workplace injury may 1984 b accident caused applicant pain lower back report dr wardman dated 31 august 1984 30 july 1986 exhibit 2 pp 359 360 c workforce since accident 78 year age time hearing e 1984 commissioner employee compensation accepted liability compensate applicant injury received compensation medical expense loss earnings since time f applicant received least 1016 massage therapy treatment period 18 march 1994 29 june 2016 g preponderance medical evidence workplace accident may 1984 temporarily aggravated applicant pre existing constitutional age related degeneration lumbar spine exhibit 1 t5 p 24 h preponderance specialist medical evidence applicant current condition solely caused progressive degenerative change spine well diabetes exhibit 1 t10 pp 61 62 specialist medical evidence suggests time 1984 aggravation caused workplace injury dissipated applicant underlying constitutional condition continued deteriorate resulting range symptom including pain reduced mobility exhibit 1 7 pp 35 36 j sometime 1984 accident applicant condition improved 1990s playing golf exhibit 1 t7 p 37 k evidence presented hearing disclosed applicant despite advanced year continuing play golf regular basis going well exhibit 2 pp 43 45 l extensive record applicant massage treatment disclose therapy always focused lower back indeed numerous occasion would receive full body massage treatment focused neck arm foot upper back shoulder exhibit 2 pp 4 24 evidence dr seneviratne preferred dr guirguis mr radnedge dr seneviratne specialty presented dispassionate objective witness whereas dr guirguis mr radnedge presented advocate applicant therefore follows massage treatment obtained applicant medical treatment obtained relation compensable injury injury time 1984 certainly reviewable decision resolved determined threshold question favour respondent necessary proceed second question namely whether massage therapy reasonable treatment obtain circumstance decisionthe decision review affirmed ul none list style none certify preceding 74 seventy four paragraph true copy reason decision herein deputy president j sosso associatedated 19 january 2018date hearing 12 13 december 2017date final submission received 13 december 2017advocate applicant m anna amicocounsel respondent m kristy katavicsolicitors respondent australian government solicitor
1407127 [2014] MRTA 1418 (5 June 2014).txt
1407127 2014 mrta 1418 5 june 2014 last updated 16 june 20141407127 2014 mrta 1418 5 june 2014 decision recordapplicant mr prabhjot singhmrt case number 1407127dibp reference bcc2012 695826tribunal member ismail hasandate 5 june 2014place decision sydneydecision tribunal affirms decision grant applicant skilled residence class vb visa statement made 05 june 2014 11 04amstatement decision reasonsapplication reviewthis application review decision made delegate minister immigration 31 march 2014 refuse grant applicant skilled residence class vb visa unders 65of themigration act 1958 act applicant applied visa 16 june 2012 time visa application lodged class vb contained three subclass 885 skilled independent 886 skilled sponsored 887 skilled regional regard visa application relevant subclass case subclass 885 criterion set inpart 885of schedule 2 themigration regulation 1994 regulation delegate refused grant visa applicant required english language proficiency theapplicant appeared tribunal 3 june 2014 give evidence present argument applicant represented relation review registered migration agent following reason tribunal concluded decision review affirmed consideration claim evidencethe issue present case whether applicant competent english required cl 885 213 regulation 1 15cprovides person competent english person satisfies minister person undertook language test specified minister writing subparagraph ii test conducted 2 year immediately day application made iii person achieved score specified instrument b satisfies minister person hold passport type specified minister instrument writing paragraph r 1 15c iii minister specified two language test score international english language test system ielts test test score least 6 4 test component occupational english test oet test score least b 4 test component legislative instrument immi 11 036 r 1 15c b minister specified passport uk usa canada new zealand republic ireland legislative instrument immi 11 036 hearing invitation letter dated 6 may 2014 relevantly noted visa application made 1 july 2011 1 july 2012 show competent english applicant must hold passport specified country uk usa canada new zealand republic ireland issued citizen country achieved specified score language test conducted 2 year immediately day visa application made specified english language test score international english language testing system ielts test score least 6 4 test component speaking reading writing listening occupational english test oet score least b four component also noted required score must achieved test applicant provided evidence tribunal hearing competent english way satisfactory ielts oet score way holding passport specified country applicant provided evidence hearing holder passport specified country passport india hearing tribunal reiterated applicant applied visa 1 july 2011 1 july 2012 cannot found competent english basis satisfactory ielts 6 four component oet b 4 component unless relevant test conducted applicable 2 year period 2 year immediately date application hearing applicant gave evidence never sat oet said ielts test achieved score least 6 4 component test test conducted 12 may 2012 india stated achieved score 9 0 listening 8 0 reading 6 5 writing 6 0 speaking test tribunal commented hearing basis ielts result meet competent english requirement however delegate also evidence accept evidence genuine basis check verification test result showing result cancelled ielts due candidate malpractice noteworthy information contained delegate decision record copy record provided tribunal applicantthe applicant stated hearing agree ielts result affected malpractice stated result reflection true english language proficiency said became aware malpractice issue 20 february 2014 department sent email containing information asking comment information asked done support claim said 21 february 2014 sent email ielts india idp ielts asked explain reason cancellation ielts result 23 february 2014 responded applicant provided copy email hearing ielts india response already sent 17 july 2012 reason cancelling test result response also stated detail regarding cancellation result applicant write toresultsinvestigation idp com tribunal asked applicant whether followed matter answered negative asked tribunal adjourned review period time sit new ielts test tribunal declined request stating cannot meet competent english requirement test conducted outside 2 year period applies 16 june 2010 16 june 2012 applicant requested adjournment review period time obtain evidence showing ielts test dated 12 may 2012 affected malpractice tribunal declined request stating plenty time already 17 july 2012 received advice claimed 3 month 20 february 2014 department advised malpractice issue tribunal stated may prefer accept evidence ielts india oral evidence find ielts result test dated 12 may 2012 cancelled ielts india administrator test claim support sufficient evidence override evidence ielts india basis evidence discussed applicant passport specified country satisfactory oet ielts test result tribunal find applicant competent english defined r 1 15c basis applicant meet requirement cl 885 213 schedule 2 regulation therefore satisfy criterion grant subclass 885 visa relevant subclass case decision review affirmed decisionthe tribunal affirms decision grant applicant skilled residence class vb visa ismail hasanmember
0906447 [2010] MRTA 596 (11 March 2010).txt
0906447 2010 mrta 596 11 march 2010 last updated 23 march 20100906447 2010 mrta 596 11 march 2010 decision recordapplicants m anke connorms vivian shirley connorms sarah sophie connormrt case number 0906447diac reference clf2009 34224tribunal member carolyn wilsondate 11 march 2010place decision adelaidedecision tribunal affirms decision grant applicant partner temporary class uk visa statement decision reasonsapplication reviewthis application review decision refuse grant applicant partner temporary class uk visa unders 65of themigration act 1958 act applicant applied department immigration citizenship partner temporary class uk visa 19 march 2009 delegate decided refuse grant visa 16 july 2009 notified applicant decision review right letter dated 16 july 2009 delegate refused visa application primary applicant satisfy cl 820 211 1 satisfy schedule 3 criterion 3001 3003 3004 delegate satisfied compelling reason applying criterion applicant applied tribunal 13 august 2009 review delegate decision tribunal find delegate decision mrt reviewable decision unders 338 5 act tribunal find applicant made valid application review unders 347of act relevant lawthere two stage process partner visa applicant must hold provisional visa order granted permanent visa grant provisional visa enables applicant remain australia temporary basis grant permanent visa may subsequently considered would generally depend whether relationship continued period least 2 year partner temporary class uk visa class contains following subclass subclass 820 spouse subclass 826 interdependency item 1214 4 schedule 1 regulation subclass respect claim advanced subclass 820 applicant seek visa basis interdependent relationship suggestion applicant meet key criterion subclass criterion subclass 820 visa set inpart 820of schedule 2 regulation primary criterion satisfied time application applicant holder subclass 771 transit visa meet one alternate requirement set cl 820 211 2 3 4 5 6 7 8 9 cl 820 211 1 schedule 2 regulation present case cl 820 211 2 relevant applicant circumstance subclause requires time application applicant spouse australian citizen australian permanent resident eligible new zealand citizen prohibited cl 820 211 2b sponsoring spouse applicant must sponsored spouse spouse turned 18 relevant parent guardian case applicant holder substantive visa time application must meet certain criterion schedule 3 regulation limited exception applicant must satisfy schedule 3 criterion 3001 3003 3004 unless minister satisfied compelling reason applying criterion cl 820 211 2 criterion 3001 requires application visa validly made within 28 day relevant day defined 3001 2 certain person held entry permit valid 31 august 1994 became illegal entrant 1 september 1994 relevant day 1 september 1994 last day applicant became illegal person ceased hold substantive criminal justice visa 1 september 1994 entered australia unlawfully date relevant day last day held substantive criminal justice visa last entered australia unlawfully whichever later respect visa application lodged 23 december 2004 3001 criterion last substantive visa held cancelled decision cancel visa set aside migration review tribunal relevant day later either day substantive visa ceased effect day applicant taken notified tribunal decision criterion 3003 schedule 3 applies limited number case applicant holder substantive visa 1 september 1994 31 august 1994 either illegal entrant holder entry permit valid beyond date criterion 3004 schedule 3 requires minister satisfied applicant holder substantive visa factor beyond control compelling reason granting visa applicant complied substantially condition applicable last entry permit subsequent bridging visa last substantive visa bridging visa held applicant addition minister must satisfied applicant would able satisfy criterion granted visa day last held substantive criminal justice visa last entered australia unlawfully applicant intends comply condition visa last visa entry permit held subject condition holder would entering australia entitled granted entry permit entry permit holder remained australia explanatory memorandum statutory rule 75 1996 introduced waiver provision schedule 3 requirement cl 820 211 2 stated schedule 3 requirement impose certain restriction unlawful non citizen apply onshore residence spouse ground introduction waiver provision recognises hardship result unlawful non citizen wishing remain australia spouse ground obliged leave australia apply overseas waiver provide greater flexibility minister compelling circumstance arise expected waiver exercised reason strongly compassionate nature australian citizen child relationship applicant nominator already long standing relationship existence two year longer circumstance waiver may justified hardship could result schedule 3 criterion waived department procedure advice manual pam3 reflects statement explains mean case circumstance benefit waiver would error law apply policy inflexibly applicant sponsor given opportunity present information consider compelling reason waive schedule 3 criterion officer course required unders54of act regard information application however policy intention assessment relationship applicant sponsor genuine would absence factor described sufficiently compelling justify applying schedule 3 criterion term compelling defined legislation according macquarie dictionary compel compelling mean force drive especially course action context r 1 20j regulation full court federal court inbabicci v mimia 2005 fcafc 77 2005 141 fcr 285at 24 noted shade difference various dictionary definition compelling view meaning word circumstance must powerful lead decision maker make positive finding prohibition contained regulation 1 20j 1 waivedalthough comment made context term compelling circumstance r 1 20j tribunal considers relevant issue presently claim evidencethe tribunal department file relating applicant department file contains following information claim sponsor australian born citizen date birth 11 march 1965 one previous marriage ended divorce 13 march 1998 two child first marriage two boy born 26 january 1994 primary applicant born germany 18 december 1972 two daughter first marriage born 25 april 1994 2 may 1999 first marriage ended divorce 22 october 2004 sponsor primary applicant first met via internet 23 october 2007 applicant arrived australian 30 october 2008 met sponsor first time person sponsor primary applicant married 24 january 2009 sponsor primary applicant completed form application spouse visa 29 january 2009 posted personal cheque department department receive application post primary applicant presented department 6 march 2009 receiving letter compliance section stating visa ceased 19 march 2009 primary applicant lodged application spouse visa assistance migration agent theapplicants appeared tribunal 10 november 2009 give evidence present argument tribunal also received oral evidence sponsor tribunal hearing conducted assistance interpreter german english language applicant represented relation review applicant sponsored connection visa application mr charles connor sponsoring spouse sponsor australian citizen primary applicant stated first met sponsor internet around october 2007 talked many time internet telephone decided perfect couple lot common wanted similar thing life came australia two daughter intention marrying sponsor arrived australia 30 october 2008 married 24 january 2009 tribunal asked could decide marry quickly primary applicant stated already talked internet difficult put word fallen love right thing tribunal asked primary applicant married 24 january 2009 tourist visa due expire said reason getting married time primary applicant stated believed tourist visa valid 1 year told immigration official arrived melbourne primary applicant said wedding held backyard husband closest friend family well two daughter attended none family germany attended longer contact since leaving germany contact one sister mother sibling want contact since left country primary applicant stated never met sponsor two son contact primary applicant stated obtained first visa application form downloading internet husband completed together husband wrote personal cheque posted application together cheque presumed application received department discovered problem received letter march 2009 saying come attended locked room told husband free leave given bridging visa consulted migration agent migration agent completed second application lodged personally paying bank cheque received letter saying paid fee also received letter referring error medical treatment visa department file f 72 tribunal asked primary applicant whether followed department posting first application admitted tribunal asked whether considered lodging person sending registered post said hindsight would know better tribunal asked primary applicant say compelling reason waive schedule 3 criterion primary applicant said compelling reason really want husband love said husband relationship 2 year met internet october 2007 also said husband love child child love would want without tribunal asked primary applicant whether factor beyond control led substantive visa time stated told visa valid one year spouse visa application control thought time sponsor gave evidence generally consistent primary applicant stated people say internet relationship real shown ideal way meet talked everything internet including life wanted first discussed marriage december 2007 tribunal asked could consider marriage quickly someone met person yet sponsor said talking hour every day comfortable discussing every aspect life tribunal asked sponsor married january 2009 primary applicant came australia october 2008 stated knew wanted wanted marry denied married 24 january 2009 tourist visa due expire also believed tourist visa valid one year wife say told airport sponsor said personally posted first spouse visa application around 28 29 january 2009 post office normally us south plympton expect would decision straight away think follow received letter department around 5 6 march 2009 realised problem tribunal asked sponsor compelling reason waive schedule 3 criterion said department saying arranged marriage get wife australia genuine tribunal noted delegate made finding genuineness otherwise relationship sponsor stated made valid application australia post nothing department website say send application australia post said posting application entered contract australia post would deliver person department told phone two application system meant must received first application handwritten note call tribunal asked sponsor provide sponsor confirmed photocopy first application sent department included second application lodged migration agent sponsor complained department made mistake second application including saying paid fee tax receipt saying applying medical treatment visa said department handled application best ability also stated department never proven post first application tribunal asked factor beyond control led wife substantive visa time application stated factor beyond control australia post delivering application department immigration website said could use australia post sponsor said department immigration made error case acted integrity good faith still fighting legal right following hearing sponsor faxed handwritten note contained following diac 24 4 09 catherine mcbeath family residence section 2 application made 20 3 09 still processing 6 8 month processing 30 november 2009 tribunal made enquiry department relation handwritten note sponsor tribunal asked m mcbeath comment note particular meant 2 application 20 january 2010 tribunal received response m mcbeath follows remember applicant situation applicant claimed lodged 820 spouse visa 29 1 2009 attached cheque payment never received department extensive check administration team keep record application received deemed received original application second application lodged 19 3 09 allocated continued ass 17 4 2009 nominated migration agent either sent via mail brought counter additional documentation assessment along documentation copy 820 spouse application form lodged 19 3 2009 upon receipt information support officer family residence section created new file correspondence thinking new application lodged based upon two complete copy application form completed applicant sponsor information accompanied form payment returned applicant agent invalid please note invalid application icse 1 february 2010 tribunal wrote applicant pursuant tos 359aof act putting department response inviting comment information tribunal considered would reason part reason affirming decision review 2 march 2010 tribunal received response letter 1 february 2010 response included following failure australia post deliver original application posted 29 january 2009 factor beyond applicant control pam3 part 1division 1 4b state compelling circumstance include nature hardship detriment would suffered sponsor nominator compelling circumstance application unsuccessful applicant return germany sponsor also forced leave australia allow family separated leave business home australia able work run business communicate live normal life germany without knowing language without support friend minister give consideration changing act regulation policy procedure accommodate situation like failure australia post deliver mail finding reasonsthe tribunal satisfied applicant holder subclass 771 transit visa time application tribunal therefore find cl 820 211 1 met noted earlier satisfy cl 820 211 1 b applicant must meet one alternate requirement set cl 820 211 2 3 4 5 6 7 8 9 tribunal find applicant last enter australia 19 december 1989 accordingly applicant meet requirement cl 820 211 3 tribunal also find applicant never held prospective marriage temporary visa accordingly applicant meet requirement cl 820 211 4 5 6 7 8 9 subclause relevant applicant circumstance cl 820 211 2 schedule 3 requirement cl 820 211 2 question tribunal whether applicant meet requirement cl 820 211 2 tribunal find applicant present case substantive visa time application applicant entered australia 30 october 2008 holder subclass 976 electronic travel authority visa expired 30 january 2009 tribunal find applicant applied spouse visa 19 march 2009 holder substantive visa time applicant dispute seek rely first spouse visa application posted department late january 2009 valid application made primary applicant still held substantive visa tribunal accepts applicant completed form alleged posted either 29 january 2009 soon thereafter tribunal make finding basis photocopy first form completed stub chequebook showing cheque made department amount 2105 dated 29 january 2009 tribunal find however first application posted applicant amount valid application evidence department record ever received comply withs 46 ba c act requires payment charge fee time application evidence show bank cheque sent first application never banked tribunal considered claim sponsor told phone department two application mind evidence received earlier application tribunal contacted department inquire meant two application satisfied department response evidence earlier application ever received department file state appropriate enquiry made record application received department discovered f 81 disputed personal cheque written sponsor 29 january 2009 never banked applicant enter australia holder subclass 995 visa special purpose visa therefore tribunal find satisfy cl 820 211 2 issue present case whether required cl 820 211 2 ii applicant satisfy schedule 3 criterion unless compelling reason applying criterion order satisfy criterion 3001 application visa must lodged within 28 day relevant day relevant day present case day applicant last held substantive visa 30 january 2009 date applicant subclass 976 electronic travel authority visa expired tribunal find application spouse visa made 19 march 2009 therefore made within 28 day relevant day accordingly applicant satisfy criterion 3001 compelling reasonsas tribunal found applicant meet schedule 3 criterion 3001 required consider whether compelling reason applying criterion case ofpaduano v minister immigration multicultural indigenous affair 2005 fca 211the federal court held ordinary meaning compelling forceful forceful reason may involved physical legal moral necessity may reason forcefulness convincing case ofboakye danquah v minister immigration multicultural ethnic affair 2002 fca 438wilson j held issue whether compelling reason applying schedule 3 criterion considered time visa application tribunal taken account compelling reason advanced primary applicant sponsor genuineness relationship claim together two year alleged misleading advice received length validity tourist visa failure australia post deliver application department effect sponsor required relocate germany applicant department pam3 state policy intention assessment relationship applicant sponsor genuine would absence factor described sufficiently compelling justify applying schedule 3 criterion tribunal bound follow policy guideline tribunal find genuineness relationship sufficiently compelling reason applying schedule 3 criterion tribunal considered guidance provided explanatory memorandum referred state expected waiver would exercised reason strongly compassionate nature australian citizen child relationship long standing spouse relationship two year longer tribunal note sponsor two son australian citizen child however tribunal find child child relationship applicant sponsor contact evidence tribunal child would impacted applicant return germany tribunal considered oral evidence secondary applicant bonded sponsor want separated however tribunal find australian citizen child relationship set example explanatory memorandumthe primary applicant stated hearing relationship fell second circumstance given explanatory memorandum relationship existence two year tribunal find primary applicant sponsor long standing spouse relationship two year longer time application 19 march 2009 met internet october 2007 tribunal accepts applicant arrived australia 30 october 2008 primary applicant commenced spouse relationship sponsor however tribunal find relationship 30 october 2008 19 march 2009 cannot described long standing relationship two year longer primary applicant say arrived melbourne told immigration official visa valid one year tribunal find unlikely primary applicant told accepts primary applicant mistakenly believed case unfortunate primary applicant misapprehension tribunal note primary applicant seek assistance migration agent contact department discus eligibility requirement making spouse visa application tribunal find primary applicant belief substantive visa valid year sufficiently compelling reason waive schedule 3 criterion mistake made department sending letter asking payment already made referring erroneously medical treatment visa mistake made application lodged relevant question compelling reason arising time application noted tribunal accepts primary applicant sponsor completed spouse visa application form 29 january 2009 posted either day soon thereafter unfortunate application arrive given posted least 29 january 2009 possible even application arrived would done time meet relevant date 30 january 2009 tribunal find within applicant power lodge application personally registered post courier follow department ensure received tribunal considered whether sponsor claimed intention relocate germany visa applicant unsuccessful sufficiently compelling reason apply schedule 3 criterion tribunal note applicant referred pam3part 1division 1 4b fact relates limitation certain sponsorship nomination claim made department tribunal prior response thes359aletter sponsor considering relocating germany application unsuccessful tribunal accept time application sponsor intended relocating germany visa applicant successful therefore find claim relevant question compelling reason arising time application tribunal accepts primary applicant sponsor genuine relationship acknowledges distress inconvenience caused secondary applicant applicant required leave australia apply offshore however tribunal satisfied reason described sufficiently compelling justify applying schedule 3 criterion tribunal satisfied compelling reason waive schedule 3 criterion accordingly tribunal find applicant meet cl 820 211 2 ii conclusionsin conclusion tribunal satisfied applicant meet cl 820 211 2 tribunal found applicant meet schedule 3 criterion 3001 compelling reason applying criterion accordingly tribunal find applicant meet cl 820 211 2 applicant satisfy subclauses 820 211 applicant meet cl 820 211 1 cannot granted subclass 820 visa decisionthe tribunal affirms decision grant applicant partner temporary class uk visascarolyn wilson date 11 march 2010member
Julie Anne Valerie Keeley v Contract Office Interiors [2003] WAIRComm 7869 (6 March 2003).txt
julie anne valerie keeley v contract office interior 2003 waircomm 7869 6 march 2003 last updated 7 july 2007100315828western australian industrial relation commissionpartiesjulie anne valerie keeleyapplicant v contract office interiorsrespondentcoramcommissioner j l harrisondate orderthursday 6 march 2003file sapplication 1697 2002citation 2003 wairc 07869_______________________________________________________________________________resultapplication alleging unfair dismissal withdrawn leave _______________________________________________________________________________orderwhereas application pursuant tosection 29 1 b theindustrial relation act 1979 andwhereas 3rdday december 2002 commission wrote applicant advise service application effected accordance regulation theindustrial relation act 1979no later 17thday december 2002 matter could proceed andwhereas 9thday december 2002 applicant filed notice discontinuance relation application andnow therefore commission pursuant power conferred theindustrial relation act 1979 hereby order application hereby withdrawn leave commissioner j l harrison
Andrew and Secretary, Department of Employment and Workplace Relations [2007] AATA 1580 (28 June 2007).txt
andrew secretary department employment workplace relation 2007 aata 1580 28 june 2007 last updated 25 july 2007administrative appeal tribunaldecision reason decision 2007 aata 1580administrative appeal tribunal v 200601123general administrative division regraeme andrewapplicantandsecretary department employment workplace relationsrespondentdecisiontribunalmiss e shanahan memberdate28 june 2007placemelbournedecisionthe tribunal affirms decision review sgd e shanahanmembersocial security disability support pension application 29 march 2006 rejected application 12 february 2007 granted applicant eligible disability support pension 29 march 2006 retrospective payment disability support pension attracted social security act 1991s 94re stojanovic secretary department employment workplace relation 2007 aata 1202reasons decision28 june 2007miss e shanahan membermr andrew lodged claim disability support pension dsp centrelink 29 march 2006 centrelink service delivery agent secretary department employment workplace relation respondent based medical evidence centrelink denied claim basis applicant impairment considered temporary likely improve within next two year therefore satisfys 94of thesocial security act 1991 act authorised review officer aro affirmed decision 14 july 2006 mr andrew sought review decision social security appeal tribunal ssat 1 november 2006 ssat affirmed decision mr andrew applied administrative appeal tribunal review ssat decision 23 november 2006 mr andrew represented respondent represented mr de uray centrelink advocate tribunal provided document lodged accordance withs 37of theadministrative appeal tribunal act 1975 document party tendered following exhibit report dr r jackson orthopaedic surgeon dated 6 may 2002 exhibit a1 treating doctor report centrelink dr b hill dated 22 february 2007 exhibit a2 report dr hill dated 18 june 2007 exhibit a3 letter mr andrew dated 11 may 2007 exhibit a4 letter mr andrew dated 8 may 2007 exhibit a5 report dr pastor dated 1 may 2007 exhibit r1 report dr greenbaum dated 25 october 2006 exhibit r2 background applicationmr andrew resignation position armaguard company provides armoured car service took effect 7 march 2006 t18 p68 p60 employed security guard armaguard 10 year prior worked state bank victoria 27 year last position bank manager employment bank ended bank victoria taken commonwealth bank australia mr andrew made telephone enquiry centrelink 3 november 2005 22 november 2005 general enquiry regarding disability benefit information course telephone conversation indicated suffered froma number medical conditionswhich impacted work capacity extent planned resign job february 2006 t3 p14 fact mr andrew delayed resignation march 2006 order qualify long service leave t2 p5 claim form lodged dsp 29 march 2006 t4 p15 mr andrew listed medical condition major depression diabetes type 2 hiatus hernia crohn disease glomerulonephritis injured left knee stated date condition impacted work capacity january 2005 current symptom wereupset stomach cramping tiredness insomnia lethargy think clearly t4 dr arthur bridge mr andrew general practitioner provided treating doctor report tdr t5 29 march 2006 tdr received 3 april 2006 t7 former provided diagnosis major depression onset november 2005 treated lovan 40 milligram daily type 2 diabetes treated oral hypoglycaemics crohn disease required treatment functional impact reflux oesophagitis controlled omeprazole mr andrew depression expected persist 3 24 month referral psychiatrist considered diabetes type 2 permanent likely remain unchanged diagnosed march 2003 second tdr first except additional diagnosis iga nephropathy treated coversyl impact mr andrew functional capacity m g hiscock performed work capacity assessment 12 april 2006 t9 p33 m hiscock said mr andrew diabetes crohn disease reflux oesophagitis permanent depression temporary found mr andrew current capacity work 7 hour per week rising 14 hour within 6 month 30 plus hour within 6 24 month job training stabilisation symptom assessed crohn disease nephropathy diabetes minimal impact mr andrew work capacity noted depression severe diagnosed psychologist psychiatrist fully treated stabilised mr andrew informed m hiscock symptom depression commenced november 2005 18 april 2006 centrelink rejected mr andrew claim dsp basis medical condition temporary mr andrew subsequently referred dr greenbaum psychiatrist first seen 19 may 2006 dr greenbaum diagnosed major depression onset september 2005 treatment program counselling antidepressant medication planned anticipated improvement dr greenbaum believed mr andrew depression would adversely affect functional capacity 24 month condition would fluctuate severity following dr greenbaum report m hiscock assessed mr andrew respect work capacity t14 p49 confirmed earlier opinion depression fully treated stabilised centrelink received additional medical data centrelink delegate rejected mr andrew claim dsp t15 t16 14 july 2006 aro affirmed decision 1 november 2006 mr andrew application review ssat unsuccessful t2 p3 ssat found condition depression diabetes fully stabilised treated therefore attract impairment rating thetables assessment work related impairment disability support pension impairment table schedule 1b act ssat consider mr andrew osteoarthritis left knee like nephropathy reflux oesophagitis crohn disease found interfere level functioning t2 p10 mr andrew lodged claim dsp 2 march 2007 supported detailed tdr dated 22 february 2007 new general practitioner dr b hill based report mr andrew assessed eligible dsp receiving benefit backdated 12 february 2007 mr andrew claim medical condition unchanged since first applied dsp eligible dsp time first application 29 march 2006 issue tribunal e whether mr andrew entitled dsp backdated 29 march 2006 relevant legislationsection 94 act deal qualification dsp 94 1 person qualified disability support pension person physical intellectual psychiatric impairment b person impairment 20 point theimpairment table c one following applies person continuing inability work thehealth secretaryhas informed thesecretarythat person participating supported wage system administered thehealth department stating period person participate system
Kelly v Kelly [2007] NSWSC 541 (31 May 2007).txt
kelly v kelly 2007 nswsc 541 31 may 2007 last updated 31 may 2007new south wale supreme courtcitation kelly v kelly 2007 nswsc 541jurisdiction equity divisionfile number 1138 2005hearing date 29 30 november 20061 december 200630 april 2007judgment date 31 may 2007parties donna mary kelly v clarke john kellyjudgment associate justice macreadylower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel mr j wilson sc plaintiffmr sg cambpell sc mr meek defendantsolicitors holman webb plaintifflyons barnett kennedy defendantcatchwords family provision application underfamily provision act 1982by daughter left small portion deceased grazing property balance left son order adjustment party share property legislation cited case cited decision judgment 1 supreme courtof new south walesequity divisionassociate justice macreadythursday 31 may 20071138 2005 donna mary kelly v clarke john kellyjudgment1his honour application thefamily provision act1982 respect estate late mary ethel kelly died 14 july 2004 deceased survived plaintiff daughter son defendant deceased married husband carried grazing business property oakvale upper horton country new south wale husband predeceased 28 september 1985 deceased continued business death deceased2 deceased made last 11 september 2003 appointed plaintiff defendant executor trustee plaintiff received specific bequest 20 head cattle unweaned calf b area approximately 100 acre cottage plaintiff partner casey turner live located area subdivided oakvale c yamaha quad runner portable compressor welder fire fighter pump deceased household good chosen plaintiff 3 defendant received balance property plant livestock residue estate divided plaintiff defendant equally asset estate deceased4 time hearing estate comprised following asset oakvale 1 165 000 00livestock 162 585 00plant equipment 30 200 00nab term deposit 141 051 64trust account proceeds 29 807 49loan owed clarke kelly 20 700 00amp share 18 700 00total 1 568 044 135 rate taxation liability outstanding amounting 8 991 27 leaving net estate cost 1 559 052 86 6 party incurred substantial cost matter plaintiff cost two day hearing estimated 123 300 defendant 109 925 total 233 225 hearing occupied three day another short period fourth day amount cost mean plaintiff successful residue family history7 conveniently set written submission party incorporate judgment together amendment 8 deceased married patrick john kelly marriage lived property dalkeith owned father terrence kelly patrick john kelly member dalkeith partnership comprising father brother max 9 1972 deceased husband acquired property oakvale oakvale area approximately 2 319 acre 938 63 hectare worked property partnership oakvale partnership conjunction dalkeith partnership 10 defendant born 2 march 1967 went boarding school toowoomba secondary education returned property 1984 11 plaintiff born 5 august 1968 went local high school barraba left school early 1985 take hairdressing apprenticeship tamworth 12 defendant leaving school lived oakvale parent father death deceased 1992 thereabouts falling mother ordered property 13 plaintiff worked apprentice hairdresser tamworth area later toowoomba 1986 went melbourne complete hairdressing apprenticeship lived melbourne february 1993 returned tamworth area deceased request returning tamworth area became reacquainted casey turner 14 plaintiff casey turner living separate residence bingara late 1994 time casey turner went oakvale assist deceased stock management farm work deceased requested assistance 15 1995 plaintiff casey considering moving away upper horton queensland purchase farm deceased offered give plaintiff 100 acre oakvale plaintiff could build house small area breed cattle casey breed horse 16 plaintiff casey moved onto oakvale march 1996 lived shearing shed property 6 month deceased gave plaintiff six cow start herd plaintiff casey wished construct house area land intended plaintiff deceased able borrow sufficient monies deceased borrowed 40 000 national australia bank used purchase portable house provide service water sewerage electricity portable house plaintiff casey made repayment bank respect monies borrowed deceased repaid loan 2003 17 moving onto property casey turner provided assistance deceased respect cattle farm work oakvale work said performed without remuneration dispute quantum work done casey turner oakvale return matter later 18 moving onto oakvale casey earned income farrier breaking educating young horse plaintiff obtained casual work hairdresser 1996 97 1997 obtained full time work tamworth 19 plaintiff eldest child ricky john turner born 29 april 1999 plaintiff took six month work returned casual employment working two day per week 20 march 2000 casey shoeing horse nearby property steel fragment entered eye suffered serious eye injury underwent surgery subsequently injured eye removed injury impacted ability lifting work notwithstanding continued carry work deceased returned oakvale 21 may 2000 plaintiff son ricky aged 12 month suffered serious burn face upper body required hospitalisation recovered injury lead normal life except left scarring body 22 august 2003 deceased invited plaintiff defendant meeting proposed discus testamentary intention would seem plaintiff defendant aware deceased intention leave plaintiff 100 acre oakvale meeting lasted time largely taken argument plaintiff defendant extent value work done property casey turner time casey turner ceased performing substantial work oakvale defendant came property assist deceased 23 plaintiff casey extended cottage constructed fence around near cottage built stable built three large shed period 1996 2003 plaintiff second child abby born 17 march 2004 eligibility24 plaintiff eligible person application thefamily provision actthe high court insinger v berghouse 1994 hca 40 1994 181 clr 201has set two stage approach court must take page 209 said following first question provision made applicant inadequate proper maintenance education advancement life difference adequate proper interrelationship exists adequate provision proper maintenance etc explained inbosch v perpetual trustee co limited determination first stage two stage process call assessment whether provision made inadequate circumstance proper level maintenance etc appropriate applicant regard amongst thing applicant financial position size nature deceased estate totality relationship applicant deceased relationship deceased person legitimate claim upon bounty determination second stage arise involves similar consideration indeed first stage process court may need arrive assessment proper level maintenance adequate provision event becomes necessary embark upon second stage process assessment largely determine order made favour applicant saying mindful may circumstance court could refuse make order notwithstanding applicant found left without adequate provision proper maintenance take example case likeellis v leederwhere asset order could reasonably made making order could disturb testator arrangement pay creditor plaintiff situation life25 plaintiff aged 38 year partner casey turner aged 45 year two dependant child ricky born 29 april 1999 abbey born 17 march 2004 26 plaintiff following asset mitsubishi magna 2 500 00nab cheque account 471 24two quarter horse mare foal 1 2 share 7 100 00one male colt 1 2 share 1 800 00two quarter horse yearling 1 2 share 6 000 00new england credit union account 3 42house content 5 000 00total 23 124 6627 plaintiff interest estate also access fund available child namely ricky trust account 8 248 58for abby trust account 31 0028 plaintiff master card debt 3 984 42 29 plaintiff husband casey following asset westpac saving account 329 00term deposit new englandcredit union 2 294 73another term deposit withnew england credit union 603 541974 holden utility 200 00breeding mare 40 000 00horse trailer 1 500 00portable yard 10 000 00loading ramp 800 00tractor 2 000 00attachments 2 000 00saddles equipment 10 000 001998 ford falcon utility 2 400 00quarter horse mare 2 350 00quarter horse mare foal 5 000 00one quarter horse colt 1 800 00five male gelding 10 000 00one stallion 6 000 002 quarter horse yearling 6 000 001 male colt yearling 3 000 002 filly 4 000 00viscount caravan 600 00household miscellaneous item 5 000 00total 115 877 2730 plaintiff taxable income year ended 30 june 2006 9 397 casey turner taxable income year ended 30 june 2006 9 319 figure misleading apparent casey sold horse period 2003 argument deceased plaintiff casey sold 47 head stock received 17 000 included taxable income relevant year 31 evidence casey living expense including school fee business expense horse breeding business paid proceeds damage claim amounted 29 700 also purchased three quarter horse mare foal small item equipment fund also obvious proceeds sale stock shortly death deceased also substantially expanded unfortunately evidence plaintiff casey true projection income receive expense incur coming year mention later make difficult ass claim although accept live part capital recent year time accumulated horse start breeding programme 32 plaintiff always good relationship deceased 1993 defendant left property deceased asked plaintiff return melbourne could closer deceased plainly casey moved property 1996 extensive contact notwithstanding argument 2003 plaintiff deceased maintained close relationship plaintiff assisting deceased illness last year situation life defendant33 defendant 40 year old married operates wool buying business known cj kelly wool business realised loss approximately 1 200 last financial year continued undertake seasonal casual employment including farming wool classing wife irene currently employed sale agent cb hart pty ltd franchisee respect landmark office barraba weekly income amount 675 96 apart weekly income landmark defendant irene receive rental income 250 per week respect tamworth property income used entirely payment mortgage property 34 defendant irene following asset property 34 william street tamworth 225 000 00subaru outback 16 000 00car trailer 1 000 00bank account 11 273 0015 sheep 375 00741 iag share 4 179 24furniture 2 000 00amp life policy surrender value 1 000 00total 260 827 2435 following liability loan 20 700 00anz home loan 111 986 74credit card 4 253 70landmark 350 00total 137 290 4436 defendant superannuation amp superannuation fund current balance 18 680 74 irene superannuation guild retirement superannuation fund 21 500 37 defendant relationship deceased quite good life defendant left school 1984 returned work farm collapse wool market late 1980s received little work oakvale started look employment qualification started carry work elsewhere using qualification obtained 1993 argument result defendant left farm due course commenced working various wool company argument mother last long really went way endeavour one stage offered position elder winton declined mother told oakvale would still available died relationship continued amicable death deceased 38 evidence given sister deceased concerning discussion deceased argument 2003 discussion deceased explained reason making provision way discussion deceased outlined actual provision made referred fact donna thought treated unfairly wanted half estate deceased said opposed split property half would make unviable view property viable go defendant entirety excluding hundred acre set aside also expressed view hundred acre fair start anyone language recalled fact got married received twenty heifer 39 deceased also referred fact donna thought casey work year appreciated deceased view adequately compensated casey keeping cattle horse oakvale without expense also referred disagreement clarke ordering property retrospect thought probably best decision able earn improve prospect 40 deceased preferred son daughter way set clear may traditional idea country property continued next generation male injohnston v mccallum 2005 nswsc 17i following say view 61 fundamental problem deceased approach provision child evidenced clearly evidence discloses strong desire son farming property reason son received majority asset estate deceased taken view level provision made daughter although view moral obligation farmer towards child common past one influence court exercising jurisdiction thefamily provision act act requires court consider individual circumstance child proper provision child without differentiating child sex 41 present case party disagree approach claim parties42 plaintiff sought order receive one half property including area house erected together one half stock plant equipment defendant sought dismissal summons seeking cost sister plaintiff summons dismissed prepared consent order plaintiff cost paid estate deceased 43 considering claim plaintiff necessary see benefit brother received deceased contribution may made estate asset 44 doubt plaintiff casey moved onto property casey carried work deceased although work full time deceased required carry work time time deceased occasionally used contract labour work property doubt substantial input casey prepared accept work without remuneration amount work dealt number witness many year deceased also kept diary recorded event property diary show casey carried work defendant regular basis 45 doubt deceased provided plaintiff number benefit connection move property 1996 important one right use whole property run plaintiff casey cattle horse small part hundred acre area fenced addition plaintiff received benefit occupation property ability build house improvement relying upon promise deceased leave deceased deceased provided another benefit borrowed 40 000 help fund house although cost casey plaintiff repaid loan small benefit could borrow fund 46 possible quantify extent work carried casey property plain deceased regarded work sufficiently compensated right run cattle horse property argument 2003 cattle horse sold casey doubt plaintiff thought contribution appreciated ceased work property seems one fairly regard arrangement party conducted business arrangement providing casey proper compensation way benefit received 47 plaintiff received benefit provided place erect home admittedly small without outlay fund purchase land 48 plaintiff casey made improvement property moved 1996 apart construction home built stable three large shed number fence around improvement surrounding paddock 49 early year defendant worked little remuneration family property period since deceased death managed property without remuneration would received excess 70 000 paid station hand period 50 plaintiff defendant received gift 20 000 mother consideration plaintiff claim51 difficulty provision deceased proposal subdivide land plaintiff would require appropriate town planning consent land zoned general rural barraba local environment plan 1990 clause 13 environmental plan council cannot approve subdivision unless allotment area 200 hectare 494 21 allotment frontage arterial road frontage road 400 metre addition council opinion allotment created purpose capable sustaining form agriculture common locality 52 evidence proposed allotment present matter frontage arterial road defined term local plan regard locality depicted aerial photograph unlikely expert town planner gave following evidence obtaining approval lesser subdivision thank opportunity provide planning advice respect matter advice preliminary based brief review document provided barraba local environmental plan 1990 blep already aware minimum lot size rural subdivision blep 200 hectare conforming subdivision likely approved gwydir shire council would recommended option given need certainty court possible council may consider non conforming subdivision using stateenvironmental planning policy no1 sepp1 variation 200 hectare minimum lotsize development standard sepp 1 make reference extent variation permissible substantial variation may allowed appropriate case council must determine granting consent consistent overall aim blep case council may consider variation favourably variation would result additional dwelling property b would impact agricultural viability either resultant property ie residual sufficient size agriculturally viable severed parcel would continue managed small working property farm input c generally consistent aim zone development application using sepp 1 variation supported evidence agronomist department primary industry confirming subdivision would impact agricultural viability land council may also consider application subdivision rural 1 land le 2 hectare clause 16 blep certain criterion met approval pathway would require sepp 1 variation however applicant would need demonstrate compliance range criterion including land within reasonable proximity barraba b land reasonable weather access township barraba c land subject environmental hazard adequate water supply effluent disposed readily e land existing holding ie held holding pattern 1990 blep gazetted surface criterion appear onerous however likelihood approval difficult determine without going da process option mentioned uncertain would require investigation consultation council director planning would recommend pursuing either option 53 matter late last year evidence plaintiff proposing subdivision would give half share property became apparent subdivision take account type country subdivision therefore point considering plaintiff claim suggestion party engaged two expert called party provide joint report court would analyse land propose number different subdivision calculating value land based upon evidence case return detail subdivision shortly 54 necessary considering matter see plaintiff say left without adequate proper provision maintenance education advancement life case casey needed larger area land order generate income fund add another bedroom cottage two child growing plaintiff also suggested would like provide private school education child although evidence cost education 55 subdivision proposed deceased approved provided council consent subdivision defendant pay plaintiff amount equivalent value cottage land date death three equal interest free annual instalment also provided mechanism determine value considering plaintiff claim assume receive deceased land worth 90 000 home twenty head cattle worth 19 000 together chattel personal effect sum 90 000 home probably minimum amount take account improvement 56 based upon use property cattle carrying evidence joint report indicates property size produce annual gross margin 2 557 57 expert inspected property formed view nature country carrying capacity proposed number different subdivision two version hundred acre transferred additional version adding small additional amount land accommodate evidence case evidence operate breeding herd 20 horse cattle would need either 56 72 hectare depending country selected addition subdivision block slightly 200 hectare meet requirement local planning scheme expert also prepared subdivision property one third two third finally two separate half 58 table expert valued portion subdivision indicating carrying capacity annual gross margin based upon carrying capacity case put forward plaintiff larger area land one casey turner suggested needed least 500 acre horse breeding activity 59 although proposal carefully considered financial implication investigated depth casey conceded lesser area could achieve necessary paddock rotation however seems wanted land avoid hand feed stock would doubt affect profit margin also planning use cattle train horse doubt would wish run cattle purpose also provide income substantially increased price obtained horse trained cattle sold trained stock horse possible doubling income obtained regard 60 first matter determined whether fact plaintiff left without adequate proper provision maintenance education advancement life proposal addition house schooling child costed although first proposal probably urgent second urgent moment need income could generated proposed horse breeding programme 61 referred fact land plaintiff receives able produce small increase income used cattle breeding although accept increased income level available horse think even doubling income would assist maintaining family view plaintiff left without adequate proper provision maintenance advancement life 62 unfortunate situation estate cost overtaken cash asset probably recourse remaining asset pay liability cost think appropriate debt met sale livestock plant equipment 63 whole property sufficiently viable support station hand wage would support family prepared accept income le station hand wage property divided two part neither sufficient size support family subdivision take place party earn income supplement income running property nowadays uncommon defendant number qualification would help obtain income farm wife irene plaintiff opportunity extra income limited family allowance moment although husband casey ability earn income presently earning 200 per week 64 defendant undertakes seasonal casual employment wife receives modest wage employment provision substantial part property would enable generate reasonable income sufficient maintain without income work property already adverted difficulty assessing plaintiff present income apparent comparing situation plaintiff casey defendant wife plaintiff casey substantial number horse equipment available purpose carrying horse breeding business defendant hand item receive income farm would need stock plant equipment 65 court take conservative approach plaintiff claim regard difficulty assessing need subdivision 40 hectare 72 hectare produce gross income plaintiff based cattle 2 557 4 542 defendant 47 933 45 948 207 hectare subdivision produce plaintiff 13 119 defendant 37 371 66 plaintiff receives 207 hectare plain casey able receive income able breed horse existing horse amount country could probably achieve gross return approaching station hand wage cattle could supplement income enable provide young family would probably need add farm income 67 defendant would receive gross income 37 371 would plant equipment stock remaining part property would also need farm income 68 circumstance think appropriate order plaintiff receive following 1 able subdivided 207 hectare subdivision referred joint expert report shown visually page 18 report exhibit f place bequest clause 4 deceased 2 plaintiff retain bequest contained clause 3 6 first numbered 7 69 leave defendant balance property balance stock plant equipment 70 event subdivision cannot obtained spite party best endeavour property sold proceeds divided similar proportion party 71 far cost concerned plaintiff cost ordinary basis defendant cost indemnity basis paid retained estate deceased outstanding cost exhaustion residue charged stock shared proportionately plaintiff defendant respect number stock take estate 72 direct party bring short minute give effect reason last updated 31 may 2007
Australian Offshore Services v John Collins [1996] FCA 1896 (22 November 1996).txt
australian offshore service v john collins 1996 fca 1896 22 november 1996 federal court australiaaustralian offshore service v john collinsno sg 47 1996fed 1023 96number page 8administrative lawcourtin federal court australiasouth australia district registrygeneral divisiono loughlin jcatchwordsadministrative law administrative appeal tribunal alleged error law whether tribunal failed consider serious submission whether finding tribunal properly statedadministrative appeal tribunal act 1975 cth lennell v repatriation commission 1982 4 aln 29bisley investment corporation ltd v australian broadcasting tribunal 1982 59 flr 132federal commissioner taxation v cainero 1988 88 atc 4427 politis v federal commissioner taxation 1988 88 atc 5029 puhlhofer v hillingdon london borough council 1986 ukhl 1 1986 1 ac 484apthorpe v repatriation commission 1987 88 77 alr 42hooke v repatriation commission unreported full court thefederal court australia 11 february 1988 dennis willcox pty ltd v federal commissioner taxation 1988 79 alr 267sullivan v department transport 1978 20 alr 323australian postal corporation v lucas 1991 fca 612 1991 14 aar 487hearingadelaide 18 november 199622 11 1996counsel applicant mr dh greenwellsolicitor applicant mouldenscounsel respondent mr tm mcraesolicitor respondent stanley partnersorderthe court order 1 appeal dismissed 2 applicant pay respondent cost incidentalto appeal cost taxed default agreement note settlement entry order dealt order 36 federal court rulesdecisiono loughlin j applicant proceeding australian offshore service appeal finding administrative appeal tribunal tribunal effect finding applicant liable 25 february 1995 otherwise determined pay compensation former employee john collins respondent 2 mr collins suffered compensable injury 19 october 1993 day working employ applicant seafarer vessel far sword slipped hammer injuring right knee back 29 december 1993 left employ applicant mid february 1994 took employment seafarer r w miller co sa pty ltd board vessel island seaway mr collins continued employment 17 may 1994 certified incapacitated work claimed paid compensation applicant date pursuant theseafarers rehabilitation compensation act 1992 cth 3 21 february 1995 applicant wrote mr collins informing result medical assessment applicant considered mr collins made recovery injury told considered fit resume pre injury employment payment compensation would cease 24 february 1995 mr collins sought reconsideration applicant decision due course affirmed last mentioned decision led mr collins successfully seeking review tribunal tribunal set aside decision applicant ordered applicant pay mr collins compensation due 25 february 1995 4 incident occurred april 1994 centre appeal applicant claimed par 4 2 notice appeal result incident mr collins injured back work island seaway whenemployed r w miller co sa pty ltd port adelaide andhis incapacity work resulted entirely traumasustained whilst mr collins working employeron island seaway tribunal however finding favour mr collins attributed cause exclusively accident occurred far sword 19 october 1993 finding result fall october 1993 left mild residual disability amounting small loss function right lower limb whole permanent tribunal dealt injury mr collin back term falling applicant also permanently injured lowerback extent damage annulus fibrosisor outer coating lumbar disc l4 5 injury whicharose course employment respondent wassuch produce increased permanent susceptibility tofurther episode trauma future injury permanentlyweakened applicant back wasinstrumental development significant bulge l4 5which turn resulted consistent lower back pain theapplicant symptomatology applicant outlined evidencebefore tribunal brought injury sustainedto lower back 19 october 1993 back knee injury applicant suffered resultedin incapacity work making finding tribunal made mention section reason incident island seaway april 1994 led applicant submit notice appeal error law tribunal failed comply requirement sub s 43 2 2b theadministrative appeal tribunal act 1975 cth provision follows 2 subject section tosections 35and36d thetribunal shall give reason either orally writing itsdecision 2a 2b tribunal give writing reason itsdecision reason shall include finding materialquestions fact reference evidence othermaterial finding based submission tribunal counsel applicant accepted mr collins back condition submitted finding probable incident gave rise trauma happened stage whilst work started working island seaway 5 case applicant appeal submission made tribunal ignored tribunal sub par 4 3 notice appeal applicant complained 4 3 apart referring submission passing thetribunal failed mention submission advanced consider orgive reason dismissing submission contention wasone worthy serious consideration seriously advanced tothe tribunal tribunal therefore overlooked thesubmission accordingly error law occurred 6 tribunal wholly ignore april 1994 incident stating finding said relation back applicant gave evidence afterthe fall far sword prior employment island seaway experienced little twinge time totime got worse attributed cold inthe kidney pain similar encounteredin childhood described term hisparents twinge got little sorer whilst applicantwas board island seaway april 1994 whilstattending union meeting board experienced severepain lower back l4 5 region radiated theback left thigh calf left foot bigtoe pain caused nausea pain couldnot stand initial medical examination applicantwas seen general practitioner dr chia completion ofa rehabilitation program approximately three month theapplicant found still find unable sit forextended period time without developing great deal painto lower back unable participate range ofactivities particularly heavy lifting gardening beperform duty formerly associated seafarer 7 later stage reason tribunal considering submission advanced behalf applicant regarding incident island seaway april 1994 said applicant submitted incident 19 october 1993was causative injury mr collin right knee andnothing else alternatively submitted mrcollins sustained injury back occasion itwas minor injury rectified applicant submitted incapacity mr collins described evidence accepted applicant came trauma sustained whilst mrcollins working island seaway employedby applicant applicant submitted trauma latter vessel wascaused mr collins leaning wall workrelated led mr collins present incapacity iscompensable act mr collins thattime employed applicant applicant submission included reference evidencewhich asked tribunal accept urged thetribunal affirm decision review 8 many authority court warn zealous exercise reviewing language used tribunal lennell v repatriation commission 1982 4 aln 29 see also bisley investment corporation ltd v australian broadcasting tribunal 1982 59 flr 132at 157 per sheppard j federal commissioner taxation v cainero 1988 88 atc 4427 4432 per foster j politis v federal commissioner taxation 1988 88 atc 5029 5032 per lockhart j 9 also necessary bear mind tribunal judge fact decision set aside unless shown error law thus puhlhofer v hillingdon london borough council 1986 ukhl 1 1986 1 ac 484at 518 lord brightman member house agreed said existence non existence fact left thejudgment discretion public body fact involves abroad spectrum ranging obvious debatable thejust conceivable duty court leave thedecision fact public body parliament hasentrusted decision making power save case isobvious public body consciously unconsciously areacting perversely see also apthorpe v repatriation commission 1987 88 77 alr 42at 53 4 hooke v repatriation commission unreported full court federal court australia 11 february 1988 10 counsel applicant submitted tribunal failed consider least failed consider adequately principle enunciated full court court dennis willcox pty ltd v federal commissioner taxation 1988 79 alr 267 case mr eastgate acquired 50 issued share capital prestige furniture co pty ltd case transferred applicant shelf company would hold trust however relevant agreement referred sum money consideration sale said 1900 share applicant subsequently sold share third party regard consideration expressed agreement pursuant application acquired title share substantial profit resale commissioner assessed profit tax pursuant provision 26 theincome tax assessment act 1936 cth review commissioner decision administrative appeal tribunal affirmed decision applicant appealed therefrom 11 two particular argument advanced behalf applicant tribunal mentioned tribunal reason first following effect share mr eastgate held prestige acquired applicant shelf company remained beneficial ownership passed third party purchased applicant second submission put tribunal mentioned follows tribunal erred law failing consider whether calculating profit included applicant assessable income taken account true value share date acquisition evidence pointing share value excess expressed consideration agreement mr eastgate applicant 12 jenkinson j delivered principal judgment court dennis willcox pty ltd v federal commissioner taxation supra woodward foster jj agreed order reason first submission jenkinson j said doubt whether failure tribunal discus thecontentions specified therein justify inference thetribunal failed consider contention reasonsinclude careful detailed discussion evidenceconcerning making agreement sale share bymr eastgate applicant discussion theconclusions stated reason might think beenregarded tribunal clear implied rather thanexpress contradiction contention specified inthat ground p275 tribunal failure consider second submission brought different result jenkinson j said common ground submission made thetribunal ascertaining whether applicant gained profit within meaning word either 26 s26aaa 2 sale share hookway aviation pty ltd ascertaining amount profit bededucted proceeds sale price agreedby applicant paid mr eastgate share butalso amount value share time theapplicant purchased exceeded price submissionwas grounded contention value fact exceeded thatprice substantial amount eastgateowned beneficially share applicant pricewhich might agreed whether 1 1 million wouldhave price fact agreed according thesubmission lacking economic reality reason tribunal decision devoid ofreference submission devoid reference thequestion fact value share section 43 2 theadministrative appeal tribunal act 1975required subject certain restriction presentlyrelevant tribunal give reason inwriting itsdecision reason include finding onmaterial question fact particular circumstance case evidenceprobably could support either finding value theshares time applicant bought notsubstantially exceed price applicant agreed pay forthem finding mr eastgate mr sellen believed thattime value substantially exceed price ifthe tribunal made either finding tribunalwas unable find contrary one thosefindings may decided question law contraryto submission advanced applicant behalf orany rate contrary much submission courtmight prepared accept therefore applicant ssubmission modification submission held bythis court correct point law failure thetribunal mention either submission question offact value referred would leave courtand party unable determine whether one hand error law vitiated tribunal consideration thesubmission hand submission availed theapplicant nothing factual basis restedhad found acceptance tribunal pp275 276 jenkinson j went point every failure tribunal mention contention advanced loosing party amount failure comply requirement ofs 43 2 theadministrative appeal tribunal act 1975 cth demonstrate contention considered aiding matter tribunal circumstance case consideration honour concluded submission concerning ascertainment profit wasworthy serious consideration seriously advanced thetribunal ought therefore inferred thesubmission inadvertently overlooked tribunal eitherwhen reference decided reason thedecision committed writing cf sullivan vdepartment transport 1978 20 alr 323at 353 eitherevent opinion error law thetribunal power court whichs 44 1 theadministrative appeal tribunal act 1975confers decide theappeal question law available pp276 277 apparent consideration passage dennis willcox pty ltd v federal commissioner taxation supra authority bold proposition tribunal err law fails consider reason every submission made obviously nature submission application circumstance particular case critically assessed necessary appeal court make specific finding submission would brought different result fact would encroach upon responsibility tribunal sufficient court perceive jenkinson j said submission worthy serious consideration 13 decision dennis willcox pty ltd v federal commissioner taxation supra affect present appeal first place cannot said case dennis willcox pty ltd v federal commissioner taxation supra tribunal reason devoid reference submission already identified two passage tribunal reason reference made incident island seaway reference made clear tribunal overlooked issue submission made respect issue 14 thought court intervene case dennis willcox supra tribunal wholly fails address issue substance power intervene exist case notwithstanding recognition submission worthy consideration tribunal fails give reason fails set finding material question fact fails refer evidence material finding based 15 sullivan v department transport 1978 20 alr 323was case tribunal adverted relevant issue manner insufficient satisfy requirement 43 2 administrative appeal act 1975 cth deane j said passage clearly indicate whether tribunalever directed attention consideration relevant tothe determination question whether conditionallicences issue particular circumstance theparticular case p348 australian postal corporation v lucas 1991 fca 612 1991 14 aar 487is example extensive discussion tribunal conflicting medical evidence burchett j felt compelled conclude discussion inadequate tribunal failed make finding material question fact would enabled reasoning process understood p495 16 applicant faced difficulty challenge tribunal reason medical expert dr sorby adam advanced proposition incident far sword caused injury pain mr collin back opinion mr collin problem arose old pre 1993 injury evidence direct conflict dr byrne gave evidence behalf mr collins tribunal considered conflicting medical opinion summarising expert said concluding reason rejected opinion dr sorby adam favour view dr byrne opinion dr byrne clearly stated following answer cross examination saying man 19 october 1993 incurredan acute injury low back extent wasprobably local damage inflicted annulus fibrosis orouter coating lumbar disc subsequently developedinto significant bulge shown cat scan six monthslater subsequently produced consistent low backpain complained ab98 99 acceptance tribunal evidence amount view total rejection might trauma causative disability april 1994 indeed counsel applicant unable point passage evidence would suggested incident movement capable producing trauma undoubtedly mr collins suffered back pain course employment april 1994 medical evidence accepted tribunal identified pain relating back fall 19 october 1993 17 doubt language tribunal might better expressed could said acceptance dr byrne evidence causation meant rejected applicant submission respect incident island seaway often wisdom hindsight encourages observation fair reasoned reading whole tribunal reason leaf room doubt tribunal alert responsibility knew objective determine whether mr collin back leg injury causative link event 19 october 1993 tribunal accepted mr collins wife witness truth preferred medical witness evaluation applicant made passing reference april 1994 incident deter making ultimate finding see cause interfere opinion content tribunal reason amounted sufficient compliance provision sub s 2 2b ofs 43of theadministrative appeal tribunal act 1975 cth 18 appeal dismissed cost
Australian Municipal, Administrative, Clerical and Services Union [2013] FWCD 9797 (13 December 2013).txt
australian municipal administrative clerical service union 2013 fwcd 9797 13 december 2013 2013 fwcd 9797fair work commissiondecisionfair work registered organisation act 2009s 159 alteration rule organisationaustralian municipal administrative clerical service union r2013 337 mr enrightmelbourne 12 december 2013alteration rule organisation 1 15 july 2013 australian municipal administrative clerical service union lodged fair work commission notice declaration setting particular alteration rule australian municipal administrative clerical service union 9 december 2013 declaration lodged fair work commission 2 particular provide insertion new rule 57a 57b 57c 57d 57e 57f 57g 57h 57i 57j rule organisation alteration made purpose complying provision thefair work registered organisation amendment act 2012 amendment act regarding rule registered organisation particular alteration provide specified disclosure implementation policy relating expenditure mandatory training officer duty relate financial management organisation 3 information contained notice declaration satisfied alteration made rule organisation 4 amendment act1provides alteration rule organisation purpose making provision required amendment act certified general manager transition period commenced 29 june 2012 alteration rule certified transition period however take effect date certification commencement part 2 schedule 1 amendment act whichever occurs later part 2 schedule 1 amendment act commences 1 january 2014 2 5 opinion alteration comply contrary thefair work registered organisation act 2009 ro act amendment act thefair work act 2009 modern award enterprise agreement otherwise contrary law certify accordingly subsection 159 1 ro act modified item 38 schedule 1 amendment act delegate general manager1see item 38 schedule 1 amendment act 2see section 2 amendment act printed authority commonwealth government printer price code pr545676
Holdsworth v Glen Eira CC [2005] VCAT 286 (23 February 2005).txt
holdsworth v glen eira cc 2005 vcat 286 23 february 2005 last updated 2 march 2005victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p3054 2004permit application ge pp 16581 2004catchwordss 77 refusal application make alteration front dwelling lot containing two dwelling neighbourhood character various provision clause 55 applicantgeoff holdsworthresponsible authoritycity glen eirasubject land22 scott street caulfield southwhere heldmelbournebeforemichael read memberhearing typemerits hearingdate hearing2 february 2005date order23 february 2005citation 2005 vcat 286orderthe order tribunal decision responsible authority set aside responsible authority directed issue permit subject following condition accordance direction set directionsthe responsible authority directed provision ofsection 85 1 b theplanning environment act1987
Wickham & Wickham [2008] FMCAfam 1084 (3 October 2008).txt
wickham wickham 2008 fmcafam 1084 3 october 2008 last updated 6 october 2008federal magistrate court australiawickham wickham 2008 fmcafam 1084family law parental responsibility whether order made equal shared parental responsibility presumption inapplicable family law act 1975 cth s 4 60b 60cc 61b 61c 61da 64b 65d 65dacblair blair 2007 fam ca 253applicant m wickhamrespondent mr wickhamfile number brc 11100 2007judgment wilson fmhearing date 26 september 2008date last submission 26 september 2008delivered brisbanedelivered 3 october 2008representationcounsel applicant n athe applicant person m wickhamcounsel respondent m kirkman scroopesolicitors respondent einsiedelsorders 1 father mother equal shared parental responsibility child namely born 1998 x born 1999 2 child live mother time spending time communicating father 3 child spend time father victoria agreed party failing agreement le following first week gazetted queensland school holiday june september year week commence 10 00am first saturday holiday period b give effect order 3 father shall responsible making travel arrangement paying cost transportation child victoria coolangatta father shall also provide mother copy flight detail le 30 day prior period time referred order 3 c 4 day easter alternate year child spend first easter father 2009 alternate year thereafter time occur victoria commence 10am good friday conclude 5pm easter monday 5pm tuesday following easter monday tuesday school day give effect order 3 c father shall responsible making travel arrangement paying cost transportation child victoria coolangatta father shall provide mother copy flight detail le 30 day prior period time referred order 3 c e 20thdecember 2008 10thjanuary 2009 alternate year thereafter f give effect order 3 e father shall responsible making travel arrangement paying cost transportation child victoria coolangatta father shall provide mother copy flight detail le 30 day prior period time referred order 3 e g 29thdecember 2009 20thjanuary 2010 alternate year thereafter h give effect order 3 g father shall responsible making travel arrangement paying cost transportation child victoria coolangatta father shall also provide mother copy flight detail le 30 day prior period time referred order 3 g 4 purpose father making travel arrangement child flight shall arranged coolangatta airport b flight coolangatta shall depart 8 00 c flight coolangatta shall arrive 8 pm mother shall responsible delivering child collecting child departure gate coolangatta airport purpose flight shall meet cost e father shall responsible delivering child collecting child departure gate melbourne airport purpose flight shall meet cost 5 event father able spend time communicate child accordance order set provide mother minimum four week notice alternative arrangement proposed father applicant mother agree change unless unreasonable 6 child spend time father gold coast agreed party failing agreement le than4 weekend per calendar year upon father providing mother30 day written notice intention travel gold coast exercise time child 7 give effect order 6 father shall collect child mother residence friday evening 8pm shall return child mother residence later 6pm sunday evening 8 mother shall ensure father notified child school treating medical allied health professional together contact detail 9 order constitutes sufficient authority father contact child school treating doctor allied health professional purpose discussing issue affecting child person release necessary information father 10 party keep informed name address medical practitioner involved treating caring child 11 party authorises child medical practitioner discus parent child health medical treatment 12 mother father authorise school provide parent copy school report report child progress behaviour issue notice received school including newsletter parent letter general notice 13 neither party shall denigrate presence child person denigrating parent shall remove child situation soon reasonably practicable 14 party entitled attend sporting school event extra curricular activity child involved 15 party advise respective residential address telephone number change thereto within 48 hour change occurring 16 child shall communicate father telephone hour 6 30pm 7 00pm queensland time every sunday 17 purpose order 16 father shall purchase provide child mobile telephone shall pay ongoing cost thereof mother shall ensure said mobile telephone kept charged switched time referred order 16 hereof 18 mother shall entitled telephone child whilst father care frequently twice weekly mobile telephone provided father purpose whilst child care father shall ensure mobile phone switched charged notedthat publication judgment pseudonymwickham wickhamis approved pursuant tos 121 9 g thefamily law act 1975 cth federal magistratescourt australia atbrisbanebrc 11100 2007ms wickhamapplicantandmr wickhamrespondentreasons judgmentthe parent born 1998 x born 1999 unable agree three distinct issue concerning parenting order child response filed 29 november 2007 father sought following order 1 husband wife equal shared parental responsibility child marriage born 1998 x born 1999 2 child live wife 3 husband spend time child follows one week commence 10 00am first saturday june september school term holiday b 29thdecember 2007 20thjanuary 2008 alternate year thereafter c 20thdecember 2008 10thjanuary 2009 alternate year thereafter landline telephone contact 7 30am 8 00am child birthday christmas day 7 00pm 7 30pm sunday e may otherwise agreed party time time 4 husband sign document required allow australian passport issue said child 5 husband provide return airline ticket either brisbane collangatta sic airport enable child travel parent ensure child delivered relevant airport sufficient time catch booked flight reply filed 14 january 2008 mother sought following order 1 applicant mother shall sole parental responsibility child born 1998 x born 1999 including making decision child day day long term welfare wellbeing particularly area health medical education religion respondent father make decision arrange procedure carried child whilst care particular time 2 child live applicant mother 3 child spend time communicate respondent father agreed applicant mother respondent father including following first week june july september october gazetted queensland school holiday period period commence saturday immediately following end school term ending following sunday b two week christmas holiday period time commence 29thdecember year ending 14 day thereafter c contingent upon child willing spend extra week respondent father end time order 3 b child spend additional time father year return mother 21stday following commencement time father 4 respect arrangement order 3 respondent father responsible paying travel associated cost respect thereof travel gold coast melbourne arranged father commence gold coast airport brisbane airport 5 father supply mother itinerary proposed travel arrangement respect order later than14 day date proposed travel 6 respect travel arrangement proposed mother child overseas destination purpose holiday itinerary supplied father later 14 day proposed travel 7 respondent father sign passport application made mother child upon expiration current passport 8 event father able spend time communicate child accordance order set provide applicant mother minimum four week notice alternative arrangement proposed father applicant mother agree change unless unreasonable 9 respect father communicating child telephone applicant mother make child available communication mobile telephone hour 6 30 7 00pm queensland time sunday respondent father initiate call amended reply filed 12 september 2008 mother made amendment paragraph 4 5 order sought follows 1 respect arrangement order 3 respondent father responsible paying travel associated cost respect thereof travel form gold coast melbourne arranged fatherconfirming agreeing flight time day party flight booked andto commence gold coast airport brisbane airportwith flight leaving earlier 8 00am 2 father supply mother itinerary proposed travel arrangement respect order later than14 daysone monthbefore date proposed travel commencement final hearing father handed court proposed final order follows 1 father mother equal shared parental responsibility child marriage namely born 1998 x born 1999 2 child live mother 3 child spend time fatherin victoriaas agreed party failing agreement le following first week gazetted queensland school holiday june september year week commence 10 00am first saturday holiday period 1 give effect order 3 father shall responsible making travel arrangement pay cost transportation child victoria brisbane father shall also provide mother copy flight detail le 7 day prior period time referred order 3 b 4 day easter alternate year child spend first easter father 2009 alternate year thereafter time occur victoria commence 10am good friday conclude 5pm easter monday 5pm tuesday following easter monday tuesday school day b 1 give effect order 3 b mother shall responsible making travel arrangement pay cost transportation child victoria brisbane mother shall provide father copy flight detail le 7 day prior period time referred order 3 b c 20thdecember 2008 10thjanuary 2009 alternate year thereafter c 1 give effect order 3 c mother shall responsible making travel arrangement pay cost transportation child victoria brisbane mother shall provide father copy flight detail le 7 day prior period time referred order 3 c 29thdecember 2009 20thjanuary 2010 alternate year thereafter 1 give effect order 3 father shall responsible making travel arrangement pay cost transportation child victoria brisbane father shall also provide mother copy flight detail le 7 day prior period time referred order 3 4 child spend time fatherin brisbane goldcoastas agreed party failing agreement le 4 weekend per calendar year upon father providing mother 30 day written notice intention travel brisbane exercise time child 4 give effect order 4 father shall collect child mother residence friday evening 8pm shall return child mother residence later 6pm sunday evening 5 child shall communicate father telephone hour 7 30am 8 00am child birthday christmas day 6 child shall communicate father telephone hour 7 00pm 7 30pm every sunday 7 give effect order 4 5 father shall telephone child mother landline telephone mother provide landline telephone number father ensure child available speak father mother ensure child able speak father private place telephone hand free 8 time mother wish take child overseas reason whatsoever give father le than30 day notice intention 9 le 14 day prior departure mother shall provide father following full travel itinerary inclusive destination contact detail child destination whilst away documentary proof purchase return air ticket australia child first issue need resolved whether parent equally share parental responsibility section 61cof thefamily law act1975
Paikan, Gulbudean [2001] MRTA 4738 (15 October 2001).txt
paikan gulbudean 2001 mrta 4738 15 october 2001 last updated 14 december 2001 2001 mrta 4738catchwords review visa refusal subclass 309 genuine relationshipreview applicant gulbudean paikanvisa applicant amina nezamitribunal migration review tribunalpresiding member john cipollamrt file number n01 05263dima file number osf2000 056021date decision 15 october 2001at sydneydecision tribunal remit application made visa applicant spouse provisional class uf visa department immigration multicultural affair reconsideration direction visa applicant meet following criterion subclause 309 211 2 schedule 2 subclause 309 213 1 schedule 2 clause 309 221 schedule 2 clause 309 222 schedule 2 clause 309 223 schedule 2statement reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate refuse grant spouse provisional class uf visa m amina nezami visa applicant national afghanistan born 21 december 1962 applied spouse provisional class uf visa 16 november 2000 delegate decision refuse grant visa made 9 july 2001 jurisdiction standing2 mr gulbudean paikan review applicant husband visa applicant lodged valid application review tribunal 11 september 2001 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 dima 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 regulation 1 15aof regulation regulation 1 20jof regulation part 309of schedule 2 regulation direction nilpolicy procedure advice manual 3 regulation 1 15a interpretation spouseprocedures advice manual 3 division 1 4b sponsorship nomination spouse prospective spouse interdependency visa case nassouh v minister immigration multicultural affair 2000 fca 788
N96_11636 [1997] RRTA 3442 (9 September 1997).txt
n96 11636 1997 rrta 3442 9 september 1997 refugee review tribunaldecision reason decisionrrt reference n96 11636country reference syriatribunal member patricia leehydate decision 9 september 1997place sydneydecision tribunal affirms decision grant protection visa catchword syria social group people disabilitiesbackgroundthe applicant citizen syria arrived australia 1994 12 december 1995 lodged application protection visa department immigration multicultural affair themigration act 1958 act 3 june 1996 delegate minister immigration multicultural affair refused grant protection visa 21 june 1996 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 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 contains four key element first applicant must outside country second applicant must fear persecution every threat harm interference person right convention reason constitutes persecuted mason cj referred persecution requiring serious punishment penalty significant detriment disadvantage chan yee kin v miea 1989 hca 62 1989 169 clr 379at 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 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 person well founded fear persecution even though possibility persecution occurring well 50 per cent real chance one remote insubstantial far fetched possibility finally applicant must unable unwilling fear avail protection country object convention provide refuge lost de jure de facto protection 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 principle established 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 full federal court inram v miea anor 1995 fca 1333 1995 57 fcr 565at 568 claim evidencethe applicant claim set written submission department interview officer department written submission tribunal oral evidence given tribunal 2 september 1997 follows applicant single syrian male age three four shot head unknown assailant parent sought medical treatment period year condition including damage applicant back caused fall subsequent shooting applicant suffered back pain life sought medical relief pain treatment condition 1992 went jordan medical assessment advised doctor nothing could done medically 1994 sought visitor visa come australia stay uncle seek medical treatment australia applicant claimed protection visa application treated government disabled person compulsory military service waived army able continue education admitted school stayed short time forced leave pain inability meet need importantly ridiculed society claim protection visa application indeed denied medical care syria fear harassment persecution return syria society syria continue call name destroy hearing tribunal applicant commented felt situation perhaps meet un convention definition refugee humanitarian case said wished correct impression given hearing department involved particular group want return syria said involved group tribunal hearing applicant made clear parent taken treatment number doctor syria although opinion often differed agreement however nothing could done condition doctor consulted jordan 1992 subsequently arrival australia also agreed medical treatment would assist medical condition asked harassment experienced disability syria applicant said society syria treated people different badly said feel die every one hour every one day people attitude treatment syria also commented returned syria would able get married position state would rejected society said prefer commit suicide going back applicant hearing emphasised good worker detail deleted unders 431 migration act 1958 syria successful work although people syria mocked appearance also successful worker australia supporting serious car accident 1996 applicant said also feared return syria passport expired two month ago afraid would sent prison discovered seeking refugee status australia information would available syrian authority give detail australian bridging visa order renew passport addition evidence applicant tribunal independent evidence concerning treatment people disability syria u department statesyria report human right practice 1996says law prohibits discrimination disabled seek integrate public sector work force however implementation lax regulation reserving 2 percent government public sector job disabled rigorously implemented disabled recourse court regarding discrimination law mandating access public building disabled department foreign affair trade cable dm536 dated 1 july 1996 confirms u state department information provides additional detail treatment people disability syria number service facility available disabled syria although meet need number disabled people syria facility available major city general feeling disabled retarded people discriminated society state pension system hospital medical facility available public hospital facility available free charge full range private facility available cost independent evidence relating treatment people returning syria sought asylum another country available theunited state department state country report human right 1996 january 1997 syria evidence government persecuted upon return applied denied asylum abroad independent evidence put applicant tribunal hearing relation syria anti discrimination legislation applicant commented government may make statement act quite differently relation government treatment people coming back syria applicant believed government would persecute people returning syria sought asylum elsewhere agree u state department opinion finding reasonsi accept applicant fear returning syria treatment people severe visible disability harsh unfeeling applicant sensitivity discriminatory treatment marked clear treatment feared applicant reason race religion nationality political opinion leaf open question whether might considered member particular social group question need addressed however unless established treatment feared amount persecution instance given applicant kind discriminatory treatment suffered include general lack social acceptance well derogatory mocking remark also said army rejected compulsory military service applicant suggested attitude society might find employment difficult would unable live accepted member society example marriage would impossible accept treatment applicant suffered syria harsh particularly someone applicant intelligence sensitivity find amount persecution according mason cj persecution necessarily involves serious punishment penalty significant detriment disadvantage chan case 88 applicant appeared feel exemption compulsory military service constituted disadvantage certainly insult believe military authority country exercise justified discrimination relation person physical fitness military duty applicant also implied society treatment would find employment difficult however constantly successfully employed father syria although harassed derogatory comment independent evidence suggests applicant would suffer severe social detriment example would unable marry account disability indeed department foreign affair trade cable number dm536 1 july 1996 suggests whatever discrimination may occur highly visible general feeling retarded disabled people discriminated society also taken account syrian government devote significant resource assist people disability nevertheless legislation place making discrimination people disability unlawful least expressed positive intention setting target government employment people disability accept actual performance may fallen considerably short target considering applicant claim would persecuted return syria sought asylum australia taken account fact syrian government would necessarily know application protection visa australia unless applicant explicitly told government official bridging visa applicant asked provide order passport issued make mention substantive visa applied whether syrian government aware applicant sought asylum note applicant unable provide evidence relating government persecution people return syria failed asylum seeker able assert people would face imprisonment absence evidence persecution people situation accept u state department comment evidence available persecution taken place acceptance u state department comment instance context quite detailed certainly adverse information gathered u state department syrian government persecution citizen wide range circumstance summary find applicant suffered discrimination insensitive treatment syria disability find discrimination treatment amount persecution relation applicant fear persecution return syria sought asylum australia find applicant fear well founded real chance persecuted return country 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
Mreef Project Company v Department of Natural Resources and Water [2007] QLC 30 (20 April 2007).txt
land court queensland citation mreef project company v department natural resource water 2007 qlc 0030 party mreef project company 15 pty ltd appellant v chief executive department natural resource water respondent file av2005 1853 division land court queensland proceeding application cost delivered 20 april 2007 delivered brisbane heard brisbane member mr pa smith order order cost catchword appellant succe ssful appeal cost factor taken account appearance mr md ambrose counsel appellant mr lc ling respondent solicitor clarke kann appellant crown solicitor crown law respondent background 1 8 march 2007 delivered reason fo r decision respec appellant appeal annual valuat ion certain property valuation land act 1944 appellant appeal allowed submission 2 appellant subsequently sought der cost appellant subm issions limited point tha appe llant com pletely succes sful actio n following norm al principle entitled cost paid respondent 3 stating general legislative provision respondent referred decision bowden v valuer gen eral1where th e land appeal court stated dealin g question cost th important consideratio n ease acces land court land appeal court easy access la nd court air grievance nd valuation revi ewed desi rable reve nue case suc h access shoul available withou fear cost awarde either party e xcept n special case 4 quoting bowden2 resp ondent also subm itted fact en titlin g owner con cessio n may often obv iou inspection ay sub stantial p erhaps exclusiv e ex tent within kno wledge owner 5 respondent referred num ber specific elem ents decision matter3 establish appropriate case award co sts particular respondent point fact pr operty transfer infor mation docum ent appellant identify subject land used far ming significant inform ation support appellant contention becam e clearly known respondent hearing atter ing paragraph 69 decision 8 march 2007 noted highly unusua l farm ing operation conducted 6 respondent also refers im portant issue pe rcentage land currently subject plantation respondent ther efore contends suf ficient cause land court epart usual process party bearin g cost p articula r matter decision 7 agree contention respondent section 34 1 land court act 2000 state 1 subject provision nother act cont rary land court may order cost procee ding n court considers ppropriate 8 valuation land act 1944 provides 66 land court ay make order deem fit respect paym ent cost subject 70 section 70 th e following term 1 1980 7 qlc r 138 146 2 148 3 see 2006 qlc 13 2 cost appeal agai nst valuation 1 value lan finally etermined upon appeal ag ainst valuation value stated owner er notice appe al valuation nearer value valuation appealed gainst cost hall awarde owner 2 oth erwise co sts shall awarded c hief executive 9 given subm issions respondent relevant legislative provision view appropriate case wh ere award cost respondent accordingly ake order cost pa smith member land court 3
BARIC v. BISHOP No. 1194 of 1990 Judgment No. 3062 Number of pages - 4 Damages [1991] SASC 3062 (3 October 1991).txt
baric v bishop 1194 1990 judgment 3062 number page 4 damage 1991 sasc 3062 3 october 1991 court supreme court south australia full court king c j 2 prior 3 duggan 1 jj cwds damage injury right knee lower back exacerbated pre existing condition error trial judge underestimating length future working life accident occurred award future economic loss increased 30 000 55 000 award future non economic loss increased 2 500 5 000 hrng adelaide 6 september 1991 date 3 10 1991 counsel appellant mr mellor solicitor appellant mellors counsel respondent mr walsh solicitor respondent ward partner order appeal allowed judge1 duggan j appeal district court arises action appellant recovered damage personal injury received motor vehicle accident occurred 12th december 1986 appellant 47 year age date trial passenger front seat vehicle driven wife time accident result collision another vehicle driven respondent appellant thrown forward head struck windscreen vehicle right knee came contact dashboard respondent admitted sole responsibility collision 2 significant injury suffered appellant right knee lower back injury exacerbated pre existing condition evidence existing osteoarthritic change knee x ray lumbar spine revealed long standing spondylolysis sign disc degeneration taken place year appellant made previous complaint symptom existing condition learned trial judge view rendered appellant incapable heavy work concreting prior accident could disputed accident disturbed two abnormal area resulting pain view ample evidence upon base conclusion reached learned trial judge time appellant would unemployable sake completeness also mentioned appellant appears suffered relatively minor whiplash injury neck result accident 3 learned trial judge gave judgment appellant sum 50 005 80 made following component non economic loss past pain suffering 5 000 00 future pain suffering 2 500 00 economic loss past loss earnings 10 000 00 future loss earning capacity 30 000 00 special damage 355 80 arthroscopy 500 00 lump sum lieu interest 1 650 00 50 005 80 4 hearing appeal appellant claimed award future economic loss past future non economic loss manifestly inadequate 5 appellant born yugoslavia migrated australia 1969 1975 1980 employed concreting work worked fisherman 1981 time worked various job agreed cross examination worked three year accident however obtained employment fishing boat approximately nine day accident worked boat season 1986 1989 inclusive last time worked fisherman november 1989 said experienced pain fishing kept needed money lost last job fisherman go court december 1989 6 argument favour increase award future economic loss focused upon trial judge interpretation evidence likely effect appellant pre existing condition future earning capacity honour dealt aspect following passage judgment medical evidence future plaintiff without intervention accident extremely tentative notwithstanding one estimate work possible age fifty five thereabouts consider dr dunstan evidence five year although short closer mark longer estimate applying exacerbation consideration respectfully adopt law stated jacob j doyle v burns24 sasr 108at 113 period nearly four year plaintiff fishing work accident earnings work vicinity 20 000 00 per year work stopped december 1989 judgment accident would worked two year december 1989 two year would much condition e background virtually unemployable evidence earnings accident suggests would earned 10 000 00 prawn fishing period december 1989 present allow sum way damage past loss earnings would leave period eighteen month earnings comparable work various contingency imponderable might affected consider future economic loss 30 000 00 fair assessment 7 learned trial judge pointed medical expert proffered varying estimate length appellant working life accident taken place mr fry stated appellant engaged occupation concreting prawn fishing back knee would start giving problem six seven year date trial may 1990 time would degenerate mr king general surgeon said appellant would unemployable age 55 60 8 apparent remark quoted learned trial judge preferred evidence dr dunstan aspect although thought estimate short however view honour either misunderstood dr dunstan expression opinion matter incorrectly applied came calculate amount allowed way future economic loss 9 dr dunstan provided two written report dated 26th june 1989 12th december 1989 first report referred aggravation pre existing back problem commented accept fact suffer residual disability due aggravation pre existing condition time accident believe probably precipitated symptom would occurred anyway due course probably within next 5 year considering nature work 10 ambiguity statement report make clear whether writer referring period five year accident period commencing date report although precision expected estimate event consideration difference two period would obvious effect amount awarded 11 although dr dunstan questioned estimate evidence asked commencement date period referred report comment directly aspect however medical report provided expert gave longer estimate appellant working life significance learned trial judge regarded dr dunstan estimate short attempt made counsel appeared respondent trial clarify dr dunstan statement witness called respondent circumstance view ambiguity resolved favour appellant opinion view expressed dr dunstan passage quoted first report taken referring period five year date report namely 26th june 1989 five year date accident however would appear judgment trial judge based estimate loss earning capacity working life would come end december 1991 12 another factor tends support view dr dunstan contemplating longer period appellant poor command english language may led misunderstanding one aspect work history medical report including dr dunstan based assumption appellant concreting work date accident fact employed work three year prior accident although one occasion period attempted work nature home second report dr dunstan stated however would reaffirm previous opinion disability probably represents loss approximately 20 25 function lumbo sacral spine approximately one fifth attributed subject accident disability considered permanent relatively minor contribution caused accident seems likely would become incapacitated work concrete finisher stage accident occurred underlining 13 however asked evidence p 74 express opinion appellant work capacity time trial witness replied sure activity concrete mixing permanently precluded sort work mostly regard back condition extent condition knee far prawn fishing see reason could carry prawn fishing mentioned second report difficulty rough two three day one occasion recently understandable due fact right knee still somewhat unstable virtue fact partly made attempt build muscle knee make stable something would preventable could helped told prawn fishing duty see continue applies moderate work obviously would avoid repetitive work heavy back strain would obviously avoid repetitive squatting keeling far knee concerned obviously leave great deal course trial judge found appellant virtually unemployable time trial evidence quoted confirms view estimated length appellant future working life would assessed prior accident 14 view learned trial judge broad acceptance dr dunstan evidence issue think appropriate allow period little four year basis future economic loss appellant earnings employment fisherman provide assistance calculating amount allowed number contingency taken account circumstance would substitute sum 55 000 00 amount 30 000 00 allowed learned trial judge heading 15 also view award 2 500 00 future non economic loss inadequate compensation pain suffering occasioned injury caused accident appellant accepted genuine straightforward witness clear evidence medical witness injury result severe pain discomfort restriction activity number year even though time merger symptom arising appellant pre existing condition would increase amount 5 000 00 would interfere assessment past non economic loss note adjustment interest made stage judge2 king c j opinion appeal allowed purpose increasing amount judgment 77 505 80 agree reason judgment justice duggan judge3 prior j agree
Application by Multinet Gas (DB No.1) Pty Ltd (No 2) [2013] ACompT 6 (31 July 2013).txt
application multinet gas db 1 pty ltd 2 2013 acompt 6 31 july 2013 last updated 1 august 2013australian competition tribunalapplication multinet gas db 1 pty ltd 2 2013 acompt 6citation application multinet gas db 1 pty ltd 2 2013 acompt 6review australian energy regulatorparties multinet gas db 1 pty ltd multinet gas db 2 pty ltd trading multinet gas distribution partnershipfile number act 3 2013tribunal mansfield j presidentprofessor dk round membermr gf latta memberdate decision 31 july 2013date hearing heard papersdate last submission 29 july 2013place adelaidecategory catchwordsnumber paragraph 10solicitor applicant johnson winter slatterysolicitor respondent australian government solicitorin australian competition tribunalact 3 2013re application section 245 national gas law review access arrangement decision made australian energy regulator relation multinet ltd pursuant rule 64 part 8 national gas rulesby multinet gas db 1 pty ltd multinet gas db 2 pty ltd trading multinet gas distribution partnershipapplicanttribunal mansfield j presidentprofessor dk round membermr gf latta memberdate order 31 july 2013where made adelaidethe tribunal determines order matter remitted australian energy regulator make decision rule 64 4 thenational gas rulesgiving effect proposed revision access arrangement applicant multinet 2013 2017 period access arrangement decision multinet gas db 1 pty ltd multinet gas db 2 pty ltd 2013 2017 dated april 2013 published 29 april 2013 accordance following direction opening capital base 2013 2017 access arrangement period determined reference conforming capital expenditure made multinet 2012 reference forecast 2012 capital expenditure made essential service commission victoria relation preceding access arrangement period b assessing conforming capital expenditure made multinet 2012 aer shall regard accurate information available regarding multinet actual capital expenditure including multinet audited statutory regulatory account submitted aer c despite rule 64 3 thenational gas rule aer shall consult multinet take account written submission made multinet australian competition tribunalact 3 2013re application section 245 national gas law review access arrangement decision made australian energy regulator relation multinet ltd pursuant rule 64 part 8 national gas rulesby multinet gas db 1 pty ltd multinet gas db 2 pty ltd trading multinet gas distribution partnershiprespondenttribunal mansfield j presidentprofessor dk round membermr gf latta memberdate 31 july 2013place adelaidereasons decisionon 5 july 2013 tribunal granted leave applicant multinet apply review decision australian energy regulator aer published 29 april 2013 giving effect proposed revision access arrangement multinet victorian gas distribution network period 1 january 2013 31 december 2013 access arrangement decision application multinet gas db 1 pty ltd 2013 acompt 5 leave decision direction duly given hearing application listed hearing commencing 27 august 2013 multinet aer informed tribunal consent making determination pursuant 259 2 b thenational gas victoria law ngl proceeding deal application provided memorandum support consent determination sought tribunal obliged 259 1 ngl make determination respect application granted leave accordance 245 appropriate joint submission tribunal may properly fulfil statutory function regard complete correspondence federal court dealing consent application way appeal decision administrative appeal tribunal unders 44of theadministrative appeal tribunal act 1975 cth see egirwin v military rehabilitation compensation commission 2009 107 ald 253 2009 fcafc 33 correspondence complete legislative provision identical tribunal unlike court exercising judicial power commonwealth nevertheless tribunal asked make determination 259 2 b effect submitting matter aer limited purpose direction tribunal aer determine opening capital base multinet may make determination satisfied ground review 246 exists moreover tribunal making determination must bear mind national gas objective revenue pricing principle s 23 24 ngl clear role aer review tribunal give effect objective principle respective decision concern long term interest consumer natural gas tribunal asked make determination consent including consent aer generally require full hearing aer benefit considering application material applicant relies upon regard concern relevant public long term interest consumer natural gas tribunal accepted ground ground review may merit review decision commonly present tribunal material submission support decision review see egapplication dbngp wa transmission pty ltd 3 2012 acompt 14at 36 37 circumstance present therefore tribunal may satisfied make proposed determination aer support tribunal nevertheless considered application ground review expressed application including extent necessary material refer joint submission ground review contained multinet application relate aer determination opening capital base 2013 17 access arrangement period multinet revised access arrangement proposal calculated opening capital base accordance rule 77 2 thenational gas rule ngr purpose estimated conforming capex 2012 76 3 million 2012 dollar final decision march 2013 rule 62 ngr aer accept multinet estimate 2012 capex instead aer applied efficiency incentive carry mechanism contained clause 6 4 b 2 multinet 2008 12 access arrangement include opening capital base benchmark 2012 capex forecast essential service commission esc adjusted actual growth amount 47 6 million following publication final decision multinet wrote aer providing information audited statutory regulatory account showing actual capital expenditure 2012 78 1 million see generally leave decision 27 28 ground review also summarised 30 33 aer reconsidered decision apply clause 6 4 b 2 multinet 2008 12 access arrangement include esc forecast 2012 capex opening capital base following reason aer reached view made error fact finding multinet 2012 capex material making access arrangement decision within meaning 246 1 b ngl 1 determination opening capital base governed rule 77 2 ngr subject applicable transitional provision schedule 1 ngr 2 transitional provision clause 5 1 schedule 1 ngr provides aer must take account operation incentive mechanism transitional access arrangement ensure revenue calculation made next access arrangement period properly reflect increment decrement resulting operation incentive mechanism 3 multinet 2008 12 access arrangement transitional access arrangement purpose ngr clause 6 4 b 2 multinet 2008 12 access arrangement specified mechanism multinet would able retain next regulatory period efficiency reward based upon underspending capex 2012 comparison stipulated forecast essential service commission esc mechanism required aer assume capex multinet 2012 equal esc forecast multinet actual capex 2012 lower figure mechanism would result multinet receiving return efficiency reward difference forecast actual capex 2012 aer accepts clause 6 4 b 2 permit negative carry decrement financial penalty 4 multinet conforming capex 2012 higher esc forecast inclusion esc forecast opening capital base commencement 2013 17 access arrangement period would result decrement financial penalty multinet clause 6 4 b would inapplicable 5 evidence aer multinet conforming capex 2012 would higher esc forecast 6 evidence aer multinet conforming capex 2012 would lower esc forecast 7 circumstance clause 6 4 b multinet 2008 12 access arrangement applicable aer required determine opening capital base accordance rule 77 2 b ascertaining conforming capital expenditure made made multinet 2008 12 access arrangement period tribunal satisfied basis material ground review respect leave apply review given accepted made provide proper basis proposed determination commends aer acknowledgment matter referred obviate need hearing application would repetitious prolix refer material preceding paragraph support determination reason given pursuant 259 2 b nga tribunal order matter remitted aer make decision rule 64 4 ngr giving effect proposed revision multinet access arrangement 2013 2017 period accordance following direction opening capital base 2013 2017 access arrangement period determined reference conforming capital expenditure made multinet 2012 reference forecast 2012 capital expenditure made essential service commission victoria relation preceding access arrangement period b assessing conforming capital expenditure made multinet 2012 aer shall regard accurate information available regarding multinet actual capital expenditure including multinet audited statutory regulatory account submitted aer c despite rule 64 3 thenational gas rule aer shall consult multinet take account written submission made multinet certify preceding ten 10 numbered paragraph true copy reason decision herein honourable justice mansfield professor dk round mr gf latta associate dated 31 july 2013
"Abbreviations" [2019] ELECD 1786; in Gruszczynski, Lukasz (ed), "The Regulation of E-cigarettes" (Edward Elgar Publishing, 2019) xiv.txt
abbreviation 2019 elecd 1786 gruszczynski lukasz ed regulation e cigarette edward elgar publishing 2019 xivbook title regulation e cigaretteseditor gruszczynski lukaszpublisher edward elgar publishingsection title abbreviationsnumber page 4extract abbreviationsaaaq standard standard availability accessibility acceptability andof health care quality health careaccc australian competition consumer commissionacl australian consumer lawact australian capital territoryaltria altria group inc apa administrative procedure act u artg australian register therapeutic goodsash action smoking health uk bat british american tobacco plcbic best interest childcescr committee economic social cultural right un cfda chinese food drug administrationcjeu court justice european unioncntc china national tobacco corporationcop conference partiescopd chronic obstructive pulmonary diseasecourt court justice european unioncpd cigarette smoked per daycped cross price elasticity demandcrc convention right childcrc committee committee right child un ctp center tobacco product u dea drug enforcement agency u directive tobacco product directive eu e cigarette electronic cigaretteeco exhaled carbon monoxidexivabbreviations xvecthr european court human rightsehtp electronically heated tobacco productsends electronic nicotine delivery system ennds electronic non nicotine delivery system eno exhaled breath nitric oxideeu european unioneu charter charter fundamental right european unionfctc framework convention tobacco controlfd c act federal food drug cosmetic act 1938 u fda food drug administration u fsfw foundation smoke free world u ftc federal trade commission u gatt 1994 general agreement tariff
LAW SOCIETY OF SOUTH AUSTRALIA v NICHOLSON No. SCCIV-03-1727 [2004] SASC 2 (14 January 2004).txt
law society south australia v nicholson scciv 03 1727 2004 sasc 2 14 january 2004 law society south australia v nicholson 2004 sasc 2civil1 gray j 2 december 2003 law society south australia applied order suspending legal practitioner practising certificate gregory charles nicholson time hearing application disciplinary action taken practitioner circumstance society sought invoke inherent jurisdiction court society relied affidavit evidence support application 2 5 december 2003 interlocutory order made suspending practitioner practising certificate reason making order law society casethe affidavit evidence3 practitioner attend hearing application notice application affidavit material hearing date given practitioner practitioner indicated unable attend hearing application due serious leg injury would appear may reason practitioner suffered mental breakdown associated exacerbated alcohol dependence condition necessitated hospitalisation several occasion 4 16 december 2003 practitioner notified society prepared consent order made 5 december continuing force would like matter adjourned 5 affidavit evidence established aprima faciecase practitioner engaged conduct constituted marked departure professional standard conduct required legal profession conduct included misuse trust monies failure keep proper trust account record practising without compulsory professional indemnity insurance practising indicated law society would cease practising practitioner appeared acknowledged misconduct trust account issues6 misuse trust monies failure maintain accurate trust record serious breach professional standard required practitioner inlegal practitioner board v hannaford 1 observed need practitioner keep client money separate consistently recognised legislation court many year observation incordery solicitorsare apposite dishonesty whether leading conviction also extremely likely result order solicitor struck grave example deliberate misuse client money dishonesty always take form theft dishonesty implicit statement deliberately mislead others whether client action part solicitor preferring interest client regarded seriously case culpable charging including seeking obtain fee private basis legally aided client obtaining loan client without client independently represented 2 7 misuse trust monies included occasion 9 march 2003 affidavit evidence established date practitioner three separate transaction electronically transferred total 19 000 00 trust account personal bank account applied monies least portion without authority personal benefit admission made practitioner acknowledged conduct practitioner suggested reason conduct alcohol dependence mental breakdown 8 10 march 2003 practitioner telephoned society professional standard section advised suffered complete nervous breakdown admitting hospital stated may misused monies trust account consequence susan remfry bishop solicitor employed society professional standard section attended practitioner office secured practitioner record examined trust account record m bishop conducted enquiry practitioner file trust account record 9 11 march 2003 council law society appointed m bishop manager practitioner practice m bishop attempted address deficiency trust account however encountered difficulty due practitioner failure keep proper trust record practising without compulsory insurance10 14 may 2003 practitioner wrote registrar practitioner advising 10 march 2003 ceased practising practitioner sought refund insurance premium letter practitioner stated advise 10thmarch 2003 ceased practice barrister solicitor supreme court south australia medical reason fact hospital patient total seven week since date therefore request practising certificate cancelled effect 10thmarch 2003 hunter premium finance notified accordingly 11 law society acted advice letter dated 21 may 2003 registrar requested refunded portion practitioner professional indemnity insurance premium refund calculated basis practitioner ceased practise 10 march 2003 12 notwithstanding practitioner advice continued act practitioner letter society practitioner dated 13 november 2003 practitioner admitted practising period following 10 march 2003 13 served application supporting affidavit practitioner wrote society gave undertaking practice given practitioner conduct alcohol dependence mental ill heath appropriate accept undertaking ill health14 evidence court established practitioner experienced period mental ill health contributed exacerbated alcohol abuse earlier discussed suffered mental breakdown depression requiring hospitalisationinherent jurisdiction court15 counsel society drew particular attention tosection 89 3 thelegal practitioner act 1981 sa inherent jurisdiction court discipline legal practitioner however power court insections 89and89aof act dependant institution disciplinary proceeding earlier observed time hearing application disciplinary proceeding commenced 16sections 89and89aof thelegal practitioner act1981
In the matter of First Debenture Limited [2015] NSWSC 1808 (11 September 2015).txt
matter first debenture limited 2015 nswsc 1808 11 september 2015 last updated 9 february 2016supreme courtnew south walescase name matter first debenture limitedmedium neutral citation 2015 nswsc 1808hearing date 11 september 2015date order 11 september 2015decision date 11 september 2015jurisdiction equity corporation listbefore brereton jdecision administration declared ended interlocutory process dismissed catchword corporation voluntary administration appointment provisional liquidator brought administration end application order cth corporation act 2001 447a thatpt 5 3aapplies appointment provisional liquidator operate bring administration end whether administration revived whether unnecessary duplication work provisional liquidator take whether revival administration preserve right creditor decide whether administrator exposed personal liability liquidation held insufficient reason revive administration legislation cited cth corporation act 2001 435c 1 435c 2 435c 3 436a 439a 6 447a pt 5 3acases cited australasian memory pty limited v brien 2000 hca 30 2000 200 clr 270re rildean pty ltd ex parte tjf scaffolding maintenance hire pty ltd 2002 nswsc 631category procedural rulingsparties james photios plaintiff michael charles unicomb first defendant jeffrey douglas dawson second defendant cuneyt kilicoglu third defendant william paul cotter william roland robson fourth defendant first debenture ltd administrator appointed provisional liquidator appointed acn 105 577 017 fifth defendant representation counsel friedlander solicitor plaintiff orlizki solicitor second defendant burchett applicant administrator p harkin solicitor provisional liquidator solicitor neill partner plaintiff kent attorney second defendant lillas loel lawyer pty ltd fourth defendant colin biggers paisley pty ltd fifth defendant file number 2015 227816judgment ex tempore honour 23 july 2015 purported meeting shareholder company first debenture limited purported resolve vacate position board director appoint certain person director person purported resolve director pursuant cth corporation act2001
Trustee for Estate Plastering Pty Ltd T_A Estate Plastering Pty Ltd [2018] FWCA 1655 (21 March 2018).txt
trustee estate plastering pty ltd estate plastering pty ltd 2018 fwca 1655 21 march 2018 last updated 21 march 2018 2018 fwca 1655fair work commissiondecisionfair work act 2009s 185 enterprise agreementtrustee estate plastering pty ltd estate plastering pty ltd ag2017 4689 estate plastering pty ltd enterprise agreement 2017building metal civil construction industriesdeputy president massonmelbourne 21 march 2018application approval estate plastering pty ltd enterprise agreement 2017 1 application made approval enterprise agreement known theestate plastering pty ltd enterprise agreement 2017 agreement application made pursuant tos 185of thefair work act 2009 act made trustee estate plastering pty ltd estate plastering 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 28 march 2018 nominal expiry date agreement 20 march 2022 deputy presidentprinted authority commonwealth government printer ae427700pr601343 annexure