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Australian Rail, Tram and Bus Industry Union v Australian Rail Track Corporation Limited T_A Australian Rail Track Corporation [2023] FWC 1438 (19 June 2023).txt | australian rail tram bus industry union v australian rail track corporation limited australian rail track corporation 2023 fwc 1438 19 june 2023 last updated 4 august 2023 2023 fwc 1438fair work commissionreasons decisionfair work act 2009s 437 protected actionaustralian rail tram bus industry unionvaustralian rail track corporation limited australian rail track corporation b2023 571 commissioner crawfordsydney 19 june 2023proposed protected action ballot employee australian rail track corporation1 background 1 application australian rail tram bus industry union rtbu made unders 437of thefair work act 2009 act protected action ballot order pabo relation certain employee australian rail track corporation limited artc application lodged 14 june 2023 2 group employee balloted employee artc member rtbu covered proposed agreement 3 application considered commission following commencement number bargaining change brought thefair work legislation amendment secure job better pay act 2022 amending act change commenced 6 june 2023 amongst matter impact upon making pabos approval protected action ballot agent might conduct ballot order made 4 proposed agreement greenfields agreement multi enterprise agreement cooperative workplace agreement also notification time proposed agreement present enterprise agreement passed nominal expiry date application accompanying documentation order application proposed order also provided rtbu artc proposed ballot agent meet various requirement 1 making pabo 5 application supported statutory declaration amanda perkins rtbu organiser declaration confirmed nine bargaining meeting occurred 16 february 2023 13 june 2023 identified main issue dispute party 6 15 june 2023 commission advised artc object application requested closing date vote extended 21 working day pabo made whereas rtbu application proposed closing date seven working day pabo made 7 listed matter hearing 16 june 2023 primarily determine appropriate closing date ballot heard matter advised party closing date ballot would 10 working day order issued would otherwise issue order largely term sought rtbu done 2 reason set herein 2 protected action ballot agent 8 section 444 act relevantly provides follows 444 ballot agent independent advisor protected action ballot agent 1a fwc must accordance subsection 1b 1d section decide person entity protected action ballot agent protected action ballot 1b person entity must person entity specified application protected action ballot order person entity applicant wish protected action ballot agent unless person entity specified application meet requirement subsection 1c unless subsection 1d applies b fwc satisfied exceptional circumstance justify another person entity protected action ballot agent 1c person entity must eligible protected action ballot agent 1d subsection 1c apply relation person fwc satisfied exceptional circumstance justify ballot conducted eligible protected action ballot agent b person fit proper person conduct ballot c requirement prescribed regulation met note australian electoral commission entity person cannot protected action ballot agent protected action ballot 9 presently eligible protected action ballot agent approved commission beyond australian electoral commission aec rtbu propose democratic outcome pty ltd civs civs ballot agent effect rely upon exceptional circumstance contemplated 444 1d civs agreed ballot agent confirmed evidence commission 10 adopt reason set deputy president hampton two recent decision 3 regarding test whether exceptional circumstance exist specifically test whether circumstance normal course event unusual uncommon extraordinary open conclude recency amendment protected action ballot agent provision act exceptional circumstance recency change fact scheme act contemplates choice eligible ballot agent unusual something occurred making uncommon 11 importantly found exceptional circumstance exist circumstance must justify fwc granting order non eligible person act protected action ballot agent arises language 444 1d call consideration purpose relevant provision 4 12 section 444 act aim protect interest employee participating ballot employer involved statutory imperative arising scheme act associated regulation ballot might authorise taking industrial action conducted proper democratic prompt robust manner agent fit proper person undertake task 13 accordingly exceptional circumstance might justify fwc appoint agent eligible protection action ballot agent assessed context 14 artc oppose argument raised rtbu support existence exceptional circumstance balance satisfied exceptional circumstance justified approval non eligible ballot agent proposed matter 15 proposed protected action ballot agent must also meet requirement 444 1d b c act involves assessment whether proposed protected action ballot agent fit proper person conduct ballot whether also meet requirement established regulation 16 fit proper person rtbu provided statutory declaration mr mike michael managing director civs observe mr michael civs previously found commission fit proper person conduct protected action ballot based upon mr michael declared education experience attribute 5 material commission includes confirmation extensive ballot professional experience absence criminal conviction kind within business 17 thefair work regulation 2009 6 relevantly provide reg 3 11 follows 1 purpose paragraph 444 1d c act regulation prescribes requirement fwc must satisfied met person becomes protected action ballot agent protected action ballot note person must also fit proper person conduct protected action ballot 2 person must capable ensuring secrecy security vote cast ballot 3 person must capable ensuring ballot fair democratic 4 person must capable conducting ballot expeditiously 5 person must agreed protected action ballot agent 6 person must bound comply theprivacy act 1988in respect handling information relating protected action ballot 7 person industrial association body corporate fwc must satisfied individual carry function protected action ballot agent industrial association body corporate fit proper person conduct ballot b requirement subregulations 2 6 met individual 18 evidence provided behalf proposed ballot agent also confirms satisfaction compliance requirement includes detail nature information system used ballot compliance theprivacy actand related principle step taken ensure ballot conducted fairly democratically expeditiously fit proper individual 19 approved civs act protected action ballot agent matter 444 1d act 20 independent advisor ballot proposed appointed 3 ballot period 21 application sought ballot period seven working day order made commission proposed basis civs could undertake ballot within timeframe 22 referred artc legal representative wrote commission 15 june 2023 requested voting period close 21 working day order made commission ground relied upon artc extended period enable sufficient time orderly ballot occur noting rostering arrangement employee ii enable sufficient time conciliation mediation commission occur 23 rtbu wrote commission response 16 june 2023 indicated pressed voting period close seven working day order rtbu raised following argument response raised artc nominated ballot agent declared able conduct ballot within seven working day order ballot agent completed much larger ballot period previously including relation sydney train ii timeframe sufficient allow compulsory conference arranged 24 hearing 16 june 2023 indicated party provisional view ballot close 10 working day order issued indicated minimum time period adopted deputy president hampton two recent application extra time assist ensuring conference adequately arranged commission invited submission party concerning provisional view rtbu indicated oppose provisional view artc pressed longer period 21 working day referred rostering arrangement need conference arranged commission artc also indicated previous sydney train ballot referred rtbu distinguishable requirement conference arranged end voting period matter heard party confirmed provisional view voting close 10 working day order issued satisfied would provide sufficient time ballot agent conduct ballot commission conduct compulsory conference 25 shortly prior hearing commencing 16 june 2023 chamber advised rtbu become aware three individual bargaining representative identified application likely aware proceeding rtbu also provided email address three individual advised party conclusion hearing would arrange correspondence sent three individual regarding status matter proposed order provide brief opportunity contact chamber wish heard chamber contacted within specified timeframe following conclusion hearing legal representative artc wrote commission indicated identified one individual bargaining representative named application given timeframe 441 act decided proceed issuing order copy order would sent relevant individual bargaining representative consider issue preclude making pabo given dispute statutory notification requirement 440 act satisfied rtbu extent necessary prepared dispense compliance service requirement thefair work commission rule 2013as permitted rule 6 emergence issue reinforced view voting period close 10 working day date order rather seven working day 26 commission separately issue order requiring attendance conference likely direction also issued ensure party attend conference ready conduct meaningful negotiation 4 conclusion 27 basis material satisfied rtbu genuinely trying reach agreement artc meet requirement 443 1 b act also satisfied statutory requirement issuing pabo matter met 443 act commission required issue pabo 28 order separately issued inpr763139 commissioner 1 acts 437 438 440 2 pr763139 issued 16 june 2023 3 amwu v otis elevator company pty limited otis elevator company 2023 fwc 1337andamwu v ugl rail service pty limited 2023 fwc 1365 4 cepu v australian postal corporation 2007 airc 848 2007 167 ir 4at 11 5 see amongst many examplesthe australian worker union v jadestone energy australia pty ltd 2021 fwc 227 6 amended bythe fair work legislation amendment secure job better pay regulation 2023 made 25 may 2023 printed authority commonwealth government printer pr763186 |
Bassam Darwich v Kaal Australia Pty Limited - PR934439 [2003] AIRC 800;
(8 July 2003).txt | bassam darwich v kaal australia pty limited pr934439 2003 airc 800 8 july 2003 pr934439australian industrial relation commissionworkplace relation act 1996s 170ceapplication relief termination employmentbassam darwichandkaal australia pty limited u2002 4250 senior deputy president duncansydney 8 july 2003application relief termination employment decision 1 30 july 2002 application relief respect termination employment unders 170ceof theworkplace relation act 1996 act lodged behalf mr bassam darwich applicant employment question kaal australia pty limited respondent termination took effect 10 july 2002 application thus within time permitted bys 170ce 7 conciliation cargill c conducted 6 september 2002 unsuccessful certificate effect required 170cf 2 act issued day election proceed arbitration filed within time 9 september 2 direction preparation arbitration issued matter set hearing commence 18 november 12 november direction complied applicant varied matter listed 20 january 2003 direction complied although lack production relevant document respondent matter listed direction 14 february day matter set hearing april direction complied matter proceeded 15 april 30 may background 3 mr darwich obtained casual employment comalco rolled product predecessor kaal australia pty limited 1994 became full time employee march 1995 1 january 1996 took employment respondent operator crane fork lift driver granted email access july 1999 4 10 july 2002 handed letter following term dear samsubject termination employmentthis letter confirms discussion held today attended ray sparkes awu assistant secretary ian rose awu steward gardner respect employment kaal australia pty limited advised discussion kaal australia terminated employment effective today basis used company computer system email offensive material save inappropriate material personal computer profile kaal australia considers incident wilful misconduct termination payment calculated basis today 10th july 2002 last day kaal australia employee would also like remind kaal australia employee assistance program helping hand remains available telephone number program 1300 360364 sincerely signed keith goverhuman resource manager evidence 5 mr darwichgave evidence behalf said granted email access advised employment would terminated improper illegal use computer sign user condition recall occasion advised condition use computer recalled receiving pornographic material informed several fellow employee received asked forward material occurred july 2001 similar instance occurred march 2002 early june 2002 another fellow employee brought disk containing two file pornographic material one file gruesome accident scene request fellow employee saved material mr darwich directory although deleted gruesome accident scene found quite disturbing offensive forwarded material employee 6 recalled week prior termination time june 2002 logged computer window popped screen asked one fellow employee pop screen informed merely click pop screen irrelevant recalled pop appeared perhaps one occasion clicked without reading information window 7 morning 1 july 2002 mr darwich logged onto computer deleted pornographic material directory later afternoon called office superintendent human resource manager questioned regard pornographic material stored computer admitted storing forwarding stood escorted site 2 july attended work premise approximately 8 15pm pick bag personal effect left approximately 9 00pm 8 another meeting human resource manager occurred 3 july 2002 also attended union representative questioning occurred regard involvement storing emailing pornographic material mr darwich said cooperated human resource manager answered question truthfully possible made full admission 10 july 2002 attended another meeting human resource manager union organiser named ray sparkes advised employment terminated occasion handed letter already sent 9 mr darwich said never received instruction information regarding improper use computer never signed user condition read pop recalled regular meeting regarding work issue safety recall improper computer usage penalty resulting raised meeting 10 said throughout entire period employment never problem management never received warning caution regarding conduct performance said aware done would result termination would never done 11 also giving evidence behalf mr darwich wasmr b fumberger commenced employment respondent sometime 1995 1996 operator crane fork lift driver six month commenced employment granted email access signed document titled user condition detailed condition use computer advice improper use illegal offensive material could result dismissal 12 recall receiving email september 1999 advising problem another plant warning computer user penalty improper use recall approximately mid 2002 pop ups appearing screen couple occasion logged bother reading pop ups treating part irrelevant meaningless email company sent deleted email addressed recipient left addressed 13 said environment work heavy industry nature bloke bloke employee worked 30 40 year culture really change plenty pornographic magazine lying around drawer cabinet read openly recalled vast amount non work related material including pornographic material hard drive computer used downloaded pornographic material computer used fitter electrician referred mill pull pit computer storage transfer pornographic material one computer another widespread mr fumberger could say handful employee involved improper use would group viewing time superintendent would notice employee viewing material never commented 14 said average sent approximately three four email per week containing joke game comical video pornographic material average would received approximately one two email containing pornographic material every fortnight fellow employee email originated variety source 15 witness longer employed respondent provided statement statement behalf applicant felt unfair couple employee singled made example improper use computer widespread amongst majority employee email access 16 first witness respondent wasmr c j langdon team leader regional service support group alcoa australia limited said worked alcoa 15 year respondent part alcoa group responsibility extended information technology system process respondent 17 every month mr langdon run computer scan various company computing system site alcoa group gone two year scan conduct involves using various search criterion directing identifying possible improper material might system group site scan foolproof pick material match search criterion 18 26 june 2002 witness conducted computer scan revealed may improper material computer usage employee respondent yennora site result normal search made enquiry investigation improper use investigation revealed two employee mr darwich another employee mr paul turner stored inappropriate data personal system mr darwich approximately 400 megabyte inappropriate material system significant proportion material observed pornographic deleted system time mr langdon investigation found scanning process conducted inappropriate material instance employee yennora site stored inappropriate material involved inappropriate computer usage result search june 2002 accepted might possible employee could view inappropriately use pornographic prohibited material company computer discovered result normal scanning process however conducted scanning process differentially 19 witness also deposed email issued september 1999 addressed local recipient yennora site concerning improper use also gave evidence practice employee required sign condition use document pop screen said avoided user must click screen proceed use system 20 next witness respondent wasmr keith gover human resource manager yennora site respondent 21 said mr darwich commenced employment comalco rolled product predecessor respondent 10 march 1995 grade 3 operator within canstock department yennora canstock department produced cold rolled finished aluminium coil shipment domestic export customer time termination employment mr darwich employed grade 3 operator canstock department yennora 22 respondent condition use computer system employee time provided computer access required accept sign condition use mr gover accepted later copy file condition use signed mr darwich condition use also pop employee computer systematic basis employee avoid screen popping must respond screen clicking pop ups condition use tendered hard copy condition use provide breach condition lead disciplinary action including dismissal provide employee agrees introduce company computer system offensive material including limited sexually explicit racist extreme material immediately delete offensive inappropriate material received third party without distributing 23 said 25 june 2002 received email officer group saying inappropriate material found personal computer drive mr darwich mr turner 24 around 26 june 2002 witness arranged access mr darwich personal computer drive view material form view nature say found presentation contained gross highly offensive material also found directory subdirectory look every file subdirectory looked enough form view gross clearly breach computer use condition printed copy material exhibited annexed exhibit statement disk relevant material exhibited statement marked exhibit b found material offensive 25 reviewed material called mr gardner canstock superintendent told mr gardner department found improper material computer mr darwich mr turner arranged meeting 1 july 2002 met mr darwich afternoon 1 july 2002 said told mr darwich issue serious related inappropriate material asked material came mr darwich said got disk friend rest email asked sent anyone else said yes 26 asked whether aware respondent condition use computer mr darwich said popped computer clicked screen rather read content said asked mr darwich whether thought material inappropriate mr darwich replied home kid mr darwich said done wrong thing meeting adjourned mr gover felt mr darwich witness discussion however told mr darwich conclusion meeting stood pay investigation completed 27 morning 2 july 2002 witness mr gardner attempted log mr darwich personal computer drive review material could access followed system access material told department material deleted informed another employee personal computer drive accessed previous evening material deleted however material could retrieved saved onto mr gover personal computer could access done day meeting took place mr darwich also mr ian rose senior union delegate site also present mr gardner time meeting concluded consideration could given course action respondent take mr gover said told mr darwich viewed issue extremely serious suspension pay would continue concluded investigation also told mr darwich incident could lead dismissal tell anything thought might bearing decision whether dismiss 28 10 july 2002 deponent met mr darwich mr rose mr gardner mr sparkes mr gover provided overview described material pornographic highly offensive description disputed said mr darwich mr sparkes speaking separately mr darwich advised matter serious dismissible offence showed copy document summarised file location pornographic material saved mr darwich mr darwich said computer policy flashed front face signed asked mr darwich whether anything wanted say 29 consideration decided dismiss mr darwich meeting reconvened mr darwich told company considered position given information given intended dismiss mr darwich witness said returned office prepared termination letter given mr darwich latter asked collect belongs leave premise 30 mr gover deposed read statement filed mr fumberger said mr fumberger employment respondent terminated 20 march 2002 serious misconduct denied ever seen employee accessing viewing storing sending pornographic material said would take disciplinary action noted mr fumberger made allegation various un named employee regularly accessing pornographic material 31 final witness respondent wasmr b gardner canstock superintendent kaal australia pty limited employed site since january 1979 32 said canstock superintendent responsible managing day day operation department 52 employee reporting directly 33 1 september 1999 received email mr wayne osborne managing director kaal regarding inappropriate use email 34 mr darwich employed kaal operator canstock department 28 june 2002 mr gover telephoned asked attend mr gover office discus issue concerning employee occurred later day told department said employee caught inappropriate material computer system mr gover asked describe nature material said pornographic witness view material stage told mr darwich material stored system received email mr turner forwarded material others decided speak mr darwich mr turner 35 1 july 2002 mr gover witness met mr darwich administration building start meeting mr gover told mr darwich people found inappropriate material asked mr darwich got material mr darwich said replied saw someone looking computer asked send got file asked computer disk loaded onto computer 36 asked whether familiar condition use company computer mr darwich said knew prohibition store send pornographic material also said knew wrong thing like block tag know put lock tag definitely going get sack however agree material inappropriate would material home computer done work said point mr gover said thought mr darwich needed either union another employee meeting concluded 37 later 1 july mr gover witness viewed material found mr darwich material material pornographic included movie clip well pornographic material graphic picture example man lost head bike accident 38 2 july 2002 mr gover could view material available 1 july 2002 witness asked mr darwich whether returned site night said returned collect bag asked witness mr darwich said delete anything computer came got bag 39 meeting held 2 july 2002 mr darwich mr rose mr gover overview given mr darwich agreed material inappropriate also said seen pop window screen however said ignored got way job witness said mr gover told mr darwich would suspended full pay notice matter serious potential dismissal mr darwich tell everything needed know help decide action take meeting concluded 40 meeting occurred 10 july 2002 attendance mr gover witness mr turner mr darwich mr sparkes automotive food metal engineering printing kindred industry union amwu mr rose initially mr turner mr darwich rest together agreed stored forwarded pornographic material meeting separated mr gover outlined background matter previous discussion time mr darwich challenge accuracy description given mr gover mr sparkes also attendance meeting mr gover produced document summarising amount material computer location pornographic material mr darwich saved mr darwich dispute mr gover said meeting condition use policy discussed mr darwich admitted seeing policy said word effect really understand policy asked mr gover wished say anything might need know might affect decision mr darwich claimed deleted material received said received material wanted game blamed mr turner bringing disk claim unaware condition use suggest reason ought dismissed separately consulting mr darwich mr sparkes stated mr darwich would bringing unfair dismissal claim mr gover prepared termination letter mr darwich 41 general mr gardner said went staff canstock department october 1993 pornographic poster calendar removed banned lunchroom like 1997 total ban material form workplace said recalled seeing type material one occasion since many year ago magazine removed site spoke contractor concerned said never seen pornographic material computer department certainly none mill pulpit never seen group employee gathered looking pornography mr turner mr darwich suspended said spoke employee supervision happened consequence said found pornographic material would dealt clear warning 42 mr gardner made supplementary witness statement said made investigation inappropriate material yennora site 24 april 2003 discussed scope investigation mr gover visited number area department looking inappropriate material found none could described inappropriate breach company computer condition use said search area identified mr fumberger extract transcript provided 43 said spoken individually four canstock employee material questionable said three group inappropriate material carshows pt anti car theft device material found mr turner mr darwich personal computer file considered neither identified item referred like material found mr darwich personal computer directory formed view material inappropriate seen sexually explicit offensive employee received either item store computer fact deleted considered action employee stored material condoned warrant dismissal addition deleted inappropriate material computer system contrast mr darwich stored large amount highly inappropriate sexually explicit offensive material personal computer drive submissionsfor applicant 44 submitted applicant applicant time admitted inappropriate usage respondent email system applicant relied completely submission case commission ought find applicant dismissal harsh unjust unreasonable applicant otherwise unblemished record service applicant advised warned policy respondent respect inappropriate email usage prior conduct dismissed never warned inappropriate usage would render liable dismissal relevant step pop screen placed computer system applicant never read content screen applicant inappropriately used email system mainly occasion applicant voluntarily initiative deleted inappropriate material computer prior issue raised evidence anybody received inappropriate email applicant complained content offended evidence applicant inappropriate email usage way interfered proper performance duty applicant time cooperated investigation conduct attempt deny alleged applicant conduct occurred context workplace culture pornographic literature freely available openly read employee large amount pornographic material transmitted stored respondent computer system applicant subject unequal treatment respondent employee warned respondent delete inappropriate material prior completion full examination computer system dismissal circumstance harsh penalty conduct complained taking account various mitigating factor identified 45 remedy submitted reinstatement appropriate applicant contrite understands inappropriate email usage must occur risk applicant offending applicant otherwise excellent work record mean respondent difficulty applicant reinstated 46 number decision relied support submission e g burrow v commissioner police giardini v commissioner police 2001 nswircomm 333 public service association new south wale v road traffic authority new south wale 2001 nswircomm 7486 7487 appeal gregory j watson government related employee appeal tribunal 530 2001 respondent 47 respondent submitted applicant misuse respondent computer system involved receiving storing grossly offensive inappropriate pornographic material distributed others applicant engaged related breach respondent condition use system condition applicant use respondent computer system neither store transmit inappropriate material condition applicant use respondent computer system illegal offensive inappropriate material immediately deleted applicant introduce offensive material including sexually explicit material applicant relevant time admitted inappropriate usage respondent system applicant conduct constitutes serious breach respondent condition use constituted wilful misconduct respondent reason dismissal clearly constitute valid reason termination regard applicant conduct commission various industrial court tribunal determined similar circumstance dismissal employee stored distributed pornographic material harsh unjust unreasonable seetoyota motor corporation v automotive food metal engineering printing kindred industry union print t4675 per watson sdp employee computer access respondent warned inappropriate use system would lead disciplinary action including dismissal applicant aware condition use policy commission ought accept applicant unaware condition event excuse alleged applicant read condition use knew condition use simply passed respondent spolicy unreasonable term unusual extraordinary applicant response allegation circumstance inadequate unsatisfactory mitigating circumstance provided respondent denied applicant deleted inappropriate material prior issue raised applicant first sought prevent inappropriate offensive material accessed suspended pay 1 july 2003 respondent required show conduct otherwise interfered applicant work evidence respondent allow pornographic material workplace condone use permit material knowingly available conducted regular computer scan aimed uncovering use inappropriate material proper investigation applicant conduct allegation made applicant put meeting 1 2 10 july 2002 applicant represented union delegate official two three meeting decision terminate employment made applicant provided opportunity respond meeting allegation made applicant notified writing respondent reason termination termination harsh decision respondent disproportionate gravity misconduct unjust applicant guilty misconduct respondent acted unreasonable decision terminate decided inference could reasonably drawn material respondent outcome decision terminate proportionate offensive material retained applicant contrary explicit instruction warning applicant treated unfairly compared employee company investigating personnel knowledge similar inappropriate use 48 finally submitted commission find termination applicant employment harsh unjust unreasonable reinstatement applicant would inappropriate serious nature applicant conduct delay occasioned proceeding part applicant compensation awarded account ought taken applicant delay conduct proceeding culpability applicant respect conduct giving rise dismissal finding 49 considerable amount evidence matter summarised somewhat extensively however event issue determined evidence number finding reflect finding 1 applicant employed respondent predecessor 1995 2003 2 investigating system described mr langdon foolproof found sufficient establish improper usage others degree mr darwich mr turner uncovered 3 material stored offensive position made worse quantity passing fad large scale library 4 mr darwich aware must deemed aware policy respondent relies say deemed aware tend accept mr darwich evidence paid attention pop ups excuse respondent gone length make policy clear mr darwich deliberately read 5 respondent took reasonable step bring relevant policy attention employee 6 summary condition use find mr darwich must taken aware pop ups include see exhibit ka1 condition use designed ensure company system remain free illegal offensive inappropriate material emphasis breach condition lead disciplinary action including dismissal user agrees introduce company computer system game illegal oroffensive materialincluding limited sexually explicit racist extreme material 7 action mr darwich storing material breach policy 8 prefer evidence respondent witness material deleted mr darwich became aware investigation find 9 2002 industry culture plant justify applicant conduct 10 evidence find mr darwich given opportunity respond allegation meeting 1 2 10 july 2002 consideration 50 turn consider matter determining whether termination harsh unjust unreasonable act requires commission regard whether valid reason termination related capacity conduct employee operational requirement employer undertaking establishment service 51 respondent quite specific letter termination 10 july 2002 reason mr darwich used company computer system email offensive material save inappropriate material personal computer profile breach company policy particular breach condition use noted finding view even without condition use action mr darwich effect abusing equipment access part employment would valid reason dismissal law regard context similar present one applicant transmitted email attaching pornographic material watson sdp ina klopsteins v holding ltd print t4708 said find conduct constitutes valid reason termination also bear mind operational requirement respondent company regard statutory obligation broader obligation workforce find applicant guilty misconduct alleged find respondent valid reason dismissal misconduct 52 noted finding satisfied mr darwich aware policy rely conclusion principally pop ups whether employee notified reason 53 mr darwich advised reason meeting 10 july 2002 confirmed letter date whether employee given opportunity respond reason related capacity conduct employee 54 applicant given opportunity respond matter influenced decision terminate employment done meeting 1 2 july 2002 also opportunity given meeting 10 july three mr darwich took opportunity respond termination related unsatisfactory performance employee whether employee warned unsatisfactory performance termination 55 employment mr darwich terminated unsatisfactory performance employer terminated misconduct employee necessary consider whether warning issued termination degree size employer undertaking establishment service would likely impact procedure followed effecting termination 56 whether procedure followed perfectly fair appropriate circumstance evidence general suggests employer one size undertaking likely impact procedure followed repeat procedure satisfactory degree absence dedicated human resource management specialist expertise undertaking establishment service would likely impact procedure followed effecting termination 57 relevant present matter matter commission considers relevant 58 perhaps area significant consideration arises mr hatcher submission behalf applicant devoted significant amount attention claim dismissal circumstance harsh penalty conduct noted applicant inappropriate email usage interfere proper performance duty conduct occurred context workplace culture pornographic literature freely available applicant subject unequal treatment respondent employee warned delete inappropriate material counsel also relied impact termination mr darwich situation detail set paragraph 43 59 acknowledging inappropriate email usage interfere proper performance duty satisfied applicant conduct occurred context workplace culture pornographic literature freely available evidence employer witness referred summary earlier decision prevent finding similarly employer evidence noted summary denies rather deduces virtually nothing impact unequal treatment indeed satisfied distinction treatment meted mr darwich others remain employment justified complete difference degree commitment material shown mr darwich compared exhibited others applicant unblemished record service termination must serious impact mr darwich family made every allowance factor consider circumstance case sufficiently mitigate seriousness misconduct require conclusion dismissal harsh 60 considered matter required specifically taken consideration 170cg 3 act find circumstance case fair go round accorded employer employee concerned dismissing application commission senior deputy presidentappearances hatcherfor applicant r warrenfor respondent detail 2003 sydney february 14 april 15 may 30 printed authority commonwealth government printer price code f |
Re Ernest Isaac Finkelstein and Repatriation Commission [1986] AATA 173 (30 June 1986).txt | ernest isaac finkelstein repatriation commission 1986 aata 173 30 june 1986 administrative appeal tribunalre ernest isaac finkelsteinand repatriation commissionno w85 97aat 2735repatriationcourtadministrative appeal tribunalgeneral administrative divisionr k todd deputy president major general k j taylor member dr p staer member catchwordsrepatriation disability pension special rateveterans entitlement act 1986ss 9 24 120 177veterans entitlement transitional provision consequential amendment amendment act 1986s 19re delkou repatriation commission n85 301 10 april 1986 thomas repatriation commission 1986 8 ald 651re mccartney repatriation commission q85 77 30 april 1986 lucas repatriation commission n85 423 6 may 1986 pringle repatriation commission n85 388 11 june 1986 hearingcanberra30 6 1986orderthe tribunal affirms decision review decisionin application review applicant sought review decision veteran review board vrb affirming decision repatriation board made 21 august 1984 accepting incapacity applicant hiatus hernia recurrent right inguinal hernia related war service refusing increase rate pension payable 100 per cent general rate assessed repatriation review tribunal 20 september 1983 effect 21 april 1981 relevant incapacity accepted repatriation commission commission bronchitis 18 may 1982 assessed repatriation board 40 per cent general rate effect 21 april 1981 20 september 1983 increased 100 per cent already indicated 2 applicant served royal australian air force northern australia pre war skill motor mechanic area service utilised repair salvage unit decision commission stated applicant said severe influenza enlisting cold whilst service sick time whilst training ascot vale sleeping freezing flemington grandstand medical examination 23 december 1981 commission noted applicant recorded saying service suffered frequent cold since discharge never free cough 3 commission went state follows senior chest specialist subsequently diagnosedmember incapacity bronchitis discussingthe nature cause bronchitis relationshipto member service medical officer thedepartment veteran affair said veteran treated influenza x raytaken december 1944 suggested resolvingbronchitis abnormality detected thetime medical examination prior discharge veteran say episodic chest illnessassociated cough ever since discharge localmedical officer treated recurrent coughduring year 1975 1976 however putup claim march 1977 disabilityfound chest x ray taken 1979 80 81 normal recurrent cough smoking 6years ago despite stopping smoke hadsymptoms repatriation general hospital hollywood bronchitis twice 1981 chest x rayswere normal chest physician also noted normalchest x ray diagnosed incapacity asbronchitis opinion veteran prone torecurrent bronchitis possible theincapacity related occurrence theservice period 4 commission reviewed evidence presented found follows service member frequent cold anda cough post service history show claimant along history upper respiratory tract infection medical examination 1 july 1977 memberstated longer cough hisshortness breath improved since losing stonein weight chest x ray pulmonary function test conductedalso 1 july 1977 within normal limit aspecialist chest disease stated member wasnot suffering chest incapacity subsequent repatriation board determintaion of16 august 1977 member several admissionsto repatriation general hospital hollywood fortreatment bronchitis opinion senior chest specialist whodiagnosed member condition bronchitis opinion medical officer departmentof veteran affair incapacity resulting frombronchitis possibly related member sservice 5 view finding stated commission satisfied beyond reasonable doubt insufficient ground allowing appeal 6 applicant evidence bronchitis ever since joined raaf 1942 discharged raaf february 1945 returned family farm stayed 1949 moved city one two year went partnership relation business making concrete cement product worked business december 1969 three partner retired active management business three year still remaining partner profit business applicant charge managing business received wage closure business 1969 said applicant decided partner result dispute trade union compulsory unionism applicant stage aged 59 7 applicant commenced working taxi driver 1970 subsequently bought taxi drove fact however drove month made little money said unable drive taxi winter month would pull road due terrific fit coughing eye streaming would pull side road could even see road fair passenger said soon started happen knock go home th applicant said started taxi operation teenage daughter wanted make living support made small income however drive long hour able worked owner driver applicant leased taxi first nephew person described unsatisfactory taxi would damaged applicant would go pick eventually lot trouble sold certain thought 1973 1974 good deal uncertainty date would appear applicant last work actually involving taxi driving winter 1970 perhaps 1971 thereafter essentially retained taxi investment previously mentioned apparently occasion go retrieve investment repair servicing applicant evidence set corroborated daughter mr rosetto obviously close supportive father difficulty 8 1977 applicant applied service pension statement contained application therefor stated self employed sold business 6 year previously since drawn money cheque account living expense applicant said advised apply pension went repatriation department enquire obtaining new teeth new glass asked application made reference taxi business applicant said made little money think necessary mention said fact lost money 9 reference made number report appearing document relevant applicant claim 1 december 1976 dr c j carter rmo medical unit iii reported dr healy applicant general practitioner follows saw man medical outpatient last week reviewed week complaint breathlessness mildexertion persistent cough come fromtime time especially night lying flat b dr l gulland visiting consultant physician reported asfollows 31 october 1979 state recurring chest problemsince world war ii started raafparticularly whilst stationed melbourne thereis often recrudescence problem thespring time moderately heavy smoker ofcigarettes 15 per day 12 year sincethen smoked 10 20 cheroot per day untilapril year ceased smokingaltogether episode cough associated withsputum usually white frothy notedtoday often yellow plug frequentwheeze major problem impression chronic obstructive airwaysdisease spring time exacerbation possibleminor degree associated bronchiectasis theimportant distinction make whether hasreversibility ii 16 november 1979 reviewed gentleman chest x ray isprobably within normal limit consideration ofhis physique e c g within normal limit respiratory function show significantreduction mild response bronchodilatoraerosol noteable felt well afterthe ventolin spray time week sputum negative pathogen verymild eosinophilia study withinnormal limit believe three component chestdisease 1 asthmatic component probably related tosome extent seasonal allergen 2 obstructive airway disease beenoverloaded smoking year whichfortunately ceased 3 probably mild degree bronchiectasis c report emanating dr p connor dr connor aspecialist physician 1 may 1981 dr connor registrar dr bradford reported man asthma recently admitted withan acute exacerbation associated wasprobably viral infection also degree offixed airway obstruction chronic bronchitis alegacy previous history smoking reference recent admission anadmission recorded summary case historyrecorded follows history 70 year old man admitted acute chronicbronchitis mr finkelstein known historyof chronic bronchitis continual coughingproductive white sputum 20 year ii 9 october 1981 another dr connor registrarsreported feel man exacerbation chronicairways disease present time quite severe iii 30 september 1985 dr connor reported heremembered applicant quite well numerousadmissions care chronic obstructive air waysdisease following hospital report noted 23 december 1981 recurring chest trouble 1941 veteransuffered influenza 1941 subsequent sic cold cough service coughall time discharge botherhim pneumonia twice pleurisy heretired 11 year ago since short ofbreath cough sic rgh april 81 foracute chronic bronchitis oct forasthma coad say year beentreated lmo chest trouble able togive chronological history forgetful andnot able recall event short ofbreath inhaler ii 29 september 1982 72 year old man 40 year history ofobstructive airway disease respiratory system trachea midline air entrynormal breath sound vesicular scatteredcoarse crepitus generalised rhonchus e dr healy applicant general practitioner aboutthe end 1974 reference note fromthat time july 1978 referring applicant schest problem including cough consistentlyreferring heart rhythm regular dr healy isnow old man told quite unfit giveevidence 10 dr k tandon however give evidence senior thoracic physician department veteran affair department since 1967 specialist thoracic medicine report appear played important role determination applicant right dr tandon first seen applicant 4 july 1977 applicant lodged claim pension based disability named chest trouble teeth 21 december 1976 dr tandon said applicant time given long history upper respiratory tract infection followed cough productive sputum following treatment inhalation nasal trouble improved cough time examination applicant dry non productive cough heart murmur loose secretion lung base dr tandon said evidence obstruction bronchus chest x ray showed heart within normal limit applicant lung function although lower side normal vital capacity 79 per cent predicted normal person age height sex test including exercise test said show abnormality dr tandon came conclusion significant respiratory disability shown time examination conclusion based premise objective test performed within normal limit clear report led rejection repatriation board applicant claim relation chest condition 11 mr watt appeared respondent referred dr tandon dr healy note various consultation applicant 1974 1978 dr tandon interpreted note meaning evidence applicant infection lung saw evidence treatment specifically given relief chronic obstructive airway disease evidence come across dr carter 1976 set said saw applicant fluctuating responsive condition saw applicant presented dr healy history exacerbation cough treated antibiotic physical examination showing presence crepitation lung base would concede would sufficient cause applicant distress would cease work 12 cross examination however dr tandon defined bronchitis whether acute chronic excessive mucous production resulting cough person cough productive sputum amount three month year past three year diagnosed chronic bronchitis follows sporadically following infection called acute bronchitis course combination two acute chronic bronchitis well importantly agreed history showed applicant definition chronic bronchitis 1975 dr tandon seen applicant 1982 considered would capable 1982 sedentary employment diagnosis bronchitis assessment incapacity forty per cent 13 dr tandon evidence discounted likely effect applicant prone fit coughing taxi driving considered would enough warning occurrence coughing enabled pull side road likewise thought would difficulty using ventolin inhaler working day 14 good deal cross examination dr tandon reiterated view understand view applicant principal problem occasional chest infection form heart failure resulting congestion cough shortness breath crepitation note assertion also note dr tandon agreed may 1975 dr healy diagnosed abnormality applicant chest addition dr tandon volunteered also diagnosed dr healy december 1974 agreed finding correlated description applicant gave history coughing sputum hint dr tandon evidence assertion applicant real trouble related heart condition fact bronchitis accepted war related disability april 1982 even dr tandon appears paragraph 12 agreed diagnosis bronchitis suggesting attempted case convenient say would view acceptable course seek attenuate scope effect thus percentage assessment incapacity arising accepted disability casting doubt opinion finding led acceptance word one thing contend lower percentage assessment incapacity respect accepted disability sought determined another seek reduce repentance disability causing incapacity accepted 15 applicant reliance placed report dr scrimgeour dated 22 january 1986 related record applicant destroyed fire dr scrimgeour said applicant remember well particular visiting present address opinion chronic chest problem plus minus cardiac strain made advise cease work would recall memory could classified p least last ten year comment made whatever knowledge doctor saying schedule act unamended form barely conceivable aware new provision called give evidence enough say report element brevity obscurity extent make use tribunal deliberation 16 submission made behalf respondent mr watt acknowledged applicant bronchitis quite severe incapacity since 1982 receipt pension 100 per cent general rate pointed absence medical record period 1969 1975 dr tandon pointed evidence period 1975 1978 applicant although bronchitis appeared treated bronchial dilator diuretic nevertheless opinion whole evidence applicant suffer bronchitis coughing time working attempting work taxi driver would evidence much difficulty finding applicant 1970 1971 give work coughing evidence daughter 17 real difficulty however lie applying legislation circumstance applicant claim relevant legislation 24of theveterans entitlement act 1986 27 1986 act section application case heard prior 22 may 1986 provision 19 2 3 4 theveterans entitlement transitional provision consequential amendment amendment act 1986 29 1986 act came operation 22 may 1986 effect though precisely term former schedule 2 amended therepatriation act 1920which force hearing application review present purpose view unnecessary canvas precise difference text act former legislation difference expression moment case section 24 1 act provides special rate pension24 1 section applies veteran otherthan veteran section 25 applies force respect veteran adetermination act determining thatthe degree incapacity veteran fromwar caused injury war caused disease orboth 100 per centum b veteran totally permanentlyincapacitated say veteran sincapacity war caused injury orwar caused disease anature alone render theveteran incapable undertaking remunerativework period aggregating 8hours per week c veteran reason incapacity fromthat war caused injury war caused disease alone prevented continuing toundertake remunerative work veteranwas undertaking reason thereof suffering loss salary wage ofearnings account theveteran would suffering veteranwere free incapacity 18 would greatest difficulty regarding applicant engaged remunerative work remunerative activity provided 24 act simply lessor taxi true occasionally go retrieve taxi opinion lead conclusion looked whole position lessor constituted remunerative work therefore last remunerative work last work driving taxi work finished 60 61 applicant aged 63 64 finally sold taxi time made first claim pension 21 december 1976 aged 66 applicant entitlement pension established said delkou repatriation commission n85 301 10 april 1986 para 43 reason decision question arises limited assessment appropriate rate pension payable accordance provision act special rate pension paid effect date three month application must found satisfy required condition date 19 difficulty applying principle may exemplified setting chronological history present applicant claim disability pension 21 december 1976 claim lodged chest trouble teeth 16 august 1977 repatriation board decides accept teeth reject chest trouble 21 october 1981 claim lodged chest disability 16 april 1982 repatriation commission accepts bronchitis related war service effect from21 april 198118 may 1982 repatriation board ass incapacity 40per cent effect 21 april 19815 july 1982 application review made repatriationreview tribunal acceptance certainfurther disability 19 august 1983 claim lodged acceptance furtherdisabilities 20 september 1983 repatriation review tribunal set asiderepatriation board decision 18 may 1982and increase general rate pension 100 percent 29 december 1983 claim respect disabilitiesrejected 21 february 1984 application tpi disability pension 21 august 1984 repatriation board confirms assessment 100per cent general rate rejectsapplication assessed tpi rate 10 september 1984 applicant applies review repatriationreview tribunal 19 march 1985 decision veteran review board affirmingdecision repatriation review tribunal 22 may 1985 application review aat 20 applicant made first application december 1976 applying disability pension fact claim initiating step process establishing entitlement entitlement established process assessment due course past history often much later stage establish rate pension payable classic example delayed treatment claim pension continuously pressed see thomas repatriation commission 1986 8 ald 651the special rate called tpi rate course become appropriate legislative system arrived 100 per cent general rate become payable person retire normal retiring age war related disability faced prospect go lengthy procedure establishing disability disability faced eventually able press assessment tpi rate prospect perceived longer able satisfy qualification tpi rate 21 thus applicant applied december 1976 acceptance chest trouble teeth fact applying particular pension asserting entitlement october 1981 effectively repeated claim rejection 1977 case acceptance one disability occurred assessment procedure relates rate pension paid remains notwithstanding fact process claim appeal may occur delay arrival point come considered whether applicant entitled special rate pension would surely unthinkable possibly tortuous course administrative treatment claim past largely result almost unfathomable process imposed legislation allowed cause deferment date selected time relevant circumstance must looked order decide whether assessment tpi rate determined one critical factor age applicant particular applicant reached age retirement work force would normally expected occurred could way lose right would established judgment delayed appears u instance question whether given tribunal limited date order pension may increased special rate see 177 act may nevertheless able look earlier date date claim pension certain respect considering whether fact justify increase sought consider inconsistent said mccartney repatriation commission q85 77 30 april 1986 enough find tribunal could take matter back date payment could ordered rather confined commission submitted looking fact date hearing inconsistent lucas repatriation commission n85 423 6 may 1986 substantial break chain application increase rate pension unsuccessful appeal made general comment proceed discus particular requirement legislation apply case requirement section 24 22 doubt applicant satisfies requirement 24 1 note agree said paragraph 44 45 reason decision delkou effect matter relevant condition accepted related applicant war service determined eligible receive maximum rate general rate pension time application special rate made 23 requirement 24 1 b critical question whether time claim made applicant totally permanently incapacitated say whether applicant incapacity war caused injury disease see 9 act nature alone render applicant incapable undertaking remunerative work period aggregating 8 hour per week question arises date claim seen made seem u possible fasten december 1976 relevant date claim made chest trouble rejected rejection challenged matter rest august 1977 21 october 1981 new claim respect recurring chest trouble lodged thereafter process consideration entitlement assessment incapacity continuous balance reasonably satisfied applicant accepted disability bronchitis october 1981 producing symptom alone would rendered incapable undertaking remunerative work extent required although date applicant number disability war caused footing necessary therefore consider whether applicant would october 1981 satisfied requirement 24 1 c reason previously stated possible ass matter date original claim made december 1976 must consider requirement 24 1 c best applicant point view date making claim october 1981 24 turning 24 1 c opinion possible basis reasonable satisfaction see reasoning delkou paragraph 24 31 reason decision therein applied 120 4 act conclude applicant reason incapacity accepted disability alone prevented continuing undertake remunerative work undertaking reason thereof suffering loss salary wage earnings account would suffering free incapacity october 1981 applicant aged 71 account alone quite apart various disability war caused clearly beyond end working life basis could seen reason incapacity war caused disease alone suffering loss salary wage earnings even wrong regarding october 1981 critical date situation december 1976 still advance applicant assessment special rate reached age 66 may 1976 eligible age pension december 1976 already exceeded normal age retirement nothing appears suggest case particular applicant expectation longer normal working life thus irrelevant stage suffer many disability developed date 1981 claim 25 wrong conclusion critical date october 1981 right rejecting december 1976 date correct view matter viewed point application specifically made special rate pension case would even worse applicant point view august september 1984 applicant aged 74 beset additional range medical problem unnecessary recite 26 applicant case essentially based given taxi driving last work accepted disability namely bronchitis alone coughing fit seen symptom bronchitis regard mr mullaly said everything applicant could said relied heavily report dr scrimgeour referred effectively discarded paragraph 15 clear term report doctor simply referring general term applicant incapacity saw long period constant use one exception present tense 24 1 confusing requirement 24 1 c distinct section 24 1 b go present incapacity must related footing mentioned point earlier time claim pension made section 24 1 c go present prevention say prevention least earlier time claim continuing continuing undertake reason war caused injury disease alone remunerative work undertaking 27 added conclusion would exactly entirely different doubt literal approach construction 24 1 relying upon use present tense 24 1 b c adopted interpretation would require entitlement special rate pension matter may subject continual determination say entitlement commencing making claim pension may continue granted long three group criterion specified 24 1 met consequence interpretation would substantial might expected striking change past practice clearly spelt amending legislation left inference see mccartney repatriation commission pringle repatriation commission n85 388 11 june 1986 proposition discussion accepted 28 added applicant case made first claim pension retirement context emphasising primacy claim pension application increase rate pension tpi rate however added veteran established entitlement general rate pension prior cessation remunerative activity primacy would given instead application increase rate pension 29 follows said whatever standpoint term construction legislation applicant claim cannot succeed accordingly decision review must affirmed |
NJ Ryan Pty Limited re NJ Ryan Pty Ltd Single Enterprise Agreement 2012 [2012] FWAA 2856 (5 April 2012).txt | nj ryan pty limited nj ryan pty ltd single enterprise agreement 2012 2012 fwaa 2856 5 april 2012 fair work australiadecisionfair work act 2009s 185 application approval single enterprise agreementnj ryan pty limited ag2012 4032 nj ryan pty ltd single enterprise agreement 2012electrical contracting industrycommissioner macdonaldsydney 5 april 2012application approval nj ryan pty ltd single enterprise agreement 2012 1 application made approval enterprise agreement known thenj ryan pty ltd single enterprise agreement 2012 agreement application made pursuant tos 185of thefair work act 2009 act application made nj ryan pty limited applicant agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188relevant application approval met applicant provided written undertaking attached decision marked annexure note unders 191of act undertaking taken term agreement 3 agreement approved accordance withs 54of act operate seven day issuing decision nominal expiry date 12 april 2016 commissionerprinted authority commonwealth government printer price code g ae892904 pr522009 annexure |
Drake and Secretary, Department of Social Security [1995] AATA 620 (3 October 1995).txt | drake secretary department social security 1995 aata 620 3 october 1995 last updated 25 september 2008reasons decisionsocial security application family payment definition dependent child requirement applicant access 14 day one time social security act 1991 s 5 2 831 1 838 1 secretary department social security v field 1989 fca 345 1989 25 fcr 425secretary department social security v wetter 1993 fca 17 1993 29 ald 310re elliott secretary department social unreported aat decision 9545 sydney 15 june 1994 n93 36 aat decision 10437administrative appeal tribunal t94 172general administrative division rodney william drakeapplicantand secretary department social securityrespondenttribunal mr blow deputy president mr c p webster senior member assoc prof b davis member place hobartdate 3 october 1995administrative appeal tribunal t94 172general administrative division rodney william drakeapplicantand secretary department social securityrespondentreasons decision3 october 1995 mr blow deputy president mr c p webster senior member assoc prof b davis member statement reason requested pursuant tos 43 2a theadministrative appeal tribunal act 1975in respect decision made tribunal 31 august 1995 reason decision given orally day reason delivered orally following effect application review decision delegate respondent made 17 december 1992 subsequently affirmed social security appeal tribunal decision review decision cancelling payment family allowance applicant receiving family allowance percentage full rate time decision made applicant former wife custody three child marriage pursuant order family court australia applicant access child period totalling approximately 29 per cent year situation continued 20 december 1994 wife took child queensland applicant seen since applicant contends receive family allowance family payment respect child 17 december 1992 onwards family payment continue future despite financial position access extent allowed family court order making decision regard framework laid thesocial security act 1991 first section 838 1 governs qualification family payment requirement paragraph subsection person qualified family payment person least one fp child fp child one regard section 831 subsection 1 section dependent child person also fp child person term dependent child defined insection 5 2 following critical provision issection 5 2 provides young person turned 16 dependent child another person subsection called adult adult right whether alone jointly another person daily care control young person ii make decision daily care control young person young person adult care control significant word paragraph similar provision insection 63eof thefamily law act 1975 view applying section thesocial security actthat referred bound two decision federal court australia first issecretary department social security v field 1989 fca 345 1989 25 fcr 425 decision concerned supporting parent benefit subsequent decision wassecretary department social security v wetter 1993 fca 17 1993 29 ald 310 decision hill j concerning family allowance effect decision generally speaking applicant entitled family allowance family payment access parent respect period access 14 day one time may seem surprising result view bound decision basis result appears infieldat page 430 passage full court decision adopted hill j inwetterand applied family allowance infield honour said page 430 regard circumstance supporting parent benefit payable fortnightly basis think practicable sensible rule person pursuant order family court right access child home period le 14 consecutive day regarded ordinarily right make decision concerning daily care control child period lesser period may particular circumstance suffice render finding open favour parent enjoying access ordinary period brief conclusion possible negative find fact respect period prior wife taking child queensland summarised decision social security appeal tribunal need repeat summary fact accepted mr drake u far access period concerned fact since 17 december 1992 cancellation decision made applicant access child 14 day except four occasion 14 day holiday access occasion 14 day period commenced 31 december 1992 29 january 1993 31 december 1993 29 january 1994 therefore consider entitled family payment family allowance full rate four fortnight otherwise made aware another decision tribunal differently constituted case ofre elliott secretary department social security unreported aat decision 9545 sydney 15 june 1994 n93 36 paragraph 28 decision tribunal distinguished case offield tribunal referred bothfieldandwetter case offieldwas distinguished basis pattern intermittent access different therefore appropriate affirm decision whereby mother child received 26 per cent family allowance basis pattern access case case consider legitimately distinguish pattern access access existed sort pattern access full court considering infield mr drake suggested u number reason decision adverse could well regarded unjust however policy legislation money question paid individual child significant period time regardless justice injustice situation exists separated parent particular case consider therefore position generous mr drake giving family allowance four fortnightly period reason decision tribunal follows tribunal set aside decision review substitute decision applicant paid family payment respect four 14 day period commencing 31 december 1992 29 january 1993 31 december 1993 29 january 1994 otherwise certify preceding 5 five page true correct copy reason decision ofmr blow deputy president mr c p webster senior member assoc prof b davis member signed k l miller secretary date 3 october 1995 |
Application by the Commissioner of Australian Federal Police (No 3) [2016] NSWSC 759 (10 June 2016).txt | application commissioner australian federal police 3 2016 nswsc 759 10 june 2016 application commissioner australian federal police 3 2016 nswsc 759 10 june 2016 last updated 15 june 2016supreme courtnew south walescase name application commissioner australian federal police 3 medium neutral citation 2016 nswsc 759hearing date 17 may 201619 may 2016decision date 10 june 2016jurisdiction common lawbefore button jdecision 1 pursuant tos 49of theproceeds crime act 2002 cth property listed sch 1 summons filed 11 november 2015 forfeited commonwealth 2 pursuant tos 49of theproceeds crime act 2002 cth property listed sch 2 summons filed 11 november 2015 forfeited commonwealth catchword criminal law proceeds crime application forfeiture unders 49of theproceeds crime act 2002 cth legislation cited criminal code act 1995 cth sch s 11 1 119 2proceeds crime act 2002 cth s 19 49 49 1 49 1 49 1 b 49 1 c 49 1 e 49 2 49 3 49 4 74 335 338cases cited application commissioner australian federal police matter 2012 249599 2013 nswsc 1444application commissioner australian federal police 2 2015 nswsc 1171commissioner australian federal police v krstic 2016 nswsc 510category procedural rulingsparties commissioner australian federal police applicant hala zahab interested party representation counsel moses sc applicant callan applicant solicitor birchgrove legal interested party file number 2015 332858judgmentintroductionthis application pursuant tos 49of theproceeds crime act 2002 cth act forfeiture sum money held bank account travel debit card property number person section entirety follows 49 forfeiture order property suspected proceeds indictable offence etc 1 court proceeds jurisdiction must make order property specified order forfeited commonwealth responsible authority restraining order section 19 cover property applies order subsection b restraining order force least 6 month c court satisfied one following applies property proceeds one indictable offence ii property proceeds one foreign indictable offence iii property proceeds one indictable offence commonwealth concern iv property instrument one serious offence e court satisfied authority taken reasonable step identify notify person interest property 2 finding court purpose paragraph 1 c need based finding particular person committed offence b need based finding commission particular offence based finding offence kind referred paragraph 1 c committed 3 paragraph 1 c apply court satisfied application made division 3 part 21 property excluded restraining order b application made withdrawn refusal make forfeiture order 4 despite subsection 1 court may refuse make order subsection relating property court satisfied instrument serious offence terrorism offence b proceeds offence court satisfied public interest make order matter came duty list 17 may 2016 occasion solicitor m hala zahab appeared sought lengthy adjournment instead stood matter part heard two day 19 may 2016 delivered two short ex tempore judgment support latter occasion solicitor m zahab appeared informed oppose making order senior counsel commissioner australian federal police plaintiff nevertheless submitted would inappropriate order simply made consent m zahab without deeper consideration appropriateness proposition accepted courteously solicitor obliged remaining court could offer assistance required backgroundthe background may shortly stated 11 november 2015 adam j made restraining order account question pursuant 19 act order turn founded satisfaction property instrument serious offence offence relied upon entering remaining declared zone al raqqa province syria pursuant 119 2 schedule thecriminal code act 1995 cth criminal code conspiracy commit offence contrary 11 1 criminal code understand person identified possible interested person sum money communication plaintiff taken forensic step since making restraining order exception m zahab 18 november 2015 seemingly whilst unrepresented complied order adam j provide sworn statement setting asset liability thereafter approached current solicitor including regard application consideration evidence meby way number affidavit federal officer substantial amount documentary evidence placed plaintiff nutshell showed restraining order regard property question sought granted 11 november 2015 various attempt made plaintiff contact individual may person interest property m zahab general power attorney affair one interested party separately signatory two bank account included within restrained property submissionssenior counsel plaintiff took structure 49 act first submitted question court court proceeds jurisdiction pursuant 335 act secondly invited attention use word must chapeau 49 1 act submitted parliament expressed intention certain precondition satisfied making order sought either mandatory close thirdly turning 49 1 submitted pursuant 338 act client responsible authority undoubtedly applied restraining order fourthly regard 49 1 b submitted matter simple mathematics restraining order indeed force six month fifthly submitted reason shall come moment 49 1 c application light evidence placed sixthly regard 49 1 e submitted reason shall discus detail shortly would satisfied client taken reasonable step identify notify person may interest property seventhly submitted 49 2 merely elucidation 49 1 c require satisfaction senior counsel took 49 3 act submitted application property portion excluded restraining order made person including m zahab accordingly submitted 49 3 engaged consequence 49 1 c 49 2 act moment eighthly finally noted 49 4 provides discretion make order sought despite use word must chapeau 49 1 invited attention focusing essential precondition exercise discretion contained 49 4 act submitted based evidence placed would satisfied let alone turning particular question 49 1 e need satisfied client taken reasonable step identify notify person may interest property submitted short identification readily achieved account card holder bank account travel card named connection noted evidence placed show left australia time ago none returned also submitted client sent email email address associated individual able known client including way address given individual department foreign affair trade passport request form email sent client bounced regard individual least one email address appeared open operating senior counsel submitted simply practical client undertake extensive investigation whereabouts person leave australia especially may well entered zone armed conflict separately submitted legislation imposes requirement client take reasonable step example possible step stone left unturned furthermore drew attention 74 act summary provides regime whereby possible person truth notice application forfeiture apply subsequently forfeiture reversed facility submitted inform one would interpret meaning phrase reasonable step 49 1 e bearing mind one must interpret subparagraph context whole act separately although submitted light fact application exclusion restraining order ever made m zahab strictly necessary senior counsel engaged analysis position part obligation client model litigant order assist understanding position said evidence suggest m zahab power attorney restrained property made signatory two bank account senior counsel took definition interest contained 338 act follows interest relation property thing mean legal equitable estate interest property thing b right power privilege connection property thing whether present future whether vested contingent submitted quite true m zahab power sense power attorney also submitted understand right connection property able operate bank account regard former submitted accordance well established principle right duty person conferred power attorney power conferred upon m zahab truth provide interest provides duty conduct affair principal interest signatory right submitted without could seen interest m zahab either word senior counsel submitted unless specific evidence m zahab entitled operate account benefit interpret signatory right permitting furthermore senior counsel invited attention statement asset m zahab placed make claim either property hold power attorney bank account signatory asset short senior counsel submitted due structure statute question interest m zahab require consideration nevertheless proceed consider would come view neither power attorney signatory right regarded interest purpose act finally senior counsel plaintiff made clear circumstance outlined application cost m zahab conclusion submission senior counsel plaintiff topic solicitor defendant explicitly confirmed reflected upon two possible interest client wished make submission standing way making order sought determinationturning determination accept submission senior counsel plaintiff structure act examination previous judgment court show submission uncontroversial seeapplication commissioner australian federal police 2 2015 nswsc 1171 commissioner australian federal police v krstic 2016 nswsc 510 andapplication commissioner australian federal police matter 2012 249599 2013 nswsc 1444 secondly accept evidence placed plaintiff taken reasonable step identify notify individual may interested person accordingly requirement contained 49 1 e made accept proposition parliament imposed unduly onerous obligation upon plaintiff pursuant subparagraph read light act general light 74 particular thirdly question exercising discretion make order pursuant 49 4 act simple reason evidence placed satisfied none essential precondition contained subsection fourthly although necessary come firm view due statutory structure prepared accept without heard contradictor power attorney unless unusual exceptional nature provide recipient interest one would generally understand concept pursuant definition 338 act whether person able operate bank account interest mind open debate especially evidence whether restriction placed conferrer upon operation light fact application exclusion part property made person including m zahab light express disavowal solicitor reliance upon signing right opposition making order believe possible controversy requires resolution summary accept submission senior counsel essential precondition making order established basis exercising discretion make order follows mandatory force chapeau 49 1 indeed engaged ordersi make following order 1 pursuant tos 49of theproceeds crime act 2002 cth property listed sch 1 summons filed 11 november 2015 forfeited commonwealth 2 pursuant tos 49of theproceeds crime act 2002 cth property listed sch 2 summons filed 11 november 2015 forfeited commonwealth schedule omitted |
MZWCX v Minister for Immigration [2004] FMCA 938 (21 September 2004).txt | mzwcx v minister immigration 2004 fmca 938 21 september 2004 last updated 22 december 2004federal magistrate court australiamzwcx v minister immigration 2004 fmca 938migration review refugee review tribunal decision refusal protection visa migration act 1958 cth kopalapillai v minister immigration multicultural affair 1998 fca 1126 1998 86 fcr 547sellamuthu v minister immigration multicultural affair 1999 fca 247 1999 90 fcr 287applicant mzwcxrespondent minister immigration multicultural indigenous affairsfile mlg 141 2004delivered 21 september 2004delivered melbournehearing date 21 september 2004judgment riethmuller fmrepresentationcounsel applicant applicant appeared behalfcounsel respondent mr w g gilbertsolicitors respondent blake dawson waldronorders 1 applicant application filed 10 february 2004 dismissed 2 applicant pay respondent cost fixed sum 6 500 00 federal magistratescourt australia atmelbournemlg 141 2004mzwcxapplicantandminister immigration multicultural indigenous affairsrespondentreasons judgment1 ex tempore judgment 2 applicant case 36 year old man born teheran kurdish ethnicity adheres islamic faith came australia february 2001 temporary business visa lodged application march 2001 protection visa application protection visa refused 16 april 2002 applied review refugee review tribunal rrt 20 may 2002 3 applicant attended hearing rrt 2 december 2003 gave evidence time represented solicitor legal aid case applicant relies upon letter provided rrt demonstrating proof claim whilst copy original letter persian court book copy tendered hearing marked exhibit 1 clear letter rrt also clear court book rrt translation letter english consider rrt discussed letter evidence applicant relation letter claim detail page 21 22 decision substance rrt believe applicant rrt formed view reviewing written material seeing letter translation letter hearing directly applicant seeing applicant 4 applicant cannot point anything process hearing show error part rrt given notice rrt would considering matter rrt looked material gave opportunity speak tribunal directly decision rrt reached open evidence rrt read decision could said conclusion rrt reached fanciful absurd reasonably open 5 full court federal court inkopalapillai v minister immigration multicultural affair 1998 fca 1126 1998 86 fcr 547observed error law rrt make finding credibility issue open rrt material well known principle law similar example appears insellamuthu v minister immigration multicultural affair 1999 fca 247 1999 90 fcr 287 satisfied issue ground upon rrt decision overturned 6 second matter relates document applicant solicitor sent rrt rrt reference country information find applicant cannot succeed basis two reason first appears rrt regard material forwarded applicant well established rrt may regard country information type looked case secondly applicant confirmed rrt fear persecution basis ethnicity 7 think fair reading decision rrt would allow one conclude misused country information rather rrt made finding respect specific issue specific person 8 matter raised applicant general complaint rrt believe power review rrt decision whether belief somebody unless decision could supported evidence error logic reasoning process error process failing look document sent failing listen came interview 9 therefore dismiss application 10 proceeding cost normally follow event shorthand way identifying outcome case particularly significant factor determining exercise discretion order one party pay side cost case applicant refers lack finance financial difficulty meeting cost order nothing else put consider term exercise discretion pay cost amount cost 11 material satisfied cost order would appropriate type litigation given outcome order applicant pay respondent cost regard scale federal magistrate court type work done case particular case least far appears court file find sum sought 6 500 00 reasonable order cost fixed sum 6 500 00 certify preceding eleven 11 paragraph true copy reason judgment riethmuller fmassociate date |
Singtel Optus Pty Limited & Ors v Almad Pty Limited & Ors [2011] NSWSC 492 (27 May 2011).txt | singtel optus pty limited or v almad pty limited or 2011 nswsc 492 27 may 2011 last updated 8 june 2011supreme courtnew south walescase title singtel optus pty limited or v almad pty limited orsmedium neutral citation 2011 nswsc 492hearing date 23 may 2011decision date 27 may 2011jurisdiction equity division commercial listbefore bergin cj eqdecision search order set asidecatchwords search order whether ex parte search order set aside material non disclosure order executed document thing seized held independent solicitor whether document returned defendant produced courtlegislation cited case cited anton pillar kg v manufacturing process ltd or 1976 1 ch 55austress freyssinet pty ltd v joseph 2006 nswsc 77brags electric pty ltd trading inscope building technology v gregory 2010 nswsc 1205cokinos v walker 2007 nswsc 1040frigo v culhaci 1998 nswca 88principal financial group pty ltd v vella 2011 nswsc 327walter rau neusser oel und fett ag v cross pacific trading ltd 2005 fca 955texts cited category interlocutory applicationsparties singtel optus pty limited 1st plaintiff optus network pty limited 2nd plaintiff optus administration pty ltd 3rd plaintiff almad pty limited 1st defendant sumo distribution storage pty ltd 2nd defendant leon mark curtis 3rd defendant craig hasler 4th defendant pjc333 pty limited 5th defendant representation counsel counsel j stoljar sc mackay plaintiff mr aldridge sc jt johnson 3rd 5th defendant solicitor solicitor minter ellison plaintiff mcw lawyer 3rd 5th defendant file number 2011 00139541publication restriction judgmenton 29 april 2011 plaintiff singtel optus pty limited singtel 1 st plaintiff optus network pty limited optus 2 nd plaintiff optus administration pty limited admin 3 rd plaintiff commenced proceeding defendant almad pty ltd almad 1 st defendant sumo distribution storage pty ltd sumo 2 nd defendant leon mark curtis mr curtis 3 rd defendant craig hasler mr hasler 4 th defendant pjc333 pty ltd pjc 5 th defendant damage breach contract almad damage breach thetrade practice act1974 |
Amy Carmichael Bain v Homeart [2006] WAIRComm 4341 (24 February 2006).txt | amy carmichael bain v homeart 2006 waircomm 4341 24 february 2006 last updated 10 july 2007western australian industrial relation commissionpartiesamy carmichael bainapplicant v homeartrespondentcoramcommissioner maymanheardmonday 6 february 2006 tuesday 21 february 2006deliveredfriday 12 may 2006file u 91 2005citation 2006 wairc 04341catchwordsindustrial law wa termination employment harsh oppressive unfair dismissal whether summary dismissal applicant justified principle applied applicant harshly oppressively unfairly dismissed reinstatement relevant principle industrial relation act 1979 wa 29 1 b resultorder issuedrepresentationapplicantmr cole counsel respondentmr jones agent reason decisionthis claim amy carmichael bain applicant pursuant 29 1 b theindustrial relation act 1979 act applicant claim harshly oppressively unfairly dismissed homeart respondent 28 september 2005 seek reinstatement position sale assistant respondent way order pursuant 23a act respondent opposes claim backgrounda number issue dispute matter applicant commenced employment respondent 14 november 2003 full time sale assistant applicant employment summarily terminated 28 september 2005 applicant employment terminated result incident friday 16 september 2005 effect respondent alleges applicant misappropriated 60 sale customer time applicant dismissal working 27 5 hour per week 11 453 per hour course applicant employment transferred respondent number occasion warwick grove shopping centre employed approximately 18 month kingsway branch kingsway branch applicant employed 3 month joondalup branch joondalup branch whitfords branch 3 transfer throughout applicant employment relevant submission relied upon applicant respondent contract employment signed applicant commencement employment respondent term contract follows contract employmenti undersigned agree term condition employment set form continuing employ copperart pty ltd dependent acceptance term condition 1 general condition employment prescribed wa retail award 2 accepting employment company understand expected work different warehouse shop day required pre arranged roster reasonable travelling time taken one store another day paid company prevailing hourly rate pay 10 understand following action area employment considered act misconduct could lead summary dismissal list inclusive company reserve right dismiss summarily act misconduct abuse removal destruction ompany property property employee b theft company property property employee c immoral conduct indecency physically way innuendo lottery gambling description e employee must keep pin number confidential f possession consumption intoxicating beverage premise g reporting work influence alcohol h making false malicious statement concerning company product another employee falsification record making untrue statement may result falsification record j misuse removal destruction company property k distribution written printed matter without permission management l postal removing notice sign writing form bulletin board company property without permission management wasting time loitering lavatory elsewhere working hour n refusal follow instruction supervisor management personnel frequent lateness absence work without work without reasonable explanation p clocking timesheet another employee repeated failure clock timesheet q leaving department working hour without permission r performing personal task company time disregard safety rule common safety practice creating contributing unsafe act unsanitary condition u use abusive language v threatening intimidating coercing interfering fellow employee w company sale taking control failure deposit bank day later nest sic banking day date receipt company shall nominate bank w failure properly record monies received behalf company accordance company practice monies include cash cheque credit card transaction etc x violation anti discrimination legislation breach trade practice act undertake hold protective clothing tool issued authorise company deduct wage due assessed value thereof article returned demand employment basis set attached declaration condition may amended mutual consent company term condition set shall force effect inconsistent award government regulation binding company signature employee name employee please print amy carmichael bainstore name warwick store number 630signature witness name witness please print pamela anne beggs exhibit h3 applicant evidence submissionthe applicant testified first commenced work respondent warwick branch employed full time shop assistant 6 month respondent applicant received additional training involved able cash end day balance till undertake necessary paperwork applicant testified shown undertake work case problem absence manager applicant evidence several occasion occur applicant testified 18 month warwick branch directed transfer kingsway branch respondent decision happy applicant testified raised concern respondent m wendy eddins state manager applicant testified raised issue m eddins informed transfer part agreement applicant signed started respondent say anything go transcript page 7 applicant testified kingsway store three month requested transfer joondalup testimony applicant unhappy raised matter m eddins particular concern distance applicant home kingsway shopping centre 10 minute compared home joondalup proposed branch applicant directed transfer 25 minute away applicant testified one reason keen transfer joondalup would unable assist mother taking brother school prior coming work arrangement cease applicant transferred neither transfer warwick kingsway kingsway joondalup resulted promotion applicant evidence felt transfer picked occasion prior transfer limited notice period leading actual transfer applicant testified respondent store joondalup busier staff member three four casuals manager applicant applicant testimony required course day use cash register applicant testified approximately august 2005 transferred time whitfords store applicant testified pregnant stage regular bout severe morning sickness applicant testified consulted doctor certified fit continue working full time hour however requested reduce manual handling weight greater 5kgs first three month pregnancy applicant testified following first three month pregnancy returned doctor cleared work without lifting restriction applicant testified still joondalup store m eddins approached regarding hour work reduced 20 per week applicant evidence hour would insufficient sustain economically applicant testified wanted remain working full time however m eddins approached reduce hour basis applicant agreed hour reduced 10 00am 4 00pm day minimum 27½ hour per week applicant testified respondent offered 27½ hour however required applicant transfer time whitfords branch applicant recalled evidence 16 september 2005 served woman purchased two beach towel 20 woman company friend three beach towel hand applicant testified informed woman three towel towel 20 best applicant knowledge understood towel concerned replaced purchase placed till two towel would come 40 applicant testified could recall colouring towel gave evidence two price towel display shop expensive 20 cheaper towel 15 applicant testified time conversation customer purchased towel indicating buying towel grandchild christmas evidence applicant cannot recall money exchanged hand purchase three working day later applicant testified approached commencement shift m eddins time together store manager pam beggs rear shop counting towel applicant testified m eddins questioned regarding transaction occurred previous friday customer whether recalled selling beach towel applicant testified recall sale exchange m eddins applicant following took place said yes said sold said two beach towel 20 transcript page 22 applicant testified informed m eddins customer returned store complained purchased five beach towel receipt recorded purchased two testimony applicant m eddins advised would thorough investigation applicant suspended pay pending investigation whether applicant taken 60 difference cost two five beach towel applicant testified arrived work thursday 22 september 2005 called meeting state manager m beggs applicant testified informed m eddins allegation made customer asked could recall event surrounding purchase towel particular customer friday 16 september 2005 applicant testified recall customer purchase two beach towel clear conversation applicant customer issue grandchild christmas present applicant testified unable recall currency exchanged hand recall customer friend store time applicant testimony towel hand decided purchase priced 20 applicant testified conclusion meeting m eddins suspended full pay pending investigation event 16 september 2005 subsequent meeting called respondent applicant testified presented statement respondent asked prepare written response applicant testified m beggs mr bain applicant mother applicant m eddins attendance meeting statement presented applicant meeting follows 23rd september 2005miss amy bain75 lansvale roaddarch wa 6065dear amy conversation thursday 22nd september 2005 concerning allegation made customer concerning integrity company conducted investigation matter fact detailed friday 16th september 2005 customer claim purchased paid five 5 beach towel served confirmed recall sale serving customer recollection sale two 2 beach towel computer log support sale done customer provided homeart statement incident provided proof purchase customer supplied homeart sku number five 5 beach towel possession stock count beach towel range conducted thursday 22ndseptember 2005 result revealed stock shortage sku number customer possession point two conflicting version event light seriousness allegation homeart continuing suspension full pay close business tuesday 27th september 2005 extended period time allow formulate response serious allegation supply writing response undersigned 5 30pm tuesday 27th september 2005 upon receipt written response company consider future homeart organisation sincerely wendy eddinsstate manager exhibit b1 applicant testified required m eddins provide written response exhibit b1 attend meeting towards end following week applicant testified mr bain applicant father delivered applicant written response whitfords branch tuesday 27 september 2005 applicant informed letter provided m eddins would send head office person head office would decide would happen wendy eddins told would go eastern state hand transcript page 26 written statement presented respondent applicant tabled evidence read follows statement amy bainreply allegation made homeart friday 16 09 05 served customer bought 2 towel 20 friend another 3 towel want found 20 habit making mistake customer purchased 5 towel would charged would also like question thurs 22 09 05 told customer complained head office sydney fri 23 09 05 area manager changed story saying customer complained shop far concerned done nothing wrong conscience clear time worked homeart always followed policy procedure sincerely amy bainreceived sic homeart tuesday 27 09 05 exhibit b2 meeting held end week commencing 26 september 2005 applicant testified m eddins m beggs attendance applicant testimony summarily terminated gross misconduct applicant testified explanation given meant gross misconduct applicant testified since dismissal respondent able procure casual work stall 24 hour total 10 per hour applicant testified difficulty given 5½ week away giving birth employer appeared reluctant take someone advanced pregnancy applicant gave evidence respondent least four store perth area nearby applicant lived consideration reinstatement applicant testified respondent store mainly north river throughout employment respondent applicant testified problem working store manager cross examination applicant testified noticed change respondent attitude towards work following discussion m eddins regarding transfer whitfords branch cross examination applicant confirmed sold two towel customer m boreham exchange agent respondent applicant adamant sold two towel yes certain many month transaction remember currency tendered sold two towel five going long time deal money everyday remember take whereas customer buying conversation lady said buying grandkids christmas remembered two beach towel remember currency gave transcript page 48 49 cross examination applicant asked identify docket respondent record sale transaction m boreham testified seen receipt applicant testified m eddins m beggs first raised concern regarding incident applicant informed customer initially rung head office evidence applicant subsequently changed informed several day later respondent m boreham first raised concern m beggs whitfords branch applicant gave evidence requested m boreham statement meeting 27 september 2005 denied request mr bain applicant mother gave evidence prior incident regarding towel daughter respondent reason become involved daughter employment respondent mr bain testified phoned m eddins ask many transfer required daughter evidence mr bain contact mr eddins effect requirement transfer went ahead mr bain gave evidence m chappel ex employee respondent discussed mr bain going set amy mr bain testified contact respondent wrote behalf daughter head office eastern state outlining concern regarding transfer branch branch little notice discouragement part m eddins applicant apply promotional position given young number matter summary asserted correspondence head office respondent mr bain m eddins noticeable wendy trying get amy company find area manager action comment deplorable despicable find affecting daughter well afraid go work wondering wendy going next extract exhibit b3 head office investigated matter responded mr bain documentation identified evidence proceeding mr bain view answer provided respondent unsatisfactory mr bain testified following towel incident joondalup store respondent suspension applicant allegedly stealing 60 became involved meeting attended applicant m eddins m beggs store manager mr bain testified queried m eddins whether discussed issue customer evidence mr bain m eddins confirmed discussion basis hearsay evidence mr bain alleged customer story changed initially contacting head office presenting person joondalup branch respondent mr bain testified following meeting made telephone contact m eddins request applicant behalf copy statement made m boreham mr bain gave evidence m eddins refused request mr bain testified m eddins referred cash register docket course meeting however produce copy actual document mr bain testified contact respondent informed daughter pointed amy time stocktake done towel way saw mattered amy responded mind already made showed paragraph said stock check say got guilty even even put anything paper transcript page 76 cross examination mr bain confirmed allegation regarding respondent wanting set applicant stage uttered m eddins mr bain contradicted earlier evidence given regarding phone call m eddins allegedly taken place immediately following meeting applicant m eddins m beggs mr bain mr bain confirmed cross examination little direct knowledge event led daughter dismissal apart attendance meeting held week applicant first suspended counsel applicant submitted evidential onus required respondent discharged simply m eddin m beggs evidence relayed information eastern state relation decision dismiss applicant made person eastern state respondent stage presented evidence representative respondent ultimately determined applicant fate submitted applicant counsel m beggs evidence essence m eddins person appeared matter commission relying entirely upon representative eastern state particular kerry mcfarlane human resource manager counsel applicant submitted action undertaken respondent action reasonable employer applicant submission nothing situation submitted applicant m eddins clearly employed respondent compile fact relation matter send eastern state eastern state would make decision m eddins would required relay information behalf respondent applicant submitted evidential onus therefore discharged respondent applicant submitted commission required satisfied respondent reasonable suspicion namely fact belief reasonable ground sustain belief finally time respondent formed belief carried investigation matter would reasonable circumstance applicant submitted evidence commission investigation sufficient ought rejected example towel allegedly subject questioning produced commission presentation sku number purportedly relating form identification within whitfords store least insufficient applicant also submitted stocktake undertaken relation incident appeared draw little conclusion given one account evidence respondent three towel missing five another account seven another transfer required respondent term applicant employment excessive whilst clause 2 contract employment allowed transfer store occur applicant submitted respondent could direct without reasonable consideration applicant concern transfer undertaken evidence submitted m eddins acknowledged applicant position relation towel incident consistent counsel applicant submitted task commission determine whether applicant telling truth gave evidence whether customer m boreham telling truth consideration fair go round principle applicant submitted stage explained terminated applicant aware meant gross misconduct respondent regard amy pregnant state clear degree friction m eddins applicant essence applicant asserted set excessive number transfer perhaps force applicant leaving accord purpose investigation towel incident reasonable exchange respondent applicant applicant simply asked respond letter respondent confirmed applicant dismissed ground gross misconduct respondent evidence submissionsms eddins gave evidence employed respondent three year last year state manager m eddins testified applicant never expressed interest achieving level store manager position stage knowledge applicant apply evidence m eddins approach reduction applicant hour initiated applicant request consented respondent roster worked arrangement 20 hour set place m eddins testified applicant rang next day spoken parent requested increased 27 hour request agreed respondent m eddins testified applicant throughout employment respondent transferred number occasion always evidence m eddins good reason one transfer resulted demotion applicant m eddins evidence denied amy following towel incident september 2005 m eddins gave evidence received phone call m beggs advising customer previous day bought receipt store indicating purchased two towel friday m eddins gave evidence customer reported m beggs fact purchased five towel 16 september 2005 20 per item m eddins gave evidence understood customer alleging previous friday store customer purchased five beach towel 20 per item provided 100 sale person basis docket presented m beggs customer alleging 40 gone respondent till m eddins testified first reaction allegation needed investigate matter determine whether allegation indeed valid m eddins gave evidence conclusion day examined respondent taking whitfords store day question found record order exception 1 m eddins gave evidence contacted m kerry mcfarlane human resource manager based eastern state informed customer allegation regarding applicant evidence m eddins m mcfarlane advised m eddins proceed investigation matter step process evidence m eddins advised respondent head office initially m eddins told contact customer undertake stocktake towel currently held store sold respondent 20 separate sku number record number transfer result investigation head office finally applicant called evidence m eddins investigative meeting applicant m beggs witness applicant respondent evidence m eddins applicant suspended full pay pending outcome investigation m eddins gave evidence forwarded applicant written response exhibit b2 head office informed m eddins applicant response satisfy respondent basis evidence m eddins applicant terminated gross misconduct m eddins testified arranged met applicant m beggs prior meeting occurring m eddins testified kerry mcfarlane phone conversation read telephone exactly say say amy written basically read amy word word transcript page 137 m eddins confirmed cross examination spoke customer following discussion m beggs information customer m boreham able provide m eddins would assist form conclusion belief applicant pocketed 60 m eddins confirmed subsequent telephone conversation meeting state manger customer confirmation provided m eddins applicant version event stage put customer m eddins testified first met applicant mother following towel incident mind made m eddins testified throughout called investigation applicant consistent response respondent m eddins testified decision terminate applicant made made kerry mcfarlane human resource manager head office sydney m eddins gave testimony idea respondent going terminate time received phone call m mcfarlane respondent advising terminate applicant m eddins testified stage view asked respect whether dismissal ought occur m eddins testified instruction head office terminate applicant issued way phone call note recorded m eddins detail respondent instructed would undertaken dismissal process told customer complained h h reviewed statement reply asked explain variance customer allegation failed satisfactorily explain careful consideration impartial investigation decision made terminate employment effective immediately ground gross misconduct exhibit h11 m eddins testified number transfer required applicant employment respondent higher average m eddins testimony carried applicant benefit m eddins gave testimony applicant good employee particular flare merchandising good rapport customer service m eddins confirmed testimony issue put applicant would relayed back mother come back state manager position would changed mr boreham testified respondent friday 16 september 2005 friend visited whitfords store result purchased five beach towel 20 per item mr boreham testified day question tendered five 20 note friend assisted carrying towel counter mr boreham could recognise m bain applicant sale assistant received money day question mr boreham testified respondent bag assist carrying item store consequently friend shared task witness placing towel material bag possession mr boreham testified stage transaction sale assistant money tendered change mr boreham testified aware problem checking receipt home noticed receipt identifying purchase two item 20 mr boreham contacted store following tuesday 20 september 2005 provided receipt question local store manager mr boreham testified contacted m eddins asked outline position purchase writing forward respondent head office sydney telephone call m eddins mr boreham testified read sku number phone mr boreham unable evidence recall colour towel confirmed towel christmas present grandchild mr boreham testified stage towel taken respondent m beggs respondent testified store manager whitfords time applicant dismissal m beggs testified applicant competent employee witness work directly first year applicant aware applicant reluctance transfer joondalup whitfords m beggs gave evidence following towel incident woman came whitfords store tuesday 20 september 2005 advising purchased five towel previous friday 16 september 2005 m beggs testified woman informed towel priced 20 per item paid towel five 20 note m beggs testified aware presence two customer friday 16 september 2005 sighted customer counter applicant attending m beggs testified taken receipt customer 20 september 2005 recorded contact detail took opportunity discus issue state manager request state manager receipt kept m beggs testified present meeting following thursday applicant m eddins applicant asked series question m beggs took note m beggs testified meeting applicant certain two woman one purchased two towel lady three towel questioned price applicant point view determined would buy m beggs testified applicant could recall much money exchanged hand however confirmed definite term applicant put two towel till m beggs testified thursday 22 september 2005 involved stocktake together m eddins whitfords branch respondent m beggs testified first count carried situ conclusion first count confusion regarding number m beggs testified thereafter relevant stock taken placed relevant block sku number indicate specific range evidence m beggs conclusion second count number checked respondent inventory ought situ m beggs testified decision whether applicant ought terminated one would made state manager m beggs confirmed series meeting held following 16 september 2005 day applicant terminated m beggs presence act witness applicant respondent m beggs testified time action respect investigation towel incident applicant direction head office m beggs evidence head office respondent instructing everything m beggs testified conclusion stocktake relevant stock item missing consideration relation allegation applicant cross examination m beggs testified bad blood applicant m eddins m beggs become aware applicant concern regard number transfer required undertake m beggs testified applicant whiz remembering sku number respondent submitted applicant employed respondent competent sale assistant course employment applicant worked warwick kingsway joondalup whitfords respondent submitted m eddins directing transfer applicant store store take place vindictive person indeed went way accommodate applicant stage pregnancy different arrangement hour work part time employee required respondent submitted evidence mr bains circumstantial carried force revealing concern applicant daughter respondent submitted basis evidence submission sufficient strength commission conclude m eddins terminate applicant cost respondent submitted applicant particular merchandising skill one stage assisted statement police regarding activity fellow employee assisted respondent police investigation respondent submitted termination employment took effect respondent following investigation towel incident believed applicant committed gross misconduct process lost trust respondent particular submitted respondent evidence customer mr boreham led respondent form view following series meeting applicant requirement applicant respond series concern raised respondent view applicant mr boreham considered head office time submitted respondent m eddins consulted head office full cognisance fact knew transcript page 198 respondent submitted time due process followed investigation carried properly applicant made aware complaint given benefit period time consider response balance respondent faced matter great concern made decision based fact respondent submitted occasion believed customer stock report rather applicant respondent submitted responsibility employee position sale assistant responsibility relating fiduciary obligation handling cash applicant required course work handle cash correct manner make sure cash recorded properly appropriate change given customer view respondent evidence demonstrates applicant record transaction mr boreham customer correctly day applicant submission respondent recorded sale 2 towel incorrectly recording return 60 customer customer strongly denied got 60 return agent respondent submitted test commission required apply matter nature fair go round reflected inundercliffe nursing v fmwu 1985 65 waig 385 question whether conduct applicant qualify misconduct deserving summary dismissal matter dealt submission respondent decision honour kirby j inconcut pty ltd v worrell75 aljr 313 para 46 kirby j said ordinary relationship employer employee common law one importing implied duty loyalty honesty confidentially mutual trust common law respondent submitted duty particular loyalty honesty trust broken view respondent result respondent lost trust applicant became linchpin termination employment respondent referred also extract fromlaws v london chronicle indicator newspaper ltd 1959 2 er 285where said since contract service example contract general general law contract applicable follows summary dismissal claimed justifiable question must whether conduct complained show servant disregarded essential condition contract service think one act disobedient misconduct justify dismissal nature go show effect servant repudiating contract one essential condition therefore disobedience must least quality wilful word connote deliberate flouting essential contractual condition respondent conclusion submitted required prove applicant stole 60 merely demonstrate possibility involved misconduct therefore possibility struck heart contract employment commissioner conclusion findingsthe commission considered evidence submission much turned proceeding issue credibility witness evidence manner presented commission turn firstly evidence applicant observed closely applicant evidence respect towel incident 16 september 2005 occurred meeting evidence consistent straightforward diminished cross examination applicant know recall issue point admitted accept applicant evidence truthful however doubt regarding evidence given applicant mother mr bain evidence largely circumstantial commission rely evidence confirm discussion applicant mother regarding number transfer matter considered relevant applicant work environment also opportunity closely observing m eddins witness box gave evidence best ability clear time m eddins evasive particularly cross examination difference effect outcome case provide measure commission ass credibility witness doubt whether m eddins memory regarding relevant fact particularly accurate reason doubt sincerity evidence presented commission m beggs finally issue credibility turn evidence mr boreham customer far evidence mr boreham concerned time evidence caused difficulty evidence event quite clear compared loss memory event day example mr boreham evidence regarding number towel purchased carried towel counter mr boreham friend exited store including towel divided appeared face clear yet asked identify sale assistant served mr boreham day unable remember find evidence applicant differs evidence witness respondent favour applicant evidence particularly consistency relation towel incident event followed clear commission mr bain applicant mother m eddins openly hostile towards issue confirmed m eddins evidence significant comment made proceeding regarding number transfer required applicant course employment date respondent commission find basis evidence transfer occasion implemented unreasonable manner respondent example insufficient notice given applicant overall respondent regard number transfer required applicant commission find evidence support assertion transfer used force applicant resign commission find evidence support allegation applicant set state manager commission observe course proceeding general resentment towards applicant mother state manager m eddins commission reminds respondent applicant m amy bain applicant homeart respondent employer employee relationship matter termination summary dismissal misconduct therefore respondent carry evidentiary onus establish fact decision dismiss based per principle outlined innewmont australia ltd v australian worker union wa branch 1988 68 waig 677 employee dismissed misconduct particular single act misconduct behaviour must nature demonstrates employee repudiating contract employment one essential condition reason disobedience complained really connote deliberate flouting contractual condition law v london chronicle indicator newspaper ltd 1959 2 er 285 must borne mind summary dismissal misconduct extreme penalty available employer always case single incident behaviour complained would amount gross misconduct justifying summary dismissal considering matter examining fact surrounding summary dismissal must remembered rigid approach consistent requirement 26 act consideration commission must determined accordance equity good conscience substantial merit case allegation matter applicant stole monies respondent friday 16 september 2005 therefore given dismissal summary necessary respondent establish evidence time decision dismiss taken respondent held reasonable belief based upon reasonable ground applicant guilt summary dismissal theonus proof establish evidentiary fact dismissal lie upon respondent onus establish unfairness rest applicant commission find respondent discharged onus establish fact underpin summary dismissal particular relevance 2 aspect investigative process undertaken respondent firstly commission little direct evidence respondent made decision investigation would carried ultimately determined applicant would dismissed circumstantial evidence presented m eddins written evidence identified come head office find evidence sufficient enable commission find respondent discharged evidentiary onus respect second aspect consider stocktake respondent appeared rely achieved anything determine different figure occasion towel counted certainly nothing conclusive count undertakena customer made complaint reason dismiss anybody evidence based commission finding credibility witness applicant served mr boreham day sold two towel 20 00 per item find commission find towel incident allegation relation applicant behaviour 16 september 2005 amount gross misconduct view drawn evidence submission establish based evidence given mr boreham applicant m beggs lack bag available store day fact five towel able held mr boreham split friend mr boreham left whitfords branch respondent premise towel split friend balance commission find applicant steal 60 respondent applicant behaviour day capable innocent construction commission find penalty summary dismissal severe therefore dismissal held harsh oppressive unfair next question remedy applied applicant seeksreinstatement evidence commission reinstatement would practicable applicant seeking order reinstatement former employment without loss wage continuity employment principle associated reinstatement recently considered full bench ingonzalo portilla v bhp billiton iron ore pty ltd 2005 waircomm 2604 2005 85 waig 3441 full bench outlined commission power dealing reinstatement employee particular decision honour president kenner c stated following page 3458 statute prescribes commission may order employer reinstate employee employee former position condition least favourable condition employee immediately employed dismissal 23a 3 act commission also power considers reinstatement impracticable order employer employ employee another position commission considers employee available suitable remedy sought 23a 4 act commission considers reinstatement employment would impracticable may commission order employer pay employee amount compensation loss injury caused dismissal impracticable mean impossible mean inconsistent difficult anderson j said franklyn j agreeing infdr pty ltd another v gilmore others 1988 78 waig 1099 iac ordinary language difference impossible impracticable former definite concept latter veale j said injayne v national coldboard 1963 2 er 220at 223 impracticability conception different impossibility latter absolute former introduces event degree reason involves event regard practice considering impracticability context reinstatement particular employment context wilcox j said innicholson v heaven earth gallery pty ltd 1994 126 alr 233at 244 word impracticable requires permit court take account circumstance case relating employer employee evaluate practicability reinstatement order commonsense way reinstatement order likely impose unacceptable problem embarrassment seriously effect productivity harmony within employer business may impracticable order reinstatement notwithstanding job remains available one must mind considering issue reinstatement primary remedy harsh oppressive unfair dismissal page 3459 opinion section 23a 5 b order design unequivocally put employee back position would unfairly dismissed actual reinstatement employment restoring remuneration lost order different order pay compensation loss caused unfair dismissal requirement mitigate loss order made employer pay employee remuneration lost likely lost employee dismissal order required section 23a 5 b actual word require payment remuneration lost actual remuneration lost alternatively remuneration likely lost requirement mitigate take account mitigation account section unlike section 23a 7 expressly required mitigation taken account awarding amount compensation see also theworkplace relation act 1996 cth section 170ch 1 2 4 wrong opinion amount ordered paid section 23a 5 b act constitutes compensation would find fair compensation loss time mr portilla remained dismissed awaiting outcome proceeding whole amount remuneration paid see principle expressed ingrowers market butcher v backman 1999 79 waig 1313 reason sufficient evidence enable full bench make finding undersection 49 6 act good reason prevent occurring would order reinstatement mr portilla 2 december 2004 would order paid employer bhpb whole remuneration merely wage lost result unfair dismissal find reason amount lost remuneration cannot reduced amount mr portilla earned whilst another employment unfairly dismissed circumstance matter commission respondent opposed applicant reinstatement way submission commission satisfied evidence submission working relationship applicant respondent broken extent order reinstatement would impracticable respondent submitsthat reinstatement supported make remedy impracticable commission find little evidence support respondent submission commission find circumstance applicant reinstated former position sale assistant effective date dismissal reinstatement go requirement applicant worse account termination employment therefore treated employment continuous loss entitlement applicant paid wage lost period 16 september 2005 date reinstatement loss cover normal weekly earnings period unemployment commission find time hearing applicant counsel referred number occasion applicant advanced state gestation prior preparation minute reflect reason decision applicant calculate amount wage would paid terminated respondent regard issue parental leave reduced hour working date dismissal matter considered relevant provide information commission copy respondent invited comment accuracy otherwise amount |
Culifora Pty Ltd (ACN 113 445 748) v O'Dea [2007] FCA 1605 (7 September 2007).txt | culifora pty ltd acn 113 445 748 v dea 2007 fca 1605 7 september 2007 last updated 23 october 2007federal court australiaculifora pty ltd acn 113 445 748 v dea 2007 fca 1605culifora pty ltd acn 113 445 748 salvatrice cataldo v shane patrick deavid 905 2006north j7 september 2007melbournein federal court australiavictoria district registryvid 905 2006between culifora pty ltd acn 113 445 748 first applicantsalvatrice cataldosecond applicantand shane patrick dearespondentjudge north jdate order 7 september 2007where made melbournethe court order 1 judgment first applicant sum 331 845 28 35 000 interest 2 respondent pay applicant cost application note settlement entry order dealt order 36 federal court rule federal court australiavictoria district registryvid 905 2006between culifora pty ltd acn 113 445 748 first applicantsalvatrice cataldosecond applicantand shane patrick dearespondentjudge north jdate 7 september 2007place melbournereasons judgment1 applicant filed application 11 august 2006 seeking amongst relief damage respondent breach thetrade practice act1974 |
McCardy v McCormack [1994] VicRp 73; [1994] 2 VR 517
(1 June 1994).txt | mccardy v mccormack 1994 vicrp 73 1994 2 vr 517 1 june 1994 mccardy v mccormacksupreme court victoriaeames j9 may 1994 01 june 1994eames j appeal question law pursuant s92 themagistrates court act 1989 appellant appeal decision magistrate m macdonald sitting magistrate court broadmeadows 1 november 1993 worship convicted appellant charge brought pursuant tos49 1 f theroad safety act 1986 act fined appellant 500 00 42 00 statutory cost cancelled licence disqualified obtaining licence period 14 month fact giving rise appeal may briefly stated evening wednesday 21 october 1992 appellant attended thai restaurant fitzroy five work colleague appellant gave evidence consumed approximately four glass wine hour 6 30 pm 10 30 pm way home appellant travelled ballarat road braybrook ballarat road preliminary breath testing station set accordance act duty site constable newton performing preliminary breath test activity 10 45 pm appellant vehicle directed preliminary breath test line constable newton gave appellant preliminary breath test proved positive constable newton believed positive result result mouth alcohol directed appellant park vehicle wait approximately 20 minute later constable newton accompanied informant sergeant mccormack attended appellant vehicle second preliminary breath test conducted constable newton preliminary breath test device gave final reading constable newton told sergeant mccormack bring appellant booze bus word effect constable newton switched device said appellant come purpose constable newton required appellant accompany disclosed appellant underwent breath test result 0 140 per cent obtained charge laid pursuant tos49 1 1 act appellant gave notice unders58 2 act requiring breathalyser operator sergeant mccormack given certificate unders55 4 act attend court witness question law raised appellant five number follows 1 evidence support finding instrument upon defendant tested breath analysing instrument within meaning pt5 theroad safety act 1986 2 yes 1 evidence support finding absence oral evidence averment breath analysing instrument occasion proper working order properly operated b absence oral evidence averment relation breath analysing instrument regulation made pt5 theroad safety act 1986with respect breath analysing instrument complied 3 open learned magistrate rely rely upon certificate authorised operator breath analysing instrument proof fact matter stated therein circumstance notice unders58 2 theroad safety act 1986has served ii receiving said certificate tendered purpose identity rely rely upon said certificate proof fact matter stated therein 4 open learned magistrate find breath analysing instrument properly operated proper working order view admission witness mccormack failed flush sample chamber twice standard alcohol solution test contradiction proper procedure wherein procedure required standard alcohol solution 19 centigrade b view admission witness mccormack properly operated instrument relevant occasion 5 open learned magistrate find evidence conclusion prosecution case requirement undergo test mean breath analysing instrument communicated defendant case answer essential element charge b yes charge proven found question fact relevant requirement communicated defendant ground 1 definition type approved breath analysing instrument comprises two para para b found ins3of act two category either apparatus known breathalyser specific patent number apparatus type approved minister notice published government gazette bys58 4 evidence given operator instrument firstly approved type secondly proper working order properly operated thirdly operated compliance relevant regulation proof fact unless contrary proved s58 5 relates facilitation proof oral evidence apparatus breathalyser type affidavit disclosed apparent dispute whether operator given evidence matter worship held respect question instrument approved type regulation complied would preferable evidence given clear unequivocal term rejecting submission three matter sub 4 related proved evidence given precisely word section worship held satisfied evidence sergeant authorised instrument breath analysing instrument finding expressly deal two matter sub 4 related take worship intending indicate satisfied evidence matter proved challenge made finding operator authorised conduct test answering affidavit sworn prosecutor proceeding magistrate deposed cross examination respondent made reference instrument breath analysing instrument operating per act regulation submission magistrate prosecutor argued although witness expressly given evidence instrument bore appropriate patent number worship would entitled infer approved type notwithstanding somewhat vague yet sweeping nature evidence given cross examination related answering affidavit adopt accepted practice relying upon answering affidavit dispute fact appeal larkin v penfold 1906 vlr 535 thomson v lee 1935 viclawrp 65 1935 vlr 360 lindgran v lindgran 1956 viclawrp 34 1956 vlr 215and aherne v freeman 1974 vicrp 17 1974 vr 121 worship finding consistent general evidence given although particular passage appear note evidence magistrate question whether general evidence coupled evidence would sufficient proof instrument one authorised essential ingredient offence unders49 1 f instrument approved type director public prosecution v webb 1993 2 vr 403 407 per ormiston j smith v van maanen unreported tadgell j 5 july 1991 14 bogdanovski v buckingham 1989 vicrp 80 1989 vr 897 ormiston j concerned case operator gave evidence called machine breathalyzer also said used approved instrument gave detail witness said type instrument unders3it refer patent number ormiston j held 916 917 essential evidence given breath analysis machine one authorised act honour held language substantially identical employed ins58 4 employed witness insufficient witness merely describe instrument approved instrument honour held evidence witness failed describe instrument way would enable court ascertain whether instrument one complied either definition act ormiston j 916 rejected suggestion evidence given operator complied regulation relating operation breathalyser necessarily implied instrument one approved act reef v beaman unreported 15 august 1991 bryan j held word must understood contain averment instrument one defined ins3 honour took view obligation defence dispute instrument authorised one raise issue expressly cross examination bryan j refer authority deciding counsel respondent conceded far judgment bryan j suggested onus accused person prove instrument authorised would proposition would seek advance view bryan j suggesting reversal onus proof matter rather taken referring factor might give greater strength inference might drawn available evidence mr counsel respondent sought rely upon decision bryan j way adding charge arose use random breath test station kind presumption regularity might apply given fact criminal proceeding concern matter later indicate court repeatedly expressed view strict proof required essential element offence would respectfully prefer adopt view expressed ormiston j proof instrument authorised one opinion evidence direct inferential worship could concluded instrument used one met definition ins3 accordingly ground appeal must succeed turn consider ground 3 5 ground 3 argued conceded counsel respondent certificate could relied upon proof fact stated within notice given appellant unders58 2 operator required called give evidence concession agreed counsel determine outcome appeal ground 5upon completion first preliminary breath analysis appellant told constable newton park vehicle wait approximately 20 minute later respondent attended scene second preliminary test commenced constable newton worship made finding whether appellant told result second test found upon completion sergeant mccormack said constable newton word effect sk come back booze bus although specific finding made answering affidavit filed proceeding dispute constable newton merely said appellant come respondent dispute suggestion reason given appellant request accompany constable newton s55 1 provides police officer satisfied certain matter preliminary test conducted may require person furnish sample breath analysis breath analysing instrument purpose may require person accompany member police force police station place sample breath furnished remain person furnished sample breath 3 hour driving held essential element charge unders49 1 f requirement ofs55 1 complied mill v meeking 1990 hca 6 1990 169 clr 214 224 requirement involves mere request accompany officer purpose requirement made must also stated driver concerned director public prosecution v blyth unreported coldrey j 28 april 1992 dalzotto v lowell unreported ashley j 18 december 1992 term requirement stated need follow precise formula word rankin v brien 1986 vr 67 driver must however told sufficient know required scott v dunstone 1963 vicrp 77 1963 vr 579 whether requirement made within term section need proved direct evidence may matter inference may drawn whole evidence blyth case 6 magistrate made following finding reason judgment never put fairly squarely mr newton tell mr mccardy required accompany vehicle breath testing station undergo test clearly word said mr mccardy accompany mr newton however evidence could doubt mr mccardy mind happen worship added additional comment suggested disfavour court view technical defence case commented challenge evidence police witness put squarely view fact found word used police officer explanation request question whether open magistrate conclude section complied put another way conclusion driver knew required accompany police officer remove obligation told reason dalzotto case ashley j concerned case driver intercepted country highway distance ballarat driver failed preliminary test told failed required accompany police officer police car ballarat police station given reason asked honour held conviction could sustained view failure state reason honour decided notwithstanding acceptance driver understood request made course reason honour referred policy behind imposition obligation requirement convey reason imposition honour held 7 member public effectively deprived liberty albeit transitory way circumstance legislature required police officer convey member public purpose requirement attend police station imposed counsel respondent sought distinguish dalzotto case basis policy consideration ashley j adverted arise requirement imposed context road side breath testing station appellant one many driver randomly required submit preliminary breath test booze bus doubt dauntingly obvious vicinity enter bus unlike entry police station sole function might reasonably inferred connected conduct breath analysis test driver taken short distance car bus asked travel many mile police vehicle factor significance one seems provide basis distinguishing judgment ashley j worship concluded appellant must known purpose behind requirement mr dalzotto citizen entitled know reason arrest deprived liberty seems entitlement must apply circumstance merely incident accompanying deprivation liberty may thought le transitory intimidating circumstance citizen entitled know event happening entailed requirement deprived liberty understand might inferred appellant knew purpose requirement request coldrey j observed blyth case command conclusion reached citizen purpose requirement may quite wrong absence clearly stated reason requirement may lead unnecessary disputation perhaps even arrest ground good reason requirement pertain time context justification imposing lesser obligation requirement accompany police officer place requirement relates police station certainly inside booze bus citizen le confined control police officer would case removal police station even police car opinion ground also made conviction cannot stand conclusionhaving concluded appeal must succeed two ground argued becomes unnecessary deal remaining ground ormiston j bogdanovski v buckingham 917 considered whether absence strict proof breath analysing instrument one authorised unders3 appropriate order would remit case rehearing magistrate court declined adopt course take similar view present case strengthened conclusion fact failure comply obligation inform appellant reason requirement unders55 1 one could cured matter remitted order appeal allowed magistrate order convicting appellant set aside lieu order ordered information dismissed appeal allowed solicitor appellant wilkins roche solicitor respondent jm buckley solicitor director public prosecution |
The Shop, Distributive and Allied Employees' Association of Western Australia v Peter Szolkowski and Vivienne Haynes on behalf of the Szolhay Family Trust T_A River RoosterBridgetown [2001] WAIRComm 4320 (3 December 2001).txt | shop distributive allied employee association western australia v peter szolkowski vivienne haynes behalf szolhay family trust river roosterbridgetown 2001 waircomm 4320 3 december 2001 last updated 5 july 2007100108276river rooster bridgetown sda enterprise agreement 2001western australian industrial relation commissionpartiesthe shop distributive allied employee association western australiaapplicant v peter szolkowski vivienne haynes behalf szolhay family trust river rooster bridgetownrespondentcoramchief commissioner w colemandeliveredmonday 3 december 2001file sag 244 2001citation 2001 wairc 04320_______________________________________________________________________________resultconsent order issuedrepresentationapplicantmr poperespondentmr hansen_______________________________________________________________________________orderhaving heard mr pope behalf applicant mr hansen behalf respondent commission consent party pursuant power conferred theindustrial relation act 1979hereby order theriver rooster bridgetown sda enterprise agreement 2001and replaces theriver rooster bridgetown agreement ag 272 1996as filed commission 27 november 2001 registered 3rdday december 2001 chief commissioner w colemanschedule1 titlethis agreement shall known river rooster bridgetown sda enterprise agreement 2001 made substitution river rooster bridgetown agreement ag 272 1996 2 arrangement1 title2 arrangement3 area scope4 supersession previous award agreements5 term6 definitions7 termination employment8 hours9 overtime10 casual employees11 part time employees12 meal breaks13 meal money14 sick leave15 bereavement leave16 holidays17 annual leave18 long service leave19 payment wages20 wages21 junior employees22 higher lower duties23 uniform laundering24 protective clothing25 employee equipment26 limitation work27 travelling facilities28 record29 roster30 change rest rooms31 first aid32 posting agreement union notices33 supported wage system employee disabilities34 location allowances35 parental leave36 temporary transfer37 traineeships38 technological change restructuring39 redundancy40 grievance procedure41 right entrysignatories3 area scopethis agreement shall binding upon peter szolkowski vivienne haynes behalf szolhay family trust employer trading river rooster bridgetown shop distributive allied employee association western australia union respect employee employed classification defined clause 6 definition employer throughout state western australia estimated upon registration agreement shall apply 20 employee 4 supersession previous award agreementsno award agreement shall apply employee bound term agreement 5 term 1 agreement shall come force day registration shall continue operate 1st march 2004 2 party agreement agree commence negotiation new agreement three month prior expiration agreement 3 following expiration agreement shall continue operate varied party replaced another agreement 6 definition 1 grading employee shall engaged one three grade defined follows employee grade shall mean employee engaged date registration agreement first six month service employer gaining skill required higher grade ii employee grade ii shall mean employee six month service employer engaged preparation assembly cooking packing product sale b taking order receipt monies mean c cleaning maintenance work area cooking utensil cutlery glassware iii employee grade iii shall mean employee required perform duty employee grade ii give direction charge employee grade ii employee grade iii may also required clerical work associated running employer business 2 daily spread shift shall mean time elapses employee actual starting time employee actual finishing time day shift 7 termination employment 1 permanent employee employer wish terminate permanent employee following period notice shall provided period continuous serviceperiod noticenot 3 month 1 daymore 3 month 1 year 1 weekmore 1 year 3 year 2 weeksmore 3 year 5 year 3 weeksmore 5 year 4 week b employee 45 year age 5 year continuous service time termination shall receive additional week notice c relevant notice provided employee shall entitled payment lieu provided employment may terminated part period notice part payment lieu payment lieu notice shall calculated using employee ordinary time weekly wage prescribed agreement e period notice clause shall apply case dismissal conduct justifies instant dismissal including malingering inefficiency theft neglect duty receiving notice termination employee carry duty manner prior notice f notice termination employeeexcept first three month service 1 week notice shall necessary employee terminate engagement forfeiture one week pay employee employer lieu notice first three month service employee may give 1 day notice terminate employment forfeiture 1 day pay employee employer lieu notice notice termination may waved consent employer g unfair dismissalstermination employment employer shall harsh unjust unreasonable whether notice given without limiting except distinction exclusion preference based inherent requirement particular position termination ground race colour sex marital status family responsibility pregnancy religion political opinion national extraction social origin shall constitute harsh unjust unreasonable termination employment 2 casual employeesthe giving receiving 1 hour notice may terminate employment casual employee 8 hour 1 ordinary hour work shall thirty eight per week exceeding ten per day worked five day week within daily spread eleven hour employee shall entitled two clear day duty per week 2 notwithstanding ordinary hour may worked 6 day week following week ordinary hour worked 4 day 3 consecutive day one week 1 clear day week 9 overtime 1 work performed time employee rostered work outside daily spread eleven hour beyond ordinary hour shall overtime 2 overtime worked shall paid rate time half employee ordinary time rate wage first two hour double time thereafter 3 shall minimum three hour pay overtime rate work performed day employee rostered work 4 notwithstanding anything contained clause employer employee may agree time pay may allowed lieu payment overtime time shall allowed subject time hour part thereof shall equivalent overtime rate otherwise would paid b time taking time agreed time arranging overtime shall later four week overtime worked 10 casual employee 1 casual employee shall mean employee engaged hourly contract service 2 casual employee shall engaged le two consecutive hour per time 3 casual employee shall paid ordinary rate pay one thirty eighth full time weekly rate pay appropriate classification set subclause 1 clause 20 wage plus twenty per cent provided rate shall increased double time work performed holiday referred subclause 1 clause 16 holiday agreement 4 working time casual employee outside job shall count time appointed attendance job discharged employer shall pay fare place engagement job 5 wage payable casual employee outside job shall forwarded employee within seventy two hour completion pay week employee employed 6 provision clause 14 sick leave 15 bereavement leave 16 holiday 17 annual leave 35 parental leave shall apply casual employee 7 ordinary hour work casual employee shall maximum thirty eight per week exceeding ten ordinary hour per day worked six day week within daily spread eleven hour 8 time worked casual employee beyond thirty eight hour week beyond ten hour day six day week shall overtime paid appropriate overtime rate prescribed subclause 2 clause 9 overtime agreement 11 part time employee 1 part time employee shall mean employee engaged weekly contract service work regularly week week part time roster subject following le three consecutive hour per shift ten ordinary hour per day b within daily spread eleven hour c le nine thirty two ordinary hour week five day week 2 notwithstanding ordinary hour may worked 6 day week following week ordinary hour worked 4 day 3 consecutive day one week 1 clear day week 3 subject limitation daily weekly hour part time employee prescribed subclause 1 2 clause number ordinary hour worked part time employee may increased decreased agreement employer employee 4 part time employee shall paid ordinary time rate pay one thirty eighth full time weekly rate pay appropriate classification set subclause 1 clause 20 wage provided rate shall increased double time work performed holiday referred subclause 1 clause 16 holiday agreement 5 time worked part time employee time employee rostered work agreed work subject subclause 3 hereof shall overtime paid appropriate overtime rate prescribed subclause 2 clause 9 overtime agreement 6 part time employee shall eligible pro rata leave entitlement accordance clause 14 sick leave 17 annual leave clause 15 bereavement leave 16 holiday agreement calculating pro rata entitlement part time employee pursuant subclause ordinary hour worked employee shall included calculation 12 meal break 1 every employee shall entitled meal break le one half hour one hour five hour work provided employee work six hour one day employee may agree take paid fifteen minute break replacement meal break mentioned clause possible employer grant meal break day said meal break shall treated time worked employee shall paid rate time plus fifty per cent ordinary hourly rate applying employee time employee released meal 2 addition break meal may one break least two hour shift break two hour may include meal break 3 addition break meal provided clause employee required work excess eight ordinary hour one day shall receive paid tea break ten minute tea break shall taken suit employer business shall taken within one hour employee commencement finishing time within one hour employee meal break 13 meal moneyany employee required work overtime two hour day without notified previous day earlier required work overtime either supplied meal employer paid 7 30 meal money 14 sick leave 1 permanent employee unable attend remain place employment ordinary hour work reason personal ill health injury shall entitled payment absence accordance following provision b entitlement payment shall accrue rate one sixth week completed month service employer c payment due employee term clause first six month employment employer paid employee completion six month service first successive year service employer employee absent ground personal ill health injury period longer entitlement paid sick leave payment adjusted end year service time employee service terminate end year service extent employee become entitled paid sick leave year service 2 unused portion entitlement paid sick leave one year shall accumulate year year subject clause may claimed employee absence reason personal ill health injury exceeds period entitlement accrued year time absence provided employee shall entitled claim payment period exceeding ten week one year service 3 entitled payment accordance clause employee shall soon reasonably practicable advise employer inability attend work nature illness injury estimated duration absence provided advice extra ordinary circumstance shall given employer within 2 hour commencement absence 4 provision clause apply employee fails produce certificate medical practitioner dated time absence fails supply proof illness injury employer may reasonably require provided employee shall required produce certificate medical practitioner respect absence two day le unless two absence year service employer request writing next subsequent absence year shall accompanied certificate 5 provision clause respect payment apply employee entitled payment worker compensation rehabilitation act employee whose injury illness result employee misconduct 15 bereavement leavea permanent employee shall death within australia wife husband de facto wife de facto husband father father law mother mother law grandparent brother sister child stepchild entitled bereavement leave including day funeral relation bereavement leave shall without deduction pay number hour normally worked employee day question employee satisfaction employer shall furnish proof death requested provided clause shall effect period entitlement leave coincides period leave may due employee concerned 16 holiday 1 following day shall allowed paid holiday full time part time employee new year day australia day labour day good friday easter monday anzac day foundation day sovereign birthday christmas day boxing day 2 addition day set subclause 1 union picnic day shall also allowed paid holiday full time part time employee day year union picnic day observed shall determined consultation employer union later 30thdecember preceding year 3 paid holiday set subclause 1 hereof shall regarded falling day upon commonly observed state western australia 4 addition paid holiday set subclause 1 2 hereof day proclaimed public holiday half holiday public bank holiday act day set subclause 1 2 hereof day observed lieu thereof shall allowed paid holiday full part time employee 5 work done holiday prescribed subclause 1 2 clause shall paid rate double time minimum payment three hour provided agreement employee affected employer payment work may single time employee shall granted equal number rostered hour pay number hour worked holiday paid time shall taken time agreed employer employee within one month holiday 6 full time employee rostered day coincides holiday prescribed clause employee shall receive one day additional pay ordinary rate employer next succeeding pay day 7 part time employee rostered day week holiday prescribed clause fall form part roster employee rostered work holiday employee shall receive additional payment number hour regularly worked day week employer next succeeding pay day 17 annual leave 1 except hereinafter provided period four consecutive week leave payment prescribed clause shall allowed annually full time part time employee employer period twelve month continuous service 2 employee going leave shall paid wage employee would received respect ordinary time employee would worked employee leave relevant period 3 period annual leave employee shall receive loading 17 5 per cent calculated employee ordinary rate wage 4 holiday proclaimed per clause 16 holiday fall within employee period annual leave shall added period one day ordinary working day holiday observed aforesaid 5 one month continuous service qualifying twelve monthly period employee whose employment terminated shall paid one third week pay ordinary rate wage respect completed month service qualifying period loading prescribed subclause 3 clause shall apply pro rata payment 6 employee whose employment terminates employee completed twelve monthly qualifying period allowed leave prescribed clause respect qualifying period shall given payment lieu leave accordance provision clause 7 time respect employee absent work except paid leave provided agreement shall count purpose determining right annual leave 8 annual leave shall taken two period provided neither period shall le one week agreed employee employer 9 annual leave shall granted taken time agreed employee employer long within period six month day became due 18 long service leavethe long service leave provision published volume 80 western australian industrial gazette page 1 6 inclusive hereby incorporated shall deemed part agreement 19 payment wage 1 employer may elect pay employee cash cheque mean credit transfer bank building society credit union account name employee day credit transfer credited employee account shall deemed date payment 2 payment shall made within four day last day pay period payment cash cheque shall made employee ordinary working hour 3 employer shall change method payment employee without first giving least four week notice change 4 employee whose day fall pay day paid cash cheque shall paid wage upon request employee employer prior employee taking day 5 employee lawfully terminates employment dismissed shall paid wage due employee employer day termination employment within twenty four hour following termination 6 time paid employee shall issued statement employer showing gross wage allowance deduction made therefrom 7 employer may elect pay employee weekly fortnightly b employer shall change frequency payment employee without first giving union least four week notice change c method introducing fortnightly pay system shall payment additional week wage last weekly pay change fortnightly pay additional payment repaid equal fortnightly deduction made next subsequent pay provided period repayment shall le 10 week method agreed upon union employer 20 wage 1 following shall minimum rate weekly wage payable employee covered agreement total wage per weekclassificationfrom first full pay period 1st september 2001from first full pay period 1st july 2002 week weekgrade i435 60445 00grade ii465 00480 00grade iii495 00515 00classificationfrom first full pay period 1st march 2003 weekgrade i455 00grade ii495 00grade iii535 00 2 employee shall suffer reduction rate wage result operation agreement 21 junior employee 1 junior employee shall paid percentage adult rate prescribed subclause 2 hereof appropriate classification prescribed subclause 1 clause 20 wage 2 minimum weekly rate wage work ordinary time paid junior employee shall follows 16 year age 40 16 17 year 50 17 18 year 60 18 19 year 70 19 20 year 80 20 21 year 90 21 year 100 3 junior employee age 16 shall employed 8 00 p day without permission writing one parent guardian 4 junior employee shall move lower percentage determined clause result operation agreement 22 higher lower duty 1 employee performing work duty carrying higher prescribed rate wage employee engaged shall paid higher rate work 2 employee temporarily required perform duty carrying lower prescribed rate wage shall without loss pay 3 employer may direct employee carry duty within limit employee skill competence training 23 uniform laundering 1 uniform required employer worn shall supplied employer remain property employer employee required launder keep uniform good repair fair wear excepted 2 employer may withhold 30 00 termination pay employee time employee return uniform possession good condition fair wear excepted 3 dispute arising operation clause shall resolved accordance clause 40 grievance procedure 24 protective clothing 1 employee required wash dish clean toilet otherwise handle detergent acid soap injurious substance shall supplied free charge employer rubber glove 2 condition work employee unable avoid clothing becoming wet dirty shall supplied suitable protective clothing free charge employer 3 condition work employee unable avoid foot becoming wet shall supplied employer free charge suitable protective footwear 4 article supplied shall remain property employer 25 employee equipmentall knife chopper tool brush towel utensil implement material may required used employee purpose carrying duty shall supplied employer free charge 26 limitation work 1 employee may required climb ladder substitute therefore unless appropriately attired 2 employee shall required clean toilet use person opposite sex employee unless determined employee sex toilet provided use toilet vacant arrangement made ensure toilet use cleaning period 3 employee shall required lift carry weight excess fifteen kilogram 27 travelling facility 1 employee detained work late travel last ordinary bus train regular public conveyance employee usual place residence employer shall provide proper conveyance free charge 2 employee required start work first mean public conveyance herebefore described available convey employee usual place residence place employment employer shall provide conveyance free charge 3 provision clause apply employee usually mean conveyance 28 recordthe time wage record shall kept term prescribed shop warehouse wholesale retail establishment state award 1977 r32 1976 29 roster 1 roster working hour full time part time employee employed shall exhibited office establishment place employer may conveniently readily seen employee 2 roster shall show name occupation type employment employee b hour worked employee day break shift taken 3 roster shall drawn manner show working hour employee least one week advance date roster may altered account sickness employee mutual consent employee employer 30 change rest roomsthe employer shall provide adequate change rest room reasonably practicable 31 first aidin establishment employer shall provide continuously maintain place easily accessible employee adequate first aid kit 32 posting agreement union notice 1 supplied union copy agreement shall exhibited employer business premise place may conveniently readily seen employee 2 secretary union duly accredited representative union shall permitted post notice relating union business place may conveniently readily seen employee 33 supported wage system employee disability 1 clause defines condition apply employee effect disability eligible supported wage term agreement context clause following definition apply supported wage system mean commonwealth government system promote employment people cannot work full award wage disability documented supported wage system guideline assessment process ii accredited assessor mean person accredited management unit established commonwealth supported wage system perform assessment individual productive capacity within supported wage system iii disability support pension mean commonwealth pension scheme provide income security person disability provided thesocial security act 1991 amended time time successor scheme iv assessment instrument mean form provided supported wage system record assessment productive capacity person employed supported wage system 2 eligibility criteriaemployees covered clause unable perform range duty competence level required within class work employee engaged agreement effect disability productive capacity meet impairment criterion receipt disability support pension clause apply existing employee claim employer subject provision worker compensation legislation provision agreement relating rehabilitation employee injured course current employment agreement apply employer respect facility program undertaking service like receives funding thedisability service act 1986and fulfils dual role service provider sheltered employer people disability receipt eligible disability support pension unless employer received recognition undersection 10or section 12a act part received recognition part 3 supported wage ratesemployees clause applies shall paid applicable percentage minimum rate pay prescribed agreement class work person performing according following schedule assessed capacity sub clause 4 prescribed agreement rate10 10 20 20 30 30 40 40 50 50 60 60 70 70 80 80 90 90 provided minimum amount payable shall le 55 per week person assessed capacity 10 per cent shall receive high degree assistance support 4 assessment capacityfor purpose establishing percentage agreement rate paid employee agreement productive capacity employee assessed accordance supported wage system documented assessment instrument either employer union consultation employee desired ii employer accredited assessor panel agreed employer union 5 lodgement assessment instrument assessment instrument condition clause including appropriate percentage agreement wage paid employee shall lodged employer registrar australian industrial relation commission b assessment instrument shall agreed signed party assessment provided union party agreement party assessment shall referred registrar union certified mail shall take effect unless objection notified registrar within ten working day 6 review assessmentthe assessment applicable percentage subject annual review earlier basis reasonable request review process review shall accordance procedure assessing capacity supported wage system 7 term condition employmentwhere assessment made applicable percentage shall apply wage rate employee covered provision clause entitled term condition employment worker covered agreement paid pro rata basis 8 workplace adjustmentan employer wishing employ person provision clause shall take reasonable step make change workplace enhance employee capacity job change may involve redesign job duty working time arrangement work organisation consultation worker area 9 trial period order adequate assessment employee capacity made employer may employ person provision clause trial period exceeding 12 week except case additional work adjustment time exceeding four week may needed b trial period assessment capacity shall undertaken proposed wage rate continuing employment relationship shall determined c minimum amount payable employee trial period shall le 55 per week work trial include induction training appropriate job trialed e employer employee wish establish continuing employment relationship following completion trial period contract employment shall entered based outcome assessment subclause 4 clause employee effect disability eligible supported wage shall assessed paid accordance provision model clause provided supported wage system test case decision print l5723 1994 34 location allowance 1 provision general order section 50 industrial relation act 1997 western australian industrial relation commission respect location allowance shall apply employee engaged term agreement workplace location specified general order 35 parental leavepermanent employee least twelve month continuous service shall entitled parental leave unpaid maternity paternity adoption leave right work part time consent employer determined 1990 parental leave test case print j3596 36 temporary transferwhere temporary transfer employee unavoidable result store refurbishment similar circumstance employee shall given least one month notice temporary transfer employee decline offer temporary transfer may take accrued leave owed event leave becomes exhausted shall take unpaid leave absence 37 traineeship 1 national training wage award shall apply respect trainee employed employer accordance agreement refers back award shall read referring back agreement 2 provision national training wage award respect overtime shall read mean hourly rate pay purpose calculation overtime shift penalty hourly rate applicable relevant age prescribed agreement 38 technological change restructuring 1 employer duty notify employer made definite decision introduce major change production program organisation structure technology likely significant effect employee employer shall notify employee may affected proposed change union b 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 retraining transfer employee work location restructuring job provided agreement make provision alteration matter referred herein alteration shall deemed significant effect 2 employer duty discus change employer shall discus employee affected union inter alia introduction change referred effect change likely employee measure avert mitigate adverse effect change employee shall give prompt consideration matter raised employee union relation change b discussion shall commence early practicable definite decision made employer make change referred c purpose discussion employer shall provide writing employee concerned union relevant information change including nature change proposed expected effect change employee matter likely affect employee provided employer shall required disclose confidential information disclosure would detrimental employer interest 39 redundancy 1 discussion termination employer made definite decision employer longer wish job employee done anyone due ordinary customary turnover labour decision may lead termination employment employer shall hold discussion employee directly affected union b discussion shall take place soon practicable shall cover amongst matter reason proposed termination required measure avoid minimise termination measure mitigate adverse effect termination employee concerned c purpose discussion employer shall soon practicable provide writing employee concerned union relevant information proposed termination including reason proposed termination number category employee likely affected number employee normally employed period termination likely carried provided employer shall required disclose confidential information disclosure would detrimental employer interest 2 transfer lower paid dutieswhere employee transferred lower paid duty reason set subclause 1 hereof employee shall entitled period notice transfer would terminated employer may make payment lieu thereof amount equal difference former ordinary time rate pay new lower ordinary time rate number week notice still owing 3 severance payin addition period notice provided clause 7 agreement permanent employee whose employment terminated reason set shall entitled following amount severance pay respect continuous period service ___________________________________________________period continuous service severance payless 1 year nil1 year le 2 year 2 week pay2 year le 3 year 4 week pay3 year le 4 year 6 week pay4 year le year 8 week pay5 year 10 week pay___________________________________________________ week pay mean ordinary time rate pay employee concerned provided severance payment shall exceed amount employee would earned employment employer proceeded employee normal retirement date 4 employee leaving noticean employee whose employment terminated reason set subclause 1 hereof may terminate employment period notice shall entitled benefit payment clause remained employer expiry notice provided circumstance employee shall entitled payment lieu notice period prescribed subclause 1 clause 7 agreement 5 alternative employmentthe employer particular redundancy case may make application commission general severance pay prescription varied employer obtains acceptable alternative employment employee 6 time notice period period notice termination given employer employee shall allowed one day time without loss pay week notice purpose seeking employment b employee allowed paid leave one day notice period purpose seeking employment employee shall request employer required produce proof attendance interview shall receive payment time absent purpose clause statutory declaration sufficient 7 notice appropriate employment servicewhere decision made terminate employee circumstance outlined subclause 1 hereof employer shall notify appropriate employment service thereof soon possible giving relevant information including number category employee likely affected period termination intended carried 8 transmission business business date agreement transmitted one employer subclause called transmittor another employer subclause called transmittee employee time transmission employee transmittor business becomes employee transmittee continuity employment employee shall deemed broken reason transmission andthe period employment employee transmittor prior transmittor shall deemed service employee transmittee b subclause business includes trade process business occupation includes part business transmission includes transfer conveyance assignment succession whether agreement operation law transmitted corresponding meaning 9 employee le one year servicethis clause shall apply employee le one year continuous service general obligation employer give relevant employee indication impending redundancy first reasonable opportunity take step may reasonable facilitate obtaining employee suitable alternative employment 10 employee exemptedthis clause shall apply employment terminated consequence conduct justifies instant dismissal including malingering inefficiency theft neglect duty case casual employee apprentice employee engaged specific period time specified task task 40 grievance procedurein relation question dispute difficulty arising operation agreement dispute settlement procedure shall apply shall term outlined shop warehouse wholesale retail establishment award 1977 r32 1976 appendix resolution dispute requirement 41 right entrythe right entry provision shall term prescribed shop warehouse wholesale retail establishment state award 1977 r32 1976 42 signatoriessigned behalf shopjoseph bullock distributive allied employee secretary association western australiasigned behalf shopmark bishop distributive allied employee president association western australiasigned behalf szohlhay family trust trading river rooster bridgetownprint name |
Tagudin v H.J Heinz Company Australia Limited [2023] NSWPIC 75 (1 March 2023).txt | tagudin v h j heinz company australia limited 2023 nswpic 75 1 march 2023 last updated 8 march 2023certificate determination membercitation tagudin v h j heinz company australia limited 2023 nswpic 75applicant agnes tagudinrespondent h j heinz company australia limitedmember jill tooheydate decision 1 march 2023catchwords worker compensation worker compensation act 1987 claim compensation psychological injury claim weekly payment medical expense dispute applicant sustained psychological injury arising course employment respondent dispute injury wholly predominantly caused action respect performance appraisal discipline dispute whether respondent action reasonable applicant dispute respondent action reasonable certain respect applicant disputed happened otherwise reasonable action reasonable absence satisfactory evidence respondent claimed occurred otherwise reasonable action held finding respondent discharged onus respect thesection 11adefence dispute made applicant lack capacity employment claimed award applicant determination made applicant sustained psychological injury arising course employment respondent deemed date injury 22 september 2021 applicant psychological injury wholly predominantly caused action taken respondent respect employment applicant current capacity employment 22 december 2021 result injury claimed application resolve dispute respondent pay applicant weekly compensation claimed pursuant tos 37of theworkers compensation act 1987 1987 act party liberty apply respect calculation applicant entitlement weekly payment noting amount claimed application resolve dispute indexed figure respondent pay applicant reasonable medical expense pursuant 60 1987 act statement reasonsbackgroundagnes tagudin applicant worked production operator hj heinz company australia ltd respondent around 1996 april 2017 m tagudin given letter first written warning respect work performance wrong expiry code date placed carton can injune 2017 given second written warning letter similar incident 26 july 2021 m tagudin asked run day shift production main line took another operator started shift operator encountered problem feeding bottle line found incorrect label put sauce bottle m tagudin maintains due action previous operator complying quality control check sheet properly held responsible accountable whole incident obtaining written report m tagudin meeting 10 august 2021 manager issued final warning letter advised failure follow company requirement might result disciplinary action including termination employment letter variously referred respondent document first final warning third final warning final warning 13 august 2021 incident incorrect temperature setting used line operated m tagudin setting higher allowed quality specification m tagudin asked provide statement last incident provided statement 19 august 2021 say gave clear detailed outline discussion operator took 13 august 2021 temperature setting used around 1 september 2021 m tagudin handed letter manager inviting attend meeting following day connection incident 13 august 2021 left work given letter attend meeting returned work since m tagudin claim throughout course employment subjected bullying harassment manager particular incident on26 july 2021 given letter 1 september 2021 called office repeatedly asked information incident say thought interrogated felt bullied harassed embarrassed manager would constantly request repeat meeting tell information already given application resolve dispute ard lodged personal injury commission commission 28 october 2022 m tagudin claim sustained psychological injury deemed date 29 july 2021 result harassment intimidation claim weekly payment 22 december 2021 date continuing medical expense consultation dispute notice issued 10 december 2021 30 june 2022 respondent denies liability compensate m tagudin respondent dispute suffered psychological injury arising course employment employment respondent whole predominant cause injury respondent maintains however injury result reasonable action taken respect performance appraisal discipline within meaning ofs 11aof theworkers compensation act 1987 1987 act preliminary conference 25 november 2022 applicant given leave amend deemed date injury ard 22 september 2021 proceeding respondent dispute m tagudin claim current capacity employment period claimed also dispute pre injury average weekly earnings piawe claimed ard issue determinationthe party agree issue remaining dispute whether respondent action taken respect performance appraisal discipline reasonable procedure commissionparties attended conciliation conference arbitration hearing commission 31 january 2023 m tagudin represented mr graham barter counsel instructed m lauren hunt respondent represented mr lachlan robison counsel instructed mr ron galea party unable reach agreement matter proceeded hearing satisfied party dispute understand nature application legal implication assertion made information supplied used best endeavour attempting bring party dispute settlement acceptable satisfied party sufficient opportunity explore settlement unable reach agreed resolution dispute evidencedocumentary evidencethe following document evidence commission considered making determination ard attached document b reply attached document c application admit late document aald lodged respondent on9 january 2023 attached document oral evidencethere application adduce oral evidence cross examine witness m tagudin statement taken 29 october 2021 1 m tagudin evidence set statement given investigator on29 october 2021 statement dated 14 september 2022 narrow scope issue dispute necessary recount evidence statement investigator m tagudin state 26 july 2021 asked run dayshift production main line describes procedure change including requirement operator complete quality control check sheet state previous operator complete check sheet properly problem bottle falling feed scroll result incorrect label placed bottle m tagudin state operator line night held accountable whole incident 13 august 2021 m tagudin spoke dayshift line operator see production running smooth day starting evening shift operator told problem seal shift instructed m tagudin run quality control procedure certain temperature m tagudin say wrote temperature operator gave trusted information given turned set temperature high m tagudin state problem identified prepared incident report detailed outline happened continued request harass information incident even quality control manager already released product client m tagudin state incident provided manager detailed report thought thing going back normal would continue work however manager continued request meeting upon meeting incident state taken accountability line operator time incident seemed like manager happy information kept asking repeat meeting find sic sounding like broken record telling exact thing wrote incident report week incident occurred m tagudin state started feel unhappy management every opportunity got would call page office repeatedly request information felt like interrogated murder case felt helpless felt bullied harassed embarrassed ashamed would constantly request repeat meeting developed high level anxiety every time would page office felt unimportant irrelevant employee given right heard m tagudin statement dated 14 september 2022 2 statement dated 14 september 2022 m tagudin recount event similar term state throughout course employment subjected bullying harassment manager m tagudin refers statement manager mark zahra dated 29 october 2021 investigator state acknowledges made mistake past learned july 2017 july 2021 make mistake completed work high standard state company policy clearing incident personal record one year lapsed unfair formr zahra raise past mistake feel management held prejudiced opinion since event 2017 m tagudin state incident 26 july 2021 management continued pressure providing information told multiple time everything written incident report would accept version event feel pressured admit solely fault believed manager wanted resign looking excuse fire m tagudin state line operator accidentally used wrong label dealt way usually operator would asked prepare incident report would reviewed manager returned work warning state incident remains worker personal record one year cleared state due nature work given operator may make many simple error course employment m tagudin state usually management followed protocol asking incident report holding one meeting case however continuously called meeting pressure resigning felt humiliated front worker constantly pulled shift office felt singled scapegoated incident relation 13 august 2021 incident m tagudin state told temperature set incorrectly prepared another incident report accepted management continued interrogate stated already given information taken accountability incident continue call meeting intimidating every two three day m tagudin stated throughout july 2021 august 2021 manager continued page office heard condescending comment despite telling experiencing high level anxiety meeting continued interrogate harass received employee assistance program counselling time effective 3 september 2021 m tagudin saw general practitioner dr darius adriano issued medical certificate around 21 september 2021 improved dr adriano referred psychiatrist mr beggs statement 3 m tagudin co worker gavin beggs provided statement dated 25 october 2022 state worked m tagudin 15 20 year incredibly hard worker thought good job mr beggs state recall incident 26 july 2021 m tagudin came told pretty quickly state essentially word another worker word mistake production line management sided worker state m tagudin completed incident report continuously called office regarding incident relentless mr beggs state noticed management started speaking m tagudin differently often saw spoken one manager mark zahra saw frequently coming going factory floor pulling agnes side mr beggs state witnessed becoming increasingly upset stood always looked like reprimanding identifies mr zahra manager saw constantly harassing m tagudin mr beggs state workplace pretty well known good culture state people protected others victimised bullied m tagudin constantly threatened sent back dayshift training witness threat well known floor year ever made mistake management would threaten send back dayshift medical evidencegiven narrow scope issue dispute necessary refer medical evidence detail however m tagudin relies statement doctor constantly called manager office dr adriano noteson 3 september 2021 dr adriano recorded m tagudin ongoing issue work bullying noted counselling would file wc go leave 4 7 september 2021 dr adriano recorded long story case noted 2x mistake work 25 year think bullied going back forth office 5 9 september 2021 21 september 2021 dr adriano recorded going generalised anxiety depression harassment work bullying issue work noted 2x mistake work 25 year however called repeatedly office 6 affecting mental health 7 dr khan reportdr abdul khan psychiatrist saw m tagudin assessment 22 april 2022 provided report dated 24 april 2022 8 provided document including factual investigation report dated 29 september 2021 annexures prepared respondent dr khan took history m tagudin incident around 29 july 2021 recalled called office management explain situation union delegate attended meeting wrote statement management ignored version event reported continued called meeting management every two three day would experience anxiety panic attack attend meeting result mental state deteriorated dr khan considered m tagudin totally incapacitated work 13 june 2021 date dr khan concluded m tagudin subjected workplace stressor whereby repeatedly bullied harassed unsupported ignored dismissed management stated employer action reasonable reliance placed m tagudin last statement common ground dr khan determine whether respondent action reasonable dr clark reportdr scott clark psychiatrist saw m tagudin assessment behalf respondent 22 november 2021 provided report dated 30 november 2021 9 document relating event 2017 2021 dr clark took history m tagudin incident july august 2021 said manager kept asking see every second day unclear felt singled eventually enough said continually called office worker could see said another employee responsible mistake set evidence respondent witnessesstatements provided investigator 2021 mr zahra marketing manager kiara novak human resource business partner joanne suapopo worked line m tagudin peter masi union delegate statement provided course proceeding mr zahra andms suapopo jonathon palmer also worked production line 10 mr zahra statementsmr zahra told investigator incident 7 april 2017 8 june 2017 whichms tagudin responsible incorrect expiry date placed product occasion asked provide handwritten statement decision made happen 11 mr zahra stated following incident 7 april 2017 m tagudin issued first written warning would remain personal record 12 month date incident following incident 8 june 2017 issued second written warning mr zahra described investigator happened 25 july 2021 said m tagudin provided formal statement incident attended formal meeting on10 august 2021 mr masi support person statement highlighted made error writing information online folder without checking result admission determined matter warranted issuing third formal final warning agreed dismissal would suspended account number year m tagudin employed mr zahra told investigator incident 13 august 2021 whenms tagudin responsible wrong temperature setting selected causing afternoon shift production placed hold causing considerable cost company asked complete incident form reviewing statement decided letter meeting time place issued returned work since matter remains investigation second statement dated 18 november 2022 mr zahra referred m tagudin statement dated 14 september 2022 previous statement dated 1 november 2021 18 november 2022 separate statement dated 18 november 2022 appear evidence nothing appears turn mr zahra stated m tagudin asked attend room office on1 september 2021 given letter invitation meeting on2 september 2021 union delegate present letter handed mr zahra started opinion m tagudin aware issued third final warning last incident likely terminated result investigation m novak statementms novak provided statement investigator 1 november 2021 12 left respondent employ around september 2021 provided statement m novak state last month working respondent mr zahra brought attention concern error made m tagudin led product requiring reworking dumping m novak state m tagudin 25 year service respondent series incident last three four year made similar error occasion asked prepare statement notice meeting would provided would asked attend meeting m novak state notice meeting invite employee bring support person wish standard procedure respondent investigating incident m novak refers incident 2021 meeting m tagudin mr masi present one meeting m tagudin attended appears meeting 10 august 2021 m novak describes discussion decision given duration service m tagudin would given 1stand final warning m novak state falsification quality assurance documentation considered serious misconduct circumstance would warrant termination however taking account m tagudin time business honesty conversation giving warning considered right approach m novak state meeting left amicably gratitude shown m tagudin understanding severity issue commitment would follow process moving forward m novak state week later mr zahra reported another incident incorrect temperature set m tagudin asked statement statement referred conversation m suapopo temperature setting m novak state result statement m suapopo m tagudin mental health m novak concern welfare spoke mr zahra met m tagudin afternoon conversation m suapopo m novak expressed concern welfare valued employee open discussion offered employee assistance program m tagudin went next room contacted provider made appointment next day instructed take time arrangement made son pick taxi called take home m tagudin returned work time m novak state assisted mr zahra preparing notice meeting discus finalise issue relating temperature checked recording state m tagudin given notice day meeting attend work told unwell hospital chest pain m novak state circumstance respondent ensured m tagudin treated fairly given procedural fairness given ample notice prior discussion outcome never decided without first considering response m suapopo statementsms suapopo provided statement dated 1 november 2021 13 investigator statement dated 19 november 2022 14 describes say happened incident 13 august 2021 m tagudin took production line dispute m tagudin account state instruct regard particular temperature mr palmer statementmr palmer provided brief statement dated 21 november 2022 15 describes incident 13 august 2021 state m suapopo put old rewind back m tagudin claim recorded temperature notebook mr masi statementmr masi provided statement dated 1 november 2021 investigator 16 state support person m tagudin received first second warning belief investigation conducted appropriately aware m tagudin felt targeted sometimes targeted general state belief opinion genuine think actually treated differently staff member relation first incident 2021 mr masi state m tagudin clearly fault conducting adequate check also felt management seemed content focus attention blame apportioned previous team stated m tagudin felt alone making error one held accountable warning letter notice meetingthe first written warning issued m tagudin 7 april 2017 relation incident day 17 referred additional cost labour material involved rectifying error stated considered handwritten statement manager decided issue first written warning would remain personal record 12 month failure meet company requirement within time would result termination second written warning issued m tagudin 22 june 2017 similar incident 8 june 2017 referred consideration handwritten response meeting union delegate mr zahra stated decision issue second written warning would remain personal record 12 month failure meet company requirement within time would result termination 9 august 2021 mr zahra gave m tagudin notice inviting meeting following day m novak discus performance relation completing certain check 18 letter stated meeting would discus concern would given opportunity respond emphasised conclusion drawn decision made stage none would heard deliberated response letter advised m tagudin entitled bring support person meeting submissionsa transcript party oral submission available following summary applicant submissionsmr barter submits common ground test reasonableness set innorthern nsw local health district vheggie 19 mr barter submits starting point one would expect employer dealing employee 25 year standing would tread carefully respect shortcoming performance submits respondent refers total four incident two 2021 25 year m tagudin service mr barter submits harsh treatment circumstance would face unreasonable particular mr barter submits unreasonable take account failure shortcoming many year earlier submits respondent properly addressed aspect mr barter submits nub m tagudin case accepted responsibility shortcoming manager kept pressuring continued call office felt belittled claim supported mr beggs say continually called office saw mr zahra constantly harassing pulling mr barter submits m tagudin evidence supported medical evidence document told dr adriano dr khan dr scott called repeatedly meeting despite already provided statement happened mr barter submits m tagudin given consistent account claim treated recent invention mr barter submits m tagudin accepts incident 2017 properly dealt respondent mr barter submits common ground determine whether way m tagudin treated amounted bullying harassment nevertheless submits respondent action respect performance appraisal discipline unreasonable mr barter submits mr zahra simply obtain incident report m tagudin determine action take kept visiting incident calling office demanding explanation caused problem mr barter accepts formal meeting 2021 reasonable submits happened harassment reasonable submits respondent action reasonable otherwise reasonable meeting mr barter submits respondent addressed m tagudin evidence occurred incident 2021 submits allegation clear fromms tagudin statement medical evidence mr zahra responded denied evidence accepted reference toheggieat 59 mr barter submits enough respondent thought action reasonable broad view must taken extends whole process mr barter submits whole process includes happened otherwise reasonable meeting respondent submissionsmr robison refers principle inirwin v director general school education 20 submits test reasonableness objective one considering factor including right employer employee reference toheggie mr robison submits matter taking broad view generally respondent action relevant conduct concerning performance appraisal discipline broader question whether m tagudin subjected bullying relevant determining 11a defence period 2017 2021 mr robison submits m tagudin cannot way cannot rely long employment time saying responded regard earlier event mr robison submits m tagudin concedes statement incorrect label placed product 26 july 2021 respondent business manufacture food dispute great care need taken preparation mistake result serious repercussion including economic cost mr robison submits evidence show clear procedure respondent followed m tagudin made mistake issue whether felt continued pressured humiliated whether reasonable respondent obtain full information ensure error occur mr robison submits m tagudin feeling feeling pressured singled scapegoated clearly subjective state manager continued interrogate loaded term occurred whether mistake innocent respondent take action respect m tagudin evidence manager continued call throughout july august mr robison submits evidence little unclear however submits looked whole m tagudin made error food safety incumbent respondent take action overseen due recent concern treated differently mr masi disagrees made error refers worker give example mr robison submits respondent acted fairly took account m tagudin long history service doubt felt anxious employer cannot simply investigate would cause worker anxiety safety issue consumer real fact employee assistance program may effective relevant present inquiry mr robison submits m tagudin evidence respondent procedure fair asked give incident report able give version event informal process fair mr robison submits would give little weight mr beggs letter statement tainted hearsay speculation clear even m tagudin spoken say called office say mr zahra stood always looked like reprimanding say heard conversation say mr zahra manager saw harassing m tagudin say harassment comprised respect 2017 notice placed record 12 month mr robison submits statement notice prevent respondent regard sometime later behaviour followingirwin regard must detriment caused employer error including product recall reputational damage mr zahra 21 describes heavily regulated food industry reason respect m suapopo statement mr robison submits disagreement occurred seems error solely m tagudin regard mr masi statement thought earlier investigation proper mr masi think treated differently singled mr robison submits m novak statement describes procedure followed respondent including taking account m tagudin long service given additional training process assist return good standard according m novak meeting 10 august 2022 ended amicably suggestion nastiness raised voice mr robison submits respect m tagudin given procedural fairness overwhelming concern well including giving time referring employee assistance program mr robison submits evidence show quality m tagudin work seems declined respondent could ignore happened commission task trawl error process determine whether respondent action reasonable circumstance mr robison submits respondent discharged onus respect m tagudin capacity employment mr robison submits capacity accepted totality evidence make submission regard submission replymr barter submits dr adriano dr clark dr kahn took history m tagudin called meeting repeatedly caused feel embarrassed led anxiety distress mr barter submits action cause problem mr barter submits clear m tagudin statement gravamen claim made clear statement investigator subsequent statement available mr zahra provided supplementary statement 18 november 2022 addressed part claim evidence contrary respondent action otherwise reasonable meeting meant taken whole respondent action respect performance appraisal disciplinary action reasonable mr barter refers decision deputy president roche inattorney general v k 22 principle 52 concerning worker perception event considerationsection 11a 1 1987 act provides compensation payable act respect injury psychological injury injury wholly predominantly caused reasonable action taken proposed taken behalf employer respect transfer demotion promotion performance appraisal discipline retrenchment dismissal worker provision employment benefit worker respondent bear onus establishing balance probability defence m tagudin injury result action within meaning 11a 1 whole predominant cause injury action reasonable case dispute m tagudin sustained psychological injury arising course employment respondent dispute injury wholly predominantly result respondent action respect performance appraisal discipline performance appraisal discipline somewhat different meaning issue taken respondent formulation action way difference material circumstance case m tagudin claim subjected bullying harassment throughout employment respondent understand say conduct occurred least 2017 2021 mr robison submits agree whether conduct amounted bullying harassment whether m tagudin fact bullied harassed prior event around july august 2021 relevant issue determined relevant whether conduct time amounted bullying harassment sole issue determination whether respondent action respect performance appraisal discipline reasonable inirwin geraghty ccj said question reasonableness one fact weighing relevant factor test le demanding test necessity demanding test convenience test reasonableness objective must weigh right employee object employment whether action reasonable attended circumstance question fairness inheggie aja sackville said respect discipline equal application performance appraisal test reasonableness objective enough employer believed good faith action respect discipline caused psychological injury reasonable necessarily enough employer believed compelled act interest discipline indepartment education vsinclair 23 spigelman cj observed entire process must looked see reasonable action within 11a including looking circumstance surrounding action action m tagudin acknowledges two incident 2017 say acknowledged mistake learned evidence incident concern performance july 2021 mr barter submits unreasonable respondent take accountms tagudin failing many year earlier 2017 appears respondent place weight earlier error m tagudin alleged made error 2021 mr zahra state m tagudin made number serious mistake short time refers number significant error 24 state aware already issued third final warning prior last incident likely terminated result investigation respondent letter dated 10 august 2021 refers final warning refers incident 26 july 2021 however appears respondent take account warning issued previously 2017 mr zahra evidently placed weight referred incident detail statement dated1 november 2021 stated determined issue m tagudin formal final warning assuming respondent took account 2017 incident together incident 26 july 2021 persuaded necessarily unreasonable true evidence m tagudin performance called question interim also true warning letter 2017 stated would remain personal record 12 month date incident also stated failure within following 12 month would result termination employment m tagudin state respondent failed adhere policy failing clear incident personal record one year lapsed assuming respondent policy really clear mean unlikely mean record incident warrant warning wiped employee record event despite second warning letter issued le three month first 2017 appear action taken time terminate m tagudin employment first letter warned whatever reason m tagudin benefit respondent inaction moreover appear long year service taken account 2021 termination action suspended incident on26 july 2021 reason would depend circumstance case whether taking account incident year earlier reasonable insinclair spigelman j said entire process including circumstance surrounding action must looked see reasonable action withins 11a however circumstance case think entire process extends incident 2017 interim july 2021 even incident 2017 played part respondent dealt happened 2021 m tagudin acknowledges made mistake 2017 understand complain way dealt following sequence event dispute first incident 2021 occurred on26 july 2021 m tagudin asked provide written report provided statement dated 27 july 2021 25 10 august 2021 attended meeting mr zahra andms novak mr masi also attended letter dated 10 august 2021 mr zahra wrote documenting outcome meeting advising determined matter would attract disciplinary action letter considered final warning incident 13 august 2021 m tagudin provided statement dated19 august 2021 26 around 1 september 2021 handed letter mr zahra inviting attend meeting following day connection second incident attend meeting returned work since history show event 2021 spanned period 26 july 2021 around1 september 2021 m tagudin complain process issuing letter 2021 occurred meeting 10 august 2021 mr barter acknowledges otherwise reasonable process m tagudin claim respondent action meeting particular mr zahra rendered otherwise reasonable process reasonable m tagudin state manager kept asking repeat meeting would page office repeatedly request information would constantly request repeat meeting called meeting every two three day dr adriano took history 7 september 2021 9 september 2021 m tagudin going back forth office called repeatedly office affecting mental health dr clark took similar history 22 november 2021 anddr khan took similar history 22 april 2022 real challenge made m tagudin evidence happened incident 26 july 2021 left work challenge made doctor record report point whether felt bullied harassed intimidated happening mr barter referred principle ina g v kbut concern issue causation particular relevance worker perception event test reasonableness purpose 11a objective principle g v k assist issue whether respondent action viewed objectively entirety reasonable mr robison acknowledges evidence unclear m tagudin evidence manager continued call throughout july august however submits incumbent respondent take action given nature business potential consequence error consumer business alike mr robison submits respondent monitor supervise m tagudin ensure repeat error evidence submitted respondent high degree regulation imposed food manufacturing industry potential consequence error business mr zahra statement dated 18 november 2022 however challenge made evidence mr robison submission accept matter common knowledge safety food manufacturing industry critical importance accept employer respondent take action error occur difficulty submission respondent provided almost evidence counter m tagudin claim called repeatedly meeting throughout july august 2021 explain purpose purpose closely monitoring supervising performance mr robison submits evidence effect mr zahra provided statement dated 18 november 2022 response m tagudin statement aware claiming asked explain action repeatedly causing psychological symptom stated knowledge interviewed management really addressed claim specificity disputed claim statement difficult reconcile submission closely monitored supervised period declining performance repeated error reason submitted mr robison place weight mr beggs statement absence better evidence respondent contrary accept m tagudin claim continued asked explanation occurred july 2021 august 2021 provided statement occurred given formal warning incident 26 july 2021 whether believed incident dealt point mr zahra statement knowledge interviewed management respondent countered claim provided explanation necessary call questioning repeatedly claim find occurred 26 july 2021 around 1 september 2021 formed part performance appraisal discipline process overall played significant part causing m tagudin anxiety distress satisfied evidence reasonable action persuaded respondent discharged onus establishing balance probability m tagudin psychological injury wholly predominantly caused reasonable action respect performance appraisal discipline respect m tagudin capacity employment challenge made claim weekly benefit 22 december 2021 continuing party agree piawe pleaded ard noting indexed figure award applicant payment weekly compensation accordance claim ard liberty apply respect calculation also award medical expense pursuant 60 1987 act 1 ard page 16 2 ard page 1 3 ard page 11 4 ard page 99 5 ard page 98 6 ard page 97 7 ard page 97 8 ard page 39 9 reply page 87 10 respondent aald file 9 january 2023 11 reply page 2 statement taken 1 november 2021 signed 29 october 2021 12 reply page 9 13 reply page 5 14 respondent aald page 11 15 respondent aald page 13 16 reply page 7 17 reply page 67 18 reply page 85 19 northern new south wale local health network vheggie 2013 nswca 255 heggie 20 irwin v director general school educationcompensation court nsw geraghty ccj 18 june 1998 14068 1997 unreported irwin 21 17 22 attorney general v k 2010 nswwcpd 76 g v k 23 department education v sinclair 2005 nswca 465 4 ddcr 206 sinclair 24 statement dated 18 november 2022 10 12 25 reply page 80 26 reply page 75 |
Construction, Forestry, Maritime, Mining and Energy Union [2022] FWCA 1545 (10 May 2022).txt | construction forestry maritime mining energy union 2022 fwca 1545 10 may 2022 last updated 9 june 2022 2022 fwca 1545fair work commissiondecisionfair work act 2009s 185 enterprise agreementconstruction forestry maritime mining energy union ag2022 1268 stillitano concrete pty ltd trustee stillitano concrete unit trust cfmeu victorian construction general division subcontractor concrete placement enterprise agreement 2020 2023building metal civil construction industriescommissioner johnssydney 10 may 2022application approval stillitano concrete pty ltd trustee stillitano concrete unit trust cfmeu victorian construction general division subcontractor concrete placement enterprise agreement 2020 2023 1 application made approval enterprise agreement known thestillitano concrete pty ltd trustee stillitano concrete unit trust cfmeu victorian construction general division subcontractor concrete placement enterprise agreement 2020 2023 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 pursuant tos 202 4 act model flexibility term prescribed thefair work regulation 2009is taken term agreement 4 construction forestry maritime mining energy union bargaining representative agreement given notice 183 act want agreement cover accordance withs 201 2 note agreement cover organisation 5 agreement approved accordance 54 act operate 17 may 2022 nominal expiry date agreement 30 june 2023 commissionerprinted authority commonwealth government printer ae515909pr741392 |
IRONS v IRONS & ANOR [2007] SADC 54 (14 May 2007).txt | iron v iron anor 2007 sadc 54 14 may 2007 last updated 16 may 2007district court south australia civil application 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 iron v iron anor 2007 sadc 54reasons decision honour judge millsteed14 may 2007real propertyapplication order time removal caveat extended order application opposed defendant defendant son owed plaintiff approximately 360 000 child maintenance payment defendant purchased unit plaintiff live plaintiff made capital improvement unit defendant entered contract sale property plaintiff lodged caveat property claiming estate interest beneficiary constructive trust alternatively life tenant discussion authority applicable application discussion authority whether constructive trust created held though plaintiff prima facie caveatable interest balance convenience favour refusal application application refused real property act 1886 sa s191 e referred whallin v bailbart investment pty ltd 1987 47 sasr 198 australian broadcasting corporation v neill 2006 hca 46 2006 229 alr 457 union finance pty ltd others v rateki pty ltd anor 2 2007 sasc 11 jakudo pty ltd v sa telecaster ltd 2 1997 sasc 6370 1997 69 sasr 440 mushinski v dodds 1985 hca 78 1985 160 clr 583 baumgartner v baumgartner 1987 hca 59 1987 164 clr 137 windt v carabelas 2002 224 lsjs 124 giumelli v giumelli 1999 hca 10 1999 196 clr 101 inwards v baker 1965 ewca civ 4 1965 1 er 446 vinden v vinden 1982 1 nswlr 618 milton v proctor 1988 4 bpr 9654 sharpe 1980 1 wlr 219 jenke anor v chaplinunreported judgment scwa 2034 1994 delivered 27 october 1994 pearce v pearce 1977 1 nswlr 170 discussed iron v iron anor 2007 sadc 54introduction1this application plaintiff pursuant tos 191of thereal property act 1886 rpa order time removal caveat land situated unit 3 22 tennyson street kurralta park extended order application opposed defendant registered proprietor property affidavits2on 17 january 2007 affidavit plaintiff solicitor william sowden degaris filed support application affidavit mr degaris filed 2 february 2007 31 january 2007 affidavit first defendant raymond iron brett donald williams bronte halkett filed behalf defendant last deponent disputed certain aspect plaintiff assertion 3on hearing application mr halloran counsel defendant properly conceded view must proceed basis factual assertion made plaintiff affidavit would finding fact made court trial however submitted ignore second affidavit mr degaris based inadmissible opinion hearsay unnecessary canvas content impugned affidavit suffice say agree mr halloran submission 4accordingly proceed basis plaintiff assertion set affidavit ignore second affidavit mr degaris also take account affidavit material filed behalf defendant extent conflict plaintiff assertion background facts5the relevant fact briefly stated defendant parent plaintiff late husband dean iron plaintiff separated dean iron 1982 divorced early 2002 died august 2002 plane crash marriage produced four child whose age range 27 33 year dispute plaintiff defendant enjoyed good relationship year 6at time death dean iron owed plaintiff approximately 360 000 child maintenance payment 1995 plaintiff instituted child support agency proceeding dean iron recovery child maintenance payment owed action included claim iron engineering pty ltd iepl dean iron held interest company owned controlled defendant 7after proceeding instituted first defendant asked plaintiff terminate action expressing concern would financially suffer action succeeded promised plaintiff would look child discontinued proceeding basis promise plaintiff dropped action 8in mid 2002 first defendant told plaintiff son dean never looked going buy property child plaintiff believed honouring promise made 1995 9on 23 september 2002 defendant purchased unit kurralta park name however time purchase first defendant told plaintiff unit sole occupation child wish live longer first defendant informed plaintiff defendant purchase unit name want future partner plaintiff interest property 10since plaintiff lived unit required pay rent defendant paid rate tax property however plaintiff spent approximately 15 000 20 000 money improving unit capital improvement included installation floating wooden floor dishwasher carpeting hallway lounge room paving backyard landscaping rear front garden plaintiff occupation unit number occasion first defendant told friend acquaintance plaintiff presence unit purchased exclusive occupation name defendant prevent future partner plaintiff acquiring interest 11on 28 december 2006 defendant entered contract sale unit sum 275 000 date settlement since passed accept defendant submission enter contract purpose frustrating plaintiff claim earlier year iepl went liquidation first defendant wife received financial return administration company result became necessary defendant retired sell property kurralta park fund living expense defendant asset family home unit west lake two motor vehicle value disclosed 7 000 bank account caveat12on 16 november 2006 five week defendant entered contract sale plaintiff presumably discovered defendant intended sell unit lodged caveat defendant property kurralta park claiming estate interest beneficiary constructive trust entered 23rdof september 2002 caveatees trustee caveator claim interest land beneficiary presently entitled fee simple land presently entitled exclusive use occupation land life tenant pursuant term constructive trust 13on 4 january 2007 registrar general served upon plaintiff notice warning removal caveat pursuant tos191 e f proceedings14on 17 january 2007 plaintiff filed summons seeking extension time removal caveat 23 january 2007 made order extending time removal caveat 1 february 2007 enable full argument take place also granted plaintiff leave file amended summons 15by amended summons filed 31 january 2007 plaintiff seek order time removal caveat extended order declaration defendant hold unit upon trust plaintiff defendant estopped denying plaintiff beneficial owner unit 16on 1 february 2007 heard party made order extending time removal caveat delivery decision test17inwhallin v bailbart investment pty ltd 1 cox j held test determining whether order made extending time removal caveat test grant interlocutory injunction whether serious question tried whether order made balance convenience 18recently inaustralian broadcasting corporation v neill 2 thehigh court majority gleeson cj crennan j gummow hayne jj held relevant principle applied determining application injunctive relief explained high court inbeecham group ltd v bristol laboratory pty ltd 3 inbeecham kitto taylor menzies owen jj said court faced application needed consider following issue 4 first whether plaintiff made prima facie case sense evidence remains probability trial action plaintiff held entitled relief second inquiry whether inconvenience injury plaintiff would likely suffer injunction refused outweighs outweighed injury defendant would suffer injunction granted 19inunion finance pty ltd others v rateki pty ltd anor 2 5 judge lunn expressed view extension time remove caveat prima facie rather serious question tried test used together balance convenience view significant difference expression test provided applied manner explained majority ino neill 20gleeson cj crennan j referring tojakudo pty ltd v sa telecaster ltd 2 6 said 7 doyle cj said last mentioned case application interlocutory injunction court ask whether plaintiff shown serious question triedas plaintiff entitlement relief shown plaintiff likely suffer injury damage adequate remedy shown balance convenience favour granting injunction organising principle applied regard nature circumstance case issue justice convenience addressed agree explanation organising principle reason gummow hayne jj reiteration doctrine court established inbeecham group ltd v bristol laboratory pty ltdshould followed emphasis 21gummow hayne jj explained 8 using phase prima facie case honour inbeecham mean plaintiff must show probable trial plaintiff succeed sufficient plaintiff show sufficient likelihood success justify circumstance preservation status quo pending trial sense court referring notion prima facie case apparent observation effect made kitto j course argument 22they went say strength probability required depends nature right applicant asserts practical consequence likely flow order sought 23gummow hayne jj later observed 9 whenbeechamandamerican cyanamidare read understanding issue determination appreciation similarity outcome much assumed disparity principle loses force objection use phrase serious question understood conveying notion seriousness question like strength probability referred inbeecham depends upon consideration emphasised inbeecham 24so qualification mind objection continued use phrase serious question tried caveatable interests25section 191of rpa allows person claiming interested law equity land lodge caveat registrar general forbidding registration dealing land 26any existing interest law equity proprietary nature support lodgement extension caveat 10 however purely personal contractual right insufficient 11 example mere licence use occupy land creates proprietary right interest land may revoked licensor upon giving reasonable notice accordingly licence make caveatable interest land 12 interest claimed plaintiff27in present case plaintiff assert legal right transfer property indeed could claim right agreement evidenced writing effect 13 rather plaintiff asserts equitable interest property basis described several way 28as earlier observed caveat plaintiff claim beneficiary constructive trust entitlement fee simple land alternative right exclusive use occupation land life tenant amended summons however plaintiff claim interest land life tenant seek declaration defendant hold whole land upon trust defendant estopped denying beneficial owner land affidavit 16 january 2007 plaintiff asserts intends bring action claiming defendant hold property upon constructive trust life thereafter benefit child 29on hearing application mr riggall counsel plaintiff agreed lack consistency description plaintiff claim put understood argument plaintiff contends entitled beneficial ownership property alternative interest life long wish occupy unit thereafter child constructive trust imposed recognise interest 30as matter general principle constructive trust remedial nature serf remedy equity imposes regardless actual presumed agreement intention preclude retention assertion beneficial ownership property extent retention assertion would contrary equitable principle 14 remedy imposed accordance court think fair 15 rather foundation imposition constructive trust refusal recognise existence equitable interest amount unconscionable conduct trust imposed remedy circumvent unconscionable conduct 16 however use remedy depends person seeking relief establishing existence equitable right 17 31in present case constructive trust sought founded first defendant promise plaintiff entitled sole occupation unit life long desired thereafter child basis promise plaintiff spent approximately 15 000 20 000 money capital improvement plaintiff contends circumstance would unconscionable defendant deny beneficial ownership life interest property plaintiff maintains prima facie case would unconscionable defendant assert legal right exclusion interest constructive trust imposed give effect 32mr halloran counsel defendant argued plaintiff failed establish existence equitable interest property upon constructive trust could founded submitted plaintiff may licence occupy unit life long liked possibly equitable estoppel would entitle compensation relation capital improvement made submitted interest le proprietary interest cannot justify extension caveat prima facie case33has plaintiff established equitable basis imposition constructive trust 34the court shown willingness impose constructive trust requiring legal owner land hold land trust another circumstance person made contribution acquisition maintenance renovation property pursuant joint endeavour relationship failed circumstance blame cannot attributed either party two leading case high court decision inmushinski v dodds 18 andbaumgartner v baumgartner 19 35inmushinskia man woman living de facto relationship purchased property intention building house restoring cottage property property conveyed tenant common woman contributed 25 000 man 2 500 purchase improvement property court declared party held respective legal interest tenant common upon trust repay respective contribution venture 36deane j mason j agreed said 20 predominately remedial character accepted reason deny availability constructive trust case principle law equity call imposition upon legal owner property regardless actual presumed agreement intention obligation apply property benefit another 37deane j concluded appropriate impose constructive trust circumstance case give effect general equitable principle restores party contribution made joint endeavour fails contribution made circumstance intended party enjoy 21 38inbaumgartnerthe party defacto relationship pooled income living expense lived unit owned male partner sold unit purchased house placed name house purchased aid mortgage also name male contributed approximately 55 per cent income female approximately 45 per cent income pooled fund used meet expense including mortgage repayment later separated man claimed land sole property 39the high court held case warranted intervention equity imposition constructive trust mason cj wilson deane jj considered party pooled earnings purpose joint relationship mutual security benefit honour went say 22 case accordingly one party pooled earnings purpose joint relationship one purpose relationship secure accommodation child contribution financial otherwise acquisition land building house purchase furniture making home basis purpose joint relationship situation appellant assertion relationship failed property property beneficially exclusion interest part respondent amount unconscionable conduct attracts intervention equity imposition constructive trust suit respondent 40the court concluded constructive trust imposed declare beneficial interest party proportion 55 per cent male 45 per cent female 41sincebaumgartnerthere number case court imposed constructive trust favour member relationship made financial contribution form contribution pooling labour resource relationship 23 however common case high court decision inmushinskiandbaumgartner party contributed financially otherwise joint endeavour involving acquisition maintenance renovation property imposition construction trust case remedial response application established equitable principle restores party contribution made joint endeavour 42by contrast inwindt v carabelas 24 full court upheld trial judge decision basis imposition constructive trust evidence failed establish contribution made mistress land owner pursuance joint endeavour 43in present case financial contribution plaintiff made form capital improvement property made context purpose joint endeavour circumstance basis application principle expressed inmushinskiandbaumgartner 44is equitable basis imposing constructive trust 45mr halloran submitted far aware correct apart joint endeavour case case court constructed trust recognise beneficial ownership property person relied upon representation future acquisition property suffered detriment result 46the leading case isgiumelli v giumelli 25 son worked orchard property belonging parent parent owned property partnership agreement brother later admitted promised portion property working without wage later told could build residence property residence would residence constructed property partly paid balance partnership married promised portion property upon residence built provided stayed property marriage ended divorce chose wife parent disapproved told would choose wife property instituted proceeding parent claiming beneficial interest portion property promised 47the high court held son acted detriment promise made therefore entitled equitable relief prima facie entitled order creation conveyance promised portion land term constructive trust however court considered order would cause unfairness one brother also lived property family also inappropriate reason pending action relating family partnership court considered avoid injustice others avoid relief went beyond required conscientious conduct plaintiff parent appropriate grant relief form monetary compensation rather acquisition title land 48the case ofgiumelli others like far removed present case promise ownership rather promise sole occupation long plaintiff desired furthermore difficult accept plaintiff would believed ownership unit given required pay rate tax land view basis equity upon could said plaintiff entitled beneficial ownership property 49is basis upon plaintiff could claim caveatable interest property 50ingiumelli gleeson cj mchugh gummow callinan jj joint judgment observed relief form constructive trust akin order conveyance made indillwyn v llewelyn 26 andriches v hogben 27 51their honour added case equity founded relief obtained found assumption future acquisition ownership property induced representation upon detrimental reliance plaintiff well recognised variety estoppel understood equity may found relief requires taking active step defendant 52the variety estoppel honour referring proprietary estoppel 28 application form estoppel extends beyond case likegiumelli 53dal pont chalmers 29 provide following explanation doctrine proprietary estoppel proprietary estoppel operate prevent owner interest property asserting right another party allowed encouraged deal interest act relation property latter right said property traditionally form estoppel divided two category representor encouraged expenditure property representation benefit estoppel encouragement 30 representor acquiesced expenditure developed estoppel acquiescence 31 equity created expenditure question could beneficial interest may given effect way charge lien 54in view form estoppel could operate prevent defendant asserting right plaintiff reason fact acquiesced expenditure property circumstance led believe first defendant right occupy property long desired arguably sufficient give rise proprietary interest even plaintiff occupation unit licence defendant contend 55this view accord several authority dealing expenditure occupant land circumstance giving rise proprietary estoppel 56ininwards v baker 32 defendant induced father build bungalow father land expended money purpose expectation allowed remain following death father trustee father estate sought evict basis merely licence occupy premise revoked court appeal held entitled remain bungalow 57lord denning member court agreed said 33 advantage case cited county court judge case last century notablydillwyn v llewelyn andplimmer v wellington corpn latter decision privy council expressly affirmed approved statement law made lord kingsdown inramsden v dyson quite plain authority owner land request another indeed allows another expend money land expectation created encouraged landlord able remain raise equity licensee entitle stay licence coupled equity counsel plaintiff put case purchaser suggested father could sell land purchaser would get defendant think purchaser took notice would clearly bound equity equity well recognised law arises expenditure money person actual occupation land led believe result expenditure allowed remain court say way equity satisfied quite clear case satisfied holding defendant remain long desire use home citation omitted 58see alsovinden v vinden 34 59but expenditure improvement land give rise proprietary interest 60inmilton v proctor 35 court appeal nsw occasion consider whether plaintiff acted unconscionably terminating licence occupy cottage defendant expended money land cottage belief entitled occupy life trial judge decision would unconscionable plaintiff obtain possession provided compensation paid defendant approved 61the discussion mchugh j principle governing licence use occupy land germane case 62his honour said 36 licence agreement created interest land could revoked plaintiff cowell v rosehill racecourse co ltd possessory right land owner cannot renounced altered mere contract continue exist notwithstanding contract made owner contract operates impose obligation prevent exercise right arising property owner land cowell v rosehill racecourse co ltd hence grant licence go land raise equity subsequent revocation course revocation licence constitutes breach contract licensee may obtain damage breach citation omitted however licensor request permit another expend money licensor land expectation created encouraged licensor licensee able remain land equity raised entitles licensee stay inwards v baker thus invinden v vindenneedham j held irrevocable licence defendant undertook meet financial obligation father return right live father house see alsomorris v morris however expenditure improvement land licensee licensor knowledge create equity 63his honour considered position would licensor conferred right entry upon land although actually inducing encouraging licensee expenditure know incurred honour cited approvalin sharpe 37 following passage browne wilkinson j 38 strict case proprietary estoppel plaintiff expended money defendant property expectation encouraged known defendant plaintiff either owns property interest conferred recent authority extended doctrine judgment established party proceeded common assumption plaintiff enjoy right reside particular property reliance assumption plaintiff expended money otherwise acted detriment defendant allowed go back common assumption court imply irrevocable licence trust give effect common assumption 64mchugh j concluded 39 accordingly think equity prevent licensor revoking licence period licence agreement licensee expended money land upon common assumption licensee right reside land equity created constitutes interest land plimmer v mayor etc wellington dhn food distributor ltd v tower hamlet london borough council sharpe nature equity measured extent equity give licensee protection interference equity cfstern v mc arthur emphasis 65the passage support view person expended money improving land proprietary estoppel may give rise interest land though something le beneficial ownership interest would sufficient support caveat earlier observed interest equity land sufficient s191 66indeed injenke anorv chaplin 40 fact far removed case white j supreme court western australia held basis principle expressed ininwards v baker defendant caveatable interest expended money construction granny flat plaintiff property belief wife would entitled remain occupation flat life observed inpearce v pearce 41 helsham cj left open possibility equitable interest woman occupying premise irrevocable licence sufficient basis lodgement caveat 67though point may free doubt view prima facie case plaintiff caveatable interest would unconscionable conduct part defendant evict plaintiff circumstance expended money improvement unit basis belief induced first defendant representation sole occupation unit life even entitled share beneficial ownership property merely licence occupy premise life equity would prevent defendant revoking licence equity created constitutes interest land 68for reason satisfied plaintiff prima facie caveatable interest balance convenience69in deciding whether balance convenience favour plaintiff court must consider risk injustice party either granting refusing application 42 70it relevant bear mind plaintiff succeed action defendant basis identified would necessary court consider form relief gave sufficient recognition plaintiff equity view likely court would consider order monetary compensation rather order prevented defendant selling property regaining possession 43 market value property approximately 260 000 280 000 small proportion could regarded attributable capital improvement made defendant furthermore necessary defendant sell property raise money upon live apart home limited asset little money bank 71in circumstance cannot said plaintiff established balance convenience favour orders72application extension time removal caveat refused 73i hear party cost 1 1987 47 sasr 198at 203 2 union finance pty ltd or v rateki pty ltd anor 2 2007 sasc 11at 7 per master lunn australian broadcasting corporation v neill 2006 hca 46 2006 229 alr 457at 478 480 per gummow hayne jj 466 per gleeson cj crennan j 3 1968 hca 1 1968 118 clr 618 4 ibid 622 3 5 2007 sasc 11at 466 6 1997 sasc 6370 1997 69 sasr 440 7 2006 hca 46 2006 229 alr 457at 19 footnote omitted 8 2006 hca 46 2006 229 alr 457at 473 9 2006 hca 46 2006 229 alr 457at 479 10 colbran jackson 3rd ed 1996 5 1 mcmahon v mcmahon 1979 vicrp 23 1979 vr 239 pile caveat 1981 qd r 81 11 cowell v rosehill racecourse co ltd 1937 hca 17 1937 56 clr 605 12 la martina v penney 1968 sasr 411 13 sees29of thelaw property act 1936 sa 14 muschinski v dodds 1985 hca 78 1985 160 clr 583 per deane j 614 baumgartner v baumgartner 1987 hca 59 1987 164 clr 137 per mason cj wilson deane jj 148 150 15 muschinski v dodds 1985 hca 78 1985 160 clr 583 per deane j 616 baumgartner v baumgartner 1987 hca 59 1987 164 clr 137 per mason cj wilson deane jj 148 16 baumgartner v baumgartner 1987 hca 59 1987 164 clr 137 per mason cj wilson deane jj 147 150 17 seewindt v carabelas 2002 224 lsjs 124 morton v morton 1999 sasc 368 18 1985 hca 78 1985 160 clr 583 19 1987 hca 59 1987 164 clr 137 20 1985 hca 78 1985 160 clr 583at 616 617 21 baumgartner v baumgartner 1987 hca 59 1987 164 clr 137at 147 148 22 1987 hca 59 1987 164 clr 137at 149 23 see discussion authority inbryson v bryant 1992 29 nswlr 188 per kirby p 202 203 parij v parij 1997 sasc 6771 1997 72 sasr 153 green v green 1989 17 nswlr 343 miller v sutherland 1990 14 fam lr 416 sabri 1996 21 fam lr 213 lloyd v tedesco 2002 wasca 63 2002 25 war 360 24 2002 224 lsjs 124lander j 133 25 1999 hca 10 1999 196 clr 101 see alsomorton v morton 1999 sasc 368 26 1862 4 de gf j 517 523 45 er 1285 1287 27 1985 2 qd r 292at 362 28 see discussion giumelli v giumelliby bradbrook mccallum p moore australian real property law 3rd ed 2002 5 46 29 g dal pont chalmers equity trust australia 3rd ed 2004 30 citingdillwyn v llewelyn ibid 31 citingramsden v dyson 1866 lr 1 hl 129 32 1965 ewca civ 4 1965 1 er 446 33 1965 ewca civ 4 1965 1 er 446at 448 449 34 1982 1 nswlr 618 35 1988 4 bpr 9654 36 1988 4 bpr 9654 9660 37 1980 1 wlr 219 38 1980 1 wlr 219at 223 39 1988 4 bpr 9654 9661 40 unreported judgment scwa 2034 1994 delivered 27 october 1994 41 1977 1 nswlr 170 42 national bank ltd v zollo 3 1995 sasc 4988 1995 64 sasr 63at 68 43 seegiumelli v giumelli 1999 hca 10 1999 196 clr 101at 113 milton v proctor 1988 4 bpr 9654 |
Nyoni v Murphy [2017] FCA 941 (16 August 2017).txt | nyoni v murphy 2017 fca 941 16 august 2017 last updated 26 october 2017federal court australianyoni v murphy 2017 fca 941file number wad 193 2017judge barker jdate judgment 16 august 2017catchwords bankruptcy application extension time appeal sequestration order made proceeding primary judge bankruptcy notice underlying creditor petition sought payment cost order awarded related proceeding related proceeding still foot whether primary judge failed consider prospect applicant succeeding appeal remaining solvent sufficient cause adjourn dismiss petition applicant claimed abuse processlegislation bankruptcy act 1966 cth case cited murphy v nyoni 2017 fcca 143nyoni v chee koon hee 4 2013 fca 948nyoni v shire kellerberrin 7 2016 fca 135nyoni v shire kellerberrin 8 2016 fca 245nyoni v shire kellerberrin 2017 fcafc 59date hearing 18 july 2017date last submission 3 august 2017registry western australiadivision general divisionnational practice area commercial corporationssub area general personal insolvencycategory catchwordsnumber paragraph 77counsel applicant applicant appeared personcounsel respondent mr c beethamsolicitor respondent state solicitor officetable corrections23 october 2017in quoted portion judgment 18 24 excluding 21 word mr nyonis appear replaced word applicant 23 october 2017in quoted portion judgment 21 following word following word word mr nyoni replaced word applicant orderswad 193 2017between emson nyoniapplicantand jillian murphyfirst respondenttheresa beechsecond respondentchief executive officer department health wathird respondentjudge barker jdate order 16 august 2017the court order application extension time appeal dismissed applicant pay respondent cost assessed agreed note entry order dealt rule 39 32 thefederal court rule 2011 reason judgmentbarker j various time since 2010 mremsonnyonihas engaged litigation theshireof kellerberrin certain representative department health western australia certain representative result cost order made favour respondent proceeding along way mr nyoni subject sequestration order federal circuit court australia 17 february 2017 became bankrupt seemurphy v nyoni 2017 fcca 143 order made application present respondent mr nyoni seek appeal order backgroundsomething background dispute involving mr nyoni present respondent gleaned introduction reason judgment north rares jj recent decision full court court innyoni v shire kellerberrin 2017 fcafc 59 1 4 emsonnyoni appellant pharmacist migrated australia zimbabwe 2003 bought operated early 2013 onlypharmacyin kellerberrin western australia mr nyoni brought proceeding shire kellerberrin first respondent two successive chief executive officer frankpeczkaand darrenfriend fourth second respondent president stanmcdonnell third respondent electrical contractor petermitchell fifth respondent primary judge careful thorough judgment dealt five substantive cause action mr nyoni relied claim mr peczka shire acted concert robertbateman senior investigating officer healthdepartment trespassing upon mr nyoni pharmacy property october 2007 2007 trespass claim b shire one agent officer made disparaging statement mr nyoni business thereby engaged misleading deceptive conduct malicious falsehood false statement claim c shire mr friend mr mcdonnell liable joint tortfeasor mr mitchell trespassing upon mr nyoni property course disconnecting electricity supply mr nyoni pharmacy march 2010 october 2010 2010 trespass claim conduct mr friend mr mcdonnell relation disconnection electricity supply mr nyoni pharmacy 14 october 2010 amounted misfeasance public office misfeasance claim e shire engaged misleading deceptive conduct publishing minute shire council meeting disparaged mr nyoni pharmacy business minute claim primary judge found mr nyoni favour one aspect 2010 trespass claim held mr mitchell committed trespass pharmacy 14 october 2010 intentionally entered remained premise without consent owner lawful authority course disconnected electricity without lawful basis honour awarded mr nyoni 12 000 damage mr mitchell included 4 000 aggravated damage ordered mr mitchell pay mr nyoni cost relation issue however honour dismissed cost mr nyoni claim shire messrs peczka friend mcdonnell including balance 2010 trespass claim recently partially successful appealin appeal mr nyoni appeal allowed part majority dowsett j dissenting court upheld claim mr nyoni damage misfeasance claim remitted assessment damage respect tort question cost primary proceeding primary judge proceeding otherwise appeal dismissed cost court ordered shire andmrdarrenfriendpay 50 mr nyoni cost appeal respect ground appeal shire mr friend appeal however involve present respondent full court decision subject application special leave appeal high court australia unsuccessful respondent earlier cost orderin another earlier proceeding court wad154 2013 mr nyoni sought relief 12 respondent including present respondent chief executive officer department health ninth respondent msjillian incorrectly referred jullian previous judgment murphy tenth respondent andmstheresabeech twelfth respondent judge court dismissed claim three respondent indeed respondent cost basis mr nyoni reasonable prospect success seenyoni v chee koon hee 4 2013 fca 948 subsequent proceeding wad382 2013 mr nyoni ordered pay additional cost incurred respondent application extension time seek leave appeal decision order wad 154 2013 refused assessed cost two proceeding paid mr nyoni present respondent served bankruptcy notice 17 july 2015 satisfied respondent filed creditor petition thebankruptcyact1966 cth federal circuit court australia 2 february 2016 bankruptcy proceeding primary judgein bankruptcy proceeding respondent relied failure mr nyoni comply bankruptcy notice served bankruptcy notice specified non payment initial cost order sum 64 685 wad154 2013 well nonpayment subsequent cost order sum 16 619 50 wad382 2013 regard term thebankruptcyact mr nyoni committed act bankruptcy failed comply bankruptcy notice 7 august 2015 mr nyoni opposed making sequestration order advanced four ground opposition judge ultimately satisfied first requirement making sequestration order satisfied judge considered secondly mr nyoni position pay debt owed within reasonable time regard noted mr nyoni provided evidence cashflow asset liability noting cost order constituted unpaid debt total sum 81 304 50 judge concluded mr nyoni solvent led evidence demonstrate mean may pay outstanding debt either presently within reasonable time sale realisable asset judge considered thirdly whether sufficient cause sequestration made noting expression sufficient cause confers unconfined discretion court purpose dismissing creditor petition judge dealt four ground opposition advanced mr nyoni first ground act bankruptcy relied upon creditor abuse process particular given particular alleged collusion person connected shire express purpose sabotaging mr nyoni appeal wad734 2016 shown order honourable justice mortimer note appeal wad734 2016 appeal referred 3 5 mr nyoni ultimately partially successful full court judge 42 decision set mr nyoni relevant submission support first ground tort abuse process lie process court employed purpose designed providing damage suffered every court power stay proceeding amount abuse court process person maintains support legal proceeding without direct interest may liable damage tort maintenance maintainer agrees support proceeding consideration share decision constitutes tort champerty action defeated defendant establish common interest sufficient justify maintenance m murphy fabricated criminal charge mr nyoni 2013 led proceeding p63 2015 wad 347 2014 wad 734 2015 still foot chronology event discloses applicant applied sequestration order undermine mr nyoni appeal order succeed action collateral abuse process necessary allege prove initial proceeding terminated favour mr nyoni reasonable probable cause instituting initial proceeding however essential mr nyoni show applicant instituted proceeding purpose effect object beyond legal process offered purpose crucial importance sufficient assert proceeding instituted improper motive ulterior objective need identified also need able seen predominant purpose proceeding outweighing legitimate purpose might otherwise andthe relevant proceeding high court federal court administrative appeal tribunal aat establish principle inwilliams or v spautz 1992 hca 34 1992 174 clr 509 1992 61 crim r 431 1992 66 aljr 585 1992 107 alr 635 1992 34 ailr 373 williams engaged applicant engaged abuse process petition ought dismissed ultimately reciting number feature stage litigation mr nyoni shire m murphy others referred judge concluded 56 58 reason judgment follows nothing circumstance innyoni 7 provides relevant point distinguishment matter consideration innyoni 7 18 20 per mortimer j presently court follows therefore court must find improper purpose made reason particular ground 1 court observes event conclusion would reached fact applicant mr nyoni indebted inconsiderable sum 81 304 50 entitled present petition heard circumstance debt arises cost awarded proceeding federal court evidence apart mere assertion mr nyoni applicant bringing proceeding purpose legitimate end obtaining sequestration order assertion mr nyoni m murphy fabricated criminal charge mr nyoni 2013 led various proceeding high court federal court establish present proceeding brought improper purpose event nature alleged charge might establish improper purpose purpose proceeding subject evidence either first second nyoni affidavit thus proper factual basis assertion made circumstance heavy onus establish abuse process basis establishing sufficient cause unders 52 2 b thebankruptcy acthas met mr nyoni relation ground 1 ground 1 therefore made ground 2 mr nyoni opposition applied high court federal court administrative appeal tribunal judgment debt subject petition set aside defence claim made creditor petition dismissed judge noted submission mr nyoni made support ground 2 follows proceeding wad 316 2010 wad 154 2013 wad 382 2013 wad 357 2014 wad 734 2015 applicant inextricably linked petition ought dismissed basis mr nyoni substantial claim applicant proceeding referred important distinction made cross claim likely succeed cross claim bona fide reasonably arguable claim former case established claim likely succeed claim may warrant refusal sequestration order rigg v baker 2006 fcafc 179 2006 155 fcr 531 2006 236 alr 629 2006 4 abc n 419 66 per french j singh v deputy commissioner taxation 2011 fca 889 singh 14 per collier j andwhere established claim likely succeed case may warrant refusal sequestration order case category fit withins 52 2 b thebankruptcy actinclude st george bank ltd v helfenbaum 1999 fca 1337at 13 per sundberg j icm agriculture pty ltd v young 2009 fca 1169 2009 260 alr 515 2009 7 abc n 97 85 per lindgren j hilellis v mobil oil australia ltd 2000 fca 1139at 8 per hely j singhat 14 per collier j totev 2008at 85 87 per cowdroy j proceeding wad 257 2014 wad 734 2015 p64 2015 together aat process establish claim likely succeed warrant refusal sequestration order referring authority judge found ground 2 substance concluded follows 67 70 mr nyoni cannot merely point appeal proceeding assert right petition stayed dismissed ground point real chance success must set lewin ex parte milner 1986 11 fcr 312 1986 67 alr 591 fcr 318 per pincus j likewise ere assertion sufficient mr nyoni must establish substantial nature ground challenge liang v lv property investment pty ltd 2015 fca 1057at 57 per beach j liang citingre verma ex parte deputy commissioner taxation 1984 fca 340 1984 4 fcr 181 1984 16 atr 18 fcr 187 188 per beaumont j cuminsat 18 per gilmour j federal court observed inliangat 61 per beach j follows important emphasise judgment debtor establish bona fide reasonably arguable claim merely producing statement claim separate proceeding pointing litigation indeed bare assertion m liang position fall last category must sufficient evidence material show reasonably arguable substance may require prima facie verification key factual element well demonstrating legal tenability mr nyoni provided evidence alleged proceeding asserted commenced order set aside judgment giving rise first second cost order proceeding evidence originating process statement claim response defence affidavit proceeding proceeding cogent summary asserted proceeding mr nyoni say afoot evident authority court must proper evidence make assessment prospect success application set aside judgment giving rise first second cost order nothing mr nyoni assertion huge claim properly particularised made particularised since established either requisite degree proceeding assertion cannot succeed liangat 57 per beach j circumstance mr nyoni established taken proceeding set aside judgment giving rise first second cost order ortaken proceeding might result successful claim applicant even proceeding afoot evidence proceeding establishes reasonably arguable ground ground substance necessary setting aside judgment giving rise first second cost order circumstance ground 2 made third ground opposition expressed mr nyoni bankruptcy would ultimately exercise futility waste public money merely instrument oppression debt claimed creditor arose legal cost claimed sequestration order ought refused result judge dismissed third ground stating follows 74 81 appropriate observe ground 3 difficult comprehend term relation particular submission applicant reason act bankruptcy entitled file petition seek sequestration order made mr nyoni often case bankruptcy proceeding debt concerned judgment debt case arising first second cost order given court already concluded evidence proceeding application set aside judgment giving rise first second cost order certainly evidence application substance reasonable prospect success reason regard fact underlying debt arise legal cost vitiating factor one might constitute sufficient cause purpose ofs 52 2 b thebankruptcy act thus said ground 3 would exercise futility waste public money merely instrument oppression regard first second cost order basis issuance sequestration order would wrong judgment upon first second cost order based set aside set see 66 70 basis making finding effect proceeding intended ground 3 ground 3 cannot made ground 3 cannot made basis finding innyoni 6 nyoni v pharmacy board australia 2015 fca 196 pharmacy board 1 mr nyoni first affidavit order justice mortimer 19 february 2016 insofar order justice mortimer 19 february 2016 andnyoni 6 concerned court dealt see 50 58 inpharmacy board 1 federal court refused grant interlocutory injunctive relief mr nyoni complained publication website health practitioner regulatory body list condition imposed pharmacy board australia upon mr nyoni licence practise pharmacist mr nyoni alleged proceeding conduct misleading deceptive theaustralian consumer lawcontained schedule 2 thecompetition consumer act 2010 cth application injunctive relief dismissed urgent need injunction pending trial evidence damage would adequate remedy pharmacy board 1 11 13 14 per siopis j cost ofpharmacy board 1 cause save order mr nyoni pay solicitor party cost sum 100 reason mr nyoni lateness attending hearing pharmacy board 1 15 per siopis j court note subsequently innyoni v pharmacy board australia 2 2016 fca 1397 pharmacy board 2 mr nyoni application dismissed second respondent proceeding reasonable prospect success mr nyoni ordered pay cost including reserved cost indemnity basis innyoni v pharmacy board australia 3 2016 fca 1398 pharmacy board 3 application interlocutory injunction dismissed cost awarded mr nyoni judgment inpharmacy board 1 subsequent judgment inpharmacy board 2 andpharmacy board 3 appear arise mr nyoni ongoing concern respect condition imposed upon registration pharmacist bear relation debt arising first second cost order subject proceeding therefore nothing inpharmacy board 1 assist mr nyoni proceeding particular relation ground 3 anything harm mr nyoni case becausepharmacy board 1 together subsequent case pharmacy board 2 andpharmacy board 3 demonstrate still cost order mr nyoni including cost order indemnity basis made proceeding favour person applicant otherwise nothing nyoni first affidavit assist mr nyoni relation ground 3 nothing ground particular submission concerning ground 3 give rise basis sufficient cause sufficient refuse sequestration order dismiss petition ground 3 made fourth ground opposition advanced mr nyoni impecuniosity direct result creditor conduct subject complaint relevant proceeding earlier referred reference authority different approach might taken judge party impecunious judge dismissed ground 4 concluding 90 91 matter approach adopted proceeding whetherbayne 2 bayne v blake 2 1909 hca 61 1909 9 clr 360 followed basis justification making sequestration order debtor current future asset orwhetherradich radich v bank new zealand 1993 fca 450 1993 45 fcr 101 1993 116 alr 676 followed insofar court said discretion dismiss petition debtor current future asset matter case evidence mr nyoni asset court thus nothing would preclude possibility trustee administering mr nyoni estate might find asset value basis ground 4 cannot succeed made court also observes public interest court prop otherwise apparently insolvent party making sequestration order svirfcr 317 per burchett j totev2006 37 per allsop j circumstance plain addition first second cost order subject act bankruptcy significant award cost arising litigation mr nyoni involved including award indemnity cost nyoni 7 20 per mortimer j pharmacy board 1 pharmacy board 2 pharmacy board 3 result judge consider sufficient cause refuse sequestration order dismiss petition appeal courti turn application mr nyoni entitled material time right appeal judgment order primary judge federal circuit court made bankrupt however needed lodge appeal within 21 day date upon order made meant filed appeal court later 10 march 2017 transpires actually lodge relevant document court 27 april 2017 48 day time hearing mr nyoni application extension time appeal counsel respondent light material produced mr nyoni concerning many attempt within time file appeal registry court properly press earlier written submission satisfactory explanation delay rather counsel respondent submitted regard lack merit appeal extension application sought refused substantively primary submission made behalf respondent error fact law made judge federal circuit court course reasoning conclusion sequestration order made question arose however course argument submission made mr nyoni whether prospect obtaining successful outcome appeal along line ultimately found majority full court innyoni v shire kellerberrin raised hearing primary judge another sufficient reason making sequestration order put simply argument would along line mr nyoni successful appeal ultimately obtain award damage sufficient sum shire might soon fund available meet debt including two cost order mr nyoni submitted effect made submission end judge properly failed consider hand counsel respondent submitted issue raised mr nyoni thus fall consideration primary judge light broad submission made importance mr nyoni outcome proceeding ordered leave file affidavit material assisted disclosing issue raised consideration primary judge party leave put submission question mr nyoni filed affidavit made 28 july 2017 well submission filed 31 july 2017 submission mr nyoni contends primary judge erred considering available evidence relation sufficient cause ground appropriate set following relevant paragraph lengthy written submission required establish sufficient cause ground proceeding fact applicant solvent time order case got reasonable prospect success right course action would court wait proceeding exhausted seeking sequestration order stated preceding argument submission appeal wad316 2010 granted applicant favour since sequestration order proceeding wad357 2014 due trial due trial since 2015 substantially favour applicant due alleged harm applicant evidence reasonable prospect success honour affidavit fact indeed entertained principle involved establishing sufficient cause analysis provided honour paragraph 74 81 fails identify essence proceeding listed constituting sufficient cause wad357 2014 three interlocutory judgment listed merit case pre trial matter remove core issue contention misleading deceptive conduct defamation malicious falsehood injunctive application removal condition applicant registration pharmacist condition imposed respondent effort thwart progress uncovering corruption second respondent kellerberrin hospital honour therefore fell error deeming dismissal minor pre trial matter amounted lack merit substantive proceeding similarly appeal wad316 2010 namely wad734 2015 honour made erroneous conclusion merit case questioned established pre trial matter included notice appeal excluded simply fact rule permit addition matter appeal hitherto mentioned instance dismissal mortimer j respondent application stay proceeding wad734 2015 pending outcome bankruptcy proceeding peg40 2016 significant mere exclusion applicant application joinder respondent proceeding addition cause action regarding theft applicant block land behalf respondent written submission also put 3 august 2017 response additional affidavit material submission made mr nyoni submission contend primary judge err adjourning alternatively refusing creditor petition circumstance applicant commenced appeal proceeding wad734 2015 respondent submit argument raised primary judge cannot raised even would met success primary judge err affidavit material submission filed mr nyoni respondent contend affidavit far related annexures a6 affidavit filed 8 february 2016 wad316 2010 a7 affidavit sworn 12 june 2017 wad357 2014 irrelevant object admission evidence respondent say primary judge mr nyoni filed relied upon three affidavit dated 29 february 2016 21 march 2016 4 april 2016 thefebruary march april affidavit annexures a3 a2 a1 respectively second july affidavit written submission dated 1 april 2016 debtor submission andan application case together debtor proposed amended ground opposition dated 4 april 2016 respondent say question adjournment refusal light appeal proceeding raised mr nyoni application proposed amended ground opposition respondent submit relevant part february march april affidavit february affidavit 3 17 march affidavit 3 w deposed supplementary notice appeal filed appeal proceeding 23 december 2015 april affidavit 2 annexure a2 deposed appeal proceeding programmed hearing august 2016 respondent say february march april affidavit otherwise address whether light appeal proceeding petition adjourned refused respondent primary argument applicant submit primary judge petition adjourned refused appeal proceeding could result mr nyoni remaining solvent however extent argument type could said put primary judge respondent say argument appears spring naturally 2 3 1 2 2 1 debtor submission respect respondent note outline submission 1a repeated effect outline submission 6a mr nyoni submits pertinent issue referred applicant submission reference 2 3 1 debtor submission proceeding wad316 2010 wad357 2014 wad734 2015 others still foot result applicant remaining solvent respondent say four thing said submission first 2 3 1 debtor submission say rather 2 3 1 debtor submission mr nyoni submitted finding innyoni v shire kellerberrin 6 2015 fca 1294 23 november 2015 nyoni v pharmacy board australia 2015 fca 196 5 february 2015 affidavit emson nyoni filed 28 february 2016 creditor petition od 2 february 2016 order justice mortimer 19 february 2015 establish another sufficient cause dismissal petition pursuant tobankruptcy act 1966 cth 52 2 b respondent adopt primary judge description submission ground objection relates ground 3 difficult comprehend nonetheless say clear reference 2 3 1 possibility mr nyoni remaining solvent request petition adjourned refused pending outcome appeal proceeding possibility secondly event 2 3 1 debtor submission carefully considered dealt primary judge 71 81 part honour consideration third mr nyoni ground objection petition nothing passage suggestive error thirdly even accepted 2 3 1 debtor submission mean mr nyoni say mean 1a outline submission regard february march april affidavit evidence primary judge support contention see 32 34 66 80 primary judge reason fourthly submission put 1a mr nyoni outline submission contrary submission put primary judge 2 4 1 debtor submission mr nyoni submitted court discretion dismiss petition court clearly convinced cannot asset prospect asset coming existence satisfy petition implicit submission mr nyoni conceded would remain insolvent 2 2 1 debtor submission mr nyoni submitted proceeding wad316 2010 wad154 2013 wad382 1013 wad357 2014 wad 734 2015 applicant 1 3 3 inextricably linked bankruptcy petition ought dismissed basis respondent substantial claim applicant current proceeding still foot respondent say two thing said submission first submission dealt primary judge 66 70 reason honour found properly particularised made particularised since established either requisite degree accordingly honour properly held contention could succeed respondent say error approach secondly respondent submit event submission made wrong respondent submit 1 april 2016 date debtor submission mr nyoni substantial claim foot respondent rather respondent submit position follows according respondent honour correct find contention properly particularised proved could fact particularised proved respondent say mr nyoni never put primary judge appeal proceeding would result remaining solvent petition adjourned refused result circumstance primary judge cannot criticised failing determine argument argument put either expressly implication evidence led support contention open mr nyoni raise argument first time appeal however respondent submit even argument raised primary judge would met success respondent note hearing petition 11 april 2016 primary judge may able discern filed material published decision extent drawn honour attention appeal proceeding commenced programmed hearing august 2016 respondent party appeal proceeding appeal ground adequately formulated mr nyoni april affidavit annexure a2 nyoni v shire kellerberrin 8 2016 fca 245 mortimerj andthe claim agitated mr nyoni included misleading deceptive conduct misfeasance public office nyoni v shire kellerberrin 7 2016 fca 135 1 mortimer j respondent submit however judge evidence particular ground appeal likelihood ground would succeed factual background appeal quantum relief might granted timeframe decision circumstance regard uncontested evidence insolvency 32 34 primary judge reason admission insolvency 2 4 1 debtor submission absence evidence cash flow asset liability 32 primary judge reason andimportantly test solvency capacity debtor pay debt become due payable debtor money including cash hand money reasonably quickly realisable asset realisation 27 29 primary judge reason respondent say basis upon primary judge could adjourned refused petition similarly respondent say evidentiary legal basis upon mr nyoni respondent could moved adjournment petition commencement maintenance appeal proceeding respondent say entitled press determination petition public interest primary judge observed another context 91 reason served determination accordingly respondent submit primary judge err fact law failing adjourn failing refuse petition considerationhaving regard three broad consideration primary judge set detail must said error approach reasoning primary judge detected technical requirement act met evidence material primary judge appeared almost self evident mr nyoni could meet debt fell due appear asset could otherwise turned liquid fund meet debt two cost order respondent held real question whether sufficient reason reference creditor petition either adjourned dismissed obvious factor regard substantive claim made mr nyoni respondent shire representative effectively conspired various way including bringing creditor petition make bankrupt far claim concerned primary judge unreasonably found evidence support allegation fact matter respondent proceeding held cost order 80 000 mr nyoni wished satisfied ultimately issued bankruptcy notice perfectly entitled mr nyoni failure satisfy constituted act bankruptcy led primary judge consider ultimately whether sufficient reason make sequestration order sought evidence support abuse process claim primary judge cannot said erred making finding mr nyoni ground opposition submission focused continued belief respondent proceeding shire respondent proceeding guilty collusion even though respondent proceeding applicant bankruptcy proceeding party proceeding involving shire went forward including recent full court appeal referred may open mr nyoni contended primary judge bankruptcy proceeding good ground expect forthcoming appeal would successful least part would entitled damage sufficient put fund pay cost order held respondent therefore provided sufficient reason creditor petition least adjourned await outcome appeal regard however respondent reasonably submit contention put bankruptcy proceeding primary judge mr nyoni certainly put expressly difficult see put implication event even might suggested judge faced self represented litigant position mr nyoni found might possibly articulated line argument along line suggested seems respondent correct submission make really far little information primary judge suggest line argument provided foundation view mr nyoni likely successful appeal would come fund would enable pay cost order information primary judge particularise nature appeal ground information concerning damage might possibly paid event benefit hindsight might said light full court decision subject special leave appeal application shire high court sufficient reason might advanced mr nyoni hindsight wonderful thing point put mr nyoni focus demonstrating abuse process respondent others bringing bankruptcy proceeding focused admitting cost debt identifying future possible mean paying circumstance regret must accept submission made behalf respondent line argument identified mr nyoni recovering substantial damage future raised bankruptcy proceeding primary judge even little prospect providing foundation sufficient reason adjourn dismiss creditor petition light paucity information court circumstance application extension time appeal must dismissed certify preceding seventy seven 77 numbered paragraph true copy reason judgment herein honourable justice barker associate dated 16 august 2017 |
John Hardie v Stannard Marine Pty Ltd t_as Port Lincoln Tugs Pty Ltd [2009] AIRC 810;
(18 September 2009).txt | john hardie v stannard marine pty ltd port lincoln tug pty ltd 2009 airc 810 18 september 2009 2009 airc 810download word documentaustralian industrial relation commissiondecisionworkplace relation act 1996s 643 termination employmentjohn hardievstannard marine pty ltd port lincoln tug pty ltd u2008 7551 senior deputy president callaghanadelaide 18 september 2009termination employment 2ndmotion dismiss want jurisdiction fewer 100 employee 1 24 november 2008 mr hardie lodged application sought relief respect termination employment port lincoln tug pty ltd plt mr hardie application made pursuant tosection 643 1 theworkplace relation act 1996 act ground termination employment harsh unjust unreasonable 2 8 december 2008 commission received notice employer appearance advised correct name employer stannard marine pty ltd acn 00590278 trading port lincoln tug pty ltd employer also filed notice motion dismiss application ground employed fewer 100 employee 3 9 january 2009 mr hardie sought amend application rely onsection 659 2 e 4 issue considered hearing 27 february 2009 decision order 17 march 2009 2009 airc 237andpr986056 refused employer motion dismiss application want jurisdiction also refused leave amend ground upon application made 5 mr hardie application subsequently referred conciliation conference occurred 17 april 2009 result agreement result certificate assessment issued 24 april 2009 6 1 may 2009 mr hardie representative dr bakker sought revision assessment issued 24 april 2009 refused advice provided party day mr hardie notice election proceed arbitration lodged later day 7 reason known party engaged exchange correspondence course exchange mccarthy ausgroup representing employer foreshadowed sought file motion dismiss application want jurisdiction ground employer employed fewer 100 employee 8 second motion effect ultimately lodged 22 may 2009 matter convenience retained commission file respect mr hardie application rather referring second issue dealt course hearing merit party objected approach 9 whilst employer sought second motion dealt paper listed hearing 14 july 2009 large amount material provided 27 may 2009 party directed file commission serve 7 july 2009 additional material relied upon matter accommodate request dr bakker time examine employer documentation 10 mr hardie dr bakker comply direction mccarthy ausgroup sought matter determined paper direction issued 13 july 2009 wherein matter listed 11 august 2009 subject advice hearing conditional upon mr hardie providing written material confirming position response material provided port lincoln tug pty ltd 4 august 2009 event material received date propose cancel 11 august 2009 hearing determine matter material already provided 11 commission received large quantity written material mr hardie representative 4 6 august 2009 provision material clearly breached 13 july 2009 direction placed commission mccarthy ausgroup significant difficulty given imminent hearing consequence hearing set 11 august 2009 cancelled party advised would consider matter basis written material together additional material either party sought provide 13 august 2009 12 considered material reaching conclusion matter 13 appropriate pause point comment grave reservation dr bakker conduct matter date dr bakker consistently failed apply courtesy commission would normally expect behaviour indicative absence knowledge commission process could reasonably expected experienced legal representative finding 14 finding set read conjunction decision 17 march 2009 15 section 643relevantly state 1 subject subsection 5 6 8 10 employee whose employment terminated employer may apply commission relief respect termination employment ground termination harsh unjust unreasonable b ground alleged contravention ofsection 659 660or661 c combination ground paragraph b ground ground paragraph b ground paragraph 10 application subsection 1 must made ground referred paragraph 1 ground include ground relevant time employer employed 100 employee fewer including employee whose employment terminated b casual employee engaged employer regular systematic basis least 12 month including casual employee 11 purpose calculating number employee employed employer mentioned subsection 10 related body corporate within meaning ofsection 50of thecorporations act 2001 taken one entity 12 purpose subsection 10 relevant time time employer gave employee notice termination time employer terminated employee employment whichever happened first b purpose calculating number employee employed employer employee meaning paragraph b definition term insection 636 16 consequence established employer including related body corporate fewer 100 employee time termination mr hardie employment notice termination given whichever sooner excluded able make application 17 mr hardie asserts employer port lincoln tug pty ltd plt paid plt termination employment effected plt 18 issue fundamentally turn question entity employer mr hardie whether relevant time employer related body corporate employee number would mean combined count exceeded 100 19 section 50of thecorporations act 2001states related body corporatewhere body corporate holding company another body corporate b subsidiary another body corporate c subsidiary holding company another body corporate first mentioned body body related 20 subsidiary defined insection 46of thecorporations actin following term subsidiarya body corporate section called first body subsidiary another body corporate body control composition first body board ii position cast control casting one half maximum number vote might cast general meeting first body iii hold one half issued share capital first body excluding part issued share capital carry right participate beyond specified amount distribution either profit capital b first body subsidiary subsidiary body 21 concept control defined insection 50aaof thecorporations act control 1 purpose act entity control second entity first entity capacity determine outcome decision second entity financial operating policy 2 determining whether first entity capacity practical influence first entity exert rather right enforce issue considered b practice pattern behaviour affecting second entity financial operating policy taken account even involves breach agreement breach trust 3 first entity control second entity merely first entity third entity jointly capacity determine outcome decision second entity financial operating policy 4 first entity capacity influence decision second entity financial operating policy b legal obligation exercise capacity benefit someone first entity member first entity taken control second entity 22 mr hardie asserts termination employment took effect 4 november 2008 termination employment confirmed letter 7 november 2008 satisfied 4 november 2008 relevant date purpose ofsubsection 643 12 consistent decision 17 march 2009 satisfied plt employer mr hardie 23 march 2009 proceeding plt provided evidence number employee engaged company stannard marine group effect total relevant employee number 67 decision 17 march 2009 observed 31 dispute mr hardie employed port lincoln tug pty ltd stannard group asserts port lincoln tug pty ltd one three subsidiary stannard marine pty ltd stannard pty ltd wholly owned stargate pty ltd owned mr stannard case evidence clearly establishes stannard group employed fewer 100 employee relevant time 32 however evidence mr mcallister port lincoln tug pty ltd 50 owned stannard marine 50 owned svitzer marine substantial maritime employer mr mcallister advised port lincoln tug pty ltd four person board two appointed stannard marine two svitzer evidence provided respect exercise control within board closing mr mccarthy advised enquiry indicated port lincoln tug pty ltd board casting vote arrangement event dispute matter would go arbitration notwithstanding mr mccarthy advised stannard group conceded controlling interest operational issue 36 starting point stannard group series related body corporate included port lincoln tug pty ltd employed fewer 100 employee 37 unable agree starting point mr hardie employed port lincoln tug pty ltd accordingly corporate entity must represent starting point consideration related body corporate whilst noted mr mccarthy assertion relative control port lincoln tug pty ltd evidence establish port lincoln tug pty ltd subsidiary stannard group matter stannard marine may port lincoln tug pty ltd subsidiary basis casting vote arrangement another suitable arrangement simply evidence effect case port lincoln tug pty ltd subsidiary svitzer employee engaged stannard group relevant employee count number port lincoln tug pty ltd employee may increased appears much larger svitzer employee number 39 information satisfied port lincoln tug pty ltd including related body corporate fewer 100 employee time termination mr hardie employment notice termination given whichever sooner 24 summary term plt argue total number employee 29 basis represents employee plt alternative 67 plt company stannard marine group taken account plt assert aware need prepare submission argue plt related body corporate svitzer marine hearing 27 february 2009 commenced issue raised mr hardie representative plt therefore unable properly dispute clause march 2009 proceeding 25 summary term mr hardie position plt controlled entity former adsteam marine ltd owing successful 100 takeover merger svitzerwijsmuller wholly owned subsidiary ap moller maersk adsteam marine limited became 23 march 2007 subsidiary svitzerwijsmuller 1 sic 26 plt provided register member share certificate indicates 50 owned stannard marine pty ltd stannard marine 50 owned adsteam marine investment jv pty limited trading svitzer marine investment jv pty limited 27 plt argues subsidiary either stannard marine svitzer group consistent withsection 46of thecorporations actin neither stannard marine svitzer group generally capacity determine outcome decision plt financial operating policy consistent withsection 50aaof thecorporations act neither stannard marine svitzer group practical influence executed plt pursuant tosection 50aa 2 thecorporations act thirdly neither stannard marine svitzer group exhibited practice pattern behaviour plt financial operating policy would deem plt subsidiary either stannard marine svitzer group 28 plt referred article association conjunction withsection 47 b thecorporations actin respect article 79 particularly relevant regard far state article 79 amended special resolution dated 25 march 2003 stannard marine pty limited adsteam marine investment j v pty limited shall hold share company shall right time time appoint two director respect holding sic 29 plt relied number authority support position particularly supreme court western australia decision inmount edon gold mine aust ltd v burmine ltd 2 also relied upon decision drake sdp inharland v quinn muir pty ltd good guy 3 decision commission stated 1 ordinary person might consider business large chain sharing corporate signature might considered together purpose theworkplace relation act 1996 workchoices relation assessment number employee business necessarily 2 workchoices limit inclusion employee purpose assessing whether le 100 employee consideration business related body corporate referred insection 50of thecorporations act 2001 3 selection limitation deliberate ordinary person might think include associated entity associated entity referred section thecorporations act 2001 exist one company principal exercise control management another company associate reflect corporate arrangement ordinary person corporate lawyer might consider involves related body corporate 30 plt referred number article association particular relevance article 69 71 article 69 meeting unless poll demanded hereinafter provided every resolution shall decided show hand show hand every member present person proxy duly constituted attorney representative appointed pursuant company act shall one vote article 71in event deadlock meeting company meeting director director member company may request meeting adjourned independent chairman hereinafter defined shall invited adjourned meeting upon request made chairman meeting shall adjourn meeting convenient date adjourned meeting shall invite said independent chairman preside adjourned meeting said independent chairman shall take chair upon resolution put vote shall casting vote independent chairman purpose article shall person time time appointed ad hoc purpose director b failing agreement among director appointment chairman appointment shall made president new south wale branch australian society accountant 31 respect tosection 46 iii thecorporations act plt provided evidence share issue 32 also provided copy register director state note mr chris stannard mr alan graham stannard collectively stannard family always manager company practical sense title manager refers capacity chairman board port lincoln tug pty ltd 33 respect taken plt seek distinguish chairman board operational sense independent chairman casting vote referenced article association 34 noted plt said need second motion derived procedurally unfair last minute issue raised course march 2009 hearing unable respond detailed fashion would preferred 35 mr hardie position plt entity controlled svitzer wijsmuller group company accordingly employee related body corporate total excess 600 employee 36 mr hardie submission deal detail takeover adsteam marine limited svitzer wijsmuller 2006 submission detailed activity formerly undertaken adsteam included tugboat function detail adsteam executive remuneration arrangement mr hardie asserts extended employee plt 37 mr hardie relies 2006 adsteam marine limited financial report asserts list plt controlled entity note note 14 report fact list plt 50 interest associate partnership plt listed report subsidiary mr hardie asserts note adsteam marine limited 50 ownership company port lincoln tug controlled entity thus svitzer marine control port lincoln tug controlled entity thus svitzer marine control port lincoln tug obtained 100 voting right attached adsteam marine limited share also note controlled entity svitzer marine limited group may eligible participate scheme enabling issue 1 000 share employee financial year subject approval svitzer board 38 mr hardie submission deal length former adsteam operational strategy submission assert plt entity controlled svitzer wijsmuller context international accounting standard adopted australia australian accounting standard board 39 mr hardie attached document understand list tug owned svitzer wijsmuller global basis understand mark five vessel vessel operated plt detail arrangement operational issue set significantly mr hardie submission generally focus ownership control arrangement relative adsteam svitzer wijsmuller commence consideration ownership control issue directly impacting plt finding 40 satisfied party matter adequate opportunity present relevant material commission matter initially listed hearing section 645and 648 permit commission determine employee number issue basis written material may provided party plt requested adoption approach decision cancel hearing matter followed clear warning mr hardie representative would consequence continuing failure comply direction 41 indicated 17 march 2009 decision starting point consideration employee number purpose ofsubsections 643 10 11 12 must plt 42 material establishes plt 50 owned stannard marine pty ltd 50 adsteam marine investment jv pty ltd material confirms adsteam marine investment jv pty ltd probability merged svitzer wijsmuller however merger establish svitzer wijsmuller employee must included employee count purpose ofsection 643 10 43 reference insection 643 11 need include employee related body corporate within meaning ofsection 50of thecorporations act directs attention whether plt holding company another company os subsidiary another company os subsidiary company holding company another body corporate 44 information dispute plt holding company another company disputed issue go whether plt either subsidiary another company subsidiary holding company another body corporate 45 section 46of thecorporations actdirects attention issue control practical term need satisfied adsteam marine svitzer wijsmuller control composition plt board alternatively position cast control casting half maximum number vote might cast plt general meeting third option svitzer wijsmuller may hold half issued share capital plt 46 two party jointly plt directed attention adsteam marine svitzer wijsmuller group challenge information establishes plt stannard marine group taken related body corporate total employee number exceed 100 relevant time 47 considering issue control regard tosections 47and50aaof thecorporations act 48 material establishes board plt limited four person stannard marine svitzer wijsmuller hold two board position casting vote term operation board vested independent person appointed purpose extent might argued chairman plt board authority note appointment come stannard group rather svitzer wijsmuller entity 49 finally neither stannard marine svitzer wijsmuller hold half issued share capital 50 extent might argued svitzer wijsmuller tug plt operate hence control plt simply material support proposition 51 extent might argued plt arrange remuneration basis approach followed adsteam marine 2006 consider establishes form control purpose determination issue 52 accordingly concluded even plt related body corporate stannard marine combined employee count le 100 mr hardie excluded making application pursuant tosection 643 1 53 order pr988915 dismissing application issued accordingly commission senior deputy president 1 dr bakker correspondence 5 august 2009 2 1994 11war291 12 acsr 727 12 acla 185 3 2007 airc 612printed authority commonwealth government printer price code c pr988905 |
Ranallo v The Australian Community Pharmacy Authority [2009] FCA 113 (19 February 2009).txt | ranallo v australian community pharmacy authority 2009 fca 113 19 february 2009 ranallo v australian community pharmacy authority 2009 fca 113 19 february 2009 last updated 19 february 2009federal court australiaranallo v australian community pharmacy authority 2009 fca 113administrative law application review decision australian community pharmacy authority authority recommended applicant approved supply pharmaceutical benefit proposed premise approval denied premise equivalent least 8 full time prescribing medical practitioner practising centre error law alleged interpretation term equivalent full time term held directed hour worked outputheld application dismissed act interpretation act 1901 cth 15aaadministrative decision judicial review act 1977 cth 5 1 f national health act 1953 cth s 90 99k 99lactsinterpretation act 1987 nsw 33national health australian community pharmacy authority rule determination 2006ss 6 9 10amalgamated society engineer v adelaide steamship co ltd 1920 hca 54 1920 28 clr 129amber jane ranallo v australian community pharmacy authority 2008 aata 533australian broadcasting tribunal v bond 1990 hca 33 1990 170 clr 321cic insurance ltd v bankstown football club 1997 187 clr 384cody v j h nelson pty ltd 1947 hca 17 1947 74 clr 629cooper brooke wollongong pty ltd v federal commissioner taxation 1981 hca 26 1981 147 clr 297forsythe v deputy commissioner taxation 2007 hca 8 2007 231 clr 531harradine v secretary department social security 1989 fca 200 1989 25 fcr 35lane others v arrowcrest group pty limited roh alloy wheel 1990 27 fcr 427marshall v director general department transport 2001 hca 37 2001 205 clr 603miller v commonwealth 1904 hca 34 1904 1 clr 668mills v meeking 1990 hca 6 1990 169 clr 214minister administering thecrown land actv nsw aboriginal land council 2008 249 alr 602project blue sky inc v australian broadcasting authority 1998 hca 28 1998 194 clr 355re higham 1986 5 aclc 352saraswati v queen 1991 hca 21 1991 172 clr 1thompson james v australian community pharmacy authority 1996 aata 367thompson v judge byrne 1999 hca 16 1999 196 clr 141wacal development pty ltd v realty development pty ltd 1978 hca 30 1978 140 clr 503amber jane ranallo v australian community pharmacy authoritywad 197 2008mckerracher j19 february 2009perthin federal court australiawestern australia district registrywad 197 2008between amber jane ranalloapplicantand australian community pharmacy authorityrespondentjudge mckerracher jdate order 19 february 2009where made perththe court order application dismissed applicant pay respondent cost taxed agreed note settlement entry order dealt order 36 federal court rule text entered order located using esearch court website federal court australiawestern australia district registrywad 197 2008between amber jane ranalloapplicantand australian community pharmacy authorityrespondentjudge mckerracher jdate 19 february 2009place perthreasons judgmentintroductionthe applicant m ranallo seek judicial review decision respondent authority m ranallo pharmacist 20 august 2007 applied authority approval supply pharmaceutical benefit proposed premise tandara medical centre gosnells western australia centre 28 september 2007 authority recommended application approved 13 february 2008 m ranallo made second application approval unders 90of thenational health act 1953 cth act 25 july 2008 authority consideration second application m ranallo recommended approved unders 99kof act m ranallo application required cancellation existing approval force respect pharmacy premise relocation pharmacy centre application m ranallo contended authority satisfied date application preceding six month equivalent least 8 full time prescribing medical practitioner practising centre m ranallo applies pursuant tos 5 1 f theadministrative decision judicial review act 1977 cth adjr act relevantly provides 5 application review decision 1 person aggrieved decision act applies made commencement act may apply federal court federal magistrate court order review respect decision one following ground f decision involved error law whether error appears record decision ground review advanced authority made error law error law intervention appropriate mason cj inaustralian broadcasting tribunal v bond 1990 hca 33 1990 170 clr 321emphasised adjr act intended change position federal court theobligation review legality merit decision honour said 341 theadministrative appeal tribunal act 1975 cth aat act provides specifically review merit administrative appeal tribunal scarcely supposed parliament providing nevertheless intended invest federal court similar jurisdiction ad jr act would effect act confer jurisdiction review finding fact generally indeed concept judicial review find literal expression title ad jr act operative provision tell existence wide jurisdiction issuesthis application raise succinct point relation relevant rule m ranallo contends authority tribunal adopted interpretation rule restrictive impermissibly restrictive approach led m ranallo application rejected determination m ranallo application requires analysis passage thenational health australian community pharmacy authority rule determination 2006 rule par 3 item 112 term 3 authority satisfied date application made 6 month date equivalent least 8 full time prescribing medical practitioner practising centre emphasis added inranallo v australian community pharmacy authority 2008 aata 533 tribunal held noun equivalent bear ordinary meaning equal value measure force effect significance etc phrase equivalent par 3 relates full time working hour relate include consideration work output including number patient attendance medical service 37 common ground whole relevant 6 month period fact six medical practitioner practising centre prescribing medical practitioner authority applied earlier decision administrative appeal tribunal tribunal dealing m ranallo first application amber jane ranallo 2008 aata 533at 36 effect adjective full time addressed working practising hour relevant medical practitioner volume work performed reflected amongst thing number patient attendance medical service carried practitioner authority followed view expressed tribunal adjective full time referred medical practitioner working full time opposed part time basis medical practitioner working least number hour comprising normal working week tribunal inranallohad accepted required medical practitioner working least 38 hour per week spread normal working week least five day tribunal inranallohad also concluded minister intended application approval relocation pharmacy large medical centre determined basis work output including number patient attendance prescription medical service medical practitioner practising relevant medical centre rather number hour worked medical practitioner would simple matter draft par 3 item 112 term reflecting intention authority concluded tribunal inranallo 2008 aata 533 total number hour worked six medical practitioner practising centre throughout relevant period le requisite number hour basis authority satisfied 13 february 2008 date application 90 act six month day equivalent least 8 full time prescribing medical practitioner practising centre party accept sole question whether authority erred concluding phrase equivalent par 3 item 112 sch 1 rule relate full time working hour may relate include consideration work output including number patient attendance medical service understand context expression necessary consider additional statutory provision statutory frameworkthe authority required recommend medicare approval provision pharmaceutical service throughout australia permission required operate pharmacy dependent number factor including perceived community need particular pharmacy service authority bound rule considering application rule said designed achieve perceived optimum community access service geographic area number pharmacy higher others depending community need access australian pharmaceutical benefit scheme pb medicine pharmacy said high priority also availability commercially viable flexible network competing pharmacy principle reflected statutory regulatory material refer part 7 act deal pharmaceutical benefit defined 84 section 85 act provides benefit must provided commonwealth accordance part respect drug medicine preparation relation part applies become known pb commonwealth subsidises supply certain drug medicine pb list section 90 indicates requirement approved pharmacist nominate premise respect desired supply pharmaceutical benefit drug authority power found predominantly 99k act authority recommendation made pursuant rule turn determined minister 99l act recommendation authority considered delegate secretary currently medicare australia provided 90 act extract provision relevantly follows section 90 1 read 90 approved pharmacist 1 subject section secretary may upon application pharmacist approval supply pharmaceutical benefit particular premise approve pharmacist purpose supplying pharmaceutical benefit premise section 99k act provides 99k function 1 function authority consider application section 90 b make respect application section 90 recommendation whether applicant approved section respect particular premise ii approval recommended recommendation condition approval subject 2 making recommendation subsection 1 authority must comply relevant rule determined minister section 99l 3 recommendation authority subsection 1 made secretary section 99l act read 99l determination rule minister 1 minister must writing determine rule subject authority make recommendation subsection 99k 1 rulesunder 9 rule provided 9 authority must recommend approval applicantthe authority must recommend applicant approved section 90 act respect particular premise application involves cancellation approval theexisting approval force respect approved premise theexisting premise application state kind mentioned column 2 item part 1 schedule 1 ii requirement set column 3 item met iii requirement set schedule 2 part 1 schedule 3 met iv application described column 2 item part 2 schedule 3 requirement set column 3 item met b application paragraph apply application state kind mentioned column 2 item part 2 schedule 1 ii requirement set column 3 item met iii requirement set schedule 2 met combined effect s 9 10 rule relevantly authority satisfied following circumstance must recommend approval given 112relocation large medical centre1 proposed premise large medical centre 3 authorityis satisfied date application made 6 month date equivalent least 8 full time prescribing medical practitioner practising centre b applicant make reasonable attempt ensure operating hour proposed premise meet need patient medical centre emphasis added construction argumentthe argument m ranallo particular practice active output equivalent least 8 full time prescribing medical practitioner argued output clearly relevant consideration whether approval given pharmacy established large medical centre output bearing need pharmaceutical benefit starting point statutory construction give word statute natural ordinary meaning gaudron j observed inmarshall v director general department transport 2001 hca 37 2001 205 clr 603at 37 basic rule statutory construction legislative provision construed according natural ordinary meaning unless would lead result legislature must taken intended rule serf important purpose ensuring subject law understand nature extent right obligation serf purpose good reason must shown concluded legislature intend consequence would flow provision question given natural ordinary meaning see alsoamalgamated society engineer v adelaide steamship co ltd 1920 hca 54 1920 28 clr 129at 161 162 per higgins j cody v j h nelson pty ltd 1947 hca 17 1947 74 clr 629at 648 per dixon j cooper brooke wollongong pty ltd v federal commissioner taxation 1981 hca 26 1981 147 clr 297at 305 per gibbs cj mill v meeking 1990 hca 6 1990 169 clr 214at 223 per mason cj toohey j cf 235 per dawson j thompson v judge byrne 1999 hca 16 1999 196 clr 141at 149 19 per gleeson cj gummow kirby callinan jj 158 45 per gaudron j mchugh j toohey j agreed said insaraswati v queen 1991 hca 21 1991 172 clr 1at 22 except case manifest absurdity unreasonableness text legislative provision grammatically capable one meaning neither context purpose act throw real doubt meaning grammatical meaning ordinary meaning applied court cannot depart ordinary meaning legislative provision simply meaning produce anomaliessection 33 theactsinterpretation act 1987 nsw provides 33 regard purpose object act statutory rulesin interpretation provision act statutory rule construction would promote purpose object underlying act statutory rule whether purpose object expressly stated act statutory rule case statutory rule act rule made shall preferred construction would promote purpose object gibbs cj incooper brooke 1981 hca 26 147 clr 297at 305 said language statutory provision clear unambiguous consistent harmonious provision enactment intelligibly applied subject matter deal must given ordinary grammatical meaning even lead result may seem inconvenient unjust hand two construction open court obviously prefer avoid considers inconvenience injustice mason wilson jj case observed 321 quite obviously question degree arise choice two strongly competing interpretation said advantage may lie produce fairer convenient operation long conforms legislative intention however one interpretation powerful advantage ordinary meaning grammatical sense displaced operation perceived unintended corresponding commonwealth provision i 15aaof theacts interpretation act 1901 cth requirement court look purpose object act longer dependent ambiguity mischief purpose rule required ambiguity inconsistency court could regard purpose miller v commonwealth 1904 hca 34 1904 1 clr 668at 674 wacal development pty ltd v realty development pty ltd 1978 hca 30 1978 140 clr 503at 513 seejudge byrne 1999 hca 16 196 clr 141at 48 per gaudron j inproject blue sky inc v australian broadcasting authority 1998 hca 28 1998 194 clr 355mchugh gummow kirby hayne jj 69 said primary object statutory construction construe relevant provision consistent language purpose provision statute seetaylor v public service board nsw 1976 hca 36 1976 137 clr 208at 213 per barwick cj meaning provision must determined reference language instrument viewed whole cooper brooke wollongong pty ltd v federal commissioner taxation 1981 hca 26 1981 147 clr 297at 320 per mason wilson jj see alsosouth west water authority v rumble 1985 ac 609at 617 per lord scarman context legislation read whole incommissioner railway nsw v agalianos 1955 hca 27 1955 92 clr 390at 397 dixon cj pointed context general purpose policy provision consistency fairness surer guide meaning logic constructed thus process construction must always begin examining context provision construed toronto suburban railway co v toronto corporation 1915 ac 590at 597 minister land nsw v jeremias 1917 hca 41 1917 23 clr 322at 332 k lake city freighter pty ltd v gordon gotch ltd 1985 hca 48 1985 157 clr 309at 312 per gibbs cj 315 per mason j 321 per deane j follows context must considered first instance merely ambiguity identified high court reconsideration correctness ofmills v meeking 1990 hca 6 169 clr 214injudge byrne 1999 hca 16 196 clr 141in authority ofmills v meekingwas upheld gaudron j held fundamental rule construction word stature clear given natural ordinary meaning unless would result absurdity conflict provision statue lead result cannot reasonably supposed intention legislature purposive approach taken m ranallo one aspect argument support broader construction expression adopted authority argued construction contended m ranallo preferable construction accorded context rule widest sense cic insurance ltd v bankstown football club 1997 187 clr 384 408 reliance also placed onforsythe v deputy commissioner taxation 2007 hca 8 2007 231 clr 531at 39 andminister administering thecrown land actv nsw aboriginal land council 2008 249 alr 602per kirby j 2 m ranallo also argued authority narrow construction fails pay close attention actual text regard relies passage 68 innsw aboriginal land councilper hayne heydon crennan kiefel jj context may include extrinsic material history rule developed need rule current form first identified national competition review pharmacy 2000 review concluded rule adequately allow fact medical centre large shopping centre may create sufficient specialised demand sustain viable pharmaceutical benefit service review noted submission suggested demand could measured number patient consultation centre however importantly review adopt submission 93 said case taking account projection demand pharmacy service arising medical centre private hospital aged care facilityas substitutefor criterion party review suggested could case medical centre bebased number general practitioner consultation centre given period paragraph went say similarly eligibility criterion could take account number projected admission private hospital resident care recipient category care aged care facility volume prescription per patient resident could also taken account following paragraph report continued review belief empirical measure merely impose undue bureaucracy red tape would preferable commonwealth consultation jurisdiction community pharmacy industry profession relevant health aged care provider adopt agreed definition eligible facility facility satisfies agreed statutory definition simply eligible site new relocated pharmacy dispensary relevant rule inserted part series amendment arose fourth community pharmacy agreement compilation relevantly operative part agreement emphasised need location rule properly fully responded community need pharmacist service stressed example rule 24 1 25 1 26 2 respectively provide follows 24 1 amendment location rule set attachment 1 intended provide greater flexibility respond community need pharmacy service improve access pharmacy service arrangement also aim address difficulty anomaly location rule identified joint review location rule undertaken commonwealth guild 2005 25 1 objective location rule ensure australian access pb medicine commercially viable sustainable network community pharmacy dispensing pb medicine improved efficiency increased competition pharmacy improved flexibility respond community need pharmacy service increased local access community pharmacy person rural remote region australia andcontinued development effective efficient well distributed community pharmacy network australia 26 2 amendment location rule include relaxation rule following three key area large medical centre b smaller shopping centre large supermarket andc large single pharmacy rural town m ranallo argued australian community pharmacy authority application handbook published authority also suggests concept equivalency focussed service provided medical practitioner centre refer hour worked p 59 handbook said pharmacy location rule specify constitutes equivalent full time acpa flexibility considering may include number part time medical practitioner together provide level service full time medical practitioner provides alternatively single medical practitioner may provide level service one full time medical practitioner provides seems observation quite capable referring hour worked rather productivity output stressed counsel m ranallo actual work output medical practitioner term patient seen obvious strong correlation prescription volume therefore need pharmacy service presumption accepted authority authority contended correctly view presumption may practice practice may adopt different style medical service provision necessarily require significant number volume prescription pharmacy service assumption therefore higher number patient always produce higher number prescription assumption evidentiary basis counsel authority observed medical practice centre large number patient may nature practice location practice may fact smaller number pharmaceutical benefit practice much smaller number patient equivalentms ranallo submits word equivalent directed suggested deputy president concluded tribunal solely adjective full time rather contended equivalent directed composite expression full time prescribing medical practitioner various dictionary definition word equivalent equal value function meaning defined inthe new oxford dictionary 1998 oxford university new york equal power efficacy import equal corresponding significance something equal value worth also something tantamount theshorter oxford english dictionary historical principle clarendon press 1980 ed particular definition contrast said meaning particular argued equal necessarily mean identical higham 1986 5 aclc 352 support contention argued use word prescribing suggests activity work output relevant matter authority consider determining equivalency said supported definition prescribing medical practitioner found rule expressly refers issuing prescription pharmaceutical benefit argument time spent medical practitioner practitioner time however view prescribing appears rule simply descriptive qualifier distinguish prescribing medical practitioner one whatever reason may prescribe pharmaceutical benefit m ranallo contends simply compute number hour practitioner working would appropriate discharge discretionary deliberation rule required would mechanical mathematical calculation contrast argued m ranallo rule required authority satisfied element discretion reposed authority determining equivalent higham5 aclc 352at 370 m ranallo contends rule limited simple mathematical exercise intended rule could simply specified minimum number doctor hour centre regard submitted relevant note terminology used rule contrast par 3 par 3 b item 112 rule item b definition large medical centre expressly referred hour although approach may arguable prefer submission authority discretion number doctor might regarded full time practice number doctor might considered part time total hour practice centre argument sake 300 rather mathematical 304 eight time 38 would nevertheless within authority discretion satisfied equivalent least eight full time medical practitioner thirty eight hour simply used guideline benchmark set m prstec affidavit basis generally accepted community standard reasoningas starting point consider determination whether person engaged particular activity occupation employment full time basis determined reference amount time person devotes activity occupation employment inlane others v arrowcrest group pty limited roh alloy wheel 1990 27 fcr 427at 452 453 von doussa j said particular case decision whether hour worked manner laid employee working full time basis take account pattern roster employee work number hour overall worked week ordinary parlance commitment required employee employment fairly described full time according current community standard viewed broadly construction opinion closely accord general intention party disclosed whole award construction contended respondent respondent argument employee regularly work shift weekly employee work 45 60 hour per weekly work cycle nevertheless treated full time employment week shift deliberately cut short six minute disqualify employee benefit cl 6 e intended bestow least unreasonable hesitation concluding scope artificial practice like within contemplation party see alsoharradine v secretary department social security 1989 fca 200 1989 25 fcr 35at 47 per von doussa j 42 per french j necessary consider meaning expression full time full context least 8 full time prescribing medical practitioner possible determine constitutes equivalent meaning full expression first determined full time defined macquarie dictionary online website follows adjective1 relating taking normal working hour opposed part time 2 relating something occupies person time 3 sportof relating time play end full time whistle adverb4 normal working hour noun5 sportthe time play end follows view expression full time prescribing medical practitioner referring medical practitioner engaged providing general practice service full time basis opposed providing part time basis expression therefore concerned number hour worked prescribing medical practitioner normal working week determine may classed full time full time prescribing medical practitioner purpose par 3 one work least 38 hour per week normal working week least five day appear approach result absurdity consider consistent purpose ensuring reasonable public access viable pharmacy given ordinary meaning full time relation person occupation employment unable identify error law authority conclusion equivalent affect approach although case evidence demonstrated measure hour worked may obtained clear indication would always paragraph 3 item 112 rule could expressed required large medical centre question equivalent least 8 full timeworkloadequivalent fwe general practitioner term used medicare practising centre see evidence m angela mikalauskas rule refer measure output tends leave conventional meaning expression full time appropriate yardstick m mikalauskas affidavit evidence confirmed simple headcount gps based upon little one medicare service processed year provide accurate indication gp workforce activity supply simple headcount basis treat gps equally though significant variation hour worked number type service provided gps measuresused industry calculate workforce activity supplyare usually based number hour worked medicare system record actual hour worked general practitioner however wealth information service provided patient gps captured vast majority work undertaken gps involves consultation 85 gp activity represented standard andlongconsultations medicare item 23 36 respectively main difference standard long consultation relates mostly time taken perform service rather factor standard consultation one last le 20 minute long consultation one last 20 le 40 minute fwe measure medical workforce activity supply take account differing working pattern doctor fwe calculated dividing doctor medicare billing previous 12 month average billing full time doctor year medicare billing defined total schedule fee value medicare item claimed general practitioner gp excluding bulk billing incentive item 10990 10992 threshold income defines full time doctor indexed annual basis accordance cpi figure published australian bureau statistic gp provides service one practice location fwe calculated based share total schedule fee billing provided location emphasis added view remain discretionary component varying combination practitioner may work longer 38 hour per week may work fewer long aggregate equate mathematical computation practitioner working 38 hour week requirement rule would satisfied support approach may found two source inthompson james v australian community pharmacy authority 1996 aata 367which dealt former 1995 rule argument presently advanced considered decision tribunal 47 51 inclusive learned senior member said document annexure exibit sic a1 stated behalf kable street practice see 70 patient week glossodia surgery visit patient home twice week average patient one half require prescription written addition 50 patient week resident glossodia freeman reach east kurrajong visit kable street practice windsor morning least 50 glossodia patient week attend kable street surgery afternoon evening glossodia surgery unattended present medical practice commitment opening longer hour glossodia applicant argue base number patient catchment area seen glossodia windsor kable street practice effectively equivalent full time medical practitioner glossodia word equivalent defined macquarie dictionary 1 equal value measure force effect significance etc opinion reference equivalent full time medical practitioner involves notion medical practice conducted basis morning surgery period spent away surgery late afternoon evening surgery may undertaken either alone conjunction practitioner practice may neat question whether hour locum service would qualify whatever permutation may suggested future case cannot see medical practice within catchment area available consultation hour 9am 1pm monday friday qualifies equivalent full time medical practitioner finally explanatory statement issued minister p 16 said relocation large medical centreitem 112applies relocation approval large medical centre aim facilitate timely convenient access supply pharmaceutical benefit patient large medical centre operate extended hour sub item 1requires proposed premise situated large medical large medical centre defined subsection 6 1 part 1 medical centre single management andoperates least 55 hour week emphasis added p 17 minister said paragraph 3 requires date application made proceeding six month equivalent least eight full time prescribing medical practitioner provide general practice service centre issue prescription pharmaceutical benefit practising medical centre emphasis added authority mirrored approach authority handbook authority provides guidance relation application saying p 59 pharmacy location rule specify constitutes equivalent full time acpa flexibility considering may include number part time medical practitioner together provide level service full time medical practitioner provides alternatively single medical practitioner may provide level service one full time medical practitioner provides evidence addressing requirement may include statement statutory declaration management medical centre regarding hour centre operatesand hour medical practitioner practice copy advertisement regarding hour practice operates practice information sheet provider number medical practitioner emphasis added conclusionin view natural ordinary meaning expression full timeprescribing medical practitioner emphasis added meaning relates time practitioner spend carrying duty available carry duty view tribunal original interpretation authority adoption interpretation second application correct measure full time reference productivity output rather hour attendance could introduce number argument productivity context legislation scheme measured consider anything scheme reference secondary material would support introduction potentially subjective possibly vague concept considering whether equivalent least 8 full time prescribing medical practitioner practising centre date application six month date accordingly unable conclude authority error order application dismissed applicant pay respondent cost taxed agreed certify preceding sixty two 62 numbered paragraph true copy reason judgment herein honourable justice mckerracher associate dated 19 february 2009counsel applicant pa sheinersolicitor applicant christensen vaughancounsel respondent p macliversolicitor respondent australian government solicitordate hearing 13 november 2008date judgment 19 february 2009 |
Cullin & Tarankiev [2016] FamCA 263 (22 April 2016).txt | cullin tarankiev 2016 famca 263 22 april 2016 last updated 5 may 2016family court australiacullin tarankiev 2016 famca 263family law child international relocation mother seek relocate child sweden child four year old relocation permitted july 2017convention jurisdiction applicable law recognition enforcement co operation respect parental responsibility measure protection childrenfamily law act 1975 cth bank bank 2015 famcafc 36 2015 flc 93 637cox pedrana 2013 flc 93 537applicant mr cullinrespondent m tarankievindependent child lawyer legal aid queenslandfile number brc3154of2013date delivered 22 april 2016place delivered brisbaneplace heard brisbanejudgment hogan jhearing date 13 14 april 2016representationsolicitor applicant m hetherington hetherington legalthe respondent personcounsel independent child lawyer mr mcgregorsolicitor independent child lawyer legal aid queenslandorders 1 previous order discharged ordered consent way final order 2 child b born 2012 shall live mother ordered way final order 3 mother sole parental responsibility major long term issue child issue include limited education b religious cultural upbringing c health 4 except event emergency involving child mother shall consult father decision made exercise sole parental responsibility follows mother shall inform father issue decision need made decision would like make respect issue reason proposed decision writing b mother shall give father fourteen 14 day respond c mother shall consider father view response coming decision mother inform father final decision made respect issue soon practicable thereafter 5 party responsibility daily decision day day care welfare development child whenever care 6 time 14 july 2017 mother liberty relocate child live sweden 7 court request 14 july 2017 earlier time parent agree writing australian federal police remove name child b born 2012 girl airport watchlist point international arrival departure australia 8 time mother child depart australia live sweden pursuant clause 6 order child shall spend time father time may agreed party writing failing agreement follows commencing 25 april 2016 tuesday afternoon conclusion father working day 6 30pm ii alternate thursday conclusion father working day 6 30pm first thursday occur 5 may 2016 iii alternate weekend 4 00pm saturday 5 00pm sunday first weekend occur 30 april 2016 b commencing 11 june 2016 tuesday afternoon conclusion father working day 6 30pm ii alternate thursday conclusion father working day 6 30pm iii alternate weekend 1 00pm saturday 5 00pm sunday c commencing 4 july 2016 tuesday afternoon conclusion father working day 6 30pm ii alternate thursday conclusion father working day 6 30pm iii alternate weekend 9 00am saturday 5 00pm sunday commencing 2 january 2017 tuesday afternoon 3 00pm conclusion school 6 30pm ii alternate weekend 3 00pm conclusion school friday 5 00pm sunday except sunday 22 january 2017 time shall conclude 10 00 first weekend occur weekend 6 january 2017 9 easter 2017 school holiday operation clause 8 order shall suspended child shall spend time father follows conclusion school friday 31 march 2017 9 00am tuesday 4 april 2017 b 11 april 2017 conclusion father working day 6 30pm c 3 00pm 14 april 2017 1 00pm sunday 16 april 2017 andher time father pursuant clause 8 order shall recommence week commencing 24 april 2017 10 june july 2017 school holiday period operation clause 8 order shall suspended child shall spend time father follows 3 00pm conclusion school friday 23 june 2017 6 30pm tuesday 27 june 2017 b 3 00pm conclusion father working day friday 7 july 2017 6 30pm tuesday 11 july 2017 11 unless otherwise agreed changeover child time pursuant clause 8 9 10 order shall occur follows time father commences school daycare father collect child day care school return mother home conclusion time b time father commences day otherwise school daycare mother deliver child father home start time father return child mother home conclusion time 12 child relocates live sweden shall spend time father agreed party failing agreement australia year period le 21 consecutive day extended european summer school holiday period occurring june july august following term mother shall accompany child australia time earlier mother advising father writing child reached age level maturity travel unaccompanied minor child reaching age 15 year may travel unaccompanied minor ii mother shall responsible cost airfare travel iii father shall leave work period le 14 day time iv mother shall notify father child school term holiday date following year later 31 december year v father shall give mother le four 4 month notice writing date proposes child travel australia vi mother shall book child return travel air notify father cost child travel providing copy airline receipt itinerary within seven 7 day thereafter father shall reimburse mother one half cost payment bank account nominated mother b sweden time year following term father member child extended paternal family shall give mother le three 3 month notice intention travel sweden spend time child ii father shall responsible cost travel 13 time child shall spend time father pursuant clause 12 12 b order shall unless agreed parent occur follows 2018 five 5 consecutive night followed one 1 night mother followed five 5 consecutive night followed one 1 night mother followed five 5 consecutive night followed one 1 night mother followed three 3 consecutive night b 2019 six 6 consecutive night followed one 1 night mother followed six 6 consecutive night followed one 1 night mother followed seven 7 consecutive night c 2020 thereafter seven 7 consecutive night followed one 1 night mother followed seven 7 consecutive night followed one 1 night mother followed five 5 consecutive night 14 child relocates live sweden shall communicate father agreed party le three 3 occasion week skype telephone electronic communication time may agreed party failing agreement 7 30am 8 30am swedish time tuesday thursday sunday party thing necessary ensure place technology necessary enable skype communication occur 15 order facilitate child communication father skype telephone mother shall ensure child available receive telephone call skype communication relevant time arrange telephone skype father following night unforeseen circumstance child miss telephone call skype communication father extent appropriate age ensure privacy communication father 16 mother father shall keep informed time residential address contact telephone number advise change within 24 hour change b keep informed name address contact detail medical health professional treat child c inform soon reasonably practicable serious medical condition significant health issue illness suffered child keep informed detail school educational facility extra curricular activity provider attended child 17 order mother father authorise day care school educational facility extra curricular activity provider attended child provide parent parent request cost information educational progress school related activity 18 subject condition imposed child school extra curricular provider order authorise parent attend school function extra curricular activity parent ordinarily invited including limited carnival sport day fete concert play parent teacher interview 19 order mother father authorise medical health professional treat child provide parent parent request cost information lawfully able provided attendance treatment 20 mother shall provide father within 28 day receiving copy school report receives child progress school 21 le one occasion year mother shall provide father copy official school photograph child appears 22 neither parent denigrate partner family front within hearing child shall direct third party refrain denigrating either party partner family front within hearing child failing compliance direction shall remove child environment immediately 23 later 14 april 2017 mother act thing take reasonable step obtain court competent jurisdiction sweden recognition pursuant article 24 convention jurisdiction applicable law recognition enforcement cooperation respect parental responsibility measure protection child signed hague 19 october 1996 child protection convention order family court australia made 22 april 2016 b court competent jurisdiction sweden declaration enforceability sweden pursuant article 26 child protection convention order family court australia made 22 april 2016 c register court competent jurisdiction sweden pursuant article 26 child protection convention order family court australia made 22 april 2016 andprovide father notice writing declaration recognition within seven 7 day receiving 24 outstanding application dismissed 25 independent child lawyer discharged notedthat publication judgment court pseudonymcullin tarankievhas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth family court australia brisbanefile number brc 3154 2013mr cullinapplicantandms tarankievrespondentandindependent child lawyerreasons judgmentthe party involved described mr c author three family report prepared assist court fundamentally dating relationship relationship commenced early 2010 ended finally long birth daughter b 23 march 2012 b child parent also grandchild parent clearly much loved adult biologically related accept entirely parent genuinely want best genuinely committed genuinely think respective parenting proposal see best chance fully achieving potential person indeed fortunate two parent genuine commitment interest welfare child mother born country moved live sweden 21 year age lived country moved australia employment reason july 2009 38 year age travelled country idea would work six month return home sweden 44 year age fluent swedish country english language australian citizen child father born country ever lived child citizen australia sweden child always lived primarily mother accepted continue irrespective whether remains living australia move live sweden mother noted mr c well organised meeting discharging parenting responsibility employed employer since moving live australia whilst work monday friday able work home monday mother work child spends time daycare according mr c recent report child father typically work six day week employed employer number year occasion work day cut short strike action otherwise end earlier collect child daycare spends time child currently spends time father 1 tuesday conclusion work may early 9 00 occasion 6 30 pm alternate thursday conclusion work 6 30 pm commencing 26 september 2015 alternate weekend 4 00 pm saturday 5 00 pm sunday competing proposalsthe child mother seek child relocate sweden order able commence kindergarten august year alternative support proposal advanced independent child lawyer child move live sweden august 2017 living sweden found child best interest time father may limited occurs one period three week australia year mother child travel australia commences primary school spend three block four consecutive night punctuated overnight return mother care commenced school three block six consecutive night punctuated overnight return mother care andone period three week sweden year three block four consecutive night punctuated overnight return mother care andon occasion father able travel sweden child father opposes moving live sweden concerned given distance australia sweden associated high cost travel country move deprive opportunity continue develop relationship extended paternal family responding concern child mother asserts relationship child father sufficiently established developed withstand practical impost distance australia sweden child father proposes remains living australia time spends increased graduated manner seek commences prep january 2017 spend time every tuesday afternoon 6 30 pm every thursday 1 30 pm 6 30 pm alternate weekend friday afternoon 5 00 pm sunday child commences prep january 2017 proposes simply child time commence conclusion school rather conclusion work day continues advance child time weekend conclude 5 00 pm sunday afternoon interviewed mr c february 2016 father said would willing consent child living sweden older appears told mr c provided appropriate provision made spend time australia sweden ongoing communication interval face face time would agree move sweden child least 5½ year age 2 consequently recent family report outline child parent close reaching agreement future parenting arrangement interview mr c discussed mother child relocating sweden date september 2017 child mother opportunity travel sweden period four week year time child communicate father week telephone skype appear nearly agreed child moved live sweden spend time father least twice year period four week sweden time could stay mother home period four week australia time mother would stay paternal grandmother home also communicate telephone skype three time per week cost child airfare annual trip australia shared equally parent parent presumably meeting cost respective trip either sweden australia year whilst father subsequently asserted felt pressured family report process express view accept whatever pressure say felt subjected arose anything specifically done mr c process rather consider much likely faced mother recounting continuing live australia impacting father wanted act alleviate response give support conclusion reached mother genuine recounting impact indirectly parenting child continue carry primary parenting function rather sweden principlesthe determination dispute summarised broadly must course occur according well known statutory provision provide regard object ofpart viiof thefamily law act1975 |
Inspector David Davies for The Workcover Authority of New South Wales v Agair Development Pty Limited [1997] NSWIRComm 1 (7 July 1997).txt | inspector david davy workcover authority new south wale v agair development pty limited 1997 nswircomm 1 7 july 1997 industrial court new southindustrial relation commission new south walescommission court sessioncoram fisher p7 july 1997matter ct 1008 1995inspector david davy workcover authority new south wale v nichloson air service pty limitedprosecution pursuant 16 1 occupational health safety act 1983 matter ct 1009 1995inspector david davy workcover authority new south wale v agair development pty limitedprosecution pursuant 15 1 occupational health safety act 1983 judgmentthese two matter relate prosecution inspector davy behalf workcover authority new south wale nicholson air service pty limited nicholson pursuant 16 1 theoccupational health safety act 1983 act agair development pty limited agair pursuant 15 1 act company providing aspect aerial agricultural service relation spraying cotton crop narrabri district work required low flying ground effect aircraft guided relevant section strip crop sprayed chemical course aircraft passage across crop one passage wing tip nicholson aircraft collided employee agair working strip marker guiding aircraft causing injury occasioned death conclusion evidence defendant raised noticeunders 78bof thejudiciary act 1903to effect 16 1 theoccupational health safety act 1983 nsw inconsistent regulation 215 civil aviation regulationsin force thecivil aviation act 1988at time accident within term 109 thecommonwealth australia constitution act constitution similar notice raised agair advancing similar issue notice duly served state attorney general pursuant tos 78bof thejudiciary act 1903and reasonable time permitted elapse crown solicitor office nsw intervened behalf attorney general pursuant tos 78aof thejudiciary act 1903 response aspect hearing mrhaylen qcand mr hodgkinson appeared workcover authority new south wale mrsackar qcand m mccallum appeared defendant nicholson air service pty limited agair development pty limited mrkatz scand mr taylor appeared attorney general new south wale intervening essential thrust mrsackar ssubmission related alleged effect two paragraph better particular served upon client relied upon prosecuting workcover authority term particular set 6 allegation failure provide maintain system work safe without risk health particular allege system ensure aircraft used defendant spraying agricultural field could come contact mr neill employed another company provide service defendant marker b system required use person marker rather adopting method identification appropriate row c defendant system ensure pilot aircraft knew prior commencing run purpose spraying crop exactly mr neill defendant system require mr neill always position aircraft involved spraying crop could come contact 7 deleted 8 allegation failure provide information instruction training supervision may necessary ensure health safety person employment particular allege pilot aware allowed commence spraying run exact position mr neill b position ground adopted mr neill required defendant completely outside field sprayed position aircraft could come contact mr neill mrsackarclaimed provision paragraph 6 8 either explicitly practical effect brought case defendant use human marker contravened 16 1 theoccupational health safety act 1983 nsw put clearly responsibility marker system move way aircraft pas accordingly submitted practical term way system required act couldensurethat aircraft could come contact marker would abandon use human marker altogether use human marker necessarily contravened 16 1 theoccupational health safety act 1983 however use human marker permitted commonwealth law defendant nicholson air service pty limited reg 212 civil aviation regulation operator engaged commercial operation required operator manual reg 215 1 use guidance operator personnel operation manual approved civil aviation authority required civil aviation order part 82 82 0 subsection 3 3 read applicant certificate must least 60 day proposed commencement operation provide authority approval operation manual required regulation civil aviation order maintenance manual maintenance control manual operational manual tendered proceeding exhibitg relevantly following term 19 use positioning human marker 1 person may used mark start finish point run crop well purpose assisting pilot avoid collision wire obstruction 2 important every instance marker used pilot command aircraft brief marker every aspect duty b ensure briefing fully understood c arrange simple effective code exchange essential information marker airborne law state inconsistent law commonwealth latter shall prevail former shall extent inconsistency invalid submitted fact case prosecution sought take away right conferred nicholson aviation pty limited use human marker conduct operation company exposed inconsistent statutory regime conflict operation manual state criminal law thecivil aviation act 1988and regulation created statutory scheme intended regulate field aviation safety including agricultural aviation safety exhaustively conclusively similar situation applied agair marker operator personnel within meaning regulation 215 mrhaylensubmitted defendant characterise prosecution case either explicitly practical effect prohibiting use human marker course commercial aerial agricultural spraying conflict claimed seemed lie thecivil aviation act 1988and theoccupational health safety act 1983but content manual compiled nicholson air service limited required thecivil aviation act 1988and state act three issue arose defendant categorisation prosecution case accurate least accurate present purpose b operation manual content regarded law commonwealth 109 constitution c event conflict operation defendant operation manual required civil aviation regulation provision occupational health safety act mrhaylensubmitted defendant wrongly characterised workcover authority case asserting either explicitly practical effect use human marker contravened 16 1 theoccupational health safety act 1983 case presented demonstrate defendant system work including use human marker unsafeper sebut rather utilisation circumstance particular case created danger could avoided argued inconsistency arise law commonwealth cited provision operation manual law commonwealth section 109 constitution give supremacy commonwealth law document operation manual could assimilated status commonwealth law plain reading manual reveals statement recording company practice promulgation company order instruction remained even reflected requirement thecivil aviation actor regulation particular manual dealing human marker directly advance requirement thecivil aviation act 1988 manual referred marker generally employed employed nicholson air service pty limited mrkatzdealt claim direct inconsistency existed 16 1 theoccupational health safety act 1983and regulation 215 federal civil aviation regulation regulation 215 10 sub regulation clear sub regulation relied upon none sub regulation apart sub reg 215 9 appeared bear upon matter although sub regulation make offence member operational personnel operator pilot comply instruction contained operation manual far instruction related pilot duty activity sub regulation could read though somehow incorporated reference anything contained manual section 109 constitution operates inconsistency exists two legislative provision one state one commonwealth distinction law commonwealth instrument discussed taylor j inairlines new south wale pty limited v state new south wale or 1964 hca 2 113 clr 1at p 31 reference instrument intended reference order aeronautical information publication notice airman mean director general civil aviation authorised regulation give instruction matter within function air traffic control considers necessary instrument however constitute law commonwealth spite fact non compliance instruction direction given may constitute offence regulation would appear advanced namely contrast state law provision dealt operation manual would even remote concept law commonwealth could create inconsistency commonwealth state law instruction contained operation manual distinguishable information procedure term sub reg 215 9 requirement operator pilot required comply therefore term manual sub reg 215 9 time alleged offence instruction case pilot defendant operation use human marker aerial spraying case direct inconsistency arose defendant also claimed alternative inconsistency basis covering field doctrine thecivil aviation act 1988and regulation demonstrate intention deal generally agricultural aviation safety exclusion 16 1 theoccupational health safety act 1983 claim thecivil aviation act 1988and regulation read regulating field aviation safety exhaustively exclusively contrary however relevant non exclusivity demonstrated first bys 11aof thecivil aviation act 1988 term imply relevant non exclusivity part commonwealth immunity authority certain state territory laws11a 1 subject subsection 3 law state territory law section applies apply relation authority b property transaction authority c act thing done behalf authority 2 section applies law extent law relates use proposed use land premise b environmental consequence use land premise 2 subsection 1 apply relation property transaction act thing wholly unconnected use land authority purpose performing authority function referred paragraph 9 1 b c e 3 nothing section implies law state territory law section apply applies relation authority b property transaction authority c act thing done behalf authority 5 section law mean written law includes subordinate legislation b provision law 32of thecivil aviation act 1988provides headingpowers function state territory law 32 authority board officer authority person power function act regulation may also similar power function conferred law state territory relating air navigation menzies j inairlines nsw 1 referred similar position earlier statute air navigation act 1920cth saying pointed conclusion room contention commonwealth air navigation regulation intended force exclusive exhaustive leave nothing operation state law inairlines nsw pty limited v new south wale 1964 hca 2 113 clr 1 inconsistency commonwealth sate law within operation 109 constitution discussed inconsistency claimed provision theair navigation act nsw regulation andother instrumentsmade pursuant theair navigation act cth air navigation regulation cth reference instrument encompassed air navigation order aeronautical information publication notice airman mean director general civil aviation authorised regulation give instruction direction matter within function air traffic control considered necessary instrument however constitute law commonwealth spite fact non compliance instruction direction given may constitute offence regulation pertaylor j p 31 later menzies j observed p 46 attack upon validity thestate transport co ordination actis ground inconsistency commonwealth law namely theair navigation actand air navigation regulation claimed instrument duly made issued pursuant thereto question however determined reference act regulation without regard administrative direction given thereunder constitute law commonwealth purpose 109 constitution documentation relied upon demonstrate inconsistency least one remove away conflicting act regulation administrative direction document entered basis conflict entitled nicholson air service pty ltd operation manual preface appearing therein speaks manual origin utility preface object operation manual promulgate member flying training school flight instructional staff principle apply operation aircraft owned operated nicholson air service limited order instruction laid manual compiled protection member staff organisation affiliated body therefore paramount importance pilot person engaged assisting operation school aircraft become thoroughly conversant observe said order instruction without qualification whatsoever furthermore shall responsibility engaged assisting operation organisation flying training school comply relevant requirement following document currently amended air navigation regulation n r air navigation order n aeronautical information publication p visual flight guide v f g management nicholson air service pty ltd either severally individually accept responsibility claim proceeding school member flight staff employee may arise contravention relevant part mentioned document contravention order instruction contained operation manual negligence respect proven management school shall impose upon individual concerned disciplinary action deems fit proper theoperations manual general section 1 page 1 deal issuing authority distribution 1 authority issuing operation manual subsequent amendment thereto chief flying instructor would seem manual relied upon cannot construed law commonwealth purpose 109 document manual instruction directed employer operator employee concerning regulation appropriate safe working practice reject claim direct inconsistency exists 16 1 theoccupational health safety act 1983 nsw regulation 215 civil aviation regulation deal operation manual regulation 215 contains 10 sub regulation regulation 215 9 make offence operation personnel operator comply instruction contained theoperations manualin far relate duty activity however menzies j inairlines nswno 1 held earlier cited order publication notice constitute law commonwealth even granting non compliance might constitute offence accordingly dismiss application hold inconsistency demonstrated state commonwealth law term 109 constitution ooooo00ooooo |
Mallows & Harrod [2022] FedCFamC1A 92 (17 June 2022).txt | mallow harrod 2022 fedcfamc1a 92 17 june 2022 last updated 23 june 2022federal circuit family court australia division 1 appellate jurisdictionmallows harrod 2022 fedcfamc1a 92appeal mallow harrod 2022 fedcfamc2f 36appeal number naa 30 2022file number lec 92 2018judgment aldridge jdate judgment 17 june 2022catchwords familylaw appeal application appeal father seek extension time file notice cross appeal remove independent child lawyer proceeding another appointed proposed ground appeal indicate proposed cross appeal reasonable prospect succeeding interest justice application extension time file notice cross appeal evidence fall short establishing independent child lawyer behaved way require replacement application dismissed legislation family law act 1975 cth 60cc 2 65lafederal circuit family court australia family law rule 2021 cth rr 13 07 2 15 06cases cited aldridge keaton 2009 flc 93 421 2009 famcafc 229aon risk service australia ltd v australian national university 2009 239 clr 175 2009 hca 27gallo v dawson 1990 93 alr 479 1990 hca 30house v king 1936 55 clr 499 1936 hca 40mulvany lane 2009 flc 93 404 2009 famcafc 76norbis v norbis 1986 161 clr 513 1986 hca 17number paragraph 51date hearing 10 june 2022place brisbane via video link solicitor applicant second respondent intervener g j donaghy company solicitorssolicitor first respondent guy sara associatessolicitor independent child lawyer participateordersnaa 30 2022lec 92 2018federal circuit family court australiadivision 1 appellate jurisdictionbetween mr harrodapplicantand m mallowsfirst respondentms robiesecond respondentms bowdenintervenerindependent child lawyerorder made aldridge jdate order 17 june 2022the court order 1 application appeal filed 6 june 2022 dismissed note form order subject entry court record note copy court reason judgment may subject review remedy minor typographical grammatical error r 10 14 b federal circuit family court australia family law rule 2021 cth record variation order pursuant r 10 13federal circuit family court australia family law rule 2021 cth noted publication judgment court pseudonymmallows harrodhas approved pursuant tos 121 9 g thefamily law act 1975 cth reason judgmentaldridge j introduction1 application appeal filed 6 june 2022 mr harrod applicant seek extension time file notice cross appeal also seek remove independent child lawyer proceeding another appointed application made notwithstanding appeal fixed hearing 21 june 2022 2 proceeding concerned two child applicant born 2014 2015 neither applicant mother m robie played active role hearing although present least proceeding neither propounded order court consideration rather proceeding actively m mallow paternal aunt appellant appeal m bowden maternal grandmother 3 child care paternal aunt since january 2018 hearing sought order child continue live spend time maternal grandmother one weekend school term first week short school holiday three week christmas holiday order largely along line made although child spend two weekend per term maternal grandmother 4 paternal aunt also sought order enabling move child town b new south wale town queensland application refused child required live new south wale three hour town c except written consent maternal grandmother 5 maternal grandmother parent matter live near town c 6 order whether child live town new south wale subject matter appeal paternal aunt appellant 7 proceeding maternal grandmother sought order child live quickly progress within nine month child spending two night fortnight sole care mother applicant indicated maternal grandmother contention accepted 8 primary judge order made 24 january 2022 notice appeal filed paternal aunt 21 february 2022 cross appeal filed 9 rule 13 07 2 thefederal circuit family court australia family law rule 2021 cth rule requires notice appeal cross appeal filed within later 14 day notice appeal served cross appellant 28 day date order appealed made 10 applicant evidence never served notice appeal plain lawyer instructed appeared appeal registrar 5 april 2022 direction made preparing appeal hearing infer either applicant solicitor served copy notice appeal possession therefore latest notice appeal raising cross appeal filed 19 april 2022 application therefore extension time r 15 06 rule 11 principle apply application set mchugh j ingallo v dawson 1990 93 alr 479at 480 481 said grant extension time rule automatic object rule ensure rule fix time act become instrument injustice discretion extend time given sole purpose enabling court justice justice party seehughes v national trustee executor agency co australasia ltd 1978 vicrp 27 1978 vr 257at 262 mean discretion exercised favour applicant upon proof strict compliance rule work injustice upon applicant order determine whether rule work injustice necessary regard history proceeding conduct party nature litigation consequence party grant refusal application extension time seeavery v 2 public service appeal board 1973 2 nzlr 86at 92 jess v scott 1986 fca 365 1986 12 fcr 187at 194 5 1986 fca 365 70 alr 185 application extension time file appeal always necessary consider prospect applicant succeeding appeal seeburns v grigg 1967 vicrp 113 1967 vr 871at 872 hughes 263 4 mitchelson v mitchelson 1979 24 alr 522at 524 also necessary bear mind application upon expiry time appealing respondent vested right retain judgment unless application granted vilenius v heinegar 1962 36 aljr 200at 201 follows applicant succeed application must material upon satisfied refuse application would constitute injustice judicial committee privy council pointed inratnam v cumarasamy 1965 1 wlr 8at 12 1964 3 er 933at 935 rule court must prima facie obeyed order justify court extending time step procedure requires taken must material upon court exercise discretion 12 aim overall attempt justice party 13 procedural hearing conducted appeal registrar 5 april 2022 day party appeared including applicant appeared via solicitor independent child lawyer appear filed submitting notice direction made preparation appeal paternal aunt appellant file summary argument 13 may 2022 parent maternal grandmother file summary argument 3 june 2022 issue cross appeal raised hearing either applicant maternal grandmother 14 subsequently appeal fixed hearing 21 june 2022 15 timetable complied paternal aunt submission filed 24 may 2022 submission maternal grandmother parent still yet filed solicitor apparently taken view whatever order appeal registrar may 14 day received paternal aunt submission seek extension time appeal registrar correct way proceed 16 applicant said sometime prior 5 april 2022 became aware paternal aunt appealed added spoke number solicitor legal aid private practice told point appealing decision applicant said understand advice instructed solicitor appear 5 april 2022 nonetheless 17 applicant said unhappy occurred 5 april 2022 spoke solicitor acting maternal grandmother apparently advised strong case appeal applicant say solicitor lost relevant file computer equipment flood new south wale february march 2022 hampered ability nonetheless notice cross appeal ultimately prepared solicitor attempted file appeal registry 4 may 2022 explanation 6 june 2022 present application filed 18 solicitor acting applicant also act mother maternal grandmother appeal informed bar table technical difficulty filing application accounted delay identified evidence 19 demonstrates applicant sought advice prospect appealing decision acted advice although solicitor appear procedural hearing change mind nothing suggest party court informed prospective cross appeal proposed cross appeal20 proposed notice cross appeal addition seeking order primary judge set aside seek order child live maternal grandmother sole parental responsibility spend time applicant time proposed notice cross appeal entirely different arrangement proposed maternal grandmother hearing thus leave sought applicant granted rather odd circumstance would come maternal grandmother failed get order contended appealing applicant seeking order expansive sought maternal grandmother hearing advanced proposal appealing need hardly said trial judge cannot found erred making order sought hearing outside range order fact proposed 21 applicant say hearing supported order sought maternal grandmother 22 proposed notice cross appeal raise six ground appeal necessary consider least briefly prospect success ground noting course present court limited material available ass merit proposed ground 1 honourable court erred matter law failing consider properly consider impact upon child continuing reside paternal aunt 23 primary judge said 92 absence adequate evidence impact child change residence make following finding based evidence child unlikely much memory time living mother applicant b child limited memory week time maternal grandmother mother c child never lived primarily maternal grandmother half life child lived stable safe environment paternal aunt primarily cared child e child involvement maternal family since living paternal aunt limited day time period f leaving child primary care paternal aunt result negative impact child routine disrupted g change residence maternal grandmother negatively impact child stability routine upended main role model removed life h stability routine established child maternal grandmother upended upon child transitioned live mother later child may live shared care arrangement applicant result upheaval child balance probability result negative impact child psychologically emotionally j negative impact child likely outweigh positive impact child may experience changing residence live maternal grandmother mother 95 although maternal grandmother final hearing raised issue capacity paternal aunt meet need child maternal grandmother failed provide written submission address capacity 24 clearly primary judge considered factor took account quite understand meant phrase failure consider properly consider given extensive nature finding however intended refer question weight given consideration difficult ground appeal establish norbis v norbis 1986 hca 17 1986 161 clr 513 25 significantly issue seem raised appeal apparent submission applicant application right child enjoy aboriginal heritage culture paternal aunt aboriginal descent primary judge extensive discussion said 140 summary consideration right child enjoy aboriginal culture make following finding child aboriginal side family extensively involved aboriginal culture b paternal aunt ensured child aware aboriginal culture heritage since child care c consideration give rise change residence child maternal grandmother intends ensure child enjoy aboriginal culture moving forward e enjoyment aboriginal culture achieved child remaining care paternal aunt provided child spend regular time maternal family including weekend extended holiday time 141 therefore find provided appropriate order child time maternal grandmother consideration support order change residence child 147 find absence specific evidence kinship child rearing practice culture factor assist court determining parenting arrangement child therefore factor support change residence child 26 therefore seems tolerably clear primary judge gave significant consideration matter albeit outcome consideration maternal grandmother contended applicant would contend difficult see ground succeeding proposed ground 2 court failed properly consider right child enjoy aboriginal cultural heritage failing togive sufficient weight family report writer opinion paternal aunt would properly enable child enjoy aboriginal cultural heritage give sufficient weight fact child would living country living paternal aunt failing give proper weight ss60b 2 c section b 3 thefamily law act 1975 failing give proper weight kinship obligation child rearing practice child aboriginal culture failing consider non aboriginality paternal aunt impact upon parent aboriginal parenting child 27 proposed ground 2 already dealt discussion proposed ground 1 28 matter allegation different weight given particular factor given primary judge inhouse v king 1936 55 clr 499 504 505 majority high court said manner appeal exercise discretion determined governed established principle enough judge composing appellate court consider position primary judge would taken different course must appear error made exercising discretion judge act upon wrong principle allows extraneous irrelevant matter guide affect mistake fact take account material consideration determination reviewed appellate court may exercise discretion substitution material may appear primary judge reached result embodied order upon fact unreasonable plainly unjust appellate court may infer way failure properly exercise discretion law repose court first instance case although nature error may discoverable exercise discretion reviewed ground substantial wrong fact occurred 29 seen passage separate challenge exercise discretionary judgment basis inappropriate weight given particular consideration rather seems question weight must seen prism whether decision unreasonable plainly wrong regard honour reason consider difficult ground establish proposed ground 3 honourable court erred matter law considering failing properly consider recommendation family report writer 30 well established primary judge obliged accept recommendation family report writer nonetheless evidence family report writer given substantial discussion 71 74 87 89 113 117 121 124 130 134 143 144 31 difficult persuade appellate court family report writer recommendation properly considered fact outcome consideration favour maternal grandmother case establish error proposed ground 4 honourable court erred matter law denied party procedural fairness determining thatsection 60cc 2 apply consideration matter court give notice party court intention determining issue matter 32 plain term ofs 60cc 2 thefamily law act 1975 cth act apply paternal aunt maternal grandmother undoubtedly correct see finn j inmulvany lane 2009 famcafc 76 2009 flc 93 404at 15 16 andaldridge keaton 2009 famcafc 229 2009 flc 93 421at 74 112 thus relevance importance consideration whether child benefit meaningful relationship parent le significant case would case parent 33 nonetheless primary judge found 67 disputed child loving relationship maternal grandmother parent understand importance adult life 34 also significance noted 92 extracted child unlikely much memory time living mother applicant spent time thus thes 60cc 2 consideration unlikely loom large determination proceeding 35 point however expressed party denied procedural fairness honour give party notice would determine matter way consider question lack procedural fairness honour simply applied law give advance notice 36 perhaps importantly suggestion hearing anyone raised thes 60cc 2 consideration indeed evidence entirely silent matter might assist determining prospect success proposed cross appeal proposed ground 5 court erred matter law finding child safe care paternal aunt 37 primary judge found 63 taking account evidence submission find following consideration assist court making determination future parenting arrangement child reason outlined need protect child section 60cc 2 b although concern raised time time risk factor child paternal aunt maternal grandmother find date final hearing evidence support finding child risk living primarily either paternal aunt maternal grandmother ii parent safeguard order proposed paternal aunt maternal grandmother ensure risk child minimised time occurs child parent emphasis removed 38 consistent fact child sole care paternal aunt last four year 39 put finding flawed evidence primary judge showed paternal aunt limited licence permitted drive 30 minute yet regularly taking child three hour trip note trip child spend time maternal grandmother parent even substantial attack accuracy primary finding proposed ground 6 court erred matter law finding child lived paternal aunt three half year sufficient ground make order child live paternal aunt 40 quite finding honour said 67 disputed child loving relationship maternal grandmother parent understand importance adult life 68 find relevant consideration must taken account determining future parenting arrangement child change residence child paternal aunt maternal grandmother result child removed primary carer 69 find consideration support future parenting order whereby child best interest remain living primary carer paternal aunt 41 already quoted 92 honour reason end honour said b ased finding find consideration support future parenting order whereby child best interest remain living primary carer paternal aunt self evidently first matter raised ground appeal sole basis order made consider ground appeal difficult make conclusion42 consider ground appeal may arguable indicate proposed cross appeal strong even reasonable prospect succeeding 43 application granted hearing date would vacated suggested paternal aunt would cause great cost inconvenience paternal aunt grant legal aid necessarily involve waste resource 44 importantly however need allocate another hearing date restrict litigant matter heard due course 45 inaon risk service australia ltd v australian national university 2009 239 clr 175 high court said 93 rule 21 2 b indicates rule concerning civil litigation longer considered directed resolution dispute party proceeding achievement timely cost effective resolution dispute effect upon court upon litigant insali v spc ltdtoohey gaudron jj explained case management reflected view conduct litigation merely matter party also one court need avoid disruption court list consequent inconvenience court prejudice interest litigant waiting heard footnote omitted 46 considerable time another hearing date fixed current date vacated paternal aunt entitled appeal heard promptly business court permit 47 taking matter account persuaded interest justice application extension file notice cross appeal granted 48 therefore make unnecessary deal application replace independent child lawyer however satisfied would appropriate event section 68la 2 act requires independent child lawyer form independent view best interest child act relation proceeding believe child best interest as 68la 5 act make clear independent child lawyer significant role play hearing first instance 49 necessarily role independent child lawyer constrained appeal uncommon independent child lawyer form view issue full court sufficiently appropriately ventilated party appropriate participate mere fact order independent child lawyer contended made similarly require appear appeal finally said condition grant aid circumstance independent child lawyer legal aid act also relevant 50 summary evidence fall short establishing independent child lawyer behaved way require replacement 51 follows application dismissed certify preceding fifty one 51 numbered paragraph true copy reason judgment honourable justice aldridge associate dated 17 june 2022 |
Bruny Island Cruises v Kingborough Council (109_11P); G Little v Kingborough Council and Bruny Island Cruises (110_11P) [2012] TASRMPAT 65 (20 April 2012).txt | bruny island cruise v kingborough council 109 11p g little v kingborough council bruny island cruise 110 11p 2012 tasrmpat 65 20 april 2012 last updated 26 april 2012citation bruny island cruise v kingborough council 109 11p g little v kingborough council bruny island cruise 110 11p 2012 tasrmpat 065parties appellant bruny island cruise 109 11p g little 110 11p respondent kingborough council 109 11p kingborough council bruny island cruise 110 11p address 898 915 adventure bay road bruny islandtitle tribunal resource management planning appeal tribunaljurisdiction planning appealfile 109 11p 110 11pdelivered 20thapril 2012delivered hobarthearing date submission made writingdecision sj cooper chairmanme ball memberp spratt membercatchwords condition supplementary decisiondecisionhaving heard party tribunal directs council issue permit respect subject appeal subject following condition 1 except otherwise required permit use development land must substantially accordance development application da2011 79 drawing p2 submitted 2ndmarch 2011 permit relates use land building irrespective applicant subsequent occupant whoever act must comply condition permit amendment variation extension permit requires planning consent council permit expires cease effect 31 december 2014 us authorised permit site must cease date site 898 adventure bay road must left tidy condition seeded grass satisfaction manager planning end time period specified crown land access adventure bay beach must obstructed time fencing must provided within 30 day along boundary 911 915 adventure bay road reduce impact pedestrian parking encroachment onto property situated 911 adventure bay road cost fencing borne wholly developer comprise rural post wire construction minimum final detail fencing proposed provided prior construction within 30 day satisfaction manager planning amended parking layout plan parking 915 adventure bay road adjacent crown land submitted within 30 day approval manager planning amended layout must avoid parking within 0 5 metre drainage path absorption trench shown amended layout plan existing sealed entranceway reinstated minor rutted pot holed area existing car park gravel pavement repaired satisfaction manager engineering service car parking 915 adventure bay road adjacent crown land used staff parking disabled parking bus 898 adventure bay road provide parking patron require disability parking parking site office 915 adventure bay road adjacent crown land must contained within area approved condition 5 plan submitted council within 30 day prior commencement work outlining measure mitigate potential impact car park adjacent riparian zone waterway measure may include necessarily restricted installation barrier large rock demarcate edge car park prevent encroachment vehicle riparian vegetation stormwater management prevent sedimentation designed constructed developer compliance water sensitive urban design best practice utilizing collection swale retention filter basin outfall drainage plan shall provided suitably qualified person approval satisfaction manager engineering service andno parking permitted time swale drain existing sandwich board sign located 915 adventure bay road adjacent crown land relocated within 30 day back road frontage sufficient distance well clear traffic direction signage entrance crown land reserve satisfaction manager planning landscaping must provided along front boundary car park 898 adventure bay road landscaping planting must native specie suitable coastal environment satisfaction manager planning height greater 1 metre encroach onto access exit car park landscaping maintained time expiration permit revised car parking layout plan 898 adventure bay road prepared submitted satisfaction manager planning within 30 day suitable temporary signage displayed near 898 adventure bay road indicate location parking business detail signage provided within 30 day approval manager planning operation maintenance car park 898 adventure bay road must ensure people directed park area affected collection water car park surface heavy downpour forecast occur area car park surface become worn unstable must reseeded grass specie suitable site condition winter season andin event area car park surface becomes unstable surface must stabilised use geo grid material boddingtons turf protecta similar operation car parking area must ensure parking attendant located 898 915 adventure bay road adjacent crown land direct parking vehicle time vehicle expected arriveen masseand sufficient meet need business person responsible assisting parking vehicle must wear high visibility vest appropriate ppe clothing andthe practice allowing car come 915 adventure bay road adjacent crown land turn spot return car park 898 adventure bay road must avoided number boat associated use limited four twice per day maximum number passenger 42 per boat council directed issue permit within 14 day decision tribunal entertain application order cost appeal made tribunal writing supporting submission within next 14 day requested tribunal reconvene hear evidence respect matter bearing order cost absence application order cost order tribunal party bear cost dated 20thday april 2012m e ball j cooperp sprattmemberchairmanmember |
Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249 (12 September 2017).txt | carbone v toyota motor corporation australia ltd 2017 vsca 249 12 september 2017 last updated 12 september 2017supreme court victoriacourt appeal apci 2017 0028ron carboneapplicantvtoyota motor corporation australia limitedrespondent judge osborn priest kaye jjawhere held melbournedate hearing 30 august 2017date judgment 12 september 2017medium neutral citation 2017 vsca 249judgment appealed 2017 vcc 73 judgebourke accident compensation worker compensation serious injury impairment right left shoulder whether substantial organic basis disentanglement pain suffering loss earning capacity whether trial judge failed provide adequate reason finding credibility applicant whether denial procedural fairness application leave appeal refused accident compensation act 1985s 134ab mutual cleaning maintenance pty ltd v stamboulakis 2007 vsca 46 2007 15 vr 649 hunter v transport accident commission 2005 vsca 1 ucar v nylex industrial product pty ltd 2007 vsca 181 2007 17 vr 492 appearance counselsolicitorsfor applicantfor respondentmr j mighell qc withmr r ajzensztatmr meara qc withmr r kumarnowicki carbone lawyersminter ellison lawyersosborn jakaye ja 1 applicant issued proceeding county court sought leave pursuant tos 134abof theaccident compensation act1985 |
1905867 (Migration) [2020] AATA 3645 (12 May 2020).txt | 1905867 migration 2020 aata 3645 12 may 2020 last updated 18 september 20201905867 migration 2020 aata 3645 12 may 2020 decision recorddivision migration refugee divisioncase number 1905867member meena sripathydate 12 may 2020place decision sydneydecision tribunal set aside decision review substitute decision cancel applicant subclass 155 five year resident return visa statement made 12 may 2020 11 11amcatchwordsmigration cancellation return residence class bb visa subclass 155 five year resident return satisfied identity incorrect answer application taken innocent error consistent claim regarding identity circumstance ground cancellation exist power cancel visa arise decision review set asidelegislationmigration act 1958 cth s 116 360casesjasbeer singh v miea 1994 fca 1534 1994 127 alr 383mian v milgea 1992 fca 261 1992 28 ald 165miea v wu liang 1996 185 clr 259mimia v qaah 2006 hca 53 2006 231 clr 1zhao v mima 2000 fca 1235any reference appearing square bracket indicate information omitted decision pursuant tosection 378of themigration act 1958and replaced generic information statement decision reasonsapplication reviewthis application review decision dated 12 march 2019 made delegate minister home affair cancel applicant subclass 155 five year resident return visa unders 116of themigration act 1958 act delegate cancelled visa unders 116 1aa basis delegate satisfied applicant identity issue present case whether ground cancellation made whether visa cancelled reaching decision tribunal consider hearing necessary able find favour visa applicant basis material pursuant tos 360 2 act following reason tribunal concluded decision cancel applicant visa set aside claim evidencethe applicant arrived australia boat march 2010 christmas island claimed protection basis stateless iraqi born refugee living iran married number child remained iran granted protection visa 27 january 2011 following favourable assessment claim protection independent merit reviewer imr 19 december 2010 imr accepted well founded fear persecution iran reason membership particular social group displaced person iraqi origin 19 april 2016 applicant granted resident return subclass 155 visa 28 april 2011 applicant proposer family member global special humanitarian subclass 202 visa application application applicant wife citizenship indicated iraq 22 october 2013 applicant wife lodged partner subclass 309 visa application sponsored applicant application applicant wife indicated respective form 47sps stateless 12 february 2015 applicant lodged application australian citizenship form 1290 application indicated citizenship iraq form 80 completed part citizenship application responded q6 regarding current citizenship country stateless neither iraqi iranian government accepted citizen country stat dec already provided dibp part citizenship application process applicant case referred department identity business support team 13 may 2015 identity assessment applicant interviewed officer department identity unit 23 october 2015 29 october 2015 officer concluded applicant identity supported basis provided genuine identification document found reliable support claimed identity time protection visa application 27 september 2018 delegate minister sent applicant notice intention consider cancellation s116 migration act noicc informing ground cancellation resident return subclass 155 visa inviting comment ground cancellation give reason cancelled noicc provided particular ground cancellation information indicating ground appear exist including detail rsa imr process response citizenship question subsequent subclass 202 partner citizenship application form concern raised identity officer following interview held 23 october 2015 delegate considered information found number inconsistent contradictory aspect identity presented department since arrival australia delegate considered true identity known 10 october 2018 applicant representative responded noicc statutory declaration submission statutory declaration 10 october 2018 applicant maintained ever provided one name department since arrival explained circumstance consistently dealing department explained circumstance family name green card first issued disclosed explained time entry australia born iraq lived many year referred iraqi form mean iraqi citizen iraqi background explained consistently stated left iran false iranian passport wife also born iraq iraqi background time lodgement humanitarian partner visa application stateless contradict considered iraqi background born iraq applicant wife since obtained iranian citizenship father iranian citizenship passport name m applicant state advised department form 80 child iranian citizenship passport result mother citizenship applicant state m b person m wife never iraqi citizen applicant state 100 honest department beginning never held identification document prove identity always stateless applicant state know mr c iran iraqi background applicant cannot comment place lived earlier migration history applicant state date birth given consistently department denies ever providing date date applicant representative submission reiterated information provided applicant attested applicant credibility honesty representative also referred applicant vulnerability including lack education illiteracy consequence rely others complete form behalf may lead misunderstanding department submitted applicant always undocumented stateless provided consistent information circumstance department time entry disadvantaged visa cancellation account stateless undocumented status 12 march 2019 considering submission explanation delegate decided cancel applicant visa basis s116 1aa finding ground cancellation exists reason cancelling outweighed reason cancelling visa material administrative appeal tribunal aat tribunal substantial number medical report provided context request fee reduction priority processing report detail applicant multiple health condition fragile mental health circumstance exacerbated prolonged processing family reunion citizenship application subsequent visa cancellation review application granted priority processing may 2019 however unfortunately constituted present tribunal 12 february 2020 tribunal initially set matter person hearing 8 april 2020 31 march 2020 hearing postponed due circumstance covid 19 pandemic applicant provided submission supporting material tribunal 18 march 2020 including copy statement submission provided previously department response noicc also copy correspondence representative identity officer 25 october 2015 statutory declaration made applicant 26 october 2015 27 october 2017 repeating claim previously made background circumstance tribunal note latter correspondence included document file number provided tribunal considered material including department file number applicant numerous statutory declaration submission tribunal consider hearing necessary able find favour visa applicant basis material pursuant 360 2 act tribunal consideration reason provided consideration reason decisonunder 116 act minister may cancel visa satisfied certain ground specified provision made relevantly case include ground set 116 1aa satisfied ground cancellation made decision maker must proceed consider whether visa cancelled regard relevant circumstance may include matter government policy ground cancellation exist 116 1aa satisfied identitya visa may cancelled 116 1aa minister tribunal review satisfied visa holder identity subparagraph introduced 2014 1 explanatory memorandum legislation inserting 116 1aa provides following example ground may arise two document piece information person identity given behalf relation visa holder possible form conclusion regarding document piece information genuine 2 departmental guideline indicate ground apply example non citizen used false identity obtain visa true identity later confirmed visa cannot cancelled s116 1aa delegate satisfied visa holder identity guideline also caution thatin deciding whether satisfied visa holder identity delegate must consider visa holder individual circumstance take account fact visa applicant legitimate difficulty obtaining evidence identity particularly refugee status 3 applicable conflicting information visa holder identity decision maker cannot satisfied true identity well established civil law concept onus standard proof generally inappropriate context administrative decision making 4 however cancellation case existence fact ground exercise statutory power onus establishing fact minister review tribunal 5 present case delegate satisfied applicant true identity reaching conclusion delegate referred concern credibility applicant evidence explanation basis alleged discrepancy response various previous interview discrepancy inconsistency response identity interview 23 october 2015 rsa interview 2010 delegate also referred concern applicant information wife subsequent acquisition iranian citizenship credibility concern applicant explanation individual provided supporting statement wife partner visa application mr c delegate appears relied heavily conclusion identity assessment report reaching conclusion satisfaction applicant identity turn relied heavily adverse credibility assessment applicant absence identification documentation issue tribunal review whether regard evidence information tribunal satisfied applicant identity reason follow tribunal reached different conclusion delegate satisfied evidence material applicant true identity applicant name born date evidence establishes applicant upon arrival australia boat march 2010 made protection claim basis stateless arab born iraq whose family expelled iran 1980 claimed initially held green card returning iraq 2003 coming back iran subsequently never held documentation iran came australia claim born stateless iraq expelled iran 1980 basis establish citizenship claim iraq accepted rsa initial process imr review protection claim 2010 basis credible oral evidence country information current time tribunal considers appropriate cancellation process revisit merit original protection decision tribunal carefully considered information evidence regarding matter applicant identity tribunal find applicant made consistent claim regarding identity circumstance since arrival australia found credible witness matter delegate rsa process reviewer imr process tribunal observes document piece information contradicts inconsistent claim basis taking account legitimate difficulty person applicant circumstance stateless persecuted refugee would provide documentary evidence identity tribunal satisfied identity claimed strictly necessary sake comprehensiveness review tribunal address concern issue raised delegate identity officer tribunal considered evidence provided previously protection visa application made relates matter identity find consistent name date birth since arrival australia 2010 explained detail entry interview documented note included file number folio 20 family name used circumstance acquired consistent repeating explanation since applicant continues consistently maintain undocumented iraqi born refugee iran tribunal note granted protection basis claim 2010 evidence document information contradict claim identity identified department example evidence support hold iraqi citizenship hold contrary claim iranian documentation regarding response iraqi relation partner question citizenship subclass 202 application tribunal accepts plausible reasonable explanation provided applicant meant partner iraqi background born also accepts may misunderstood question implication response taking account language barrier educational background note provided document evidence wife iraqi citizenship application event subsequent partner application form applicant correctly indicated citizenship stateless also accepts explanation incorrect reference iraqi citizenship citizenship application anyway contradicted response form 80 stateless taking context regard otherwise consistent history claim statelessness tribunal draw negative inference response application form accepts innocent error misunderstanding part regarding concern identified identity officer report alleged reference applicant partner m born year biodata interview upon arrival australia inconsistently information later provided wife name date birth tribunal observes evidence biodata interview provided file number evidence tribunal inconsistent information provided applicant event tribunal see relevance matter true identity reference identity officer allegedly contradictory information statutory declaration form 888 mr c departmental record indicating migrated australia 1998 former country residence iraq irrelevant issue applicant true identity event appears identity officer delegate relied information somewhat dubiously given evidence support mr c never lived iran appears relied without sound basis cast aspersion applicant general credibility finally identity officer refers concern applicant evidence protection claim documentation held iran credibility claim due alleged inconsistency account provided tribunal considered information evidence given applicant rsa imr process account identity interview held 23 october 2015 noting audio recording interview provided tribunal find may inconsistency regarding whether applicant given white card prior departing iran iraq 2003 consistent stating held document returned iraq iran 2004 tribunal also note applicant claim regarding experience iraqi refugee iran period considered context country information imr review found consistent supported information basis tribunal satisfied applicant identity basis information provided regarding status documentation protection visa process carefully considered material concern issue raised delegate identity officer conducted identity assessment tribunal satisfied basis doubt applicant claim true identity consistently maintained undocumented stateless refugee basis claim protection australia first place claim accepted granted protection visa january 2011 evidence tribunal doubt veracity claim suggesting identity applicant living australia applicant name almost 10 year evidence ever applied held iraqi id iraqi passport iranian id iranian passport issued used titre de voyage travel document australian government name residing australia issued photo id name hold australian pension card also name basis evidence tribunalis satisfied applicant identity claimed applicant name reason tribunal satisfied ground cancellation 116 1aa exists follows power cancel applicant visa arise regard reason finding taking note significant distress hardship evidenced medical report provided caused delay processing applicant family partner citizenship application due visa cancellation decision tribunal considers would appropriate desirable processing pending application resumed prioritised without delay decisionthe tribunal set aside decision review substitute decision cancel applicant subclass 155 five year resident return visa meena sripathymember 1 inserted 129 2014 2 explanatory memorandum migration amendment character general visa cancellation bill p 24 16 3 pam3 visa cancellation instruction general visa cancellation power s109 s116 s128 s134b s140 s116 1aa satisfied identity issue date 29 3 2020 4 seemiea v wu liang 1996 185 clr 259at 282 3 mimia v qaah 2006 hca 53 2006 231 clr 1at 40 case cited 5 seezhao v mima 2000 fca 1235 french hill carr jj 1 september 2000 25 32 34 see alsomian v milgea 1992 fca 261 1992 28 ald 165at 169 andjasbeer singh v miea 1994 fca 1534 1994 127 alr 383per sackville j 14 two case court referring burden proving relevant fact said attract 20 force 1 september 1994 turn attracted deportation power principle would equally applicable visa cancellation |
ATP Group Pty Ltd and Tax Practitioners Board [2015] AATA 225 (16 March 2015).txt | atp group pty ltd tax practitioner board 2015 aata 225 16 march 2015 last updated 16 april 2015 2015 aata 225 ul none list style none divisiongeneral administrative divisionfile number 2015 0240reatp group pty ltdapplicantandtax practitioner boardrespondentdecisiontribunalprofessor r deutsch deputy presidentdate16 march 2015date written reasons15 april 2015placesydneypursuant section 41 2 aat act tribunal order implementation respondent decision 23 december 2014 cancel registration atp group pty ltd tax agent stayed decision tribunal application review come operation order tribunal agreed condition order applicant cannot provide taxation service new client decision respondent review professor r deutsch deputy presidentcatchwordspractice procedure stay operation decision cancel registration tax agent public interest reputational damage prospect success stay grantedlegislationadministrative appeal tribunal act 1975 cth 41 2 casesre axo3d tax agent board new south wale 2003 53 atr 1083casesre commonwealth australia quirke 1986 aata 57 1986 9 ald 92shi v migration institute australia ltd 2003 fca 1304 2003 134 fcr 326reasons decisionprofessor r deutsch deputy president15 april 2015introducionin proceeding applicant atp group pty ltd atp group seek stay unders 41 2 theadministrative appeal tribunal act 1975 cth decision made respondent tax practitioner board tpb cancel registration atp group tax agent decision cancel registration tax agent ordinarily stayed administrative appeal tribunal aat unless public interest requires otherwise tamberlin j observed inshi v migration institute australia ltd 2003 fca 1304 2003 134 fcr 326at 333 refusal stay may prove devastating applicant 28 evident decision favourable applicant made aat agent case wrongfully deprived opportunity earn livelihood time time favourable determination may also damage practice reputation provision recovery loss disruption practice loss reputation goodwill favourable decision applicant aat would also mean applicant wrongfully refused registration important consideration 29 applicant present case granted stay effectiveness hearing determination application review diminished consideration relevant grant stay conveniently summarised senior member sassella inre axo3d tax agent board new south wale 2003 53 atr 1083and need repeated stay grantedafter due consideration tribunal decided grant stay relation decision tpb following reason atp group succeed primary application cancellation reversed would suffer serious damage reputational otherwise matter stayed b atp group 925 client rely conduct tax affair primary application fail would need find new agent stage time cost inconvenience would entail warranted c half client atp group arabic speaker feel comfortable communicating tax agent speak language circumstance forcing many client almost 500 find new agent requisite arabic skill warranted stage seems identifiable material prejudice tpb stay granted e director atp group relies predominately income earned activity atp group provide family f addition director five employee atp group face losing job stay granted stay granted primary application ultimately successful would particularly unfair outcome five employee g atp readily agreed condition provide taxation service new client decision tpb review atp group found breached condition matter referred back aat stay would immediately revoked prospect successit appropriate application stay conduct preliminary trial issue fall ultimate decision aat senior member williams inre commonwealth australia quirke 1986 aata 57 1986 9 ald 92at 95 however noted atp group maintains application review good prospect success without elaborating ground seem genuine disagreement atp group tpb strength case atp group without able ass properly prospect success consequently position take factor account one way directionsi put place step direction ensure matter heard expeditiously possible limit duration stay order decisionthe implementation respondent decision 23 december 2014 cancel registration atp group pty ltd tax agent stayed decision tribunal application review come operation order tribunal agreed condition order applicant cannot provide taxation service new client decision respondent review certify preceding 9 nine paragraph true copy reason decision herein professor r deutsch deputy president sgd associatedated 15 april 2015date hearing16 march 2015counsel applicantmr b c kasepsolicitors applicantbrown wright stein lawyerssolicitors respondenttax practitioner board |
United Kingdom v Forsyth (No 3) [2003] FCA 1097 (10 October 2003).txt | united kingdom v forsyth 3 2003 fca 1097 10 october 2003 last updated 13 october 2003federal court australiaunited kingdom v forsyth 3 2003 fca 1097extradition judicial review bail order jurisdictional error quashing bail order previous remand custody effect implementation ordersunited kingdom v charles alistair forsyth anotherw203 2003french j10 october 2003sydneyin federal court australiawestern australia district registryw203 of2003between united kingdomapplicantand charles alistair forsythfirst respondenthis worship mr robert blacksecond respondentjudge french jdate order 10 october 2003where made sydneythe court order 1 hereby declared order learned stipendiary magistrate 22 august 2003 unders 15 2 theextradition act 1988 cth whereby remanded first respondent custody remains effect 2 first respondent surrender later 4pm 10 october 2003 former custody accordance written direction commonwealth director public prosecution place manner surrender 3 event first respondent fails comply preceding order may taken custody pursuant learned magistrate order 22 august 2003 provided first respondent hospital time arrangement may made taken custody remain hospital fit removed remand prison 4 copy order served first respondent soon practicable note settlement entry order dealt order 36 federal court rule federal court australiawestern australia district registryw203 of2003between united kingdomapplicantand charles alistair forsythfirst respondenthis worship mr robert blacksecond respondentjudge french jdate 10 october 2003place sydneysupplementary reason judgmenton implementation orders1 22 september 2003 worship mr r black sm made order releasing first respondent bail pending determination whether eligible extradition provision theextradition act 1988 cth order renewed varied condition 23 september 2 united kingdom sought judicial review learned magistrate decision 7 october 2003 reason published made order following term 1 order nature certiorari second respondent decision 22 september 2003 release first respondent bail decision 23 september 2003 continue release upon bail quashed 2 order nature mandamus directed second respondent consider determine first respondent application bail according law 3 first respondent pay applicant cost application 4 liberty party apply written submission within forty eight hour necessary direction relating implementation order 3 subsequently united kingdom submitted uncertainty whether first respondent remanded custody result order made 7 october meantime matter relisted learned stipendiary magistrate 13 october 2003 4 effect order made 7 october quash decision releasing mr forsyth bail would therefore sufficed opinion application made warrant issue arrest mr forsyth event surrender custody 5 mr forsyth also made submission regard submission may summarised follows 1 would unjust remand custody opportunity put argument release bail worship mr black sm 13 october 2 remanded custody preparation hearing 13 october prejudiced 3 would dangerous health remanded custody respect may noted mr forsyth discharged royal perth hospital 8 october relatively low safe blood pressure maintains blood pressure rose thereafter hakea remand prison cannot offer satisfactory expeditious medical attention requires time remains danger heart attack stroke reason hypertension numerous medical report attached submission 4 order made worship mr black 22 august may invalid valid united kingdom warrant existence time made 5 event found guilty united kingdom offence charged would unlikely receive term two year imprisonment opinion none argument discloses ground upon court decline give effect order quashing learned magistrate bail order 22 23 september 6 respect mr forsyth ongoing medical condition letter dr beilin 7 october stated medical condition place restriction movement activity well enough leave hospital mr forsyth discharged royal perth hospital 8 october morning however mr forsyth father sent fax court advising son readmitted royal perth hospital last night referral letter dr pauline de boer dalkeith medical centre attached referral letter appear fully reproduced fax indicated measured discharge blood pressure 235 150 dr de boer contacted dr beilin recommended mr forsyth readmitted opinion arrangement may made surrender custody taken custody hospital remain hospital fit removed remand prison 7 argument lawfulness custody period united kingdom warrant force validity remand order made 22 august learned magistrate accepted mr forsyth arrest subsequent custody remand order made 22 august flowed provisional warrant validity impugned provision theextradition actrelevant proceeding following arrest 8 regard finding made validity learned magistrate bail order order made judgment 7 october injustice requiring mr forsyth taken custody pending consideration application bail learned magistrate far ability prepare hearing 13 october concerned would appear worse respect reason remanded custody person custody wish apply bail 9 put beyond doubt requirement taken custody make declaration order unders 23of thefederal court australia act 1976 cth following term hereby declared order learned stipendiary magistrate 22 august 2003 unders 15 2 theextradition act 1988 cth whereby remanded first respondent custody remains effect 10 form order suggested counsel director public prosecution mr forsyth therefore surrender former custody precise manner location surrender arranged office director public prosecution dpp otherwise subject written direction dpp order give practical effect declaration make following additional order first respondent surrender later 4pm 10 october 2003 former custody accordance written direction commonwealth director public prosecution place manner surrender event first respondent fails comply preceding order may taken custody pursuant learned magistrate order 22 august 2003 provided first respondent hospital time arrangement may made taken custody remain hospital fit removed remand prison copy order served first respondent soon practicable 11 would add notwithstanding mr forsyth submission cost cost follow event case order respect stand certify preceding eleven 11 numbered paragraph true copy reason judgment herein honourable justice french associate dated 10 october 2003counsel applicant mr puttsolicitor applicant commonwealth director public prosecutionsmr ca forsyth appeared behalfdate submission applicant date submission first respondent 8 october 20039 october 2003date judgment 10 october 2003 |
Morcos and Secretary, Department of Social Services (Social services second review) [2017] AATA 530 (21 March 2017).txt | morcos secretary department social service social service second review 2017 aata 530 21 march 2017 last updated 26 may 2017morcos secretary department social service social service second review 2017 aata 530 21 march 2017 administrative appeal tribunaladministrative appeal tribunal 2016 2710general division nagwa morcosapplicantand secretary department social servicesrespondentdirectiontribunal bill stefaniak rfd senior memberdate 11 may 2017place sydneythe tribunal directs registrar pursuant tosubsection 43aa 1 theadministrative appeal tribunal act 1975 alter text decision application reference applicant paragraph 26 decision replaced respondent andthe word respondent inserted word applicant paragraph 29 decision sgd bill stefaniak rfd senior memberdivision general divisionfile number 2016 2710re nagwa morcosapplicantandsecretary department social servicesrespondentdecisiontribunal bill stefaniak rfd senior memberdate 21 march 2017date written reason 20 april 2017place sydneyfor reason given orally conclusion hearing matter decision social service child support division tribunal dated 3 may 2016 set aside substituted decision applicant portability period disability support pension extended 7 october 2015 sgd bill stefaniak rfd senior membercatchwordssocial security disability support pension portability period request extension gastroenteritis neck back problem reasonable effort return australia first available opportunity decision set aside decision made substitutionlegislationsocial security administration act 1999 cth 1218ccasesalimi secretary department family community service 2004 aata 621secondary materialsguide social security lawwritten reason oral decisionbill stefaniak rfd senior member20 april 2017this matter nagwa morcos secretary department social service matter 2710 2016 matter mr morcos migrated australia egypt working many year injured receipt disability support pension since 2000 go back egypt family reason back quite arranged go back 1 september 2015 returning australia 29 september flight leaving australia 1 september leaving cairo 27 september well within period person disability support pension go overseas still receive pension however period 28 day rule unless exceptional circumstance person disability pension stop reactivated return australia mr morcos gave evidence started feeling unwell 18 september worried acute gastroenteritis suffering would able return australia leave cairo 27 september planned made inquiry oman air travelling returning later time informed would able return another month e flight would get back australia 28 october initial attempt see doctor managed see doctor dr habib family arranged 25 september 2015 prescribed medicine rest evidence given earlier proceeding stated basically flat back first three day seeing doctor needed two day recovery five day period namely 30 september felt lot better seems last stage would appear probably early october certainly evidence suggest september realised fact recovering fully appeared ailment also become something condition got disability support pension neck back problem attended 9 october 2015 another appointment dr habib complaining lower back pain neck stiffness doctor stated required physiotherapy bed rest another two week previously recommended 25 september bed rest rehydration noted 29 september 2015 department sent letter notifying disability support pension payment suspended attended 25 october doctor appointment complaining ongoing lower back pain neck stiffness dr habib indicated certainly could travel reported required physiotherapy bed rest month day 25 october changed date return flight 22 november 2015 appears improvement 10 november applicant able arrange earlier flight got back australia 17 november disability support pension restored date requested 4 december 2015 extension portability rejected circumstance deemed extreme emergency nature sought review relation reviewing officer altered decision extended portability period one day 30 september 2015 reason evidence come could possibly travelled five day seeing doctor 25 september 30th would appear would able travel deemed reviewing officer extension unable considered decision affirmed 3 may 2016 aat1 rejected applicant request extension 23 may 2016 applied tribunal review aat1 decision reason portability period extended due gastroenteritis centrelink aat1 agreed eligible condition extend portability period first possible date travel 25 october 2015 requested portability period extended date legislation relation matter specifically section 1218c thesocial security administration act 1999 cth provision need regard firstly must say thank respondent submission requested matter respondent restates regard must theguide social security law guide guide also replicated number case guide section 7 1 2 10 guide something tribunal regard unless cogent reason contrary say necessary matter affecting recipient serious prevented returning australia exception recipient portability period extended person make reasonable effort return australia first available opportunity e g extension allowed due illness recipient required return immediately health allows extension intended period treatment recovery overseas could reasonably undertaken upon return australia part guide quoted number case one dispute serious illness accepted matter relation raised hearing question problem neck back certainly satisfied relation neck back portability cannot extended unless event occurred began period absence appears little vague neck back problem really came quite possible neck back problem applicant gastroenteritis quite possible actually fact late september however medical evidence effect merely possibility applicant indicates effectively recovered gastroenteritis thing still quite visited doctor 9 october would seem evidence available likely became apparent back neck problem causing difficulty short time prior 9 october would early october rule event least begin period absence accordingly problem gastroenteritis problem back neck pain would appear apparent detected early october nothing indicate would something indicate could satisfied balance probability neck back pain problem began period absence 1 september 29 september unfortunately relation particular ailment cannot rely cover situation case note seeking appears portability extension 25 october thereabouts word first extension plane ticket managed paid 600 egyptian pound fact seems paid amount least two occasion possibly three relation changing date flight six hundred egyptian pound 100 australian dollar note unfortunately restricted seems appreciate first period actually look doubt accepted serious illness something would enabled extend portability already extended one day issue look therefore issue whether could said made reasonable effort return australia first available opportunity indeed first available opportunity applicant provided assistance relation case law matter ofalimi secretary department family community service 2004 aata 621 case mr alimi disability support pension wife believe carer pension interest bulgaria well australia quite period time relevant time bulgaria disputed mr alimi could return australia medical problem however defy doctor advice returned australia 27 january 2004 wife carer reason could pay cost returning point bulgaria number month unlike current case applicant return ticket try get extended alimis mr alimi normally accompanied husband return seems could afford cost stage evidence indicated applicant mr alimi would accompanied mr alimi lack fund could said inability return australia continued serious illness husband meant go back could afford went back took risk went back would covered date fundamentally expected would gone back otherwise would forfeit pension type pension one could forfeited accordingly extended december 2003 27 january 2004 extension dependent person caring namely husband disability support pension returned australia case assistance directly point unfortunately rate particularly help applicant note applicant able 10 november arrange earlier flight stage recovered sufficiently return australia could get flight back several day later got back australia 17 november 2015 ticket capable extended date changed payment fee already discussed evidence given oman air yes date changed depends availability certainly quite possible date changed indeed ring one day get ticket next day regarding additional information provided 23 february 2017 oman air australia mr lones mr lones asked airline number written question asked relevant period september 21 october 25 2015 would flight stated ticket level readily available cairo sydney frequently would flight e g daily weekly etc would expected timeframe person would able book next available flight ticket level eg within day two day etc ticket level generally would flight available september 21 october 25 2015 oman air operate independently respect flight availability dependant country changing ticket oman air responded hello andrew line industry practice oman air sell product dynamically meaning airfare availability given journey change given time day availability market specific based global demand booking level given time per previous advice confirm frequency flight connection cairo sydney daily impossible u advise ticket level specified past sale period requesting subject flight availability customer could potentially rebook anytime check close day departure kind regard depends flight availability impossible say situation time question theoretically one could change flight day notice respondent relied evidence go evidence busy time certainly september time pilgrim going mecca coming back mecca therefore one would expect would little bit harder normal perhaps seat become available conversely seat become available people might example like applicant get sick cannot travel little bit air evidence assistance except evidence 10 november 2015 applicant able change booking flight got back australia within seven day concrete piece evidence certainly would think law guideline one would expect person applicant position buy fresh ticket get back first available opportunity might available day two would cost probably much initial return ticket someone disability support pension would clearly able afford probably would call taking reasonable effort return australia key word guideline reasonable key word first available opportunity take reasonable effort return australia first available opportunity unfortunately restricted first period gastroenteritis factor firstly oman air available every day potentially secondly clearly unlikely would possible thirdly definite evidence tried evidence applicant ringing daily trying change flight beforehand feeling well continued feel well 25 october 10 november able arrange flight get back australia seven day time changed flight september late october early october problem going away clear relating main condition got pension first place bad back spinal neck problem clearly needed medical assistance unfortunately said condition outside portability period governed particular matter september period clearly state would seem probably late october even bit beyond realistically come back australia would different diagnosed back neck problem affecting september well normal 28 day period spoken case clearly would strong position probably portability period may well extended way 17 november diagnosed effectively prior 29 september medical certificate first available time could get back unfortunately one period relevant 21 september 28 october also make comment accept respondent argument really waited 25th extend period think would necessarily meant difference term ticket availability think practical rather lose airfare soon felt problem actually try change ticket try get next available flight class ticket given medical problem 21 september think anything really turn saw doctor could 25th event flowed particularly think would helped waited 25 september fact period extended ticket might even 28 october know think huge amount turn accordingly actually go fact turned mind first attempted bring latest departure date forward able get one within seven day period accordingly fact fact appears 30 september acute gastroenteritis ceased far cause inability travel whilst unable instance extend period 25 october requested certainly extend week 7 october basis firstly unfortunately restricted gastroenteritis episode secondly whilst oman air daily flight evidence indicate would able pick flight day rang therefore got back earlier evidence relation successful attempt 10 november bring ticket forward got back 17 november actually go think circumstance fully cover guide state person must make reasonable effort return australia first available opportunity accordingly first available opportunity able travel due illness case acute gastroenteritis subsiding sufficiently enable travel would seven day 30 september relation sorry cannot extend long applicant request able basis extend seven day decisionso formal order tribunal decision aat1 3 may 2016 set aside portability period extended 7 october 2015 ul none list style none certify preceding 48 forty eight paragraph true copy reason decision herein bill stefaniak rfd senior member sgd associatedated 20 april 2017date hearing 21 february 2017 21 march 2017applicant person telephonesolicitors respondent lones department human service |
G4S Custodial Services Pty Ltd T_A G4S Custodial Services Pty Ltd [2022] FWCA 1501 (4 May 2022).txt | g4s custodial service pty ltd g4s custodial service pty ltd 2022 fwca 1501 4 may 2022 last updated 4 may 2022 2022 fwca 1501fair work commissiondecisionfair work act 2009s 185 enterprise agreementg4s custodial service pty ltd g4s custodial service pty ltd ag2022 1176 melbourne custody centre enterpriseagreement 2021corrections detentionsdeputy president boycesydney 4 may 2022application approval melbourne custody centre enterprise agreement 2021 1 application made approval enterprise agreement known themelbourne custody centre enterprise agreement 2021 agreement application made pursuant tos 185of thefair work act 2009 act made g4s custodial service pty ltd employer agreement single enterprise agreement undertaking 2 employer provided written undertaking dated 3 may 2022 undertaking attached atannexure ato decision become term agreement satisfied undertaking cause financial detriment employee covered agreement compared relevant provision thecorrections detention private sector award 2020 award undertaking result substantial change agreement coverage employee organisation 3 community public sector union cpsu bargaining representative agreement given notice unders 183of act want covered agreement accordance withs 201 2 act note agreement cover organisation conclusion 4 subject undertaking referred satisfied requirement ofss 186 187 188and190of act relevant application approval met 5 satisfied beneficial entitlement ne prevail inconsistency agreement ne 6 agreement approved accordance withs 54of act operate 11 may 2022 nominal expiry date agreement 4 may 2025 deputy presidentprinted authority commonwealth government printer ae515870pr741207 annexure |
Plaintiffs S147_2013 v Minister for Immigration and Citizenship and Anor [2013] HCATrans 288 (14 November 2013).txt | plaintiff s147 2013 v minister immigration citizenship anor 2013 hcatrans 288 14 november 2013 last updated 19 november 2013 2013 hcatrans 288in high court australiaoffice registrysydney s147 2013b e w e e n plaintiff s147 2013plaintiffsandminister immigration citizenshipfirst defendantk watsonsecond defendantsummonsbell jtranscript proceedingsat sydney thursday 14 november 2013 9 29 amcopyright high court australiamr p joel honour appear plaintiff instructed adrian joel co mr reilly may please appear first defendant instructed sparke helmore lawyer honour yes mr joel mr joel would seek timetable answer summons honour mr joel think controversy today appropriate order made understand first defendant opposes grant extension time seek would deal application today mr joel case honour situation find barrister conduct matter commencement proceeding america could avoid america course excuse opportunity look elsewhere course difficulty plaintiff financially destitute honour mr joel wonder could interrupt moment opportunity look material filed including affidavit affirmed filed yesterday circumstance might take matter mr reilly return mr joel thank honour honour note submitting appearance filed part second defendant mr reilly apprehend situation reason set affidavit affirmed mr joel yesterday sought matter application enlarge time stood date would enable counsel retained matter appear circumstance suggested based counsel advice need consider amending application articulate somewhat different ground challenge mr reilly well yes think applicant seeking honour matter listed hearing time court letter 28 october 2013 attached affidavit think honour referring explicitly state summons listed hearing today time friend mr joel notice since time fact ensure counsel available matter long history fully prepared party filed written submission seem u reason mr joel cannot proceed basis written submission today honour well say fully prepared mr reilly yes honour evidence court desire consider amending application take account counsel advice respecting articulation one base challenge mr reilly circumstance counsel retained circumstance counsel shown forbearance matter fee plaintiff financial position deposed mr joel prejudice relatively short adjournment proceeding enable counsel present client case mr reilly cost side public interest matter determined regard fact application year two month time honour mr reilly conscious equally circumstance seem cast somewhat different light question extent length delay regard commencement proceeding federal magistrate court albeit wrongly mr reilly application removal proceeding court separate application yet determined court finally repeated advice applicant lawyer u finally belated filing properly constituted proceeding court month ago honour term desire amend seem two issue one availability counsel original counsel briefed well said friend mr joel notice since 28 october matter listed hearing today arrange counsel term application amend affidavit say mr joel 11 november sought instruct third counsel monday week come last minute say matter fully prepared reason applicant permitted change case circumstance cost considerable prepared matter hearing today applicant also submission prepared today would ask matter heard today honour honour thank mr reilly mr reilly hear say light circumstance indicated explanation delay albeit reflect well aspect legal advice plaintiff received remains plaintiff appear personally fault relation matter circumstance inclination subject anything want put stand matter short period accommodate counsel order application properly ventilated occasion mind would standing date week commencing 9 december cause difficulty mr reilly mr reilly know matter week honour sure find time week however perhaps communicate registry suitable date week honour yes mr joel mr joel counsel available 10 december honour well mr joel appreciate propose everything suit mr reilly convenience mr joel course grateful anything mr reilly make inquiry check date week honour perhaps stand mr reilly make inquiry matter might mentioned short time mr reilly court plea honour well stand matter moment 9 38 short adjournmentupon resuming 9 52 honour mr reilly mr reilly honour thank made inquiry date free week friday 13 december honour apology mr reilly friday 13 december set aside special leave hearing omitted convey mr reilly yes honour maybe go get diary sure get rid matter honour mr reilly good alternative mr reilly would prefer would monday 16th tuesday 17th wednesday 18 december date suited better mr reilly think honour honour case mr reilly mr reilly could ask would honour prepared sit afternoon day honour indeed yes mr reilly case honour think could quite lot perhaps go get diary come back 15 minute honour say afternoon mr reilly time mind mr reilly 2 15 whatever would suit honour honour mr reilly set matter 2 15 say 10 december proved difficult might approach registrar would avoid need delayed morning mr reilly suitable honour honour take mr joel suitable mr joel yes honour mr reilly honour one matter raise honour yes mr reilly cost honour yes mr reilly submission cost thrown away today friend notice since 28 october matter listed hearing today submission incumbent arranged counsel today honour thank mr reilly mr joel resist application mr joel honour honour well matters147 2013 v minister immigration citizenship anori make following order stand proceeding hearing 2 15 tuesday 10 december 2013 plaintiff pay first defendant cost thrown away hearing listed today thank 9 55 matter adjourned |
Construction, Forestry, Mining and Energy Union [2018] FWCA 34 (3 January 2018).txt | construction forestry mining energy union 2018 fwca 34 3 january 2018 last updated 3 january 2018 2018 fwca 34fair work commissiondecisionfair work act 2009s 185 enterprise agreementconstruction forestry mining energy union ag2017 6408 ftc management australia pty ltd cfmeu collective agreement 2017 2018building metal civil construction industriescommissioner gregorymelbourne 3 january 2018application approval ftc management australia pty ltd cfmeu collective agreement 2017 2018 1 application made approval enterprise agreement known theftc management australia pty ltd cfmeu collective agreement 2017 2018 agreement application made pursuant tos 185of thefair work act 2009 act made construction forestry mining energy union agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 construction forestry 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 10 january 2018 nominal expiry date agreement 31 december 2018 commissionerprinted authority commonwealth government printer ae426780pr599197 |
Commissioner of Taxation v Bosanac (No 4) [2019] FCA 1321 (15 August 2019).txt | commissioner taxation v bosanac 4 2019 fca 1321 15 august 2019 last updated 20 august 2019federal court australiacommissioner taxation v bosanac 4 2019 fca 1321file number wad 291 2015judge mckerracher jdate judgment 15 august 2019date publication reason 19 august 2019legislation taxation administration act 1953 cth pt ivccases cited commissioner taxation v bosanac 2016 fca 448commissioner taxation v bosanac 2 2016 fca 945bosanac v commissioner taxation 2018 fca 946bosanac v commissioner taxation 2019 fcafc 116date hearing 15 august 2019registry western australiadivision general divisionnational practice area taxationcategory catchwordsnumber paragraph 17counsel applicant mr tp burrowssolicitor applicant australian government solicitorcounsel respondent mr jw ficklingsolicitor respondent cove legalorderswad 291 2015between commissioner taxationapplicantand vlado bosanacfirst respondentbernadette bosanacsecond respondentjudge mckerracher jdate order 15 august 2019the court order unless first respondent file application accordance order 2 order made 12 august 2016 staying execution judgment first respondent discharged 30 august 2019 first respondent file serve later 4 00 pm 29 august 2019 2 1 application continue order staying execution judgment made 12 august 2016 2 2 affidavit evidence support application and2 3 outline submission support application event first respondent file serf application order 2 applicant file serve affidavit evidence submission opposition application 12 september 2019 application filed order 2 listed hearing first available date 12 september 2019 applicant file serve affidavit evidence seek rely support relief sought paragraph 3 amended originating application 6 september 2019 respondent file serve affidavit upon seek rely opposition relief sought paragraph 3 amended originating application 11 october 2019 applicant file serve submission support relief sought paragraph 3 amended originating application 1 november 2019 respondent file serve submission opposition relief sought paragraph 3 amended originating application 22 november 2019 applicant file serve submission reply 6 december 2019 amended originating application listed hearing first available date 6 december 2019 within 7 day party provide availability fix hearing date referred order 4 10 cost cause note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentmckerracher j 29 april 2016 gave summary judgment favour thecommissionerof taxation first second respondent commissioner taxation v bosanac 2016 fca 448 bosanac 1 judgment approximately 9 3 million 5 7 million respectively 12 august 2016 granted stay execution judgment ofbosanac 1 commissioner taxation vbosanac 2 2016 fca 945 basis making stay order inbosanac 2 first respondent exercised right underpt ivcof thetaxation administration act 1953 cth appeal objection decision relation assessment subject judgment inbosanac 1 first respondent pt ivc appeal dismissed first instance 22 june 2018 steward j bosanac v commissioner taxation 2018 fca 946 decision upheld appeal full court greenwood burley colvin jj 15 july 2019 bosanac v commissioner taxation 2019 fcafc 116 18 july 2019 directed associate email party noting delivery judgment full court requesting party advise position relation programming forward proceeding specifically party requested advise position regarding listing matter case management hearing first respondent solicitor advised recent instruction prepare application special leave appeal thehigh courtof australia saw little utility listing proceeding special leave avenue closed commissioner opposed course confirmed sought matter listed case management hearing commissioner considered light full court decision reason balance proceeding relating relief sought order 3 commissioner amended originating application commissioner seek declaration first respondent equitable interest extent 50 available equity property located dalkeith western australia commissioner also advised light full court decision longer basis continuation stay order made inbosanac 2 commissioner provided minute proposed order would program matter forward final hearing amended originating application december 2019 considered appropriate light significant time elapsed matter listed case management hearing shortly prior case management hearing 15 august 2019 first respondent solicitor advised application filed high court basis order inbosanac 2 judgment stayed order court considered order necessary case management hearing convened commissioner maintained position appropriate press proceeding commissioner also pointed application filed high court application special leave rather application constitutional writ directed commissioner judge court commissioner submission longer thept ivcrights exercised nature application high court fundamentally different assertion high court application create basis continued operation stay commissioner pressed appropriate order made term minute provided amended dated 14 august 2019 unless first respondent file application accordance order 2 order made 12 august 2016 staying execution judgment first respondent discharged 23 august 2019 2 first respondent file serve later 4 00 pm 22 august 2019 2 1 application continue order staying execution judgment made 12 august 2016 2 2 affidavit evidence support application and2 3 outline submission support application event first respondent file serf application order 2 applicant file serve affidavit evidence submission opposition application 5 september 2019 application filed order 2 listed hearing earliest available date 5 september 2019 applicant file serve affidavit evidence seek rely support relief sought paragraph 3 amended originating application 6 september 2019 respondent file serve affidavit upon seek rely opposition relief sought paragraph 3 amended originating application 11 october 2019 applicant file serve submission support relief sought paragraph 3 amended originating application 1 november 2019 respondent file serve submission opposition relief sought paragraph 3 amended originating application 22 november 2019 applicant file serve submission reply 6 december 2019 amended originating application listed hearing first available date convenient court 6 december 2019 cost cause queried commissioner solicitor length time allowed hearing difficulty identified stage order 5 commissioner sought time file affidavit evidence light time elapsed may require material particularly australian taxation office ato officer deposed affidavit matter longer employed ato first respondent counsel took issue commissioner proposed course particularly absence formal application vacate stay present purpose satisfied significant change position emerges either result proceeding instituted first respondent high court otherwise delay matter avoided satisfied best mean party achieving imperative make order accordance minute first respondent expressed concern may resource intensive consultation may achieve greater saving time cost commend objective although scheme thing backdrop litigation emerged compelling ambition nonetheless doubt commissioner certainly co operate respondent discussing attempting achieve saving time cost relation aspect minute difficulty regard perspective either party entertain application specific order present regard necessary reason intend make order substantially term minute proposed order commissioner dated 14 august 2019 make order providing seven day party communicate associate availability respect hearing contemplated order 4 10 certify preceding seventeen 17 numbered paragraph true copy reason judgment herein honourable justice mckerracher associate dated 19 august 2019 |
Applicant A150 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 406 (26 March 2004).txt | applicant a150 2003 v minister immigration multicultural indigenous affair 2004 fca 406 26 march 2004 last updated 7 april 2004federal court australiaapplicant a150 2003 v minister immigration multicultural indigenous affair 2004 fca 406applicant a150 2003 v minister immigration multicultural indigenous affair member refugee review tribunal principal member refugee review tribunal 719 2003mansfield j26 march 2004adelaidein federal court australiasouth australia district registry 719 2003between applicant a150 2003applicantand minister immigration multicultural indigenous affairsfirst respondentmember refugee review tribunalsecond respondentthe principal member refugee review tribunalthird respondentjudge mansfield jdate order 26 march 2004where made adelaidethe court order 1 application dismissed 2 applicant pay first respondent cost application 3 order cost second third respondent note settlement entry order dealt order 36 federal court rule federal court australiasouth australia district registry 719 2003between applicant a150 2003applicantand minister immigration multicultural indigenous affairsfirst respondentmember refugee review tribunalsecond respondentthe principal member refugee review tribunalthird respondentjudge mansfield jdate 26 march 2004place adelaidereasons judgment1 application instituted high court 18 march 2003 sought prerogative order effect set aside decision refugee review tribunal tribunal 24 june 2002 tribunal affirmed decision delegate respondent applicant entitled protection visa themigration act 1958 cth act applied protection visa act 3 november 2000 year arrived australia application remitted court hearing determination high court order 11 june 2003 2 succeed application applicant must demonstrate jurisdictional error part tribunal seeplaintiffs157 2000v commonwealth australia 2003 211 clr 476 enough applicant contend tribunal simply got fact wrong evidence might given tribunal support claim eligible grant visa tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol convention 3 practical term tribunal needed satisfied applicant refugee defined art 1a 2 convention must well founded fear persecution convention reason return india tribunal recorded detail basis upon applicant claimed well founded fear persecution drew information document 4 tribunal invited applicant attend hearing make submission give evidence pursuant tos 425of act applicant informed tribunal intended attend hearing fixed 17 june 2002 however applicant attend hearing occasion made contact tribunal time explain consequently pursuant tos 426aof act tribunal proceeded make decision 5 tribunal identified applicant claim follows 6 applicant father member india sikh student federation active middle 1980s father arrested mistreated number time punjabi police father left india america 1990 applicant following father departure detained beaten interrogated punjabi police three occasion therefore left india went malaysia time 1991 7 applicant claimed returned india stay friend uttar pradesh arrested tortured police 1992 claimed went germany 1992 returned india 1993 thought safe claimed 1993 1996 arrested five time punjabi police assaulted threatened death safety decided leave area went bombay hide claimed police sought bombay decided leave india left india arrived australia 1997 8 applicant claimed well founded fear persecution indian authority reason political view attributed father activity 9 tribunal satisfied material applicant well founded fear persecution convention reason return india said claim expressed document lacked particular information would enabled decide whether applicant real chance persecuted return india said tribunal would like explored applicant time interval father departure interest authority particular piece information appear claim tribunal would also liked explore applicant reason police would still pursue year father left different state reason seems pursued wished know whereabouts father appears evidence father still u tribunal made aware reason applicant father still sought claim presented also lack detail term applicant stay germany state applied refugee status however indicate outcome application furthermore tribunal position make finding applicant identity claim travelled australia false passport name used real name however appears passport since 1984 time apparently returned germany tribunal would need information circumstance tribunal would also liked explore reason applicant arrived australia 16thnovember 1997 waited 3rdnovember 2000 make application protection visa documentation indicates applicant made application carer visa however information event assist tribunal determining circumstance implication application tribunal provided opportunity applicant provide evidence writing orally hearing however applicant taken advantage opportunity context applicant must establish jurisdictional error part tribunal 10 applicant seek term amended application dated 4 march 2004 affidavit also dated 4 march 2004 submission today focused particularly two thing first attend hearing would like opportunity second say friend say give evidence support claim deal two matter first 11 tribunal obliged accord procedural fairness applicant relevantly involves giving opportunity attend hearing make submission give evidence tribunal gave opportunity fact take wish take demonstrate jurisdictional error part tribunal tribunal notifying applicant hearing also invited applicant indicate whether person wished attend also give evidence response said wish witness give evidence identified name person 12 letter 24 june 2002 tribunal invited bring person hearing applicant simply attend hearing tribunal deprive opportunity produce evidence tribunal therefore committed jurisdictional error way applicant alleged submission today 13 amended application contains five ground review first tribunal denied procedural fairness natural justice particular claim given reference made document high court decision inmuin v refugee review tribunal 2002 190 alr 601 2002 hca 30 however material court indicate tribunal led applicant believe would act certain way would act upon certain information would act certain way 14 information indicate applicant notice sort information tribunal would address consideration indicated tribunal gave applicant opportunity attend hearing take tribunal reason indicate information tribunal wished discus applicant relevant claim applicant attend hearing deprived opportunity 15 secondly amended application asserts tribunal failed consider relevant matter considered irrelevant matter reaching decision nothing put support claim consideration tribunal reason indicate basis upon assertion could sustained 16 third ground jurisdictional error amended application based upon tribunal letter 24 april 2002 sent pursuant tos 425of act inviting applicant attend hearing letter rrt rrt invited hearing rrt stated letter looked material relating application fact rrt looked material relating application giving rise denial natural justice denial natural justice jurisdictional error type relief granted themigration act 17 fact tribunal letter 24 april 2002 assert tribunal looked material relating application prepared make favourable decision information view tribunal obliged comply withsection 425of act seesection 425 2 however nothing support assertion tribunal looked material relating application fact upon ground review based made 18 fourth fifth ground review assert error law tribunal misinterpreted relevant country information meaning well founded fear persecution nothing put support either ground tribunal reason view expressed understanding applicable law correct term erred law misunderstood meaning well founded fear persecution tribunal expressly referred particular independent country information india reason decision substantive reason passage referred 19 basis upon shown tribunal misinterpreted relevant country information reason reached view jurisdictional error part tribunal made application dismissed order theapplicant pay first respondent cost application order cost second third respondent certify preceding nineteen 19 numbered paragraph true copy reason judgment herein honourable justice mansfield associate dated 6 april 2004counsel applicant applicant appeared personcounsel respondent j van lingensolicitor respondent sparke helmoredate hearing 26 march 2004date judgment 26 march 2004 |
Agriculture, Fisheries and Forestry (Spent and Redundant Instruments) Repeal Regulation 2013 (Sli No 159 of 2013).txt | agriculture fishery forestry spent redundant instrument repeal regulation 2013 sli 159 2013 explanatory statementagriculture fishery forestry spent redundant instrument repeal regulation 2013 sli 159 2013 agriculture fishery forestry spent redundant instrument repeal regulation 2013explanatory statementselect legislative instrument 2013 159issued authority attorney generalin compliance section 26 thelegislative instrument act 2003introductionthis regulation made section 48e thelegislative instrument act 2003 lia regulation legislative instrument paragraph 6 act outlinein 2012 change made lia enable thousand unnecessary legislative instrument repealed efficient streamlined process without repeal one one change recommended the2008 review lia also responded finding 2010 department finance deregulationreview pre 2008 commonwealth subordinate legislation regulationthat large number legislative instrument probably spent redundant regulation repealsa total 949 legislative instrumentsadministered department agriculture fishery forestry instrument repeal spent solely commencing amending repealing taken effect full rest longer required reason repeal instrument reduce red tape deliver clearer law make accessing law simpler business individual case repeal instrument substantially alter existing arrangement regulation deal instrument administered solely department agriculture fishery forestry spent redundant instrument administered agency department 2 department repealed separately process regulation maderegulatory impact analysisbefore regulation made expected impact assessed using preliminary assessment tool approved office best practice regulation obpr assessment indicated would low impact business individual economy assessment confirmed obpr obpr reference 14981 statement compatibility human right obligationsbefore regulation made impact human right assessed using tool guidance published attorney general department fully compatible human right defined section 3 thehuman right parliamentary scrutiny act 2011 consultation makingbefore regulation made attorney general considered general obligation consult imposed section 17 lia specific circumstance consultation may unnecessary inappropriate set section 18 attorney general consulted parliamentary secretary agriculture fishery forestry advised regulation significantly alter existing arrangement consultation therefore unnecessary statutory precondition parliamentary undertaking relevant regulationbefore instrument repealed regulation subsection 48e 2 lia attorney general must satisfied instrument repealed spent longer required attorney general opinion case regulation instrument repealed schedule 1 2 spent andall instrument repealed schedule 3 4 longer required statutory precondition parliamentary undertaking relevant making regulation process review regulationthis regulation subject tabling disallowance part 5 lia cease repealed day last provision commence instrument repealed regulation also subject part 5 lia tabled either beyond disallowance period exempt disallowance issuesmatter incorporated referencethis regulation apply adopt incorporate matter reference informationa provision provision explanation regulation provided inattachment copy instrument repealed information history available whole government comlaw website http www comlaw gov au information instrument may requested administering department relevant agency note sectionsattachment asection 1 name regulationthis section provides regulation named theagriculture fishery forestry spent redundant instrument repeal regulation 2013 regulation may cited name section 2 commencementthis section provides regulation commence day registered federal register legislative instrument day would apply subsection 12 1 lia commencement provision made section 3 authoritythis section identifies act authorises making regulation section 4 guide regulationthis section explains regulation structured assist reader instrument repealed regulation listed 4 schedule schedule 1 deal solely amending repealing instrument schedule 2 deal commencement instrument schedule 3 deal amending repealing instrument contain application saving transitional provision schedule 4 deal instrument spent longer required section also note regulation contains saving provision apply repeal addition provision made section 7 theacts interpretation act 1901 section applies regulation section 13 thelegislative instrument act 2003 section 5 repeal amending repealing instrumentssection 5 schedule 1 repeal amending repealing legislative instrument spent would repealed automatically section 48a thelegislative instrument act 2003if made commencement section include instrument application saving transitional provision see section 7 schedule 3 repeal instrument mentioned schedule 1 affect amendment repeal made instrument see subsection 5 2 section 6 repeal commencement instrumentssection 6 schedule 2 repeal commencement instrument spent would repealed automatically section 48b thelegislative instrument act 2003if made commencement section repeal instrument mentioned schedule 2 affect commencement instrument provides see subsection 6 2 section 7 repeal amending repealing instrument containing provisionssection 7 schedule 3 repeal amending repealing legislative instrument also contain application saving transitional provision amendment repeal happened application saving transitional provision longer required instrument contain substantive provision assist reader location application saving transitional provision instrument identified bracket name used indicate provision e g 4 may refer section 4 regulation 4 clause 4 fourth provision type appropriate repeal instrument mentioned schedule 3 affect amendment repeal made instrument affect continuing operation application saving transitional provision see subsection 7 2 section 8 repeal redundant instrumentssection 8 schedule 4 repeal instrument longer required reason schedule 4 divided part along thematic line explained repeal instrument mentioned schedule 4 affect amendment repeal made instrument affectthe continuing operation application saving transitional provision see subsection 8 2 section 9 expiry regulationsection 9 provides regulation cease day commences consistent aim delivering clearer law reducing red tape provision made many provision solely repealing commencing would cease day commence section 48c 48d lia andthe rest instrument would remain force repealed sunsetting mean even though serf ongoing purpose schedule 1 repeal amending repealing instrumentsthis schedule repeal amending repealing legislative instrument spent would repealed automatically section 48a thelegislative instrument act 2003if made commencement section schedule include instrument application saving transitional provision see schedule 3 repeal instrument schedule affect amendment repeal made instrument see subsection 5 2 schedule 2 repeal commencement instrumentsthis schedule repeal commencement instrument spent would repealed automatically section 48b thelegislative instrument act 2003if made commencement section repeal instrument schedule affect commencement instrument provides see subsection 6 2 schedule 3 repeal amending repealing instrument containing provisionsthis schedule repeal amending repealing legislative instrument also contain application saving transitional provision amendment repeal happened application saving transitional provision longer required instrument contain substantive provision assist reader location application saving transitional provision instrument identified bracket name used indicate provision e g 4 may refer section 4 regulation 4 clause 4 fourth provision type appropriate repeal instrument schedule affect amendment repeal made instrument see paragraph 7 2 also ensure repeal application saving transitional provision unforeseen effect remove doubt may otherwise exist continuing operation may preserved see paragraph 7 2 b schedule 4 repeal redundant instrumentsthis schedule repeal legislative instrument spent longer required covered previous schedule repeal instrument schedule affect amendment repeal made instrument see paragraph 8 2 also ensure repeal application saving transitional provision unforeseen effect remove doubt may otherwise exist continuing operation may preserved see paragraph 8 2 b part 1 schedule 4 meat live stock instrument past date effectthis part repeal 15 meat live stock instrument instrument expressed applying effect date passed longer required repeal therefore alter existing arrangement part 2 schedule 4 fishery instrument past date effectthis part repeal 77 fishery instrument instrument expressed applying effect date passed longer required repeal therefore alter existing arrangement part 3 schedule 4 fishery determination made redundantthis part repeal 16 fishery determination made redundant registration fishery instrument instrument serve going purpose part 4 schedule 4 superseded fishery instrumentsthis part repeal 2 fishery instrument redundant relate fishery longer exist instrument serve going purpose part 5 schedule 4 superseded plant health determinationsthis part repeal 2 instrument redundant superseded theplant health australia plant industry funding determination 2011 repeal therefore alter existing arrangement part 6 schedule 4 instrument longer requiredthis part repeal 3 instrument longer required item 1 repealsthe export control order consolidation order longer required theyconsolidated prescribed good general order order 1 1985 prescribed good general order amendment order 8 1985 12 1985 export meat order order 2 1985 export meat order amendment order 10 1985 game poultry rabbit meat order order 3 1985 game poultry rabbit meat order amendment order 11 1985 dairy produce order order 4 1985 dairy produce order amendment order 9 1985 subsequently superseded item 2 3 repeal instrument expressed applying effect 30 june 2009 instrument serve going purpose |
N95_09386 [1996] RRTA 3191 (7 November 1996).txt | n95 09386 1996 rrta 3191 7 november 1996 refugee review tribunaldecision reason decisionrrt reference n95 09386country reference tuvalutribunal member m r laytondate decision 7 november 1996place sydneydecision tribunal affirms decision grant protection visa catchword economic hardship convention related 1 accordance withs 431of themigration act 1958 cth amended published version decision prepared direction deputy registrar contain statement may identify applicant relative dependant applicant decision reviewthis matter concern decision made delegate minister immigration ethnic affair minister effect refuse grant applicant australia protection refugee provided themigration act1958 |
Misipeka and Secretary, Department of Social Security [1986] AATA 594 (6 November 1986).txt | misipeka secretary department social security 1986 aata 594 6 november 1986 last updated 22 january 2008administrative appeal tribunalsocial security overpayment unemployment benefit whether relevant period applicant living female companion wife bona fide domestic basis although legally married social security act1947 former s 106 1 114 140 1 s 138 1 140 1 146 1 john keith misipekaapplicantsecretary department social securityrespondentno n86 250aat decision 2972dr p renouf senior member m j h mcclintock member mr g p nicholls member 6 november 1986sydneyadministrative appeal tribunal n86 250 general administrative division john keith misipekaapplicantand secretary department social securityrespondentdecisiontribunal dr p renouf senior member m j h mcclintock member mr g p nicholls member date 6 november 1986place sydneydecision decision review affirmed sgd p renouf presiding member administrative appeal tribunal n86 250 general administrative division john keith misipekaapplicantand secretary departmentof social securityrespondentreasons decision1 application review decision conveyed applicant 23 august 1984 raise recover alleged overpayment 4 362 60 unemployment benefit paid 7 may 1982 1 september 1983 appeal social security appeal tribunal led recommendation rejection 6 march 1985 11 march 1986 delegate respondent affirmed decision 2 tribunal received evidence exhibit 1 36 documentation prepared pursuant tos 37of theadministrative appeal tribunal act1975 |
Cheng v Allianz Australia Insurance Limited [2023] NSWPIC 642 (28 November 2023).txt | cheng v allianz australia insurance limited 2023 nswpic 642 28 november 2023 last updated 13 december 2023certificate determination membercitation cheng v allianz australia insurance limited 2023 nswpic 642claimant lucy chenginsurer allianzmember shana radnandate decision 28 november 2023catchwords motor accident motor accident injury act 2017 miscellaneous dispute whether purpose ofsection 3 38the insurer entitled reduce statutory benefit payable respect motor accident injured person turning left intersection four lane road insured turning right holding bay entering four lane road metre beyond intersection collision vehicle insurer alleged injured person 50 negligent held injured person changed lane path insured purpose ofsection 3 38 insurer entitled reduce statutory benefit payable respect accident 50 determination made certificateissued unders 7 36 4 themotor accident injury act2017 |
Aylward and Griffith University [1997] QICmr 23 (5 February 1997).txt | aylward griffith university 1997 qicmr 23 5 february 1997 aylward griffith university 33 96 5 february 1997 information commissioner albietz decision edited remove merely procedural information may edited remove personal otherwise sensitive information 1 4 paragraph removed reason decisionbackgroundthe applicant seek review respondent decision refuse access thefreedom information act 1992qld foi act document held respondent disclose detail subject studied result obtained person applicant course study graduate diploma awarded respondent degree awarded another tertiary institution respondent contends document issue exempt matter 44 1 46 1 foi act applicant lecturer queensland tafe technical education college aggrieved assessment teaching performance conducted another person disagrees much person said written assessment report sought legal advice appropriate avenue recourse state purpose possible litigation wish know whether person studied subject applicant teaching time person performed teaching assessment letter dated 20 october 1995 applicant applied freedom information officer griffith university university access person application entry graduate diploma course university person personal academic record letter dated 12 december 1995 mr colin mcandrew university pro vice chancellor administration notified applicant decision refuse access document sought applicant basis exempt matter 44 1 46 1 foi act applicant sought internal review mr mcandrew initial decision affirmed professor g kearney deputy vice chancellor university letter applicant dated 22 january 1996 letter dated 19 february 1996 applicant applied review part 5 foi act professor kearney decision obtained examined document issue letter dated 28 august 1996 informed applicant preliminary view document issue concerned personal affair person prima facie exempt matter 44 1 indicated unable identify public interest factor favouring disclosure would outweigh public interest protecting person privacy invited applicant accept preliminary view lodge written submission evidence support contention matter issue exempt letter dated 18 november 1996 applicant indicated accept preliminary view provided written submission response invitation applicant narrowed scope foi access application stating information sought subject taken date qualification subsequently deduced griffith university also queensland university technology reviewed document university identified falling within term applicant initial foi access application note addendum 1 extract applicant somehow obtained person curriculum vitae applicant written submission set respective year person awarded degree queensland institute technology postgraduate diploma griffith university requirement completed first semester year information relation year completion degree postgraduate diploma already known dr aylward take reference date qualification quoted passage time particular subject taken basis determined folio 2 16 contain information sought applicant balance person application entry graduate diploma course griffith university therefore longer issue external review matter remains issue folio 2 computer printout subject undertaken person grade awarded graduate diploma coursefolios 3 16 grant exemption subject certificate result semester listing subject undertaken person grade awarded degree course university contends matter issue exempt matter 44 1 46 1 foi act found necessary consider application 44 1 section 44 1 matter affecting personal affairssection 44 1 foi act provides 44 1 matter exempt matter disclosure would disclose information concerning personal affair person whether living dead unless disclosure would balance public interest exemption provision two element first one must consider whether disclosure matter issue would disclose information concerning personal affair person requirement satisfied aprima faciepublic interest favouring non disclosure established matter issue exempt unless exist public interest consideration favouring disclosure outweigh identifiable public interest consideration favouring non disclosure warrant finding disclosure matter issue would balance public interest personal affair matterin reason decision inre stewart department transport 1993 qicmr 6 1993 1 qar 227 identified various provision foi act employ term personal affair discussed detail meaning phrase personal affair person relevant variation thereof foi act held information concern personal affair person relates private aspect person life may substantial grey area within ambit phrase personal affair phrase well accepted core meaning includes family marital relationshipshealth ill healthrelationships emotional tie peopledomestic responsibility financial obligation whether matter contained document comprises information concerning individual personal affair essentially question fact determined according proper characterisation information question applicant submission raise number point consideration many pertinent characterisation matter issue example suggests person academic qualification cannot concern personal affair property belong university cannot bequeath cannot change even extent correct assessment nature academic award bar characterisation subject result person information concerning personal affair person case result obtained course private study person whether study undertaken public private educational institution alter private character decision undertake course private study time effort expended pursuit subject result thereby obtained opinion matter issue properly characterised information concern personal affair person applicant also submits person brought qualification public domain including hiscurriculum vitaeand producing tafe grievance inquiry submits must database personal particular held tafe could surmised classmate university would made public public award ceremony accept submission number equate personal affair matter matter secret previously indicated matter need secret order characterised personal affair matter p 251 paragraph 60 ofre stewart stated 60 decision full court federal court incolakovski v atchad given time earc report freedom information delivered given well passage queensland foi act lockhart j expressed qualification perhaps rather clarification appropriate emphasis beaumont j approach meaning phrase personal affair referred paragraph 38 think general term sensible qualification information secret widely known order answer description information concerning personal affair person however since 44 1 queensland foi act contain unreasonable disclosure test legitimate question may arise utility merit exempting 44 1 information concerning personal affair person become widely known community even become matter public record may legitimate question fact degree involved person personal affair may become widely known ought logically cease eligible protection provision whose basic concern protection personal privacy issue would wish express concluded view appropriate case test proposition arises regard provision person detail educational qualification prospective employer recording detail employer use employment related grievance hearing even approaching level publication would require consider question adverted last two sentence passage quoted event evidence indicates matter issue detail subject studied result obtained ever provided person employer disseminated manner alleged likewise knowledge another personal affair may accrue friend classmate render personal affair ineligible protection 44 1 disclosure person might apply access foi act moreover mere fact government agency hold information kind rob character personal affair matter appears contended applicant 1 1 1 3 submission otherwise would point exemption term 44 1 seere stewartat p 266 paragraph 111 note matter issue include bare description degree diploma obtained person information apparently known applicant event evidence whether award university degree diploma becomes matter public record possible rule procedure may vary different tertiary institution matter issue comprises information concern personal affair person thereforeprima facieexempt disclosure applicant virtue 44 1 foi act subject application public interest balancing test incorporated 44 1 foi act public interestin submission applicant state applies access public interest exactly similar basis third party acting responsibly publicly however bulk submission relates personal factor claimed justify obtaining access document issue submission point general public interest factor favouring disclosure contention person public position held person prepared make public qualification accept public interest public servant accountable public quality work performance tafe accountable selection procedure resulted appointment employee could respectably argued public interest favour disclosure information would verify holder public office attained tertiary qualification necessary discharge duty office indeed selection criterion particular public sector position stipulate tertiary qualification particular kind prerequisite appointment public interest accountability adherence merit principle public sector selection process would tell favour disclosure information whether successful candidate appointment requisite tertiary qualification however depth quality relevant experience demonstrated proficiency employment generally decisive factor selection process information individual subject studied result obtained candidate employment information minimal significance respect selection process position entry level government agency consider public interest factor referred would materially advanced disclosure individual subject studied result obtained person degree course completed many year ago person considerable experience teaching general field question doubt completion relevant degree diploma person work experience significant factor appointment significance individual subject result respect appointment ability carry duty must considerably le fact nothing material indicate employer access individual result making selection appointment consider public interest consideration kind discussed warrant finding disclosure matter issue would balance public interest event note applicant sought access matter issue person employer matter issue held griffith university created order assist person obtain public sector employment created course public employment created purpose application undertake study private individual result private study consider public interest promoting accountability tafe college person would require disclosure world large individual subject detail result held university inre pemberton university queensland 1994 2 qar 293 pp 368 377 recognised approved line authority effect applicant involvement concern particular information may nature capable taken account public interest consideration favouring disclosure particular applicant case kind matter issue direct connection applicant kind rather thrust applicant submission need evidence subject undertaken person order show person posse qualification particular subject taught applicant formed basis assessment applicant aggrieved applicant say requires material order libel case wish pursue person applicant provided copy assessor report suggests show inaccuracy person assessment report addendum 3 applicant written submission legal advice claim show case reasonable prospect success addendum 4 applicant written submission applicant appears seeking invoke two related aspect public interest recognised previous case inre pembertonat p 377 paragraph 190 said public interest fair treatment person corporation accordance law dealing government agency opinion legitimate category public interest interest common member community benefit appropriate case mean particular applicant interest obtaining access particular document capable recognised facet public interest may justify giving particular applicant access document enable applicant ass whether fair treatment received pursue available mean redress including available legal remedy inre willsford brisbane city council information commissioner qld decision 96017 27 august 1996 unreported said paragraph 16 17 consider appropriate case may public interest person suffered may suffered actionable wrong permitted obtain access information would assist person pursue remedy law affords circumstance cf cairn port authority department land 1994 qicmr 17 1994 1 qar 663at pp 713 714 paragraph 103 104 p 717 paragraph 120 p 723 paragraph 142 public interest necessarily comprehends element justice individual see pemberton university queensland information commissioner qld decision 94032 5 december 1994 unreported paragraph 178 190 case cited although public interest described one would apply benefit particular individual particular case consider nevertheless interest common member community benefit mere assertion applicant information required enable pursuit legal remedy sufficient give rise public interest consideration ought taken account application public interest balancing test incorporated exemption provision foi act cf alpert brisbane city council information commissioner qld decision 95017 15 june 1995 unreported paragraph 30 hand necessary applicant prove likelihood successful pursuit legal remedy event obtaining access information issue sufficient found existence public interest consideration favouring disclosure information held agency applicant demonstrate loss damage kind wrong suffered respect remedy may available law b applicant reasonable basis seeking pursue remedy c disclosure information held agency would assist applicant pursue remedy evaluate whether remedy available worth pursuing basis material satisfied element referred inre willsfordare present case public interest consideration described paragraph 26 applies respect disclosure applicant matter issue legal advice provided applicant addendum 4 applicant written submission recommend action defamation suggests best option action thejudicial review act 1991and point obstacle action support action best lukewarm regard comment assessor addendum 3 founding basis claim applicant suffered actionable wrong satisfied disclosure document issue would assist applicant dispute may person tafe clear person assessing applicant general approach attitude teaching method technique employed effectiveness method technique consider either necessary relevant applicant possible case person demonstrate supervisor study subject applicant teaching time assessment took place person curriculum vitaeevidences practical teaching experience finding grievance inquiry addendum 2 applicant submission consider type information applicant already access relevant person ability otherwise ass teaching technique specific subject taught time assessment appears little relevance satisfied refusing applicant access matter issue deprive opportunity ass whether received fair treatment pursue legal remedy may otherwise impact upon merit legal proceeding may choose bring opinion public interest consideration favouring disclosure matter issue sufficiently strong outweigh public interest non disclosure inherent satisfaction test forprima facieexemption 44 1 foi act find folio 2 16 comprise exempt matter 44 1 foi act decisioni therefore affirm finding decision review folio 2 16 comprise exempt matter 44 1 foi act |
Justin Terrence Cowdrey & Ors v The Queen & Anor [1998] WASCA 214 (11 August 1998).txt | justin terrence cowdrey or v queen anor 1998 wasca 214 11 august 1998 last updated 23 june 1999jurisdiction supreme court western australiatitle court court criminal appealcoram ipp jwallwork jsteytler jheard 11 august 1998delivered 11 august 1998file cca 49 1998between justin terrence cowdreyapplicantandthe queenrespondentcatchwords criminal law appeal sentence 9 month imprisonment assault sentencing judge wrongly considered offence serious option except term imprisonment sentence reduced fine 2000 paid victim assaultsentencing act 1995 s6 4 s7 s56representation counsel applicant mr r beechrespondent mr b fiannacasolicitors applicant sharon auburnrespondent state director public prosecutionscase referred judgment case also cited r v gp 1997 18 war 196sentencing act 1995 s6 4 s7 s56library number 980517judgement court application leave appeal sentence applicant convicted assaulting hisde factofather law sentenced term 9 month imprisonment basis learned sentencing judge reasoning imposing sentence crime serious option imprisonment main ground appeal honour incorrect respect conceded crown unanimous view court concession correctly made counsel view appropriate sentence would fine court unanimously view appropriate view appropriate sentence would applicant fined 2000 given 6 month pay fine paid victim assault appeal accordingly succeeds sentence imposed learned sentencing judge set aside sentence indicated |
Baker v WorkCover (Santos) [1991] SAWCRP 354 (17 July 1991).txt | baker v workcover santos 1991 sawcrp 354 17 july 1991 last updated 26 june 2017 1991 sawcrp 354review officer loveringcatchwords arising course employment stress claim alleged treatment worker employer worker resigned remained dysfunctional credibility worker whether resignation acceptance separation package breached mutuality decision set aside payment back dated commencement total incapacity baker workcover santos ltd 1991 4 wro determination 354 91see baker v workcover 1991 sawcat 54 print 54 1991 allan dp note learned deputy president appears believe worker appellant clear appeal point pursued corporationdetermination 354 91workcoverreviewbaker workcover santos ltd 90102192 910781 determination made review officer 17 july 1991 hearing 3 december 1990 19 february 15 may 3 july 1991 review officer loveringthis determination application lodged 28 february 1991 jim baker seek review pursuant worker rehabilitation compensation act 1986 act decision made workcover corporation 25 february 1991 reject worker claim compensation original application review lodged applicant 2 july 1990 concerned section 102 request review officer set started hear time workcover corporation made decision immediately appealed party wished continue presenting matter review officer claim concerned stress claim delay would disadvantage applicant matter heard together worker gave sworn evidence behalf represented m clare goff first occasion mr jim mahony counsel mahony later occasion corporation represented mr hugh rowell occasion m margaret kelly one occasion counsel stratford co witness included mr wood mr janet baker mr clive thelning psychologist dr sando corporation rejected claim pursuant section 30 2 act basis disability rise course employment secondly applicant suffered compensable disability rejected suffered incapacity disability statement file applicant edward francis hoare material superintendent alexander gibson wood operation support manager kenneth bird purchasing superintendent doctor report dr paul thesinger m dietz psychologist mr clive thelning psychologist dr j r clayer psychiatrist matter came agreed issue section 30 claim associated matter section 43 claim could left later time depending outcome review party determine quantum income maintenance medical expense section 43 application come later date necessary applicant told hearing commenced employment santos 2 february 1981 purchasing officer came position approximately 25 year oil industry previously employed first aid officer field clerk drilling contractor delhi petroleum approximately 5 year purchasing agent diamond product firm started company called oil field expediting 2 year worked champolin oil singapore rob ray offshore drilling various location indonesia helicopter accident 1976 took two year recovery accident went work philip australian oil company purchasing material arranging supply contract sent united state resigned job wished go west africa first joined santos worked purchasing manager eric ferdinand retired 1983 replaced alex wood time order avoid international cartel proposed new method purchasing octg oil country tubular good casing tubing oil well method benefit santos mr ferdinand left mr wood agreed proposal told start negotiation japanese distributor result negotiation tender japanese cartel broken applicant felt pleased result however said virtually started alex wood told would take octg business seem recall might workload honestly remember said got bloody angry operating purchasing officer santos tender prior put octg called tender evaluated along drilling department nominated supplier would word lot contact japanese manager forth business seemed take away self respect decision meant japanese trading house respectful bypassed went see alex wood well whole point one calling shot demeaned far operation taken away got situation could understand japanese could commit hari kari losing face way felt lost face although tried disregard end 1984 started get breathless experienced attack breathlessness time reorganisation santos new man david keig became manager purchasing department applicant became chief purchasing officer reporting mr keig still regain control octg purchasing started look job young daughter wish leave australia talked brian brook general manager charge moomba see job could get said wanted go moomba told hearing gave story developing property asked applicant said tell truth way felt truth attack anxiety getting worse worse attack breathlessness becoming worse worse wanted get supply department transfer moomba get away able brian brook said job match status moomba also supply department one knowledge expertise field purchasing drilling hole equipment problem arose csr purchased delhi petroleum corporation partnership santos cooper basin although felt expertise keig counterpart delhi arranged overseas trip still angry wood still handling octg knowledge indeed felt one overseas expedition knew much otcg complained keig told making decision sole supplier would brought deal formulating contract however time involved contract already drawn disapproved contract organised management team written contract like finally agreed upon commit suicide left ordinary implementing job commensurate experience anxiety breathless hyperventilation attack associated problem needed urinate defecate attack started family still living north adelaide attack would happen almost every day made deal car park attendant used let use private toilet said time barely made office seek medical attention think sick thought stress problem would get tell anybody embarrassing instead talked early retirement getting stage 1986 coming work becoming intolerable told stephen riley personnel wanted retire develop property tell panic attack sleeplessness hyperventilation bowel problem 1984 85 brooding drinking two litre wine night purchased wife 1976 small property curramulka yorke peninsula planted 200 almond tree curramulka property joining santos order become primary producer wife evidence said believed taxation benefit situation explained year sold property would put tank stand little else applicant disagreed mr wood assertion worked hard curramulka mr wood evidence disaster curramulka correct contrary happy place however far commute every weekend sold property 1984 bought small property angaston finance reasonable able subdivide part angaston property sell 18 acre neighbour house built angaston put workshop put road mr wood evidence admitted knew little farming seemed impressed amount work mr baker property weekend saw exhausted knew nothing hyperventilation stress problem appears seen symptom without recognising reason keig resigned wood took supply manager 1987 approached wood ask transfered moomba told wood wanted transfer moomba wanted develop property found embarrassing tell truth moved moomba material co ordinator without loss status found heirarchical situation moomba living quarter situated equivalent status office also quite inadequate panic attack continued moomba still problem going toilet frequently felt panic attack frequent previously moomba move however improve matter said fact felt diminished eye people worked living area store clerk personally bothered situation moomba level store superintendent put area consulted doctor panic attack reading article australian newspaper medication supplied suffice consulted dr gransbury advised entering mental hospital voluntary patient refused time felt could return work mr ken bird mr jackman personnel department came visit angaston told problem moomba accommodation office facility however mention anything feeling wood said kept wood right mr bird gained impression statement file burnt mean really tired speech quite slow chewed every word quite noticeable tired mr bird also noted struggle breath attributed heavy smoker suggested see company doctor company dr thesinger pretty switched dude helped lot people consulted dr thesinger recommended see psychologist m dietz wrote 8 september 1988 mr baker developed anxiety feeling escalating panic attack noted pressure job would bothered perception contribution going unnoticed employer frustrated noted expected move moomba would solve problem poor working condition self esteem deteriorated anxiety increased felt mr baker would capable resuming work reasonable condition could agreed upon august 1988 discussed ken bird returning work bird said discus went back work told run sick leave company found another way paying without diminish leave entitlement october 1988 alex wood asked come hear proposal early retirement staff wood steven riley offered golden handshake retirement package told employment could guaranteed next year unhappy amount offered consulted dr thesinger advised would gain advantage legal sense stress dr thesinger prescribed medication consulted solicitor also told little chance gaining anything company decided better accept golden handshake retirement get better became agoraphobic unable leave house ventilation attack continued actually increased frequency early 1990 went see dr sando referred psychologist mr thelning treating cognitive therapy dr sando prescribed medication late 1990 lodged claim compensation santos sent see psychiatrist dr clayer recommended prothiadin medication early 1990 applicant approached carry inventory drilling production equipment unfortunately could finish job hyperventilation attack impact life dramatic used sail 34 foot yacht even able go fishing try socialise even dinner party likely start hyperventilating stopped drinking wine thought might allergic drink light beer used read great deal seldom read concentrate started santos two rig working increased eleven 1982 purchasing co ordinator material co ordinator responsibility get contract supply casing drilling bit contract consumerables mud cement well head equipment supply rig appropriate material buying material order 3 million dollar started put forward tender drilling mud six monthly issue experience led consider octg counsel employer suggested workload increase agreed increased two eleven rig involving lot work responsibility get right equipment available right time site said right price expensive put rig standby proud fact never rig stop lack material counsel suggested appropriate applicant given assistance part workload reallocated counsel employer suggested wide skill adapting equipment term finding equipment available able supply something place indeed applicant hard replace experience readily found elsewhere counsel suggested perceived workload heavy company readily anybody assist word fallen ill put question seen paper would happened died company found someone straight away take place could applicant felt need take away otcg said saw need take anything complained workload fact found harder worked better liked liked work stress told hearing job liked best negotiating found hard think job like santos applicant explained able discus keig fact wood taken octg probably competent said brought strictly respect authority time made fuss mr wood even acknowledged work office memo would helped mr wood gave evidence hearing confirmed applicant expert field santos paying specific expertise readily available local market mr wood agreed mr baker hard working man fact recognised organised applicant work schedule mr wood agreed applicant push pretty hard time mr wood explained one reason mr baker included negotiating party octg activity went three month period absorbed tremendous amount time overseas time jim spared position mr wood explained one else could replace period time ongoing drilling operation fellow worked really training mr wood agreed group went overseas one really experienced purchase oil company material explained necessary include people whose status important company october 1988 mr wood together mr riley offered mr baker termination package said company going degree rationalisation program reduce staff number note file june july 1988 show company aware mr baker ill 14 july note saying j baker medical specialist attention nerve plus sick psychological wise know mean r grant spoke wife 18 july noted k bird plus steve jackman go jim house see still sick spoke jim today seems 16 august 1988 note say j baker seen psychologist return visit file copy statement termination payment offered applicant termination date 30 november 1988 early retirement scheme offered 26 190 together superannuation payout 43 645 plus accumulation 1 660 15 mr thelning psychologist gave evidence hearing defined stress two way firstly functional stress one enjoy working hard secondly debilitating dysfunctional stress mr thelning believed mr wood caring alleviating mr baker workload discussed matter mr baker applicant personality would complain noted draw supervisor attention dissatisfaction problem mr thelning believed difficulty agricultural pursuit would resulted stress unless total devastation matter understanding applicant lose money sold curramulka mr thelning believed scenario suggested counsel employer worker transferred private worry onto workday world could equally seen transfer workcover workday problem onto applicant private world mr thelning said applicant story made sense particularly competitive world negotiating japanese surprising applicant suffered firstly accorded job negotiating japanese secondly went moomba offered le adequate accommodation office space loss face particularly stressful industry like oil industry incestuous status important present time mr thelning described applicant frightened animal even fearful neighbour hoped would eventually rehabilitated extent could work property report dr clayer 31 october 1990 2 january 1991 tendered dr clayer reported believed mr baker suffering depressive illness time adequately treated although much symptomology panic nature condition almost certainly depressive illness treated either local doctor psychiatrist anti depressant medication dr clayer wished see applicant six month time order reassess condition mr baker gave evidence hearing confirmed experience hyperventilation bowel problem behaviour pattern applicant past year said rarely socialised neighbour spends time kitchen looking window changed temperament rarely watch television read book stand brood improvement however since taking medication suggested dr clayer mr baker believe work curramulka heavy work done worker recovering helicopter accident curramulka house treated holiday weekender often took visitor purchasing property angaston august 1984 could little road built 1985 kept sheep keep grass house started 1985 mr baker explained angaston property developed garden indeed much finishing touch house explained mr baker find drive adelaide tiring good road enjoyed driving however play game others santos socialise play golf dr sando told review hearing believed worker needed gain focus life learn abide wish rather carrying people wish particular wish parent dr sando felt worker suffering neurotic illness increased ability see reality rather psychotic illness cloud perception reality dr sando opinion report 8 may 1991 mr baker confront problem santos resolution anger manifested self destructive depressive illness feature anxiety panic felt illness consistent applicant personality would always push favoured idea worker able address problem within still trying find solution coming outside dr sando belief applicant pursuing matter attempting justify moral code outcome important attempt belief financial gain secondary influence dr sando offered professional opinion stress indeed work related summing worker counsel described worker coped enormous workload able cope employer treated le justice employer paid sick leave rather advising worker entitlement worker rehabilitation compensation act 1986 aimed get rid worker offering golden handshake counsel declared worker would happy return golden handshake get justice done mr mahony pointed problem farming curramulka irrelevant indeed sold illness began time angaston property needed work worker stressed deal property worker offered package ill felt pressured accept package advised doctor appeared intent purpose company doctor mr rowell asserted mr wood given correct picture saying worker seen overladen work offloading otcg negotiation meant relieve applicant work mr rowell described workload excessive dealing eleven rig although applicant denied much work mr rowell said worker appeared someone tried much mr wood tried make easier worker recognised worker felt lost face everybody agrees worker depressive illness considering case really matter whether depressive illness aggravated work overload perceived loss face combination case condition work related fact never told anybody hyperventilation bowel problem quite understandable company however alerted problem worker june 1988 date various co worker noticed breathless tired mr rowell asserted company offered retirement package worker 55 year age argued worker accepted package plus superannuation entitled income maintenance although could entitled relevant medical expense lump sum entitlement referred casegeneral motor holdens v andreano 2844 1984 1985 122 lsjs 301 worker partially incapacitated accepted voluntary retirement package acceptance benefit seen full court indicating longer available work breached mutuality reason partial incapacity convert total incapacity mr mahony pointed thed andreacase dealt two main factor one claim worker partial incapacity deemed total incapacity retirement secondly concerned worker already made claim already advised worker compensation case hand person totally incapacitated work since june 1988 made claim indeed use worker counsel word ambushed company 4 5 month told right claim compensation totally incapable making considered decision wanted discus returning work august 1988 dissuaded mr bird satisfied applicant breach contract service totally incapacitated work credibility applicant substantiated observation behaviour co worker even though may misinterpreted applicant illness bronchial problem heavy smoking excessive tiredness applicant also credible explaining wanted get away santos adelaide tell truth problem hyperventilation bowel problem feeling rejection company particularly feeling mr wood told hearing substantiated dr sando brought respect authority could bring criticise supervisor applicant self assessment worth company understated substantiated mr wood dr sando assessed illness work related mr thelning whose evidence counsel employer asked discount sincere advocate applicant also found applicant believable find mr thelning advocacy separated professional assessment applicant find applicant totally credible witness evidence given hearing file find worker started feel effect work related stress 1984 85 irrelevant cause stress may work overload attested mr alex wood sense treated unfairly expounded applicant combination either case stress work related mr wood told hearing overseas negotiating trip organised basis status rather expertise find status person company important applicant perception loss face based reality work related stress translated depressive illness identified dr clayer report 31 october 1990 2 january 1991 dr sando identifies neurotic rather psychotic condition arose applicant underlying personality placed value hard work respect authority depressive illness treated medication yet reached stable condition reason soon investigate impact illness worker non economic life purpose lump sum entitlement hard work involved holiday farm curramulka completed applicant joined santos farm sold december 1984 start hyperventilation attack time hard work necessary angaston property applicant already ill although applicant never told anyone embarrassing fact illness various employee noted tiredness wood statement file dated 27 june 1990 breathlessness noted hoare thought bronchial bird thought due heavy smoking file note steven jackman alex wood dated 19 september 1988 reveals company received copy report psychologist dietz dr thesinger discussed applicant doctor advised applicant returned work assist recovery note identified three aspect contributing condition pressure work perception contribution unnoticed poor working condition moomba financial strain angaston property last item perception psychologist supported evidence spite recognition work related stress mention made workcover applicant told sick leave expired company would think someway extending one mentioned workcover offer early retirement package made 19 october 1988 wood riley personnel manager counsel emphasised similar package offered 48 employee irrelevant case evidence proffered capacity incapacity worker 26 accepted offer counsel discussed thed andreacase satisfied case dealing worker partial incapacity already receiving compensation competent advice quite different matter sick man offered one option implied threat take job might available future find applicant breach contract service accepting retirement package summary find worker suffered compensable disability commenced 1984 aggravated event moomba 1988 disability resulted total incapacity 27 june 1988 determinationaccordingly pursuant section 96 act set aside decision made 25 february 1991 workcover corporation substitute fresh determination matter applicant entitled compensation june 1988 disability arose employment employment contributed applicant entitled interest arrears income maintenance according section 47 act certify applicant represented legal counsel entitled relevant cost disbursement appeal determination must lodged worker compensation appeal tribunal within one month receipt determination enquiry appeal may directed registrar tribunal 4th floor hooker house 33 king william street adelaide phone 226 9718 form appeal available address k loveringreview officer |
Patrick v Ryan (Tenancy) [2004] NSWCTTT 99 (17 February 2004).txt | patrick v ryan tenancy 2004 nswcttt 99 17 february 2004 last updated 5 september 2006patrick v ryan tenancy 2004 nswcttt 99 17 february 2004 consumer trader tenancy tribunaltenancy divisionapplication 03 43404applicant b patrickrespondent j ryanapplication compensation loss amenity residential premise due breach residential tenancy agreementappearances applicant personms ferguson m fitzgerald respondenthearing batemans bay 11 november 2003 3 february 2004legislation residential tenancy act1987issues loss amenityordersthe residential tenancy agreement terminated possession given landlord 18 february 2004 landlord pay tenant sum 2 660 00 immediately tenant pay reduced rent 180 00 per week 9 january 2004 date vacant possession given landlord reason decisionthis application tenant compensation refund rent due loss amenity residential tenancy agreement mr patrick entered residential tenancy agreement respondent premise known moruya agreement dated may 31 2003 weekly rent 250 00 per week nine month bond 1 000 00 lodged renting service tenant paid sum 8 000 rent period 30 may 2003 9 january 2004 tenant filed application hearing tribunal 16 october 2003 seeking urgent hearing due contaminated unsafe water premise matter came first occasion 11 november 2003 hearing direction made landlord undertake certain repair arrange water quality test matter next listed hearing 3 february 2004 applicant agent representing respondent gave sworn evidence tribunal applicant said soon taking possession premise tenant became aware certain problem premise made concern known agent application tribunal applicant listed item concern manner room room condition report time first hearing urgent issue availability safe clean drinking water agreed water tested local government authority however water testing proved problematic party agreed tank emptied cleaned refilled safe drinking water carried landlord agent expense late november 2003 item repair made direction hearing november done tribunal heard conflicting evidence applicant said able provide access landlord agent advised unable gain access undertake repair hearing february applicant stated without clean supply water three month swimming pool unusable six month raw sewerage leaked backyard christmas day issue raised applicant include dangerous pool gate old pump still connected power accessible child child fort disrepair dangerous inside stair railing unsafe door handle sliding door runner television antenna working large lawn area mow boundary party agreed day residential tenancy agreement would terminated applicant would give vacant possession 18 february 2004 however applicant seeking compensation loss amenity 8 month possession applicant also tendered report prepared occupational health safety expert attended property made certain recommendation regarding health safety issue 11 february 2004 respondent filed letter tribunal advising applicant currently arrears arrears 17 february 2004 standing 1 392 90 doubt problem tenancy commencement appears breakdown relationship tenant managing agent attribute blame individual sometimes happen best run business whilst applicant feel agent respond complaint timely manner respondent view applicant give chance seek instruction interstate landlord time make repair wherever truth lay reality applicant suffered loss amenity tenancy paid market rent amenity provided token applicant also rented rural property go without saying property come inherent problem include town water sewerage system may always reliable large area lawn maintain respect unsafe drinking water situation attended soon possible good enough applicant made repeated attempt matter rectified rebuffed occasion matter hygiene safety security deserve immediate attention regard applicant awarded 1 800 compensation loss amenity furthermore applicant reimbursed water bought 7 september 2003 amount 110 00 respect claim mowing applicant obligation maintain premise clean tidy manner discretion mowing house paddock required previously stated renting rural property brings certain disadvantage well advantage respect loss amenity use swimming pool applicant awarded amount 500 00 whilst clear applicant brought many issue attention landlord agent early tenancy opinion entitled full rental refund believe however applicant lived circumstance contracted accordingly rent reduced 180 00 per week 9 january date applicant give vacant possession landlord applicant occupied premise approximately 8 month obtained benefit premise however entitled compensation serious loss amenity water pool sewerage leak respect sewerage leak acknowledge disruption applicant christmas day award amount 250 00 inconvenience respect tv antenna applicant remove item vacates premise benefit outlay claim dismissed order made rental bond time applicant vacated premise outgoing inspection deems clean tidy subject fair wear tear signed j reidmemberconsumer trader tenancy tribunal17 february 2004 |
Construction, Forestry, Maritime, Mining and Energy Union [2020] FWCA 128 (9 January 2020).txt | construction forestry maritime mining energy union 2020 fwca 128 9 january 2020 last updated 10 january 2020 2020 fwca 128fair work commissiondecisionfair work act 2009s 185 enterprise agreementconstruction forestry maritime mining energy union ag2019 5017 move vic rental pty ltd cfmeu victorian construction general division enterprise agreement 2019building metal civil construction industriescommissioner leemelbourne 9 january 2020application approval move vic rental pty ltd cfmeu victorian construction general division enterprise agreement 2019 1 application made approval enterprise agreement known themove vic rental pty ltd cfmeu victorian construction general division enterprise agreement 2019 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 16 january 2020 nominal expiry date agreement 31 january 2020 commissionerprinted authority commonwealth government printer ae506719pr715822 |
Ekinci and Civil Aviation Safety Authority [2005] AATA 789 (18 August 2005).txt | ekinci civil aviation safety authority 2005 aata 789 18 august 2005 ekinci civil aviation safety authority 2005 aata 789 18 august 2005 last updated 24 august 2005administrativeappealstribunaldecision reason decision 2005 aata 789administrative appeal tribunal n2004 1368general administrative division rereha ekinciapplicantandcivil aviation safety authorityrespondentdecisiontribunalprofessor gd walker deputy presidentdate18 august 2005placesydneydecisionthe decision review must affirmed professor gd walkerdeputy presidentcatchwordscivil aviation safety authority refusal aircraft maintenance engineer licence applicant failed pas necessary examination meet experience requirement specified cao examination applicant schedule experience associated documentation examination requirement civil aviation order examination issue bias casa official comparison hour experience requirement hour demonstrated applicant examination whether applicant made false misleading statement casa respect verification work whether applicant fit proper person perform function duty licence holder found sufficient evidence establish four ten category required insufficient evidence establish accumulated required experience six ten category found insufficient evidence establish necessary experience group 1 engine held insufficient evidence prove fit proper person hold licence decision review affirmed civil aviation act 1988s 20abcivil aviation regulations1988 |
1618074 (Refugee) [2019] AATA 399 (11 January 2019).txt | 1618074 refugee 2019 aata 399 11 january 2019 last updated 15 march 20191618074 refugee 2019 aata 399 11 january 2019 decision recorddivision migration refugee divisioncase number 1618074country reference indiamember paul noonandate 11 january 2019place decision melbournedecision tribunal affirms decision grant applicant protection visa statement made 11 january 2019 2 32pmcatchwordsrefugee protection visa india property dispute threat relative criminal link credibility issue decision review affirmedlegislationmigration act 1958 cth s 5aaa 5h 5j 36migration regulation 1994 cth schedule 2casesguo v miea 1996 64 fcr 151miea v guo 1997 191 clr 559nagalingam v milgea 1992 fca 470 1992 38 fcr 191prasad v miea 1985 6 fcr 155any reference appearing square bracket indicate information omitted decision pursuant tosection 431of themigration act 1958and replaced generic information allow identification applicant relative dependant statement decision reasonsapplication reviewthis application review decision made delegate minister immigration 19 october 2016 refuse grant applicant protection visa unders 65of themigration act 1958 act applicant claim citizen india applied visa 30 october 2015 applicant attended hearing 7 december 2018 hearing assisted interpreter punjabi language applicant unrepresented hearing criterion protection visathe 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 either person respect australia protection obligation refugee criterion complementary protection ground member family unit person person hold protection visa class section 36 2 provides criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation person refugee person refugee case person nationality outside country nationality owing well founded fear persecution unable unwilling avail themself protection country 5h 1 case person without nationality refugee outside country former habitual residence owing well founded fear persecution unable unwilling return country 5h 1 b 5j 1 person well founded fear persecution fear persecuted reason race religion nationality membership particular social group political opinion real chance would persecuted one reason real chance persecution relates area relevant country additional requirement relating well founded fear persecution circumstance person taken fear set s 5j 2 6 s 5k la extracted attachment decision person found meet refugee criterion 36 2 may nevertheless meet criterion grant visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion meaning significant harm circumstance person taken face real risk significant harm set s 36 2a 2b extracted attachment decision mandatory considerationsin accordance ministerial direction 56 made 499 act tribunal taken account policy guideline prepared department immigration pam3 refugee humanitarian complementary protection guideline pam3 refugee humanitarian refugee law guideline relevant country information assessment prepared department foreign affair trade expressly protection status determination purpose extent relevant decision consideration consideration claim evidencethe issue case whether applicant well founded fear persecuted one five reason set 5j 1 whether substantial ground believing necessary foreseeable consequence removed australia india real risk suffer significant harm applicant travelled australia apparently genuine indian passport copy contained departmental file applicant always represented indian citizen dealing department tribunal find applicant indian citizen assessed applicant claim india country nationality application protection applicant stated summary reason left india father property dispute uncle india faced many threat local mafia take form uncle cousin sought help within india stated authority protect range protect poor people relation happen return india applicant stated killed part disputed land try move another another part india father want leave hometown house live gifted grandfather applicant confirmed claim respect fear harm returning india applicant gave evidence family including sibling father mother currently live home village punjab india also lived whole life village moving australia june 2009 tribunal noted applicant arrived australia student visa accompanied spouse tribunal also noted applicant returned india november 2010 arrived back australia january 2011 lodged application skilled graduate visa 15 june 2011 applicant student visa ceased 21 april 2012 applicant application skilled graduate visa refused 19 may 2012 applicant bridging visa expired applicant became unlawful non citizen 30 october 2015 applicant applied protection visa 27 november 2015 applicant granted associated bridging visa applicant submitted completed final year school successfully india undertaken study applicant informed tribunal left india uncle disputing father ownership agricultural land house town father inherited asked dispute affected directly applicant stated father transferred property december 2010 august 2015 worried harm applicant residing australia applicant submitted document purported evidence land transfer tribunal accepted case father one brother grandfather given 50 agricultural land son however father inherited city house entirely uncle believed received agricultural land father age uncle since passed away asked occurred applicant sure asked remember uncle passed away applicant stated australia long time know confirmed father told death remember detail however submitted uncle son property deal drug criminal dangerous name mr aged somewhere age asked uncle history applicant stated uncle owned ran business city mr also run business investor tribunal questioned applicant harm suffered result action taken uncle applicant submitted father pushed bike uncle time ago remember father dislocated shoulder fall remembered incident discussed village reported authority otherwise applicant could recall actual incidence physical harm perpetrated father uncle however submitted uncle threatened father daily basis tribunal questioned likeliness uncle ran business city applicant submitted uncle never went business people run business applicant confirmed personally suffered harm uncle mr pressure mr really started 2008 land price rose significantly tribunal noted previously informed department pressure started 2015 applicant agreed land worth significant amount money 2015 submitted uncle asking land making overt threat stated personally began receive threat property transferred belief mr still pose threat confirmed mr criminal link mafia referred claim asked family report threat mr applicant stated occurred mr link politician police asked mr influence applicant stated police politician client business mr known turn father house drunk make threat tell bring applicant back india also occasionally call applicant australia tell come back india asked father would transfer property applicant rather relying upon applicant unable explain reiterate father felt property safer name resides overseas agreed father asked happens property pass applicant unable provide answer asked came australia applicant stated came study good country asked delayed long applying protection visa applicant stated came wife estranged everything good agreed returned india stated fear harm time harmed india relationship wife broke thinking going back india however father advised due threat posed uncle asked could live another area india big city applicant stated could find asked meant applicant confirmed refers mr asked would find applicant stated mr decided anything find asked mr would find applicant suggested parent would visit mr would find village people suggested would way stop parent visiting applicant informed tribunal work occupation australia india used work specified workplace confirmed claim protection finished stating cannot go back india freedom australia want go back india credibilitythe tribunal acknowledges importance adopting reasonable approach making finding credibility 1 however mere fact person claim fear persecution particular reason establish either genuineness asserted fear well founded reason claimed rather remains applicant satisfy tribunal statutory element made section 5aaa act make clear applicant responsibility specify particular claim person respect australia protection obligation provide sufficient evidence establish claim tribunal responsibility obligation specify assist applicant specifying particular claim decision maker required accept uncritically allegation made applicant 2 tribunal considerable doubt respect applicant claim fear harm uncle cousin significant level vagueness plausibility concern evidence tribunal discussed tribunal accepted applicant father deceased brother land dispute brought term father tribunal also accepted father transferred land applicant tribunal accepted applicant father brother may well altercation past caused harm father father pushed bike applicant uncle however tribunal noted applicant unable recall claimed event occurred incidence harm involve applicant asked uncle passed away applicant unable recall occurred vague recollection event respect significant event respect close family member subject passing applicant claimed fear harm tribunal would expect applicant know exactly passed vague recollection significant event cause tribunal doubt applicant credibility respect claimed fear harm respect uncle turn respect son mr tribunal considered applicant evidence mr uncle son criminal link mafia seek harm applicant lacking reasonable plausibility lacking credibility applicant entire family resides home town mr also residing nearby applicant family entirely unharmed without threat harm directed towards mr tribunal considered applicant evidence mr undertakes occasional drunken disordered harassment applicant family reflective significant threat posed mafia like figure capable serious harm asserted applicant contradictory evidence lead tribunal doubt applicant credibility respect claimed threat harm mr tribunal accept applicant receives call mr threatening asking come back india credible mr applicant contact detail australia given family claimed action taken due threat posed mr applicant submitted lack serious harm family title disputed land tribunal considered would dissuade criminal link mafia determined extort land apparent significant value posing threat applicant family causing serious harm tribunal found applicant evidence mr influence police politician client business lacking reasonable plausibility lacking credibility applicant provided explanation mr would exert significant influence complaint apparently well resourced family would go unheard un actioned police tribunal accept applicant evidence family reported threat harm police dissuaded mr influence police politician tribunal also unpersuaded applicant evidence uncle used wait beside road threaten father every day preference tending business tribunal concluded basis deliberation evidence neither applicant family made police report complaint respect threat harm mr father also indicative actuality threat made addition despite claiming holder significant wealth behalf father ostensibly purpose shielding father potential harm despite claiming threat harm due holding applicant made move construct tribunal considered absence basic legal protection apparent unequal distribution family wealth despite existence father sibling apparently highly valuable asset undermine applicant credibility respect well founded fear harm mr factor set earlier reason led tribunal consider fact threat harm made mr towards applicant since death uncle conclusion credibilityon basis consideration tribunal accept applicant received threat harm uncle son mr applicant return india lack serious harm applicant family year residing close mr following death uncle satisfied tribunal mr would motivated pursue land seeking harm applicant reasonably foreseeable future summary tribunal rejected applicant claim fear harm mr credibility absence claim advanced applicant may face harm upon return india tribunal found applicant real chance harmed anyone reason reasonably foreseeable future follows tribunal accept applicant well founded fear persecution reason claimed return india complementary protectionin considering whether applicant meet complementary protection criterion 36 2 aa tribunal considered whether substantial ground believing necessary foreseeable consequence applicant removed australia receiving country real risk suffer significant harm case tribunal found applicant national india tribunal therefore find india receiving country purpose 5 1 act detailed tribunal accepted applicant claim fear harm mr find real risk harmed mr son deceased uncle follows tribunal accept real risk applicant suffer significant harm person reason set reason evident claim material necessary foreseeable consequence removed australia india conclusionsfor reason given tribunal satisfied applicant person respect australia protection obligation 36 2 concluded applicant meet refugee criterion 36 2 tribunal considered alternative criterion 36 2 aa tribunal satisfied applicant person respect australia protection obligation 36 2 aa suggestion applicant satisfies 36 2 basis member family unit person satisfies 36 2 aa hold protection visa accordingly applicant satisfy criterion 36 2 decisionthe tribunal affirms decision grant applicant protection visa paul noonanmemberattachment extract frommigration act 19585 1 interpretation cruel inhuman treatment punishmentmeans act omission severe pain suffering whether physical mental intentionally inflicted person b pain suffering whether physical mental intentionally inflicted person long circumstance act omission could reasonably regarded cruel inhuman nature include act omission c inconsistent article 7 covenant arising inherent incidental lawful sanction inconsistent article covenant degrading treatment punishmentmeans act omission cause intended cause extreme humiliation unreasonable include act omission inconsistent article 7 covenant b cause intended cause extreme humiliation arising inherent incidental lawful sanction inconsistent article covenant torturemeans act omission severe pain suffering whether physical mental intentionally inflicted person purpose obtaining person third person information confession b purpose punishing person act person third person committed suspected committed c purpose intimidating coercing person third person purpose related purpose mentioned paragraph b c e reason based discrimination inconsistent article covenant include act omission arising inherent incidental lawful sanction inconsistent article covenant receiving country relation non citizen mean country non citizen national determined solely reference law relevant country b non citizen country nationality country former habitual residence regardless whether would possible return non citizen country 5j meaning well founded fear persecution 1 purpose application act regulation particular person person well founded fear persecution person fear persecuted reason race religion nationality membership particular social group political opinion b real chance person returned receiving country person would persecuted one reason mentioned paragraph c real chance persecution relates area receiving country note membership particular social group seesections 5kand5l 2 person well founded fear persecution effective protection measure available person receiving country note effective protection measure seesection 5la 3 person well founded fear persecution person could take reasonable step modify behaviour avoid real chance persecution receiving country modification would conflict characteristic fundamental person identity conscience b conceal innate immutable characteristic person c without limiting paragraph b require person following alter religious belief including renouncing religious conversion conceal true religious belief cease involved practice faith ii conceal true race ethnicity nationality country origin iii alter political belief conceal true political belief iv conceal physical psychological intellectual disability v enter remain marriage person opposed accept forced marriage child vi alter sexual orientation gender identity conceal true sexual orientation gender identity intersex status 4 person fear persecution one reason mentioned paragraph 1 reason must essential significant reason reason must essential significant reason persecution b persecution must involve serious harm person c persecution must involve systematic discriminatory conduct 5 without limiting serious harm purpose paragraph 4 b following instance serious harm purpose paragraph threat person life liberty b significant physical harassment person c significant physical illtreatment person significant economic hardship threatens person capacity subsist e denial access basic service denial threatens person capacity subsist f denial capacity earn livelihood kind denial threatens person capacity subsist 6 determining whether person wellfounded fear persecution one reason mentioned paragraph 1 conduct engaged person australia disregarded unless person satisfies minister person engaged conduct otherwise purpose strengthening person claim refugee 5k membership particular social group consisting familyfor purpose application act regulation particular person first person determining whether first person wellfounded fear persecution reason membership particular social group consists first person family disregard fear persecution persecution member former member whether alive dead family ever experienced reason fear persecution reason mentioned paragraph 5j 1 b disregard fear persecution persecution first person ever experienced ii member former member whether alive dead family ever experienced reasonable conclude fear persecution would exist assumed fear persecution mentioned paragraph never existed note section 5gmay relevant determining family relationship purpose section 5l membership particular social group familyfor purpose application act regulation particular person person treated member particular social group person family characteristic shared member group b person share perceived sharing characteristic c following apply characteristic innate immutable characteristic ii characteristic fundamental member identity conscience member forced renounce iii characteristic distinguishes group society characteristic fear persecution 5la effective protection measure 1 purpose application act regulation particular person effective protection measure available person receiving country protection persecution could provided person relevant state ii party organisation including international organisation control relevant state substantial part territory relevant state b relevant state party organisation mentioned paragraph willing able offer protection 2 relevant state party organisation mentioned paragraph 1 taken able offer protection persecution person person access protection b protection durable c case protection provided relevant state protection consists appropriate criminal law reasonably effective police force impartial judicial system 36 protection visa criterion provided act 2a noncitizen suffersignificant harmif noncitizen arbitrarily deprived life b death penalty carried noncitizen c noncitizen subjected torture noncitizen subjected cruel inhuman treatment punishment e noncitizen subjected degrading treatment punishment 2b however taken real risk noncitizen suffer significant harm country minister satisfied would reasonable noncitizen relocate area country would real risk noncitizen suffer significant harm b noncitizen could obtain authority country protection would real risk noncitizen suffer significant harm c real risk one faced population country generally faced noncitizen personally 1 guo v miea 1996 64 fcr 151 per foster j 194 full federal court 2 miea v guo 1997 191 clr 559at 596 nagalingam v milgea 1992 fca 470 1992 38 fcr 191andprasad v miea 1985 6 fcr 155 169 70 |
MR S MCGILLIGAN AND MS G ASHTON and J-CORP PTY LTD (Decision O.16898_4 & O.16898_5) [2009] WABDT 19 (28 July 2009).txt | mr mcgilligan m g ashton j corp pty ltd decision 16898 4 16898 5 2009 wabdt 19 28 july 2009 jurisdictionbuilding dispute tribunalcorammr forrester deputy chairpersonmr b delaporte membermr p pinder memberheard18 november 2008 3 june 2009orders issued29 june 2009written reasonspublished28 july 2009complaint 16898 4 16898 5betweenmr mcgilligan andms g ashton complainantsandj corp pty ltd respondentcatchwordsresidential building alleged defect construction standard required jurisdiction tribunal contractual issuesrepresentationcomplainantsmr mcgillian m ashtonrespondentmr valentini mr maiocases referred toin decisionnot applicablereasons decision1 background1 1 double storey house northern suburb trigg built cost 215 000 plus practical completion end 2007 exact date entirely clear contract signed november 2004 several dispute referred tribunal culminating overall list alleged deficiency inspected 16 june 2008 91 matter investigated set inspector report 27 june 2008 matter considered tribunal hearing 18 november 2008 became clear still item hearing adjourned 3 june 2009 allow owner opportunity file list item dispute accord requirement legislation governing authority tribunal 1 2 tribunal visited property 3 june 2009 reconvened hearing completed day matter covered inspector report revised list 2 april 2009 considered tribunal listed item dealt builder also report made private company tilespec tiling consultant owner dated 26 april 2008 largely circumvented tribunal personal inspection 2 evidence involving wet areas2 1 owner brought mr stephen need tilespec tiling consultant give evidence report page 22 et seq paper read item 76 91 inspector report bathroom toilet major aspect complaint owner following point made inspector evidence stated set 2 2downstairs bathroom wcitem 76 non alignment tilesthe party disputed whether tile size tile chosen owner stated initially intended 198 size upstairs 200 size downstairs size changed downstairs owner considered tiler mixture 200 198 owner disputed finding inspector system used accepted practice item 77 fall bathroom wc floor wastesthe inspector found alignment bathroom floor order toilet floor incorrect water flow waste without ponding owner disputed finding bathroom floor 8 minute pouring bucket water floor still evidence ponding mr need supported shower floor builder conceded checked floor generally item 78 1 embossed edge listellothe allegation embossed edge listello irregular edge sharp edge sticking proud owner disputed inspector finding alleged deficiency corner vanity splashback item 78 2 tile linethere one tile marginally line others inspector considered action needed item 79 shower tilingthe owner alleged several place alignment listello wall tile alignment mr need stated finish inconsistent inspector said issue noticeable unless pointed item 80 aluminium anglethis floor passage bathroom proud floor level builder said measurement 2mm one tile needed taken recommendation inspector remedy height variation top angle surface tiled floor owner said son stubbed toe angle item 81 fall shower wastethe owner disputed finding inspector fall satisfactory shower waste stated ponding mr need confirmed residual ponding stated cover whole tile 200 x 200 size 2 3laundryitem 82 fall laundry wastea photograph produced showing laundry floor mr need referred report stated whole floor requires realigning builder would accept note inspector one tile alignment north waste inspector recommended however builder remedy ponding around floor waste item 83 listello alignmentthe inspector noted minor irregularity tile recommended action mr need referred paragraph 6 3 report said one two tile needed replacing owner referred splashback tile needing replacement 2 4upstairs bathroomitem 84 vanity listello alignment groutingthe corner joint involved well grouting inspector recommended remedied mr need said corner joint mitred problem would solved item 85 fall floor wastethe inspector assessed fall floor waste unsatisfactory owner stated slope slippery mr need referred paragraph 7 11 report considered fall dangerous item 86 wall tile baththe builder dispute three recommendation made inspector item 87 fitting baththis item involved whether lip bath chased wall stated bca 3 8 1 builder agreed chased wall conceded two tile needed replaced front owner said bath moving needed locked wall mr need said found great proportion bath chased wall builder disputed plumber chased bath wall item 88 alignment wall tile baththe owner stated tile go behind lip mr need referred report page 33 file inspector recommended action item 89 skirt tile drummythe tile wc wall adjacent bath involved inspector assessed required attention builder dispute matter 2 5upstairs wcitem 90 fall floor wastethe inspector assessed floor tile faulty floor front wc pan door trough centre floor owner mr need referred fact water flowed door bathroom rather waste builder agreed replace tile mr need said area bathroom allowed water flow hallway item 91 tile angle proudthe inspector noted tile angle dressing opening upstairs bathroom proud floor tile 2mm needed rectified owner said issue involved bathroom 2 6 completed matter involving mr need attention drawn mr need report matter additional inspector report see paragraph 4 reason 3 evidence balance inspector report3 1 tribunal reverted beginning inspector report dealt item follows 3 2doorsitems 1 2 front door hung properly leakingthe owner said faced due west close coast door blown open storm tight water still came coastal pack applied special lock installed cost 313 50 active door bowed inspector observed top bottom door painted needed better hanging item 3 door hardwareaddressed builder item 4 small understair storage doorthis rough finish paintwork hung unevenly inspector recommended remedial action 3 3loungeitem 5 cracked corniceaddressed builder item 6 uneven corniceaddressed builder 3 4master bedroomitem 7 robe shelf protruding nailthe inspector noted matter noticeable slight protrusion recommended action item 8 rough woodwork robethis complaint arises use dressed meranti sub frame painted flat cream colour action recommended inspector item 9 cracked corniceaddressed builder 3 5ensuite bathroomitem 10 door arming top hingethe builder confirmed door fixed correct backing plate yet installed door knob item 11 13 14 15 16 17no evidence given item dismissed inspector accepted party item 12 crack cornice showeraddressed builder 3 6laundryitem 18 door leak rainthis complaint relates exterior door stated coastal strip used prevent leakage bottom door also noted top bottom door painted builder said evidence 3 7family roomitem 19 rain leakage sliding doorthe door face north patch wall water come photograph produced builder attempted repair item 20 cornice crackaddressed builder 3 8kitchenitem 21 rangehood correctly installedaddressed builder item 22 rangehood penetration ceilingthe owner stated silicone cut flue ceiling sheet repaired builder agreed inspector consequence workmanship builder liable natural cause removing dead rodent item 23 cornice cracksaddressed builder item 24 missing drawer handle screwaddressed builder item 25addressed builderitem 26 pantry shelf protruding nailsthe owner wanted fixed inspector noted matter referred slight protrusion brad used fixing framework item 27 shelf sinkthe owner said two small chip builder said would need reinspect matter item 28 bench top scratchedthe builder said could seen owner said stood certain position depending light item 29 sink scratchingthis item also disputed builder known scratch occurred item 30 shelving pantrysame type complaint per item 8 item 31 protruding nail top shelfthe item could identified inspector item 32 middle overhead cupboardthe builder dispute item awaiting availability cabinetmaker item 33 screw coversthe owner agreed rectified item 34 dent vinyl wrapthe inspector noted noticeable unless pointed owner concerned vinyl might lift future item 35 staining kitchen ceilingthere leak roof fixed builder stain appeared ceiling builder dispute item item 36 join melamine breakfast barthe builder stated required adjustment screw inspector considered corner joint required realignment 3 9guest bedroom upstairs front item 37 protruding nail robe shelf inspector noted slight protrusion brad noticeable owner considered builder sand robe shelf item 38 shelf finishthis type complaint item 8 item 39 cornice cracksaddressed builder 3 10activity roomitem 40 sliding door loosethe owner stated door rattled strong wind door balcony face west inspector assessed movement inconsistent expected movement residential sliding door item 41 cornice cracksaddressed builder item 42 lower cupboardthere two complaint protruding nail screw situation item 37 b rough finish see item 8 type complaint 3 11balconyitem 43 rustingthere two complaint residual rust staining slab dismissed inspector owner wanted cleaned b minor rust staining base column builder attended matter item 44 uneven finish balustradingthere powder coating evident photograph builder advised would get manufacturer look problem item 45 cornice crackthis due section ceiling fixed properly ceiling frame builder accepted item still needed attention item 46 ceiling crackthis consequence item 45 item 47 flaking paint ceiling cornicesthe builder accepted item item 48 rusting downpipe trim eavesthe owner could identify item inspector item 49 hole eaves near bargethe inspector noted small gap barge board finish balcony eave commences gap noticeable item 50 uneven balcony slabthis due slab properly cleaned lump concrete daubing surface builder object fixing problem 3 12upstairs bathroomitem 51 chip baththe owner stated noticed cleaned bath builder left dirt rubbish result work vicinity builder objected brought 12 month item 52 stained silicone groutthere evidence staining tile bath according inspector owner said major issue tile replaced complaint would dealt anyhow item 53 bathroom toilet fansthe inspector noted bathroom fan flumed exterior accordance 3 8 5 2 c bca ventilation requirement however toilet fan flumed builder addressed aspect item 3 13bedroom 2 upstairs item 54 protruding nailsee item 37 similar complaint item 55 shelving finishsame complaint item 8 3 14bedroom 3 upstairs item 56 rough finish shelvingsame complaint item 8 3 15garageitem 57 paint spill garage roofthis addressed builder part complaint item 58 missing fastenersaddressed builder 3 16exterioritem 59 leaking tap meter boxthe builder agreed get plumber attend item item 60 vent bathroom scthe inspector noted slight bow bottom one vent fascia require remedial action item 61 fractured brickthere chipped brick north reveal garage opening inspector found sufficiently marked require replacement item 62 63 64 65 66 67 brick stainsthe inspector noted stain left green stain case item 62 65 rest item warrant remedial action builder stated vanadium stain cleaned possible problem arose brick would disappear time additional cleaning would solve problem uncommon perth item 68 blistering paint pipe near meter boxaddressed builder item 69 veranda pole paint base missingthe builder agreed rectify item item 70 bracket missing downpipethe builder agreed rectify item item 71 finish underside balcony slabthe edge soffit abutting ground floor face brickwork rough unsightly builder agreed remedy item work completed item 72 laundry doorsame item 18 3 17general itemsitem 73 base slab wooden flooring carpetthere place slab needed cleaning concrete mortar lump wooden flooring carpet could laid builder said would reinspect area concerned cleaning generally dealt item 74 internal door change chrome backing platesthe owner said four set still needed replaced front back door particularly downstairs bedroom door item 75 remedial work relating windowsthis ongoing complaint gap screen window frame subcontractor affinity window done brief review last complaint builder said would get subcontractor fix item submitted list owner 3 18 matter adjourned point allow owner submit updated list complaint tribunal inspect premise personally relation complaint bathroom wcs 4 complaints4 1 owner filed list outstanding additional item page 125 128 paper included item tilespec report considered previous hearing mr need present item follows 4 2ground floor bathroom toiletitem 5 3 grouting wall tilingit stated joint tooled joint finishing else tooled properly item 5 8 gradientsthe gradient referred inappropriate item 5 12 altered floor wastethe plastic hexagon floor waste altered grinding corner item 5 13 sharp edge near floor wastethe cutting around floor waste left sharp serrated edge poor workmanship item 5 14 floor tile around main floor wastethe floor tile said lipping around main floor waste concave middle peaking corner item 5 15 lipping tilesthere numerous lipping tile main bathroom floor toilet floor waste involved two room item 5 17 deformable jointthere deformable joint required as3740 bathroom around main wall floor junction item 5 18 trimthe trim said 1 1 5mm higher adjoining floor tile creating risk situation though risk explained tile flush top trim item 5 19 skirting tilesthe skirting tile laid square toilet bathroom return wall next item alleged screeding bathroom floor taken account straight line door trim floor plane 4 3ground floor laundryitem 6 1 indentation floor planethere 4mm indentation laundry floor plane running floor waste item 6 2 misaligned wall tilingwall tiling around laundry window misaligned sill tile couple millimetre item 6 3 mitre edge tilesit alleged mitre edge protrude beyond main body tile trough item 6 4 movement grout matrixmovement grout matrix occurred around window door frame according report leaving hole 1mm stainless steel rule could slipped evidence stated flexible joint used grout falling leading doorway leak item 6 5 excessive grout gapthe floor tile front laundry trough excessive grout gap item 6 6 void groutingthere void grouting bottom trough floor tile junction would allow ingres moisture duplication 6 5 item 6 7 border tilesthe border tile trough cabinet tile protruding plumb line exposing sharp edge could felt thus needed straightened item 6 9 6 10 cutting around floor wastethe cutting around floor waste left sharp rough edge floor waste protruding higher adjacent floor item 6 11 lipping tilesthere numerous 1mm lipping tile floor word numerous defined item 6 12 rough groutinggrouting rough many point overfilled similar complaint 5 3 item 6 13 flexible jointswhile flexible joint trough cabinet bench said also one junction wall floor window door etc item 6 14 hollow floor tilethere 5mm hollow floor tile plane visible door floor waste repeat item 6 1 item 6 15 screedingscreeding laundry taken account height door trim criticism item 5 19 item 6 16 door trimheight door trim 1 1 5mm floor bathroom excessive 4 4upstairs bathroomitem 7 4 fractured tilesfractured tile alleged bath builder thought might one tile border tile item 7 5 chasing bath wallsee item 87 inspector report item 7 7 deformable flexi jointit stated deformable flexi joint bath shell wall delaminated fractured due movement bath item 7 8 grouting wall tilingthe grouting wall tiling rough similar complaint item 5 3 item 7 9 shower recessthere evidence brick dust penetrated grout surface according owner occurred window changed item 7 10 border tile edgessharp border tile edge protruded vanity outlet tap wall side wall said order item 7 13 drummy tilesthere two drummy tile bathroom floor item 7 15 cutting around floor wastethe cutting around floor waste rough similar item 5 13 item 7 16 lippingthe main floor waste lipping adjacent floor tile similar item 6 10 criticism item 7 17 numerous lipping tilesthere numerous lipping tile bathroom floor similar item 6 11 also stated problem occurred around toilet floor waste item 7 18 lack deformable joint bathroomthis similar item 6 13 allegation 4 5general4 5 1 owner summarised objection tiling stated variation order changed size tile 200 x 200mm however mixture 200 198mm used led problem quite apart alleged poor workmanship 4 5 2 also allegation rusting lintel ground floor various place questioned use type building material marine environment 4 5 3 owner also highlighted problem door relation leaking laundry door none door top bottom edge painted 4 5 4 emphasised problem door set stair cupboard 4 5 5 allegation relation window flyscreens gap filling also repeated 4 5 6 painting laundry door step disintegration mortar joint outside downstairs sliding door allegation area mortar cracked emphasised 4 5 7 quality material used questioned 5 decision complaints5 1 complaint taken order report inspector additional matter page 125 128 preliminary comment necessary power several matter clearly contractual respect tribunal jurisdiction contractual issue time contract signed limited contract 200 000 home buildingcontracts act level since raised made operate retrospectively major issue first dispute size tile variation order apparently issued buildersregistration actsection 12 limit value contract consider whether work properly done workmanlike manner tile supplied theowners mean consider whether work order using mix size tile secondly complaint made use dressed meranti wood owner want type construction contractual issue thirdly complaint quality material used marine environment owner wanted different material resilient heavy use salty air becomes contractual issue whether contract provided material jurisdiction determine matter price house contract determines quality product used 5 2matters dealt report inspectoritems 1 2 front doorswe accepted report recommendation particular front facing west door painted top bottom reduce possibility affected moisture also required properly hung item 3no longer issue item 4 stair storage areathis matter part order remedy accept item 5no longer issue item 6no longer issue item 7 nail protrudingthere number complaint nail protruding ever slightly fact inspector found matter slight protrusion brad used fix centre mullion sufficiently protruding justify complaint agree item 8 rough woodworkuse dressed meranti contractual issue use material see comment paragraph 5 1 reason complaint dismissed item 9no longer issue item 10 ensuite bathroom doorthe builder rectify matter item 11 shower roseno longer issue item 12 corniceno longer issue item 13could identified dismissed item 14no longer issue item 15no longer issue item 16not issue longer item 17the problem simply required cleaning owner dismissed maintenance issue item 18 laundry doorthe complaint leaking likely due lack painting edge top bottom causing warp builder remedy problem item 19 family room doorthe builder attempted correct item wholly successful accordingly matter required completion silicone bead checking cause required rectification item 20 cornice crackno longer issue item 21 rangehoodno longer issue item 22 rangehood penetrationthe tribunal agrees inspector rodent got rangehood unknown matter appear practical completion list sheet presented u complaint dismissed item 23 cornice crackno longer issue item 24 missing screwno longer issue item 25 drawer closureno longer issue item 26 shelf nail complaint see item 7 complaint dismissed item 27 chip edge strippingfor reason builder omitted check item inspector requested action seems minor matter require attention tribunal builder recommended inspect deal item along fixing matter order item 28 bench top scratchedthis matter appear practical completion list tribunal noted scratch stand inspected definite evidence cause builder matter dismissed item 29 sink scratchedthe inspector noted general usage scratching owner seen handover tribunal upon inspection agreed inspector scratch noticeable roaming eye matter therefore dismissed appear emanate general usage item 30 shelving meranti see comment paragraph 5 1 reason complaint dismissed item 31 protruding nailitem dismissed could identified inspector see also comment item 7 complaint item 32 cupboard shelfsee order remedy builder accepted item 33 screw coversno longer issue item 34 dent vinyl wrapthis matter noticeable owner concern supported evidence failure matter dismissed item 35 staining kitchen ceilingthis remedied order remedy still done agree order stain obvious requires prompt attention item 36 melamine joinsthese join occur breakfast bar affect corner joint accepted area require improvement order made builder make good area item 37 protruding nail robe shelfthis item involves brad previous complaint item dismissed see item 7 item 38 shelf issue dressed merantisee paragraph 5 1 reason matter dismissed item 39 cornice cracksno longer issue item 40 sliding doorthis matter considered ill fitting door slight movement sliding door nothing usual complaint dismissed item 41 cornice cracksno longer issue item 42 brad problem meranti issueboth matter dismissed see comment item 7 paragraph 5 1 reason item 43 rusting balcony polesthere two part complaint first involved rust staining balcony specifically noticeable tribunal event close coast rust staining frequently appear salt air requires regular maintenance owner rust mark way affect stability strength item second item involving base column subject order remedy builder registration board accordingly general order comply order issued tribunal item 44 uneven finish balustradingthis matter subject powder coating builder agreed looked contractor matter subject order effect item 45 46 cornice ceiling cracksboth item result section ceiling fixed properly ceiling frame builder hearing accepted need attend matter appears however omitted original order remedy overlooked making order tribunal circumstance obvious fault trust builder attend matter maintenance issue without need order item 47 flaking paintthis matter included original order remedy endorsed tribunal remedied builder item 48 rusting pipe colorbond trim owner could identify item inspector item dismissed item 49 hole eavesthe hole small noticeable complaint dismissed item 50 uneven balcony slopethere residue concrete mortar daubing balcony builder remedy matter completed work first place item 51 chip baththe tribunal could distinguish slight defect pointed defect structural nature aesthetic effect bath difficult see accordingly complaint dismissed item 52 stained groutthe alleged defect cannot easily seen appears result fully cleaned difficult ass occurred matter could alleviated normal cleaning area owner even detract appearance area dismissed item 53 fansthis subject order remedy informed dealt builder item 54 robe shelf naildismissed see item 7 similar situation item 55 rough finish meranti issuedismissed see paragraph 5 1 reason item 56 rough finish shelvingdismissed see paragraph 5 1 reason item 57 paint spillthis matter subject order remedy accordingly endorsed tribunal item 58 missing fastener colorbondno longer issue item 59 leaking tapsthe builder would expected fix item order made accordingly item 60 vent bathroom scthis issue could said faulty standard house slight bow noted matter dismissed item 61 fractured brickthe matter reason omitted order remedy according description inspector warrant replacement order made accordingly item 62 brick stainsa greenish stain appearing brick due material used making brick referred vanadium stain see page 99 100 paper instance appeared one door rear garage would justify removal replacement accordingly item dismissed owner recommended careful cleaning brick stain since remedy could make worse item 63duplicate item 62 item 64 brick stain corner bedroom 3dealt builder longer issue item 65 brick stain study windowsee item 62 similar order item 66 brick stain guest bedroomsee item 62 noted however inspector also dismissed item item 67 brick stain gas hwssee item 62 matter also dismissed inspector item 68 blistering paint pipeaddressed builder longer issue item 69 paint veranda polesthis item order remedy endorsed tribunal item 70 bracket missingthis matter included order remedy endorsed tribunal item 71 poor finish underside balconythis matter part order remedy builder agreed fix order endorsed tribunal item 72 laundry door leakssee item 18 item 73 uneven place slabthis difficult item deal inspector attention drawn one area landing stair list asked place involved provided see page 49 paper builder obligation contract leave building site clean free rubble dirt surplus building material attention specifically drawn particular problem site seems examination inspector completed builder cleaned site carrying order tribunal owner liberty bring another claim tribunal relating failure builder respect item builder urged examine area nominated owner take necessary action clean surplus concrete instance balcony face substantial bill later item 74 internal door backing platesit appeared builder remedied fault door least 4 remained completed order issued comply requirement item 75 window door flyscreens gapsit appeared 2 window complaint remained kitchen window flyscreen replaced order therefore made done upstairs window alleged gap window screen examined window could find cause complaint alleged insect getting could established screen fit absolutely flush window frame manner screen fitted catch glued screwed taken clean window time inspection fault could found claim dismissed 5 3bathroom toilet claims5 3 1 large number claim made result inspection mr need whose approach best tradesman employed industry absolute perfection guaranteed section 12a buildersregistration actrefers proper workmanlike manner standard construction bathroom wc tiling judged respect several background issue problem mixed size tile referred paragraph 4 4 jurisdiction decide contractual issue examined bathroom toilet tiling view point whether saw done neatly exactitude might possible size tile see paragraph 5 1 b level floor set balancing need provide drainage waste pipe steep fall could slippery wet commonsense approach required within gradient bca c sudden use bucket full water thrown floor accordance likely overflow tap blocked toilet however prove water flow bathroom laundry passage adjoining room floor one would expect owner mop pooling water fixing cause overflow even leave drain away immediately slight ponding slow drainage expected bearing mind matter referred b e allegation sharp serrated edge made ran hand area concerned definition given report meant sharp serrated stage suffer scratch cut one would imply use word f tile set evenly slight lipping expected became obvious sighting along wall floor became subject order redress g use joint finishing rod obligatory said bca australian standard requirement occurs finish neat leave surplus grout however done h fitting bath disputed issue trade matter set bca pt 3 8 law recommended practice trade western australia divided plumber chase tip bath wall others case follow method originally used shown diagram page 95 96 either acceptable drawing signed owner detail shown 95 96 matter contractual issue jurisdiction even cannot fault builder follows older practice long work done proper workmanlike manner nothing demonstrated u show method used case done properly workmanlike manner respect author report trying insist law chase bath wall need establish approach industry get industry ensure builder follow bca method wanted deformable point said required area bathroom laundry even though immediately adjacent source water authority cited requirement j complaint concerned door sill proud floor wooden floor carpet yet installed sill would proud concrete floor completed issue could become material depending upon done sill 5 3 2 order therefore made saw need better workmanship following inspection order follows ground floor bathroom toiletwe accepted complaint rough grouting wall tile gradient toilet floor incorrect observed inspector trough centre floor removed andthat skirting tile needed laid square toilet bathroom return wall agreed inspector dismissing complaint non alignment skirt tile floor tile alleged fall bathroom floor splashback tile vanity fall shower waste reason given agree possible stage say aluminium angle proud mr need report accept wall tile show rough grouting required work improve appearance also skirting tile needed laid square toilet bathroom return wall otherwise accept finding gradient conflicted measurement taken inspector one know measurement made also claim sharp serrated edge around floor waste found numerous lipping tile point state good repair failed b ground floor laundrywe accepted four main defect present movement occurred grout matrix around window frame door frame excessive grout gap floor tile front laundry trough void grouting bottom trough floor tile junction andthere ponding around floor waste due depression level point could seen doorway unsightly respect agreed inspector agreed inspector listello alignment satisfactory respect mr need report agreed item 6 4 6 5 6 6 set also item 6 14 undulation floor tile towards floor waste otherwise complaint difficult understand appeared require absolute perfection laying practical impossibility criticism report apply bathroom applied room simply reflect one tradesman requirement another many year experience acceptable requirement deformable joint junction backed reference law code c upstairs bathroom toiletwe accepted three main defect remedied deficiency sealing tile met bath drummy tile bathroom floor andthere obvious lipping tile toilet floor generally agree conclusion reached inspector except floor tiling wc obviously poor quality problem fitting bath referred much report mr need repetition complaint area represented general difference approach tradesman 5 4complaints listed additional item page 125 et seq 5 4 1 item repeat balance mr need report dealt specific item note ground floor bathroom comment made plastic hexagon floor waste altered grinding round profile stated wrong appeared relate next allegation sharp serrated edge apparent feel said numerous lipping floor tile bathroom apparent visual inspection trim 1 1 5mm higher adjoining floor tile said risk risk defined b laundry protrusion mitre edge beyond main body tile trough minimal noticeable item allegation numerous lipping tile noticeable alleged risk explained door trim issue referred c upstairs bathroom said fractured tile main wall bath could find bath crack evident alleged de lamination flexi joint bath shell wall tile alleged shower recess evidence brick dust penetrated grout surface could remained grout surface cleaned building 2 year old impossible say discolouration would occur repetition allegation numerous lipping tile evident bathroom definitely evident toilet problem use two different size tile meant look allegation general perspective able determine whether fault existed contract 5 4 2 rusting material made general order builder remove evidence rusting emerged soon completion house owner advised living near sea accept regular cleaning metal surface essential otherwise rusting appear within matter several year owner wanted material impervious rust without cleaning requested entering contract 5 4 3 door also made general order rectify ill fitting door also paint top bottom door reduce warping moisture affecting wood front door needed attention ensure secure opened closed satisfactorily 5 4 4 obvious problem stair cupboard required proper closing opening set fitted securely privacy set several door needed changed original one wrong colour downstairs bathroom lock would work 5 4 5 alleged doorstep outside laundry losing paint 2 year consider maintenance item owner attend 5 4 6 two complaint mortar joint one outside downstairs sliding door another area front door south side order made repair mortar area 5 4 7 issue quality material used dealt paragraph 5 1 5 5generalorders made builder complete work within period 4 week date order noted appears order issued two matter overlooked one item 45 46 relating faulty ceiling balcony clearly building fault expected builder attend matter along others second item 73 inspector asked list place floor still needed cleaning list received completed report comment made hoped builder check dispute issue item 45 46 73 brought back tribunal mr forresterdeputy chairperson |
Alexander v Jansson [2010] NSWCA 176 (27 July 2010).txt | alexander v jansson 2010 nswca 176 27 july 2010 last updated 27 july 2010new south wale court appealcitation alexander v jansson 2010 nswca 176file number 2009 403882009 40389hearing date 22 june 2010judgment date 27 july 2010parties pernelle therese alexander first appellant jocellin lee jansson second appellant keiran eric jansson third appellant amber tracey jansson fourth appellant ellen louise jansson respondent judgment basten ja handley aja brereton jlower court jurisdiction supreme courtlower court file number 2592 083178 08lower court judicial officer mclaughlin asjlower court date decision 23 september 2009counsel m j needham sc appellant mr g mcnally sc respondent solicitor atkinson vinden lawyer appellant r j halloran co respondent catchword succession family provision maintenance appeal primary judge permitted elderly plaintiff respondent affidavit evidence read notwithstanding attend required cross examination plaintiff resided remote location medical evidence travel undesirable proposed cross examination would resulted reversal outcome reduction provision substituted court appeal whether miscarriage discretion ucpr r 35 2 3 held miscarriage appellant defendant sought leave adduce evidence appeal address matter said subject potential cross examination trial sufficient explanation calling evidence hearing leave refused succession family provision maintenance principle upon relief granted eligibility dependency plaintiff need accommodation satisfied provision house deceased owned two third owned one third share held plaintiff partly dependent deceased succession family provision maintenance failure testator make sufficient provision applicant proper provision significance promise made expectation created testator moral obligation court interferes disposition extent necessary make adequate provision claimant proper maintenance etc fee simple granted primary judge exceeded requirement adequate provision life estate would also excessive plaintiff compelled wish cease reside permanently would longer reasonable need remain sufficient asset relocate appropriate provision right occupy property purpose residence pastoral activity terminable upon death earlier ceasing permanently reside therelegislation cited nsw conveyancing act 1919 66g nsw family provision act 1982 7 28 2 nsw succession act 2006 80 2 b nsw uniform civil procedure rule r 35 2 3 category principal judgmentcases cited ball v newey 1988 13 nswlr 489banks v goodfellow 1870 lr 5 qb 549gorton v parkes 1989 17 nswlr 1goyal v chandra 2006 nswsc 239 2006 68 nswlr 313hughes v national trustee executor agency co australasia ltd 1979 hca 2 1979 143 clr 134mckenzie v baddeley 1991 nswca 197 bc 9101389ngatoa v ford 1990 19 nswlr 72palmer v dolman 2005 nswca 361re anderson deceased 1975 11 sasr 276re fulop 1987 8 nswlr 679singer v berghouse 2 1994 hca 40 1994 181 clr 201stephens v debney 1960 sr nsw 468stewart v mcdougall unreported 19 november 1987 young j urban trader pty ltd v proceris pty ltd 2005 nswsc 360vigolo v bostin 2005 hca 11 2005 221 clr 191williams v legg 1993 29 nswlr 687texts cited decision appeal allowed partjudgment supreme courtof new south walescourt appeal2009 403882009 40389basten jahandley ajabrereton jtuesday 27 july 2010pernelle therese alexander or v ellen louise janssonjudgment1basten ja agree brereton j 2handley aja agree brereton j 3brereton j eric martin jansson died 5 july 2005 letter administration intestate estate granted four child appellant pernelle therese alexander jocellin lee jansson keiran eric jansson amber tracey jansson 23 october 2006 mother respondent ellen louise jansson born 15 september 1915 94 year age also survived estate 2 9 million net included interest two adjoining rural property near walcha mid north new south wale pindari sole registered proprietor gerraween held tenant common mother share two one gerraween worth 3 million thus mother one third share 1 million comprised eight allotment six freehold torrens title one crown lease one occupation permit prior death deceased resided pindari mother home stood one lot comprising gerraween namely folio identifier 39 753689 gerraween home lot lot comprises 420 5 hectare 4 child administrator transmitted deceased interest property beneficially 1 may 2008 instituted proceeding appointment trustee sale gerraween pursuant nsw conveyancing act1919 |
Re Queensland Glass Manufacturers Company and Collector of Customs (Queensland) [1986] AATA 32 (7 February 1986).txt | queensland glass manufacturer company collector custom queensland 1986 aata 32 7 february 1986 administrative appeal tribunalre queensland glass manufacturer companyand collector custom queensland n85 179aat 2542customscourtadministrative appeal tribunalgeneral administrative divisionr k todd deputy president mr j h wilson member mr h c trinick member catchwordscustoms tariff classification glass bottle checking rejection machine measuring machine checking machine counting machine electrical appliance apparatuscustoms tariff 1982 item 85 22 84 59 90 16 90 27 90 28re bloomfield sub collector custom act 1981 4 ald 204re holstar agency pty limited collector custom 1981 4 ald 308alfa laval pty limited v forbes supreme court nsw unreported maplas equipment service pty ltd collector custom nsw 1982 4 aln n174re impco collector custom 1980 2 ald 843re erwin sick optic electronic pty limited collector ofcustoms victoria v84 271 3 may 1985 blackwood hodge 2 v collector custom federal court 1980 fca 96 1980 3 ald 38re dick smith electronics pty limited collector custom nsw 1985 7 aln n323re acrow australia limited collector custom 1985 8 ald 1re masport whirlwind pty limited collector custom 1978 1 ald 437hearingcanberra7 2 1986orderthe tribunal affirms decision review decisionthis application seek review decision resulted demand additional duty respect good namely power operator assistant imported australia 31 october 1984 without intending beg question answered essentially good question used process manufacturing bottle remove bottle become stuck together fallen stuck ware proceed conveyor take machine manufactured 2 shipment good identical subject good entered home consumption 19 july 1984 sub item 90 27 9 30 august 1984 ruled good fell within sub item 84 59 9 3 subject good entered home consumption 8 november 1984 nominating appropriate tariff classification sub item 84 59 9 entry endorsed paid protest 4 hearing mr lee applicant contended good fell within item 90 28 tribunal also refer item 90 16 90 27 mr chora respondent submitted tribunal well considering sub item 84 59 9 also consider applicability item 85 22 term mentioned item sub item possibly relevant division chapter note set 5 far relevant applicable provision tariff date entry home consumption follows 84 59 machine mechanical appliance individual function fallingwithin item chapter 9 chapter 84 found division 16 custom tariff divisional note division 16 machinery mechanicalappliances electrical equipment part therefor providedinter alia follows 1 following good fall within thisdivision n good falling within chapter 90 p r 3 purpose division compositemachines consisting 2 machine fittedtogether form whole machine adaptedfor purpose performing 2 morecomplementary alternative function shall betreated machine performingthat one function theirprincipal function chapter note chapter 84 provided inter alia follows 5 1 purpose chapter machinethat one principal purpose othersubsidiary purpose shall treated itsprincipal purpose sole purpose 2 subject note 3 division 16 note 2 following good fall within 84 59 machine fall within anyother item b c machine 2 purpose butnone single principalpurpose b 85 22 electrical appliance apparatus individual function fallingwithin item chapter 9 chapter 85 like chapter 84 found division 16 note 1 n division 16 likewise applies c 90 16 drawing marking mathematicalcalculating instrument drafting machine pantograph drawing set slide rule disccalculators like measuring orchecking instrument appliance machine including micrometer calliper gauge measuring rod balancing machine beinggoods falling within item inthis chapter profile projector 9 90 27 revolution counter production counter taximeter mileometer pedometer thelike speed indicator including magneticspeed indicator tachometer thangoods falling within 90 14 stroboscope 9 90 28 electrical measuring checking analysing orautomatically controlling instrument andapparatus 9 chapter note chapter 90 provided inter alia follows 5 good fall within 90 28 unless b machine appliance instrument apparatusof kind described 90 14 90 15 90 16 90 22 90 23 90 24 90 25 90 27 otherthan stroboscope operation whichdepends electrical phenomenon thatvaries according factor beascertained automatically controlled c 6 subject good known operator assistant manufactured power manufacturing incorporated new york nature function appear manufacturer brochure pamphlet t8 explained tribunal detail oral evidence given mr c crawford project engineer australian glass manufacturer melbourne name operator assistant something misnomer appear human attendance called fairly substantial failure occurs however name given good manufacturer shall refer 7 operator assistant used manufacture bottle bottle formed machine emerge hot still somewhat plastic state conveyor bottle emerge forming machine upright separate well rigid enough support conveyor touch fuse two stuck together one lean another angle one lying use trade word stuck ware unacceptable since bottle stuck together lying foul process line go narrow tunnel receive surface coating turn 90 degree another transfer mechanism swept annealing lehr oven process necessary ensure bottle upright free standing bottle going process high speed point bottle leave forming machine enter process mentioned operator assistant come action 8 operator assistant essentially two component first made light source laser emitter voltaic cell sensor light receiver component say light source sensor housing assembly bolted securely bottle conveyor heat environment section component control box stand remote freestanding sealed cabinet contains microprocessor display mechanism associated electronics operator assistant laser beam pass 3 mm 5 mm conveyor chain nothing break beam light sensor sends high pulse back microprocessor however bottle pass block beam light sensor sends back low signal microprocessor new bottle making job set microprocessor calibrated recognize correct diameter bottle manufactured also gap bottle machine recognizes diameter gap timing length low high pulse respectively conveyor moving bottle fixed constant pace machine calibrated pressing set button running 16 good bottle along conveyor system 16 good bottle machine learns average bottle width e length time low pulse good bottle spacing adjustment dial used set minimum length time high pulse initial calibration operation machine review stored information update necessary machine bottle width tolerance switch selectable 25 12 6 bottle deviating average tolerance rejected beam fact set stated little conveyor directed rounded curve bottom heel bottle known trade melodramatically enough murgatroyd bottle thus always see gap even two bottle completely stuck together side one bottle leaning angle upright bottle width leaning bottle low pulse identified narrow bottle rejected bottle lying width low pulse great rejected signal high period shorter threshold set spacing adjustment dial bottle considered stuck rejected bottle width determined outside tolerance allowed bottle rejected exhibit p 2 1 operator assistant measuring gap gap timing interval light beam timing interval next beam 9 impropriety bottle width gap bottle detected operator assistant determines accordingly bottle group bottle faulty reject sending pulse reject solenoid 60 cm downstream open valve send jet air blow offending bottle bottle stuck together conveyor trough ultimately retrieved recycling 10 display panel operator assistant assumes importance one argument put panel six digit led light emitting diode display display various kind information depending display selected together six individual led high low beam signal according whether space bottle path light beam received microprocessor counted speed bottle forming machine proceeding speed controlled simply recorded mean bottle pas counted bottle rejected likewise counted together reason rejection appropriate display accordingly may brought display panel display particular time display last called information displayed way mr crawford said purely determine bottle forming machine performing sort hourly basis shift basis used record production done elsewhere equipment nothing production bottle 11 operator assistant control conveyor way shape form nearest indication control function lie fact 16 bottle series rejected stuck fallen flashing red light started human operator intervene sort problem brings attention operatorthat fault condition exists perator ssistant set fault hasbeen corrected perator ssistant switched 12 mr crawford agreed display function necessary efficient working operator assistant role inspector rejector bottle said effective piece equipment controller management tool give u information fact control production done elsewhere 13 mr lee argument applicant operator assistant apparatus measure see sub item 90 16 9 bottom diameter ofthe bottle space ii performs quality control function checking seesub item 90 16 9 bottle pas along theconveyor bottle forming machine iii count production see sub item 90 27 9 bottle would presumably argue reject bottle fromthe bottle forming machine b machine thus kind described item 90 16or item 90 27 see note 5 chapter 90 shouldfall within item 90 28 electrical measuringor checking apparatus within item 90 28 fulfills therequirement note 5 chapter 90 machine apparatus operation whichdepends electrical phenomenon ii varies according factor ascertained orautomatically controlled 14 starting end chain reasoning argument b ii satisfied argument would run thus operator assistant would said measure timeinterval light beam interrupted anobject conveyor belt also time intervalbetween interruption ii operation would said depend electricalphenomenon varies according factor beautomatically controlled iii measurement automatic control performed theoperator assistant effected variation inoutput sensor unit photo electric cell iv operator assistant counting recording permitsa quantitative analysis operating efficiency thebottle making machine counting categorizing itserrors 15 even argument accepted however fact item 90 28 considered operator assistant must first relevant circumstance kind described 90 16 90 27 mr chora submitted machine electrical machine could satisfy test machine kind described item 90 16 item 90 27 consequence would note 5 chapter 90 could circumstance ever complied agree mr chora submission point seems u destructive circularity prefer view although term item 90 28 necessarily differently expressed item 90 16 item 90 27 apt enough convey item 90 28 subject requirement b imposed note 5 b chapter 90 picking electrical equivalent would otherwise fall within item 90 16 item 90 27 item mentioned note 5 b follows first question rather first two question whether operator assistant kind described item 90 16 ii item 90 27 item 90 1616 item 90 16 mr lee referred concise oxford dictionary meaning verb measure ascertain extent quantity thing bycomparison fixed unit object knownsize verb check authority gave control secure accuracy mr lee contended device performs quality control function indeed control secure accuracy consequence item 90 16 covering measuring checking instrument appliance machine item machine question could fall 17 mr chora submitted relation item 90 16 operator assistant neither machine measuring machine checking accepting purpose argument part method operator assistant function measure check something convert measuring checking machine process machine operated mr chora submitted different machine fact 18 checking mr chora submitted operator assistant digital counter fact counted bottle passing distinguished faulty non faulty course counting function much checking machine vital function actually remove stuck bottle come bottle forming machine agree submission checking function within process operator assistant principal function purpose designed 19 measuring opinion operator assistant even le capable described machine kind sense part process measure diameter foot bottle rather diameter portion bottle conveyor sense measure width gap bottle simply part method work achieve desired end follows consider operator assistant fall within item 90 16 item 90 2720 item mr lee conceded item covered large range counting machine including production counter production counter used count bottle produced submitted however still production counter coming potentially within item 90 27 instance however agree mr chora submission contrary operator assistant operate without digital display see paragraph 11 still perform essential function removing stuck bottle counting function subsidiary ancillary principal function machine counting function mr chora contended beneficial side effect 21 consequence finding operator assistant falling neither within item 90 16 within item 90 27 cannot provision note 5 b chapter 90 fall within item 90 28 consequence open fall within chapter 84 caught ban imposed note 1 n division 16 good falling within chapter 90 found fall within division 16 22 remaining question therefore whether operator assistant fall within item 84 59 within item 85 22 latter item referred momentarily commencement hearing mr chora said item upon would placing reliance appears attention either party inclined view operator assistant us electricity energy source electrical appliance electrical apparatus therefore fall within item 85 22 23 opinion machine subject good rather fall within chapter 84 decision maker said concluding paragraph 37 statement machine principal function detecting thenrejecting stuck bottle conveyor system andfor purpose division 16 treated amachine performing function term note 5 1 chapter 84 machine theprincipal purpose rejecting stuck bottle sothat purpose division 16 machine betreated machine sole purpose within chapter 84 machine fall within item 84 59 amachine individual function falling within anyother item within chapter 84 within item 84 59 machine fall within sub item 84 59 9 24 referred course argument number explanatory note brussels convention nomenclature purpose interpreting custom tariff doubt meaning given domestic tariff reference permissible see bloomfield sub collector custom act 1981 4 ald 204 holstar agency pty limited collector custom 1981 4 ald 308 experienced case kind doubt detected ambiguity would call reference problem familiar one interpreting tariff light proved fact 25 also referred number authority including alfa laval pty limited v forbes supreme court nsw unreported maplas equipment service pty ltd collector custom nsw 1982 4 aln n174 impco collector custom 1980 2 ald 843 erwin sick optic electronic pty limited collector custom victoria v84 271 3 may 1985 blackwood hodge 2 v collector custom federal court 1980 fca 96 1980 3 ald 38 dick smith electronics pty limited collector custom nsw 1985 7 aln n323 acrow australia limited collector custom 1985 8 ald 1 masport whirlwind pty limited collector custom 1978 1 ald 437 26 authority none determinative present problem consistent conclusion come 27 decision review must light foregoing affirmed |
Re John Bernard Davis and Collector of Customs (Tas) [1988] AATA 311; 4703 Customs 9 AAR 570
(27 October 1988).txt | john bernard davis collector custom ta 1988 aata 311 4703 custom 9 aar 570 27 october 1988 administrative appeal tribunalre john bernard davisand collector custom ta t88 77aat 4703customs9 aar 570courtadministrative appeal tribunalgeneral administrative divisionr c jennings qc 1 deputy president catchwordscustoms diesel fuel rebate fuel used dry parsley harvesting whether operation connected gathering crop meaning agriculture primary production custom act 1901 164 1 7 273ga ha australian national railway commission v collector custom sa 69 alr 367collector custom v cliff robe river iron associate 1985 fca 96 1985 7 fcr 271hearinghobart27 10 1988orderthe decision review set aside matter remitted collector calculation payment appropriate rebate liberty apply decisionthe applicant seek review decision collector custom refusing pay rebate diesel fuel purchased use primary production right seek review tribunal conferred bys 273ga ha thecustoms act 1901 theact decision refuse rebate arose collector applied definition 164 7 theactto fact presented applicant concluded applicant brought use diesel fuel purchased within statutory definition agriculture one meaning primary production set 164 7 2 hearing tribunal benefit visiting applicant property bishopsbourne inspecting machinery used harvesting parsley herb transferred onto drying machine fired diesel fuel respect rebate sought equipment explained detail tribunal although opportunity due seasonal absence product observe actual process operation 3 however explanation stage process bringing crop growing condition packaging prior marketing described detail site subsequently evidence applicant 4 respondent adduced evidence document lodged pursuant tos 37of theadministrative appeal tribunal act 1975were received 5 applicant said evidence 135 acre land available growing herb largest crop parsley convenience referred parsley crop adopt course also 6 1987 88 season cultivated 44 acre season expects grow 60 acre said parsley harvested mean mechanical cuttingmachine drawn tractor mechanical cutting machinetransfers parsley via blower pipe followingbin bin collect crop obviously isfull capacity bin around two wet ton ofparsley cutting blade removal theparsley placing bin approximately three quarter hour ittakes fill bin transfer bin concrete slab situated front dryingmachine placed highest point theproperty adjacent likely cropping area immediately arrival apron hydraulicallytipped deposited immediately front dryer large heap parsley could imaginethat transferred front dryerby mean front end loader dryer started themoving bed started big heap gradually move upthe drier encounter levelling tine knockback surplus heap allowing bed carpet ofwet material pas underneath uniformthickness material passing across drying louvre gradually move drier hot air blow frombeneath plenum chamber via air electricity source heat diesel fuel form flamewhich ignited electrically maintained withcompressed air diesel store fuel stored 1 000 gallon tankand 500 gallon tank separate farmproper drier electrically driven one belt whichdrives compressor little belt drive thefuel pump transfer air fuel side furnace control relation parsley generally use round figure approximately 114 litre per wet ton parsley pass heat source itgo drop end heat source onlystops almost metre back drier isdrying whole length bed aboutthe last metre hot air blowingthrough drop actually got setof tine flick keep uniformlycoming drop onto side conveyor itcomes dry point anything otherthan heat applied parsley heat air course hot air would correct suggest parsley issubstantially identical wet parsley otherend yes period time elapses mass parsleyis dried vary bit generallyfrom front back would probably bitquicker year narrowed last yearat eight inch depth varied 40 minute anhour front back would approximate distance would totravel time drier 63 foot longfrom one end sell parsley dried yes sell approximately 1 000 bunch week compare crop total crop well worked 11 acre paddock one cutthere around quarter million bunch an11 acre paddock modest estimate 7 applicant explained cutting fresh parsley heap begin deteriorate le hour would soon lose colour begin smell obviously imperative order able market parsley large quantity must dried soon possible culled applicant admitted would bother grow unless could sold dry 8 process parsley undergoes leaf drier unnecessary describe detail thereafter diesel fuel used sufficient explain drying process failed dry denser stalk thus possible separate leaf stalk product pass threshing machine 9 applicant asked whether would possible dry product farm said effect would depend speed operation could accomplished 10 written statement prior hearing need drying process explained way freshly cut parsley compared freshly cut grasswhich left heap behave grass ifthe grass wet heat possibly gomouldy sometimes reduce smelly green slimy mess crop immediately dried decompose inexactly way fact small amount beendiscarded reason following breakdown inmachinery section 164 1 theactso far relevant provides rebate subject sub section 2 3 tosuch condition restriction prescribed beingconditions restriction relate good generally good included class good includes dieselfuel diesel fuel payable person whopurchases diesel fuel diesel fuel upon dutyhas paid use mining operation otherwise thepurpose propelling road vehicle publicroad aa primary production otherwise thepurpose propelling road vehicle publicroad section 164 7 defines term agriculture follows cultivation soil b cultivation gathering crop c rearing live stock includes viticulture horticulture pasturage apiculture e hunting trapping carried purpose abusiness f operation including operation way ofpest disease control way soil waterconservation connected operationsreferred paragraph b c e including fishing operation forestry primary production mean agriculture b fishing operation c forestry question determination 1 process drying parsley manner adopted applicant part gathering crop 2 process operation connected operation referred gathering crop 11 respondent argued gathering parsley crop complete placed heap concrete apron front drier applicant replied form like hay good man beast dried use unlike hay could adequately dried solar heat therefore artificial heat required 12 attractive latter argument prefer decide case another compelling basis 13 respondent said rebate referred theactwas payable specified agricultural operation primary production primary production confined definition first stage process drying parsley harvested involves secondary process argued could regarded primary production agriculture defined 164 theact 14 opinion approach simplistic statutory definition agriculture entitles rebate paid fuel used operation connected gathering crop 15 shorter oxford dictionary defines connect including join fasten link together connection includes relation thing one involved another 16 difficulty arriving conclusion process drying parsley involved process gathering 17 speed necessary apply hot air parsley cut transported drier demonstrates close relationship process fact parsley undergoes physical change removal moisture demonstrates close relationship product process consequence failure apply drying process immediately make apparent gathering crop insufficient render process economically viable act done parsley two ton load useless dried deteriorate rapidly therefore unmarketable 18 consideration sufficient warrant finding connection operation us diesel fuel gathering crop 19 conclusion consistent object theactas explained minister introduced diesel fuel tax legislation amendment bill 17 august 1982 mr hodgman see hansard p433 measure proposed change made 164 theact minister said category referred relate useof diesel fuel agriculture mining forestry andfishing industry domestic premise hospital agedpersons home nursing home overridingqualification rebate fuel used willbe used otherwise purpose propelling aroad vehicle public road 20 noted word describing overriding qualification part definition primary production agriculture one meaning term 21 operation used connection gathering crop therefore qualify provided road use diesel necessary connection process 22 tribunal referred argument decision federal court australian national railway commission v collector custom sa 1985 fca 312 69 alr 367 23 court occasion consider whether carriage live stock led use diesel fuel connection either rearing connection operation connected rearing live stock 24 sheppard burchett jj referred page 378 following passage collector custom v cliff robe river iron associate 1985 fca 96 1985 7 fcr 271 court concerned provision legislation consideration court said relevant provision theexcise actreflect alegislative policy encouragement mining operationsand given narrow application meaning word connection wide andimprecise one common meaning relationbetween thing one bound involved another shorter oxford english dictionary werereferred number case context themeaning word connection discussed wedo think assistance derived fromthem given generation electricity thepresent case carried place adjacent thearea mining occurred question lawwhich arises whether fact case wasopen tribunal hold generation ofelectricity township operation connectedwith mining mineral opinion 25 latter case court satisfied carriage live stock operation connected rearing applicant therefore involved primary production defined 26 counsel respondent endeavoured use decision davy j case another point persuade tribunal would wrong find process drying parsley part primary production passage relied page 373 read follows tribunal found transportation fertiliserfrom point manufacture rail country stationsor depot transportation grain countrysilos storage depot vicinity port operation agriculture defined theapplicant alleged operation way ofthe cultivation gathering crop otheroperations connected therewith opinion theevidence superphosphate show whatoccurred part connected usage ofprimary producer superphosphate distinct thedistribution superphosphate manufacturer ofstocks centre would available retail oruser use shown grain transportedas part process production harvesting ofgrain distinct process distributing ordisposing grain harvested diesel fuelrebate look operation within narrower compass thanthe operation respect applicant claimsin respect made rebate primaryproduction concerned production primary produce manufacture wholesale distribution ofsuperphosphate marketing primary produceonce grown harvested applicant claim thesetwo matter correctly rejected 27 respect interpretation evidence case accepted without question 28 opinion evidence case show crop dealt part process production harvesting simply possible describe drying process concerned marketing primary produce become produce grower seek obtain cultivation form enables treated prepared distribution market 29 even drying process seen one enables product marketed also one involved therefore connected harvesting gathering operation rebate remains payable even drying operation simultaneously end process primary production beginning secondary production diesel fuel purchased use operation connected gathering crop 30 decision review set aside matter referred collector calculation payment appropriate rebate liberty apply |
Applicants: Ganesh Rao IRT Reference: N95_01668 #number 8202 [1996] IRTA 8202 (29 November 1996).txt | applicant ganesh rao irt reference n95 01668 number 8202 1996 irta 8202 29 november 1996 immigration review tribunalstatement decision reason decisionirt decision n95 01668 8202 docapplicants ganesh raozahida begum raoelisha sonal raotribunal gail radfordpresiding memberdate 29 november 1996place sydneydecision tribunal affirms decision review introductionthis review decision refusing mr ganesh rao class 816 special permanent entry permit class 818 highly qualified shore permanent entry permit mr rao made application 7 june 1994 included application following member family unit spouse m zahida begum rao daughter miss elisha sonal rao application refused 28 march 1995 application review made migration internal review office miro 5 april 1995 application review rejected 24 july 1995 application review made tribunal 11 august 1995 legislationas result coming force themigration reform act 1992on 1 september 1994 australian migration law undergone significant change accordance withregulation 23of themigration reform transitional provision regulation principal application case taken application transitional permanent visa new law purpose effect entry permit would granted law force 1 september 1994 however application still decided according criterion applied entry permit application originally made regulation applicable case therefore migration 1993 regulation prescribed criterion must satisfied class 816 818 entry permit granted set part 816 818 schedule 2 1993 regulation applicant entitled one permit satisfies various prescribed criterion failure satisfy one criterion result failure application relevant criterion respect grant class 816 class 818 entry permit noted regulation 2 29 prescribes application class 816 818 entry permit operates application two additional class entry permit namely class 830 1 november 1993 processing entry permit class 154 resident return visa however one criterion class entry permit applicant must able satisfy substantive criterion part 816 818 discus class class 816 class 818regulations dealing 816 818 application annexed full schedule decision summarised criterion must satisfied class 816 visa granted summarised follows 1 age turned 45 1 november 1993 816 721 1 2 qualification work experience enrolment accredited course 816 721 2 business interest 816 721 3 3 refugee application class 435 443 entry permit 1 november 1993 816 721 4 6 4 presence australia 816 722 816 723 5 date grant visa prior 12 march 1992 arrival australia prior 1 november 1993 816 724 subject exception 6 ability communicate english 816 732 7 public interest criterion 816 734 criterion 1 5 satisfied time application 6 7 satisfied date decision relevant criterion class 818 visa follows 1 age 818 721 1 2 academic skill 818 721 2 3 4 5 3 applicant received financial assistance commonwealth government 818 722 4 date grant visa arrival australia 818 723 5 presence australia 818 724 6 public interest criterion 818 732 criterion 1 5 met time decision 6 assessed time decision member family unit defined regulation follows 1 8 1 subject subregulation 2 person member family unit another person subregulation called family head person spouse family head relationship genuine continuing relationship party legally separated b dependent child family head spouse family head c dependent child dependent child family head spouse family head relative family head spouse family head surviving spouse relative family head able care relative relevant country ii usually resident family head household iii dependent family head e relative family head spouse family head never married widowed divorced separated ii usually resident family head household iii dependent family head evidencethe tribunal tribunal file n95 01668 departmental file 91 63207 held preliminary meeting mr m rao 27 may 1996 certain aspect application explored 7 november 1996 tribunal held hearing mr m rao gave oral evidence oral documentary evidence mr m rao daughter meet educational requirement set alternative part 818 721 2 818 721 5 state evidence accepted effectively disposes claim applicant might 818 visa turn evidence relation 816 visa using summary set 1 age 816 721 1 applicant submitted documentary evidence mr rao born 27 may 1964 m rao born 22 july 1971 citizen fiji married fiji 23 february 1988 daughter elisha sonal born australia 18 december 1994 2 qualification work experience enrolment accredited course 816 721 2 business interest 816 721 3 mr raomr rao told tribunal left school fiji june 1980 completing equivalent form 4 study fiji started work immediately welder worked eighteen month small family business making gate grille fence etc house business closed family member running passed away unable obtain reference provided tribunal reference royal construction company general builder suva stating employed welder company two year 1984 1985 another reference comfort home furnishing limited suva certified employed company welder january 1986 reference dated 17 march 1989 arrival australia mr rao commenced work needlecraft pty ltd senior warehouse employee left company 13 january 1993 resumed work company 24 august 1993 worked warehouse general employee 10 may 1995 mr rao worked george bollom service pty ltd auburn 11 may 1995 2 november 1995 mr bollom provided detailed reference setting mr rao experience various trade equipment used reference also provided cfm engineering stated mr rao worked fabricator welder detail work set worked company 4 november 1995 5 august 1996 mr rao commenced work alukram engineering pty ltd revesby 6 august 1996 reference general manager speaks mr rao competency work capability reading drawing mr rao drew attention pay slip stated worked company boilermaker mr rao provided copy transcript academic record bankstown college tafe nsw showed mr rao enrolled course 4224 statement attainment national engineering training program passed two module course 1993 eight module 1994 six module 1995 withdrawn two module suffering penalty 1995 enrolment form college showed enrolled student 1996 studying block course note departmental file dated 5 april 1995 w king sht metal fab welding bankstown college tafe state state ganish rao currently enrolled course national training programme 4224 course weighting content fabrication engineering 8267 ie trade apprentice boilermaking however awarded statement attainment another letter w king dated 15 september 1994 stated mr rao successful would complete course end 1995 letter mr rao secretary local trade committee trade recognition australia dated 12 april 1996 explained local boilermaking trade committee meeting 11 april 1996 refused application australian recognised trade certificate classification welder 1st class bm 13 june 1996 tribunal wrote trade recognition australia department industrial relation asking mr rao qualification education experience welder reassessed 29 august 1996 manager skill advisory unit trade recognition australia wrote mr rao copy tribunal stating mr rao eligible recognition tradesperson australia trade classification covered thetradesmen right regulation act trra neither satisfy requirement recognition classification contained group trade known designated non trra trade m raoms rao told tribunal eleven year schooling fiji completed equivalent form 11 december 1987 study fiji australia study done short certificate course travel tourism m rao provided tribunal two certificate career business college one dated 1 november 1991 titled travel tourism level 2 second titled travel tourism fare ticketing 2 dated 14 february 1992 preliminary meeting held discus case m rao explained studied first certificate six month part time basis second four month part time equivalent 5 6 month full time study would amounted two semester response query tribunal vocational education training accreditation board vetab wrote 26 april 1996 explaining course accredited vetab however college certificate travel tourism accredited australian travel tourism review panel attrp study could component course could accredited right reference dated 4 june 1996 provided production manager salmat laser printing service chester hill new south wale 2162 stated m rao machine operator sorter company laser mailing area past six year m rao explained tribunal job involves printing statement commonwealth bank operates machine putting paper envelope etc sorting envelope bin according postcode statement prepared m rao printed tape 3 refugee application class 435 443 entry permit 816 721 4 6 file show mr m rao applied refugee status 14 december 1990 4 presence australia 816 722 816 723 file show mr m rao australia 1 november 1993 australia 5 date grant visa arrival australia 816 724 evidence file show mr rao granted visitor visa 22 august 1989 suva used visa travel australia arriving 21 september 1989 m rao issued visitor visa suva 30 august 1989 used visa travel australia arriving 21 september 1989 6 ability communicate english 816 732 18 december 1994 manager step project wrote mr rao stating successfully passed special test english proficiency three module hearing m rao told tribunal sat test 7 public interest criterion 816 734 matter necessary remitted department findingsi find applicant submitted contrary applicant meet educational requirement class 818 entry permit turning criterion class 816 entry permit accept evidence set mr rao m rao relation age refugee application presence australia date grant visa find mr m rao satisfy 816 721 1 816 721 4 816 722 816 723 816 724 addition find mr rao satisfies 816 732 demonstrated ability communicate english passing step test mr raoit necessary tribunal decide whether mr rao satisfies criterion class 816 entry permit relating qualification work experience enrolment accredited course 816 721 2 business 816 721 3 mr rao 1 november 1993 obtained completed requirement post secondary educational qualification australia able satisfy 816 721 2 mr rao hold overseas technical general academic qualification assessed noosr comparable least australian associate diploma unable satisfy 816 721 2 b satisfy requirement 816 721 2 b ii applicant must held 1 november 1993 overseas trade qualification work experience assessed meeting australian educational training standard trade department industrial relation department unable make assessment appropriate state territory authority body unable make assessment made minister mr rao educational qualification work experience assessed twice department industrial relation department advised mr rao satisfy australian standard trra non trra trade find mr rao satisfy 816 721 2 b ii satisfy requirement 816 721 2 c applicant must 1 november 1993 enrolled 1993 academic year accredited course least advanced certificate met academic progress requirement 1993 mr rao passed two module tafe course number 4224 find successful completion course would resulted mr rao receiving advanced certificate trade certificate would obtained statement attainment find mr rao unable satisfy 816 721 2 c satisfy requirement 816 721 3 applicant must throughout period 2 november 1992 1 november 1993 owned interest business evidence mr rao interest business australia find unable satisfy 816 721 3 mr rao unable satisfy requirement 816 721 2 816 721 3 therefore find unable satisfy criterion class 816 entry permit m raoto satisfy 816 721 2 applicant 1 november 1993 must obtained completed australia requirement post secondary qualification following accredited course minimum advanced certificate m rao provided tribunal two certificate travel tourism indication accredited course component accredited course duration required advanced certificate course tafe handbook state course normally take eighteen month two year full time although one may able shorter period already studied subject certificate level m rao certificate obtained equivalent five month full time study length time might expected certificate course rather advanced certificate tribunal find certificate m rao obtained australia advanced certificate level unable satisfy 816 721 2 oral documentary evidence find m rao hold overseas post secondary qualification unable satisfy 816 721 2 b enrolled making satisfactory progress accredited course academic year 1993 unable satisfy 816 721 2 c neither evidence involved business period 1992 1993 unable satisfy 816 721 3 relation employment find machine operator sorter laser mailing area find duty occupation sufficiently complex high level require trade certificate find m rao trade unable satisfy 816 721 2 b ii m rao unable satisfy either 816 721 2 816 721 3 unable satisfy criterion class 816 entry permit right m alicia sonal rao young child unable satisfy criterion class 816 entry permit right parent application failed able satisfy requirement class 816 entry permit member family unit application must therefore fail also decisionthe tribunal affirms decision review gail radfordpresiding memberannexurepart 816 class 816 special permanent entry permit816 1 introduction816 11 group 1 2 permanent resident entry 816 12 purpose grant provide permanent residence australia certain person applied determination refugee b certain holder applicant class 435 sri lankan temporary class 443 citizen former socialist federal republic yugoslavia temporary entry permit note relation class 816 entry permit applicant primary person 816 13 interpretation816 131 part accredited course mean tertiary course accredited tertiary course commonwealth state territory authority b offered accredited tertiary institution authorised accredit course commonwealth state territory authority principal person mean person meet requirement paragraph 816 721 1 return visa includes visa granted australia permit return travel australia b visa granted overseas basis person status australia immediately person last departure australia trade certificate mean certificate called name issued state territory training authority b tafe institution following initial trade training undertaken conjunction apprenticeship following non apprenticed entry 816 2 4 visa class 816 5 special permanent entry permit preliminary816 51 may application grant made 816 511 class 816 entry permit may applied granted entry 816 512 application class 816 entry permit must made 1 august 1994 816 52 period validity entry permit 816 521 entry permit effect without limitation time 816 6 special permanent entry permit granted entry 816 7 special permanent entry permit entry note purpose grant class 816 entry permit entry authorise period stay unlimited time australia eligible person 816 71 application entry permit entry 816 711 1 subject subclauses 2 3 5 application must made accordance approved form 1816 2 subject subclause 3 application member family unit applicant class 816 entry permit must combined lodged time application applicant 3 application person dependent child applicant class 816 entry permit b born lodging making decision application applicant may added application time making decision application despite operation clause 816 512 4 despite regulation 2 28 application class 816 entry permit taken made application made accordance approved form 1816 fee specified clause 816 821 paid b request fee exemption paragraph 816 821 b made 5 applicant class 816 entry permit request fee exemption paragraph 816 821 b b request refused c applicant pay fee within 28 day notice given refusal application taken made note 1 application considered must lodged accordance regulation 2 28 fee specified clause 816 821 must paid exemption sought approved act subsection 34 1 2 application class 816 entry permit also effect application class 830 1 november 1993 processing entry permit see subregulation 2 29 1c 816 72 criterion satisfied time application entry permit entry 816 721 1 applicant person turned 45 1 november 1993 ii meet requirement subclause 2 3 iii meet requirement subclause 4 6 b person member family unit applicant person mentioned paragraph ii included person application 2 applicant meet requirement subclause 1 november 1993 applicant australia obtained completed requirement post secondary educational qualification following accredited course leading trade certificate advanced certificate associate diploma diploma degree higher degree b applicant held overseas technical qualification general academic qualification assessed noosr comparable australian associate diploma diploma degree higher degree ii held overseas trade qualification work experience assessed meeting australian education training standard trade department industrial relation b department unable make assessment state territory authority minister decides appropriate c neither department state territory authority able make assessment minister c applicant enrolled 1993 academic year accredited course leading trade certificate advanced certificate associate diploma diploma degree higher degree ii met academic progress requirement institution enrolled 3 applicant meet requirement subclause throughout period 2 november 1992 1 november 1993 date inclusive applicant owned interest whether sole proprietor member partnership business meet requirement set schedule 6 1 b interest shareholder extent least 25 issued capital corporation owns whether directly intermediary business meet requirement set schedule 6 1 4 applicant meet requirement subclause applicant applied accordance subclause 5 determination applicant refugee whether application withdrawn whether application withdrawn decided whether decision made adverse applicant b applicant granted class 435 sri lankan temporary 443 citizen former socialist federal republic yugoslavia temporary entry permit 1 november 1993 5 purpose paragraph 4 application determination applicant refugee must recorded immigration received immigration 1 november 1993 b application recorded immigration received 1 february 1993 must made approved form 6 applicant meet requirement subclause applicant applied 1 november 1993 class 435 sri lankan temporary class 443 citizen former socialist federal republic yugoslavia temporary entry permit b application decided c 1 november 1993 applicant appeared minister basis written application supporting document lodged meet requirement grant class 435 443 entry permit816 722 1 applicant principal person australia 2 applicant principal person either australia holder return visa 816 723 applicant principal person 1 november 1993 either australia holder return visa 816 724 1 subject subclause 2 applicant principal applicant granted visa class overseas 12 march 1992 b used visa travel enter australia 1 november 1993 2 applicant travelled entered australia 1 november 1993 using visa granted 12 march 1992 b subsequently left australia returned using visa visa referred paragraph 1 applicant taken meet requirement clause visa used return australia return visa 816 73 criterion satisfied time decision entry permit entry 816 732 1 applicant principal person ability communicate english mix social work situation demonstrated evidence kind set subclause 2 b subclause 3 2 evidence mentioned paragraph 1 evidence applicant successfully met academic progress requirement institution applicant enrolled least 1 year full time study ii part time study equivalent least 1 year full time study accredited course leading post secondary qualification primary language instruction english b hold overseas qualification assessed noosr comparable australian associate diploma diploma degree higher degree ii primary language instruction english c passed within period 2 year date application level satisfies minister applicant ability communicate english mix social work situation one following english proficiency test occupational english test conducted national language literacy institute australia ii australian assessment communicative english skill test iii international english language testing system test 3 evidence referred paragraph 1 b evidence applicant successfully undertaken first second attempt time place nominated minister test proficiency english nominated minister 4 subclause 3 minister nominated test undertaken applicant applicant failed undertake test reason acceptable minister minister may nominate test undertaken applicant time place nominated minister 816 733 applicant child referred subclause 816 711 3 applicant born australia 816 734 1 applicant principal person satisfies public interest criterion 4001 4004 4007 4008 b member family unit australia applicant class 816 entry permit satisfies public interest criterion 4001 4004 4007 4008 c member family unit australia applicant class 816 entry permit satisfies public interest criterion 4001 4004 ii public interest criterion 4007 4008 unless minister satisfied would unreasonable require person undergo assessment relation criterion 2 applicant applicant referred paragraph 816 721 1 b principal person holder class 816 entry permit b applicant continues member family unit principal person c applicant satisfies public interest criterion 4001 4004 4007 4008 816 735 minister satisfied grant entry permit would prejudice right person custody guardianship access dependent child applicant 816 74 condition entry permit entry nil 816 8 fees816 81 visa class 816 82 entry permit applications816 821 entry applicant applicant meet criterion subclause 816 721 1 b application combined lodged time application class 816 entry permit fee paid nil aa case application made applicant mentioned subclause 816 711 3 nil b time application applicant appears minister basis information contained application supporting document lodged meet criterion grant entry permit ii applicant subject assurance support iii applicant engaged activity normally attracts remuneration iv either applicant relative including spouse child parent brother sister aunt uncle relative law degree relationship australia dependent applicant b applicant relative kind referred subparagraph relative also applicant class 816 entry permit ii meet requirement paragraph iii meet requirement paragraph v applicant received loan bank financial institution vi applicant eligible receive loan bank financial institution vii applicant receive government benefit pension allowance viii applicant produce evidence received welfare charitable assistance registered charitable agency throughout continuous period least 4 week period 1 november 1993 1 february 1994 date inclusive b assistance significantly contributed applicant ability obtain basic food shelter nil c case 830 |
Application_Notification by Office of the Fair Work Building Industry Inspectorate [2015] FWC 6889 (24 December 2015).txt | application notification office fair work building industry inspectorate 2015 fwc 6889 24 december 2015 2015 fwc 6889fair work commissiondecisionfair work act 2009s 508 application restrict right organisation official misused permit rightsthe director fair work building industry inspectoratevconstruction forestry mining energy union others re2014 1389 vice president watsonmelbourne 24 december 2015application director fair work building industry inspectorate whether use entry right whether misuse entry right fair work act 2009 508 introduction 1 decision concern application director fair work building industry inspectorate director pursuant tos 508of thefair work act 2009 act director alleges construction forestry mining energy union cfmeu several official misused right entry premise underpart 3 4of act director seek consequential order restricting exercise right entry future 2 matter heard fair work commission commission 13 23 july 2015 mr r dalgleish counsel m l hayes appeared behalf director mr r reitano counsel m l charlson appeared behalf cfmeu 3 application lodged 15 august 2014 initially allocated senior deputy president watson involves entry cfmeu permit holder number lend lease site conduct permit holder whilst site 4 cfmeu contends background entry involves significant concern cfmeu procedure arisen following underground fire large construction site barangaroo sydney 12 march 2014 contends concern added concern already existed following incident crane caught fire collapsed university technology site near barangaroo little year earlier cfmeu state incident foundation suspicion effectiveness evacuation emergency procedure implemented australia wide lend lease 5 22 august 2014 director made application matter joined application brought lend lease pursuant tos 505of act concerning right entry dispute application joinder successful 6 5 february 2015 director renewed joinder application application joinder successful 7 lend lease proceeding cfmeu official settled basis consent order 18 february 2015 1 8 18 february 2015 director sought direction hearing matter 9 19 february 2015 president issued direction pursuant tos 582 4 act effect matter transferred determination 10 2 march 2015 issued direction matter substantially term sought director 18 february 2015 11 13 march 2015 pursuant direction director filed amended application effect amended application number respondent longer party proceeding entry south australian building site longer subject proceeding 12 addition cfmeu amended application named ten individual respondent follows mr robert graauwmansmr jade inghammr robert keramr anthony kongmr stephen longmr michael mylesmr mark brienmr brian parkermr tony sloanemr darren taylor 13 commission listed matter mention direction hearing 8 may 2015 14 direction hearing party agreed addition matter listed hearing conciliation conference member commission held prior hearing date issued direction substantially term sought directed matter listed conciliation member commission matter listed hearing 15 16 june brisbane 17 june melbourne 13 17 july 23 july sydney 15 matter listed conciliation vice president hatcher 20 may 2015 party unable reach agreement 16 request party matter listed mention 10 july 2015 consent cfmeu individual respondent director filed amended application admission misuse cfmeu mr parker relation ut gehry site sydney cfmeu mr kera relation ut feit site broadway sydney director withdrew application mr taylor mr sloan 17 matter listed hearing 13 23 july 2015 sydney legislative provision interpretation 18 application arises context right entry provision act provision described flick j inaustralasian meat industry employee union v fair work australia2as follows 56 right entry conferred bys 484is thus untrammelled right right subject express implied constraint one express constraint right permit holder one must exercised one purpose set forth in 484 another express constraint right entry subject reasonable request may made occupier premise permit holder seek enter express constraint contained withins 490 2 limiting discussion meal lunch break implied constraint right must exercised promote object ofpart 3 4as set forth in 480 57 like right entry conferred thefair work act cf darlaston v parker 2010 fca 771at 36 38 2010 fca 771 189 fcr 1at 11 484is statutory right diminishes common law right occupier 58 right occupier property long cherished thus insemayne case 1572 engr 333 1604 5 co rep 91a 77 er 194at 194 said house every one castle earl chatham reported saying poorest man may cottage bid defiance force crown may frail roof may shake wind may blow storm may enter rain may enter king england cannot enter force dare cross threshold ruined tenement comparatively much recently inentick v carrington 1765 19 st trial 1029 1066 lord camden lcj observed law england every invasion private property ever minute trespass man set foot upon ground without licence liable action though damage nothing admits fact bound shew way justification positive law empowered excused basic principle carried forward time e g southam v smout 1964 1 qb 308at 320 per lord denning mr principle confined history england principle continues apply equal force australia today e g plenty v dillon 1991 hca 5 1991 171 clr 635at 639 per mason cj brennan toohey jj 59sections 484and492of thefair work actthus presumably reflect balance sought struck legislature common law right occupier right entry necessary promote object ofpart 3 4 attempt strike balance potentially competing right frequently arisen industrial law context thus construing provision award 42a theconciliation arbitration act1904 cth inmeneling station pty ltd v australasian meat industry employee union 1987 18 fcr 51at 61 62 keely gray ryan jj observed right entry contemplated 42a act available time working hour purpose inspection roster time wage record also subject condition clause 23 framed view strike balance interest union party award monitoring observance detecting breach employer interest hand employer carrying business without interruption harassment construction clause favour one interest point given scarcely recognition therefore avoided unless language clause compels adoption accordingly since cl 23 award provides right inspect record reasonable construe incidentally conferring specific preliminary right enter premise purpose see also lane v arrowcrest group pty limited 1990 27 fcr 427at 439 440 per von doussa j |
Buxton-Bates & McDiarmid and Anor [2007] FamCA 288 (5 March 2007).txt | buxton bates mcdiarmid anor 2007 famca 288 5 march 2007 last updated 23 may 2007family court australiabuxton bates mcdiarmid anor 2007 famca 288family law practice procedure application dismissal striking outfamily law act 1975 cth child young person care protection act 1998 nsw applicant m buxton batesrespondent mr mcdiarmidintervenor director general departmentof community service nsw file number syf3518of2006date delivered 5 march 2007place delivered sydneyjudgment steele jhearing date 5 march 2007representationcounsel applicant mr levetsolicitor applicant united legalcounsel respondent mr mantziariscounsel 2ndrespondent m richardsonsolicitor 2ndrespondent crown solicitor officeorders 1 mother application final order filed 26 july 2006 dismissed family court australia sydneyfile number syf 3518 2006ms buxton batesapplicantandmr mcdiarmidrespondentanddirector general department community service nsw second respondentreasons judgment1 application brought department community service second respondent summary dismissal application final order filed 27 july 2006 behalf mother applicant two child aged 14 10 year father first respondent child response filed 24 august 2006 join second respondent seeking summary dismissal mother application shortly stated second respondent position applicant mother precluded bysection 69zkof thefamily law actfrom succeeding 2 order sought mother application filed 27 july 2006 following form 1 declaration order made pursuant thefamily law actof 20thdecember 2000 create re judicata binding party issue parent preferred carer child marriage namely son born april 1992 daughter born december 1996 2 declaration acceptance first respondent placement child either order made pursuant thechildren young person care protection act 1998 nsw disturbs settlement reached exercise federal judicial power pursuant thefamily law act 1975 cth precluded section 109 australianconstitutionand chapter 3 australianconstitution 3 declaration placement second respondent child either first respondent household order made pursuant child young person care protection act 1998 nsw disturbs settlement reached exercise federal judicial power pursuant thefamily law act 1975 cth precluded section 109 australianconstitutionand chapter 3 australianconstitution 3 second respondent strike application contained within application case filed 22 august 2006 4 full history matter set later judgment truncated summary event follows party separated either 1997 1999 september 2000 order made b local court thefamily law actfor child reside mother contact father dispute mother alcohol problem consequence september 2004 child went reside father october 2004 interim care order state child welfare legislation made child placed father 3 november 2004 child court consent made finding child need care protection final order placement child father later made 4 may 2005 later conceded however order inoperative later order made 27 july 2006 pursuant state child welfare legislation way permanent placement order child father 5 mother counsel argued conflict order made 27 july 2006 state court order made family court september 2000 attracts operation ofsection 109of theconstitutionso leave order family court made 12 september 2000 child reside mother enforceable order 6 constitutional issue raised requisite notice section 78b judiciary act sent state attorney general informed none state attorney general presently intention intervene matter 7 whilst issue arising particular fact one set order made state court child welfare legislation 4 may 2005 considered inoperative department community service argues order made pursuant child welfare legislation section 79 1 27 july 2006 permanent placement child father effective valid regard prescription section 79 1 child welfare law australia pursuant tosections 4and69zkof thefamily law act 8 party represented counsel comprehensive written submission provided counsel significant opportunity oral submission short history9 mother born october 1967 39 year age employed casual domestic cleaner 10 father born march 1969 38 year age 11 director general department community service nsw doc person authority obligation child welfare legislation new south wale promote object legislation obligation include inter alia obligation act without court order remove young person situation immediate risk section 43ofchildren young person care protection act 1998 nsw 12 father mother commenced cohabitation july 1990 married december 1990 separation occurred either late 1997 early 1999 decree nisi pronounced january 2001 became absolute february 2001 13 two child marriage son born april 1992 14 year age daughter born december 1996 10 year age reside father facts14 convenient way deal fact issue set comprehensive chronology follows 12 september 2000 order made state local court thefamily law actfor child live mother contact father 12 october 2004 department community service doc obtained interim order state child court section 69 child young person care protection act 1998 state act placing child care father interim state order 3 november 2004 state child courtby consentmade finding child need care protection section 71 1 c state act 4 may 2005 child court purported make placement order pursuant section 79 1 state act child live father later conceded 5 april 2006 proceeding state child court attorney general state order inoperative time made section 79 1 state act fall within definition child welfare law referred insection 69zk 2 thefamily law actbecause result apparent oversight within term ofsection 60dof thefamily law act prescribed time order made definition child welfare law found insection 60dof thefamily law actwhich since repealed similar definition contained insection 4 1 thefamily law act 24 november 2005 date mother filed application child court pursuant section 90 1 state act seeking order recision variation earlier order made 4 may 2005 mother argued contravened theconstitutionin order made state court 4 may 2005 inoperative conflict earlier federal order made federal family court 12 september 2000 providing child live mother 5 april 2006 attorney general state new south wale intervened mother section 90 1 application conceded child court order made child court 4 may 2005 inoperative reason submitted behalf mother becausesection 79 1 pursuant order 4 may 2005 made child welfare law within meaning section 69zk 1 prescribed required definition child welfare law thefamily law act conceded inconsistency federal state order 12 september 2004 may 2005 therefore arose state order invalid extent inconsistency virtue ofsection 109of constitution state child court dismissed thesection 90application brought mother since order appealed event inoperative held care proceeding still foot since final order 4 may 2005 purporting place child father inoperative court held interim state order made 12 october 2004 still foot hearing proceeding future placement child direction made end learned magistrate 1 july 2006 regulation thefamily law actwere amended prescribe within meaning ofsection 4 1 thefamily law actinter alia section 79 1 state act fact provision state act prescribed 27 july 2006 child court conducted final hearing placement proceeding made order section 79 1 section 86 state act aspect parental responsibility except religion education allocated father mother contact set order mother counsel appearing time argued court jurisdiction seek argue substantive issue mother counsel earlier indicated 20 july 2006 court mother would take part proceeding basis child court jurisdiction 15 chronology event confirmed party hearing dispute 16 commencement hearing although available read detailed submission relied counsel mother le certain defence summary dismissal application mother counsel wished pursue went trouble counsel mother spell issue contention 17 counsel mother conceded order 12 october 2004 3 november 2004 valid time order 27 july 2006 made client would fail dispute court fact deprived power make order operation ofsection 69zkof thefamily law actthen mother case must fail 18 summary counsel mother said argument amounted two matter namely 1 section 69zkdoes mean appears say must read exclude operation inter partes order made family court circumstance order made state court effect reversing family court residence order 2 child court declared placement order inoperative 5 april 2006 following concession attorney general functus officio another placement order could made without order made child need care 19 consideration found result sequence event set chronology follows 1 section 69zk 2 make clear power make various care order including order made 27 july 2006 child court reside court power child welfare law case child court 2 section 69zk 1 precludes family court making order child reside mother result inconsistency state federal law subject 3 state order made 27 july 2006 bringing application mother court must doomed failure since order sought whist obscure term order relation child care person child welfare law fact section 79 1 prescribed mean defect existed order made 4 may 2005 corrected 20 stated shortly initial view relating effect order legislation turn deal challenge view raised counsel mother namely 1 section 69zk mean appears say must read exclude operation inter partes order made family court circumstance order made state court effect reversing residence order although counsel mother said opening section mean said actually made oral submission support alternative meaning despite lengthy submission made argument limited proposition must read state order must subservient federal order written submission suggested decision family court 20 december 2000 providing child reside mother mean question person preferred resident parent child re judicata father could benefit state court decision five six year later benefit said derive child reside suggested bound earlier decision effect child best interest would served residing mother proceeding state court brought doc circumstance consent finding made four year family court order made september 2000 child need care protection doc party earlier family court litigation bound parenting order issue different whilst order made final order could best accordance principle inrice v asplund 1979 flc 90 725only restrict bringing proceeding significant change circumstance occurred essential element issue estoppel present seeramsay v pilgrim 1968 hca 34 118 clr 271at 276andkuligowski v metrobus 2004 hca 34 220 clr 363at 381 43 question re judicata arises counsel mother asserted family court order must superior state order apparent basis argument except one federal state court apparent reliance uponsection 109of theconstitution apparent scheme section 69zk avoid confusion possible conflict dealing power respective court case demonstrates need regime provided section state court family court may deal matter without confusion arising although may relevant legal argument mr levet argued mother position changed considerably contends drinking problem resolved precluded legislation bringing proceeding back family court perceives sympathetic forum difficulty approach even relevant time matter child court july 2006 counsel mother asserted jurisdiction child court deal matter declined put evidence forward take part proceeding would ideal opportunity mother seek position investigated perhaps bring application section 90 state act earlier care order overturned application examination fact merit matter section 69zk seems mean appears say seems basis suggesting matter read mr levet done 2 child court declared placement order inoperative 5 april 2006 following concession attorney general functus officio another placement order could made without order made child need care counsel doc argued correctly think court look behind validity state order quite apart question power mother chosen appeal order state court could done particular order 12 october 2004 3 november 2004 appear continued force order made 27 july 2006 mother made attempt attack validity order order state court made 4 may 2005 5 april 2006 mother however application filed state court 24 november 2005 seek leave apply recision variation order made 4 may 2005 pursuant section 90 state act application based upon proposition federal order override state order attorney general subsequently conceded invalidity order different basis course making finding jurisdictional fact may necessary court make enquiry whether place order type referred section 69zk however enquiry indicates order appears face place court look behind order make determination validity determination made made hierarchy state court accordingly proceed basis order made 12 october 2004 3 november 2004 child court valid force time order 26 july 2006 made interim order 12 october 2004 made take effect final order order understand making invalid order 4 may 2005 bring end remained foot similarly making invalid placement order 4 may 2005 result consent order child need care protection made 3 november 2004 coming end follows look behind order made state court would event satisfied invalid submission made mr levet final placement order made 27 july 2006 could made without making finding child need care protection supported submission circumstance reject argument seems mother counsel cannot heard contend various order made state child court invalid attempt appeal order hierarchy state court circumstance court power 21 sought deal particular submission made oral argument counsel mother review written submission made behalf mother indicates although oral argument effect pursued reliance placed assertion bringing care proceeding doc constituted abuse power inter alia court process used illegitimate improper purpose reversal effect order made family court september 2000 22 counsel mother understand ultimately withdrew submission view proper course take even withdrawn question whether proceeding state court constituted abuse process court matter state court family court 23 follows said mother application filed 26 july 2006 must fail propose order dismissed order 1 mother application final order filed 26 july 2006 dismissed certify preceding twenty three 23 paragraph true copy reason judgment honourable justice steele associate date 28 march 2007it notedthat judgment publication reporting purpose referred buxton bates mcdiarmid |
COMMONWEALTH BANK OFFICERS SUPERANNUATION CORPORATION PTY LTD and VALUER GENERAL [2015] WASAT 52 (19 May 2015).txt | commonwealth bank officer superannuation corporation pty ltd valuer general 2015 wasat 52 19 may 2015 last updated 22 may 2015jurisdiction state administrative tribunalact valuation land act 1978 wa citation commonwealth bank officer superannuation corporation pty ltd valuer general 2015 wasat 52member justice j c curthoys president mr moore senior sessional member heard 12 13 february 2015delivered 19 may 2015file dr 318 2013between commonwealth bank officer superannuation corporation pty ltdapplicantandvaluer generalrespondentcatchwords assessment gross rental value property 1 august 2009 review valuer general dismissal objection assessment whether gst tax withins 4ofvaluation land act 1978 wa valuer general failure take account comparable property inadequate evidence support valuer general explanation rejection comparable property determinationlegislation new tax system good service tax act 1999 cth land acquisition term compensation act 1991 nsw 56valuation land act 1916 nsw 6a 1 valuation land act 1978 wa 4result objection allowedsummary tribunal decision applicant sought review valuer general dismissal objection gross rental value quadrant william street 1 august 2009 two issue arose gross rental value quadrant andb gst tax within meaning tax in 4of thevaluation land act 1978 wa gst included reaching valuer general determination valuer general report failed take account comparable property particular comparable tenancy wesfarmers house immediately across road quadrant valuer general failed adequately explain comparison rejected offer sufficient evidence support explanation first issue tribunal substantially accepted applicant evidence gross rental value second issue tribunal concluded gst tax within meaning tax withins 4of thevaluation land act 1978 wa category brepresentation counsel applicant mr flintrespondent m c idesolicitors applicant flint moharichrespondent state solicitor officecase referred decision archon group pty ltd v valuer general 2010 nswlec 1131csr ltd v hornsby shire council 2004 57 atr 201 2004 nswsc 946db rreef fund management ltd v commissioner taxation 2005 218 alr 144 2005 fca 509 59 atr 388orti tullo v sadek 2001 nswsc 855spencer v commonwealth 1907 hca 82 1907 5 clr 418storage equity pty ltd v valuer general 2013 nswlec 137reasons decision tribunal introduction1 14 june 2013 valuer general disallowed objection made applicant bank officer valuer general assessment gross rental value lot 123 diagram 12526 1 william street perth property 1 august 2009 property 24 storey grade office building incorporating two level basement car park ground floor foyer retail kiosk office suite mezzanine level office 20 upper level office accommodation property net lettable area nla approximately 23 327m² includes parking 141 vehicle 2 bank officer seek review dismissal objection issues3 two issue arise gross rental value property 1 august 2009 andis commonwealth good service tax gst levied undera new tax system good service tax act 1999 |
EAX16 v Minister for Immigration & Anor [2017] FCCA 1726 (25 July 2017).txt | eax16 v minister immigration anor 2017 fcca 1726 25 july 2017 last updated 9 august 2017federal circuit court australiaeax16 v minister immigration anor 2017 fcca 1726catchwords migration administrative appeal tribunal practice procedure appearance behalf applicant scheduled hearing application dismissed pursuant torule 13 03c 1 c thefederal circuit court rule 2001 cth legislation federal circuit court rule 2001 cth rr 13 03c 44 12applicant eax16first respondent minister immigration border protectionsecond applicant administrative appeal tribunalfile number syg 3704 2016judgment judge emmetthearing date 25 july 2017date last submission 25 july 2017delivered sydneydelivered 25 july 2017representationno appearance behalf applicantsolicitors respondent mr rowan whitemills oakleyfederal circuit courtof australiaat sydneysyg 3704 2016eax16applicantandminister immigration border protectionfirst respondentadministrative appeal tribunalsecond respondentex temporereasons judgmentthe first respondent seek order pursuant r 13 03c 1 c thefederal circuit rules2001 cth rule proceeding court commenced way application filed 22 december 2016 dismissed reason failure applicant appear today scheduled hearing support application solicitor first respondent mr white tendered letter dated 17 may 2017 first respondent solicitor applicant applicant address service australia document marked exhibit 1r exhibit 1r enclosed way service copy first respondent submission confirmed day date time location today scheduled hearing exhibit 1r also informed applicant applicant required attend scheduled hearing appearance first respondent may without notice seek order application dismissed cost note applicant attended first court date registrar court 4 may 2017 occasion applicant given leave file amended application evidence support application applicant also directed serve written submission support application note document filed behalf applicant either accordance direction otherwise also note order 11 order stated event appearance behalf applicant time scheduled court event application may dismissed without notice matter set hearing pursuant r 44 12 rule today 9 30am 10 10am matter called least three time outside last occasion le five minute ago communication received behalf applicant either court first respondent solicitor seeking adjournment today hearing reason circumstance satisfied applicant aware today scheduled hearing whatever reason chosen attend satisfied order sought first respondent appropriate accordingly proceeding court commenced way application filed 22 december 2016 dismissed cost pursuant r 13 03c 1 c rulesby reason failure applicant appear today scheduled hearing certify preceding ten 10 paragraph true copy reason judgment judge emmettassociate date 7 august 2017 |
Better Homes Queensland Pty Ltd v O'Reilly and Anor [2013] QCATA 122 (24 April 2013).txt | better home queensland pty ltd v reilly anor 2013 qcata 122 24 april 2013 last updated 1 november 2013 citation better home queensland pty ltd v reilly anor 2013 qcata 122parties better home queensland pty ltd appellant vscott reillymeilyn reilly respondent application number apl224 11matter type appealshearing date papersheard brisbanedecision judge horneman wren sc deputy presidentpeter apel memberdelivered 24 april 2013delivered brisbaneorders made better home queensland pty ltd must pay scott reilly meilyn reilly cost incidental proceeding amount agreed failing agreement assessed standard basis reference district court scale catchword appeal appeal dismissed respondent applied cost indemnity basis whether order cost interest justice whether cost ordered indemnity basisqueensland civil administrative tribunal act 2009 100 102domestic building contract act2000 84better home queensland pty ltd v reilly anor 2012 qcata 37 relatedcolgate palmolive co v cussons pty ltd 1993 fca 536 1993 46 fcr 225 citedgrasso anor v cmg consulting engineer pty ltd 2 2011 qcara 326 citedmizikovsky v queensland television limited or 2013 qca 68 citedtamawood ltd v paans 2008 qca 111 citedappearances representation matter heard determined paper pursuant tos 32of thequeensland civil administrative tribunal act 2009 qcat act reason decisionthe tribunal 1 proceeding party initially heard queensland civil administrative tribunal qcat four day cairn tribunal found appellant ex tempore judgment delivered member conclusion final day hearing 2 appellant subsequently appealed decision qcat first instance appeal tribunal appeal dismissed 3 question appeal tribunal whether circumstance conduct appeal outcome appeal tribunal would consider interest justice require make cost order thereby displace primary position cost set 100 qcat act 4 respondent seek order cost paid appellant assessed indemnity basis solicitor client district court scale unless agreed alternatively b assessed standard basis party party district court scale unless agreed 1 5 appellant seek order party bear cost appeal 2 relevant statutory provision 6 power award cost provided division 6 part 6 chapter 2 qcat act 7 primary provision 100 qcat act provides provided act enabling act party must bear cost proceeding 8 section 102 qcat act provides circumstance order cost made tribunal cost party interest justice 1 tribunal may make order requiring party proceeding pay stated part cost another party proceeding tribunal considers interest justice require make order 3 deciding whether award cost subsection 1 2 tribunal may regard following whether party proceeding acting way unnecessarily disadvantage another party proceeding including mentioned section 48 1 g b nature complexity dispute subject proceeding c relative strength claim made party proceeding proceeding review reviewable decision whether appellant afforded natural justice decision maker decision ii whether appellant genuinely attempted enable help decision maker make decision merit e financial circumstance party proceeding f anything else tribunal considers relevant consideration submission 9 respondent submits case interest justice require order appellant pay cost appellant ought cognisant every error law result decision set aside appeal error must vitiate decision b weight evidence presented appellant hearing first instance agitated appeal insufficient meet test exceptional circumstance unreasonable hardship pursuant 84 4 thedomestic building contract act1991 c cost appeal viewed differently cost proceeding appellant fails respondent face additional burden expense appeal litigation respondent already successful 10 appellant hand submits proceeding interest justice require order cost made evidence acted unreasonably disadvantaged respondent b nature complexity question law warranted appeal c respondent success defending appeal alone justification award cost appellant reasonable prospect success appeal nothing tribunal evidenced financial circumstance respondent proceeding therefore material show respondent suffer financially result cost order imposed e circumstance appellant aware interest justice would compel appeal tribunal make order cost appellant 3 finding appeal decision 11 found decision appeal tribunal error law reason decision given member first instance error member failure state conclusion critical question whether exceptional circumstance moving consider whether unfairness homeowner whether builder could demonstrate unreasonable hardship 12 however notwithstanding error law decision made learned member found correct decision evidence appeal tribunal concluded would utility allowing appeal 4 analysis 13 considering provision 102 qcat act setting consideration regard may deciding whether award cost tribunal make following observation appellant acted way unnecessarily disadvantaged respondent whilst doubt fact appeal run would cause respondent incur cost lose time face inconvenience disruption involved litigation entail matter shall considered separately given error law found decision member first instance appellant reasonably justified commencing appeal ventilate issue error law question whether decision member first instance sound context error reasonably justifiable course action seen pursuing course action caused unnecessary disadvantage respondent b complexity issue would ground justify cost order respondent submits appeal complex required analysis multi factor test 84 2 thedomestic building contract act ii weight evidence given party expert iii principle natural justice due process giving reason decision ground appeal iv preparing submission response appellant five ground appeal thirteen page submission oral hearing appellant hand argues nature complexity question law warranted appeal whilst appeal require careful examination decision member first instance test created 84 2 thedomestic building contract actis complex test difficult apply c significant disparity strength claim made party proceeding notwithstanding appellant able demonstrate error law made decision member first instance appellant nonetheless failed appeal tribunal put forward sufficiently strong evidence respect evidence exceptional circumstance within 84 4 thedomestic building contract actnor unreasonable hardship within 84 4 ii act respondent put expense appeal respondent submits appeal tribunal entitled take account 102 3 f qcat act ingrasso anor v cmg consulting engineer pty ltd 2 5 president alan wilson j said last factor view relevant whilst qcat operates different statutory cost environment civil court accepted cost appeal may viewed differently cost proceeding appellant fails respondent face additional burden expense appeal litigation already successful 14 honour 6 also cited approval observation made keane ja honour intamawood ltd v paans 7 fact party justified engaging legal representative may circumstance sufficient basis award cost favour successful party least absence countervailing consideration 15 circumstance interest justice cost order made pursuant 102 qcat act 16 remaining question appropriate basis assessment cost 17 basic principle indemnity cost order exception rather norm 8 18 case demonstrate feature would warrant departure usual course cost awarded party party basis 9 19 reason already stated appellant proceeding unwarranted unmeritorious notwithstanding ultimately unsuccessful appropriate case imposition indemnity cost order assessment cost standard basis appropriate 20 notwithstanding amount dispute well within jurisdiction magistrate court proceeding appeal appeal tribunal appropriate scale assessment cost district court scale order 21 appellant ordered pay respondent cost incidental appeal proceeding amount agreed party failing agreement assessed standard basis reference district court scale 1 respondent submission dated 20 03 2012 paragraph 1 2 appellant submission dated 26 03 2012 paragraph 1 3 appellant submission paragraph 6 4 better home queensland pty ltd v reilly anor 2012 qcata 37 18 22 5 2011 qcata 326at 13 6 grasso anor v cmg consulting engineer pty ltd 2 2011 qcata 326at 14 7 2008 qca 111at 30 8 mizikovsky v queensland television limited or 2013 qca 68 55 9 colgate palmolive co v cussons pty ltd 1993 fca 536 1993 46 fcr 225at 33 |
1312031 [2014] MRTA 976 (10 April 2014).txt | 1312031 2014 mrta 976 10 april 2014 last updated 5 may 20141312031 2014 mrta 976 10 april 2014 decision recordreview applicant dhaliwalz pty ltdvisa applicant mr hakirat singh dosanjhmrt case number 1312031dibp reference clf2012 118364tribunal member tony caravelladate 10 april 2014place decision perthdecision tribunal affirms decision review refuse grant visa applicant class subclass 119 visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration border protection refuse grant visa applicant employer nomination migrant class visa unders 65of themigration act 1958 act visa applicant applied department immigration border protection employer nomination migrant class visa 13 june 2012 delegate decided refuse grant visa 12 june 2013 notified visa applicant decision review right letter dated 12 june 2013 delegate refused visa application basis visa applicant satisfy cl 119 221 schedule 2 themigration regulation 1994 regulation delegate found visa applicant satisfy cl 119 221 delegate found sponsor nomination position cook dhaliwalz pty ltd refused delegate accordingly appointment respect visa applicant mentioned cl 119 211 1 approved review applicant applied tribunal 20 august 2013 review delegate decision tribunal find delegate decision mrt reviewable decision 338 5 act tribunal find review applicant made valid application review 347 act relevant lawsubclauuse 119 221 schedule 2 regulation state 119 22 criterion satisfied time decision119 221the appointment mentioned subclause119 211 1 approved b withdrawn c continues satisfy criterion approval still available applicant claim evidencethe tribunal department file relating visa applicant tribunal also regard material referred delegate decision material available range source 17 february 2014 tribunal wrote review applicant advised tribunal considered material unable make favourable decision information alone review applicant therefore invited appear tribunal give evidence provide argument relating issue arising relation decision review hearing time date notified letter scheduled 9 30am 3 april 2014 letter also advised review applicant review applicant attend hearing tribunal may make decision without taking action allow enable review applicant appear day hearing review applicant failed appear give evidence present argument contact correspondence review applicant received tribunal subsequent hearing date section 362b act provides applicant invited 360 act attend hearing appear day time place scheduled appear tribunal may make decision review without taking action allow enable applicant appear power arises hearing invitation complied relevant statutory requirement prescribed period notice relevant day time place scheduled hearing given examined hearing invitation issued applicant address notified address service notice examined notice respect period notice provides tribunal satisfied complies statutory requirement respect issue valid notice tribunal therefore satisfied power proceed decision pursuant 362b engaged tribunal decided case proceed decision without action allow enable applicant appear following reason tribunal decided affirm decision review refuse nomination stated delegate found 13 june 2012 applicant employer dhaliwalz pty ltd lodged application approval employer nomination scheme appointment position cook anzsco 351411 delegate refused nomination application 16 may 2013 delegate found nomination application failed meet requirement specified r 5 19 4 r 5 19 4 b delegate satisfied business genuine need nominated appointment also satisfied business would provide full time employment least 2 year 5 june 2013 visa applicant employer dhaliwalz pty ltd lodged application tribunal review delegate decision refuse nomination application 10 april 2014 tribunal finalised review delegate decision refuse nomination application decision recorded mrt case number 1307937 decision tribunal affirm delegate decision refuse nomination tribunal affirmed delegate decision refuse employer nomination respect appointment appointment linked visa applicant visa application tribunal find appointment mention subclause 119 211 1 case approved tribunal therefore find applicant satisfy cl 119 221 cl 119 221 essential criterion grant visa applied since tribunal found visa applicant fails satisfy requirement tribunal must affirm decision review decisionthe tribunal affirms decision review refuse grant visa applicant class subclass 119 visa tony caravellamember |
Gari, Gabriel --- "Services negotiations: Where have we been and where are we heading?" [2016] ELECD 1162; in Sauve, Pierre; Roy, Martin (eds), "Research Handbook on Trade in Services" (Edward Elgar Publishing, 2016) 579.txt | gari gabriel service negotiation heading 2016 elecd 1162 sauvé pierre roy martin ed research handbook trade service edward elgar publishing 2016 579book title research handbook trade serviceseditor sauvé pierre roy martinpublisher edward elgar publishingisbn hard cover 9781783478057section chapter 21section title service negotiation heading author gari gabrielnumber page 32abstract description chapter review service negotiating process marrakech bali examines reason failure trade diplomacy fulfil gat objective securing progressively higher level liberalization trade service argues doha round negotiation remain governed rule old gatt day longer adapted today trading landscape also identifies number obstacle stand applicability model based reciprocal exchange market access concession service negotiation chapter advance thought type action could taken inside outside wto facilitate liberalization trade service beyond doha particular call replacement mega round subject single undertaking plurilateral approach trade negotiation whereby reduced group like minded member accounting critical mass trade move forward area mutual interest mfn basis chapter shed light various legal avenue offered wto conclude plurilateral agreement mfn basis offer consideration type bargaining package likely attract support critical mass wto member |
Ageist Pty Ltd v Lilly (Lila) Stojcevski [2021] NSWSC 1105 (23 August 2021).txt | ageist pty ltd v lilly lila stojcevski 2021 nswsc 1105 23 august 2021 last updated 1 september 2021supreme courtnew south walescase name ageist pty ltd v lilly lila stojcevskimedium neutral citation 2021 nswsc 1105hearing date 23 august 2021date order 23 august 2021decision date 23 august 2021jurisdiction equitybefore rein jdecision see 16 18 19 catchword land law caveat removal caveat application remove caveat property contract sale entered 11 december 2020 settlement delayed since february 2021 several prior caveat lodged claim made defendant related party respect property court prior occasion ordered caveat lodged defendant related party including defendant mother removed plaintiff contends serious question tried injunction would granted caveators preclude sale balance convenience favour removal caveat property subject two registered mortgage debt second mortgage come close satisfied sale property defendant claim equitable interest whether lack utility held utility caveat could balance defendant make claim caveat bona fide balance convenience strongly favour progress sale legislation cited real property act 1900 nsw case cited hanson construction material pty ltd v robert 2016 nswca 240bayblu holding pty ltd v capital finance australia limited 2011 nswca 39ageist pty ltd v samuel holding pty ltd receiver manager appointed 2021 nswsc 988lew v bluescope distribution pty ltd 2010 nswsc 794dunecar pty ltd liq v colbron 2001 nswsc 1181category principal judgmentparties ageist pty ltd plaintiff lilly lila stojcevski first defendant lupco stojcevski second defendant representation ag martin counsel plaintiff carbone solicitor defendant solicitor summer lawyer plaintiff sydney law practice defendant file number 2021 00223654publication restriction nilex tempore judgment1 proceeding plaintiff seek removal caveat ar295470 shall refer current caveat lodged defendant respect property 15 donnell street port kembla shall refer property caveat asserts beneficial interest trust refers beneficial interest trust asserts constructive trust caveators share proportionate caveators contribution acquisition land pursuant joint endeavour registered proprietor caveators caveators made financial contribution totaling 510 000 acquisition land 2 two registered mortgage property one favour trust company ptal ltd ptal secures debt approximately 386k second held ageist pty ltd ageist plaintiff secures debt approximately 1m 3 11 december 2020 ageist exercising power sale agreement ptal entered sale contract m eva nordstrom 650k see exhibit page 109 following sale able proceed number caveat lodged title firstly registered proprietor samuel holding pty limited smh bosilka stojcevska mother defendant two defendant current caveat 4 relation smh caveat note smh long time appointed receiver manager receiver manager party caveat indeed apparently accepted caveat withdrawn matter referred judgment honour justice henry return moment 5 caveat current caveat ordered removed one ordered removed darke j two ordered removed henry j honour judgment dated 6 august 2021 ageist pty ltd v samuel holding pty ltd receiver manager appointed 2021 nswsc 988 shall refer smh judgment 6 plaintiff aware current caveat lodgement hearing henry j judgment handed honour plaintiff raised matter honour honour handed judgment honour refused deal current caveat time reason fresh proceeding relation current caveat 7 m nordstrom currently renting property negotiated departure property february 2021 expectation settlement property would occur current landlord recently indicated see page 206 exhibit arranged building work commence premise week encouraged m nordstrom leave premise uninhabitable building work commenced 8 matter listed last week wednesday 18 august 2021 direction occasion mr ag martin counsel appeared plaintiff mr carbone solicitor appeared defendant plaintiff seeking urgent hearing fixed today 10 00am time date hearing mr carbone indicated wished file evidence support defendant opposition removal caveat ordered defendant file serve evidence submission wished rely 10 00am sunday 22 august 2021 submission evidence served filed mr carbone behalf defendant 9 56am today mr carbone sent associate proposed cross summons refused permit filed relied leave sought given respect document defendant put evidence forward support opposition plaintiff application note henry j refers proposed cross summons smh judgment 9 court book exhibit contains submission mr martin plaintiff submits caveat removed serious question tried injunction would granted caveators preclude sale purchaser even balance convenience favour removal caveat mr martin drew court attention decision court appeal inbayblu holding pty ltd v capital finance australia limited 2011 nswca 39 mr martin contends unsuccessful point necessary venture question lack ofbona fideson part defendant also balance convenience firmly support removal caveat allowing transaction m nordstrom proceed 10 noted henry j noted judgment court approach application applying principle analogous application interlocutory injunction caveator onus establishing serious issue tried existence interest claimed caveat caveator discharged onus continuation removal caveat depends court assessment balance convenience relevant question strength caveator claim interest land consistent well established principle apparent strength party case material factor assessing balance convenience application interim injunction hanson construction material pty ltd v robert 2016 nswca 240at 77 79 11 clear debt second mortgage come close satisfied sale property sale proceeds 650k insufficient long margin meet first second registered mortgage debt 12 equitable interest claimed defendant cannot defeat interest registered mortgagee reason protection derived registration ands 42of thereal property act 1900 nsw consequence caveat utility idea lack utility reflected court appeal decision inbayblu supra 42 per campbell ja tobias macfarlan ja concurred within 42 passage situation caveator would receive money maintaining caveat establishing interest claimed usually possible caveator show balance convenience favour maintenance caveat 13 note court appeal go say matter evaluation fact case principle law whereby caveat never maintained situation 14 idea lack utility also picked judgment pembroke j case oflew v bluescope distribution pty ltd 2010 nswsc 794at 11 particular honour said money left satisfaction monies due registered mortgagee chargee equitable interest recorded caveat secures nothing utility maintaining caveat cause difficulty party dealing land without securing legitimate advantage defendant 15 finally connection first point one decision referred inbayblu supra 42 decision young cj equity honour dunecar pty ltd liq v colbron 2001 nswsc 1181 honour said 18 probable even though caveator interest land interest land overridden superior interest land caveat almost always removed 16 thus even accepting interest claimed caveat legitimate putting aside fact claim made august 2021 property already sold december 2020 matter shall return moment court would grant injunction prevent sale innocent third party without notice alleged claim simply utility caveat could balance defendant make claim 17 strictly necessary consider issue raised relation thebona fidespoint several factor pertinent assertion made plaintiff 1 defendant addition smh via mr steven murabito lodged caveat henry j dealt ordered removed interest defendant smh proceeding put term interest asserted caveat subject proceeding see 82 smh judgment 2 secondly defendant mother bosilka lila partner mr murabito apparently role director smh advanced claim subject caveat ordered removed either darke j henry j 3 bosilka defendant mother sought purchase property 650k alleged defendant shortly prior contract current purchaser honour justice henry deal judgment contract proceed reason honour deal judgment relevant defendant bosilka least promoting case based upon sale contract alleged made mother 650k 4 mr carbone told today client claim mother improperly pressured transfer property smh understood correctly assert knowledge plaintiff avoid stricture national credit code claim claim advanced current caveat 18 addition four matter mentioned lodging caveat referred 68 smh judgment convinced current caveat isbona fideand order removal basis well 19 finally balance convenience reason explained henry j judgment think darke j earlier judgment balance convenience strongly favour progress sale m nordstrom sale delayed since february year string caveat advanced defendant mr murabito smh |
Ryan and Secretary, Department of Social Services (Social services second review) [2017] AATA 1324 (22 August 2017).txt | ryan secretary department social service social service second review 2017 aata 1324 22 august 2017 last updated 24 august 2017ryan secretary department social service social service second review 2017 aata 1324 22 august 2017 division general divisionfile number 2016 6217re sharon james ryanapplicantandsecretary department social servicesrespondentdecisiontribunal dr alexander memberdate 22 august 2017place sydneythe decision review affirmed sgd dr alexander membercatchwordssocial security disability support pension applicant physical impairment chronic lower back pain meniere disease heart condition psoriasis hiatus hernia irritable bowel syndrome diverticulitis applicant impairment total 20 point impairment table decision review affirmedlegislationsocial security act 1994 cth 94social security administration act 1999 cth 63 2 80 118 13 secondary materialsthe social security table assessment work related impairment disability support pension determination 2011reasons decisiondr alexander member24 july 2017on 31 december 2015 m james ryan 64 year old lodged claim disability support pension dsp thesocial security act 1991 act claim rejected centrelink initially internal review basis satisfy requirement 94 act particular satisfy 94 1 b act impairment 20 point impairment table decision dated 12 october 2016 social service child support division administrative appeal tribunal aat1 affirmed decision reject m james ryan claim aat1 found medical condition warranted total rating 0 point impairment table therefore satisfy 94 1 b act proceeding m james ryan seek review aat1 decision hearing m james ryan self represented issuesin order qualify dsp m james ryan must satisfy requirement 94 act date claim within 13 week lodging claim accordance subclause 4 1 schedule 2 thesocial security administration act1999 |
Vanilla Sky Australia Pty Ltd [2016] FWCA 5012 (26 July 2016).txt | vanilla sky australia pty ltd 2016 fwca 5012 26 july 2016 2016 fwca 5012fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementvanilla sky australia pty ltd coffee club mascot ag2016 1608 vanilla sky australia pty ltd enterprise agreement 2016restaurantsdeputy president samssydney 26 july 2016application approval vanilla sky australia pty ltd enterprise agreement 2016 1 application pursuant tos 185of thefair work act 2009 act filed vanilla sky australia pty ltd coffee club mascot applicant seek approval fair work commission commission single enterprise agreement known thevanilla sky australia pty ltd enterprise agreement 2016 agreement agreement cover ten employee engaged applicant cafe restaurant mascot new south wale 2 employee last notified representational right 27 may 2016 voting agreement approval took place 18 june 2016 time limit unders 181 2 act thereby satisfied secret ballot 8 employee cast valid vote agreed approve agreement application approval agreement lodged 23 june 2016 thereby satisfyings 185 3 act 3 employer declaration support application form f17 mr lzhang director identified therestaurant industry award 2010 ma000119 relevant reference instrument purpose better overall test boot mr zhangsaid agreement provide penalty rate work performed weekend public holiday loaded higher base rate pay balance satisfied agreement pass boot agreement provides mandatory flexibility term cl 23 consultation term clause 21 22 respectively dispute resolution procedure clause 25 provides conciliation consent arbitration commission 4 hearing application 22 july 2016 mr dtraceyof employment innovationsappeared mr lzhangfor applicant mrtraceyoutlined main feature agreement submitted legislative requirement approval agreement satisfied agreement approved commission clarified cl 9 3 set rate pay agreement would increased fell base rate award 5 heard applicant submission upon reviewing term preapproval process documentation agreement satisfied requirement act particular 180 186 187and188 far relevant application met accordingly approve single enterprise agreement known thevanilla sky australia pty ltd enterprise agreement 2016 pursuant tos 54of act agreement shall operate 29 july 2016 nominal expiry date 22 july 2020 deputy presidentprinted authority commonwealth government printer price code c ae420097pr583293 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 |
WJA v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 274 (16 June 2015).txt | wja v chief executive officer public safety business agency 2015 qcat 274 16 june 2015 last updated 31 july 2015citation wja v chief executive officer public safety business agency 2015 qcat 274parties wja applicant appellant vchief executive officer public safety business agency respondent application number cml001 15matter type childrens mattershearing date 13 may 2015heard dalbydecision member wooddelivered 16 june 2015delivered brisbaneorders made decision commissioner child young people child guardian made 28thnovember 2014 issue negative notice applicant confirmed pursuant tosection 66of thequeensland civil administrative tribunal act 2009 tribunal prohibits publication information would identify applicant relative decision catchword childrens matter application removal negative notice applicant lengthy criminal history none offence serious offence applicant issued negative notice whether exceptional case exists whether protective factor outweigh risk factor working child risk management screen act 2000 qld s 5 6 221 226 360queensland civil administrative tribunal act2009 |
Stafford & anor v Kekatos & anor (No 3) [2008] NSWSC 1093 (17 October 2008).txt | stafford anor v kekatos anor 3 2008 nswsc 1093 17 october 2008 last updated 22 october 2008new south wale supreme courtcitation stafford anor v kekatos anor 3 2008 nswsc 1093jurisdiction equity divisionfile number 4871 06hearing date 8 16 september 2008judgment date 17 october 2008parties susan stafford first plaintiff rhonda dawn stafford second plaintiff voula kekatos first defendant george kekatos second defendant judgment brereton jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel mr p hallen sc w mr e finnane plaintiff mr h southwick first defendant mr c stomo second defendant solicitor uther webster evans plaintiff kells lawyer first defendant proctor associate second defendant catchword trust party held charge asset jointly owned company owned certain land company went liquidation party sought purchase land plaintiff agreed transfer interest charge first defendant whether transfer first defendant absolute trustee benefit whether first defendant trustee way express constructive resulting trust estoppel whether plaintiff relied defendant representation respect first defendant taking assignment trustee first defendant acquired first mortgage land third party assignment charge whether first defendant held interest trustee plaintiff whether royalty received right first mortgagee chargee held trust plaintiff land sold third party percentage proceeds paid first defendant whether first defendant hold proceeds trust plaintiff whether first defendant entitled indemnified trust asset expense incurred constructive trust whether first defendant account contribution plaintiff venture failed without attributable blame whether party intended contribution venture would returned event failure whether venture failedequitable estoppel whether first defendant estopped asserting assignment absolute trustee whether defendant knowingly induced expectation plaintiff defendant would take assignment charge trustee whether plaintiff acted reliance expectation whether distrust party negative reliance representation whether absence writing precludes finding equitable estoppelsale land requirement writing whether agreement two party purchase land third party agreement sale disposition land whether agreement person hold land trustee upon purchase agreement sale disposition land whether requirement writing affect interest way equitable estoppelmisleading deceptive conduct nsw fair trading act 1984 42 whether representation made defendant plaintiff first defendant would take assignment trustee amounted misleading deceptive conduct representation future matter whether defendant reasonable ground making representationsevidence first defendant give evidence permissible inference failure give evidence legislation cited nsw conveyancing act 1919 s 23c 54a nsw fair trading act 1987 42category principal judgmentcases cited baumgartner v baumgartner 1987 hca 59 1987 164 clr 137booth v federal commissioner taxation 1987 hca 61 1987 164 clr 159buchan v ayre 1915 2 ch 474hardoon v belilios 1901 ac 118isaac v wall 1877 6 ch 706manly council v byrne 2004 nswca 123muschinski v dodds 1985 hca 78 1985 160 clr 583palette shoe pty ltd v krohn 1937 hca 37 1937 58 clr 1re german mining co 1854 engr 664 1854 43 er 415re lord ranelagh 1884 26 ch 590stafford anor v kekatos anor 2 2008 nswsc 1044waltons store interstate limited v maher 1988 hca 7 1988 164 clr 387wise v perpetual trustee co ltd 1903 ac 139texts cited ford lee principle law trustsmeagher gummow jacob law trust australia 5th eddecision first defendant estopped denying took assignment charge trustee first defendant bound acquire first mortgage behalf trust hold constructive trust first defendant liable account plaintiff one half proceeds royalty sale subject indemnity cost reasonably incurred judgment first defendant pay plaintiff 613 177 18 judgment supreme courtof new south walesequity divisionbrereton jfriday 17 october 20084871 06 susan stafford anor v voula kekatos anorjudgment1his honour plaintiff susan rhonda stafford claim 67 7 alternatively 50 sum 1 412 500 settlement proceeds received first defendant mr voula kekatos 26 september 2005 proceeds sale 5 parcel land penrose new south wale lot 1 2 3 4 5 dp253462 penrose land pursuant settlement earlier proceeding concerning land staffords party also claim 67 7 alternatively 50 certain royalty received mr kekatos respect quarrying operation penrose land royalty staffords contend mr kekatos actual constructive trustee settlement proceeds royalty extent 67 7 alternatively 50 mr kekatos denies trustee alternatively claim entitled indemnified trust asset liability incurred connection background2 prior 8 december 1999 australian machinery equipment sale pty ltd ames company owned stafford family kekatos family proprietor penrose land upon quarry interest ames penrose land subject several interest claim including registered mortgage land charge asset undertaking ames national australia bank nab lease heggies bulkhaul ltd heggies heggies obliged pay royalty ames caveat heggies collex waste management pty ltd collex claiming interest pursuant unregistered mortgage joint venture agreement dated 5 december 1995 ames heggies collex relation use penrose land landfill purpose ames agreed grant heggies collex mortgage land secure performance obligation agreement caveat collex claiming option acquire lease penrose land caveat ostabridge pty ltd ostabridge claiming interest pursuant contract sale land 3 8 december 1999 staffords mr kekatos advanced global mineral australia pty limited global sum 1 200 000 due course global paid direction ames discharge nab mortgage consideration acquisition penrose land transfer global registered 2 may 2000 staffords 25 share mr kekatos 30 share shareholder director global borrowed 1 200 000 commonwealth bank security charge asset undertaking ames mortgage staffords respective husband mr kekatos property separately held 4 advance staffords mr kekatos global made pursuant deed loan dated 8 december 1999 loan deed recited lender advanced certain money provided certain guarantee would continue advance money benefit global order global purchase penrose land clause 6 global charged security money owing global lender interest freehold leasehold property asset undertaking agreed execute registrable mortgage penrose land secure money secured obligation performed loan deed global also granted staffords mr kekatos equitable charge global asset including fixed charge real property dated 10 april 2000 registered 18 may 2000 global charge effect charge global asset including penrose land global obligation repay money owing chargees also 10 april 2000 global granted staffords mr kekatos unregistered real property mortgage penrose land global mortgage securing money due thus global obligation repay advance made staffords mr kekatos secured loan deed global charge global mortgage 5 term lease heggies expired november 2000 heggies remained occupation continued pay royalty may 2001 heggies commenced proceeding respect lease reason given 19 september 2003 austin j 13 october 2003 ordered global grant new lease heggies 6 april 2003 staffords advised mr kekatos husband attorney power mr george kekatos appeared made various irregular alteration global share register commenced proceeding winding global mean resolving dispute staffords mr kekatos 5 may 2003 appointed daniel cvitanovic receiver manager global asset undertaking pursuant global charge 7 ostabridge previously commenced proceeding ames global subsequently gone receivership kevin shirlaw appointed receiver manager july 2000 january 2003 proceeding brought ostabridge global settled term obliged global make payment ostabridge secured unregistered mortgage penrose land ostabridge subsequently commenced proceeding global others pursuant ostabridge mortgage mr shirlaw appointed geoffrey mcdonald richard albarran receiver penrose land 13 may 2003 proceeding settled 28 may 2003 mr cvitanovic term receiver way variation earlier settlement term required global pay ostabridge 4 65 million first 2 million secured charge global asset mortgage penrose land guarantee staffords mr kekatos payable five instalment 100 000 28 may 2003 300 000 30 june 2003 1 600 000 31 december 2003 1 650 000 1 june 2005 1 000 000 1 june 2006 8 october 2003 300 000 paid 100 000 outstanding next instalment 1 6 million payable 31 december 2003 subsequent global default payment 100 000 global wound 23 october 2003 michael gregory jones appointed liquidator meanwhile mr cvitanovic retired receiver 1 september 2003 however 9 october 2003 following delivery austin j judgment prior decree global execute new lease heggies mr cvitanovic appointed receiver penrose land staffords global charge second receivership claimed entitled received royalty payable heggies 9 upon second appointment receiver manager global mr cvitanovic sought purchaser penrose land staffords mr kekatos believed penrose land undervalued contemplating making offer end mr cvitanovic held discussion mr wayne stafford agent staffords mr kekatos agent mr kekatos december 2000 october 2003 advance made staffords mr kekatos global 30 october 2003 global charge secured total 3 193 449 741 561 advanced susan stafford 1 370 955 advanced rhonda stafford 1 080 932 advanced mr kekatos following conference 29 october 2003 30 october mr cvitanovic sent letter mr kekatos copied mr stafford noting stafford kekatos interest would make offer purchase penrose land involving cash injection kekatos interest 2 209 763 84 assignment debt owed secured creditor detailed total offer 5 403 212 96 cash injection 2 209 763 84 plus assignment secured creditor debt 3 193 449 reference assignment secured creditor debt understood intending convey purchase would subject global charge letter continued offer outlined attached work paper note comment offer substantially greater valuation property conducted mr reed april 1995 10 letter observed offer would submitted via tender process attached letter date mr pat hallinan shall come attached working paper contained following secured debt ratio calculation stafford interestsrhonda stafford 1 370 955 9225 37 susan stafford 741 561 0013 72 2 112 516 9239 10 kekatos interestsvoula kekatos 1 080 932 2020 01 add pay ostabridge 1 700 000 0031 46 pay receiver manager cost 509 763 849 43 3 290 696 0460 90 total 5 403 202 96100 00 11 implies mr kekatos would fund payout ostabridge receiver return interest global charge would increase would recover additional contribution secured debt 12 mr hallinan associate mr stafford principal high quality nsw ltd high quality letter noted considering making offer purchase penrose land including cash injection 3 409 763 84 assignment secured debt owed relation stafford interest amounting 2 112 516 92 meaning subject global charge extent total 5 522 280 76 cash injection involve pay ostabridge first mortgagee 1 700 000 00pay receiver manager estimated costs589 663 72pay kekatos secured creditor 1 200 000 003 489 663 72less royalty received receiver manager79 899 98cash injection3 409 763 8413 thus proposal contemplated co operation staffords mr hallinan would buy mr kekatos secured interest two proposal obviously inconsistent involved staffords retaining secured interest kekatos stafford proposal involved mr kekatos injecting fund increasing secured interest staffords acquiring freehold whereas hallinan proposal involved kekatos secured interest bought mr hallinan acquiring freehold appear staffords interest freehold proposal either proposal staffords inject cash accord position unable reliant upon mr kekatos mr hallinan injection funding 14 5 december 2003 mr kekatos mr stafford mr cvitanovic refined kekatos stafford proposal effect tender would lodged name mr kekatos behalf unit trust staffords would hold 50 kekatos interest 50 also voting control price 4 893 million payable 3 193 million assuming liability technically precisely taking transfer subject global charge balance 1 700 000 cash raised mr kekatos using penrose land vaucluse home security 1 7 million would required pay ostabridge apparent first sight proposal would addressed receiver cost emerge appears remained intended mr kekatos would first instance raise fund purpose also 15 mr cvitanovic request mr kekatos mr stafford instructed accountant mr hawketts 11 december procure unit trust deed although due course mr hawketts procured trust deed mr cvitanovic notified 15 december forwarded mr stafford 5 february 2004 never executed unsurprising become apparent purchase property proceeding however long 5 december fifth schedule proforma unit trust deed named mr kekatos trustee penrose quarry unit trust obtained mr kekatos executed mr kekatos witnessed mr kekatos employee mr stubing provided mr wayne stafford along remainder proforma trust deed contains number internal indicia suggestive fifth schedule part particular circumstance precedent contains provision execution trustee except fifth schedule mr kekatos inserted date 2 december 2003 fifth schedule probably time soon 5 december although mr kekatos loss explain execution dating fifth schedule sought assert must relate arrangement since reflect intent party beneficial interest 50 50 transaction might relate ever identified name suggests related subject transaction discrepancy schedule allocated unit 51 49 refer voting share whereas common intent party beneficial interest would 50 50 kekatos interest voting control scheme thing significant inconsistency much difference 51 49 50 50 voting control probable explanation fifth schedule provided mr kekatos executed order provide confirmation mr kekatos would purchase trustee party agreed proportion light delay cost would associated using trust procured mr hawketts 16 still 5 december mr kekatos completed submitted mr cvitanovic form tender purchase penrose land presumably intended although expressly stated subject global charge voula kekatos trustee penrose trust price 1 7 million high quality submitted conditional tender 2 250 000 adelaide brighton ltd conditional tender 4 000 000 mr cvitanovic wished accept mr kekatos tender recommended ostabridge receiver mr shirlaw 22 december 2003 mr cvitanovic reported appointors mr shirlaw given conditional consent attached correspondence outlined term proposed sale amended apparently following negotiation mr shirlaw including price 1 8 million also schedule detailing debt secured creditor based money paid mr kekatos following sale property follows secured debtsbased draft financial account prepared peter hawkettsamended reflect payment kekatosparticulars stafford interestsrhonda staffordsusan stafford1 757 190 49905 051 0744 72 23 03 1 757 190 49905 051 0723 55 12 13 sub totalkekatos interestsvoula kekatosadd pay ostabridge settlementpay ostabridge guarantee settlementpay ostabridge guarantee 12 month laterpay receiver manager costs2 662 241 561 267 091 3467 75 32 25 0 00 0 00 0 00 2 662 241 561 267 091 341 800 000 00500 000 00535 000 00696 803 2635 68 16 98 24 13 6 70 7 17 9 34 sub total1 267 091 3432 25 4 798 894 6064 32 total3 929 332 90100 0 7 461 136 16100 0 17 seems assumed therefore global charge would subsist funding provided mr kekatos including required pay ostabridge receiver cost would treated advance security global charge thus effect tender accepted would mr kekatos would acquired land trustee kekatos interest stafford interest equally subject global charge would secure repayment existing advance staffords mr kekatos interest also advance made mr kekatos complete purchase accord mr kekatos version respect accept stipulated party would share 50 50after repayment proposed advance mr kekatos 2 million 18 trust constituted stage property could subject trust mr kekatos hold penrose land contract purchase exchanged staffords contended binding enforceable agreement called penrose trust agreement pursuant mr kekatos agreed purchase penrose land trustee staffords person promise valuable consideration concluded agreement assign property certain description owned promisor consideration passed equity fastens upon property acquired make promisor trustee intended assignee palette shoe pty ltd v krohn 1937 hca 37 1937 58 clr 1 26 7 booth v federal commissioner taxation 1987 hca 61 1987 164 clr 159 ford lee principle law trust 3240 however case december 2003 consideration moving staffords support agreement let alone consideration passed although sense party agreed mr kekatos would submit tender behalf proposed trust purchase penrose land subject global charge price exceeding 1 7 million raised security mr kekatos vaucluse home penrose land concluded agreement sense binding enforceable contract effect absence consideration also clear enough circumstance staffords contemporaneously engaged negotiation another potential purchaser land high quality also lodged tender 5 december 2003 contemplated kekatos interest bought staffords intend bound mr kekatos term alleged penrose trust agreement mr kekatos tender accepted would upon acquiring interest property indeed held trustee pursuant binding enforceable agreement rather purchased expressly trustee 19 mention reject mr mr kekatos submission agreement would unenforceable operation nsw conveyancing act1919 |
Radford v Boral Resources (NSW) Pty Limited [2003] NSWSC 375 (5 May 2003).txt | radford v boral resource nsw pty limited 2003 nswsc 375 5 may 2003 last updated 8 may 2003new south wale supreme courtcitation radford v boral resource nsw pty limited 2003 nswsc 375revised 7 05 2003current jurisdiction file number 20098 02hearing date 2 05 03judgment date 05 05 2003parties barry ronald radford plaintiffboral resource nsw pty ltd defendantjudgment shaw jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel mr p webb qc plaintiffmr hutchings defendantmr esdaile sol cross defendantsolicitors maurice may co plaintiffebsworth ebsworth defendantcatchwords pleading late application leave amend defence file cross claim case management act cited worker compensation act 1987s 151zdecision application refused judgment supreme courtof new south walescommon law divisionshaw j5 may 200320098 2002barry ronald radford plaintiff vboral resource nsw pty limited defendant judgment1shaw j case plaintiff mr radford alleges employed skilled engineering pty limited plant operator working premise defendant plaintiff contends employed skilled engineering although primary proposition injury said occurred 25 may 1998 occurred result defendant boral allegation pleading include proposition boral negligent leaving drum path plaintiff inter alia failing provide plaintiff clear pathway drive vehicle allow perform work 2 notice motion court application allow amendment defence boral say negligence employer skilled engineering causal factor relation injury plaintiff particular alleged failure properly instruct plaintiff removal object path vehicle driving failure advise plaintiff manner could safely remove drum path failure advise plaintiff correct mean lifting heavy weight failure inspect defendant workplace ensure plaintiff intended place work safe failure warn plaintiff danger involved lifting heavy object manually without appropriate assistance order achieve purpose failure properly adequately supervise plaintiff note précis allegation contained proposed amendment intended comprehensive statement defendant wish allege 3 question court relation notice motion whether amendment allowed late stage trial set heard 6 may 2003 solicitor employer mr esdaile say client would position properly defend proceeding amendment leave file cross claim granted course highly regrettable since matter proceeding year commenced filing statement claim district court 11 february 2000 4 yet due consideration must given right defendant agitate case legal adviser see fit high court held inqueensland v jl holding pty limited 1997 hca 1 1997 189 clr 146 whilst case management principle relevant consideration determining procedural matter within court used prevent party litigating issue fairly arguable court determined party allowed raise arguable defence provided prejudice party compensated cost 5 opinion argument come whether amendment could granted without undue unfairness party whether disruption trial process would untoward disruptive position party court listing 6 mr webb qc plaintiff submits cross claim boral desire agitate could dealt consequential proceeding potential perhaps inevitable adjournment trial therefore unjustified word counsel put boral position sufficiently protected right raise future claim employer foreshadowed term amendment statement claim therefore reason put jeopardy scheduled trial 7 opinion much force submission propose accept appreciate argument defendant whilst issued subpoena obtain relevant document april 2001 document provided recent day whereupon access granted said defendant perusing document appreciated appropriately advised cross claim foreshadowed open regrettable however think interest justice best served trial proceeding basis current proceeding whilst allowing defendant pursue proceeding way indemnity might advised lodge substance submission plaintiff whilst subpoena seeking documentation issued april 2001 matter production appear pursued assiduously therefore application amendment belated 8 defendant referred toport melbourne authority vanshun pty limited 1981 hca 45 1981 147 clr 589 view case centrally concerned situation party fails raise point raised litigation therefore precluded raising subsequently case point foreshadowed claim indemnity employer non party therefore present defendant would opinion precluded raising point subsequent litigation 9 accepted defendant according affidavit filed solicitor support motion delay taking step amend defence plead provision ofs 151xof theworkers compensation act 1987 nsw file cross claim skilled engineering candidly said number factor contributed delay including issue overlooked pursued 10 accordingly balancing competing consideration procedural fairness right litigate relevant issue efficient administration justice seems therefore decline application leave amend defence initiate cross claim corporation hitherto party proceeding whilst matter court list year course possible procedural application could renewed trial judge would matter discretion context formal listing trial however interlocutory basis given proximity date notice motion scheduled trial view decline application amend proceeding way sought defendant 11 view cost notice motion cost cause last updated 07 05 2003 |
Secretary to the Department of Justice and Community Safety v Keen (a pseudonym) [2020] VCC 370 (2 April 2020).txt | secretary department justice community safety v keen pseudonym 2020 vcc 370 2 april 2020 last updated 6 april 2020in county court victoriaat melbournecommon law divisionrevisednot restrictedsuitable publicationsecretary department justice community safetyapplicantvjohnathan keen pseudonym respondent judge judge pillaywhere held melbournedate hearing 3 april 2020date judgment 3 april 2020case may cited secretary department justice community safety v keen pseudonym medium neutral citation 2020 vcc 370reasons ruling subject supervision order applicationcatchwords supervision order whether offender pose unacceptable risk committing serious sex offence extraditionlegislation cited serious offender act 2018cases cited nigro v secretary department justice 2013 vsca 213 2013 41 vr 359 secretary department justice community safety v st 2019 vsc 722ruling ex tempore application granted appearance counselsolicitorsfor applicantmr p holdenson qcvictorian government solicitor officefor respondentmr e barbarahis honour 1 mr holdenson qc appearing secretary department justice community safety make application supervision order unders 13of theserious offender act 2018 vic act alternative make application interim supervision order unders 46 1 act 2 respondent represented application mr barbara respondent opposes making supervision order two ground first respondent extradited south australia upon release custody 9 april 2020 event want relocate mr barbara argues imposition victorian supervision order compatible applicant extradited south australia ii applicant intention reside mother south australia secondly perhaps furtherance primary submission respondent argues report m chan admitted objection admission report upheld would deprive applicant necessary expert material required rely reason ofs 13 2 b act primarily said factual underpinning m chan report unsound rendering opinion useless 3 closing mr barbara seemed abandon attack m chan report evidence even without concession would accept submission respondent inadmissibility report evidence factual basis report well set fundamentally challenged cross examination admitted report greatly assisted evidence relied evidence coming decision background4 respondent relevant background offending history set reason sentence honour judge leckie dated 26 february 2006 b reason sentence honour judge ross dated 30 october 2008 repeat detail law5 understand procedural history matter application made final order pursuant tos 13and also interim order pursuant tos 46 4 given time application fact extensive material filed hearing matter full involving cross examination relevant expert written oral submission impending release date respondent consider interest justice make final order provides certainty party deal matter efficient manner rather requiring reattendance within 4 month 6 undersection 14of act court must make supervision order satisfied respondent pose unacceptable risk committing serious sex offence supervision order made respondent community 7section 1of act read part follows purpose act primarily provide enhanced protection community requiring offender served custodial sentence certain serious sex offence certain serious violence offence present unacceptable risk harm community subject ongoing detention supervision b secondly facilitate treatment rehabilitation offender 8 respondent eligible offender supervision order application unders 8of act virtue fact serving custodial sentence relation serious sex offence victoria 9 secretary department justice community safety v st 1 decision honour tinney j supreme court honour set relevant legislation current authority paragraph 20 34 repeat paragraph total well understood principle matter however set leading principle honour judgment unacceptable riskthe term unacceptable risk defined act context repealed serious sex offender detention supervision act 2004 meaning term considered court appeal nigro v secretary department justice nigro 2 court held whether risk unacceptable depends upon degree likelihood offending seriousness consequence risk eventuates must sufficient likelihood occurrence risk considered combination magnitude harm may result relevant circumstance make risk unacceptable matter must established acceptable cogent evidence 3 court stated gravity consequence offence offender risk committing ordinarily critical factor assessment whether risk unacceptable gravity depend upon offender likely conduct turn depends upon evaluation particular circumstance pertain offender upon generalisation general character offence sentence attracted relevant offence court nigro made clear test unacceptable risk interpreted limit enjoyment right liberty autonomy extent necessary give effect legislative purpose enhancing community protection 4 evidence10 application supported evidentiary material filed mr holdenson qc particular numerous filed tendered document report rachel chan dated 29 november 2019 reason sentence honour judge leckie county court victoria dated 26 february 2006 reason sentence honour judge ross county court victoria dated 30 october 2008 judgment court appeal dated 4 april 2011 antecedent respondent 11 m chan opines respondent qualifies high risk reoffending subject supervision order 5 offending likely sexual assault minor gravity potential offending consequence undoubtedly serious 6 behaviour likely penetrative sex fondling behaviour 12 view evidence m chan clear cogent reached acceptable basis examination relevant record history taking examination combined m chan expertise experience field psychology 13 find respondent pose unacceptable risk committing serious sex offence supervision order made offender community 14 turn consider matter item dispute respect proposed order extradition relocation south australia15 material filed court indicates south australia point seek extradition respondent face charge relating historical sexual abuse minor charge 7 16 however point arises prior consideration argument court satisfied respondent pose unacceptable risk pursuant 14 condition court must satisfied risk occurs conjunction offender community condition satisfied upon respondent release 9 april 2020 17 victoria police state south australian police intended seek extradition immediately upon respondent release custody however given impact covid 19 arrest extradition occur timely manner 18 given may well day week month proceeding begun unclear whether extradition successful circumstance without supervision order respondent community second component 14 satisfied court bound make order complete uncertainty regarding south australian charge applicant raised little regard paid extradition proceeding agree submission 19 respondent also argued supervision order would hamper ability reside mother south australia argued long term support evidence called respondent relationship mother circumstance ability provide stable home access intensive treatment may get south australia mother could help access uncertainty evidence make impossible ass respondent submission clear evidence provided m chan need monitored environment strict control enhance protection community duration order20 applicant submitted order period 8 year respondent argued lesser period could rely evidence support submission evidence m chan stated entrenched psychological issue led serial offending respondent past needed decade treatment stated least decade treatment would needed treat embed practice measure changed behaviour respondent risk profile would lowered setting could argued order least 10 year mr holdenson qc pursue submission instead client pressed 8 year basis application made ought changed running disadvantage respondent noted order would subject periodic review 3 yearly interval acted better guide length order ultimately agree submission proposed order 7 521 different consideration arise regard proposed order 7 5 order relates age child respondent contact said applicant limited child younger 16 given antecedent offending history respondent ie child age however evidence m chan antecedent history cohort minor concern would also consider child 18 risk given evidence immediate effect order consider order changed specifically identify child 18 limited contact respondent 22 given finding grant application make supervision order form applicant submits save order 7 5 vary 1 2019 vsc 722 2 2013 vsca 213 2013 41 vr 359 3 ibid 6 4 ibid 5 5 114 assessment report 6 ibid 115 7 statement ds brendan van de duim victoria police dated 31 march 2020 |
Benmara Pty Ltd at The Bridge Inn Hotel premises (Gaming-EGM increase) [2014] VCGLR 41 (11 November 2014).txt | benmara pty ltd bridge inn hotel premise gaming egm increase 2014 vcglr 41 11 november 2014 last updated 7 february 2017decision reason decisionin matter application section 3 4 17 1 b gambling regulation act 2003 benmara pty ltd amendment venue operator licence vary number electronic gaming machine approved venue bridge inn hotel 1425 plenty road mernda forty 40 sixty 60 gaming machine commission miss gail owen deputy chairmanmr de powell commissionerdate hearing 10 october 2014date decision 11 november 2014date reason 11 november 2014appearances mr nick tweedie sc m nicola collingwood counsel behalf applicant instructed bazzani scully priddle mr john rantino partner maddocks lawyer behalf whittlesea city councilmr andrew max lee behalf whittlesea lnteragency taskforce gamblingmr bronte campbell counsel assisting commissiondecision application granted subject condition set paragraph 83 reason decision signed gail owendeputy chairmanreasons decisionintroductionthis application benmara pty ltd applicant amendment venue operator licence vary number electronic gaming machine egms operating bridge inn hotel 1425 plenty road mernda hotel 40 60 egms relevant municipal authority whittlesea city council council council opposed application represented hearing application legislation task commissiongambling egms legal recreational commercial activity victoria long done accordance gambling regulation act 2003 act act recognises although legal activity gaming egms cause harm community member community 1 reason act includes safeguard ensure appropriate balance struck lawful recreational activity potentially harmful activity others particular balance maintained requiring applicant wishing increase number egms venue satisfy commission net detriment test matter set section 3 4 20 1 act net detriment test 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 section 3 4 19 act allows council make submission addressing economic social impact proposal well community impact proposal surrounding municipal district commission bound take submission consideration applying net detriment test recognises special role local government representing people community 2 material commissionthe applicant filed following document support application completed application form increase number egms hotel dated 1 july 2014 b completed application form approval modify gaming machine area approved venue dated 1 july 2014 indicating proposed layout egms application approved 3 c social economic impact assessment report prepared ratio consultant pty ltd dated july 2014 expenditure report prepared mr michael clyne progressive venue service pty ltd dated 24 june 2014 e letter mr leigh barrett managing director leigh barrett associate pty ltd dated 24 may 2014 f witness statement mr edward victor gauci director applicant dated july 2014 g witness statement m lyn knight applicant gaming compliance manager dated july 2014the council filed following document opposition application economic social impact submission form dated 22 september 2014 b social economic impact assessment report prepared planet group dated september 2014 c letter support seventh day adventist church council intention oppose application dated 5 august 2014 report extract ordinary council minute council meeting 16 september 2014 recording council resolution oppose application e witness statement mr glenn menner director planet group dated 29 september 2014 applicant subsequently filed material response council submission addendum economic social impact assessment report prepared ratio consultant pty ltd dated 1 october 2014 b additional expenditure report mr michael clyne progressive venue service pty ltd dated september 2014 commission received submission whittlesea lnteragency taskforce gambling 4 witog opposing application two objection application member public commission also two report prepared commission officer statistical economic social impact report dated september 2014 b pre hearing inspection compliance report dated september 2014 bridge inn hotelthe hotel established 1891 located growth suburb mernda corner bridge inn road plenty road hotel purchased applicant 2010 remaining original state 2012 applicant undertook major renovation cost 9 8 million hotel comprises following facility bistro seating 230 patron b alfresco area seating 20 patron c sport bar tab including pool table large screen tv outdoor seating child play area e community room f gaming lounge 40 egms external smoking area hotel subject three application commission predecessor victorian commission gambling regulation vcgr 2007 vcgr rejected application 60 egms basis hotel located core retail area conducive convenience gambling concerning level social economic disadvantage city whittlesea b 2008 vcgr approved application 40 egms condition 12 egms would relocated venue southern disadvantaged area municipality approval lapsed applicant unable satisfy relocation condition c 2011 vcgr approved application 40 egms noting considerable population growth area immediately surrounding hotel hotel reopened december 2013 proven popular venue city whittleseathe city whittlesea whittlesea metropolitan local government area located approximately 23 kilometre north melbourne includes major centre bundoora thomastown epping mill park lalor hotel located within northern part municipality whittlesea consists three statistical local area 5 slas whittlesea north whittlesea south east whittlesea south west hotel located within whittlesea north sla term social economic disadvantage whittlesea ranked 38th disadvantaged 79 victorian lgas according seifa ranking 6 however level disadvantage within expected patron catchment hotel 7 le statistical area level 1 sa 1 8 first quintile relative disadvantage 8 3 sa 1 second quintile relative disadvantage majority sa 1 within 2 5km radius hotel fourth fifth quintiles relative disadvantage indicating venue gaming patron likely experience lower level social economic disadvantage whittlesea characterised strong population growth annual growth rate 4 2011 16 period compared victorian average 1 54 period suburb mernda doreen surround hotel experienced particularly significant growth 2001 combined population mernda doreen 1 347 increased 19 823 2011 mernda doreen population projected increase 40 267 2016 whittlesea experience average unemployment rate 8 10 compared state average metropolitan lgas 5 97 unemployment rate whittlesea increased 7 57 8 10 past 12 month gaming expenditure city whittleseafor purpose distribution gaming machine whittlesea lga split two area south municipality including postcode area 3074 3075 3076 3082 3083 subject regional cap 581 egms currently eight gaming venue operating total 570 egms within capped area municipality northern area municipality hotel located subject municipal limit 212 egms 9 currently two gaming venue operating within area hotel 40 egms whittlesea bowl club 50 egms term gaming machine density whittlesea 4 75 egms per 1 000 adult 15 le metropolitan average 18 6 le victorian average result population growth whittlesea gaming machine density reduced 6 12 egms per 1 000 adult 2007 08 financial year 4 66 egms per 1 000 adult last financial year whittlesea experience average gaming expenditure per head compared victorian metropolitan average 2013 14 financial year whittlesea average gaming expenditure per adult 692 20 5 metropolitan average 27 3 state average applicant estimate approval application would result 0 4 increase adult per head gaming expenditure whittlesea applicant materialthe applicant provided commission extensive material establish economic social benefit approval application would bring municipality material summarised social economic impactthe applicant engaged ratio consultant pty ltd ratio prepare social economic impact statement purpose application ratio also prepared addendum report considering council submission applicant called m colleen peterson director ratio give evidence hearing application commission regularly accepted m peterson qualified give expert opinion likely social economic impact egms m peterson gave evidence hotel located heart mernda corner two main arterial road last ten year mernda surrounding suburb including doreen experienced population growth exceeded projection ab local council m peterson told commission growth mernda doreen area largely middle class growth result socioeconomic indicia area steadily improved m peterson noted suburb mernda doreen present area little social economic disadvantage m peterson noted two exception strong social economic indicia mernda doreen area average level housing stress average level unemployment m peterson told commission whilst level housing stress average likely explained large proportion growth area upgrade buy m peterson explained commission housing stress calculated expenditure rent mortgage repayment exceeds 30 amenity service largely fixed cost threshold level reached higher income put voluntary housing stress whilst still retaining level disposable income comfortably live within mean m peterson acknowledged voluntary housing stress would account incident housing stress area likely still person experiencing real housing stress indicator disadvantage m peterson told commission difficult explain average level unemployment northern part whittlesea m peterson said typically area exhibiting strong social economic indicator would expected average lower average level unemployment m peterson note growth region generally experience average level unemployment compared established metropolitan region m peterson said average level unemployment concerning viewed relative municipality noted victoria disadvantaged municipality generally exhibit level unemployment higher currently experienced northern part whittlesea term expected catchment area gaming patron hotel m peterson said generally accepted 2 5km radius applied metropolitan area however case venue located growth area would appropriate adopt larger catchment area acknowledgement growth area continues population density increase catchment area likely narrow 2 5km part ratio assessment social economic impact proposal patron postcode survey undertaken result survey show 47 5 gaming patron drawn suburb within 2 5km radius hotel mernda 27 3 doreen 20 2 m peterson told commission typically patron survey conducted established region would show 70 80 patron coming suburb within 2 5km radius venue m peterson noted 12 2 gaming patron surveyed hotel came epping present considerably disadvantaged suburb mernda doreen m peterson opinion due venue newly established growth area m peterson considers future mernda doreen become established novelty factor hotel wear le likely resident epping travel hotel m peterson noted exception epping suburb hotel gaming patron drawn surveyed period strong social economic indicator exhibit sign disadvantage term venue m peterson considers hotel one best entertainment venue melbourne north high quality fit diverse entertainment offering popular food beverage facility hotel currently function facility however application approved renovation work undertaken hotel first floor add function facility lift providing disabled access addition work applicant plan expand hotel kitchen capacity add roof top garden beer lounge anticipated additional nine full time equivalent position created service new area hotel m peterson gave evidence hotel currently committed providing 75 000 per annum cash contribution local community sporting group october 2014 applicant provided 74 952 community organisation since hotel reopened including 15 000 donation whittlesea branch state emergency service 14 000 donation whittlesea football club application approved applicant increase community contribution 20 000 95 000 m peterson asked whether rezoning land opposite hotel allow construction supermarket retail centre considered council would change character hotel promote convenience gambling m peterson told commission considering proposed plan supermarket retail centre believe pedestrian traffic would increased around hotel extent would promote convenience gambling summarising evidence m peterson told commission approval application result number social economic benefit resident whittlesea including two stage renovation hotel expand capacity attractiveness hotel b increase gaming capacity variety partake gaming recreational pursuit without harming others c increase community contribution 20 000 increase employment 9 equivalent full time position e economic stimulus community derived anticipated increase gaming expenditure complimentary expenditure f increase short term employment associated renovation work undertaken venue term disbenefits m peterson noted application increase accessibility gaming key concern risk increase problem gambling m peterson opinion approval application unlikely increase rate problem gambling within whittlesea already access egms within municipality hotel b gaming one component larger entertainment offer hotel c anticipated increase egm expenditure within municipality modest unlikely material impact expenditure derived problem gambling applicant take responsible service gaming obligation seriously proven track record regulatory compliance m peterson opinion approval application would result net social economic detriment community whittlesea view cumulative social economic impact approval application positive evidence likely egm expenditurethe applicant provided commission expenditure estimate prepared mr michael clyne pvs australia pty ltd pvs mr clyne independent gaming expenditure expert engaged pvs critique analyse output geotech model used estimate likely egm expenditure gaming venue geotech model retail gravity geo spatial model presented evidence accepted commission qualification numerous occasion commission accepts mr clyne qualified give expert opinion matter gaming expenditure mr clyne told commission geotech model predicted annual expenditure 20 additional egms installed hotel approximately 531 050 54 would transferred venue within municipality mr clyne view given average population growth area surrounding hotel small number gaming venue northern part whittlesea appropriate adjust geotech model output upper bound 75 confidence level 10 allow average growth gaming expenditure utilising upper bound prediction mr clyne anticipates annual expenditure 20 additional egms installed hotel approximately 844 933 mr clyne consider necessary apply adjustment geotech model predicted transfer rate 54 typically higher transfer rate could expected context mature gaming industry mr clyne told commission lower transfer rate unsurprising case given lack competing gaming venue area geotech model together mr clyne adjustment prove accurate expected expenditure within whittlesea would increase 389 565 first 12 month additional egms operational hotel witness statement mr edward victor gaucimr edward gauci director applicant extensive experience hospitality industry owned operated licensed venue since 1994 mr gauci together brother joseph gauci manages hotel financial interest corporate entity hotel freehold mr gauci brother also owner operator seachange management group seachange entity set assist management licensed venue seachange involved management many gaming venue including st albans hotel victorian tavern gisborne crown hotel lilydale venue operated collingwood football club mr gauci gave evidence brother entered long term purchase agreement hotel 2006 view completing major redevelopment venue 2010 hotel identified venue well located take advantage significant population growth developing region however delay obtaining required approval redevelopment hotel completed december 2013 hotel provides rounded entertainment offering large bistro lounge sport bar tab facility gaming room 40 egms external al fresco area according mr gauci applicant employ 75 staff venue vast majority live local area since reopening hotel embraced local community mr gauci told commission december january holiday period hotel serving approximately 4 000 meal per week hotel average approximately 2 000 meal per week mr gauci considers extremely strong performing venue mr gauci told commission development hotel would take place application successful development undertaken two stage designed provide venue additional capacity cater current level patron projected growth mernda doreen area stage 1 estimated cost 1 500 000 include construction two new courtyard b extension storage capacity hotel freezer kitchen cool room keg facility c reconfiguration kitchen increase capacity 90 meal per half hour installation pizza oven e weatherproofing gaming area courtyard stage 2 estimated cost 1 200 000 include installation lift staircase b redevelopment hotel first floor ensure function area meet council standard compliant disability use requirement c addition roof deck beer garden mr gauci estimated stage 1 work would completed within 12 month introduction additional gaming machine stage 2 work would completed within 18 month completion stage 1 work mr gauci told commission stage 1 2 work dependent approval application applicant would able secure additional credit projected increase gaming revenue term community contribution mr gauci acknowledged applicant previously committed providing 75 000 per annum community sporting group part premise approval application 2011 11 mr gauci told commission since reopening hotel applicant provided promised 75 000 intended reach amount within next month application approved mr gauci told commission applicant would increase community contribution 20 000 total 95 000 per annum mr gauci confirmed applicant would accept condition approval application securing total amount promised community contribution 95 000 per annum life egm entitlement mr gauci told commission always intended venue would operate 60 egms provide balance venue given scale scope hotel accommodate projected population growth area mr gauci opinion popularity usage gaming facility hotel since reopening shown demand increase gaming capacity venue mr gauci reiterated commission staff applicant member gauci group company gauci group take responsible service gaming obligation seriously mr gauci told commission gauci group commitment responsible service gaming evidenced engagement leigh barrett associate oversee regulatory compliance hotel witness statement mr leigh james barrettmr leigh barrett gave evidence commission concerning hotel regulatory compliance responsible gambling practice mr barrett director consultancy business specialising provision regulatory compliance service staff training victorian gaming venue expertise responsible gaming practice procedure mr barrett told commission march 2013 engaged applicant provide range responsible gambling support service hotel gaming venue managed seachange service provided mr barrett include reviewing enhancing responsible service gaming customer care policy procedure venue b staff professional development training session conjunction gambler help gaming wagering staff c regular audit gaming venue compliance regulatory responsible gaming code conduct obligation providing ongoing support developing implementing responsible service gaming initiative mr barrett view location gaming room hotel appropriate conducive opportunistic convenience gambling mr barrett told commission hotel gaming room could accessed directly rear car park via small unsupervised foyer narrow passage hotel sport bar could accessed directly bistro lounge area mr barrett acknowledged entrance gaming room rear car park direct line sight gaming cashier booth mr barrett told commission cctv camera positioned monitor entry foyer would adequately mitigate risk minor entering gaming room mr barrett told commission concern increase number gaming machine hotel applicant ensures least two staff member present gaming floor time gaming room monitored cctv camera viewable cashier booth gaming room well spaced accommodate additional 20 egms without breaching regulatory requirement witness statement m lynette anne knightthe applicant called m lynette knight give evidence responsible service gaming practice applicant m knight employed seachange gaming compliance manager responsible overseeing gaming operation venue managed operated seachange m knight day day responsibility include maintenance financial record reconciliation b overseeing responsible service gambling alcohol training ensuring compliance venue c regular compliance audit venue m knight told commission work closely leigh barrett gambler help western role m knight acknowledged hotel western region told commission strong relationship gambler help western work venue managed seachange western region m knight told commission gambler help northern attends venue monthly basis conduct staff training session quarterly basis m knight familiar relationship gambler help northern venue support worker told commission gaming manager hotel relationship m knight confirmed gaming staff employed hotel required hold current gaming industry employee licence hotel requirement least two staff member monitor gaming room floor time term cctv coverage m knight confirmed entrance gaming room monitored camera able viewed cashier booth m knight confident presence staff member gaming room floor together cctv coverage entrance gaming room ensure minor able enter hotel gaming room m knight concluded telling commission believe major change would need made hotel additional 20 egms installed gaming room m knight confident responsible service gaming practice procedure implemented hotel mitigate risk problem gambling taking place venue council submissionin opposition application council filed social impact assessment report prepared planet group proprietary limited planet group mr glenn mennermr glenn menner director planet group author social impact assessment report filed council mr menner social planner approximately 15 year experience working local government authoritiesmr menner broadly agreed finding m peterson respect social economic standing whittlesea area surrounding hotel however mr menner analysis differed m peterson following matter mernda doreen area seen significant growth population health welfare service area shared similar growth mr menner knowledge health welfare service immediate mernda doreen area assist minimising impact problem gambling lack social infrastructure make mernda doreen community vulnerable community well established support service despite robust social economic indicator b respect housing stress mr menner agreed higher disposable income may able take voluntary housing stress however person immune factor change interest rate may compound impact housing stress c lack public infrastructure lead vulnerability community example mr menner argued mernda doreen area high level car dependency access service childcare health community facility mean resident mernda doreen vulnerable cost associated car use including fuel servicing high level car dependency significant factor term vulnerability coupled high level housing stress factor may normally present advantaged risk becoming vulnerable short space time mr menner drew commission attention current lack competing entertainment food beverage facility mernda doreen area effect wish go eat local area able venue gaming machine e mr menner surveyed eight health welfare agency impact increase egms would resident whittlesea five agency responded mr menner survey indicated believed increase gaming machine hotel would negative impact wellbeing client accessing service particular whittlesea community connection agency noted likely number client presenting service gambling issue underrepresented client often seek assistance crisis e risk homelessness disconnection utility disclose result gambling loss mernda doreen social physical isolation due lack social physical infrastructure increase risk gambling problem f mr menner conduct community attitude survey assessment application referred survey conducted council 2008 gauge community attitude towards gaming survey showed 70 respondent opposed gaming majority strongly opposed fewer 10 favour gaming mr menner view community attitude towards gaming unlikely shifted dramatically result 2008 survey g mr menner told commission hotel located close proximity proposed mernda town centre development include addition supermarket several retail land us mr menner argued completed mernda town centre increase pedestrian traffic risk convenience gambling occurring hotel turn may result problem gambling occurring venue conducted assessment mr menner view proposal additional 20 egms hotel net social economic detriment wellbeing municipal district live mernda doreen area mr menner told commission catchment area hotel present little social economic disadvantage vulnerability indicator housing stress unemployment concerning cannot ignored whittlesea interagency taskforce gambling submissionin addition written submission opposition application witog sought leave make oral submission hearing application commission granted leave witog make oral submission basis submission limited matter addressed written submission mr andrew max lee chief executive officer hume whittlesea primary care partnership witog member appeared witog behalf make oral submission written oral submission witog summarised follows witog collection eight major community welfare agency operating across whittlesea share concern regarding impact egm gaming within municipality witog purpose reduce harm arising gambling whittlesea b witog opposes application basis additional 20 egms would result significant net detriment mernda doreen community c witog note mernda doreen area present disadvantaged seifa basis area still experience high level housing stress unemployment family violence additionally poor access transport social service lack leisure recreation activity alternative hotel witog submitted since opening hotel increase number people seeking support service mernda doreen area example period january june 2014 17 person mernda doreen presented whittlesea community connection agency family violence concern figure almost double recorded 9 person previous six month period hotel closed witog argued problem gambling associated financial stressor catalyst family violence e witog submitted evidence suggest small portion problem gambler seek access support service self exclude gaming venue suggests problem gambling impacting many people much greater concern may apparent statistic concerning seek support service problem gambling f witog opinion expenditure estimate provided mr clyne vastly understated given growth area current high level egm usage hotel reason suggest additional egms venue would perform worse machine currently installed hotel witog suggested appropriate forecasting methodology would adopt hotel current per machine performance apply additional machine methodology suggests additional machine achieve expenditure 2 371 304 considerably greater mr clyne forecast g witog considers additional 20 000 community contribution proposed applicant insignificant compared revenue likely generated additional egms installed hotel h witog acknowledged hotel popular venue provides social benefit community renovation work proposed applicant enhance venue positive benefit community however witog opinion benefit sufficient outweigh social economic harm caused increase egms hotel likely economic impact approvalthere often large degree overlap economic social impact application operate egms commission considers useful purpose balancing community benefit detriment thorough analysis identification economic social impact community undertaken following recent comment victorian civil administrative tribunal 12 commission note regardless analytic tool employed large element judgement necessary forecasting obviously model incorporate many real life variable influence expenditure trend given average growth mernda doreen area popularity hotel commission considers likely performance additional 20 egms hotel exceed output provided geotech model commission satisfied mr clyne adjustment output model appropriate allow factor taken account geotech model accordingly commission considers mr clyne estimate increase expenditure 844 933 unreasonable term transferred expenditure commission note never possible quantify absolute certainty exact amount revenue drawn venue indeed even event possible identify transfer rate confidence given lack competing gaming venue close proximity hotel significant population growth mernda doreen area commission would except lower rate transferred expenditure compared gaming venue settled competitive market regard commission considers transfer rate predicted geotech model 54 unreasonable commission considers marginal economic benefit associated application increase gaming expenditure within municipality commission considers gaming expenditure excepting associated problem gambling legitimate consumption expenditure undertaken majority user enjoying lawful recreational activity commission note productivity commission considers associated consumer surplus largest source benefit gaming 13 commission considers two stage renovation work proposed applicant economic benefit totality work estimated cost 2 7 million seen significant investment likely local business mernda doreen area benefit ancillary expenditure associated renovation work venue also seen economic benefit commission considers increase employment venue slight economic benefit traditionally employment impact viewed largely transfer e g productivity commission case rapidly growing area new job offer benefit accordingly commission considers positive economic impact community application approved likely social impact approvalit appropriate acknowledge gaming expenditure derived problem gaming economic social cost effect problem gambling isolated individual problem gambling place strain family friend community support service concern raised council witog valid concern however commission presented reliable evidence show problem gambling occurring hotel likely occur increase application approved commission never completely discount possibility problem gambling occurring venue commission satisfied applicant appropriate policy procedure place mitigate risk problem gambling commission satisfied area venue situated present disadvantaged commission note average level housing stress unemployment exist mernda doreen area satisfied factor present unacceptable level vulnerability areathe commission concerned level family violence apparent mernda doreen area however material presented commission possible conclude existence gaming venue area causative factor commission acknowledges evidence whittlesea community connection agency respect increase seeking support service since hotel opened however given considerable population growth area commission cannot discount possibility increase attributable population growth rather existence hotel commission place weight lack health wellbeing community service mernda doreen area commission agrees council difficulty accessing local support service potential compound impact problem gambling commission acknowledges lack support service immediate area heightens vulnerability local resident reason previously articulated commission consider risk increase problem gambling arising approval application great commission satisfied improvement hotel planned applicant provide social benefit hotel currently function facility addition function facility enhance venue entertainment offering also provide space use rapidly expanding local community sporting group commission considers improvement disability access also benefit commission considers increase community contribution 20 000 small social benefit considering social benefit proposal balanced detriment commission considers balance likely social impact proposal neutral conditionsthe applicant provided commission set proposed condition commission minded grant application commission considered proposed condition case determined adopt condition save drafting amendment change required timing proposed renovation work commission view key benefit application two stage renovation work venue benefit realised priority accordingly commission determined reduce time period proposed applicant completion stage work six month commission note condition provide extension time unanticipated factor delay completion work accordingly commission approval application subject following condition works1 1 thestage 1 work defined substantially completed 30 june 2016 later date agreed writing commission approval lapse commission may upon request owner operator premise agree extend time substantial completion stage 1 work request extension time must include explanation stage 1 work substantially completed 30 june 2016 stage 1 worksmeans construction two new courtyard one adjacent sport bar one adjacent gaming room ii extension freezer kitchen cool room keg room hotel increase storage capacity iii reconfiguration kitchen increase cover capacity 90 cover every half hour includes installation double pas additional dishwashing capability additional combi oven ancillary back house alteration iv installation pizza oven enable hotel offer wood fired pizza popular patron cooked quickly v work weather proof gaming area courtyard 1 2 thestage 2 work defined substantially completed by31 december 2017or later date agreed writing commission approval lapse commission may upon request owner operator premise agree extend time substantial completion stage 2 work request extension time must include explanation stage 2 work substantially completed by31 december 2017 stage 2 worksmeans installation lift staircase ii redevelopment hotel first floor ensure function area meet council standard compliant disability use requirement iii addition roof deck beer garden 2 community contributions2 1 venue operator make annual cash contribution 20 000 per annum increased annually reference increase cpi group melbourne commencement operation twenty 20 additional electronic gaming machine egms hotel thecontribution 2 2 contribution allocated year profit community group sporting organisation providing service facility resident shire whittlesea 2 3 distribution contribution accordance condition 2 2 determined committee thecommittee established venue operator comprising two representative venue operator b one representative council event council unwilling provide representative community representative nominated venue operator 2 4 committee advertise annually newspaper circulating shire whittlesea area submission contribution profit community sporting organisation providing service facility resident within shire whittlesea committee ass submission accordance guideline established committee 2 5 addition payment contribution referred clause 2 1 venue operator must continue pay cash contribution sporting community group shire whittlesea le 75 000 per annum existing contribution 15 august 2022 existing contribution increased annually reference increase cpi group melbourne venue operator sell transfer hotel business third party commencement operation 20 additional egms hotel venue operator shall part sale transfer require purchaser transferee assume responsibility obligation condition conclusionthe 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 wellbeing relevant community either neutral positive 14 consideration material put forward applicant council commission concluded social economic impact proposal likely slightly positive material put commission satisfied application conflict matter set section 3 4 20 1 act commission also satisfied applicant understands continue act accordance obligation far reasonable take measure prevent problem gambling accordingly commission satisfied exercise discretion approve application subject condition set paragraph 83 preceding paragraph true copy reason decision herein miss gail owen deputy chairman mr de powell commissioner 1 see 1 1 2 act 2 ramsey hotel pty ltd v victorian commission gambling regulation 2009 vcat 2275 247 249 3 commission note approval modify gaming machine area subject subsequent approval process 4 witog partnership health community agency including hume whittlesea primary care partnership salvation army kildonan uniting care 5 statistical local area sla australian standard geographical classification defined area consists one sa1s slas local government area part thereof incorporated body local government slas defined cover unincorporated area slas cover aggregate whole australia without gap overlap 6 socio economic index area seifa product developed australian bureau statistic ab rank area australia according relative socio economic advantage disadvantage ab selects indicator education employment income family housing combine provide index score area rank area australia enable comparison made 7 2003 victorian longitudinal community attitude survey found majority metropolitan venue gaming patron sourced area within 2 5km venue 8 statistical level area 1 unit measure developed ab designed indicate smallest unit release 2011 census data statistical level area 1 unit indicative area population 200 800 person 9 pursuant section 3 4a 5 3a b gambling regulation act 2003 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 10 process whereby output model increased give statistical probability accuracy 75 model adjusted give prediction 75 likely exceed actual performance gaming machine 11 vcgr consider necessary impose condition 2011 premise approval securing 75 000 community contribution 12 particular decision mount dandenong tourist hotel pty ltd v greater shepparton cc 2012 vcat 1899and francis hotel pty ltd v melbourne 2012 vcat 1896 13 australian government productivity commission productivity commission inquiry report gambling volume 1 50 26 february 2010 14 romsey 2008 vsca 45 2008 19 vr 422 4 |
Leeder v John Holland Group Pty Ltd [2015] FWC 3118 (11 May 2015).txt | leeder v john holland group pty ltd 2015 fwc 3118 11 may 2015 2015 fwc 3118fair work commissiondecisionfair work act 2009s 394 unfair dismissaltroy leedervjohn holland group pty ltd u2014 15333 commissioner williamsperth 11 may 2015termination employment 1 matter concern application made mr troy leeder mr leeder applicant pursuant tosection 394of thefair work act 2009 act unfair dismissal remedy respondent identified application john holland group pty ltd respondent background 2 applicant commenced employment respondent 2011 health safety environment advisor 2013 transferred perth child hospital project project 3 3 november 2014 applicant dismissed result conduct relation investigation reporting incident occurred 14 october 2014 4 respondent complaint specific information provided applicant investigation worker site time included report incident action respondent say downgraded severity incident created inaccurate record incident misrepresented incident management meant incomplete investigation conducted lead incident reported authority 5 hearing matter applicant gave evidence manager mr darren goergenyi mr goergenyi time respondent health safety environment manager project fact 6 satisfied disputed applicant fully aware experienced respondent health safety environment policy procedure 7 14 october 2014 safety incident occurred involved dropped object approximately two kilogram weight object piece unistrut dropped contractor employee fell safety railing level five basement one tower constructed project unistrut fell riser vertical service void within tower 8 alerted incident mr goergenyi instructed applicant investigate incident 9 accept evidence mr goergenyi specifically instructed applicant determine person may working area time person may risk dropped object 10 applicant consequently shortly thereafter attended site incident applicant spoke mr barnes mr mitchell working area quite animated informed working level two three respectively applicant evidence accept one told hand time unistrut falling might struck applicant specifically asked hand time fell employee replied consequently applicant evidence accept point formed opinion employee direct line fire falling unistrut 11 applicant proceeded level five identified person dropped unistrut spoke 12 applicant recorded contact detail three employee 13 point mr goergenyi joined applicant site relayed information gathered 14 witness consistent mr goergenyi asked applicant working riser time event applicant told two plumbing employee level three 15 accept evidence mr goergenyi asked either employee line fire time event applicant advised one working near edge riser time event 16 next together viewed site level five unistrut fell went downstairs basement view area landed 17 witness consistent arrived basement basement door closed padlocked shut personnel working area sign 18 accept evidence mr goergenyi asked applicant anyone working basement time incident applicant said anybody working basement time 19 applicant completed report incident john holland event tracker jhet witness agree applicant jhet report consistent applicant told mr goergenyi consequently incident graded lowest grade prescribed indicates worker risk injury consequently need investigation incident 20 following day 15 october 2014 mr goergenyi amended jhet report believe accurately reflected fact incident told applicant included detail thought relevant omitted 21 applicant original report relevantly stated one injured working basement time incident locked 22 mr goergenyi amended report stated personnel working level 3 however working underneath overhead platform andnot vicinity dropped objectat time event access basement level also locked underlining added 23 response amendment applicant emailed mr goergenyi referred statement working level 3 however working underneath overhead platform vicinity dropped object time event access basement level also locked said put someone working therefore vicinity underlining added 24 three minute later mr goergenyi replied applicant email follows time event someone however platform put one truth one would going process one mean procedure worked 25 apparent mr goergenyi misunderstood point applicant making applicant objecting amendment jhet mr goergenyi include word indicated worker vicinity dropped object applicant pointing someone indeed working therefore vicinity 1the applicant put report statement worker vicinity mr goergenyi phrased 26 unfortunately mr goergenyi seems noticed break sentence applicant wrote word word someone 27 different syntax word applicant trying communicate put someone working therefore vicinity 28 mr goergenyi incorrectly interpreted applicant email suggesting applicant wanted jhet report say one someone whilst mr goergenyi interpretation understandable applicant saying 29 event two day later 17 october 2014 supervisor spoke mr goergenyi told employee one plumbing contractor unhappy incident description event read employee morning pre start meeting day 30 mr goergenyi shortly thereafter spoke mr barnes mr mitchell employee working level three riser applicant spoken shortly incident 31 accept evidence mr goergenyi employee told annoyed jhet report omitted information given applicant time employee told one direct line fall unistrut narrowly avoided injured time incident worker basement employee told mr goergenyi information relayed applicant spoke day incident 32 mr goergenyi obtained written statement employee 33 written statement provided commission however neither mr barnes mr mitchell called witness accepted written statement evidence little weight given given made oath witness subject cross examination evidence 34 statement mr mitchell say arm outside scaffold tightening bolt ratchet heard bang second bang pulled arm quickly piece unistrut went straight past missed inch split second hitting also mention apprentice time 35 say another two worker chris contracting level two another two worker axis contracting axis basement 36 mr mitchell statement say told applicant gone basement seen unistrut two worker axis 37 mr barnes statement similarly say told applicant people basement mr mitchell explained close object come hitting 38 new information mr goergenyi received mr mitchell mr barnes determined employee working basement time incident employee working one level building directly line fire narrowly missed injured also formed view information known applicant time applicant investigation communicated omitted original jhet report applicant 39 applicant required attend meeting 21 october 2014 respondent hr ir manager mr goergenyi explain allegation surrounding conduct investigating reporting incident letter detailing given proposing another meeting next day 40 meeting proposed 22 october 2014 occur 27 october 2014 applicant denied wrongdoing applicant provided written response respondent allegation 41 applicant response stated recollection advised two worker day incident worker basement object falling 42 28 october 2014 applicant provided letter give opportunity demonstrate dismissed employment detailing respondent proposed terminate 43 following meeting 30 october 2014 based information known respondent decision terminate applicant employment made conveyed writing 3 november 2014 providing four week wage lieu notice 44 applicant giving evidence hearing presented honest forthright witness cross examination applicant denied mr mitchell told unistrut almost hit also denied mr mitchell told heard object clattering riser withdrew head void arm still outstretched unistrut missed inch applicant also denied mr mitchell mr barnes mentioned time employee basement time unistrut fell evidence issue directly contradicts written statement mr mitchell mr barnes given mr goergenyi 45 reason disbelieve evidence applicant gave oath accept evidence issue consideration 46 respondent submits fact disclose applicant investigation advised two worker people working basement riser time safety incident also one worker interviewed direct line fire falling object moved way struck respondent submits applicant failed capture fact report incident conduct respondent submits valid reason dismissal 47 fact day incident applicant made report incident mr goergenyi advised two worker provided written statement told applicant time investigated incident one nearly struck falling unistrut worker basement riser time unistrut fell fact included applicant report respondent information decided hearing applicant believe applicant denial employee told important fact time investigated incident 48 commission role legislation decide whether respondent belief held time dismissal evidence knew reasonable 49 rather full bench decision commission long held matter commission determine whether particular conduct occurred based evidence presented party hearing matter recently reinforced case ofmr darrin grant v bhp coal pty ltd2where full bench explained 161 commissioner obliged reach conclusion nature appellant conduct irrespective subjective view either appellant respondent employee dismissed conduct tribunal must determine whether alleged conduct occurred see king v freshmore victoria pty ltd edward v giudice question whether alleged conduct took place involved determined commission basis evidence proceeding test whether employer believed reasonable ground sufficient enquiry employee guilty conduct resulted termination reference omitted 50 difficulty consequently arise employer fact relied making decision dismiss employee cannot proven unfair dismissal remedy hearing 51 difficulty case critical fact employer relied making decision dismiss applicant proven hearing 52 case neither two worker say told applicant worker basement one nearly hit unistrut gave evidence hearing whilst accepted written statement evidence little weight given evidence given oath witness subject cross examination latter point important case direct conflict central issue worker told applicant evidence applicant statement worker applicant representative opportunity explore cross examination witness possible explanation conflict evidence challenge truthfulness statement 53 mr goergenyi present discussion two worker applicant day incident belief said applicant day based two worker told hearsay applicant person party discussion gave evidence cross examined issue evidence contradicts statement two worker found entirely believable witness obliged accept version said day incident mr mitchell mr barnes 54 consequently find time applicant investigating incident told worker spoke falling unistrut nearly hit one told time unistrut fell worker basement consequently applicant jhet accurate report incident best applicant knowledge evidence commission support criticism applicant investigation reporting incident conclusion 55 case valid reason dismissal applicant related capacity conduct 56 applicant challenged dismissal basis matter set insection 387 b h act completeness context case valid reason dismissal notwithstanding dismissal otherwise effected manner procedurally fair 57 circumstance satisfied dismissal applicant unjust unreasonable unfairly dismissed remedy 58 satisfied case reinstatement would appropriate neither applicant respondent suggests would 59 suggestion order compensation would negatively impact viability respondent enterprise 60 applicant employed le three year 61 event led dismissal occurred reasonable conclude applicant would remained employment respondent good period allowing vagary construction industry determine nine month 62 applicant paid four week lieu notice time dismissal dismissal applicant gain employment however ended almost soon started new employer became aware circumstance dismissed respondent employment terminated notice resulted receiving six week pay 63 since time applicant consciously chosen seek employment view circumstance surrounding dismissal tarnished professional standing industry consequently applicant made effort mitigate loss 64 reason applicant could pursued employment based professional experience order mitigate economic loss done choice applicant must result significant discount amount compensation awarded reduction 65 amount compensation would otherwise awarded appropriate lack mitigation effort 65 figure nine month compensation reduced 6 5 month taking account pay lieu notice received respondent also second employment amount reduced 65 leaving compensation amount 2 28 month 66 order issued requiring respondent pay applicant amount 2 28 month salary le tax within 21 day date order commissionerappearances n morrisseyof counsel behalf applicant jonesof chamber commerce industry western australia behalf respondent hearing detail 2015 perth march 30var _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 1transcript pn180 pn194 2 2014 fwcfb 3027 printed authority commonwealth government printer price code c pr567078 |
Cummins South Pacific Pty Ltd re Cummins South Pacific Pty Ltd Laverton Enterprise Agreement 2010 [2010] FWAA 5181 (13 July 2010).txt | cummins south pacific pty ltd cummins south pacific pty ltd laverton enterprise agreement 2010 2010 fwaa 5181 13 july 2010 fair work australiadecisionfair work act 2009s 185 approval enterprise agreementcummins south pacific pty ltd ag2010 1496 cummins south pacific pty ltd laverton enterprise agreement 2010manufacturing associated industriescommissioner ryanmelbourne 13 july 2010application approval cummins south pacific pty ltd laverton enterprise agreement 2010 1 application made approval enterprise agreement known thecummins south pacific pty ltd laverton enterprise agreement 2010 agreement application made pursuant tos 185of thefair work act 2009 act made cummins south pacific pty ltd agreement single enterprise agreement 2 undertaking given relation clause 3 6 8 agreement undertaking become term agreement accordance withs 191 2 act appended appendix 3 satisfied requirement ofss186 187and188as relevant application approval met 4 australian manufacturing worker union bargaining representative agreement given notice unders 183of act want agreement cover required bys 201 2 note agreement cover organisation 5 agreement approved accordance withs 54 1 operate 20 july 2010 nominal expiry date agreement 1 july 2012 commissionerprinted authority commonwealth government printer price code c ae879058 pr999256 appendix |
Naveed (Migration) [2020] AATA 941 (7 January 2020).txt | naveed migration 2020 aata 941 7 january 2020 last updated 24 april 2020naveed migration 2020 aata 941 7 january 2020 decision recorddivision migration refugee divisionapplicant mr faizan naveedcase number 1733112dibp reference bcc2017 3770347member wendy banfielddate 7 january 2020place decision sydneydecision tribunal confirms decision dismiss application statement made 07 january 2020 1 02pmcatchwordsmigration student temporary class tu visa subclass 500 student dismissal decision failure attend tribunal hearing decision review affirmedlegislationmigration act 1958 s 362b 362cstatement decision reasonsapplication reviewthis application review decision made delegate minister immigration 12 december 2017 refuse grant visa applicant student temporary class tu subclass 500 visa themigration act 1958 act 17 december 2019 tribunal dismissed application unders 362b 1a b act review applicant appear give evidence present argument time date scheduled hearing review applicant notified dismissal decision given copy written statement setting decision reason decision accordance withs 362c 5 review applicant advised reinstatement application could sought within 14 day receiving dismissal statement failure apply reinstatement within 14 day period would result confirmation dismissal decision review applicant apply reinstatement application within 14 day period tribunal must confirm decision dismiss application circumstance decision review taken affirmed decisionthe tribunal confirms decision dismiss application wendy banfieldmember |
CTA15 v Minister for Immigration and Border Protection & Anor [2016] HCATrans 217 (8 September 2016).txt | cta15 v minister immigration border protection anor 2016 hcatrans 217 8 september 2016 last updated 9 september 2016 2016 hcatrans 217in high court australiaoffice registryadelaide a27 2016b e w e e n cta15plaintiffandminister immigration border protectionfirst defendantadministrative appeal tribunalsecond defendantnettle jtranscript proceedingsfrom melbourne video link adelaideon thursday 8 september 2016 9 55 amcopyright high court australiacta15appeared person mr k tredrea may please court appear first defendant honour instructed sparke helmore shandra josiah affirmed interpreter honour thank noted plaintiff appears person aid interpreter affirmed mr plaintiff benefit reading document submission put support application anything would like add cta15 interpreter nothing add honour thank may seated interpreter thank honour mr tredrea nothing say mr tredrea honour respectfully rely outline honour thank application order show cause order nature prohibition go prevent first defendant minister taking step reliance decision administrative appeal tribunal tribunal made 10 august 2015 affirm decision minister delegate recommend plaintiff application protection visa refused order also sought nature certiorari quash tribunal decision matter remitted tribunal determination according law plaintiff citizen sri lanka tamil ethnicity arrived illegally christmas island 10 july 2012 3 april 2014 delegate refused plaintiff application protection visa plaintiff applied tribunal review delegate decision 10 august 2015 tribunal affirmed delegate decision tribunal could find substantial ground believing necessary foreseeable consequence plaintiff removed australia sri lanka would real risk would suffer significant harm term ofs 36 2a themigration act1958 |
Williams v Toyota Motor Corporation Australia Limited (Civil Claims) [2021] VCAT 1229 (19 October 2021).txt | williams v toyota motor corporation australia limited civil claim 2021 vcat 1229 19 october 2021 last updated 26 october 2021victorian civil administrative tribunalcivil claim listvcat reference c3559 2020catchwordsaustralian consumer law victoria section 271 272 claim manufacturer motor vehicle built satellite navigation systemapplicantalan williamsrespondenttoyota motor corporation australia limited acn 009 686 097where heldmelbournebeforedeputy president lulhamhearing typehearingdate hearing11 october 2021date order19 october 2021citationwilliams v toyota motor corporation australia limited civil claim 2021 vcat 1229orderthe proceeding dismissed lulhamdeputy presidentappearances applicantin personfor respondentsmr smith company officerreasons1 june 2019 mr williams bought toyota koba model could described compact suv authorised toyota dealer mr williams considers satellite navigation system vehicle fit purpose vcat small claim claim compensation around 3 000 00 1 plus reimbursement vcat filing fee manufacturer toyota motor corporation australia ltd 2 mr williams sued manufacturer dealer supplied vehicle claim rest section 271 272 theaustralian consumer law victoria section 271 1 enables affected person purchaser vehicle good whose consumer guarantee section 54 complied sue manufacturer damage section 54 1 provides person car dealer supply good consumer trade commerce guarantee good acceptable quality section 54 2 provides acceptable quality good must amongst thing fit purpose good kind commonly supplied reasonable consumer fully acquainted state condition good would regard acceptable regard matter set section 54 3 need set consider section 54 3 case 3 mr williams asserts vehicle fit purpose asserted deficiency satellite navigation system standing bring claim damage toyota 4 mr williams alleges part negotiation dealer leading decision purchase vehicle mr williams said previously used google map app mobile phone imperative car purchased would good efficient inbuilt satnav system mr williams alleges salesperson stated inbuilt satellite navigation system toyota koba similar google map person needed use input address destination inbuilt satellite navigation system pre set mr williams salesperson mention manual concerning satellite navigation system vehicle glovebox salesperson give offer training advice assistance use system evidence apparent salesperson tell mr williams meant system pre set 5 mr williams found system satisfaction almost immediately mention dealer first servicewhich around three month purchase bit ing fro ing dealer updated satellite navigation system point told mr williams done everything could problem deal toyota manufacturer mr williams relied statement dealer focused dealing toyota thereafter made toyota respondent proceeding apparent dealer tell mr williams meant system updated prepare hearing mr williams prepared well organised document several screenshots map exhibit without going unnecessary detail substance mr williams complaint satellite navigation system take mr williams incorrect annoying route proceeding destination described situation satellite navigation system directs turn left turn left twice right result course effectively done u turn worst event kind mr williams drove avalon airport satellite navigation system directed small road rear airport rather main entrance mr williams alleges ensuing delay caused wife miss flight spend money get another ticket another notable incident system directed street effectively ceased exist large bunnings outlet substantial car park built apparently decade ago swallowing government road hearing mr williams represented gave evidence orally well drawing tribunal attention various document toyota represented technical operation manager mr smith also gave evidence orally relied document significantly mr williams complaint satellite navigation system work example turning device screen remains blank instead complaint quality navigational route system present follows satellite navigation system alleged broken would case car cd player 2 simply failed play music disc instead complaint arises software integral satellite navigation system mr smith gave technical evidence mr williams seek contradict satellite navigation system koba operate way google map koba map stored small hard drive inserted device time time hard drive need updated deal changed road condition way bit like saying periodically paper roadmap need replacedas new road suburb come contradistinction google map cloud based system us live map mobile phone access mr smith said advantage google map map never get date related disadvantage work better large metropolitan area area good mobile phone coverage le reliable region stored map koba might get date time go cover whole australia accept technical evidence mr smith mr williams conceded read owner manual relating satellite navigation system detail said realised even manual brought attention several month ago examined saw detailed booklet 70 page fine print mr williams asserting toyota hiding behind fine print rather point manual detailed average reader without obsessive interest computer would find content manual rather overwhelming mr smith gave evidence effect satellite navigation system koba worked properly specified within limitation without going excessive detail mr smith made following point stored map get date time go hence must updated hard drive data stored come mapmakers updated information provided mapmakers local government example relation suburban street closed roundabout constructed device allows user direct system recommend route emphasising three different criterion shortest distance starting point destination fastest route starting point destination alternative route mr smith put fastest route might take driver narrow street complex intersection onto freeway whereas alternative route would seek avoid complex intersection mr smith also said user input preferred destination screen display preview map looking map user could decide would prefer use different route saying mr smith obviously referring situation driver fairly familiar get near destination perhaps preferred route onto major road decide would rather use normal route part journey follow preview map exclusively mr williams countered preview map much good driver going completely different location one travelled accept mr williams evidence unsatisfactory experience koba satellite navigation system took silly route particular directed turn left eventually addadditional left turn create amounted u turn however satisfied mr williams established claim damage toyota accept mr smith submission role satellite navigation system recommend route driver end day even route recommended satellite navigation system inefficient perhaps taking mr williams kilometre would preferred found claim damage also accept mr smith submission satellite navigation system information driver use taking trip accept avalon airport well signed road driver always make error simply human nature driver solely relied map displayed satellite navigation system ignoring sign avalon airport could establish loss arriving airport late caused satellite navigation system putting matter word used australian consumer law victoria find koba acceptable quality occasionally satellite navigation system recommends route mr williams find inefficient even occasion annoying therefore necessary element non compliance consumer guarantee section 54 upon claim damage manufacturer founded present case circumstance alternative dismiss mr williams claim hearing correspondence mr williams made general point toyota delay dealing complaint experience fobbed sympathise mr williams subjectively view objectively found toyota liable mr williams perceived delay dealing complaint irrelevant finally conclusion hearing mr williams asked rhetorical question whether destined use google map whole ownership koba explained use satellite navigation system travel wife doublechecks route inputting destination google map mobile phone strictly speaking toyota forcing mr williams anything even wife habitually use google map second opinion give claim damage lulhamdeputy president 1 mr williams claim amount nature cost tribunal power award cost small claim relevant legislation small claim one 15 000 00 2 perhaps rather obsolete example |
HASELDINE v HEMMING No. SCGRG-98-927 Judgment No. S6898 [1998] SASC 6898 (8 October 1998).txt | haseldine v hemming scgrg 98 927 judgment s6898 1998 sasc 6898 8 october 1998 last updated 22 june 1999courtsupreme court south australiajudgment honourable justice blebyhearing24 08 98 catchwordsagriculture fish offence fishery offence unlawfully fishing possession abalone hindering fishery officer execution duty failing comply direction fishery officer appeal conviction prosecution case alleging joint enterprise common purpose appellant defendant whether magistrate erroneously relied rejection evidence defendant rejecting appellant explanation offence evidence proving commission act furtherance common purpose admissible respect defendant upon establishment common purpose evidence one defendant also admissible respect others upon establishment common purpose onus proof whether finding guilt based assessment credibility alone whether case answer whether evidence sufficient support finding guilt material consideredfisheries act 1982 ss28 4 28 4 b 34 1 41 44 fishery regulation 1984 schedule 1 regulation 5 referred r v bilick starke 1984 36 sasr 321 tripodi v queen 1961 hca 22 1961 104 clr 1 petty v queen 1991 173 clr 95 selig v hayes 1989 sasc 1855 1989 52 sasr 169 question law reserved 2 1993 sasc 4152 1993 61 sasr 1 considered representationappellant alan roy haseldine counsel mr e shaw qc solicitor mcgee associatesrespondent brian edward hemming counsel mr g hinton solicitor crown solicitor south australiascgrg 98 927judgment s68988 october 1998on appeal magistrate court mr iuliano sm magistrate appeal criminal haseldine v hemming 1998 sasc 6898magistrates appealbleby jthe appellant together three others messrs pav mullan dela roza jointly charged following offence namely 1 21stday june 1996 near thistle island water south australia purpose trade business engaged fishing activity class constituted fishery without holding licence respect fishery acting agent person holding licence respect fishery contrary s34 1 thefisheries act 1982 2 21stday june 1996 near thistle island water said state possession purpose sale fish taken contravention thefisheries act 1982 namely 537 abalone haliotis spp contrary s44 2 thefisheries act 1982 3 21stday june 1996 near thistle island water said state engaged fishing activity prescribed class namely activity described paragraph 69 schedule 1 fishery general regulation 1984 contrary s41 thefisheries act 1982 regulation 5 said regulation 4 21stday june 1996 near west point water said state defendant hindered fishery officer execution duty contrary s28 4 b thefisheries act 1982 appellant charged breach s28 4 thefisheries actin 21stof june 1996 near thistle island failed comply direction fishery officer defendant pleaded guilty charge four defendant convicted magistrate count 1 4 appellant convicted fifth count appellant appeal conviction five count fishing activity referred count 1 taking abalone circumstance describe police diver recovered 537 abalone shell seabed mitlers cove thistle island 508 green lip abalone 29 black lip abalone shell expert evidence led prosecution showed estimated weight meat shell measured 54 2 kilogram green lip abalone meat 1 8 kilogram black lip abalone meat combined wholesale value meat time estimated 4 774 20 prosecution sought infer fishing activity count 1 purpose trade business dispute taking abalone area concerned constituted fishing activity class constituted fishery also dispute none defendant licence respect fishery relation count 2 evidentiary aid provided s44 thefisheries actto effect proved person 25 abalone possession control presumed absence proof contrary person abalone possession control purpose sale purpose count 3 necessary establish fishing activity taking five abalone per person also dispute appellant material time registered owner boat subject investigation fishery officer police day question equipped diving gear appropriate taking abalone general fishing material time defendant together aboard appellant boat diving mitlers cove thistle island apart seven abalone appellant boat reached port lincoln late afternoon 21stjune 1996 defendant maintained taken use direct evidence defendant actually possession 537 abalone shell meat extracted case defendant count 1 2 3 essentially circumstantial result aerial observation appellant boat fishery officer donovan webb dispatched thistle island make closer observation break boat changed position consequence also change position boat observation various vantage point thistle island 2 40pm 4 43pm day observation recorded video recorder gave evidence observation binoculars sunny day visibility good first observed appellant boat anchored nose point one end mitlers cover 800 metre boat boat moved slowly towards island mitlers cove officer took vantage point 400 metre boat observed four people boat various time person person board throwing abalone shell side boat heard noise emanating boat consistent action involved shucking abalone term used describe extracting valuable meat shell also observed green catch bag hanging side boat furthest time time retrieved replaced water appeared contain something consistent abalone meat consistency observed reference shape bag colour content said inconsistent irregular shape would caused bag containing abalone shell observed activity continue one hour one location boat moved another 200 metre close buoy diving activity two men took place next thirty minute meantime fishery officer lehman jennings commandeered white devil cat boat local fisherman travelling port lincoln towards thistle island voice contact donovan webb guided position appellant boat boat came observation lehman jennings point 800 metre distant rounded nose point headed mitlers cove appellant one diver surfaced followed diver boat containing lehman jennings approached appeared much activity appellant boat main engine boat started proceeded anchor even retrieved whilst hooker line air hose attached air compressor used diving purpose still trailing water four fishery officer estimated devil cat came within three metre appellant boat moved defendant evidence claimed came closer 10 15 metre magistrate seems preferred evidence fishery officer appeared consistent video film taken thistle island jennings evidence whilst standing port side boat adjacent windscreen three metre starboard side appellant boat called defendant heave stop engine also called fishery officer held identification badge wallet approximately 4 inch 3 inch containing silver metal badge depicting state emblem word fishery officer lehman said bow devil cat also yelled defendant stop time appellant moved helm vessel started engine claimed side view appellant looked ignored intention board appellant boat proved impossible floating hooker hose unpredictability movement appellant boat appellant boat headed northerly direction high speed boat containing fishery officer pursuit went known reef fishery boat interest safety went round thereby initially losing ground however eventually caught said fishery officer trailing appellant boat 30 metre evidence activity board item thrown overboard appellant boat headed general northerly direction towards port lincoln still trailing hooker hose two kilometre vicinity black rock north thistle island vessel u turn travelled south consistently high speed travelling general south westerly direction passed hopkins island cape catastrophe starboard proceeded williams island mainland past williams island large dark blue cylindrically shaped item form tied garbage bag secured end seen lifted dela roza mullan rolled starboard side boat fishery officer drew point object entered water sunk water point approximately 44 metre deep officer facility marking point buoy global positioning facility board water significantly deeper boat previously travelled retrieval anything ocean floor depth would required substantially equipment including decompression chamber personnel readily available port lincoln bag dropped overboard appellant boat another u turn headed north easterly northerly direction along coast towards port lincoln jennings evidence boat stopped near cape catastrophe appellant told proceed port lincoln instruction acknowledged boat continued north towards port lincoln travelling taylor island mainland proceeded towards remote landing known taylor landing point 30 metre shore pav seen leave boat swim ashore appellant boat proceeded port lincoln remaining three board arrested pav arrested police taylor landing meantime officer jennings lehman remained thistle island overnight vicinity mitlers cove police diving team arrived next morning boat vicinity overnight 22ndjune 1996 fishery officer police diver returned mitlers cove investigated underwater point appellant boat seen previous day point abalone shell seen thrown overboard 537 shell recovered still containing fragment meat evidence given shucking abalone viscera normally remain attached shell expert evidence indicated shell condition returned sea would normally eaten clean within four five hour maybe ten twenty per cent intact 24 hour another day nothing would left cleaning shell attributed particular stingray fish seen vicinity shell police diver whilst recovering shell blue bag thrown overboard appellant boat williams island never recovered depth water record interview taken evening 21 june fishery officer pav read statement claimed left port lincoln morning done diving fishing thistle island whilst retrieved anchor taken five abalone appellant diver pav could see appellant surfaced time fishery officer approached trying untangle hooker line propeller shaft said hear command fishery officer hood hooker engine running boat engine running thought someone coming challenge anchor devil cat carried fishery department identification claimed anchor recovered six foot chain attached 15 foot rope placed blue garbag chase threw overboard although later statement claimed dela roza bagged anchor thrown nothing said statement anyone throwing shell overboard mitlers cove pav suggest recovering empty shell sorted boat one needed thrown back however asked volunteered information mentioned record interview dela roza acknowledged boat claimed nursing hangover flaked time saw fishery officer boat approach claimed see nothing else declined answer question record interview also recorded night mullan identified boat claimed went fun trip collect shell bottom fishing claimed merely sat deck ate ricecream smoked cigarette declined answer question asked approach fishery officer boat appellant exercised right silence declined answer question trial defendant including appellant gave evidence said left port lincoln previous day involved diving fishing activity mitlers cove 21stjune referred fact collecting abalone shell appellant wife painted outside decoration gave evidence shell supplied son defendant claimed found buoy anchor mitlers cove lifted boat mr schultz gave evidence anchor become wedged mitlers cove attached buoy intention stage returning retrieve evidence defendant seen another boat vicinity hopkins island thistle island previous day 21stjune went investigate seabed boat found number empty abalone shell recovered three bag full returned mitlers cove proceeded sort shell keeping suitable mr haseldine activity discarding rest none claimed hear fishery officer said boat approached noise vessel appellant said aware even fishery officer spoke taylor landing defendant said feared form attack presumably relation apparently stolen anchor caused hasty evacuation mitlers cove evidence pursuit anchor placed blue plastic bag containing good shell mr haseldine thrown overboard together buoy also recovered explanation given necessary place anchor plastic bag appellant evidence arranged meet friend taylor landing day pav dispatched swim ashore tell friend would landing would returning sea port lincoln evidence order properly inspect clean select appropriate shell necessary knock crustacean time time accounted banging noise boat selected shell placed catch bag side boat order clean although appellant claimed taken three bag shell near hopkins island shell recovered next day police diver filled excess eight bag evidence 5 6 dozen shell retained placed blue plastic garbage bag case prosecution relation count 1 2 3 insofar concerned fishing possession abalone purely circumstantial act hindering referred count 4 said relate sinking blue bag deep water inference sought drawn prosecution bag whatever else contained also contained substantial quantity abalone meat charge appellant count 5 related failure stop requested fishery officer mitlers cove absence abalone meat prosecution case turned circumstantial evidence based visual observation fishery officer supported video film still photograph inference drawn flight unusual course taken appellant boat dumping blue plastic bag deep water arrangement meet land based party evening remote part shoreline defendant denied involvement illegal activity contended prosecution failed produce abalone meat explanation given defendant reasonable explanation consistent innocence acquitted whilst sworn evidence defendant gave apparently consistent story collection sorting abalone shell number inconsistency detail respective story inconsistency pav record interview one hand defendant evidence number ground appeal argued appellant conveniently fall three group first place argued prosecution evidence insufficient justify conviction furthermore magistrate held case answer evidence appellant ever possession abalone identified particular possession abalone meat incapable proved required degree recovery shell following day said deficiency police investigation inadequate resource equipment attempt recover blue bag mean identifying precisely went second main ground magistrate misdirected onus proof reached conclusion guilt merely rejection defendant evidence said failed consider evidence defendant separately failed consider evidence capable proving element separate count third general ground magistrate erroneously relied rejection evidence defendant rejecting explanation appellant based part evidence said inadmissible appellant particular magistrate said relied failure pav defendant record interview mention diving abalone shell mr haseldine wrongly drawn inference evidence untrue inference argued could drawn consistent exercise right silence could drawn appellant virtue declined answer question also said magistrate erred relying demeanour defendant giving evidence conclude defendant lying particularly could inconsistency appellant part evidence given prior court statement exercised right silence deal general ground reverse order outset case prosecution presented one joint enterprise common purpose least respect count 1 4 inclusive circumstance necessary prosecution prove every individual element every charge every defendant evidence common purpose joint enterprise could inferred clearly individual act respective defendant shown fulfilment alleged common purpose matter particular element one offence proved particular defendant prosecution case one common purpose defendant presented respective case whereas common purpose alleged crown taking abalone various offence alleged count 1 4 common purpose defendant said participating recreational fishing diving recovery spent abalone shell purpose selecting suitable shell mr haseldine decorate avoidance possible violence consequent upon taken possession someone else anchor buoy said participating one way another common purpose accepted explanation raised hypothesis consistent innocence hypothesis common hypothesis accepted would required finding guilty respect four defendant one raised alternative hypothesis applicable one defendant evidence common purpose evidence individual act performed fulfilment common purpose evidence proving individual act evidence defendant way evidence one defendant way explanation primary fact explanation consistent innocence said relate evidence favour defendant could used negate proof element offence show hypothesis consistent innocence whole group relating execution common purpose evidence one admissible benefit everyone group accepted cast doubt common purpose alleged prosecution rejected different member group gave inconsistent otherwise unbelievable evidence relating alleged common purpose could rejected evidence raised hypothesis consistent innocence concerning purpose combination could used cast doubt similar explanation given another member group could used possible explanation inconsistency anomaly suggest concoction advanced consciousness guilt therefore another piece circumstantial evidence guilt member combination basis admissibility evidence act declaration one defendant absence another combination pre concert considered implying authority act speak furtherance common purpose behalf others tripodi v queen 1961 hca 22 1961 104 clr 1per dixon cj fullagar windeyer jj 7 defendant give evidence another common purpose case collect shell appellant wife dispose anchor illegally taken explanation rejected evidence given defendant inconsistent within inconsistent inference properly drawn prosecution evidence inconsistent prior court statement given one defendant open court defendant speaking behalf fulfilment alleged common purpose rely evidence one rejecting evidence another say however court may rely exercise right silence upon police interrogation order prove guilt inferring failure give explanation time give rise lack genuineness giving evidence inference would improperly drawn petty v queen 1991 173 clr 95per mason cj deane toohey mchugh jj 101 however rule apply right silence exercised explanation given include explanation advanced evidence trial explanation given said prosecution acting pursuance common purpose particularly raise evidence different common purpose explanation one becomes explanation may properly assessed earlier court statement different explanation given reason magistrate observe perusing defendant evidence reading record interview never mention collecting shell mr haseldine take passage referring appellant failure answer question take magistrate passage referring record interview three defendant asked give explanation boat 21stjune 1996 freely offered explanation pav gave full explanation said mullan dela roza offered explanation boat day exercised right silence none explanation included gathering sorting shell mr haseldine circumstance acknowledged joint enterprise evidence able used determining whether sworn evidence four defendant could accepted dealing second general ground necessary analyse little detail magistrate went task magistrate summarised prosecution evidentiary case identified evidence dispute summarised defendant evidentiary case concluded defence thus contend prosecution failed produce abalone meat coupled explanation given defendant say reasonable explanation consistent innocence defendant acquitted agree defence submission defendant prove anything prosecution prove case beyond reasonable doubt dealt incidentally perceived inadequacy equipment available fishery officer decided video tape nevertheless assistance proceeded deal detail aspect defendant evidence put forward explanation consistent innocence pointed number anomaly explanation common defendant apparent logical explanation pointed inconsistency evidence aspect prosecution evidence dealt inconsistency evidence defendant inconsistency stated activity observed fishery officer recorded video film noted failure already referred defendant mention collection shell mr haseldine record interview concluded perusal evidence observed witness defendant demeanour giving evidence satisfied beyond reasonable doubt defendant lying explanation offered recent invention explanation tendered distinct ring recent invention convincing reasonable hypothesis consistent innocence totality evidence find four defendant guilty respect matter court process thus undertaken magistrate one assessment credibility explanation offered defendant evidence explanation number valid reason magistrate found credible rejected certainly compared aspect explanation aspect circumstantial case prosecution brought inconsistency account determining whether accept reject evidence one point observed evidence observation donovan webb whilst boat mitlers cove general activity board vessel diving activity fit comfortably defendant version referred fact expert evidence relating viscera fragment meat found shell recovered 22ndjune fit much comfortably fact abalone shell shucked 21stof june 1996 suggestion defendant shell left near hopkins island another abalone fisherman previous day namely 20thjune 1996 argued similar observation constituted misdirection reaching conclusion guilt virtue solely rejection defendant evidence argued magistrate fallen error treating credibility real issue warning sounded number judge court exemplified passage judgment jacob j inselig v hayes 1989 sasc 1855 1989 52 sasr 169at 171 172 slightest doubt fact appellant lied police first approached profound influence learned special magistrate decision risk error treating credibility real issue aptly stated von doussa j inharris v mill unreported supreme court sa von doussa j 7 april 1988 passage gratefully adopt sense key issue many trial credibility pose question believe apt misleading cause tribunal criminal trial fall error kind exposed inr v calides 1983 34 sasr 355 real risk inquiry become party giving competing story preferred preference victim evidence defendant even defendant evidence consequence rejected leaf unanswered essential question whether tribunal satisfied every element charge proved beyond reasonable doubt generally speaking rejection defendant evidence provide positive proof guilt preference victim evidence lead inevitably conclusion evidence accepted proof beyond reasonable doubt even finding victim truthful witness mean victim evidence necessarily reliable victim might patently honest yet mistaken faulty memory unreliable respect leave open reasonable doubt defendant guilt certain passage magistrate reason decision taken alone might give impression engaged forbidden process however viewing judgment whole overall structure appears magistrate correctly directed initially task one explanation consistent innocence relied defendant besides analysing evidence magistrate gave number reason rejecting fabrication conclusion entitled reach important point however course examining question properly posed namely whether hypothesis consistent innocence rejected explanation given magistrate left inference drawn prosecution evidence upon consideration found defendant guilty offence beyond reasonable doubt specifically make finding prosecution evidence left room hypothesis consistent innocence clearest implication drawn observation made prosecution evidence framework set way initial direction conclusion guilt based totality evidence accepted interpret meaning combined force circumstantial case presented prosecution excluded view hypothesis consistent innocence persuaded magistrate commenced suspicion guilt part defendant converted proof beyond reasonable doubt rejection evidence may infelicity expression might criticism detailed structure magistrate reason opinion reveal fundamental flaw suggested appellant brings first general ground namely strength prosecution case sufficiency evidence justify conviction explanation defendant rejected magistrate left body circumstantial evidence led prosecution consideration abalone meat said taken never found possession defendant however combined force circumstantial case left powerful inference deliberately disposed inaccessible water order avoid detection direct evidence abalone shell disposed mitlers cove coupled fact large quantity shell recovered next day exact location still viscera attached together observation fishery officer boat location also overwhelming evidence large proportion abalone shucked spot person appellant boat many detail supported conclusion least use catch bag side boat mitlers cove said inappropriate ineffective process cleaning shell noise consistent shucking hasty one sense dangerous departure mitlers cove high speed chase somewhat erratic course disposal item boat arrangement place meet associate associate remote beach end day although magistrate expressly say upon rejection similar account given defendant entitled infer collusion telling lie consciousness guilt lie possible explanation consistent innocence fact formed part circumstantial case defendant drawing inference favourable prosecution reasonably open close case evidence capable satisfying reasonable person beyond reasonable doubt defendant possession abalone meat subject charge committed various element offence seer v bilick starke 1984 36 sasr 321per king cj 337 question law reserved 2 1993 1993 sasc 4152 1993 61 sasr 1per king cj 4 5 opinion plainly case answer rejected defendant evidence also justification magistrate find defendant guilty beyond reasonable doubt combined force circumstance inescapable inference abalone meat thrown overboard meat previously come shell recovered police diver taken evidence dispute finding beyond reasonable doubt opinion inevitable found case defendant count 1 2 3 proved beyond reasonable doubt inference must naturally follow rejection defendant explanation disposing abalone meat way defendant hindered fishery officer execution duty properly found guilty count 4 also follows magistrate found although noise two boat engine possibly one compressor instruction given appellant stop appellant looked straight haseldine started boat engine moved anchor fully retracted whilst hooker hose still trailing behind boat hasty getaway mitlers cove magistrate satisfied haseldine knew boat included fishery officer wanted come aboard action wanted avoid whilst incriminating evidence boat opinion also justification finding appellant guilty count 5 follows appeal conviction must dismissed hear counsel ancillary order made |
VMQD and Commissioner of Taxation (Taxation) [2018] AATA 3147 (29 August 2018).txt | vmqd commissioner taxation taxation 2018 aata 3147 29 august 2018 last updated 31 august 2018vmqd commissioner taxation taxation 2018 aata 3147 29 august 2018 division taxation commercial divisionfile number 2016 5637 2016 5638re vmqdapplicantandcommissioner taxationrespondentdecisiontribunal mr p w taylor sc senior memberdate 29 august 2018place sydneyi opinion see paragraphs29 30and63of accompanying reason following class document may relevant review 19 august 2016 objection decision tribunal accordingly require commissioner lodge tribunal within 28 day prescribed number copy class document commissioner possession control class document correspondence including attachment produced document relating australian taxation office 2003 review unwinding termination matrix fleet leasing transaction ato fsa oklahoma inc representative assignee holding company entity sgd mr p w taylor sc senior membercatchwordspractice procedure lodging document tribunal application order respondent lodge additional document claim document may relevant decision review possession respondent lodged section 37of theadministrative appeal tribunal act 1975as modified bys 14zzfof thetaxation administration act 1953 respondent obliged produce document considered necessary review respondent lodge documentslegislationadministrative appeal tribunal act 1975 cth s 2a 37administrative appeal tribunal amendment act 2005no 38 2005 cth income tax assessment act 1936 cth income tax assessment act 1997 cth property law act 1969 wa 11taxation administration act 1953 cth s 14zg 14zzf 14zzktaxation law amendment 3 act 1991no 216 1991 cth casesacn 154 520 199 pty ltd v commissioner taxation 2018 aata 33binetter v federal commissioner taxation 2016 fcafc 163 2016 249 fcr 534federal commissioner taxation v dalco 1990 168 clr 614hutchinson v glover 1875 1 qbd 138ibm australia pty ltd v state queensland 2015 qsc 342kennedy v administrative appeal tribunal 2008 fcafc 124 2008 168 fcr 566matrix group limited liq v oates 2016 fca 1487national australia bank ltd v idoport pty ltd 2000 nswca 8rawson finance pty ltd v federal commissioner taxation 2013 fcafc 26 2013 93 atr 775re cash world gold buyer commissioner taxation 2017 aata 736re klgl qcyy australian prudential regulation authority 2008 aata 452re vlkg commissioner taxation 2011 aata 915re wertheim v department health 1984 7 ald 121saunders v federal commissioner taxation 1988 19 atr 1289streetscape project australia pty ltd subject deed company arrangement 2013 nswsc 355tpc v arnotts ltd 1989 fca 248 1989 21 fcr 306 1989 88 alr 90transport accident commission v bausch 1998 4 vr 249westina corporation pty ltd v bgc contracting pty ltd 2009 wasca 213 41 war 263zappia v commissioner taxation 2017 fcafc 185zobory v commissioner taxation 1995 fca 1226 1995 64 fcr 86secondary materialsagreement government commonwealth australia government united kingdom great britain northern ireland avoidance double taxation prevention fiscal evasion respect tax income capital gain signed 7 december 1967 at 1968 9 entered force 8 may 1968 supplementary explanatory memorandum taxation law amendment bill 3 1991 cth reason decisionmr p w taylor sc senior member29 august 2018vmqd dispute notice assessment commissioner issued december 2015 substantially upheld 19 august 2016 objection decision assessment related 2001 2002 tax year involved substantial amount primary tax shortfall penalty following table indicates ul none list style none income tax30 jun 0130 jun 02total assessable income return date 14 may 04 17 may 05 returned000 assessed6 302 64010 586 24816 888 888tax shortfall3 044 1605 227 4498 271 610penalty2 283 1204 704 7056 987 825total tax penalty 5 327 2819 932 15415 259 435in pursuing assessment dispute present review proceeding vmqd contest adequacy commissioner document production tribunal document production obligation power principlesvmqd 14 october 2016 review application triggered commissioner document production obligation tribunal complementary production order discretion theadministrative appeal tribunal act 1975 cth aat act 37 modified bys 14zzfof thetaxation administration act 1953 cth content statutory provision set schedule 1 reason presently relevant effect summarised following proposition commissioner initial production obligation limited four specific document relevant decision reason related notice commissioner considers necessary review objection decision b tribunal complementary power require commissioner make extensive production depends threshold opinion particular document within particular class document may relevant review decision tribunal c discretion may exercised requiring commissioner provide additional document ii provide list document commissioner considers relevant review objection decision notwithstanding tribunal threshold opinion possible relevance probably notwithstanding inclusion document list commissioner required provide tribunal discretion whether give notice requiring commissioner produce document commissioner considers necessary review obviously tension commissioner initial exemption ordinary obligation produce document relevant review proceeding tribunal specifically conferred discretion require production document may relevant review implicitly relying tension vmqd advanced submission emphasising proposition tribunal default position exercise review jurisdiction ensure decision maker made relevant document available submission drew observation effect number tribunal decision includingre wertheim v department health 1984 7 ald 121at 154 decision maker bring notice tribunal matter tribunal ought take account saunders v federal commissioner taxation 1988 19 atr 1289at 1296 tribunal material decision maker transport accident commission v bausch 1998 4 vr 249at 260 material considered decision maker squarely unequivocally revealed tribunal general comment made inwertheimandsaunderswere either made context review taxation objection decision made review decision fact subject ordinary operation aat act 37 ie prior introduction taa act 14zzf thetaxation law amendment 3 act 1991no 216 1991 cth comment inbauschwas made context complaint decision maker failure produce document clearly necessary effective exercise review jurisdiction furthermore various comment preceded introduction aat act 2a tribunal objective pursue objective providing mechanism review fair economical informal quick theadministrative appeal tribunal amendment act 2005no 38 2005 cth reason introduction 14zzf basic production obligation necessary document outlined explanatory memorandum 1991 amendment explanatory memorandum noted existing production obligation taa act 14zg required production every document commissioner thought relevant review memorandum continued 26 29 practice led many copy document lodged aat never referred review otherwise unnecessary accordingly part ivc principal act modifies section 37 aat act relation relevant objection decision slightly different way new reduce number document referred aat application review made without restricting aat power obtain document requires particular case effect introduction addressed inkennedy v administrative appeal tribunal 2008 fcafc 124 2008 168 fcr 566 decision inkennedywas made context review proceeding applicant sought challenge tax assessment basis bad faith disputed commissioner fraud evasion opinion foreshadowed challenge authenticity primary document commissioner relied determining amount taxation assessment applicant production application related additional document said relevant authenticity challenge fraud evasion question appears contended relevance lay explaining outlining process commissioner acquired primary document see paragraph 6 judgment contention failed principal issue review proceeding taxpayer ability establish amount assessable income accuracy commissioner assessment reasoning seefederal commissioner taxation v dalco 1990 168 clr 614at 623 ii none additional document distinct primary document relied commissioner opinion iii relevance fraud evasion opinion rested bare assertion see paragraph 9 10 17 judgment critical passage full court judgment demonstrate application failed essentially tendentious nature mr kennedy argument asserted relevance additional document appears following passage full court judgment 27 present case mr kennedy allegation assessment made bad faith made without evidentiary basis pleading substantiate claim relation specific document substance mr kennedy seeking additional document order explore whether possible foundation raising allegation present application seek cast wide net without foundation evidence purpose ascertaining basis exists challenge commissioner assessment reason request document refused see cosco holding pty ltd v federal commissioner taxation 1997 fca 1504 1997 37 atr 432 28 process reasoning forthcoming supported claim relevance additional document sought face description relevance apparent mr kennedy must show particular document category document may relevant specific issue fact relating excessiveness assessment issued shown intent 14zzf taa clearly narrow class document commissioner must produce tribunal absence demonstration relevance additional document appropriate widen class document commissioner already provided 30 final observation made relates submission mr kennedy suffer procedural unfairness commissioner required lodge additional document establish mr kennedy must first explain right fair hearing affected non production document sought tribunal exercise process disclosure contemplated 37 aat act evidence particular document class document yet produced bear issue authenticity reliability document already provided commissioner mr kennedy make specific allegation identify particular document inauthentic unreliable lacking probative value frame allegation relevance vague unsubstantiated way light deficiency basis tribunal required exercise power 37 2 aat act decision inkennedyemphasises additional production discretion conferred aat act 37 2 requires satisfaction potential relevance based rationally articulated connection document sought matter required determined review proceeding view previously expressed different context inre klgl qcyy australian prudential regulation authority 2008 aata 452at 46 theklgl qcyydecision involved matter draft decision reason prepared legal adviser applicant challenged reality involvement statutorily authorised decision maker additional production sought included communication lawyer decision maker ii document disclosing finding reason person responsible finding contained decision draft recommendation tribunal observed whilst concept relevance purpose aat act 37 1 37 2 must regarded expansive connotation opinion required exercise additional production discretion positive satisfaction sufficient relationship document class document whose production issue matter determined proceeding 2008 aata 452 17 applying approach exercise discretion tribunal made two finding present relevance first apparent inadequacy decision maker expression reason might necessarily point either likelihood additional document potential unfairness requiring disclosure 27 30 second finding whilst decision reason draft may thought analogy accepted adjectival relevance draft contract expert witness statement ordinary court proceeding unlikely satisfy may relevant criterion tribunal proceeding motif credibility decision maker essentially irrelevant tribunal function 43 45 process reasoning particular significance context taxation objection review proceeding burden provision taa act 14zzk b applies taxpayer cannot discharge onus pointing error commissioner assessment reason objection decision underlying fraud evasion opinion seebinetter v federal commissioner taxation 2016 fcafc 163 2016 249 fcr 534at 66 none finding reason binding commissioner review proceeding zappia v commissioner taxation 2017 fcafc 185at 3 significance proposition taxpayer burden explained inrawson finance pty ltd v federal commissioner taxation 2013 fcafc 26 2013 93 atr 775 111 111 review process case 14zzk b applies necessarily include tribunal reaching state satisfaction proper basis deciding fact found tribunal give rise amount liability impugned decision state satisfaction tribunal required reach review subject 14zzk b whether fact found applicant proved assessment excessive state satisfaction cannot reached application review must dismissed irrespective tribunal satisfied satisfied fact found tribunal give rise amount liability impugned decision inre vlkg commissioner taxation 2011 aata 915the taxpayer sought advance essentially similar argument vmqd broad general submission vlkg sought tribunal exercise limited additional production power contemplated taa act 14zzf b iii require provision list document commissioner considered relevant review proceeding substantial basis application necessary document commissioner required produce matter conceptual logic subset relevant document tribunal require production relevant document tribunal categorically rejected argument essentially failed satisfy aat act 37 2 requirement pointing potential relevance particular document particular class document see 2011 aata 915at 21 various consideration taken account preclude adherence taxation assessment review proceeding general proposition commissioner obliged ought required produce relevant document seekennedy v administrative appeal tribunal 2008 fcafc 124 2008 168 fcr 566at 19 21 28 inre cash world gold buyer commissioner taxation 2017 aata 736the objecting taxpayer obtained schedule document commissioner response freedom information request document evidencing review involved objection decision ii draft review related determination iii document commissioner intended rely taxpayer relied schedule contend document schedule met may relevant criterion produced contention involved proposition foi response indicated document related assessment ii fact document compulsorily obtained commissioner purpose audit bespoke relevance iii entire background commissioner audit process including internal ato communication audit assessment must relevant rejecting application senior member lazanas principally focussed two matter first potential relevance disparate category document taxable fact concept heart assessment review process second quality sufficiency suggested relevance particular document relation first matter referring tokennedyandre klgl qcyy senior member lazanas said 26 significant note 37 2 general discovery provision authorise fishing expedition word may relevant 37 2 interpreted mean whether document could reasonably expected throw light issue principal proceeding test satisfied document bear correlation subject matter evidence issue review proceeding eme production 1 pty ltd screen australia 2010 aata 839at 17 klgl 17 hand test may relevant interpreted mean relevant word tribunal must engage limited forensic exercise determine whether document may relevant issue proceeding making direction 37 2 cannot simply accept bare unsupported assertion relevance document clear following passage reason incash worldthat senior member lazanas regard either fact document required involved commissioner audit process sufficient demonstrate potential relevance precise identification nature purpose contentious additional document required greater degree precision could come apparent subject matter particular document possibility second matter senior member lazanas addressed specifically relation transcript interview particular individual explaining reason refusing require production senior member lazanas said 31 satisfied document cash world identified seeking direction relation shed light issue tribunal reservation respect transcript interview approximately dozen named person referenced schedule cash world offer explanation transcript named person may relevant including role involvement prepared speculate utility document review proceeding concept involved may relevant criterion two aspect first expression substantive relevance used involves relevance sense rational capacity affect assessment probability matter issue seeevidence act 1995 cth 55 1 second term adjectival relevance applied involves relevance sense capacity throw light matter contest hutchinson v glover 1875 1 qbd 138 streetscape project australia pty ltd subject deed company arrangement 2013 nswsc 355at 5 referring totpc v arnotts ltd 1989 fca 248 1989 21 fcr 306 1989 88 alr 90at 102 103 idea involved concept difficult articulate least contemporary forensic procedural context extend relevance sense merely leading facilitating chain enquiry seenational australia bank ltd v idoport pty ltd 2000 nswca 8 required positive satisfaction existence document class document capacity influence determination proceeding see klgl qcyyat 17 18 requirement may relevant criterion one permissive generality one capable satisfied either bare assertion relevance mere appearance relationship matter likely require consideration review process extreme obligation produce document patently necessary material review decision bare assertion possible relevance nuanced reasoned nevertheless impressionistic assessment required document production issuesthe commissioner discharged initial production obligation according subjective necessary criterion november 2016 prior vmqd asked commissioner provide document referred december 2015 august 2016 decision reason pursued request correspondence october november 2016 first sought formal production direction tribunal december 2016 february 2017 commissioner took view provided necessary document resisted production vmqd sought tribunal make additional document production direction previously foreshadowed controversy partial compromise insignificant passage time vmqd currently pursues production application relation limited number category document listed document schedule 2 reason grouped six category instance included cross reference submission document vmqd relied upon support production request document referred schedule argument reference exhibit 5a particular part argument reference document referred step reference accompanied numerical identifier used submission document contentious payment assessment historythe principal event underlying contentious assessment 2001 termination contractual arrangement involved financing western australian government car fleet proposed financing government bus fleet ii four payment government made connection termination arrangement made 1996 1999 intended operated decade termination 2001 consequence various change commercial environment including apprehended adverse impact proposed change theincome tax assessment act 1936 cth itaa36 59 2a ii abolition sale tax exemption second hand sale state government operated vehicle iii introduction good service tax contractual arrangement fleet financing complex multi party far party fleet leasing transaction concerned detail schedule 3 reason list entity involved outline respective relationship apparent schedule 3 matrix group ltd mgl table number associated entity major participant arrangement convenient shorthand refer collective arrangement simply matrix fleet leasing transaction use term matrix refer indiscriminately group associated corporate trust entity process involved termination matrix fleet leasing transaction involved negotiation payment agreement began time early 2001 appear culminated standstill release agreement september november 2001 one agreement fsa group western australian government involved 11m settlement payment fsa group 12 june 2001 termination related agreement matrix wa government appear made 17 may 12 june 2001 time november 2001 settlement resulted four contentious termination related cheque payment western australian government made matrix nominee four payment amount promptly credited singapore bank account fsai inc company vmqd one two director far presently appears fsai inc played part matrix fleet leasing transaction recipient four contentious payment material detail termination payment amount including date payee recipient indicated following table matrix group fleet leasing transaction termination payment deposit fsa international inc bank c singapore wa government paymentsye jun 2001ye jun 2002nature payment payeeamountdateamountdate payee payee payment bus 1 car 2 cheque payee2 517 98018 may 014 286 24923 aug 01 mgl fsai payment car 1 car 3 cheque payee4 250 00015 jun 016 500 00030 nov 01 mgl sk trust c total annual 6 767 98010 786 249total payment 17 554 229the 18 may 2001 payment appears intended compensate matrix cost incurred relation bus fleet component transaction payment appear made matrix either assistance provided facilitating termination arrangement part consideration november 2001 settlement 6 5m payment fact part larger amount 10 148m paid matrix settlement despite matrix apparent status payee none contentious payment included financial statement tax return 2001 2002 tax year document prepared lodged may june 2002 september 2002 however part 10 148m amount 2 726m included matrix 2002 financial statement tax return september 2001 fsai inc paid 200 000 singapore account mr tyne wife year later september 2002 fsai inc paid amount totalling 15m hong kong company sole shareholder uk corporation vmqd director thereafter fund provided entity associated company listed london stock exchange effectively lent first way medium term note credit commercial finance pty ltd company vmqd sole shareholder pegela trust payment made fsai inc bank account vmqd ii wife iii entity associated vmqd commissioner december 2015 assessment made itaa36ss 167 b and171a 1 2 former section permit commissioner make default assessment either person lodged income tax return ii commissioner satisfied return latter section permit commissioner make assessment tax year prior 2004 2005 contingently formed opinion relevant fraud evasion 8 december 2015 opinion commissioner expressed opinion opinion essentially based view vmqd never treated contentious payment matrix asset ii personally obtained benefit preponderance payment iii intentionally disclosed contentious payment 2001 2002 tax return lodged may 2004 2005 commissioner concluded intentional non disclosure involved evasion purpose itaa36s 171a 1 2 view provided threshold basis december 2015 assessment ultimately commissioner 19 august 2016 objection decision assessment objection decision considered four payment part vmqd assessable income basis constituted ordinary income purpose theincome tax assessment act 1997 cth itaa 1997 6 5 b statutory income purpose itaa 1936 26 e c statutory income dividend matrix purpose itaa 1936 44 1 essential reason commissioner characterisation contentious payment vmqd arranged directed manner destination payment b payment character fee paid vmqd either director matrix employment provision service matrix c preponderance payment amount transferred various entity bank account associated vmqd commissioner view intentional nondisclosure vmqd led conclusion relevant penalty assessment vmqd intentionally disregarded taxation law vmqd principal objection contentionsthe fsa group alienation contention vmqd 18 february 2016 notice objection claimed fsa group insurance obligation arose agreement matrix ii following wa government negotiated termination matrix fleet leasing transaction matrix fsa group entered assignment agreement asserted effect agreement fsai inc held contentious payment benefit fsa group 2001 2002 tax year contention broadly consistent substance explanation vmqd described given interview conducted itaa 1936 264 november 2013 interview vmqd asserted matrix advice matrix beneficial interest money held fsai inc 2001 2002 tax year matrix required include financial statement tax return vmqd alienation contention put somewhat differently statement originally proffered support additional production application october 2017 contention statement latter document vmqd appeared acknowledge fsa group insurance obligation arose agreement westfleet rather matrix contention document went assert fsa group dissatisfaction proposed termination fleet leasing transaction led foreshadow claim matrix western australian government state supply commission relating reliability pre transaction information given contention document go assert existence arrangement conditionally contentious termination payment deposited fsai inc bank account matrix agreed accept liability fsa group claimed loss ii negotiate fsa group behalf termination settlement term western australian government context matter raised contention document suggests arrangement made prior fsai inc 17may 2001 name change 12 june 2001 payment western australian government fsa group see schedule 3 item 2 c paragraph21above character deposit fsai inc bank account said imprecisely asserted alternative way assignment b agreement assign iii pledge iv otherwise alienation fsa group vmqd contention october 2017 contention statement various time 30 june 2002 fsa group decided abandon termination related claim matrix released fund fsai inc held singapore bank account timing asserted abandonment lead vmqd contention irrespective efficacy asserted alienation fsa group amount fact paid matrix fact available perhaps alternatively distribution matrix 2003 tax year contention advanced october 2017 contention statement sit entirely comfortably content defence vmqd filed earlier pre march 2011 proceeding involving contentious termination payment summarised matrix liquidator 12may 2014 response commissioner defence indicates contentious payment paid matrix fsai inc insurance premium ii payment made part arrangement create insurance reserve fund iii fund owned fsai inc would pledged fsa group iv matrix would entitled residual fund balance balance exceeded fsa group actual loss matrix fleet leasing transaction matter vmqd seek rely 2008 settlement agreement amongst others ato western australian government ii assessment commissioner issued matrix group ltd 2014 address matter following paragraph 2008 ato wa settlement one two matter vmqd seek rely despite raised objection notice common ground purpose present matter appropriate assume tribunal would permit vmqd rely substantive hearing seetaxation administration act 14zzk october 2017 contention statement vmqd asserts matrix fleet leasing transaction document wa government provided indemnity matrix relation taxation liability kind detailed statement vmqd asserts potential taxation indemnity obligation survived termination related agreement matrix made western australian government termination matrix fleet leasing transaction commissioner conducted review termination arrangement payment review ultimately gave rise contentious tax liability primarily western australian government entity involved transaction tax liability contention ultimately resolved commissioner western australian government january 2008 agreement commissioner agreed accept payment 14 million full final settlement effect settlement noted 9 march 2010 western australian legislative assembly hansard parliamentary description january 2008 settlement involving full final settlement tax matter relating termination matrix fleet leasing transaction said vmqd probative commissioner release income tax liability potentially arising matrix transaction contention vmqd would entitled benefit release even party settlement potential application theproperty law act 1969 wa 11 2 support contention vmqd relies passage judgment inwestina corporation pty ltd v bgc contracting pty ltd 2009 wasca 213 41 war 263at 43 2014 matrix group ltd assessment plain commissioner 19 august 2016 objection decision reason characterised contentious payment amount matrix entitled nature either director fee dividend payment matrix vmqd consistent alternative characterisation 2014 commissioner issued assessment included four payment matrix assessable income vmqd october 2017 contention document asserts matrix significant tax loss pre 2001 2002 tax year availability loss offset income represented contentious termination payment said inconsistent vmqd engaged fraud evasion connection treatment payment objection review application issuesprior april 2017 production application party lodged statement issue framed le helpfully present purpose statement ultimate matter requiring decision namely vmqd taxable income tax year ii penalty liability tax shortfall subsequently various affidavit respective statement contention party addressed various contention always consistently expressed relating disputed assessment vmqd issue contention advanced 16 february 2017 witness statement solicitor employed legal practice retained b submission dated 21 april 2017 4 may 2017 c 10 october 2017 statement contention document provides apparently comprehensive explanation commercial background origin termination matrix fleet leasing transaction argument reference document earlier referred see paragraph18above ultimately party appear settled least purpose addressing current production application identification following issue ordinary income issue raising question whether circumstance payment permit characterised payment relevantly directed vmqd b statutory income issue raising related question whether circumstance payment permit characterised payment relevantly directed vmqd c dividend issue raising question whether payment dividend purpose itaa 1997 44 statutory income issue raising question whether extent vmqd entitled purpose itaa 1997 97 share matrix unit trust 2001 2002 net income e evasion issue raising two apparently alternative question whether proper basis finding evasion vmqd given relevant direction ii adequately disclosed payment circumstance commissioner course 2003 review f 2008 settlement issue raising question whether 2008 settlement apparently ato western australian government result outstanding tax liability entity associated matrix fleet leasing transaction least liability matrix group entity vmqd g matrix group claim issue raising question matrix group ltd entitlement payment amount tax liability relation implication claim liability propriety commissioner contentious assessment vmqd h double taxation issue raising question whether vmqd uk resident tax year 2002 2011 entitled benefit uk australia double tax agreement 1967 1 penalty issue raising question whether vmqd intentionally disregarded income tax obligationsthe critical factual question underlying issue appears whether vmqd relevantly diverted payment sense causing appear paid fsai inc perhaps related question precise stage character payment made fsai inc account see paragraph24above liquidator response schedule 2 item 1this document described liquidator 12 may 2014 response commissioner preliminary audit finding preaudfs document 14 april 2014 letter describes preaudfs document based information liquidator provided march 2011 go report liquidator subsequently obtained additional document appendix described containing schedule footnote reference contained preaudfs ii additional comment iii reference additional document date description appendix read content liquidator 12 may 2014 letter convey impression inherently peripheral document preaudfs already contained substance view contentious termination payment included matrix 2001 2002 tax return view subsequently maintained december 2015 evasion opinion audit report objection decision adequate basis satisfied comment reference appendix substantive relevance possibility view liquidator relation significance sufficiency commissioner preaudfs footnote may adjectival relevance foreshadowed issue review proceeding either speculative extremely questionable view rather confirmed fact appendix 12 may 2014 response document appears contain detailed substance liquidator response preaudfs document commissioner provision document vmqd longer contentious satisfied appendix may relevant review proceeding even view may relevant would require production regard likely peripheral document unlikely make material contribution resolution review proceeding evasion objection decision document schedule 2 item 2reference schedule 2 show production request directed document commissioner decision making personnel referred opinion decision reason document may relevant issue described paragraph42above formulation request involves element circular logic vmqd appears seek production document may relevant without satisfying threshold criterion satisfying tribunal particular document merit classification substance vmqd request simply state general submission rejected earlier reason see paragraphs5to12above also engages essentially speculative enquiry disapproved inkennedy klgl qcyy andcash world see paragraphs7 9and13above reason alone production request rejected request related meaningful way particular document width request properly regarded describing particular class document much le available reasoning overcomes conceptual circularity evident term production request appropriate however address aspect vmqd submission involve greater degree particularity one proposition process reasoning commissioner evasion opinion provide clarity actual basis opinion absence clarity expressed evasion opinion reason vmqd asserts commissioner withholding document must relied forming evasion opinion potentially involves denial procedural fairness contention seems principal emphasis relation two matter first basis commissioner concluded vmqd directed contentious payment made fsai inc second obscurity perhaps imprecision payment fsai inc bank account september 2002 detailed evasion opinion justification characterisation vmqd derived fund personally contention complete accurate understanding actual sequence payment available document explaining least potentially relevant accuracy reliability evasion opinion substance first point account vmqd gave november 2013 264 interview hardly admits conclusion vmqd directed contentious payment made fsai inc bank account yet established whether payment made pursuant various contention argument canvassed earlier see paragraphs29to32above relation argument seems abundantly clear various reason statement commissioner document tend substantiate proposition contrary information whose production uncontentious tends inconsistent namely report june 2001 settlement fsa group western australian government liquidator response information circumstance basis satisfaction commissioner additional document may relevant question payment direction second point tends involve issue addressed inre klgl qcyyabout perceived inadequacy statement reason whether tended probative existence additional previously unproduced document fair say present matter none commissioner reason statement minutely detail sequence circumstance fsai inc payment bank account see paragraph24above seems basic thrust reasoning rely circumstantial connection apparent origin termination payment problematic function fsai inc vmqd director status matrix fsai inc ultimate destination fund reasoning may compelling regard content various reason conveying basis satisfaction commissioner additional document relating step stage circumstance various payment event regard description document sought schedule item capable directed particular document class document argument vmqd advanced relation evasion opinion concerned content disclosure made commissioner connection 2003 review matter addressed later reason deal schedule 2 item 4 audit reason document schedule 2 item 3vmqd application relation item ultimately term supported ground production request relation evasion opinion objection decision accordingly rejected reason 2003 review document schedule 2 item 4in august september december 2003 commissioner wrote accountant acted matrixfacman williams hatchman kean westfleet deloitte touche tohmatsu commissioner informed undertaking review 2001 termination arrangement commissioner requested production transaction related document overall effect request production document june november 2001 relating retirement debt component transaction termination transaction b document would allow reconstruction financial aspect transaction commencement termination c document would explain westfleet tax treatment various termination related payment january 2004 deloitte complied request time gave vmqd itemised list 16 document provided ato document included document schedule 2 item 4 b c april 2004 deloitte wrote commissioner providing additional information aspect matrix fleet leasing transaction 28 april 2004 letter referred schedule 2 item 4 vmqd contends evasion opinion cannot sustained contentious payment fully disclosed commissioner course 2003 review contention material provided commissioner 2003 potentially relevant evasion opinion tend establish disclosed ii true character identity entity received entitled payment additional aspect vmqd contention relation document potentially relevant establishing matrix tax position particularly potential matrix taken advantage carried forward tax loss 2001 2002 tax year deal matter later reason relation schedule 2 item 6 vmqd contention apparent relevance matter schedule 2 item 4 c last matter address financial situation westfleet connection either contentious termination payment payment fsai inc bank account far apparent conceivable relevance relation matrix tax affair rather vmqd personally conceivable relevance sufficient lead opinion potential relevance necessary contemplate discretionary production requirement aat act 37 2 various document schedule 2 item 4 b 4 c vi sought subject additional production direction address contingency may show full disclosure relevant matter course 2003 audit review difficulty contention 28 april 2004 deloitte letter referred item 4 b make clear commissioner told contentious payment included matrix financial statement represented payment made direction residual value insurer given explanation least arguably consistent principal objection contention vmqd maintains present proceeding adequate basis satisfaction content document potentially relevant review proceeding critical matter purpose assessing potential relevance consistency current contention whether capacity lend substance contention addressing question context commissioner reason indicate information tends substantiate asserted reality realm speculation invite enquiry content document particularly case matter paragraph55above 28 april 2004 letter show focus attention time accounting treatment contentious termination payment matrix rather vmqd personally schedule 4 item 4 ii communication asserted vmqd relevant partly issue deloitte addressed 28 april 2004 letter letter suggested composite response prepared contribution accountant referred paragraph55above respect category item 4 shown potentially relevant another respect item 4 correspondence suggested potentially relevant content draft 21 may 2001 draft letter prepared western australian government solicitor draft letter canvassed number difficulty involved effecting matrix fleet leasing transaction termination one particular item discussion commercially opposed interest matrix western australian government respective interest obtaining release indemnity relation matrix termination related payment western australian government wanted avoiding incurring tax related indemnity obligation matrix commercial interest obtaining indemnity submission made vmqd behalf discussion increased likelihood 2008 settlement agreement fact contain tax indemnity favour matrix contention best addressed context vmqd application production 2008 settlement agreement see schedule 2 item 5 address matter corresponding section reason conclude 2008 settlement agreement shown potentially relevant follows correspondence production sought relation item 4 similarly shown potentially relevant remaining matter address item 4 iii seek communication fsa group relation termination matrix fleet leasing transaction readily apparent vmqd principal objection contention see paragraph29above commissioner reliance objection decision apparent significance june 2001 settlement fsa group western australian government see paragraph30above underlying reality termination arrangement fsa group critical vmqd objection ground reason notwithstanding unclear whether correspondence occurred seeacn 154 520 199 pty ltd v commissioner taxation 2018 aata 33at 75 102 appropriate require production class document 10 january 2008 settlement agreement schedule 2 item 5the decision inwestina corporation pty ltd v bgc contracting pty ltd 2009 wasca 213 41 war 263 vmqd submission relied fact offer little support potential relevance 2008 settlement agreement westinainvolved scope contractual indemnity vehicle supplier corporate hirer issue arose vehicle damaged collision another vehicle driven one hirer employee decision held corporate hirer employee entitled benefit contractual indemnity employee excluded scope indemnity identified expressly impliedly either particularity within class category person contract full court held doubt scope indemnity resolved favour westina indemnifier see 2009 wasc 213at 49 52 83 decision inwestinaprovides basis opining matter construction parliamentary reference full final settlement tax matter relating termination matrix fleet leasing transaction regarded intended benefit person neither party identified agreement vmqd contention apparent relevance settlement agreement unlikely essentially speculative respect irrelevant hypothesis nothing suggest either matrix tax liability vmqd contemplation time settlement ato fact neither party settlement ii contention shown existed 2008 tax liability tends suggest context would novel extreme notwithstanding wa property law act provision contractual release construed operating release liability neither contemplation time involved entity party described contract seeibm australia pty ltd v state queensland 2015 qsc 342at 45 even apparent substance hypothesis 2008 settlement agreement somehow conferred indemnity benefit matrix difficult see relevance vmqd personally 2015 assessment proceed basis vmqd received contentious payment matrix constituted income hand basis material submission regarding tax indemnity may involved matrix fleet leasing transaction document extending vmqd personal tax liability still le justification surmise 2008 settlement arrangement commissioner western australian government intended address sense address vmqd personal position vmqd pursuit document exercise speculation satisfied threshold criterion potential relevance met relation 2008 settlement matrix group ltd document schedule 2 item 6vmqd point dividend issue reference judgment inmatrix group limited liq v oates 2016 fca 1487to commissioner lodged 15 7m proof debt liquidation matrix group ltd proof debt said tend establish commissioner included contentious payment matrix group ltd assessable income 2001 2002 tax year argument underlying aspect vmqd production application altogether easy formulate understand variously advanced appears involve proposition matrix assigned contentious payment fsa oaklahoma beneficially entitled 2001 2002 tax year b assignment fsa oaklahoma defective matrix entitled fund resulting trust relevantly derived vmqd c based view matrix liquidator vmqd misappropriated matrix fund breach fiduciary obligation director held constructive trustee said demonstrate matrix derived contentious payment cannot constitute assessable income argument draw onzobory v commissioner taxation 1995 fca 1226 1995 64 fcr 86at 89 proposition payment form part matrix assessable income essentially irrelevant question vmqd liability basis assessment decision vmqd primary argument made clear conduct diverting payment matrix fsai inc ultimately entity personally interested may track commissioner encounter difficulty proper analysis shown attempting double recovery tax liability question arises present proceeding context vmqd argument involves currently appears positive assertion matrix entitled fund anything divert matrix assertion seems quite distinct question matrix tax liability relation amount involved payment accordingly satisfied matrix document schedule 2 item 6 may relevant assessment objection decision conclusion decisionin light matter addressed paragraphs29 30and63 opinion following class document may relevant review 19 august 2016 objection decision tribunal accordingly require commissioner lodge tribunal within 28 day prescribed number copy class document commissioner possession control class document correspondence including attachment produced document relating australian taxation office 2003 review unwinding termination matrix fleet leasing transaction ato fsa oklahoma inc representative assignee certify preceding 72 seventy two paragraph true copy reason decision herein mr p w taylor sc senior member sgd associatedated 29 august 2018date hearing 2 3 4 may 2018counsel applicant r seiden sc russoniellosolicitors applicant speed stracey lawyerscounsel respondent stewart sc g mahoneysolicitors respondent minterellisonschedule 1 production obligation power reason paragraph 3 administrative appeal tribunal act 197537 lodging material document tribunal 37 1 subject section person made decision subject application review second review tribunal must within 28 day receiving notice application within period tribunal allows lodge tribunal copy statement setting finding material question fact referring evidence material finding based giving reason decision b subject direction given undersection 18b every document person possession person control relevant review decision tribunal 37 2 tribunal opinion particular document document included particular class document may relevant review decision tribunal tribunal may cause given person notice writing stating tribunal opinion requiring person lodge tribunal within time specified notice specified number copy document possession control person notice given shall comply notice taxation administration act 195314zzf modification section 37 aat act14zzf 1 section 37 aat act applies relation application review reviewable objection decision requirement subsection 1 section lodge tribunal number copy prescribed statement document instead requirement lodge tribunal number copy prescribed statement giving reason decision ii notice taxation decision concerned iii taxation objection concerned iv notice objection decision v every document commissioner possession commissioner control considered commissioner necessary review objection decision concerned vi list document lodged subparagraph v b power tribunal subsection 2 section cause notice served containing statement imposing requirement person instead power make statement impose requirement orally conference held accordance subsection 34 1 aat act ii power notice make statement impose requirement person lodge tribunal within time specified notice copy document person possession person control iii power notice make statement impose requirement person lodge tribunal within time specified notice copy list document person possession person control considered person relevant review objection decision concerned 14zzf 2 paragraph 1 b affect power tribunal apart paragraph 14zzf 3 imposition requirement covered subparagraph 1 b iii prevent subsequent imposition requirement covered subparagraph 1 b ii note since theadministrative appeal tribunal amendment act 2005no 38 2005 cth reference 14zzf 1 b conference held accordance 34a 1 aat act schedule 2 contentious document reason paragraph 18 liquidator response argument reference step 3 1 1 ppb advisory liquidator 12 may 2014 response preliminary audit finding appendix evasion opinion objection decision document argument reference step 3 1 5 ex 5a document officer commissioner made 8 december 2015 48 evasion opinion b officer commissioner made 19 august 2016 2 objection decision c referred either evasion opinion objection decision may relevant assignment contentious payment fsa ii characterisation payment ordinary income vmqd purpose itaa 36 26 e iii characterisation payment statutory income vqd eg trust distribution iv characterisation payment dividend payment matrix group limited v taxable income matrix group limited vi 8 december 2015 evasion opinion vii 2008 settlement ato western australian government audit reason document argument reference step 3 1 5a document officer commissioner made 21 december 2015 audit finding b referred audit decision c may relevant issue tribunal note argument reference document originally expressed way end vmqd submission however submitted wording item 2 3 substantially subject difference name decision reason opinion concerned 2003 review document argument reference step 3 1 7 two category document comprising correspondence including attachment produced document relating australian taxation office 2003 review unwinding termination matrix fleet leasing transaction ato mr jack thomas deloitte apparently including letter dated 4 december 2003 28 april 2004 ii williams hatchman kean apparently relating draft letter 21 may 2001 termination matrix fleet leasing transaction iii fsa oklahoma inc representative b following specifically identified letter email argument reference step 3 3 3 6 august 2001 fax mr brian graham mr jack thomas vmqd 16 01 2004 email 14 ii 16 august 2002 email vmqd mr jack thomas vmqd 16 01 2004 email 12 iii 19 august 2002 email mr p cinque vmqd vmqd 16 01 2004 email 8 iv 21 august 2002 email mr graham k lo vmqd 16 01 2004 email 7 v 23 august 2002 email mr cinque vmqd vmqd 16 01 2004 email 10 vi 9 september 2002 email mr graham mr thomas vmqd 16 01 2004 email 6 vii 18 november 2002 fax mr graham vmqd 16 01 2004 email 5 viii 4 5 march 2003 email exchange involving mr graham vmqd 16 01 2004 email 3 ix 7 march 2003 letter mr brian graham vmqd 16 01 2004 email 2 x 18 march 2003 letter mr scott tyne vmqd 16 01 2004 email 1 c following document argument reference step 3 3 3 deloitte working paper relating west fleet 2000 income tax return vmqd 16 01 2004 email 15 ii west fleet trial balance 2000 vmqd 16 01 2004 email 16 iii west fleet tax return 2001 income year vmqd 16 01 2004 email 11 iv west fleet tax return 2002 income year vmqd 16 01 2004 email 4 v 20 june 2002 west fleet working paper vmqd 16 01 2004 email 9 vi report position paper finalisation letter ato may issued bring 2003 review conclusion 10 january 2008 settlement agreement argument reference step 3 1 10 settlement agreement announced western australian parliament 28 february 2008 apparently resolved issue concerning contentious income tax liability two bank party matrix fleet leasing transaction ii indemnity obligation western australian bank relation tax liability presumably western australian government ato two bank party settlement agreement matrix group ltd tax document argument reference step 3 1 12 document relating 2001 2002 assessment matrix group limited liquidation specifically 14 april 2014 statement preliminary audit finding b final audit finding position paper reason decision issue assessment penalty assessment matrix group limited c copy notice amended assessment tax penalty issued matrix group limited 2001 2002 tax year document recording decision relating interest charge liability remission liability matrix group limited relevant penalty e notification interest charge matrix group limited result 2001 2002 assessment relevant penalty schedule 3 entity involved matrix fleet leasing transaction reason paragraph 20 party 30 november 2001 deed settlement release state supply commission western australia western australian government entity proposed vendor subsequent hirer fleet vehicle b investor bank bank western australia ltd abn amro facility australia ltd investor bank provided significant funding transaction c matrix facility management pty ltd matrixfacman facility manager relation financial aspect transaction wholly owned subsidiary matrix group ltd august 2003 renamed office fit leasing service pty ltd matrix group limited formerly matrix finance group ltd trustee matrix finance group unit trust mfgut user trading name matrix finance group e westfleet pty ltd special purpose company owned matrix group purchaser fleet matrix fleet leasing transaction relevant name entity credit commercial finance pty ltd corporation vmqd sole shareholder director company secretary b fsa group group corporate entity including b financial security assurance oklahoma inc usa incorporated insurer westfleet liability appears related shortfall sale proceeds vehicle early june 2001 fsa group received 11m payment western australian government reflecting actuarial adjustment consequence early termination matrix fleet leasing transaction vmqd contends fsa oklahoma claimed matrix group wa government result termination transaction vmqd appears acknowledge claim wa government resolved june 2001 settlement agreement contends claim matrix group resolved assignment arrangement relating contentious termination payment deposited fsai inc bank account ii fsa insurance company fsaic november 1998 assignee insurer right obligation matrix fleet leasing transaction document iii financial security assurance holding ltd fsaah holding company thefsa group iv dexia sa franco belgian financial group acquiredfsaahin july 2000 c fsa international inc cayman island entity incorporated 28 july 1999 mfg investor service 2 inc renamed 17 may 2001 opened anz bank singapore bank account time company director 26 june 2001 vmqd mr scott tyne four contentious termination payment deposited fsai inc anz bank account singapore company de registered 30 june 2003 skea hager co solicitor western australian government relation transaction e pajiti pty ltd corporate trustee trust held unit matrix finance group unit trust vmqd eligible beneficiary f pegela pty ltd corporate trustee another trust held unit matrix finance group unit trust vmqd eligible beneficiary matrix group association succession entity operated business using unit trust entitled matrix finance group unit trust matrix financial service pty ltd later matrix group limited trusteetyne mr former director matrix group ltd 1994 2006 director fsa international inc time contentious payment vmqd investment banker eligible beneficiary pajiti pegala trust director matrix group ltd 1993 22 june 2002 director fsa international inc time contentious payment 1 vmqd would require leave raise issue review proceeding relied objection |
Alice Berry v Glass Now Pty Ltd [2023] FWC 1801 (21 July 2023).txt | alice berry v glass pty ltd 2023 fwc 1801 21 july 2023 last updated 21 july 2023 2023 fwc 1801fair work commissiondecisionfair work act 2009s 394 unfair dismissalalice berryvglass pty ltd u2023 3014 commissioner spencerbrisbane 21 july 2023application relief unfair dismissal jurisdictional objection minimum employment period change contract sale share employee independent contractor introduction 1 m alice berry applicant made application fair work commission commission undersection 394of thefair work act 2009 cth act remedy pursuant tosection 392of act alleging unfairly dismissed employment glass pty ltd glass respondent applicant sought compensation lost wage lieu reinstatement payment purchase share respondent company respondent filed form f3 response unfair dismissal application raised jurisdictional objection application pursuant tos 382 act applicant employment meet minimum employment periodof six month respondent argued applicant person protected unfair dismissal accordance withs 382of act therefore entitled pursue relief claimed unfair dismissal act 2 applicant commenced employment glass 27 october 2003 account office manager full time basis time applicant capacity trustee kvapilova trust husband mr douglas berry shareholder glass sold applicant brother law mr vilem cerny 28 june 2022 share sale agreement 3 following sale mr cerny 1 july 2022 glass entered contract consultancy agreement crownsun pty ltd crownsun applicant mr berry equal shareholder pursuant consultancy agreement crownsun provide consulting service glass service provided applicant mr berry december 2022 applicant advised respondent consultancy agreement would extended beyond 3 january 2023 ended date 4 absence approximately one month applicant 1 february 2023 commenced employment glass owned mr cerny applicant employed period part time basis dismissal 29 march 2023 whilst applicant argued period one month absence approved unpaid leave connection glass relation approval recognition respondent following share sale agreement 5 applicant stated dismissed due unsatisfactory work performance dismissal harsh unjust unreasonable 6 decision deal respondent jurisdictional objection relevant legislative provision 7 section 390of act provides commission may order remedy commission satisfied applicant protected unfair dismissal time dismissed applicant unfairly dismissed 8 section 382of act provides person protected unfair dismissal time dismissed person employee completed period employment employer least minimum employment period b one following apply modern award cover person ii enterprise agreement applies person relation employment iii sum person annual rate earnings amount worked relation person accordance regulation le high income threshold 9 accordance withsection 396of act must next determined whether application made within period required insubsection 394 2 b whether person protected unfair dismissal c whether dismissal consistent small business fair dismissal code whether dismissal case genuine redundancy 10 party agreed application filed commission within statutory 21 day period dispute party respondent small business employer dismissal termination employment case genuine redundancy 11 minimum employment periodis one year small business employer six month employer set section 383 act follows 383 meaning minimum employment periodtheminimum employmentperiod employer small business employer 6 month ending earlier following time time person given notice dismissal ii immediately dismissal b employer small business employer one year ending time 12 agreed party respondent small business employer therefore minimum employment periodthat must served applicant six month 13 section 384 act defines theperiod employmentin following term 384 period employment 1 employee speriod employmentwith employer particular time period continuous service employee completed employer time employee 14 section 384 2 b go define circumstance employee service previous employer may count towards service new employer state follows 2 however b employee transferring employee relation transfer business old employer new employer ii old employer new employer associated entity employee becomes employed new employer iii new employer informed employee writing new employment started period service old employer would recognised period service old employer count towards employee period employment new employer 15 meaning continuous service set section 22 act circumstance present case appears sub section 5 7 may relevant deal continuous service transfer employment employee one employer another section 22 relevantly state follows 22 meaning service continuous service 1 period ofserviceby national system employee national system employer period employee employed employer include period anexcluded period count service subsection 2 2 following period count service period unauthorised absence b period unpaid leave unpaid authorised absence period absence division 8 part 2 2 deal community service leave ii period stand part 3 5 enterprise agreement applies employee employee contract employment iii period leave absence kind prescribed regulation c period kind prescribed regulation 3 excluded period break national system employee scontinuous servicewith national system employer count towards length employee continuous service 5 transfer employment see subsection 7 relation national system employee period service employee first employer count service employee second employer b period termination employment first employer start employment second employer break employee continuous service second employer taking account effect paragraph count towards length employee continuous service second employer meaning oftransfer employmentetc 7 atransfer employmentof national system employee one national system employer thefirst employer another national system employer thesecond employer following condition satisfied employee becomes employed second employer 3 month termination employee employment first employer ii first employer second employer associated entity employee becomes employed second employer b following condition satisfied employee transferring employee relation transfer business first employer second employer ii first employer second employer associated entity employee becomes employed second employer note paragraph applies whether transfer business first employer second employer permission appear 16 respondent sought legally represented commission set respondent house legal expertise due complexity matter would benefit assistance lawyer direction set filing submission relation matter applicant objected legal representation filing submission pursuant section 596 2 matter raised party commissioner set obligation provide fair process party consideration matter determined permission granted respondent legally represented would enable matter dealt efficiently taking account complexity matter 17 accordingly applicant self represented respondent represented mr connor mcmanus lawyer ellem warren napa lawyer background 18 summary term applicant set commenced full time employment glass company owned husband 27 october 2003 28 june 2022 argued 1 july 2022 3 january 2023 engaged respondent new owner consultant stated effectively akin full time employment relationship applicant stated 3 january 2023 31 january 2023 took period agreed unpaid leave 1 february 2023 dismissal 29 march 2023 applicant submitted part time employee respondent basis applicant contended employment respondent continuous unbroken period approximately 20 year 19 applicant stated employment glass involved working husband mr berry business 2021 applicant stated mr berry expressed wish sell respondent business 2022 applicant brother law mr cerny expressed interest buying business 20 prior sale business applicant submitted mr cerny indicated wished applicant remain employed respondent order assist transition ownership mr cerny following sale applicant contended engaged respondent husband consultancy agreement 21 applicant stated 1 august 2022 agreement put place whereby applicant would work four day per week applicant stated throughout period consultancy agreement invoiced respondent service initially worked 25 30 hour per week mr berry stopped consulting applicant hour significantly increased 22 applicant submitted december 2022 advised respondent would continue work pursuant consultancy agreement instead wished engaged employee 1 february 2023 applicant submitted made request treated employee throughout duration consultancy agreement receive entitlement employee annual leave respondent stated consultancy agreement concluded 31 december 2022 23 applicant submitted 3 january 2023 commenced period unpaid leave continued 31 january 2023 applicant stated commenced work respondent pursuant employment contract 1 february 2023 dismissal march 2023 24 respondent submitted applicant resigned employment glass business upon sale respondent business respondent stated sale occurred 28 june 2023 way share sale agreement applicant mr berry sold 18 20 share respondent mr cerny applicant retained two remaining share respondent clause 16 8 share sale agreement state agreement constitutes entire agreement party connection subject matter supersedes previous agreement understanding party connection subject matter 25 alternative respondent submitted execution consultancy agreement effected termination applicant employment 26 respondent characterised applicant status relation respondent period consultancy agreement contractor respondent argued applicant employee crownsun throughout period direct relationship applicant respondent existed engagement applicant employee dealt summary evidence submission 27 direction set filing evidence submission jurisdictional matter accordingly party filed material compliance determinative conference also held party conference party requested matter determined paper applicant submission evidence 28 support application unfair dismissal remedy applicant provided written submission satisfied minimum employment period 29 addition matter set background summary applicant submitted employment relationship respondent created september 2022 respondent engaged consultancy service another service provider addition crownsun applicant stated clause 1 5 general term condition consultancy agreement precludes respondent engaging service provider respondent engaged personal acquaintance business consultant clause 1 5 consultancy agreement relevantly state 1 5 exclusivity conflictsthe service exclusively provided service provider crownsun client respondent consultancy term client maynotengage service provider provide similar service consultancy term 30 contested party service providing similar service applicant submitted respondent also breached term consultancy agreement relation retention record intellectual property matter 31 applicant described consultancy role materially similar previous role husband owned business submitted performed duty role referred mr cerny bos say evidenced employment relationship applicant stated october 2022 mr cerny mutual verbal agreement regular working hour applicant set 32 december 2022 applicant stated discussion mr cerny explained aside one aspect role involved training another staff member feel providing consultancy service instead carrying function previous account officer manager role applicant submitted mr cerny agreed assessment basis applicant put forward employment proposal identical condition working arrangement place since october 2022 save minor adjustment ordinary working hour applicant stated mr cerny accepted proposal without suggested amendment 33 applicant set 1 february 2023 commenced employment respondent function account office manager respondent submission evidence 34 addition matter set background respondent submitted termination valid reason harsh unjust unreasonable 35 summary respondent submitted upon signing share sale agreement accordance clause 16 8 applicant mr berry resigned employment respondent executing consultancy agreement applicant terminated employment respondent 36 respondent submitted applicant removed employee xero respondent bookkeeping software 37 respondent set considered salient feature consultancy agreement demonstrated applicant status contractor employee feature set follows minimum weekly commitment respondent engaging crownsun supply applicant 30 hour per week ii mr berry 25 hour per week crownsun permitted engage professional assist providing service payment made crownsun within 7 day presentation invoice right charge interest unpaid invoice crownsun liable insurance licencing cost respect servicers provided respondent incidental expense providing service payable crownsun agreement fixed term 1 july 2022 31 december 2022 fixed term could extended respondent request crownsun entitled suspend work invoice outstanding 14 day agreement could terminated either party 30 day notice crownsun liable respondent breach agreement crownsun crownsun obliged maintain qbcc licence providing service andthe respondent liable pay crownsun gst service supplied crownsun 38 respondent stated december 2022 applicant advised respondent fixed term consultancy agreement would extended instead offered commence employment respondent 1 february 2023 accordingly applicant commenced part time employment respondent date 39 referring totebble v rizmas tebble 1 respondent argued applicant entering consultancy agreement sale applicant engaged new employee new company tebblerelevantly stated period resignation reemployment cannot characterised period employee employed employer unless employer specifically agrees regard 2 40 respondent described applicant obligation consultancy agreement entirely antithetical ongoing employment 3 point respondent citedkaram v varga 4 provided establish earlier contract terminated replaced later contract later contract must entirely inconsistent former contract least inconsistent extent go root 5 41 respondent argued inconsistency lie fact consultancy agreement required crownsun provide applicant service respondent minimum 30 hour per week crownsun issued invoice respondent right suspend work engage consultant existed agreement stated crownsun corporate entity engaged provide consultancy service demonstrated respondent opinion direct relationship applicant respondent throughout period consultancy agreement instead respondent submitted relevant contracting relationship crownsun respondent consideration 42 issue determination matter length applicant period employment purpose 383 act time dismissal issue requires consideration effect first second period employment whether along purported period employment throughout intervening period constitute period continuous service meet minimum employment period six month purpose s 22 383 384 act 43 dispute applicant employed former respondent company 27 october 2003 28 june 2022 1 february 2023 29 march 2023 must therefore considered whether applicant employee respondent time period resignation 28 june 2022 commencement part time employment 1 february 2023 period consultancy agreement 44 determining issue first address respondent contention upon execution either share sale agreement consultancy agreement applicant employment respondent ended respective submission respondent submitted 6 applicant conceded 7 applicant resigned employment respondent immediately signing share sale agreement applicant agreed execution consultancy agreement operated terminate employment former business owned husband 8 therefore applicant employment respondent ended 28 june 2022 45 must considered whether despite termination applicant employment respondent 28 june 2022 subsequent employment relationship created point following execution consultancy agreement 46 respondent submitted period consultancy agreement applicant employed respondent instead contractor inhollis v vabu pty ltd 9 held distinction employee independent contractor rooted fundamentally difference person serf employer employer business person carry trade business 10 47 relevantly construction forestry maritime mining energy union v personnel contracting pty ltd personnel contracting 11 considered principle distinguishing employment independent contracting relationship provides contract focused approach determining issue must used performance contract course dealing party examined 12 48 contract must examined determine whether worker engaged work business another 13 consultancy agreement provided corporate entity crownsun engaged consultancy contract applicant individual capacity set respondent direct relationship existed applicant respondent relation consultancy agreement evidenced unilateral decision taken mr berry cease providing consultancy service october 2022 fact also evidence applicant mr berry right exercise control activity 14 respondent engage applicant mr berry minimum weekly number hour applicant mr berry right control nature service provided existence specified regular hour work might suggest employment relationship merely starting point 15 49 held inpersonnel contractingthat label party may choose attach relationship determinative relevant classification relationship party characterise relationship 16 applicant arguing remained employee respondent submitted felt role consultancy agreement practical purpose employment relationship accordance withpersonnel contracting applicant subjective characterisation relationship manner bearing true legal nature relationship furthermore applicant characterisation relationship material difference work performed compared former employment relationship accepted consultancy agreement would little work provide cessation employment relationship 50 inzg operation australia pty ltd v jamsek 17 stated character relationship party case determined reference right duty created written agreement comprehensively regulated relationship 18 51 raised respondent consultancy agreement create right duty applicant personal level right duty exercisable crownsun pursuant clause 2 1 consultancy agreement obligated company ensure service provided qualified competent personnel including sub contractor appointed writing term weighs finding employment relationship existed respondent applicant personally 52 applicant submitted respondent breached term consultancy agreement engaging separate consultant consequence applicant argued alleged breach somehow dissolved consultancy agreement established employment relationship respondent basis upon applicant made argument appears engaging separate consultant mr cerny repudiated term consultancy agreement meaning relationship party must defaulted employment relationship respondent however consultancy agreement able engage consultant provide similar service specific evidence matter cannot determined contract transitioned employment contract 53 even applicant correct respondent breached consultancy agreement breach could established new employment agreement varied consultancy agreement transformed employment agreement without express intention party 54 applicant argument respondent engaging another consultant respondent started performing contract though employment agreement basis employment relationship commenced must also rejected respondent characterisation relationship adoption characterisation applicant inconsistent withpersonnel contracting 19 basis party cannot mere consensual label alter inherent character relation actually called existence 20 instead right duty created written agreement remain applicable 21 55 therefore absence direct employment relationship applicant respondent given written term consultancy agreement find applicant employee respondent time term consultancy agreement 1 july 2022 3 january 2023 instead contractor transfer employment 56 neither party provided submission respect whether transfer employment occurred pursuant 22 act however completeness issue considered determining applicant period service 57 transfer employment accordance 22 7 act occurred circumstance applicant engagement respondent following share sale agreement employee previously discussed contractor applicant eventually engaged employee 1 february 2023 occurred three month termination employment resulted share sale agreement precondition transfer employment 22 7 act therefore met 58 transfer employment occur accordance 22 7 applicant first period service count towards service respondent following share sale agreement pursuant 25 5 act period service 59 accordance s 383 384 act period continuous service applicant completed glass time dismissal must determined 60 dispute applicant completed period service business owned applicant mr berry 27 october 2003 execution share sale agreement 28 june 2022 61 1 july 2022 3 january 2023 applicant engaged contractor glass owned mr cerny discussed earlier applicant employee respondent throughout period meaning period period service applicant ceased employee period contractor broke applicant continuity service therefore period 1 july 2022 3 january 2023 cannot included consideration applicant continuous service time dismissal 62 3 january 2023 31 january 2023 applicant perform work glass applicant contended period agreed unpaid leave time stated agreed share sale agreement applicant argued period excluded period 22 therefore without considered period service break continuity service even applicant already ceased employee glass time continuity service already broken execution consultancy agreement old employer selling business authority approve leave period therefore period service 63 dispute one month absence applicant completed new period service respondent 1 february 2023 29 march 2023 period 56 day 64 applicant employee respondent throughout period consultancy agreement following one month absence period 28 june 2022 31 january 2023 constitute period service accordance 22 act transfer employment provision 22 act also prevents applicant initial period service share sale agreement contributing second period service accordingly period 28 june 2022 31 january 2023 required excluded meaning totality applicant employment respondent continuous service 65 therefore accordance 384 1 act applicant total period continuous service employee respondent date dismissal lasted 1 february 2023 29 march 2023 total 56 day conclusion 66 accordingly considering fact circumstance matter applicant employment meet minimum employment periodof six month continuous service accordance 383 act date applicant dismissal consequently respondent jurisdictional objection must upheld applicant met minimum employment period person protected unfair dismissal accordance 382 act 67 therefore applicant application made pursuant 394 jurisdictionally barred must dismissed 68 order accordingly commissioner 1 2011 fwa 6853 2 tebble v rizmas 2011 fwa 6853at 6 3 respondent submission jurisdiction 22 4 2019 qca 82 5 karam v varga 2019 qca 82at 23 6 ibid 6 7 applicant response respondent submission jurisdiction 6 8 ibid 7 9 2001 hca 44 10 hollis v vabu pty ltd 2001 hca 44at 40 11 2022 hca 1 12 construction forestry maritime mining energy union v personnel contracting pty ltd 2022 hca 1at 40 62 172 178 personnel contracting 13 ibidat 39 180 183 14 ibid 113 114 15 zg operation australia pty ltd v jamsek 2022 hca 2at 106 jamsek 16 personnel contractingat 58 63 66 79 17 2022 hca 2 18 jamsekat 8 19 personnel contractingat 58 63 66 79 20 curtis v perth fremantle bottle exchange co ltd 1914 hca 21 18 clr 17at 39 21 jamsekat 8 22 fair work act 2009 cth 22 printed authority commonwealth government printer pr764476 |
In the matter of Mempoll Pty Ltd Anankin Pty Ltd and Gold Kings Pty Ltd [2013] NSWSC 301 (8 February 2013).txt | matter mempoll pty ltd anankin pty ltd gold king pty ltd 2013 nswsc 301 8 february 2013 last updated 9 april 2013supreme courtnew south walescase title matter mempoll pty ltd anankin pty ltd gold king pty ltdmedium neutral citation 2013 nswsc 301hearing date 8 february 2013decision date 08 february 2013jurisdiction equity division corporation listbefore brereton jdecision adjournment refusedleave discontinue refusedapplication dismissedcatchwords contempt adjournment contempt proceeding whether adjournment permit applicant remedy evidentiary difficulty justifiedcontempt leave discontinue contempt proceeding whether leave discontinue contempt proceeding grantedlegislation cited ucpr r 12 1cases cited covell matthew v french woolstone 1977 2 er 591 affirmed 1978 2 er 800practises commission 1984 fca 52 1984 2 fcr 113re alpha company limited 1903 1 ch 203rydges hotel limited v charles ritz limited 8 1987 12 ipr 75sci operation pty limited v tradestahlschmidt v walford 1879 4 qb 217stevens v theatre limited 1903 1 ch 860young austin young limited v british medical association 1977 2 er 884category interlocutory applicationsparties r ho first applicant rhodium nsw pty ltd second applicant trading house pty ltd third applicant p chau respondent representation counsel counsel grieve qc ahmed applicant j whittle sc brien respondent solicitor solicitor pmf legal applicant haylen mckenzie solicitor respondent file number 2012 202690judgment ex tempore honour court motion filed plaintiff 31 october 2012 seeking fourth fifth sixth defendant first respondent found guilty contempt court failing comply order black j made 31 august 2012 connection production document referred notice produce case fourth fifth sixth defendant subpoena case first respondent motion returnable 1 november 2012 registrar occasion adjourned listed corporation judge 5 november 2012 direction allocation hearing date matter came corporation list 5 november 2012 fixed hearing one day estimate today noted applicant evidence complete made usual order hearing motion came hearing today plaintiff applicant read two affidavit one georgina wu 26 october 2012 one richard arnold sworn 31 october 2012 annexed report mr arnold accountant report addressed substance question whether document referred notice produce subpoena allegedly produced document required maintained respondent order prepare financial statement taxation return produced comply applicable law record company required maintain answering question question report mr arnold refer whether document necessary order prepare financial statement taxation return question evidence might conceivably admissible limited answer whether document required maintained various law rejected evidence respect underlay remainder evidence basis question law question calling accountancy expertise application adjournmentmr arnold evidence rejected applicant seek adjournment hearing motion order enable deficiency evidence remediated substance envisaged mr arnold would opine would difficult business restaurant conducted respondent maintained document allegedly produced maintained remains open mr arnold report read applicant submit respondent obliged keep document matter law whether would support inference fact kept document possession custody power time production required another matter see rejection mr arnold opinion matter law prejudice applicant relevant way although respect report might approached matter properly subject accountancy opinion aspect inadequately expressed matter expert opinion example mr arnold gave evidence would expect rather standard invariable practice even evidence standard practice would dubious utility case applicant bear onus proof beyond reasonable doubt mind dubious evidence kind proposed adduced effect would difficult opposed practically impossible maintain business would suffice permit inference drawn document one time existed case standard proof beyond reasonable doubt contempt application available inference document existed time relevant period 2006 2009 covered notice produce subpoena would long bow conclude without beyond reasonable doubt document still existed 2012 accordingly seems insofar rejected part mr arnold opinion amount conclusion law prejudice applicant still contend legal position without reliance accountant opinion effect today insofar rejected aspect report depend accountancy practice seem minor part report dubious extreme remediation defect would advance applicant case moreover contempt proceeding involve serious allegation serious consequence interlocutory proceeding interrupt delay progress substantive matter set month basis applicant evidence complete ought remain hanging respondent head circumstance prepared accede adjournment application application leave discontinuethe applicant seek discontinue motion discontinuance governed ucpr r 12 1 effect discontinuance proceeding whole claim relief proceeding may effected either consent active party proceeding plainly case leave court accordingly application leave discontinue general principle although may exception rarely appropriate grant leave discontinue proceeding proceeded contested hearing seestahlschmidt v walford 1879 4 qb 217 alpha company limited 1903 1 ch 203 stevens v theatre limited 1903 1 ch 860 party defined position prepared case proceeded hearing ordinarily regarded unfair deprive party obtained forensic advantage advantage example even leave discontinue granted defendant gained advantage leave discontinue usually granted term preserve advantage seecovell matthew v french woolstone 1977 2 er 591 594 affirmed 1978 2 er 800 young austin young limited v british medical association 1977 2 er 884 sci operation pty limited v trade practises commission 1984 fca 52 1984 2 fcr 113 rydges hotel limited v charles ritz ltd 8 1987 12 ipr 75 view particularly regard quasi criminal nature proceeding state reached case would appropriate stage grant leave discontinue conclusion fortified circumstance apparent obstacle applicant claim would apparently overcome adjournment particular appears 1 order relied founding contempt endorsed notice party bound 2 served personally fourth fifth sixth defendant 3 motion contempt served personally defendant matter would require least court persuaded dispense compliance rule might persuaded case one non compliance bearing mind strict character contempt proceeding might thought unlikely court would prepared dispense three defect compliance moreover live question whether order respect contempt alleged imposed obligation respondent black j explained honour judgment obligation produce imposed notice produce subpoena effect honour order extend time compliance rather impose obligation produce reached final view matter presently advised least considerable difficulty applicant respect finally remedy sought sequestration fine rather attachment committal director defendant might thought unlikely remedy would advance production document question order assist plaintiff prosecute substantive case none overlook position express view one way whether case may failure produce document failure may important applicant substantive case however seems may remedy rule connection enforcement subpoena notice produce may afford far useful mean securing production document present application seems reason evidentiary deficiency already emerged account apparent difficulty referred far better matter brought head rather protracted many difficulty persist decline grant leave discontinue disposalleave discontinue refused applicant offer evidence circumstance case answer motion must dismissed cost application cost payable forthwithalthough sense contempt application discrete matter reality element plaintiff endeavour obtain discovery prosecute substantive proceeding submission cost payable forthwith without force balance consider matter discretion forthwith cost order warranted decline order cost assessed forthwith directionsi note plaintiff lay evidence substantive proceeding complete direct defendant entitled rely hearing without leave court lay evidence served 8 march 2013 respect practicable obtain affidavit proposed witness service written outline evidence witness expected give together document expected witness would prove suffice lieu affidavit adjourn proceeding 15 march 2013 9 45 direction |
Peninsula Park Retirement Estate [2010] QBCCMCmr 487 (25 October 2010).txt | peninsula park retirement estate 2010 qbccmcmr 487 25 october 2010 last updated 11 november 2010reference 0960 2010order adjudicatormade part 9 chapter 6body corporate community management act 1997number scheme 20578name scheme peninsula park retirement estateaddress scheme 2 wattle road rothwell qld 4022take notice pursuant application made abovementioned act byms valerie jennings owner lot 105i hereby orderthat body corporate carry resolution motion 3 included agenda general meeting held 26 october 2010 statement adjudicator reason decision ref 0960 2010 peninsula park retirement estate ct 20578the scheme peninsula park retirement estate community title scheme consisting 116 lot regulated thebody corporate community management act 1997 act thebody corporate community management standard module regulation 2008 standard module applicationthis application m val jennings co owner lot 105 applicant body corporate seeking following interim order prevent motion 3 passed general meeting 26 october 2010 body corporate comply withsection 152 quote major spending decided general meeting outcome sought include following body corporate withdraw motion 3 regarding appointment new resident manager obtain quote couple potential resident manager persection 152of standard module call another general meeting lot owner cast vote based quote preference regarding criterion assessment skill body corporate comply withsection 152of standard module submission made applicant support application include following body corporate proposes engage new resident manager caretaker period 12 month cost body corporate committee put forward motion considered next general meeting 26 october 2010 urging owner select certain couple act manager caretaker although many owner agree choice result observation 3 month trial period committee told resident decision made owner merely asked vote contract proposed expenditure involves excess 74 800 belief 2 quotation obtained accordance withsection 152of standard module however committee chairman advised applicant committee merely comply chapter 6 standard module done belief interim order made resolution carried contract entered even turn body corporate authorised enter contract party could sued party contract subject motion read follows pursuant tosection 114 1 thebody corporate community management standard module regulation 2008 body corporate engage partnership walter genie zimnyckj resident manager 1 january 2011 31 december 2011 rate 74 800 per annum inc gst paid amount 6 233 33 per month submissionspursuant section 271 invited body corporate make submission reply application response received chairman 22 october stating committee met 15 october resolved withdraw motion listed general meeting 26 october approve contract appointment resident manager 1 january 2011 obtain two quote position resident manager interested person andpresent quote general meeting held november jurisdictionthe application evidence dispute owner lot included community title scheme another owner lot included scheme section 227 1 act section 276 1 act provides adjudicator may make order equitable circumstance including declaratory order resolve dispute context community title scheme claimed anticipated contravention act community management statement b exercise right power performance duty act community management statement c claimed anticipated contractual matter engagement person body corporate manager service contractor community title scheme ii authorisation person letting agent community title scheme order may require person act prohibit person acting way stated order section 276 2 adjudicator order may contain ancillary consequential provision adjudicator considers necessary appropriate section 284 1 sub section 279 1 2 provide 1 adjudicator may make interim order satisfied reasonable ground interim order necessary nature urgency circumstance application relates examples1 adjudicator may stop body corporate carrying work common property dispute irregularity proceeding investigated resolved 2 adjudicator may stop general meeting deciding acting particular issue investigated resolved 2 interim order effect period longer 1 year stated order b may extended varied renewed cancelled adjudicator final order made c may cancelled later order made adjudicator lapse cancelled earlier lapse application withdrawn ii commissioner give person made application written notice section 241 rejecting application iii final order made adjudicator application referred determinationthe motion proposed appears contravene section 152 standard module provides proposed expenditure exceeds relevant limit major spending e lesser amount 1 100 x number lot scheme 10 000 two quotation obtained submitted general meeting however regard development occurred following lodgement dispute resolution application would appear matter resolved committee recognised motion ruled order nevertheless avoid uncertainty ordered body corporate carry resolution motion 3 regarding engagement resident manager |
Delmas v Yarra Ranges SC [2019] VCAT 1312 (29 August 2019).txt | delmas v yarra range sc 2019 vcat 1312 29 august 2019 last updated 29 august 2019victorian civil administrative tribunalplanning environment divisionplanning environment listvcat reference no p2662 2018 p163 2019permit application yr 2018 31catchwordssections 80 82 theplanning environment act1987 yarra range planning scheme mixed use development scale form c1z ddo14 bmo2 applicantp2662 2018 norman delmasp163 2019 co pty ltdresponsible authorityyarra range shire councilrespondentsp2662 2018 co pty ltdp163 2019 vicroads carol allen jorgia georgakopoulos norman delmassubject land1533 burwood highway tecomawhere heldmelbournebeforetracy watson memberhearing typehearingdate hearing10 july 2019date order29 august 2019citationdelmas v yarra range sc 2019 vcat 1312orderthe decision responsible authority varied permit application yr 2018 31 permit granted directed issued land 1533 burwood highway tecoma permit allows building work construct retail premise shop five dwelling reduction car parking requirement planning permit yr 2018 31 must contain condition notice decision grant permit issued yarra range shire council 3 december 2018 except following variation condition 1 amended read southern elevation modified generally accord concept plan prepared parallel workshop pty ltd dated 9 october 2018 b condition 5 amended read stormwater site drained legal point discharge shown stormwater drainage point discharge plan prepared yarra range shire council dated 14 03 2019 tracy watsonmemberappearancesfor applicantp2662 2018 norman delmas person p163 2019 mitch seach town planner responsible authoritygbenga tokun town planner respondentp2662 2018 mitch seach town planner p163 2019 carol allen person assisted barbara crisp norman delmas person vicroads jorgia georgakopoulos appearance informationdescription proposalit proposed develop subject site mixed use development comprising 154m2retail premise five dwelling two apartment three townhouses associated car parking nature proceedingp2662 2018 application undersection 82of theplanning environment act1987 |
Payne and Repatriation Commission [2011] AATA 86 (11 February 2011).txt | payne repatriation commission 2011 aata 86 11 february 2011 last updated 14 february 2011administrative appeal tribunaldecision reason decision 2011 aata 86administrative appeal tribunal 2010 0429veterans appeal division relester john payneapplicantandrepatriation commissionrespondentdecisiontribunaldeputy president hotopdate11 february 2011placeperthdecisionthe tribunal affirms decision review sgd hotop deputy presidentcatchwordsveterans affair veteran entitlement disability pension applicant rendered defence service royal australian navy ran 1979 2006 applicant obese commencement defence service applicant obese 1992 2009 applicant contracted type 2 diabetes mellitus diabetes 2009 applicant claimed obesity related defence service applicant claimed diabetes defence caused applicant obesity related defence service applicant diabetes defence caused decision review affirmedveterans entitlement act 1986 cth 5d 1 70 5 120 4 120b 3 196b 3 ands 196b 14 statement principle concerning diabetes mellitus instrument 12 2004 reason decision11 february 2011deputy president hotopintroductionlester john payne applicant born november 1961 served royal australian navy ran 25 june 1979 30 january 2006 ran service applicant rendered operational service purpose ofpart iiof theveterans entitlement act 1986 cth act 14 june 2001 30 july 2001 28 july 2003 6 november 2003 defence service purpose part iv act remainder ran service currently receipt disability pension act 18 august 2009 applicant lodged department veteran affair application increase rate disability pension basis suffering diabetes mellitus type 2 condition either war caused defence caused application form dr b j price noted relevant medical diagnosis type 2 diabetes applicant first consulted condition 31 july 2009 7 september 2009 delegate repatriation commission respondent decided applicant diabetes mellitus related ran service 17 december 2009 veteran review board vrb affirmed respondent decision 1 february 2010 applicant applied tribunal review decision respondent affirmed vrb issue tribunal determinationit common ground issue tribunal determination whether applicant diabetes mellitus defence caused injury defence caused disease purpose part iv act reason follow tribunal determined applicant diabetes mellitus defence caused injury defence caused disease purpose part iv act evidencethe evidence tribunal comprised document t1 t11 pp 1 116 lodged respondent accordance withs 37of theadministrative appeal tribunal act 1975 cth bundle document tendered applicant exhibit a1 report mr william hall dated 9 september 2010 tendered respondent exhibit r1 andthe oral evidence applicant relevant legislationthe actsection 70 act deal eligibility pension part iv act relevantly provides 5 purpose act death member force member part applies solely section 69a member peacekeeping force shall taken defence caused injury suffered member shall taken defence caused injury disease contracted member shall taken defence caused disease death injury disease case may arose attributable defence service peacekeeping service case may member term disease injury defined 5d 1 follows diseasemeans physical mental ailment disorder defect morbid condition whether sudden onset gradual development b recurrence ailment disorder defect morbid condition include c aggravation ailment disorder defect morbid condition temporary departure normal physiological state ii accepted range physiological biochemical measure result normal physiological stress example effect exercise blood pressure temporary effect extraneous agent example alcohol blood cholesterol level injurymeans physical mental injury including recurrence physical mental injury include disease b aggravation physical mental injury section 120 act prescribes standard proof applied making determination respect pension act relevantly provides 4 except making determination subsection 1 2 applies commission shall making determination decision respect matter arising act regulation including assessment assessment rate pension granted part ii part iv decide matter reasonable satisfaction note subsection affected section 120b section 120b relevantly provides 3 applying subsection 120 4 determine claim commission reasonably satisfied injury suffered person disease contracted person death person war caused defence caused material commission raise connection injury disease death person particular service rendered person b force statement principle determined subsection 196b 3 12 ii determination commission subsection 180a 3 upholds contention injury disease death person balance probability connected service section 196a act establishes repatriation medical authority authority 196b 1 provides main function authority determine statement principle purpose act section 196b 3 provides 3 authority view sound medical scientific evidence available probable particular kind injury disease death related eligible war service operational service rendered veteran b defence service hazardous service rendered member force ba peacetime service rendered member authority must determine statement principle respect kind injury disease death setting c factor must exist factor must related service rendered person said balance probability injury disease death kind connected circumstance service note 3 forfactor related servicesee subsection 14 section 196b 14 relevantly provides 14 factor causing contributing injury disease death isrelated servicerendered person b arose attributable service contributed material degree aggravated service f case factor causing contributing disease would occurred rendering service person ii change person environment consequent upon rendered service statement principlespursuant 196b 3 act authority determined statement principle sop concerning diabetes mellitus relevant sop material time force instrument 12 2004 sop sop relevantly state basis determining factorson sound medical scientific evidence available repatriation medical authority view probable thatdiabetes mellitusanddeath diabetes mellituscan related relevant service rendered veteran member force factor must related servicesubject clause 6 least one factor set clause 5 must related relevant service rendered person factorsthe factor must exist said balance probability diabetes mellitusordeath diabetes mellitusis connected circumstance person relevant service b relation totype 2diabetes mellitus obese period least 10 year clinical onset diabetes mellitus definitionsfor purpose statement principle obese mean increase body weight way fat accumulation result body mass index bmi 30 greater bmi w h² w person weight kilogram andh person height metre relevant service mean eligible war service operational service b defence service hazardous service type 2diabetes mellitus mean non insulin dependent diabetes mellitus relevant background informationthe following relevant background information appears document applicant enlistment medical examination 12 june 1979 height recorded 177 centimetre weight recorded 69 kilogram t3 p 4 engagement medical examination 9 april 1984 height recorded 180 centimetre weight recorded 86 8 kilogram t3 p 10 sea posting medical examination 2 november 1987 weight recorded 87 kilogram t3 p 13 subsequently referred weight surveillance programme completed noted wsp 2 t3 p 15 engagement medical examination 16 march 1992 weight recorded 100 kilogram noted bmi 30 8 w 2 t3 pp 34 35 seagoing medical examination 7 february 1996 weight recorded 103 kilogram noted bmi 31 79 w ii t4 p 76 medical examination 1 august 1996 fitness serve flight deck marshal weight recorded 106 5 kilogram noted bmi 32 87 w 3 fit flight deck marshal t3 p 49 1 august 1996 medical examination record also noted provisional diagnosis obesity advised lose weight intended take action regarding obesity t3 pp 47 49 medical examination 3 december 1997 weight recorded 102 kilogram noted advised lose weight t3 p 51 report dr geoff tyler dated 19 january 2000 noted amongst thing applicant weight 107 kilogram urinalysis clear t3 p 53 12 may 2000 weight recorded 110 kilogram noted bmi 33 4 w iii t4 pp 75 79 31 january 2002 recorded weight 112 kilogram bmi 33 6 t4 pp 75 80 16 july 2004 recorded weight 109 kilogram bmi 33 6 t4 pp 75 81 discharge ran 30 january 2006 weight 115 kilogram bmi 35 3 t4 p 75 30 july 2009 presented emergency department rockingham kwinana hospital provisional diagnosis chest pain type ii diabetes mellitus made t4 pp 82 83 4 august 2009 blood sugar test report stated glycosylated haemoglobin level 9 6 t4 p 84 report mr william halla report mr hall consultant general surgeon dated 9 september 2010 respect examination applicant 27 august 2010 concludes following summary assessment note mr payne type 2 diabetes mellitus apparent overweight since mid 1990s although noted military note suggestion lose weight seem achieved particularly diagnosis diabetes mellitus 2009 time apparently made concerted effort lose weight increase exercise activity family history brother diabetes another one significantly overweight noted currently overweight significant extent asking sic child stated three teen noticing file record appears child type 1 diabetes report time assessment must mild limited degree genetic background developing diabetes opinion significantly overweight large number year certainly since mid 1990s contributed developing type 2 diabetes mellitus therefore opinion mr payne diabetes mellitus type 2 variety developed progressively although apparently sub clinically 10 year certainly since mid 1990s since bmi greater 30 kg m² may range duration severity obesity tip individual type 2 diabetes note allowed remain significantly overweight 10 year final diagnosis diabetes made 2009 balance probability sufficient create disease therefore find probable become diabetic consequence obesity present throughout 10 year royal australian navy service exhibit r1 applicant casethe applicant case fully set bundle document tendered exhibit a1 case sufficiently summarised following extract document claimed casemr payne suffers diabetes mellitus mr payne maintains developed diabetes consequence navy service case became clinically obese 1992 despite regular medical examination review remained obese next12 14 year elective discharge january 2006 claim obesity service caused rather navy failed duty care failing take appropriate medical administrative action informing mr payne indeed obese informing mr payne medical ramification obese informing mr payne medical ramification prolonged obesity initiating appropriate medical administrative action clearly defined ran standard operating procedure sop weight management referral dietician would assisted mr payne addressing obesity initiating administrative action promotion restriction threat discharge etc would necessitated mr payne make appropriate effort reduce weight andcontinually classifying mr payne fit duty promotion posting action despite obvious obesity failing take appropriate medical administrative action despite action clearly concisely outlined ran sop ran inaction legitimised mr payne obesity result inaction also led mr payne continual belief weight issue result situation similar precedence sic detailed withinrepatriation commission v tuite life camp contributing cause merely setting event occurred noted ran inaction merely oversight one two occasion extended over12 14 year service included approximately 20 independent medical examination allof resulted mr payne classified fit service obesity medical factsmr payne joined royal australian navy ran july 1979 recorded weight 68 kg mr payne recorded body mass index bmi le 30 june 1979 march 1992 mr payne recorded bmi exceeding 30 march 1992 mr payne continued record bmi exceeding 30 early 1994 elective discharge january 2006 bmi exceeding 30 classifies individual obese despite regular medical assessment despite continued obesity mr payne classified medically fit oneveryroutine posting promotion medical examination pre post march 1992 mr payne despite continued obesity promoted highest non commissioned rank warrant officer posted major fleet unit mfus operational deployment solomon island middle east although verbally advised lose weight two occasion career mr payne subsequently passed fit occasion mr payne wasneverformally advised obese advised potential danger prolonged obesity ran despite aware mr payne prolonged obesity never initiated medical remediation action weight management routine referral dietician etc ran failed initiate administrative medical action address mr payne prolonged obesity navy medical document provide proof mr payne bmi reading pre post 1992 medically recognised connection obesity development diabetes mellitus diabetes defence caused considering whether injury disease arose attributable defence service causal connection need contributing cause however relationship service injury must temporal full federal court observed inrepatriation commission v tuite injury disease claimed arisen attributable serviceman period camp life question usually whether life camp contributing cause merely setting event occurred standard proof applied tribunal one reasonable satisfaction provided in 120 4 theveterans entitlement act 1986 turning factor 5 b statement principle requires evidence balance probability show relation totype 2 diabetes mellitus obese period least 10 year clinical onset diabetes mellitus evidence allowing fact mr payne obese march 1992 early 1994 discharge january 2006 point requirement 10 year period met satisfied relevant factor sop mr payne must also satisfy para 4 sop factor must related relevant service rendered person area mr payne need necessarily show obesity wascausedby service causal connection hisdisease diabetes mellitus service thefactor obesity berelatedto service mr payne submits regularly weighed recorded monitored ran medical department march 1992 discharge january 2006 bmi exceeded 30 march 1992 early 1994 discharge hewasobese march 1992 early 1994 discharge approx 12 year passed everymedical examination satisfy posting including operational posting promotion requirement career including conducted post march 1992 attempted passed mandatory physical testing pt career achieved mandatory individual readiness obligation post 1999 individual readiness testing compliance introduced 1999 wasneverinformed obese idea never advised danger associated obesity prolonged obesity although verbally advised two occasion august 1996 folio 49 december 1997 folio 51 lose weight subsequently passed fit occasion never subject medical action weight surveillance referral dietician etc result obesity never subject administrative action promotion restriction threat discharge etc result obesity andalthough fully aware continued obesity ran failed duty care failing takeanyappropriate action address obesity negate possibility future diabetes post diagnosissince diagnosed diabetes mr payne reduced weight approximately 18 kg self manages diet significantly reduced alcohol intake purchased gym membership attends local gym 2 3 occasion per week diabetes checked regularly local practitioner confirmed disease well managed lifestyle medication summationmr payne belief fundamental failure ran inform educate danger obesity prolonged obesity take necessary action identifying assisting reducing weight non obese level continual action passing mr payne fit promotion posting action despite obvious obesity inadvertently led mr payne believing subconsciously major problem weight inaction ran also indicates navy continually accepted mr payne obesity service related condition endorsed acceptance promotion operational posting seen mr payne post diagnosis remedial action disease diabetes mellitus may well avoided navy taken appropriate medical administrative action required original emphasis applicant gave oral evidence evidence significantly add content abovementioned written statement case unnecessary refer reason analysisit common ground applicant suffers type 2 diabetes mellitus tribunal find applicant type 2 diabetes mellitus disease injury defined 5d 1 act basis evidence tribunal reasonably satisfied find clinical onset applicant type 2 diabetes mellitus occurred 2009 pursuant 120 4 120b 3 act tribunal reasonably satisfied applicant type 2 diabetes mellitus defence caused sop upholds contention disease balance probability connected defence service pursuant clause 5 b sop factor must exist said balance probability applicant type 2 diabetes mellitus connected circumstance defence service obese period least 10 year clinical onset diabetes mellitus tribunal find basis evidence applicant body mass index bmi 30 whole period 1992 2009 clinical onset type 2 diabetes mellitus occurred accordingly obese defined clause 8 sop whole period factor referred para b clause 5 sop therefore exists applicant case critical question however whether factor related applicant defence service required clause 4 sop section 196b 14 act set para g various alternative circumstance factor causing contributing disease related service purpose sop determined section present case para c e g 196b 14 clearly inapplicable regard para b f 196b 14 question whether relevant factor namely applicant obese period least 10 year clinical onset diabetes mellitus 2009 arose attributable defence service para b contributed material degree aggravated defence service para would occurred rendering defence service change environment consequent upon rendered service para f applicant set abovementioned written statement case way claim relevant factor case namely obese period least 10 year clinical onset diabetes mellitus related defence service applicant however acknowledges written statement claim isnotthat obese wascausedbyhis defence service rather ran failed duty care failing inform obese failing advise medical ramification prolonged obesity andfailing take medical administrative action respect obesity instead continually classifying medically fit duty respect posting promotion submits obesity thereby related defence service tribunal accept applicant submission submission fails take account 196b 14 act defines phrase related service purpose sop determined section circumstance set para g 196b 14 act involves acausal connectionbetween relevant factor relevant service tribunal opinion none respect applicant submits obese period least 10 year clinical onset diabetes mellitus related defence service involves causal connection kind contemplated relevant paragraph 196b 14 act specifically tribunal reasonably satisfied applicant obese period least 10 year clinical onset diabetes mellitus factor set clause 5 b sop arose attributable defence service 196b 14 b orwas contributed material degree aggravated defence service 196b 14 orwould occurred rendering defence service change environment consequent upon rendered service 196b 14 f accordingly tribunal find factor related service defined 196b 14 act respect applicant defence service common ground none factor set clause 5 sop exists applicable applicant case tribunal concludes therefore clause 4 sop requires least one factor set clause 5 related relevant service satisfied applicant case follows sop uphold contention applicant type 2 diabetes mellitus balance probability connected defence service case pursuant 120b 3 act tribunal cannot reasonably satisfied purpose 120 4 act applicant type 2 diabetes mellitus defence caused disease parting matter appropriate tribunal comment applicant claim ran failed duty care summarised paragraph 25 tribunal opinion applicant claim substance tribunal note common ground applicant advised lose weight following service medical examination 1 august 1996 following service medical examination 3 december 1997 far losing weight continued gain weight thereafter although applicant submitted never ordered directed lose weight tribunal accepts respondent submission advised ran medical officer lose weight applicant responsibility reduce weight ran held responsible failed heed act upon advice regard applicant claim continually classified ran medical officer fit duty respect posting promotion notwithstanding obesity tribunal accepts respondent submission ran responsibility ensure applicant fit service duty regular service medical examination underwent conducted solely purpose following examination found notwithstanding obesity continued fit service tribunal note furthermore medical evidence indicates applicant obesity rendered unfit service decisionfor reason tribunal affirms decision review certify 32 preceding paragraph true copy reason decision herein deputy president hotop signed sgd brodie associatedate hearing 17 january 2011date decision 11 february 2011representative applicant mr robbinsrepresentative respondent mr c ponnuthuraicompensation review branch department veteran affair |
P v. N [2006] QDC 467 (22 December 2006).txt | p v n 2006 qdc 467 22 december 2006 last updated 1 february 2007district court queenslandcitation p v n 2006 qdc 467parties pplaintiffvndefendantfile 61 04proceeding hearingoriginating court district court southportdelivered 22 december 2006delivered southporthearing date 7 march 2006 8 march 2006 9 march 2006 24 october 2006 25 october 2006judge newton dcjorder 1 n retain title property 23 derwent avenue helensvale content thereof free claim p 2 n pay p within 60 day date order sum 90 324 52 3 n liable indemnify p respect debt incurred jointly relationship 4 party solely entitled exclusion personalty property possession 5 party retain respective superannuation entitlement sole property 6 order cost catchword family law child welfare de facto relationship legislation wherepart 19of theproperty law act1974 |
WINTLE -v- DEAN [2012] WASC 165 (30 April 2012).txt | wintle v dean 2012 wasc 165 30 april 2012 last updated 22 may 2012jurisdiction supreme court western australiain criminalcitation wintle v dean 2012 wasc 165coram martin cjheard 30 april 2012delivered 30 april 2012file sja 1127 2011between joshua noel wintleappellantandpaul anthony deanrespondenton appeal jurisdiction magistrate court western australiacoram magistrate mcintyrefile mh 3568 2011 mh 3569 2011 mh 3570 2011catchwords criminal law appeal sentence dangerous driving contrary tos 61of theroad traffic act 1974 wa plea guilty serious instance dangerous driving involving property damage fine imposed magistrate exceeded maximum monetary penalty first dangerous driving offence licence suspension pursuant tos 105of thesentencing act 1995 wa appropriatelegislation criminal appeal act 2004 wa 14 41road traffic act 1974 wa 61sentencing act 1995 wa 105result appeal allowedthe sentence imposed appellant magistrate mcintyre 7 november 2011 respect conviction dangerous driving contrary tos 61of theroad traffic act 1974 wa set asidethe appellant pay fine 600the appellant motor vehicle driver licence suspended period commencing 7 november 2011 ending 30 april 2012category drepresentation counsel appellant mr fortrespondent m c dornsolicitors appellant fort legalrespondent state solicitor western australiacase referred judgment nilmartin cj judgment delivered extemporaneously 30 april 2012 edited transcript 1this appeal sentence imposed upon appellant dangerous driving contrary tos 61of theroad traffic act 1974 wa road traffic act take circumstance gave rise offence appellant pleaded guilty transcript proceeding magistrate 7 november 2011 particular address prosecutor outlined fact magistrate disputed appellant 2at 5 30 pm 26 june 2011 appellant drove holden commodore west rockford street mandurah near junction peel street lost control road surface travelling rockford street leaving burnout tyre mark 20 metre length 3as result loss control vehicle mounted front lawn unit 1 10 rockford street mandurah narrowly missing telegraph pole colliding 1 metre high garden bed retaining wall causing brick crack time incident road condition damp raining day caused damage retaining wall accused cause vehicle stop wait long enough could provide name address owner damaged property 4he drove west along rockford street tyre losing traction spoken police participated video record interview video record interview stated burswood casino cousin time offence statement false 5as result matter appellant charged three offence first wilfully misleading person effecting discharge person duty theroad traffic act 1974 second dangerous driving contrary tos 61of theroad traffic act although consequence original charge downgraded reckless dangerous driving third charge failing stop involved incident property damaged 6in respect first third charge appellant fined 500 respect second charge charge dangerous driving appellant fined 1 000 disqualified holding obtaining motor driver licence 15 month 7before turning ground appeal refer appellant personal circumstance 24 year age time offence continuous employment flyin flyout heavy duty mechanic position held number year prior appearing magistrate however prior record offending significant offence present purpose one driving influence alcohol committed april 2009 another offence driving blood alcohol level excess 0 08 committed august 2007 consequence conviction appellant disqualified holding motor driver licence 8there many ground appeal include ground effect fine imposed magistrate exceeded maximum ground must allowed maximum penalty available first offence dangerous driving unders 61of theroad traffic actis fine 800 magistrate imposed fine exceeded maximum amount 200 notwithstanding plea guilty earliest opportunity 9because magistrate plainly exceeded jurisdiction conferred upon court must set aside sentence imposed offence dangerous driving resentence appellant conclusion applies fine imposed magistrate entire sentence imposed magistrate dangerous driving including sentence disqualification holding driver licence sentence must regarded composite sentence error one part sentence established follows court exercise power conferred bys 14of thecriminal appeal act 2004 wa criminal appeal act resentence appellant exercise discretion respect sentence properly imposed 10in circumstance unnecessary consider ground appeal would observe appear force argument considering exercise power disqualify conferred bys 105of thesentencing act 1995 wa sentencing act circumstance power disqualify specifically provided respect offence appellant convicted would appropriate magistrate give notice counsel appearing behalf appellant considering course thereby provide counsel opportunity make submission topic 11it also seems force argument magistrate proceeded sentence basis appellant probably intoxicated time offence regard prior record false statement made police intoxication provided explanation failure stop provision false information police whereas fact evidence sustain inference conclusion however magistrate plainly exceeded jurisdiction conferred upon unnecessary rule upon ground noting appeared force 12it therefore necessary resentence appellant appellant offence serious offence dangerous driving given length skid mark scene associated factor property damage leaving scene without reporting accident false statement made police course appellant separately punished respect two offence convicted penalty imposed respect dangerous driving cannot result double punishment offence yet appropriate think place offence dangerous driving context offence committed appellant particular risk appellant posed safety public apparent disrespect law authority 13counsel appellant properly conceded perhaps fortunate greater injury property person suffered consequence event 26 june 2011 however take account road wet submission put behalf appellant magistrate effect occurrence came consequence inattention dangerous driving circumstance however limit much weight give submission given length tyre mark left road clearly indicate driving vehicle speed manifestly excessive given road condition prevailed 14the sentence properly imposed upon appellant take account seriousness offence dangerous driving pleaded guilty allowance must made mitigatory effect guilty plea accordingly seems financial component penalty imposed fine amount 600 15in relation use power disqualify unders 105of thesentencing act starting point consideration issue thats 61of theroad traffic actdoes provide licence disqualification event conviction first offence section offence appellant first conviction section 16however 105of thesentencing actprovides court general power impose disqualification motor driver licence part sentence imposed conviction offence falling within scope section defined section motor vehicle offence doubt offence appellant convicted come within scope section 17the question therefore whether case circumstance offence personal circumstance offender give rise conclusion power conferred bys 105of thesentencing actshould exercised notwithstanding specific provision made disqualification respect offence appellant convicted 18when considering question take account view offence committed appellant serious offence take account risk public safety offence represented take account lack mitigation available appellant prior record appellant entitled credit benefit prior record regard two driving offence referred 19i nevertheless take account already done plea guilty provided appellant earliest opportunity balancing competing consideration seems appropriate case exercise power disqualification conferred bys 105of thesentencing act however take account circumstance appellant particular dependence upon motor driver licence satisfactory discharge employment obligation 20i note also consequence sentence imposed magistrate appellant disqualified driving period five month three week seems period adequately reflects seriousness offence convicted sufficiently meet requirement specific general deterrence relation offence kind pursuant tos 41of thecriminal appeal act court may order sentence taken effect day prior date order 21therefore propose allow appeal set aside sentence imposed magistrate respect appellant conviction dangerous driving instead sentence impose fine 600 order appellant disqualified holding obtaining driver licence 7 november 2011 today date namely 30 april 2012 basis sentence take effect imposed magistrate 22the sentence achieves outcome whereby disqualification already served appellant satisfies sentencing objective referred |
YBCF and Minister for Immigration and Citizenship [2007] AATA 1863 (17 October 2007).txt | ybcf minister immigration citizenship 2007 aata 1863 17 october 2007 last updated 17 october 2007administrative appeal tribunaldecision reason decision 2007 aata 1863administrative appeal tribunal 2007 4673general administrative division reybcfapplicantandminister immigration citizenshiprespondentdecisiontribunalsenior member b j mccabedate17 october 2007placesydneydecisionthe application reinstatement unders 42a 10 theadministrative appeal tribunal act 1975is refused sgd senior membercatchwordspractice procedure application reinstatement identifiable error application refusedadministrative appeal tribunal act 1975ss 42a 1b 42a 10 goldie v minister immigration multicultural indigenous affair 2002 fcafc 367 2002 121 fcr 383reasons decision17 october 2007senior member b j mccabethe applicant fighting minister attempt deport attempt began 1996 minister delegate refused grant applicant protection visa applicant engaged migration agent commenced proceeding tribunal 2 may 1996 seeking review decision migration agent subsequently wrote tribunal asked proceeding dismissed order dismissing proceeding unders 42a 1b theadministrative appeal tribunal act 1975was made 9 september 1996 applicant asked proceeding reinstated pursuant tos 42a 10 act appears proceeding last opportunity avoid deportation currently immigration detention although minister given undertaking applicant removed australia pending outcome tribunal proceeding power reinstate unders 42a 10 available earlier proceeding dismissed error necessary consider applicant account material determine error case satisfied error free consider whether proceeding reinstated error end inquiry power reinstate application dismissedan applicant tribunal free withdraw discontinue application review time 42a 1a notification withdrawal given tribunal deemed dismissed application without proceeding review 42a 1b proceeding concluded dismissed tribunal may reinstate proceeding circumstance set act 42a 6 circumstance proceeding may reinstated withdrawn opposed dismissal order made pursuant tos 42a 2 applicant failed appear set in 42a 10 sub section permit tribunal reinstate application f appears tribunal application dismissed error worderroris defined legislation full federal court held ingoldie v minister immigration multicultural indigenous affair 2002 fcafc 367 2002 121 fcr 383that confined administrative error part tribunal staff enough act dismissal attended error 28 wilcox downes jj explained 29 fault may lain elsewhere provided induced error example mistake instruction solicitor representative party might wrongly consented dismissal order filed notice discontinuance fault would attach tribunal solicitor mistake induced dismissal action could properly said application dismissed error dismissal proceeding case attended error applicant gave evidence issue hearing reinstatement explained living griffith friend 1996 friend used migration agent melbourne mr harold jones applicant went melbourne speak mr jones application protection visa applicant say mr jones told paid mr jones quantity money mr jones would arrange appeal minister decision deny visa applicant said good command english mr jones tended communicate friend signed application review lodged tribunal made clear understand basis application insisted evidence paid money mr jones expected get whatever course action thought appropriate according evidence know mr jones planned name said mr jones indicated variety option open said confident one option would yield outcome sought applicant say recall mr jones advising withdraw application tribunal applicant claim surprised learn recently mr jones formally withdrawn proceeding 1996 insists authorise mr jones terminate proceeding say signed nothing assumed proceeding still foot mr jones statement issue included document tab 4 page 5 document mr jones say discussed flaw case client noted client advised pursue avenue would meet objective accept applicant claim believed proceeding still foot recently several month ago acknowledged paid mr jones money advice regarding case since 1996 given instruction retained migration agent act behalf behalf wife relation matter without mentioning tribunal proceeding say never occurred call mr jones inquire fate application applicant plainly stupid man extensive dealing minister migration agent even unaware advance mr jones proposed withdrawing proceeding must realised application dealt soon thereafter statement issue suggests applicant agreed migration agent recommendation discontinue proceeding applicant say wrong explanation occurred assist evidence suggests view either way whether tribunal proceeding commenced concluded placed hand migration agent view achieving particular outcome care end came migration agent told proposed respect proceeding contemporaneous document suggest agent precisely applicant unlikely taken different view evidence mr jones made mistake execution client instruction misunderstand ignore applicant asked even accept applicant aware time tribunal proceeding withdrawn clear decision withdraw proceeding effectively within scope applicant instruction mr jones applicant understood advocate would try variety option might yield positive outcome left execution strategy advocate applicant apparently dispensed mr jones service long proceeding tribunal terminated make contact mr jones subsequently made contact migration agent failure follow mr jones discus proceeding anyone else suggests consciously given tribunal proceeding consistent mr jones assertion statement issue client unlikely persist application conclusionthe dismissal proceeding tribunal pursuant tos 42a 1a act attended obvious error follows discretion reinstate proceeding unders 42a 10 enlivened application reinstatement must therefore refused certify 14 preceding paragraph true copy reason decision herein senior member bernard j mccabe signed associate stephen gradydate hearing 12 october 2007date decision 17 october 2007for applicant self representedfor respondent mr smith counsel |
Brown v R [2008] NSWCCA 306 (17 December 2008).txt | brown v r 2008 nswcca 306 17 december 2008 last updated 19 december 2008new south wale court criminal appealcitation brown v r 2008 nswcca 306file number 2005 6785hearing date 3 november 2008judgment date 17 december 2008parties david charles brown appellant crownjudgment mcclellan cj cl hall j harrison jlower court jurisdiction district courtlower court file number 05 51 0103lower court judicial officer gibson adcjlower court date decision 18 october 2006counsel francis appellant p g ingram crown solicitor legal aid commission nsw appellant director public prosecution crown catchword criminal lawappeal new trial inquiry convictionappeal new trialmiscarriage justicemisdirection non directionwhether trial judge failed adequately direct jury relation identification evidenceevidence act 1995s 116criminal lawappeal new trail inquiry convictionappeal new trialmiscarriage justicewhether trial miscarried account prosecutor inviting jury consider submission would victim lie whether allowing jury consider question reversed onus prooflegislation cited crime act 1900evidence act 1995criminal appeal act 1912category principal judgmentcases cited dhanhoa v queen 2003 hca 40 2003 217 clr 1domican v queen 1992 hca 13 1992 173 clr 555gardiner v r 2006 nswcca 190 2006 162 crim rpalmer v queen 1998 hca 2 1998 193 clr 1papakosmas v queen 1999 hca 37 1999 196 clr 297r v clarke 1997 97 crim r 414r v coe 2002 nswcca 385at 67 r v demiroz 2003 nswcca 146r v hodge 2002 nswcca 10r v ita 2003 nswcca 174 2003 139 crim r 340r v moussa 2001 nswcca 427 2001 125 crim r 505r v villa 2005 nswcca 4r v wilson 2005 nswcca 20 2005 62 nswlr 346south v regina 2007 nswcca 117trudgett v r 2008 nswcca 62at 28 zammit v r 1999 nswcca 65 1999 107 crim r 489texts cited decision leave appeal refused appeal dismissed judgment court ofcriminal appeal6785 2005mcclellan cj clhall jharrison jwednesday 17 december 2008brown david charles v rjudgment1mcclellan cj cl applicant tried together spyro sophiadakis indictment pleaded 26 may 2004 south grafton applicant co accused shot jonathan koen intent murder count alleged contravention ofs 29of thecrimes act1900 |
Fantaye v Fortron Insurance Group P_L (General) [2006] NSWCTTT 129 (13 March 2006).txt | fantaye v fortron insurance group p l general 2006 nswcttt 129 13 march 2006 last updated 16 march 2006fantaye v fortron insurance group p l general 2006 nswcttt 129 13 march 2006 consumer trader tenancy tribunalgeneral divisionapplication gen 05 58223applicant g h fantayerespondent fortron insurance group pty ltdappearance applicant personrespondent represented writinghearing 1 february 2006 parramattaorderthe respondent pay applicant sum 1 000 00 31 march 2006 reason decisionapplicationby application lodged tribunal 6 december 2005 applicant g h fantaye sought order respondent fortron insurance group pty ltd respondent pay sum 1 000 00 claim arises claim made applicant motor vehicle insurance policy issued respondent respect loss suffered following damage insured vehicle applicant evidence bought vehicle 2001 dealt agent respondent capital corp capital corp referred insurance agreement respondent agent officer capital corp completed proposal policy schedule arranged execution applicant behalf respondent capital corp also acted representative g e automotive financial service provided finance applicant purchase vehicle applicant paid premium requested respondent following damage vehicle respondent agreed pay applicant claim however reduced amount paid reference reduction agreed value vehicle applicant received paid invitation renew respondent sum insured 6 600 00 applicant claim respondent cannot rely contract particular agreed price purchase price circumstance completed contract arranged payment premium based different amount referred contract purchase price 8 999 00 evidence applicant respondent agent clearly knew detail purchase price agent also acted agent finance company advised applicant expressly amount insured would include total amount liable pay agreement respondent casethe respondent appear person hearing rather relied facsimile dated 9 january 2006 enclosed copy determination insurance ombudsman service ltd dated 26 september 2005 copy submission ombudsman dated 4 july 2005 copy proposal policy schedule copy letter applicant 24 may 2005 copy letter applicant dated 20 july 2005 decisioni satisfied applicant entitled payment sum 6 600 00 respect provision insurance respect loss suffered following damage vehicle received 5 600 satisfied respondent notice purchase price agent involved completion proposal policy schedule particular detail regarding purchase price respondent calculated applicant premium number year based amount applicant paid premium accept insurance policy provide definition purchase price agreed value determined excludes amount interest applicant number year paid premium higher rate respondent known amount calculated reference purchase price knew different figure view respondent estopped enforcing contract regard thereby reducing agreed value liable pay balance amount agreed 1 000 order made accordingly baldingsenior memberconsumer trader tenancy tribunal13 march 2006 |
Casper v WorkCover Queensland [2000] QIC 27; 164 QGIG 157 (8 June 2000).txt | casper v workcover queensland 2000 qic 27 164 qgig 157 8 june 2000 last updated 21 november 2000industrial court queenslandworkers compensation act 1990 6 7 appeal decision industrial magistratepeter arthur casper workcover queensland c4 2000 president hall 8 june 2000decisionthe issue industrial magistrate court whether appellant worker purpose theworkers compensation act 1990 industrial magistrate held worker entered contract employment alleged employer vizbudbay pty ltd worship took view held mutuality obligation intention create legal relation appeal court accepted appellant cannot held worker party contract employment accepted also establish contract employment appellant establish mutuality obligation intention party legally bound appeal pleaded ground error law error law worship stated every legal principle precision accuracy referred every relevant reported decision basis asserting decision fact manifestly unjust compel conclusion unidentifiable error law submission rather different appeal proceeded appeal way rehearing think follows 6 7 2 theworkers compensation act 1990that appeal truth appeal way rehearing dealt matter basis appellant interested increasing logable hour hope gaining employment commercial pilot approached mr mcvinish budbay pty ltd provided plane pilot used rambler parachuting club toogoolawah brisbane valley sought opportunity without reward fly plane weekend order get hour industrial magistrate held find arrangement volunteered make available every second sunday hope getting flight getting hour obligation fly every second sunday wanted fly turn might get flight requirement anything pilot available including allan mcvinish wanted opportunity fly increase flying hour sometimes opportunity presented sometimes worship finding appellant obligation attend site saturday worship finding budbay pty ltd obligation allow fly plane conclusion mutuality obligation intent create legal relation inevitable must remembered thatwarren v coombes 1979 142 clr 521at 551 per gibbs acj jacob murphy jj allow appellate court substitute inference drawn fact undisputed disputed established finding court first instance much made significant measure control mr mcvinish exercised appellant activity flying aircraft whilst presence control accurately right exercise control critical characterisation contract contract employment existence control necessarily evidence contract employment exists seems case control exercised sort control thealter egoof proprietor aeroplane might expected exercise order protect aeroplane discharge obligation parachutist flying circumstance dismiss appeal asked deal matter cost basis relevant power 6 7 3 theworkers compensation act 1990 although provision refers cost appeal discretion industrial court cost provision traditionally awarded basis cost follow event doubtless statutory discretion cannot given established practice justification withholding grant cost developed case vizthat authority directly point seems quite insubstantial order appellant pay respondent cost incidental appeal told party agree quantum cost lest expectation prove incorrect reserve matter assessment cost dated eighth day june 2000 r hall president released 8 june 2000appearances mr p gorman instructed quinlan miller treston solicitor appellant mr g jones counsel instructed workcover queensland respondent |
Tsay & Lou (No. 2) [2018] FamCAFC 245 (5 December 2018).txt | tsay lou 2 2018 famcafc 245 5 december 2018 last updated 13 december 2018family court australiatsay lou 2 2018 famcafc 245family law appeal cost application cost discontinued appeal applicant wife earns income except interim spousal maintenance receive social security benefit husband numerous property business interest husband failed comply direction appeal registrar discontinued appeal wholly unsuccessful pursuant tos 117 2a e thefamily law act 1975 cth wife put unnecessary expense preparing appeal justifying circumstance cost party party basis cost ordered family law act 1975 cth 117 2a e bant clayton cost 2016 fam lr 31 2016 famcafc 35bhatt acharya 2017 famcafc 71medlow medlow 2016 flc 93 692 2016 famcafc 34parke estate late parke 2016 flc 93 748 2016 famcafc 248applicant m tsayrespondent mr loufile number syc1304of2018appeal number ea94of2018date delivered 5 december 2018place delivered sydneyplace heard sydneyjudgment ryan jhearing date 5 december 2018lower court jurisdiction federal circuit court australialower court judgment date 9 july 2018lower court mnc 2018 fcca 2008representationcounsel applicant mr heazlewoodsolicitor applicant mclachlan thorpe partnerssolicitor respondent lawside lawyersorders 1 respondent pay applicant cost discontinued appeal amount 2 729 within one 1 month date order note form order subject entry order court record notedthat publication judgment court pseudonymtsay lou 2 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 94 2018file number syc 1304 2018ms tsayappellantandmr lourespondentex tempore reason judgmentms tsay wife make application cost discontinued appeal appeal bought mr lou husband relates interlocutory financial order made 9 july 2018 relevantly order require husband pay spousal maintenance arrears 13 840 lump sum payment interim spousal maintenance amount 72 800 calculated 1 400 per week one year wife application interim property settlement dismissed suite order also made reflected party agreement dealing particular asset however mechanic dealing seem contentious perhaps subject appeal even though underlying import order agreed example order wife take possession motor vehicle payment mortgage arrears proceeds sale property road paid controlled monies account sale property suburb notice appeal filed 12 july 2018 notice discontinuance filed 15 october 2018 wife application cost appeal today filed 8 november 2018 pursuant tos 94aaa 3 thefamily law act 1975 cth act chief justice directed appropriate application determined single judge backgroundso understand today application necessary outline brief background fact party married june 2016 separated january 2018 one child c born april 2017 child child life wife prior separation party lived suburb husband interest property owned either various corporate entity claim number loan related property however nature ownership property legitimacy loan matter dispute party determined final hearing primary judge found wife earns income dispute receive social security benefit 8 may 2018 order made husband pay wife interim spousal maintenance time hearing wife application 6 july 2018 arrears amount 13 840 wife sought payment amount plus lump sum interim spousal maintenance order amount 75 000 partial property settlement amount 25 000 husband initially sought wife application dismissed however plain trial reason agreement emerged sale property matter outlined time husband opposed wife application interim spousal maintenance interim property settlement order focus husband appeal application costssection 117 1 act governing provision concerning cost provides general rule subject tos 117 2 party proceeding act bear cost section 117 2 requires finding justifying circumstance making order cost found court may make order cost court considers considering order made court required regard factor listed in 117 2a consider thes 117 2a factor relevant first factor financial circumstance party 1172a wife contends income apart spousal maintenance uncontroversial care party infant child trial reason reveal receive social security benefit wife received support family member amount 50 000 however monies applied legal expense living expense husband primary judge found difficult understand precisely financial situation however satisfied able make spousal maintenance payment wife considerable property interest nothing said solicitor morning suggests husband capacity pay amount sought proceed basis next factor i 117 2a c conduct party relevant relation husband conduct subsequent filing notice appeal 12 july 2018 27 august 2018 appeal registrar made direction husband file serve written submission 3 september 2018 leave appeal granted per principle set inmedlow medlow 2016 flc 93 692 3 september 2018 day submission due husband solicitor sent email appeal registrar seeking extension time stating counsel unable meet timeframe formal application extension time made husband explanation provided either email affidavit evidence deadline could met wife filed submission 10 september 2018 compliance registrar direction husband conduct failing comply direction appeal registrar factor given weight though consider determinative particularly appears face failure comply direction may part responsibility husband former solicitor note filed notice ceasing act 12 september 2018 may husband diligently attend conduct litigation next matter consider whether husband wholly unsuccessful appeal 117 2a e agree submission made counsel wife husband appeal heard merit consistent authority would find wholly unsuccessful bant clayton cost 2016 fam lr 31 bant accept full court came different view inbhatt acharya 2017 famcafc 71 authority cited proposition discontinued appeal one wholly unsuccessful remain view outlined inbant see alsoparke estate late parke 2016 famcafc 248 2016 flc 93 748 effect question whether husband wholly unsuccessful arise case section 117 2a g allows court consider matter considers relevant case unarguable wife incurred cost preparing appeal unnecessarily circumstance financial situation precarious factor place weight view fact wife incurred cost unnecessarily amount justifying circumstance balance mean order cost wife favour made quantumthe wife seeking cost amount 8 328 70 reason fail application cost presented indemnity basis type matter would attract indemnity cost much conceded counsel wife solicitor went trouble preparing bill calculated indemnity basis defies logic without considerable difficulty able establish cost sought calculated party party basis amount 6 193 amount provides eleven hour preparation attendance wife solicitor understood solicitor prepare submission filed case prepare application cost three paragraph affidavit filed support appeal yet listed hearing figure eleven hour unsustainable appropriate view allow solicitor cost rate three hour counsel wife said calculated rate 158 per hour come amount 474 agree application cost simple necessitated retention counsel appear course make criticism wife choosing brief counsel question application adverse cost whether decision visited husband view best material provided propose allow 500 today appearance counsel obviously briefed prepare document filed proceeding amount sought appropriate case appropriate order cost amount 2 729 make order affect order allow payment within month certify preceding nineteen 19 paragraph true copy reason judgment honourable justice ryan 5 december 2018 associate date 6 december 2018 |
Mark Gerard Ireland as Executor of the Estate of the late Charles Stuart Gordon v Sandra Jane Retallack & Ors (No 2) [2011] NSWSC 1096 (19 September 2011).txt | mark gerard ireland executor estate late charles stuart gordon v sandra jane retallack or 2 2011 nswsc 1096 19 september 2011 last updated 20 september 2011supreme courtnew south walescase title mark gerard ireland executor estate late charles stuart gordon v sandra jane retallack or 2 medium neutral citation 2011 nswsc 1096hearing date 8 september 2011decision date 19 september 2011jurisdiction equity divisionbefore pembroke jdecision see paragraph 67 70 catchword cost court control solicitor cost section 98 4 civil procedure act capping cost section 99 2 civil procedure act disallowing costswasted cost expenditure incurred without reasonable cause recoverableexpert report unnecessary reasonable carry work cost relateevidence irrelevant reasonable carry work cost relatesolicitors acting behalf executor duty responsibilitiestrusts succession payment cost proceeding specific property residue section 93trustee actlegislation cited civil procedure act 2005legal profession act 2004probate administration act 1898supreme court act 1981 uk trustee act 1925cases cited australian performing right association limited v marlin 1999 fca 1006beach petroleum nl v johnson 2 1995 57 fcr 119breen v williams 1996 186 clr 71foord v brock 2005 nswca 156hadid v lenfest communication 2000 fca 628harrison v schipp 2002 nswca 213 2002 54 nswlr 738ideal waterproofing pty limited v buildcorp australia pty limited 2006 nswsc 155idoport pty limited v national australia bank limited 2007 nswsc 23mark gerard ireland executor estate late charles stuart gordon v sandra jane retallack 2011 nswsc 846kelly v jowett 2009 nswca 278kendirjian v ayoub 2008 nswca 194leary v leary 1987 1 wlr 72lemoto v able technical pty ltd 2005 nswca 153 2005 63 nswlr 300mills v cannon brewery co limited 1920 2 ch 38murdocca v murdocca 2 2002 nswsc 505na j investment pty ltd v minister administering water management act 2000 2 2011 nswlec 98ridehalgh v horsefield 1994 ch 205secured income real estate aust ltd v st martin investment pty ltd 1979 hca 51 1979 144 clr 596sherborne estate 2 vanvalen v neeves 2005 nswsc 1003 2005 65 nswlr 268sony entertainment australia limited v smith 2005 fca 228sparnon v apand pty ltd federal court australia von doussa j 4 march 1998 unreported speight v gaunt 1883 9 app ca 1treadwell v hickey 2010 nswsc 1119wentworth v wentworth 1996 nswca 548woolf v snipe 1933 hca 5 1933 48 clr 677texts cited category costsparties mark gerard ireland executor estate late charles stuart gordon plaintiffsandra jane retallack first defendantgordon family corporation pty ltd second defendantrichard apice third defendantrepresentation counsel counsel e c muston plaintiffl ellison sc first defendantp p loughlin third defendant trust dempsey sc argyle lawyersd h murr sc richard apice solicitor solicitor argyle lawyer pty ltd plaintiffking cain solicitor first defendantmakinson apice lawyer second third defendantsfile number 2010 00380339publication restriction judgmentintroductionthis cost application arising decision given 12 august 2011 ireland v retallack 2011 nswsc 846 previously made order separate determination certain question construction arising testator hearing therefore construction suit explained paragraph 34 38 principal judgment relief sought summons event misdirected course reason also expressed criticism irrelevant evidence tendered wasted expenditure incurred behalf estate criticism primarily directed solicitor plaintiff executor largely concerned limited preparation unnecessary expert report stated among thing would consider whether circumstance called order disallowing cost pursuant tosection 99 2 thecivil procedure act 2005 direction hearing 26 august 2011 also stated whether made asection 99order would make fixed sum cost order pursuant section 98 4 act result gave leave plaintiff solicitor firm called argyle lawyer pty limited argyle separately represented senior counsel written submission argyle conceded applying ordinary principle taxation assessment court may form view cost incurred respect objectively necessary reasonably incurred connection disposition construction suit regard statement minimum position jurisdictional frameworkthe jurisdiction court determine amount cost allowed proceeding well established superior court long general jurisdiction ascertain taxation moderation fixation cost charge disbursement claimed attorney solicitor client woolf v snipe 1933 hca 5 1933 48 clr 677at 678 dixon j jurisdiction enables court regulate charge made work done attorney solicitor court capacity prevent exorbitant demand woolf v snipe supra general jurisdiction added recent time number statutory provision reinforce buttress general power solicitor cost case particularly proceeding court extended thecivil procedure act 2005includes following relevant provision section 98gives court full power determine extent cost paid also permit court order among thing party cost paid receive specified gross sum instead assessed cost b section 99permits court appears among thing cost incurred without reasonable cause circumstance legal practitioner responsible make order disallowing whole part cost proceeding solicitor client addition section 56imposes duty party assist court overriding purpose facilitating quick cheap resolution real issue dispute also permit court take account breach duty exercising discretion respect cost section 60states practice procedure court implemented object ensuring cost party proceeding court proportionate importance complexity subject matter dispute still section 366of thelegal profession act 2004provides nothing division 11 act limit power court determine particular case amount cost payable division 11 headed cost assessment case assessment section 364 provides cost assessor must consider among thing whether reasonable carry work cost relate executor solicitorsas well jurisdictional framework practical legal context shape resolution cost question arise case one hand opportunity solicitor acting behalf estate incur unnecessary expenditure make excessive demand legal cost patent hand existing beneficiary estate repose trust executor solicitor conduct legal proceeding incur expenditure behalf estate care prudence circumspection would expected reasonable person business looking affair executor legal duty trustee breen v williams 1996 186 clr 71 137 gummow j speight v gaunt 1883 9 app ca hl 1 19 lord blackburn reasonably competent solicitor know understand fundamental duty executor duty must necessarily control govern action executor must also guide solicitor conduct proceeding choice recommends make executor behalf end solicitor must endeavour ensure make decision incur expenditure may result conduct executor inconsistent duty particular solicitor must ensure work done expenditure incurred prudent appropriate proportionate real issue dispute reasonable person looking affair would expect nothing le court supervisory role expectation real issue disputethe summons filed 29 october 2010 followed advice senior counsel necessary outset determine proper construction clause 4 5 16 particular thought necessary meaning expression manipulate asset clause 16 judicially determined principal judgment observed summons perplexing diffuse 1 quite drafted form mystery went beyond necessary appropriate introduced confusion principal hearing party ignored summons addressed question construction without regard need consider precise subject matter prayer 1 summons argument advanced went issue impracticability referred prayer 1 b summons marked plaintiff written submission principal hearing exhibit cost application question construction raised issue serious difficulty particular saw complication whatsoever meaning expression manipulate asset said principal judgment 8 verb manipulate cover manner change alteration stratagem scheme really limit encompassed expression long executor act reasonably adheres strictly testator objective objective clear clause 4 5 repeated amplified clause 16 17 testator abiding wish daughter receive glengowan unencumbered secure viable grazing property enable continue live need expert evidence resolve legitimate question construction arising clause 4 5 16 appeared misapprehension resolution question construction would assisted evidence various commercial methodology might utilised achieve testator objective simply woolly thinking several occasion senior counsel first defendant submitted admirable restraint case could conducted one document namely right course would conventional approach instead presented plethora highly complex unnecessary accounting taxation evidence addition great deal irrelevant factual evidence adduced purpose avail unnecessary costsi repeat fact finding set paragraph 23 45 principal judgment cost application argyle relied evidence mr quigley mr petrucco former responsible day day conduct proceeding behalf plaintiff 1 april 2011 mr petrucco became solicitor record 5 april mr quigley apparently solicitor responsible recommending corporate reconstruction expert engaged end obtained instruction executor 17 november 2010 mr quigley consulted mr keenan accounting firm known bri ferrier mr keenan provided verbal cost estimate 30 000 bri ferrier 15 000 additional specialist taxation advice 15 december 2010 mr quigley provided formal written instruction mr keenan letter made clear engagement related proceeding substance carte blanche enquire report step might conceivably taken give effect testator intention among thing property known glengowan transferred mr retallack addition mr keenan asked advise practical effect taking step step might conceivably taken included relation step effect wherever applicable capital gain tax stamp duty income tax inter generational transfer exemption legal cost accountancy cost mortgage debt national australia bank practical consequence consider relevant accountant nirvana referred principal judgment intricacy option laid excruciating labyrinthine detail mr silvia report 24 unfortunately none necessary proceeding none useful none facilitated resolution real issue dispute namely question construction arising clause 4 5 16 unsatisfactory situation became worse 17 february 2011 mr keenan stated cost blown bit 21 april 2011 informed mr petrucco bri ferrier time cost excess 97 000 cost moore stephen provided additional specialist taxation advice excess 50 000 mr keenan said however bri ferrier would accept 65 000 moore stephen would accept 25 000 excluding gst total two amount precisely double initial estimate 45 000 due course mr petrucco negotiated modest reduction 60 000 22 000 respectively must added 15 000 agreed amount supplementary report moore stephen final total expert report therefore 97 000 obvious insufficient ongoing supervision argyle work undertaken accountant satisfactory attempt made work carried ensure accountant working initial estimate insufficient scrutiny inadequate oversight level prudence circumspection one would expect reasonable person business looking affair fault however entirely argyle professional expert obligation behave promptly frankly openly become aware estimate fee expense likely materially exceeded must inform principal provide opportunity informed choice made whether proceed engagement negotiate term extent commercially unacceptable professional expert remain silent complete work present bill significantly excess original estimate fait accompli conduct unacceptable whether merely forgetful sharp ultimately however real problem whatever may cost work mr quigley commissioned bri ferrier moore stephen unnecessary proceeding assist never would assisted resolution question construction arising term clause 4 5 16 sense sum 97 000 bri ferrier moore stephen claim payment wasted expenditure reasonable basis incurring proceeding argyle proposes 50 cost expert report apportioned proceeding proposes apportion remaining 50 cost administration estate argyle engagement letter dated 15 december 2010 made clear retainer bri ferrier purpose proceeding current proposal emerged result criticism principal judgment partial recognition wasted expenditure involved expert report least purpose proceeding dealing cost proceeding cost administration estate incidental proceeding fall determination account passed executor far proceeding concerned would matter whether amount cost expert report proposed apportioned proceeding 10 20 50 cost simply never necessary proceeding reasonably incurred purpose proceeding reasonable purpose proceeding carry work cost relate view recoverable cost incidental proceeding must follow proportion argyle professional cost insofar work carried argyle connection expert report utility proceeding reasonable carry work reasonable carry work represented tender large quantity irrelevant factual evidence referred additional unfortunate aspect proceeding paragraph 39 40 principal judgment reasoning must also apply counsel fee however counsel originally appeared plaintiff longer appear separately represented cost hearing submission put behalf sufficient leave judgment make suitable arrangement argyle executor light reason confident outcome shortly explain cost propose allow fact concluded substantial proportion cost incurred conduct proceeding behalf executor recoverable entirely consistent conduct hearing 1 august 2011 became quite apparent hearing expert report substantial majority factual evidence tendered plaintiff served useful purpose facilitating determination proper construction clause 4 5 16 hearing progressed submission developed must obvious legal representative plaintiff come surprise reached conclusion explained apart altogether specific provision thecivil procedure actand thelegal profession actto referred paragraph 5 7 court long exercised control unnecessary unreasonable cost incurred trustee legal proceeding notwithstanding indemnity trustee prima facie entitled better repeat following exposition long innes cj eq inprice v church england property trust diocese goulburn 1935 nswstrp 49 1935 35 sr nsw 444at 460 clear trustee entitled general rule indemnified trust property full cost legal proceeding properly instituted defended behalf trust however equally clear allowed charge trust property cost unnecessary proceeding elaborate proceeding might obtained result simpler le expensive procedure thomas v walker 1854 engr 484 18 beav 521 well v malbon 1862 engr 516 31 beav 48 think highly probable need put higher present result would follow case trustee incurred unnecessary cost proceeding properly instituted trustee cost claimedargyle claim recover following cost disbursement proceeding discounting cost expert report 50 approximate cost exclusive gst respect proceeding 2010 360339total cost including 1 august 2011professional cost 70 000 00disbursementssenior counsel 18 670 00junior counsel 17 700 00bri ferrier silvia report one half 30 000 00moore stephen badger report one half 11 000 00more stephen supplementary badger report one half 7 500 00filing fee disbursement 6 092 00total 160 962 00the executor also claim recover professional cost country solicitor drafter said position identify professional fee degree precision best estimate sum would exceed 35 000 assumed hourly rate 350 represents approximately 100 hour least twelve working day 8 hour per day made clear paragraph 51 54 principal judgment required evidence cost hearing among thing cost within meaning ofsections 3 1 and98 6 thecivil procedure act incurred incidental proceeding executor executor failure directed difficult understand propose give another opportunity best basis generous estimate first third defendant also seek recover whole cost second defendant appear despite preliminary concern expressed paragraph 49 principal judgment satisfied ground criticism mr apice whatsoever fact grateful prepared assume role representative trust created clause 5 counsel submission considerable assistance conduct hearing part first third defendant exemplary argyle recoverable costsi made clear cost proceeding estate burdened much argyle cost disbursement relate expert report burdened cost associated tender irrelevant factual evidence cost proportionate complexity issue dispute incurred without reasonable cause simply reasonable carry work relate made informed assessment based evidence argyle put information full complete would required assessment party chose provide response direction paragraph 51 54 principal judgment informed party direction hearing 26 august intended make fixed sum cost order pursuant tosection 98 4 thecivil procedure act party full knowledge purpose required cost evidence mentioned argyle accepts 50 cost expert report properly recoverable proceeding view correct figure nil expert report assist determination proper construction clause 4 5 16 one little bit wholly misguided irrelevant mean facilitating quick cheap resolution real issue dispute far argyle professional cost concerned explanation figure 70 000 exorbitant amount time spent process reviewing considering discussing exchanging opinion accountant multiple person three separate professional firm clearly spent many hundred hour exploring debating commercial option testator company could conveniently transfer property known glengowan mr retallack unfortunately precise method testator object might achieved issue proceeding choice best method appear hearing contentious observed paragraph 31 principal judgment raised matter cost hearing controverted worse however expense greater combined effort solicitor accountant channelled creation unnecessary written report necessarily report compelled comply expectation due care requirement form content applicable expert report tendered proceeding court substantially increased expense well known full blown expert report prepared tender proceeding court vastly expensive advice given conference summary letter argyle prepared acknowledge 50 cost expert report properly recoverable proceeding make equivalent acknowledgement relation cost formed view minimum 50 argyle professional cost must necessarily relate unnecessary expert report given breadth evidence limited nature issue 50 probably generous argyle amount recoverable proceeding view cost incurred without reasonable cause proportionate complexity issue dispute reasonable carry work estimation relate additional discount 5 wasted cost incurred collation tender significant quantity utterly useless factual evidence referred feature hearing paragraph 39 40 principal judgment reasonable carry work component argyle professional cost must relate result argyle left 31 500 45 professional cost claim analysis arrived figure satisfied logical fair reasonable based evidence put knowledge derived issue proceeding fact generous outcome construction suit involving one day hearing proceeding nature usually little opportunity executor solicitor incur substantial cost appropriate apart work involved identifying problem obtaining instruction briefing counsel obtaining reviewing advice corresponding beneficiary attending court none usual expense litigation ordinarily present case discovery contested evidence witness interview prepare interlocutory skirmishing certainly expert evidence legal principlei referred paragraph 4 7 court source control cost solicitor proceeding court paragraph 25 referred court longstanding equitable jurisdiction trustee provide ample authority result consider appropriate however advert particular feature ofsections 98 4 c and99 2 ii thecivil procedure act section 98 4 c term ofsection 98 4 c subject express limitation order may made cost referred assessment apparent basis imposing implied qualification arising language whole ofsection 98or surrounding statutory provision evident purpose division 2 act well accepted subject proviso exercised judicially court unlimited discretion making order pursuant section 98 4 sony entertainment australia limited v smith 2005 fca 228at 89 jacobson j harrison v schipp 2002 nswca 213 2002 54 nswlr 738at 21 giles ja australian performing right association limited v marlin 1999 fca 1006at 3 burchett j leary v leary 1987 1 wlr 72at 76 purchas lj nonetheless power exercised court considers fairly party includes requirement sufficient confidence able arrive appropriate sum information made available idoport pty ltd v national australia bank limited 2007 nswsc 23at 9 einstein j harrison v schipp supra 22 giles ja wentworth v wentworth new south wale court appeal priestley clarke jja grove aja 21 february 1996 unreported 23 clarke ja party course given adequate opportunity make submission hadid v lenfest 2000 fca 628at 24 lehane j sparnon v apand pty ltd federal court australia von doussa j 4 march 1998 unreported 4 beach petroleum nl v johnson 1995 57 fcr 119at 120 von doussa j leary v leary supra 76 purchas lj power may exercised broadly process similar assessment necessarily envisaged hadid v lenfest supra 35 lehane j sparnon v apand pty ltd supra 4 beach petroleum nl v johnson supra 120 von doussa j leary v leary supra 76 purchas lj although consideration would relevant assessment may taken account idoport pty limited v national australia bank limited supra 117 court however confident approach adopts estimation cost logical fair reasonable harrison v schipp supra 22 giles ja hadid v lenfest supra 27 lehane j beach petroleum nl v johnson supra 123 von doussa j case satisfied consideration referred paragraph 39 41 met however one final general matter deserves comment think purpose power simply avoid expense delay aggravation may involved protracted cost assessment would unjustified reading statutory language think rational reason power exercised sparingly statutory language support qualification think reason principle statutory language power section 98 4 c utilised cap recoverable cost party court considers claimed cost excessive circumstance seesherborne estate 2 vanvalen v neeves 2005 nswsc 1003 2005 65 nswlr 268at 42 44 regard power section 98 4 c helpful addition arsenal available court use serve enhance interest justice overriding purpose appropriate case exercising power court engaged matter principle similar exercise assessor would undertake designed achieve objective broader power wider discretion earlier point time court like assessor seeking determine fair reasonable amount party cost real practical sense party whose cost capped section 98 4 c disadvantaged happening court arriving appropriate result faster gross amount case example would fully expect assessor arrive result slower expensive process regard among others criterion insection 364 1 thelegal profession act 2004 namely whether reasonable carry work cost relate part share quite reticence application ofsection 98 4 c circumstance palmer j expressed insherborne estate 2 supra 43 44 regard power given bysection 98 4 c particularly convenient mechanism interest justice may served exercise case specifying gross sum party applicable amount set paragraph 67 70 executor argyle also relied equitable jurisdiction referred paragraph 25 section 99 2 ii lead tosection 99 2 ii thecivil procedure act section 99permits court make three type order order disallow whole proportion cost solicitor barrister section 99 2 order solicitor barrister pay cost client ordered pay person section 99 2 b order solicitor barrister indemnify party client cost payable party directly concerned case order disallowing cost solicitor need rely criterion insection 99 1 cost incurred without reasonable cause expression without reasonable cause ordinary english expression well known well understood law arises myriad circumstance applied every day court sensible pragmatic way appropriate particular fact call application given case already concluded paragraph 23 connection proceeding reasonable argyle carry cause carried work involved connection expert report reasonable decision undertake work guided good sense sound judgment based misapprehension referred paragraph 13 resulted executor contravening statutory duty assist court overriding purpose section 56 3 similar quite identical reason reasonable argyle carry work involved tender irrelevant factual evidence matter ordinary language natural meaning word think material difference unreasonable reasonable without reasonable cause conveys connotation effectively synonym mean practically thing view p lawrence j inmills v cannon brewery co limited 1920 2 ch 38at 45 insecured income real estate aust ltd v st martin investment pty ltd 1979 hca 51 1979 144 clr 596at 609 sir anthony mason said inclined agree absent binding authority compelling different result would conclude criterion without reasonable cause insection 99 1 b established fact case conclusion derives support decision reasoning inkendirjian v ayoub 2008 nswca 194especially 208 213 mccoll ja case honour held failure appellant legal practitioner ensure written submission prepared prior appeal hearing day enabled court deal appeal day meant cost preparing day hearing incurred without reasonable cause see alsokelly v jowett 2009 nswca 278at 88 mccoll ja argyle relied three decision first instance proposition expression without reasonable cause insection 99 1 b requires much higher threshold one said satisfied case decision aretreadwell v hickey 2010 nswsc 1119at 30 36 barrett j ideal waterproofing pty limited v buildcorp australia pty limited 2006 nswsc 155 sullyj andna j investment pty ltd v minister administering thewater management act 2000 no2 2011 nswlec 98 painj reasoning decision informed decision english court appeal inridehalgh v horsefield 1994 ch 205 particular judgment three decision set adopted following passage inridehalgh v horsefield supra 232 unreasonable also mean understood mean context least half century expression aptly describes conduct vexatious designed harass side rather advance resolution case make difference conduct produce excessive zeal improper motive conduct cannot described unreasonable simply lead event unsuccessful result cautious legal representative would acted differently acid test whether conduct permit reasonable explanation course adopted may regarded optimistic reflecting practitioner judgment unreasonable think passage sound guide meaning operation word without reasonable cause appear insection 99 1 thecivil procedure act 2005 nsw inridehalgh v horsefield supra lordship considering section 51 7 thesupreme court act 1981 uk language syntax provision distinctly different ofsection 99 1 thecivil procedure act 2005 view reliable point comparison among thing english court appeal emphasised collective effect particular statutory context word improper unreasonable negligent refused give word specific self contained meaning said statutory context considering sharp differentiation expression useful necessary intended may indubitably correct think reasoning inridehalgh supra proper approach section 51 7 thesupreme court act 1981 uk automatically translated tosection 99 1 thecivil procedure act phrase without reasonable cause insection 99 1 b familiar expression syntax sits indicates must given effect criterion liability free standing must construed applied right done warrant refinement need seek qualification stated meaning obviously discernible reason concluded apply ordinary natural well understood meaning expression without reasonable cause appears insection 99 1 b thecivil procedure act explained meaning application fact paragraph 47 48 regard clear case cfkelly v jowett supra 60 lemoto v able technical pty ltd 2005 nswca 153 2005 63 nswlr 300at 92 view cost disbursement incurred argyle connection expert report irrelevant factual evidence meet requisite statutory description without reasonable cause save amount specified paragraph 67 disallowed pursuant tosection 99 2 thecivil procedure actand equitable jurisdiction referred paragraph 25 executor recoverable costsas mentioned executor also seek recover cost proceeding time based professional cost estimate cost exceed 35 000 section 98 6 thecivil procedure actmakes clear cost relation proceeding include cost administration estate trust however necessary qualification definition cost administration subject control supervision court pursuant tosection 98 incidental proceeding foord v brock 2005 nswca 156at 49 cost administration incidental proceeding fall regulation necessary different regime executor seek account passed exercise discretion pursuant tosection 98in relation executor cost incidental proceeding inconsistent entitlement given executor pursuant charge paid professional charge act done administration estate clause 21 controlling cost proceeding function intrude cost administration outside proceeding nonetheless senior counsel first defendant invited make observation matter benefit party done paragraph 64 66 reasoning led disallow cost expert report discount argyle professional cost 55 flow executor undertaken exorbitant amount work useful purpose undoubted time consuming contribution reviewing reading unnecessary expert report compiling irrelevant factual evidence justify recovery whole cost proceeding reasonable carry work much cost relate executor course culpable argyle fault really lie exercising discretion pursuant tosection 98 appropriate take account among thing criterion must considered assessor pursuant tosection 364 1 thelegal profession act satisfied cost proceeding amount claimed executor excessive unreasonable said work done expert report irrelevant factual evidence unnecessary cost work wasted would logically inappropriate allow cost proceeding executor cost unnecessary work already disallowed cost equivalent work accountant argyle adopt approach event addition clearly duplication executor solicitor executor client entrusted conduct proceeding argyle appropriate kept abreast provide instruction connection preparation case hearing expected approve review evidence proposed tendered matter misguided evidence may involved decision making process solicitor counsel justified simply solicitor exercising detailed conduct overseeing reviewing draft report proposed expert witness undertaken argyle making work ground satisfied appropriate fixed sum executor recoverable cost proceeding pursuant tosection 98 4 c thecivil procedure actis 45 estimate outer limit cost satisfied represents outcome logical fair reasonable given knowledge case appreciation way prepared conducted notwithstanding executor failure provide evidence requested also relied equitable jurisdiction referred paragraph 25 result allow executor cost proceeding 15 750 payment residuethe final question whether cost party proceeding paid gift glengowan residue clearly testamentary expense within meaning theprobate administration act 1898 cost come gift would charged property would defeat testator intention mr retallack receive glengowan free mortgage charge lien like use benefit absolutely see clause 4 section 93 3 thetrustee act 1925andsection 98 1 thecivil procedure actgive court discretion former permit order made cost proceeding paid part property estate real subject matter proceeding decision inmurdocca v murdocca 2 2002 nswsc 505at 76 confirms discretion given statutory provision may displacesection 46cof theprobate administration actand necessary testator intention exercise discretion case objective give effect testator intention closely clause 4 state mr retallack receive glengowan free encumbrance clause 5 stated testamentary expense paid residue proceeding primarily concerned third defendant contends disposition glengown entitlement glengowan real subject matter proceeding broadly accurately proceeding concerned consequence followed operation whole fact testator glengown sunnyside company real focus conundrum caused fact testator share company authorised executor manipulate asset give effect gift glengowan sunnyside force first defendant observation drafting executor lie heart dispute fairest result therefore view cost come residue estate cost administrationfinally foreshadowed paragraph 56 return briefly question cost administration address made clear wish result cost proceeding disallowed wholly picked subsequently administration estate mind would appropriate reasonable accept course amount cost eventually recoverable administration estate matter determine proceeding essential point reason argyle made work others unnecessarily without reasonable justification uncontrolled would considerable cost estate eventually operate disadvantage residuary beneficiary see often litigation example action dickens famous aphorism one great principle english law make business bleak house cited inridehalgh v horsefield supra 226 one case although hasten add necessary consider whether argyle conduct intentional reiterate none said intended suggest due administration estate appropriate consideration given question transfer glengowan mr retallack economically issue allowed get hand insufficient control circumspection displayed reasonable person business looking affair would gone length expense argyle executor gone think appropriate say anything issue ordersfor reason regard source jurisdiction explained paragraph 44 54 60 make order allowing following cost proceeding executor professional cost 15 750 b argyle professional cost 31 500 c argyle disbursement bri ferrier moore stephen nil ii senior junior counsel amount claimedsubject 23 iii fee disbursement 6 092the first third defendant entitled full amount claimed cost specified paragraph 67 68 paid residue estate cost party hearing 8 september 2011 paid residue estate indemnity basis o0o |
The King v Ebborn [2023] NTSC 10 (14 February 2023).txt | king v ebborn 2023 ntsc 10 14 february 2023 last updated 14 september 2023citation king v ebborn 2023 ntsc 10parties kingvebborn normantitle court supreme court northern territoryjurisdiction supreme court exercising territory jurisdictionfile 22131124delivered 14 february 2023hearing date 10 february 2023judgment kelly jcatchwords evidence admissibility relevance evidence national uniform legislation act 2011 nt 97ands 101 tendency evidence whether tendency evidence significant probative value whether probative value evidence outweighs danger unfair prejudice accused evidence admissibleevidence national uniform legislation act 2011 nt 97 97 1 101hml v queen sb v queen oae v queen 2008 hca 16 2008 235 clr 334 hughes v queen 2017 hca 20 imm v queen 2016 hca 14 2016 257 clr 300 mcphillamy v queen 2018 hca 52 2018 361 alr 13 r v bauer 2018 hca 40 2018 266 clr 56 r v lisoff 1999 nswcca 364 queen v aw 2018 ntsc 29 appliedrepresentation counsel crown grealyaccused j tippett kcsolicitors crown office director public prosecutionsaccused darwin family lawjudgment category classification bjudgment id number kel2301number page 18in supreme courtof northern territoryof australiaat darwinthe king v ebborn 2023 ntsc 10no 22131124between kingand norman ebborncoram kelly jreasons judgment delivered 14 february 2023 1 accused charged inter alia number count sexual intercourse cd without consent 2 summary crown case accused 5 30 morning 19 september 2021 drinking nightclub town brief conversation cd accused went house cd lived partner called accused uncle accused son also lived house accused knowledge accused son away house time crown alleges accused forced way screen door damaging fly screen count 1 property damage entered house intention assaulting complainant count 2 aggravated unlawful entry went cd bedroom began penile vaginal intercourse cd initially thought person top come home early realised tried push accused told count 3 sexual intercourse without consent top penis vagina accused saying thing like accused forced penis cd mouth said tried push away count 4 sexual intercourse without consent two three time accused kept trying persuade cd consensual sex told partner cheating fucking slut accused inserted two finger cd vagina tried push hand away cd said stop stop trying push hand away got aggressive started lot harder cd got upset started cry accused walked room accused got lotion tried massage cd back kept telling stop thing said get wrong idea bub made delete call log left saying leave alone point assault alleged accused brought sex toy room invited cd use declined seen sex toy bathroom previous visit house hidden 3 crown given notice unders 97 1 theevidence national uniform legislation act 2011 nt uea intention adduce tendency evidence 4 notice advises tendency sought proved tendency accused act particular way namely attend house friend relative early hour morning uninvited ii persist sexual conduct female occupant house despite protestation iii engage sexual act female occupant house despite impact may accused relationship close friend relative iv aftermath assault engage conduct designed avoid detection b particular state mind namely willingness engage sexual conduct female despite protestation impact might relationship close friend relative 5 conduct evidence sought adduced evidence conduct subject current charge well evidence previous sexual assault committed accused 2009 6 fact 2009 case 28 february 2009 drinking bar palmerston becoming intoxicated 3 30 morning accused went home close friend friend absent door opened friend 13year old daughter lg accused lg sat couch conversed time accused said felt sick needed lie lg said could sleep room would sleep mother asleep one bedroom 7 accused lg went bedroom accused shut door lay bed asked lg stay talk agreed lg sat end bed accused told beautiful loved ran two finger ankle waist ran finger stomach breast lg stood walked towards door accused asked stay another 5 minute asked virgin said yes said want first lg said disgusting like brother 8 accused stood hugged lg arm put hand either side face kissed lip lg tried push away leaned forward tried kiss covered mouth turned head accused said got big boob 13 year old put right hand left breast outside clothing squeezed put hand genital area clothes reacted instinctively squeezing leg together lg told accused leave accused removed hand told lg tell anyone left 1 9 crown summarised evidence sought adduced tendency evidence following term conductdate timeplacecircumstanceswitness e accused attended address drinking despite victim resistance accused persisted assaulting indecently touching body squeezing breast touching genital area leaving accused told victim tell anyone 20908807 28 february 2009 4 00 amgray palmerstonthe accused aged 23 bar attended address close family friend 13 year old victim allowed accused residence victim allowed accused sleep bedroom accused made inappropriate sexual comment assaulted indecently victim physically resisted accused told like brother lgssthe accused attended address nightclub despite complainant resistance accused persisted assaulting vaginal penile intercourse forcing penis mouth inserting finger vagina upon leaving accused made complainant delete record contact phone 22131124 19 september 2021 5 30 amgraythe accused aged 35 nightclub attended address son nephew accused entered residence went 21 year old complainant bedroom sexual intercourse number way made inappropriate sexual comment victim physically resisted told stop 10 tendency evidence said relevant whether accused sexual intercourse cd b accused prepared sexual intercourse cd despite relationship c whether accused knew cd consenting sexual intercourse reckless consent rebut alternative innocent explanation including dna matching accused dna located cd underwear 11 defence object evidence adduced tendency evidence 12 underuea 97evidence conduct person admissible prove person tendency act particular way particular state mind unless appropriate notice given court think evidence either regard evidence adduced significant probative value 13 dispute adequacy notice given defence object admissibility evidence ground set 14 substantive question unders 97is whether evidence significant probative value relation issue set significance mean something mere relevance substantial degree relevance 15 potential probative value tendency evidence explained high court inhughes v queen 2 probative value evidence extent evidence could rationally affect assessment probability existence fact issue tendency evidence significant probative value could rationally affect assessment probability existence fact issue significant extent trier fact reason satisfaction person tendency particular state mind act particular way likelihood person particular state mind acted particular way occasion issue starting point either case requires identifying tendency fact fact issue adduced prove fact issue criminal proceeding establish element offence citation omitted 16 assessing probative value proposed tendency evidence therefore two stage process plurality said inhughes 3 assessment whether evidence significant probative value relation count involves consideration two interrelated separate matter first matter extent evidence support tendency second matter extent tendency make likely fact making charged offence question one identity known offender instead question concerning whether offence committed important consider matter seeing two matter involved easier appreciate danger focusing single label underlying unity pattern conduct modus operandi summary likely high degree probative value evidence together evidence strongly support proof tendency ii tendency strongly support proof fact make offence charged 17 first question extent evidence sought adduced tends establish accused tendency act way asserted notice assessment probative value evidence determined trial judge assumption jury accept evidence likely issue present case event evidence adduced concern prior offending accused pleaded guilty local court 18 view evidence set tendency notice capable supporting proof accused tendency set tendency notice namely attend house friend relative early hour morning uninvited b persist sexual conduct female occupant house despite protestation c engage sexual act female occupant house despite impact may accused relationship close friend relative aftermath assault engage conduct designed avoid detection also evidence asserted state mind behind behavioural tendency alleged 19 high court said need striking similarity distinctmodus operandifor tendency evidence significantly probative fact issue 4 tendency evidence sought adduced relates sexual misconduct person complainant instant case usually necessary identify feature serf link sexual misconduct alleged offending conduct 5 high court said inbauer 6 common feature offending may demonstrate tendency act particular way proof increase likelihood account offence consideration true 20 view case 21 defence argues tendency common sexual offending generally extent generic contending earlier offence involved child victim different conduct resemblance superficial best defence also contends remoteness time 2009 offending 12 year present alleged offending undermines ability evidence support tendency defence counsel relies following passage fromthe queen v beasley 7 effluxion time prior incident incident said sustain inference tendency subsequent crime inference said probative may duration suggest previous incident incident isolated aberration otherwise reflective relevant tendency part accused word remoteness point time circumstance offence charged undermine probative value evidence sustain inference tendency moreover single incident ordinarily le probative tendency series incident similar feature 22 defence submits case tenuous nature similarity prior offending present charge gap 12 year two incident fact single prior incident crown rely establish tendency mean evidence reach required standard in 97of havingsubstantialprobative value 23 disagree behaviour proved relation 2009 offence unusual almost point bizarre clear obvious similarity present alleged offending involved turning home close friend relative early hour morning uninvited inside sexually assaulting female occupant house seems pretence unfounded assumption sexual activity would consensual notwithstanding victim protest attempt stop persistently importuning victim engage activity sexual nature also common earlier offence current alleged offence fact accused prepared thing despite closeness relationship male householder obvious risk relationship case crown also relies fact offence substantial age difference accused victim case accused took step avoid detection earlier offence telling victim say anything present alleged offending making complainant delete call log phone destroy evidence called earlier morning 24 passage time two incident relevant consideration view unusualness conduct question distinctly similar feature outlined tendency notice strongly support proof alleged tendency despite passage time 25 defence counsel rightly concedes tendency may proved evidence single prior episode contends single incident ordinarily le probative existence tendency series incident 8 much may accepted however view unusual nature earlier incident striking similarity aspect present offending sufficient establish tendency alleged crown 26 defence contended offending conduct earlier incident different alleged offending present charge earlier offence offender greeted victim allowed enter house victim 13 offender 23 offending conduct consisted indecent touching attempted kissing squeezing breast contrast present charge multiple act sexual intercourse without consent adult woman following unlawful entry defence counsel submits matter logic committing indecent assault child victim 12 year ago would make likely accused would commit present alleged offence involving sexual penetration fellatio 21 year old woman 27 however submission ignores salient feature alleged tendency namely accused turned early hour morning home close relative friend inside sexually molested woman house persisting importuning despite protest despite risk relationship friend relative well age difference case attempt avoid detection fact though two latter feature lesser relevance therefore satisfied proposed tendency evidence apt prove alleged tendency 28 turning second aspect enquiry unders 97 reason ie unusual nature tendency evidenced earlier incident similarity aspect present offending tendency established significantly increase likelihood accused state mind acted time relevant charge indictment ie committed offence charged 29 therefore satisfied threshold test in 97has met evidence sought adduced tendency evidence significant probative value 30 next step consider whether evidence satisfies requirement ofueas 101 criminal trial tendency evidence admissible unless probative value evidence outweighs danger unfair prejudice accused involves balancing exercise assessing weighing probative value evidence danger unfair prejudice accused 31 undertaking balancing exercise dominant consideration ensure accused deprived prejudice fair trial 9 notion prejudice general context mean danger improper use evidence mean legitimate tendency inculpate 10 something required possibility evidence may misused jury respect 32 plurality inhughesexplained kind potential prejudice arise criminal trial 11 criminal proceeding prosecution seek adduce tendency evidence accused 101 2 theevidence actimposes restriction admissibility evidence cannot used accused unless probative value substantially outweighs prejudicial effect may accused reception tendency evidence criminal trial may occasion prejudice number way jury may fail allow person tendency particular state mind act particular way may state mind may acted way occasion issue jury may underestimate number person share tendency state mind act way either case tendency evidence may given disproportionate weight addition risk arising tendency reasoning risk assessment whether prosecution discharged onus may clouded jury emotional response tendency evidence prejudice may occasioned requiring accused answer raft uncharged conduct stretching back perhaps many year 33 test danger unfair prejudice satisfied mere possibility prejudice must real risk prejudice reason admission evidence 12 34 case defence asserted risk two kind prejudice reasoning prejudice moral prejudice support submission relating reasoning prejudice defence relies following quotation australian law reform commission report people enormously confident expected nature person social behaviour given knowledge behaviour one occasion reality affords right 13 example given member public said overestimate recidivism rate sex offender 35 asserted danger boil risk jury may engage rank propensity reasoning support objection defence submitted halo effect pose risk prior misconduct result fact finder concluding accused bad character also fact well known untrained fact finder member jury conclude accused sort person likely committed offence charged 36 defence explained danger moral prejudice following term 14 moral prejudice arise number way tendency evidence introduced regret matrix psychological theory suggests fact finder provided evidence prior misconduct accused anticipate le personal regret upon finding guilt accordingly juror may require lower degree probabilistic satisfaction guilt make finding hoitink hopkins observe evidence suggest risk moral prejudice arising introduction tendency evidence greater socially unacceptable unattractive accused past behaviour author refer british study found mock juror appeared generally make rational use evidence past offending accused evidence previous conviction sexual assault child appeared used irrationally author go observe empirical study show ease moral prejudice arise propensity evidence 37 boil submission jury might influenced irrational emotional response evidence 38 agree real risk misuse tendency evidence jury 39 far risk propensity reasoning concerned use kind tendency evidence involves kind ofpermissiblepropensity reasoning plurality said inhughes 15 trier fact reason satisfaction person tendency particular state mind act particular way likelihood person particular state mind acted particular way occasion issue 40 think risk jury may engage rank propensity reasoning great view adequately guarded usual warning although necessary arriving conclusion take comfort reached conclusion summary recommendation royal commission child sexual abuse relating tendency coincidence evidence tendered crown refers research suggesting risk rank propensity reasoning sexual offence case high jury general comply direction given judge 41 think real risk hearing evidence earlier incident likely much greater emotional impact hearing complainant allegation subject charge indictment apart age victim prior incident 16 present allegation relate conduct serious conduct accused found guilty 2009 case jury warned rank propensity reasoning risk acting emotional reaction earlier offending 42 defence submission reasoning prejudice moral prejudice largely generic supported evidence called present proceeding submission would apply tendency evidence yet legislative intention tendency evidence admitted satisfies test in 97and probative value evidence outweighs danger unfair prejudice accused 43 view test satisfied present case consider probative value evidence high probative value outweighs danger unfair prejudice accused tendency evidence specified notice admitted 1 extent agreed fact precis prepared accused guilty plea charge indecently assaulting child age 16 local court statement lg also annexed tendency notice also contains allegation sexual importunity including accused asked would allow first saying make first time best time 2 2017 hca 20 hughes 16 per kiefel cj bell keane edelman jj 3 ibid 41 4 hughesat 34 39 41 5 mcphillamy v queen 2018 hca 52 2018 361 alr 13at 31 6 hughesat 58 7 2022 ntsc 16at 35 8 queen v beasley 2022 ntsc 16at 35 per grant cj 9 queen v aw 2018 ntsc 29at 30 10 hml v queen sb v queen oae v queen 2008 hca 16 2008 235 clr 334at 12 per gleeson cj 11 hughesat 17 12 r v lisoff 1999 nswcca 364at 60 13 alrc report 102 paragraph 3 21 14 citing research hoitink hopkins 15 hughesat 16 16 crown submitted thought prejudice accused jury knowing committed sexual offence child harbouring prejudice result could eliminated telling jury age victim first offence fact necessary aspect asserted tendency something suggestion although would obviously done consent party since although would eliminate potential emotional reaction accused indecently assaulted child might detract ability defence emphasise jury difference two offence view asking jury accept accused asserted tendency |
Rowe & Anor v Electoral Commissioner & Anor [2010] HCATrans 204 (4 August 2010).txt | rowe anor v electoral commissioner anor 2010 hcatrans 204 4 august 2010 last updated 18 november 2010 2010 hcatrans 204in high court australiaoffice registrymelbourne m101 2010b e w e e n shannen alyce rowefirst plaintiffdouglas stewart thompsonsecond plaintiffandelectoral commissionerfirst defendantcommonwealth australiasecond defendantfrench cjgummow jhayne jheydon jcrennan jkiefel jbell jtranscript proceedingsat canberra wednesday 4 august 2010 10 15 amcopyright high court australiamr r merkel qc court plea appear learned friend m k l walker m f k forsythandmr n mcateer plaintiff instructed mallesons stephen jaques mr g johnson may please honour appear first defendant instructed australian government solicitor mr j gageler sc solicitor general commonwealth australia court please appear withmr g r kennettandmr f learyfor second defendant instructed australian government solicitor mr r mitchell sc may please court learned friend mr c bydder appear attorney general western australia intervening support second defendant instructed state solicitor office french cj mr merkel mr merkel begin regard time constraint estimate think indicated justice hayne direction hearing leading referral matter would expect concluded submission later 3 00 pm afternoon mr merkel yes honour thank french cj yes right matter think need clarify stage content agreement statement agreed fact party particularly far relates paragraph 25 29 inclusive paragraph refer various report submission australian electoral commission human right equal opportunity commission think australian national audit office think submission particularly paragraph 19 29 32 33 34 35 reference statement made various report submission referred agreed statement fact detected objection reference statement take statement form part corpus agreed fact mr merkel understanding honour french cj thirdly affidavit second affidavit think mr cooper 30th july subject objection actually intend read affidavit mr merkel honour objection relates certain polling material ultimately objection ground relevance would propose honour take court briefly rely question relevance dealt either point later point french cj yes bit elusive moment sure mr merkel want jump ahead honour relevance certain submission political nature decision issue writ political factor motivate decision intended honour go publicly available data suggested necessarily reflects true position particular time obviously changing french cj yes right hear solicitor relation statement agreed fact mr gageler honour accept statement made various report statement various body made report heydon j relevance mere fact made relevance mere fact mr gageler nothing expression view body charged statutory responsibility honour heydon j relevance view body charged statutory responsibility mr gageler fail see relevance object material put court fact agreed material put court french cj relied upon submission made behalf plaintiff basis correct either statement fact statistical character alternatively statement predictive opinion simple opinion example report australian national audit office receive treat evidence fact correctness opinion mr gageler simply evidence publicly available material material public domain date enactment legislation nothing context 2006amendment act enacted part context nothing extremely little weight submission french cj position understand correctly fact opinion stated factual statement made prospective body either report submission best contextual significance mr gageler correct nothing honour far opinion poll result exhibit affidavit page 45 59 application book concerned position cannot probative underlying voter intention result opinion poll reported particular day totally irrelevant constitutional validity mr merkel honour indicate may slight misunderstanding u understanding way various report put forward report contain evidence fact say example report handed honour graph participation rate age group based statistic never suggested u learned friend think contending sounded like might evidence underlying fact matter proceeded basis report national audit office australian electoral commission insofar contain fact agreed fact dispute underlying fact insofar opinion course opinion provide context gummow j tell u number matter one level many roll particular election many voted many informal vote sure contest solicitor know mr merkel understand fact stated challenged fact opinion stated opinion held certainly go context suggestion learned friend submission response submission challenge factual statement put forward relied upon may storm teacup understanding document put forward french cj lot statistical statement statement agreed fact plainly agreed fact problem agreement bit opaque come report mr merkel except honour proceeded basis initially indicated wished basis fact learned friend wished whole context fact thus application book grew lot material referred either party understanding learned friend issue factual statement matter upon rely identified submission understanding commonwealth position result happened matter taken proposed agreed fact document document put forward commonwealth wanted context could issue bell j apart statistical material example rely material one report relating continuous roll update mechanism available mr merkel yes honour never suggested u statement document methodology used way roll date carried name removed interconnected part process fact dispute case aware could fact dispute french cj yes right mr merkel far affidavit concerned hear relevance due course mr merkel thank honour handed honour index oral submission also document electoral commission submission parliamentary committee january year latest update figure referred report hayne j agreed fact agreed document mr merkel mr merkel position submission aec say contains factual material kind referring would understand dispute fact may dispute opinion gummow j seeking add agreed fact material mr merkel yes honour treat category aec submission part application book may somediscussion learned friend adjournment make sure misunderstanding french cj discussion mr merkel yes honour understood matter proceeding basis put court hayne j yes understood matter proceeding basis agreed fact mr merkel told would happen direction hearing provided still material may mr merkel document handed honour recent update material make earlier material redundant updated january year honour french cj able tell u right document shown side accept received court mr merkel yes understand discussion solicitor agreed document handed accepted honour basis aec document relied french cj perhaps clarify think rather unsatisfactory material handed u said form part factual basis case without crystal clear accepted way accepted party mr gageler put context honour honour look plaintiff outline submission example paragraph 30 paragraph 31 see worth plaintiff seek put forward part case expression view aec body time time seek make something french cj predictive opinion mr gageler yes wanted context view referred reason one find paragraph 25 following agreed statement fact reference report submission looking page 94 96 agreement party report submission described certain view expressed nothing far statistical factual information concerned quite careful set earlier part agreed statement fact paragraph 3 24 learned friend want statistical factual information report submission referred paragraph 25 following say moment identified subject agreement far document concerned worth nothing submission expression view dated january 2010 could relevant issue proceeding court plea heydon j oppose reception mr gageler mr merkel honour think may slight misunderstanding learned friend possibly proceed discussion lunchtime french cj well think satisfactory basis proceed mr merkel moment speaking face agreed fact far relate report submission express agreement go beyond agreement fact report made submission made body made far read agreed statement fact extend agreement correctness anything factual way opinion stated report submission think perhaps might need consider briefly outside anything want say response mr merkel take opportunity word learned friend time come gummow j want agree example looking document handed want agree term paragraph 2 13 number elector roll particular date already agreed statement agreed fact one thing see mean mr merkel yes honour gummow j another thing accept argumentative perhaps quite right word evaluative material document handed seems contain question taking opportunity given sort mr merkel honour understanding statement fact document statistical fact honour justice bell put continuous roll update procedure employed within australian electoral commission taken fact anything taken evaluative judgment opinion prove fact evaluation understood french cj precisely sort question addressed statement agreed fact left u work threshold argument mr merkel understand honour misunderstanding agreed seek clarify may honour french cj court adjourn briefly 10 49 short adjournmentupon resuming 11 12 french cj mr merkel take advance since adjourned mr merkel think honour misunderstanding word learned friend appear little time could identify fact say would expect would agreed evaluative anticipated fact thought issue statistical information undoubted factual information without evaluative aspect rely upon agreed aspect learned friend understand accepts information placed parliament parliament entitled act electoral commission australian national audit office enable u proceed many factual issue would anticipate would give rise problem certain issue honour say brief discussion learned friend would expect would disagreement think concern wasreliance material broader sense abstract would understand would situation honour french cj yes think mr merkel position court far paragraph 25 29 agreed statement fact concerned annexures referred paragraph concerned would require intend rely upon element annexures already agreed fact another part document specifically identify course submission deal time relation relevance go party mr solicitor far paragraph 9 concerned agreed statement fact think submission make reference annexures k precisely seek use annexures mr gageler way identified opening word paragraph 9 taken agreement summarise activity undertaken aec relation electoral roll management hayne j agreed fact report aec year report mr gageler yes honour quite precise way sought formulate agreed fact paragraph 9 introduced distinct example paragraph 25 paragraph 26 far statistic concerned let say may much disagreement precise number might stated report referred paragraph 25 following much depends context much depends underlying data reason honour careful formulation statistic presented agreement paragraph 11 23 ensure way number presented meet requirement party french cj thank mr solicitor mr merkel court plea issue present case relates validity section 102 4 102 4aa 155 question relying principle inroach whether go beyond reasonably appropriate adapted proportionate maintenance constitutionally prescribed system representative government common ground party two question set paragraph 51 submission question answered present case thatroachrequires two question considered could go straight away situation two plaintiff first plaintiff situation shannen rowe dealt paragraph 22 23 submission endeavoured enrol closure new enrolment monday time taken make deadline eventually asked mother friday within seven day period prior 2006 amendment would enrolled amendment able enrolled second plaintiff douglas thompson tried enrol friday announcement election used electronic signature accepted tried also enrol thursday transfer previous division wentworth sydney currently residing time could get website eventually lodged transfer 8 00 pm thursday deadline within seven day period existed prior 2006 amendment way put plaintiff excluded able exercise constitutionally protected franchise respect first plaintiff shannen rowe excluded altogether exercising franchise relation representative senate representative division life respect douglas second plaintiff say registered division longer resides required theelectoral act reason seven day period available vote representative representative come moment representative democracy relates representative division reside time vote representative general required vote someone else representative house representative move state vote representative state go straight away theconstitution case raisessections 7 24 29and32 court considered 7 24 detail inroach wanted put emphasis onsection 29and alsosections 7and24to say essential basis representative democracy prescribed theconstitutionis democracy people citizen franchise respect representative division state reside gummow j question mean franchise case machinery exercise franchise roachwas case existence franchise saying fatal argument relevant distinction mr merkel say honour machinery merely mean franchise served machinery cannot dictate franchise machinery provision like provision used disenfranchise adult citizen right vote hayne j mashing two separate idea together speaking mechanism enrolment wholly equivalent notion franchise two distinct mr merkel certainly distinct honour hayne j plaintiff qualified enrol bell j 93 1 mr merkel yes honour qualified enrol remain qualified enrol enrolment vehicle vote election exercise franchise date election question becomes limitation imposed access franchise adult citizen form subject matter representative democracy franchise considered inroachand role franchise citizen member people enunciated insections 7and24 example enrolment required six month prior date election 12 month prior date election could closed day issue writ fixed date would question would say inevitably whether vehicle used access franchise dictating franchise rather vice versa would say franchise date election adult citizen date entitled theroachprinciples participate election representative mean set theelectoral act constitutional protection constitutional provision enrolment franchise theconstitutionprovides question say arises much two question inroach first vehicle franchise given effect limit way disentitlement say enrolment present situation shown gummow j impermissibly limit notion proportion mr merkel yes honour gummow j arguing system permissible enrolment polling day canada example mr merkel honour gummow j happy enough previous system seven day mr merkel yes honour gummow j absolute see reasonable regulation sort mr merkel yes say come legislative history understood course gone plaintiff situation evidence show 100 000 adult citizen applied enrolled enrolment transferred within seven day period accepting honour said permissible limitation say give rise second question substantial disenfranchisement say figure established evidence go report show many hundred thousand people young elector mostly younger group one mobile new enrolees removed continuous roll update system rely election period traditionally able rely election period way updating enrolment removal right say gave rise problem occurred present case problem identified 1983 change practice say permissible restriction say question substantial reason abrogating seven day period say evidence looked evidentiary basis fact occurred one look french cj stop moment get evidentiary basis really coming back point think engaged justice hayne response opening remark seem eschew submission characterisation provision procedural yet seem clear characterisation provision procedural machinery provision necessarily affect argument roachwas case involving disentitling status effect case involving procedure people get roll therefore statutory entitlement vote translates duty part relevant electoral officer put roll receive vote question surely must whether limiting principle arising constitutional requirement member directly chosen people 7 24 say procedural bar kind arisen case cut date issue writ impermissible interference constitutional mandate mr merkel yes honour gummow j therefore limitation uponsection 51 xxxvi theconstitutionupon power parliament enacted change made 2006 complain item think 41 52 schedule 1 2006 act 65 put section complain question may whether legislative power seems based 51 xxxvi relevantly constrained requirement exercise choice 7 24 mr merkel yes honour hayne j engagement 51 xxxvi case section 31 inroachwith section 30 section 30 qualification section 31 like mechanism mr merkel honour contending mechanism defeating albeit maybe indirectly entitlement respect franchise application way status example gummow j may perfectly right perfectly right consistently justice hayne chief justice putting thought want say say mr merkel say respect honour go substantive aspect consequence gummow j use dichotomy procedure substance one thing know sitting court difficult distinction translated form discourse immediately see question surely better approached text theconstitutionand notion choice section justice hayne referred power 51 xxxvi mr merkel problem honour say consequence disentitlement exclusion hayne j well whatever colourful term seek apply whatever conclusionary term seek apply root question whether 51 xxxvi engagement 31 limited would thought seemed common ground round 7 24 reference directly chosen people mr merkel yes honour hayne j limit say passed impugned provision application provision yield house meet constitutional description put limit reached fashion mr merkel honour say must founded section yield house chosen people exclusion category substantial body people exercising franchise therefore making choice people reason say substantial reason crennan j statutory disentitlement people otherwise qualified vote understand argument saying detracts one view universal adult suffrage mr merkel yes honour crennan j mr gageler would say statutory ban period considering claim undersection 102of person qualified vote 93 1 interest orderly election mr merkel yes honour word orderly election resonance say unsustainable view take honour obvious example evidence establishes clearly continuous roll date procedure substantial number elector removed roll change residence given objection procedure may happen removed without notice moved address may located removed instance people like second plaintiff moved another area month ago turned mind registering transfer election tried seven day period hour hundred thousand people situation seven day period based upon chaos happened 1983 imposed 1983 amendment 2006 seven day period reduced three day possible rationale could put forward reducing seven day period say constitutional minimum margin appreciation election seven day period possible rationale could put reducing whim arbitrary capricious one could imagine crennan j think mr gageler would say prophylactic measure relation possibility electoral fraud mr merkel well honour make point going electoral fraud residential change difference writ difference three day writ difference three seven day absolutely nothing skerrick evidence pointed fraud problem even accepting problem prophylactic prophylactic identity requirement introduced part 2006 amendment required identity part process prophylactic computerised technique undertaken made argument reducing seven day three absurd something like 500 000 transaction within five day period election although statutory requirement three many would within period see provision operating arbitrarily could whim learned friend may said prophylactic close roll new enrolment roll stay open nothing prophylactic french cj constitutional significance seven day mr merkel constitutional significance seven day simply honour result legislative experience come shortly 1983 election result change practice disclosed fragility franchise respect executive decision announce election theconstitutionthe provision writ requires writ 32 issued within ten day expiry house representative proclamation dissolution announced fixed date historically announcement gave warning electorate time enrol practice departed 1983 departure led parliament conduct inquiry form view seven day appropriate period enable new registration transfer enrolment say margin appreciation set standard election day could closing roll election day within seven day period historically period worked sure people missed franchise period seven day practice worked without problem suddenly 2006 without benefit explanation second reading speech hotly politicised issue party whether closure roll seven day gummow j cannot get excited whether hotly political french cj criterion constitutional impermissibility like say come seven day crossed line extracted ofsections 7and24 mr merkel answer honour constitutional impermissibility would say prior 1983 light 1983 experience addressed parliament creating seven day period parliament reduced seven day period nil three day case may enrolment transfer raise question practical effect substantial exclusion many elector voting substantial reason hayne j think answering chief justice question mr merkel want grapple notion seven mr merkel say minimum honour hayne j yes minimum mr merkel shown resulted substantial disenfranchisement mean longer parliament yielded vote people hayne j proposition depends part though entirely think upon two related notion play may need explore one content giving expression directly chosen people example giving content would require system compulsory voting enrolment giving content would ascribe capacity exercise right enrol specified time giving content reference result le per cent entitled enrol one set question set question think answer implicates requires time consider mean notion disentitlement opening remark frequent reference disenfranchisement disentitlement like seems least first blush give special meaning entitlement enrol entitlement obligation enrol obligation enforced penalty encouragement provided abandonment forgiveness offence claim sense speaking entitlement come matter wish wish mr merkel honour term referred protected franchise resulting parliament chosen people say come evolve encompassing adult citizen wish vote must entitled unless excluded voting good reason unsound mind court held prisoner three year happening prison adult citizen initially 21 moved 18 would probably acceptable move back 21 unless substantial reason shown change limit franchise say category person say theconstitutionas present entitled vote term mechanism say enrolment process accept necessary reasonable aspect limitation right necessary appropriate give effect right contend seven day accept seven day stipulated parliament 1983 reason wish dispute say occurred abrogation seven day period substantial exclusion adult citizen wish vote minimum 100 000 present case may say say minimum 100 000 power challenge conferral power exercised chop point cut point time writ issue day announcement would new enrolment removed three day transfer 508 000 transaction evidence present case startling number past history within five day provision two day five day rather theoretical possible nought three day hundred thousand people able disenfranchised exercise executive power say executive power matter discretion gummow j executive power executive power exercise legislative power mr merkel sorry correct honour executive power advise governor general issue writ power determines executive power announce election otherwise fixed give discretion exercised manner include exclude hundred thousand citizen french cj validity provision cannot depend upon accident number citizen particular time might affected suppose example commission embarked upon enhanced program seen reference program encouragement people enrol singularly successful 5 000 people affected cut validity question change according number people affected time time mr merkel honour way power used disenfranchise good reason say confronted 1983 regime changed substantial disenfranchising effect good reason substantial reason kiefel j extent rely practical effect legislation legislation taken prevent anyone enrolling therefore exercising franchise act combination people dilatory enrolling result complain question approach invalidity legislation effect complained human action involved one involves non compliance legislation mr merkel honour respect begs question honour say dilatory say kiefel j obligation statute claim enrolment transfer enrolment prosecution available offence mr merkel honour sole function provision facilitate mean person right vote continuing obligation discharged claim lodged prosecution say honour provision operates way example offence update enrolment every six month effect lot people dropping roll may longer serving purpose accurate enrolment encouraging participation date election say honour enrolment requirement enrol legislatively mandated necessarily meet constitutional requirement serve right vote function disenfranchising people right vote kiefel j right constitutionally entrenched right mr merkel honour kiefel j little loose language perhaps mr merkel honour trying chief justice gleeson discussed inroachas right vote plurality judgment discussed term substance constitutionally protected franchise result exclusion disentitlement disenfranchisement substantial reason say kiefel j right could real limit kind speaking accept limit placed upon restriction time enrolled mr merkel yes honour problem electoral roll necessarily facilitative franchise required yield parliament chosen people go facilitates end become end way honour put make duty enrol end vehicle achieving entitlement vote enfranchising enrolment provision conjunction unreasonable exclusionary effect say would infringe constitutional protection going mention honour insnowdon v dondas188 clr reference joint judgment page 71 justice isaac cited inkean v kerbywhere honour said importance maintaining unimpaired exercise franchise hardly need stated stated majority joint judgment justice isaac said ballot mean protecting franchise must made instrument defeat say enrolment mean protecting franchise cannot made instrument defeating undermining limiting substantial reason gummow j looking justice isaac may useful look atjudd v mckeon 1926 hca 33 1926 38 clr 380at 385 proposition think notion individual right mean central point central point community interest obtaining parliament complying withsections 17and24 sir isaac isaac talked method choosing representative may demanded citizen including compulsory attendance community organized seised subject matter parliamentary election finding express restriction theconstitution may properly think necessary saying necessary parliament imagine make election expressive community possibly starting point mr merkel yes honour accept take honour might gummow j notion possibly brings notion practicality machinery operation machinery mr merkel yes ultimately put serve end franchise crennan j end participatory democracy mr merkel yes honour french cj perhaps thereby attracting strict scrutiny approach procedural mechanism effect preventing somebody exercising franchise mr merkel yes honour would say respect would follow would hayne j also importance notice justice isaac saying injudd v mckeonand began proposition relevant express restriction theconstitution effect required compulsory voting permitted community could choose 1924 parliament make compulsory voting say must begin suspect ascription content directly chosen people element ascription content must whether justice isaac appears assume contrary compulsory voting necessary achieve constitutionally required result directly chosen people rather whether justice isaac appears saying injudd v mckeon well parliamentary choice parliamentary choice compulsory election certain thing follow lord giveth lord taketh away must able think mr merkel say begin saying directly chosen people mr merkel accept honour compulsory versus voluntary voting say buy debate either say irreducible minimum right must otherwise qualified wish vote case hayne j wish time mr merkel election hayne j election mr merkel election franchise cut necessary appropriate adapted matter argument facilitate wish participate ensure parliament chosen people say experience 1983 1983 come clearly agreed fact page 90 91 showed fragility fundamental constitutional protection subject decision executive government announce election fixed election date table tell recent history 30 40 year 1983 much time announcement closure roll day closure regime 1983 derailed double dissolution justice murphy explained inr v pearson ex parte sipka 1983 hca 6 152 clr 254at 266 honour explained happened disavowal early election without prior notice election announcement late afternoon 3 february consequence writ issuing 4th article refer honour later substantial dislocation respect voting fact election election election spike enrolment announcement election historical fact experience part human nature crennan j picking may clarify point paragraph 3 reply wanted certain submission making relation different legislative scheme prior 1983 shown figure relation page 90 91 looking contending provision stood understand contending operate burden way participation democracy burden operate way incompatible withsections 7and24 question validity raised mr gageler paragraph 67 saying paragraph 3 thought want corrected wrong seem saying provision existed prior 1993 valid reinstitute similar provision current circumstance constitutionally impermissible mr merkel honour cannot mount case validity invalidity provision rather introduce paragraph 3 reference paragraph 2 representative democracy evolved evolutionary process must recognise changed historical circumstance legislative history experience world live idea kind regime would existed different time respect enrolment prior 1983 know 1983 public relied upon well known election announcement time people people franchise turned mind updating enrolment enrolling fragility thought entitlement vote shown executive decision closed roll excluded voting raised question minimum protection led 1983 amendment say honour protection became legislative regime part legislative history part changed circumstance lead u 2006 including innovation computer updating check real prophylactic measure protecting integrity roll come 2006 want take away would say constitutionally minimum protection say necessarily constitutional quarrel seven day may quarrel prisoner two year versus four year taken away dramatic consequence seen question must arise substantial reason present context helpful say consider case 1945 1962 know happened 1983 vulnerability executive conduct decision election announced writ issued executive decision cause disenfranchisement government could announced election issued writ two week later problem would arisen power say shall gap given time people turn mind engage enrolling quite reasonably course section 101has restriction butsection 101 requires enrolment transfer notification forthwith simple pointed reply continuing obligation discharged prior prosecution say used vehicle defeat ultimate right sure answered honour question rely much changed historical circumstance legislative history kiefel j may ask matter arising saying legislature address change executive practice mr merkel say fragility franchise shown executive practice legislature need discharge role ensuring people opportunity theconstitutionrequires parliament chosen limited necessary appropriate kiefel j answer respond see occurring mr merkel well honour respond regime stayed 1983 case could mounted 1984 say parliament respond say fails respond legislative regime exposed happened 1983 deficient would addressed found invalid kiefel j yes see similarly legislature obliged take account fact people may wait election called unable proceed upon basis people fulfil obligation statute lay put seriously question following one asked rather unusual position saying legislature valid legislation say people obliged take citizen obligation may offence stated put timely basis nevertheless also build qualification often done relation law prescribe require conduct timely way unusual situation sense mr merkel honour unusual section essentially remedial encourage enrolment purpose voting would contend put hypothetical situation penalised enrolling within time losing right vote election would say would meet constitutional requirement would disentitled vehicle aimed entitlement say disentitlement flowing fromsection 101and indeed legislatively intended disentitlement intended reason subsection 7 continuing obligation become entitled vote kiefel j perhaps strongest point subsection 7 operates effectively excuse people long claim enrolment prosecution commences cut back obligation mr merkel cut back obligation show continuing obligation effectively discharged lodge claim kiefel j perhaps better point may recognise participation role citizen voting perhaps important sanction mr merkel yes honour kiefel j may recognise might cut way might recognise mr merkel say ought recognise really question ultimately either way come said tried address paragraph 6 reply submission say plaintiff similar circumstance taken step discharged obligation albeit late complaint timeliness step say warrant losing franchise consequence argument well blame kiefel j understand argument cavil idea would legitimate legislation would valid provide cut say saying able vote enrol timely way cannot exercise point reduced essential think simply cannot event say period either think way put necessary justified two essential point upon put mr merkel necessary appropriate justifiable kiefel j way would describe proportionality argument mr merkel yes honour go substantial reason disenfranchising consequence exclusion consequence say reasonably appropriate adapted say adapted reference abrogation seven day period wish get argument validity seven day period question abrogated possible reason say looked objectively political dispute extent executive power close roll day election choose otherwise say take honour different report committee changed mind time time insofar said prophylactic fraud sustainable proposition evidence seven day period used fraud said three day cut transfer date cut new enrolment whichever way one try analyse parliament sustainable mischief addressed recognisable defect seven day notice period suggestion caused particular problem ultimate irony one look integrity roll orderly conduct word orderly certain history law helpful way looking integrity roll legitimate end one quibble record high participation rate enrolment reflect people accuracy entitled enrol enrolled correct division choose representative theconstitution seven day cut period put forward strongly electoral commission achieving objective encouraging participation chosen people encouraging integrity ensuring accuracy term entitlement term transfer resident possible justification could limiting two factor unless substantial reason shown word like prophylactic learned friend rationale parliamentary committee said must remove risk fraud prophylactic requires underlying condition exists gummow j see word used solicitor turning rod beat mr merkel prophylactic honour used learned friend heydon j paragraph 66 mr merkel paragraph 66 could point honour french cj cannot get situation court passing judgment merit parliamentary debate justification otherwise measure mr merkel honour need look gummow j need look practical effect measure degree one regard evidentiary material mr merkel sorry honour gummow j one look practical effect law ass validity extent one look material putting u mr merkel yes honour gummow j legal effect practical effect mr merkel yes honour french cj whether debate politicised otherwise surely nothing concerned gummow j anterior practical effect mr merkel yes honour endeavour put two way one conferral power considering manner exercised test constitutional validity say one insidious aspect power use politically motivated reason know evidence establishes gummow j matter french cj power talking power decide announce election mr merkel yes honour sorry issue writ gummow j yes hayne j going tell decision affected political consideration course mr merkel say honour never affected political consideration exercise power consequence disenfranchisement gummow j say given scope political decision undersection 31 say confidence reposed parliament legislating 51 xxxvi make allowance make allowance way produce far practicable machinery permit maximum exercise franchise mr merkel yes honour accept gummow j theconstitutionis political document see word political used term opprobrium mr merkel honour difficulty formulation say seven day period established producing advice warranted abrogation part three day transferring whole enrolment take honour material show practical effect occurred honour mr dacey affidavit volume 1 page 29 paragraph 7 8 show although current election announced two day issue writ close enrolment five day instead three transfer 508 000 claim lodged within period would substantially reduced power exercised manner could 1983 approximately 100 000 claim made within seven day period outside three five day period say website advertisement aec showed roll closed monday 8 00 pm new enrolment thursday 8 00 pm transfer large number public would deterred enrolling registering transfer minimum number affected abrogation seven day period could go happened 2007 volume 5 page 1773 committee inquiry 2007 election aec asked 1977 election substantial cut think 1977 cut three day new nine day transfer say anomaly transfer come section 155 day get extended public holiday anywhere think public holiday flinders island somewhere else period mushroomed basis three think said 1927 2007 election basis figure response earliest possible close enrolment transaction new enrolment transfer many would fallen outside deadline answer question page 1774 1775 show 17 208 appeared within time balance 279 262 261 would disenfranchised time limited parliament empowered executive exercise concerning issue writ say statistic show historically enrolment always spike large number enrolment transaction election announced usually start slow rate resulting high rate towards end period go agreed fact hayne j rather suggests futility inquiring thing would different thing different mr merkel people tend leave thing last minute simply demonstrating calculator saying would x number done earlier really go nowhere mr merkel except indicating honour practical consequence abrogation seven day period extremely substantial dealt agreed fact take honour heydon j page 92 mr merkel yes honour agreed fact paragraph 11 page 92 going amount transaction 2004 post announcement enrolment period 9 day new enrolment updating existing enrolment 423 993 transaction period one see break transaction table new enrolment 76 000 total enrolment transaction 423 000french cj sorry new enrolment 78 000 said 76 000 mr merkel sorry honour paragraph 13 2007 post announcement enrolment period 3 day new enrolment 9 day 279 000 transaction took honour paragraph 14 17 000 6 15 per cent first day taken honour 15 2007 100 370 people lodged claim enrolment transfer close roll equivalent number 2004 168 394 16 number enrolment enrolment transfer enrolment 1993 2001 election period issue writ election closing date lodgement period transfer broken age point wanted make seems indisputable material abrogation seven year closure fall disproportionately burden age group 18 30 new enrolment particularly 18 mobility young people aged 18 30 french cj constitutional significance argument mr merkel honour first level none exclusionary matter exclusionary fall disproportionately burden particular age group known fall disproportionately different age group honour say significance cannot said burden fall evenly whole community learned friend submission suggest section discriminatory sense prisoner disenfranchised three year year say fall disproportionately known fall disproportionately particular burden particular part people kiefel j operate burden show people 18 30 tend enrol last moment mr merkel record transfer kiefel j yes mean legislation operates burden upon mr merkel say honour practical effect operation kiefel j burden mr merkel well honour take u back tosection 101again would say practical consequence abrogation seven day period concerned particular disenfranchising exclusionary effect known age group kiefel j one thing talk practical effect think another thing talk direct effect legislation upon group people going identify group people practically affected legislation could say people enrol time transfer enrolment time group affected mr merkel yes honour kiefel j group affected except small number would margin time writ issued mr merkel take u back provision serving honour kiefel j mean discussion group people discrimination case discussion group people perhaps take nowhere talking practical effect mr merkel accept honour say higher level practical effect exclusionary therefore limiting people exercise franchise go relevant next level say known particular group suffer practical consequence constitute 50 000 close roll transaction need labour point honour move paragraph 17 day day data enrolment transaction period issue writ election closing date lodgement claim enrol transfer enrolment 1998 2001 election number new enrolment increased daily 7 day period except saturday sunday culminating nearly 50 new enrolment occurring last day shown table one get figure table even going back honour justice kiefel said well therefore legislature give benefit three day transferee equally culpable registering transfer close writ say show arbitrariness legislature done policy say blame say sufficient reason still come back whether kiefel j already enrolled course know mr merkel except added anomaly honour burdening person limiting right douglas second plaintiff required vote someone representative justification gummow j question practical effect sure really addressed commonwealth paragraph 66 surrounding portion however may say paragraph 47 western australia submission mr mitchell say heading conclusion mr merkel say honour described substance term practical effect legislative disqualification exclusion use word inroachwhich talk exclusion disentitlement disenfranchisement say consequence practical effect abrogation seven day rule mean say informal vote say anything consequence consequence legislative barrier exercising franchise fact exercise franchise gummow j yes took u earlier tokean v kerby27 clr justice isaac judgment election petition fought five six day court page 459 may starting point sort question think justice isaac talk notion free election english inheritance lying root election law see portion beginning century parliamentary election conducted open voting mr merkel unfortunately honour hadsnowdon learned friend handed honour page 459 honour gummow j page 459 good idea bring book know mr merkel could come back honour agreed fact set paragraph 18 24 fact show abrogation work relevant work respect young people 2004 post announcement period 81 new enrolment person aged 18 24 78 816 new enrolment post announcement enrolment period37 007 person aged 18 polling day14 132 person aged 19 polling day13 058 person aged 20 24 polling dayas 30 june 2006 23 3 eligible person aged 18 25 enrolled compared 9 8 estimated total number eligible person enrolled 20 2007 post announcement enrolment period 76 new enrolment person aged 18 24 get similar statistic paragraph 21 30 june 2007 19 8 eligible person aged 18 25 enrolled compared 8 4 estimated total number eligible person enrolled 31 march 2008 16 63 similar figure 15 april 2010 approximately 430 000 eligible young people enrolled vote latest figure think something like 1 4 million person eligible enrolled say theelectoral actprocess facilitating enrolment seeking impede crennan j agreed fact mr merkel honour put submission take honour material whatever might said status fact submission argument put national audit office australian electoral commission indicate statutory function electoral commission insection 7of act include consider report minister electoral matter promote public awareness provide information advice electoral matter parliament subsection set independent statutory authority came part 1983 amendment take honour submission australian electoral commission committee annexure x volume 4 1493 gummow j function power commission atsection 7are exhaustively laid read example withsection 45of thefinancial management accountability act1997 |
Chu, Choi San [2004] MRTA 1133 (25 February 2004).txt | chu choi san 2004 mrta 1133 25 february 2004 last updated 29 april 2004 2004 mrta 1133catchwords review visa refusal subclass 457 business sponsorship approved review applicant choi san chuvisa applicant abovetribunal migration review tribunalpresiding member joy whitakermrt file number v03 06835dept file number clf2003 48433date decision 25 february 2004at melbournedecision tribunal affirms decision review finding visa applicant entitled grant temporary business entry class uc visa statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate m choi san chu visa applicant national people republic china born 11 february 1978 applied temporary business entry class uc visa 18 july 2003 delegate decision refuse grant visa made 5 september 2003 jurisdiction standing2 visa applicant lodged valid application review tribunal 1 october 2003 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa department reconsideration remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 criterion policy immediately relevant review legislation regulation 1 20a 1 20d regulationsitem 1223a schedule 1 regulationspart 457of schedule 2 regulationspolicy pam 3 schedule 2 part 4576 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence7 tribunal following document t1 mrt case file v03 06835 folio numbered 1 30 t2 mrt case file v03 06834 folio numbered 1 32 d1 departmental case file clf2003 48433 folio numbered 1 114 8 visa applicant first entered australia short stay visitor class tr visa subclass 670 tourist short stay 29 march 1995 departed 9 april subsequently granted student temporary class tu visa subclass 560 9 february 2000 arrived australia 13 march 2000 15 january 2002 granted student temporary class tu visa subclass 572 vocational education training sector 20 may 2002 review applicant granted another subclass 572 valid 11 april 2004 9 document submitted support primary application included work reference certificate qualification 10 visa application made basis visa applicant would employed sogo enterprise holding aust pty ltd trading express education migration centre investment tourist consultant annual salary 30 000 mrt case file v03 06834 11 delegate stated visa granted basis proposed employer approved business sponsor 12 visa applicant stated lodging application review dimia receive additional supporting document actually post 4 september 2003 requested document please review submission sent office later 13 24 november 2003 tribunal invited visa applicant comment within prescribed time information pursuant section 359a act tribunal received response within prescribed time accordingly tribunal decided section 359c 1 act exercise discretion determine review without conducting hearing section 360 2 c findings14 time visa application lodged class uc contained following subclass subclass 456 business short stay subclass 457 business long stay subclass 456 relevant visa cannot granted visa applicant australia visa applicant seeking visa longer 3 month using form 1066 15 accordingly visa applicant considered criterion subclass 457 visa visa requirement applicant satisfies criterion 457 223 1 1 applicant meet requirement subclause 2 3 4 5 7a 8 9 16 criterion provides total seven alternative category may satisfied order satisfy regulation whole labour agreement relation activity question therefore visa applicant cannot satisfy criterion 457 223 2 rhq agreement therefore visa applicant cannot meet criterion 457 223 3 sponsor overseas business mean visa applicant cannot satisfy criterion 457 223 5 visa applicant made claim operating business principal therefore meet criterion 457 223 7 7a applicant service seller person accorded diplomatic privilege therefore cannot satisfy criterion 457 223 8 9 application standard business sponsor lodged sogo enterprise holding aust pty ltd refused delegate delegate decision affirmed tribunal therefore visa applicant cannot satisfy criterion 457 223 4 conclusion17 visa applicant meet criterion subclass 456 visa criterion subclass 457 visa tribunal must affirm decision review decision18 tribunal affirms decision review finding visa applicant entitled grant temporary business entry class uc visa |
Vacik Distributors Pty Limited and Anor v Australian Broadcasting Corporation and Anor No.9 [2000] NSWSC 809 (14 August 2000).txt | vacik distributor pty limited anor v australian broadcasting corporation anor 9 2000 nswsc 809 14 august 2000 last updated 16 october 2000new south wale supreme courtcitation vacik distributor pty limited anor v australian broadcasting corporation anor 9 2000 nswsc 809current jurisdiction common law divisionfile number 20326 97hearing date 14 august 2000judgment date 14 08 2000parties vacik distributor pty limited anor v australian broadcasting corporation anor 9judgment sperling jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel p w gray first second plaintiff r k weaver first defendant r sibtain second defendant solicitor swaab associate first second plaintiff martin first defendant blake dawson waldron second defendant catchword act cited decision order made see paragraph 8 judgment supreme courtof new south walescommon law divisioncld20326 97sperling jmonday 14 august 2000vacik distributor pty limited anor v australian broadcasting commission anorjudgment 91 honour agreed pursuant judgment given proceeding appropriate order made verdict judgment due course make order 2 application made stay proceeding 28 day defendant ground appeal delineated satisfied impediment grant stay proceeding arising point might taken regard 3 view application 28 day take view defendant allowed least time put position argue longer stay proceeding thought required mind particular inquiry defendant might wish make concerning financial position plaintiff 4 propose therefore grant stay proceeding 28 day determination regard regarded indication opinion part defendant entitled even prima facie entitled stay proceeding beyond time make order due course morning 5 due course give liberty apply intended would encompass liberty defendant apply extend stay proceeding 6 plaintiff produced short minute order providing verdict judgment relation claim respective plaintiff respective proceeding plaintiff made calculation interest date propose interest calculated included judgment defendant raise objection approach intend liberty apply provide extend liberty apply relation amount interest calculated far concern arithmetic respect liberty apply exercised within 48 hour 7 plaintiff seek order cost relation proceeding defendant submission made defendant regard make order 8 order make follows 1 direct entry verdict judgment first plaintiff first defendant sum 17 237 26 second plaintiff first defendant sum 68 949 04 first plaintiff second defendant sum 28 638 35 second plaintiff second defendant sum 171 830 13 2 order first defendant pay first second plaintiff cost proceeding 3 order second defendant pay first second plaintiff cost proceeding 4 stay proceeding judgment period 28 day today date 3 give liberty apply extend stay proceeding judgment relation amount judgment far concern arithmetic calculation interest provided latter respect liberty apply exercised one day notice given within two day today date last updated 16 08 2000 |
Hannan v The Owners - Strata Plan No. 20680 [2022] NSWCATCD 15 (31 January 2022).txt | hannan v owner stratum plan 20680 2022 nswcatcd 15 31 january 2022 last updated 15 march 2022civil administrative tribunalnew south walescase name hannan v owner stratum plan 20680medium neutral citation 2022 nswcatcd 15hearing date 3 may 2021 7 june 2021date order 31 january 2022decision date 31 january 2022jurisdiction consumer commercial divisionbefore k ross senior memberdecision 1 stratum central pty ltd stratum central appointed stratum managing agent owner stratum plan 20680 2 stratum central exercise function owner corporation period 24 month date order term condition set agency agreement forming part bundle marked mm1 relied upon applicant proceeding 3 stratum central may exercise function chairperson secretary treasurer stratum committee owner corporation period 24 month date order catchword stratum scheme management compulsory appointment stratum manager breach statutory duty repair common propertylegislation cited stratum scheme management act 2015 nsw case cited loneragan v owner stratum plan 16519 2020 nswcatap 177glenquarry park investment pty ltd v hegyesi 2019 nswsc 425texts cited nilcategory principal judgmentparties peter john hannan first applicant margaret may mcquade second applicant lesley van dyck third applicant owner stratum plan 20680 respondent representation counsel mr lovas first second applicant mr hand respondent solicitor lawyer chamber first second applicant makinson apice third applicant chamber russell lawyer respondent file number sc 20 40116 sc 20 42134 sc 21 12953publication restriction nilreasons decisionbackground1 proceeding concern 22 lot stratum scheme cremorne mr hannan m mcquade owner lot 14 scheme whilst m van dyck owner lot 22 building constructed 1980 owner stratum plan 20680 owner corporation dispute area common property require repair acknowledges strict obligation pursuant tos 106of thestrata scheme management act 2015 act repair maintain common property applicant allege owner corporation breach obligation 2 owner corporation engaged engineer mr clark clark engineering consultant called tender undertake certain repair applicant dispute proposed scope work argue proposed building contract inadequate protect owner corporation interest 3 applicant also allege owner corporation breach certain obligation breached undertaking given tribunal seek compulsory appointment stratum managing agent order 4 owner corporation opposes order sought 5 1 april 2021 interim proceeding sc 21 12953 tribunal made following order interim order 1 respondent restrained considering motion 3 4 5 general meeting scheduled take place 8 april 2021 2 respondent restrained signing contract brookvale industrial maintenance pty ltd referred motion 4 proposed put general meeting 8 april 2021 3 order cease effect 5pm 12 april 2021 application interim order listed hearing 6 interim order extended 12 april 2021 3 may 2021 7 june order tribunal order sought7 m van dyck seek following order pursuant tosection 237 1 thestrata scheme management act 2015 ssma 2015 stratum central pty limited stratum central appointed stratum managing agent owner stratum plan 20680 owner corporation exercise function owner corporation period 24 month pursuant tosections 106and232that owner corporation carry work repair maintain common property accordance scope work identified report stephen hamilton dated 22 december 2020pursuant tosections 232 1 241and106 5 owner corporation carry work rectify consequential damage lot 22 arising failure repair maintain common property accordance scope identified report stephen hamilton dated 22 december 2020costs8 m mcquade mr hannan seek 1 order undersection 237of ssma 2015 stratum central appointed stratum managing agent owner stratum plan 20680 b stratum central exercise function owner corporation period 24 month date order term condition set agency agreement forming part bundle marked mm1 relied upon applicant proceeding c stratum central may exercise function chairperson secretary treasurer stratum committee owner corporation period 24 month date order alternative2 order undersection 237of ssma 2015 stratum central appointed stratum managing agent owner stratum plan 20680 limited purpose set order b stratum central exercise owner corporation function repairing maintaining common property ii engage instruct contractor expert advisor third party stratum central deems necessary ensure owner corporation meet duty unders 106of ssma iii exercise ancillary function carry duty owner corporation stratum committee connected exercise function referred b abovefor period 24 month date order c stratum central appointment term condition set agency agreement submitted stratum central forming part bundle marked mm1 relied upon applicant proceeding alternative3 order unders 232ssma within 28 day date order owner corporation engages suitably qualified experienced engineer clark engineering consultant new engineer prepare scope work specification repair maintenance work required common property new scope work b within 14 day receiving new scope work owner corporation instructs new engineer put new scope work ender obtain detailed quotation least 3 suitable qualified experienced contractor tendering contractor c within 28 day receiving new scope work owner corporation convenes general meeting purpose appointing one tendering contractor owner corporation appoint tendering contractor commence work common property soon reasonably practicable supervision instruction new engineer 4 applicant seek order respondent pay cost incidental proceeding 9section 237 3 act set circumstance order appointing stratum managing agent may made tribunal may make order satisfied management stratum scheme subject application order act appeal tribunal functioning functioning satisfactorily b owner corporation failed comply requirement imposed owner corporation order made act c owner corporation failed perform one duty owner corporation owes judgment debt 10 applicant allege owner corporation neglecting legal duty including attending it 106duty many year acting contravention act otherwise functioning satisfactorily evidence submissions11 hearing took place 3 may 2021 7 june 2021 covid 19 pandemic first day hearing conducted phone whilst second proceeded virtual meeting room 12 tribunal 1 5 volume court book provided first day hearing 2 12 march 2021 respondent submission court book pp 1803 1823 3 31 may 2021 applicant submission 4 15 june 2021 applicant submission 5 16 june 2021 affidavit frank death 6 18 june 2021 applicant supplementary submission 7 14 july 2021 respondent submission 8 evidence adduced hearing transcript hearing 3 may 2021 transcript second day 9 23 july 2021 applicant submission reply 10 19 november 2021 application reopen hearing applicant submission support 11 15 december 2021 respondent submission 12 22 december 2021 applicant submission reply expert evidence13 tribunal evidence mr clark clark engineering consultant engaged owner corporation provided consultancy service owner corporation mr stephenson diagnostech remedial building consultant engaged m mcquade comment mr clark scope work reported december 2019 motion replace mr clark mr stephenson defeated mr hamilton instruction m van dyck provided report dated 22 december 2020 8 april 2021 also engaged m mcquade mr hannan produced report dated 23 march 2021 14 mr clark mr hamilton gave concurrent evidence tribunal note considering evidence place weight evidence mr hamilton financial interest outcome proceeding whilst mr clark adopted tribunal code conduct independence affected fact consultant produced specification tender document agreement owner corporation entitled fee representing 7 5 value rectification work mr hamilton pecuniary interest outcome proceeding findings15 make following finding based evidence 1 2 july 2019 mr clark clark engineering consultant submitted proposal consideration owner corporation respect understanding owner require full inspection roof terrace report detailing defect located inspection proposal set scope work fee proposal follows item 1 inspection report 1650 00 incl gstitem 2 preparation specification scope work tender documentation 3960 00 incl gstitem 3 tendering recommendation 1320 00 incl gstitem 4 preparation contract letting contract 1320 00 incl gstitem 5 superintendence 7 5 see note 1 note 1 fee 7 5 total contract sum 2 meeting owner others design redesign part work required result matter circumstance discovered work amendment charged standard rate 2 23 july 2019 stratum committee resolved seek fee proposal clark engineering assessment report water ingres issue rest building record fee proposal received mr clark 3 5 august 2019 stratum manager sent following email mr clark sorry delay getting signed proposal back inspection already arranged assumed secretary already engaged attach signed acknowledgement per proposal dated 2 july 2019 behalf stratum committee undertake stage 1 inspection report 4 16 august 2019 mr clark produced report provided stratum committee 5 27 august 2019 stratum committee considered report resolved request mr clark amend include additional matter requested meeting dated 23 july 2019 6 mr clark provided amended report dated 19 september 2019 7 26 september 2019 mr clark produced scope work tender documentation 8 invoice rendered mr clark paid follows 2 september 2019 3 200 6325 september 2019 2646 711 october 2019 3960 00 9 invoice included work authorised resolution stratum committee owner corporation 10 4 october 2019 stratum manager instructed mr clark work mr clark acknowledged receipt instruction 11 29 october 2019 mr clark produced revised scope work tender documentation 12 general meeting 19 november 2019 owner corporation deferred motion approve mr clark scope work allow time information provided engineer 13 sometime 26 september 2019 10 december 2019 mr clark sent scope work least three builder 14 10 11 december 2019 three builder submitted tender mr clark 15 17 december 2019 mr clark provided tender report owner corporation recommended acceptance brookvale industrial tender price 1 425 864 00 16 m mcquade engaged diagnostech remedial building consultant report mr clark proposed scope 10 december 2019 mr stephenson provided advice proposed tender document based form contract consider appropriate included provisional allowance many item making ultimate price work variable 17 29 january 2020 stratum committee met resolved issue invitation mr clark address stratum committee explain tender documentation motion accept fee proposal diagnostech properly investigate remedial work required prepare technically accurate prescriptive specification work required owner corporation defeated committee resolved pay mr clark outstanding account 18 28 february 2020 m mcquade requested general meeting convened 18 march 2020 19 march 2020 covid 19 restriction imposed throughout nsw 20 30 april 2020 m mcquade circulated letter lot owner letter urged carefully consider vote upcoming meeting urged go clark engineering instead engage diagnostech 21 26 may 2020 general meeting held meeting resolved sever relationship mr clark engage diagnostech carry investigation prepare detailed scope work initially vote incorrectly counted appeared motion lost 22 19 june 2020 mr clark wrote two letter owner corporation referred letter circulated m mcquade stated advised probably libellous actionable asserted contract owner expected honoured second letter alleged contract owner corporation superintendence contract stated expected paid accordance contract 23 24 august 2020 dr mcdonald owner lot 4 lodged application tribunal seeking interim substantive order respect repair required common property affecting lot sc 20 37246 sc 20 37247 dr mcdonald proceeding 24 september 2020 owner corporation sought advice bannermans lawyer relation mr clark claim brief drafted frank death peter jowett sent stratum manager completion copy stratum manager email dated 5 august 2019 4 october 2019 included brief 25 14 september 2020 several letter lot owner communicating dissatisfaction said disharmony within stratum committee sent m mcquade committee 15 september 2020 mr peter jowett wrote committee relation m mcquade letter stated committee member could agree decision committee support publicly resign 26 17 september 2020 committee became aware dr mcdonald proceeding 27 18 september 2020 mr death requested stratum manager convene stratum committee meeting resolution authorise mr death represent owner corporation dr macdonald proceeding stratum manager strongly recommended owner corporation represented lawyer noting scheme legal defence insurance 28 21 september 2020 stratum manager wrote stratum committee noted two remedial builder accompanied mr clark attended lot 19 4 quote remediate water penetration mould issue stated unable establish instructed mr clark obviously know stratum note resolution appoint diagnostech honoured actioned time made quite likely tender would inn hand consideration today current delay could avoided instead would seem certain member committee determined work completed supervision mr clark reason highly inappropriate committee member represent oc ncat stand resolution contrary repeat professional advice would prudent sensible best interest owner lawyer appointed 29 23 september mr hannan m mcquade filed application sc 20 40116 30 25 september 2020 mr death appeared tribunal representing owner corporation respect dr mcdonald proceeding following order made consent consent respondent owner corporation undertakes arrange completion following work common property unit 4 18 december 2020 engage fully licensed qualified insured experienced remedial builder together qualified engineer remedial experience appropriate professional indemnity insurance rectify remediate replace work requires ensure water penetration cause mould mildew dampness associated damage caused water penetration rectified 31 29 september 2020 bannermans lawyer provided advice owner corporation bound contract mr clark least respect roof terrace work basis original fee proposal roof terrace work accepted owner corporation time providing advice bannermans provided either email referred paragraph 15 3 10 32 letter dated 30 september 2020 lawyer owner lot 19 put owner corporation notice required owner corporation engage remedial builder carry repair lot 19 owner corporation undertaken dr mcdonald proceeding letter also put owner corporation notice claim pursuant tos 106 5 act loss allegedly incurred consequence owner corporation breach statutory duty 33 3 october 2020 m van dyck lodged application seeking compulsory appointment stratum managing agent sc 20 42134 34 22 october 2020 committee meeting convened agenda meeting endorsed either secretary stratum manager minute record several motion purported retrospectively authorise action already taken committee resolved consider quotation bim remediation unit 4 19 view accepting quotation work proceed soon possible matter engineer approved egm 35 letter dated 5 november 2020 lawyer m van dyck unit 22 demanded owner corporation advise proposed carry repair balcony associated lot property provide detail expert intended engage carry work arrange rectification work carried common property consequential damage pay m van dyck legal cost 36 7 december 2020 owner corporation considered bannerman advice resolved proceed mr clark proceed diagnostech 37 26 december 2020 stratum committee resolved engage bim undertake work lot 4 19 accordance scope work prepared paul clark 38 22 january 2021 owner corporation signed contract bim undertake work lot 4 39 22 march 2021 m van dyck mr hannan m mcquade lodged interim application sc21 12953 40 23 march 2021 mr clark certified progress claim respect work lot 4 19 included work variation original scope written variation 41 1 april 2021 tribunal made interim order 42 7 april 2021 stratum committee decided defer general meeting organised take place 8 april 2021 motion subject interim order motion considered 43 general meeting 17 may 2021 owner corporation approved appointment chamber russell lawyer represent owner corporation proceeding date owner corporation paid invoice chamber russell lawyer totalling approximately 45 000 meeting following exchange took place natalie stratum manager think fair point look chamber russell billed 45000 odd date peter jowett natalie would much happier disclose item like meeting whole party natalie financial information owner corporation secret peter peter jowett owner corporation make decision disclosed natalie younatalie actually financial information available owner speter jowett financial information paid solicitor could well covered secrecy provision litigation occurring natalie absolutelypeter jowett happy disclosing information natalie well noted stand firmly every owner right access financial information may invoice detail may considered privileged amount paid every owner right know peter jowett good reason natalie exclude discussion submissions16 applicant submit following matter support finding owner corporation functioning satisfactorily 1 ongoing failure properly repair maintain common property 2 irregularity appointment mr clark including complete work without authority resolution stratum committee owner corporation instructing work without signed agreement paying account without resolution stratum committee 3 preparing brief bannermans advice without including relevant document 4 disharmony committee member applicant allege inappropriate inaccurate statement mr jowett mr death 5 mr death representing owner corporation dr mcdonald proceeding without authority resolution stratum committee owner corporation 6 refusal obtain legal advice representation dr mcdonald proceeding circumstance stratum manager strong recommendation owner corporation represented 7 mr death giving undertaking ncat behalf owner corporation without authority circumstance undertaking could complied 8 breaching undertaking given ncat 9 resolving general meeting 7 december 2020 oppose proceeding without first obtaining legal advice 10 prepared march 2021 enter contract complete rectification work knowing scope work contentious proposed contract provision facilitate superintendent function proposed carried mr clark scope work prepared inspection carried 2019 related whole building work relating lot 4 19 since subject separate contract completed quantum fixed price portion contract 1 195 905 73 varying amount originally tendered 1 425 864 le 415 912 provisional sum increase 20 despite two lot attended explanation difference quotation forming basis contract including provisional sum making allowance latent expense provisional sum provide including scale charge labour material 11 delegating mr clark function approving variation building work respect lot 4 19 without authority breach ofs 10 2 act 12 cancelling general meeting owner corporation without authority thereby enabling owner corporation incur thousand dollar legal fee without authority 13 failing raise capital proposed building work 14 disharmony member stratum committee member stratum committee stratum managing agent 15 continuing engage mr clark face expert evidence contract flawed scope work inadequate discharge owner corporation obligation 16 making payment mr clark work properly authorised without authority resolution stratum committee owner corporation 17 engaging paying chamber russell lawyer breach ofs 103of act 17 respondent reply submits 1 whilst concedes area common property require repair strict obligation repair maintain common property say taken appropriate action engaging clark engineering consultant inspect common property prepare scope put scope tender provide advice recommendation tenderers b engaging brookvale industrial maintenance commence required work unit 4 19 c taking step engage bim carry balance work 2 delay attending repair caused part covid difficulty part injunction obtained proceeding 3 owner corporation determine appropriate scope work individual owner 4 counting invalid vote meeting 26 may 2020 occurred software glitch stratum manager office thus evidence stratum scheme functioning satisfactorily 5 brief bannerman lawyer prepared m mcquade cannot rely upon omission argue scheme functioning satisfactorily 6 email mr jowett m mcquade cannot read isolation evidence scheme functioning satisfactorily 7 neither giving undertaking without legal advice acting ncat without legal representation evidence scheme functioning satisfactorily taking account dr mcdonald represented proceeding thats 45 1 thecivil administrative tribunal act 2013 ncat act starting point party self represented 8 evidence support finding mr clark authorisation payment claim amount delegation committee decision making responsibility 9 decision defer general meeting 8 april 2021 made order await tribunal determination dr mcdonald claim made legal advice 10 offer made 1 june 2021 made accordance tribunal guiding principle evidence scheme functioning satisfactorily 11 failure raise levy pay building work rather decision conjunction proposed work evidence scheme functioning satisfactorily 12 disharmony stratum committee stratum manager rather evidence stratum committee acting properly determining whether accept agent advice holding agent account 13 applicant identified decision stratum committee allege invalid 14 stratum committee approved payment made mr clark application reopen evidence18 22 november 2021 tribunal received miscellaneous application lodged applicant m mcquade mr hannan seeking leave adduce evidence make submission matter new material tribunal called submission respondent filed submission opposing reopening case providing submission evidence response new material new response material applicant filed submission reply case reopened 19 applicant allege new material evidence owner corporation functioning satisfactorily submits interest tribunal guiding principle considered respondent say new material considered deal said relatively minor matter different issue canvassed substantive proceeding respondent submits reopening case would cause additional delay would consistent tribunal guiding principle 20 determined consider new material new response material submission reply cause delay material considered may lead filing application would cause delay therefore satisfied consistent tribunal guiding principle consider material findings21 respect new material make following finding work lot 20 21 1 mr peter jowett secretary owner corporation lot owner hold proxy owner lot 20 2 31 august 2021 role secretary mr jowett sent email lot owner enclosing notice bim remedial work would commencing unit 20 21 13 september 2021 neither email attached notice disclosed nature work whether work carried owner lot owner corporation 3 following enquiry stratum managing agent m mcquade advised 1 september 2021 work replacement sunroom window paid lot owner accordance existing law 4 email 1 september 2021 m mcquade sought information respect work secretary copied owner stratum managing agent 5 2 september two lot owner sent email lot owner questioning m mcquade right seek information 6 6 september 2021 mr death sent email m mcquade copied owner stating correct transparent procedure followed owner lot 20 21 required maintain enclosed balcony work cost work responsibility owner lot email also stated non approved garden bed unit 20 balcony would removed bim cost unit 20 7 non approved garden bed northern side building sunroom window southern side building 8 work commenced northern balcony 13 september 2021 continued october 2021 9 11 november 2021 applicant solicitor carried line inspection record owner corporation disclosed series email mr jowett stratum manager respect proposed law said required balcony garden work work proceeding absence proposed law 10 copy email dated 28 august 2021 mr jowett stratum stated bylaw would required copy email included record owner corporation made available applicant solicitor 11 17 november 2021 owner lot 20 sent email owner notifying commencement work window 12 owner corporation submits special law 5 cover proposed balcony work law required owner corporation accepts special law 5 requires approval stratum committee acknowledges approval given say however stratum committee process retrospectively managing agent agreement 1 stratum committee meeting 28 june 2021 resolved extend stratum manager agency agreement period 3 month 2 stratum committee meeting 6 december 2021 stratum committee resolved extend appointment january 2022 owner corporation submits permitted 50 4 act discussion decision22 satisfied evidence owner corporation functioning satisfactorily complying obligation act particular 1 clark engineering consultant provided proposal engagement respect roof terrace work despite stratum committee resolving ask provide amended proposal work proposal received yet mr clark instructed stratum committee provide updated report satisfied allowing mr clark proceed provide service without agreement writing evidence management owner corporation functioning satisfactorily 2 irregularity uncertainty surrounding appointment mr clark lead claiming contract threatening hold owner corporation payment service turn meant owner corporation put additional expense delay obtaining legal advice claim evidence management owner corporation functioning satisfactorily 3 owner corporation resolved continue mr clark issue around appointment placed position decision may resulted claim damage allowing owner corporation placed position evidence management owner corporation functioning satisfactorily 4 despite owner corporation advice expert engaged applicant form contract proposed mr clark appropriate adequately addressed concern proposed contract contains provision respect supervisory role engineer adopts scope work based inspection almost 2 year reflect work done since date tender document left investigative work carried contractor contract signed making highly likely cost work would increase offer made proceeding adopt alteration contract address issue raised would imprudent owner corporation enter contract even amended evidence management owner corporation functioning satisfactorily 5 despite respondent submission contrary satisfied disharmony member stratum committee two separate stratum managing agent unwillingness member stratum committee accept advice offered stratum managing agent includes limited refusal mr death mr jowett accept advice given stratum manager scheme represented lawyer dr mcdonald proceeding whilst true ncat encourages party self represented number complexity background proceeding made stratum manager advice eminently reasonable instead mr death represented owner corporation gave undertaking settle proceeding without resolution stratum committee authorising without knowledge stratum managing agent circumstance unlikely undertaking could honoured b subsequent insistence mr death behalf majority stratum committee member stratum manager publish agenda committee meeting including motion censure stratum manager giving allegedly incorrect advice committee refusing carry written instruction committee c insistence publishing agenda subsequently passing motion despite stratum manager advice motion factually incorrect possibly defamatory challenge made mr jowett stratum manager advice general meeting 17 may 2021 see paragraph 15 43 advice stratum managing agent correct mr jowett challenge statement include discussion evidence willingness practice keeping information stratum manager 6 disharmony reluctance accept advice evidence management owner corporation functioning satisfactorily 7 owner corporation breached 103 act engaged chamber russell lawyer act proceeding incurred paid 45000 legal fee obtaining resolution owner corporation 8 evidence owner corporation provided copy chamber russell cost disclosure owner within 14 day required 105 act addition time owner corporation resolved 17 may 2021 enter cost agreement fee disclosure exceeded evidence stratum committee sought updated fee disclosure chamber russell provided fee disclosure owner required s105 fact mr jowett meeting claimed exceeding cost disclosure nature business 9 evidence action taken without authority resolution stratum committee highlighted attendance mr death represent owner corporation dr mcdonald proceeding without knowledge stratum managing agent without resolution stratum committee authorising addition without authority resolution stratum committee owner corporation mr death gave undertaking complete work dr mcdonald unit 18 december 2020 circumstance owner corporation resolved sever connection mr clark engage diagnostech decision stratum committee acted upon awaiting legal advice due course undertaking honoured 10 minute stratum committee meeting held 22 october 2020 resolved approve minute previous committee meeting held 28 april 2020 apparently committee meeting held intervening almost 6 month meeting went purport retrospectively approve action taken previously agreed majority stratum committee member respect dr mcdonald proceeding retrospectively appointing mr death spokesman representative owner corporation motion authorise mr death even retrospectively settle proceeding give undertaking given ncat 11 accept submission owner corporation owner corporation individual lot owner determine scope work adopted order discharge 106 obligation however one complaint m mcquade raised scope work proposed contract adopts uncertain conflict tender document quotation gave example issue rectification shower close analysis document discloses quotation bim form part contract allows provisional allowance internal shower cubicle 108 900 incl gst note waterproof 9 shower provisional sum 12 mr clark report dated 29 october 2019 referenced proposed contract identified high moisture reading adjacent bathroom unit 3 4 7 10 12 14 ensuite main bathroom accessible 15 21 slightly elevated reading found unit 1 5 6 19 ensuite mr clark say lower reading may infrequent use note waterproofing fails failure continue extend area however bathroom lower reading included scope repair 8 bathroom identified high reading 9 included quotation work unit 8 completed therefore impossible determine contract document bathroom included bim scope 13 contract repair unit 4 19 entered december 2020 work carried pursuant contract subsequent dispute work dr mcdonald owner corporation dispute apparently since resolved evidence tribunal clear enough enable make finding dispute however affidavit dated 16 june 2021 mr death give evidence three variation contract price paid evidence variation subject signed variation discussed properly convened meeting stratum committee owner corporation work carried charge incurred respondent submits process unusual building project accept submission process adopted accordance contract stated anticipate involvement superintendent accept submission applicant process effect delegating owner corporation responsibility mr clark breach contract 10 act would concerning process adopted respect proposed contract issue bathroom waterproofed whether door require replacement removal determined mr clark without approval stratum committee owner corporation 14 way repair owner lot 20 21 handled evidence management owner corporation functioning satisfactorily procedure special law 5 properly followed work would considered stratum committee meeting carried would provided opportunity transparency would need m mcquade seek information secretary stratum managing agent retrospective approval action already taken deprives lot owner information entitled deprives owner corporation benefit input member owner corporation action undertaken 15 stratum committee allowed term managing agent agreement expire purported extend 50 4 act satisfied 50 4 allows extension term expired 23 completeness consider following evidence owner corporation functioning satisfactorily 1 counting vote incorrectly 26 may 2020 meeting result error managing agent explained 2 alleged failure raise capital work owner corporation entitled resolve enter contract work 3 delay arising covid 19 pandemic proceeding except necessary proceeding brought address shortcoming appointment mr clark proposed contract thus delay could avoided exercise discretion24 found evidence management owner corporation functioned satisfactorily date hearing satisfactorily functioned time hearing giving reserved decision discretion whether make order 237 order make accept making order draconian adopted unless strong ground appointment necessary circumstance satisfied found numerous example owner corporation functioning satisfactorily failing include failure properly maintain common property breach 106 confined owner corporation 106 obligation history decision made without authority resolution stratum committee owner corporation meeting convened purportedly give retrospective approval practice continued hearing circumstance owner corporation benefit legal advice satisfied evidence whole support compulsory appointment stratum managing agent exercise function owner corporation scope work25 m van dyck seek order owner corporation adopt mr hamilton scope work work common property affecting lot owner corporation opposes position argues owner corporation individual owner determine scope 26 accept owner corporation submission however independent expert evidence work owner corporation proposes carry address 106 obligation appropriate consider evidence provided law27 owner corporation obligation maintain common property duty owner corporation maintain repair property106 duty owner corporation maintain repair property 1 owner corporation stratum scheme must properly maintain keep state good serviceable repair common property personal property vested owner corporation 2 owner corporation must renew replace fixture fitting comprised common property personal property vested owner corporation 3 section apply particular item property owner corporation determines special resolution inappropriate maintain renew replace repair property b decision affect safety building structure common property stratum scheme detract appearance property stratum scheme 4 owner corporation taken action owner person respect damage common property may defer compliance subsection 1 2 relation damage property completion action failure comply affect safety building structure common property stratum scheme 5 owner lot stratum scheme may recover owner corporation damage breach statutory duty reasonably foreseeable loss suffered owner result contravention section owner corporation 6 owner may bring action section breach statutory duty 2 year owner first becomes aware loss 7 section subject provision common property memorandum adopted law stratum scheme division common property right law law made section 108 8 section affect duty right owner corporation law 28 one issue must determined extent replacement fixture required m van dyck guided expert opinion mr hamilton submits owner corporation obligation replace balustrade balcony balcony door owner corporation say balcony door unit 19 able reused upgrade replacement balustrade required 29 inloneragan v owner stratum plan 16519 2020 nswcatap 177the appeal panel considered decision parker j glenquarry park investment pty ltd v hegyesi 2019 nswsc 425 case provide useful analysis interrelationship repair replacement item common property 40 detailed consideration authority dealing relationship s 62 65a 1996 act parker j 74 stated implicit analysis tobias aja thoo obligation 62 2 renew replace common property limited concept reasonable necessity honour stated 129 obligation engaged item longer kept state good serviceable repair went say provision directed circumstance item longer operating effectively fallen disrepair 41 parker j 71 found force contention part common property need repair maintenance work replacement work within 62 practicality requires allowing degree judgment latitude owner corporation determining far go repair replacement work maintenance context 71 often replacement old obsolete item may cheaper effective long run continuing try patch also textual basis allowing degree latitude owner corporation deciding replaced maintenance necessarily confined responding breakdown term usually also includes preventative maintenance replacing something reached end service life fails 73 hand purpose 65a clearly protect minority owner building cost enhancement imposed majority minority may prefer continue eke existing facility even longer run may prove expensive inefficient may le money spend priority may different legislative purpose behind 65a could arguably subverted unnecessary cost could imposed minority discretion majority much le extensive repair maintenance required 74 view implicit tobias aja said thoo obligation 62 2 renew replace item common property limited concept reasonable necessity honour stated 129 provision engaged item longer kept state good serviceable repair went say provision directed circumstance item longer operating effectively fallen disrepair citation omitted 43 agree glenquarry authority proposition obligation imposed 106 1 engaged properly maintain keep state good serviceable repair common property subject property capable repaired replacement must necessarily considered enhancement whether replacement amount enhancement within meaning 108 1 depend fact particular case parker j acknowledged 71 practicality requires allowing degree judgment latitude owner corporation determining far go repair replacement work deciding whether replace repair range matter relevant inform decision made owner corporation cost repair versus cost replacement estimated life repaired item versus life replaced item analysis30 mr clark say need replace balustrade balcony door would aesthetic purpose mr hamilton say existing balustrade constructed 40 year ago height conform standard national construction code waterproofing retiling work reduce effective height existing balustrade balcony door end useful life replacement would preferred 31 duty repair maintain common property may require replacement door balustrade lot 22 also lot whether require consideration appointed stratum manager acting shoe owner corporation range matter cost repair versus cost replacement estimated life repaired item versus life replaced item fact balcony comply current standard also relevant defining consideration evidence matter addition 2 1 2 year since inspection relied upon mr clark may well deterioration common property 32 stated mr hamilton degree independence mr clark respect cavity flashing work detailing waterproofing membrane reinforced concrete column infill wall prefer evidence mr hamilton scope respect matter incorporated repair carried however decline order replacement door balustrade decision matter made taking account issue referred consequential damage lot 2233 m van dyck also seek order repair consequential damage caused lot consequence owner corporation failure repair carrying repair owner corporation responsible rectify consequential loss however premature tribunal make order sought detail damage costs34 matter 60 applies usual position party pay cost unless special circumstance either party press cost order submission filed served 21 february 2022 submission reply filed served 7 march 2022 orders1 stratum central pty ltd stratum central appointed stratum managing agent owner stratum plan 20680 2 stratum central exercise function owner corporation period 24 month date order term condition set agency agreement forming part bundle marked mm1 relied upon applicant proceeding 3 stratum central may exercise function chairperson secretary treasurer stratum committee owner corporation period 24 month date order hereby certify true accurate record reason decision civil administrative tribunal new south wale registrar |
David Joe v THE STAR PTY LIMITED [2022] NSWDC 361 (24 May 2022).txt | david joe v star pty limited 2022 nswdc 361 24 may 2022 last updated 31 january 2023district courtnew south walescase name david joe v star pty limitedmedium neutral citation 2022 nswdc 361hearing date 24 may 2022date order 24 may 2022decision date 24 may 2022jurisdiction civilbefore montgomery dcjdecision 1 examination allowed catchword evidence examination 39 b legislation cited evidence act 1995 nsw 39 39 b category procedural rulingsparties david joe plaintiffthe star pty limited defendantrepresentation counsel mr kelly sc counsel plaintiffmr afshar counsel defendantsolicitors goh lawyer solicitor plaintiffgadens solicitor defendantfile number 2020 00207783judgment ex temporeobjection question posed plaintiff examination see transcript p 124 examination mr kelly q lunch asked several question learned friend topic giving money mr lie outside casino right q answered question sought opportunity give explanation assertion given mr lie outside casino correct q explanation wanted give afshar object honour afshar ask witness giving money mr lie outside casino said properly fact directed honour whether affidavit contained evidence giving money mr lie said ask asked opportunity explain question mr joe giving money mr lie fact think either learned friend objected honour directed attention asking question fairly reference affidavit honour answer gave q affidavit evidence gave cash mr lie playing casino yes give casino give money lie afshar question first invite answer evidence given extent evidence nothing clarify evidence careful cross examination question question clarify anything go topic permit learned friend examine topic honour also gave evidence give money casino money lie put give cash answered asked voucher agreed nothing affidavit withdrawing cash cash cheque money give lie agreed put credit voucher used mr lie answered money used platinum card money use pvc yes said money use pvc money use pvc shorthand platinum vantage card effect evidence fund mr lie whilst casino fund mr lie extent evidence afshar extent evidence honour question explanation pressing mr kelly kelly yes honour sought give explanation gave money think sought least three occasion afshar invitation learned friend seeking respect lead evidence chief circumstance cross examine honour yes see difficulty relation fair come surprise raised parameter case opening matter wish tailor cross examination repeatedly put suggestion arrangement evidence stand man evidence happened casino wagering man evidence previously provided otherwise provided give moment mr afshar occurs cross examination point affidavit happened casino answer taken cross examination challenging credibility witness evidence basis grant leave view firstly arise evidence gave cross examination may well fall withins 39 witness may questioned examination matter arising evidence given witness cross examination secondly wrong view said grant leave examination point unders 39 b afshar could note matter record honour know client position relation honour yes afshar first honour respect learned friend identified ambiguity clarification required evidence mr joe justify examination relation matter cross examined second matter matter justice party evidence sought adduced effect evidence chief client notice witness never given evidence case pleaded specificity nature payment date payment arrangement whereby payment made honour discretion unders 39 heard honour said relation honour granting leave respect put client position facing case previously raised honour arrangement challenge credit funding arrangement inherent respect approach cross examination importantly evidence cross examination afshar well honour arrangement put mr joe respect different question learned friend asking moment arrangement suggested mr joe entry withdraw mr lie entry vip vantage mr joe sitting sitting instead mr lie seat front relevant machine suggest mr joe honour also put several time mr lie playing money restrict evidence given cross denial evidence cross examination something arising cross examination afshar ambiguity sorry reason examination take place denial denial proposition logic friend submission correct every question cross examination would invite exanimation matter matter fairness put witness respect authority suggest narrow confined examination deal matter unclear evidence mr joe evidence unclear rejected proposition put whose money placed machine honour examination evidence arising cross examination funded mr lie something arising cross examination upon examination would permitted secondly wrong repeating challenged credit point point relation challenged counsel inquired first day clinically clean would said pleading made allow afshar honour plea amendments31 january 2023 hearing date correction |
Arshad and Tariq v Commissioner of State Revenue (Review and Regulation) [2022] VCAT 391 (7 April 2022).txt | arshad tariq v commissioner state revenue review regulation 2022 vcat 391 7 april 2022 last updated 11 april 2022victorian civil administrative tribunaladministrative divisionreview regulation listvcat reference z302 2021catchwordsreview regulation list duty act 2000 vic 3 foreign purchaser foreign natural person 28a migration act 1958 cth 30 1 whether purchaser property permitted enter remain australia provisional partner visa foreign purchaser time acquisition whether applicant misled state revenue office whether principle estoppel apply state tax review proceeding whether discretion imposition foreign purchaser additional duty concession remission interest first applicantsecond applicanthassan arshadsaman tariqrespondentcommissioner state revenuewhere heldmelbournebeforer tang memberhearing typevideoconference hearingdate hearing7 april 2022date order oral reasons7 april 2022date written reasons11 april 2022citationarshad tariq v commissioner state revenue review regulation 2022 vcat 391orders1 undersection 51 2 thevictorian civil administrative tribunal act 1998 vic reassessment duty issued applicant 29 october 2020 assessment 23770244 set aside remitted commissioner state revenue reconsideration remit interest accrued date 2 application otherwise dismissed r tang ammemberappearances applicantsmr h arshadfor respondentmr c tran counselnote written reason consist edited transcript reason given orally conclusion hearing reference added full editing clarity reasons1 march 2017 mr hassan arshad dr saman tariq acquired residential property craigieburn relevant property live 2 mr arshad born pakistan australian citizen since 2014 dr tariq born pakistan time relevant property acquired remained citizen country permitted stay australia term partner provisional class uf partner provisional subclass 309 visa provisional partner visa since become permanent resident around 2020 3 prior transfer relevant property mr arshad dr tariq completed duty form 62 purchaser statement form 62 indicating foreign natural person dr tariq case based advice conveyancer purportedly passed information provided state revenue office sro 4 duty originally assessed transfer relevant property basis mr arshad dr tariq foreign natural person however october 2020 period investigation commissioner state revenue commissioner reassessed duty transfer reassessment imposing 10 045 foreign purchaser additional duty fpad rate 7 undersection 28aof theduties act 2000 vic duty act andinterest 577 21 market rate interest undersection 24of thetaxation administration act 1997 vic ta act 5 applicant submit imposition fpad three year acquisition unreasonable inconsistent fact dr tariq entitled medicare benefit contend commissioner approach assessment fpad inappropriate commissioner ought ass taxpayer residency status acquire property order allow make informed decision acquire property 6 mr tran appeared commissioner indicated opening submission light tribunal decision inrudd noor v commissioner state revenue rudd noor 1 commissioner would pressing interest proposed reassessment remitted reconsideration commissioner process remission interest charged date commissioner otherwise submits reassessment confirmed 7 accordingly remaining question proceeding whether dr tariq foreign natural person time relevant property transferred b whether sro provided information misled mr arshad dr tariq whether concern raised applicant support tribunal making different decision application fpad 8 reason follow question answered follows yes dr tariq foreign natural person time relevant property transferred b absence discretion commissioner tribunal review ass fpad different manner estoppel available commissioner could proved decision ass applicant fpad respect acquisition relevant property correct preferable decision 9 accordingly set aside remit reassessment commissioner reconsideration remission interest otherwise dismiss application foreign purchaser additional duty fpad outline legislative scheme fpad10 undersection 18of theduties act stamp duty payable dutiable value dutiable property subject dutiable transaction rate specified inpart 3 general rate duty set insection 28 rate depending dutiable value dutiable property 11 relevant proceeding section 28aprovides additional duty relation dutiable transaction land related interest residential property transferred foreign purchaser relevant time applicable rate additional duty 7 2 generally referred foreign purchaser additional duty 12 phrase foreign purchaser defined insection 3 includes transferee foreign natural person phrase turn defined also insection 3 mean natural person isnot australian citizen new zealand citizen hold particular category visa holder permanent visa within meaning ofsection 30 1 themigration act 1958of commonwealth last excluded category person relevant proceeding 13section 30 1 themigration act 1958 cth migration act found within subdivision division 3 establishes general provision visa non citizen section 30provides two kind visa available non citizen 1 visa remain australia whether also visa travel enter australia may visa known permanent visa remain indefinitely 2 visa remain australia whether also visa travel enter australia may visa known temporary visa remain specified period b specified event happens c holder specified status 14 follows person permanent visa would fall withinsection 30 1 excluded fpad contrast person temporary visa would fall withinsection 30 2 would subject fpad respect transfer residential property victoria 15 unfortunately ready list withinsection 30that indicates particular visa fall within two kind provides instead necessary consider class visa established themigration act 3 themigration regulation 1994 cth migration regulation 4 16 relevance proceeding clause 1220a schedule 1 themigration regulationsprovides provisional partner visa found inpart 2of schedule deal temporary visa bridging visa noted application class visa must made time place application partner migrant class bc visa 5 one sub class 309 partner provisional 6 17 schedule 2 themigration regulationssets various matter relating visa sub class including take effect condition apply relation provisional partner visa clause 309 511 schedule 2 provides temporary visa permitting holder travel enter remain australia end day holder notified holder application partner migrant class bc visa decided b application withdrawn 18 unlike situation applicable case foreign corporation another class foreign purchaser discretion commissioner exclude foreign natural resident operation fpad regime regard relevant circumstance matter 7 submissions19 commissioner contends dr tariq australia provisional partner visa time transfer foreign natural person fpad payable 50 share relevant property 8 20 applicant disagree noting delay department home affair processing dr tariq permanent residency visa relevant time dr tariq entitled medicare benefit contend available permanent resident 21 commissioner responds fact may delay part department home affair grant permanent visa dr tariq b dr tariq entitled medicare benefit 9 irrelevant question whether holder permanent visa purpose themigration actand fpad analysis conclusion22 start hearing drew attention applicant recent decision inrudd noorwhich raised issue regarding status holder provisional partner visa purpose fpad 10 23 case analysed theduties act themigration actandmigration regulationsand concluded provisional partner visa held dr noor 11 could regarded permanent visa within meaning ofsection 30 1 themigration act visa permitted dr noor remain australia indefinitely rather permitted remain specified event namely determination withdrawal application partner migrant class bc visa event latter visa granted including reason withdrawal application visa would longer permitted remain australia accordingly clear held temporary visa within meaning ofsection 30 2 themigration act 24 clear movement record maintained department home affair 12 time transfer relevant property dr tariq australia provisional partner visa 25 reason find dr tariq foreign natural person therefore foreign purchaser time relevant property transferred mr arshad 26 agree commissioner submission delay part department home affair processing dr tariq permanent visa b entitlement dr tariq may medicare benefit irrelevant nature dr tariq visa themigration act ie temporary visa status foreign natural person foreign purchaser defined theduties act estoppel discretionssubmissions27 objection reassessment dated 17 november 2020 13 mr arshad dr tariq contend misled sro believing fpad payable say knew fpad payable would purchased property mr arshad name 28 mr arshad gave evidence conveyancer advised amount duty paid understood based conveyancer discussion sro dr tariq provided information visa however applicant call conveyancer give evidence mr arshad accepted possible spoken sro 29 argument expressly put basis estoppel clear regard nature objection ie making representation relied another person detriment given applicant seek set aside reassessment basis unreasonable estoppel substance ground 30 previously noted hearing mr arshad raised concern commissioner sro administers fpad regime commissioner sro provide sufficient information taxpayer make informed decision purchase property contended commissioner obtain information regarding residency taxpayer confirm status fpad regime purchase property 31 commissioner contends insufficient evidence tribunal applicant misled sro noting carry onus proof 14 32 mr tran appeared commissioner contended whatever conveyancer determine whether fpad applied change operation fpad regime themigration actormigration regulation also submitted commissioner discretion ass otherwise provided theduties act analysis conclusion33 evidence given mr arshad told conveyancer respect purported conversation sro hearsay evidence course tribunal strictly bound rule evidence 15 nevertheless circumstance applicant bear onus proof chosen call person could give proper account relevant matter taken account considering weight given evidence mr arshad 34 satisfied evidence tribunal sro made representation nature alleged inrudd noor discussed information available sro website relation fpad 16 particular website advises person applied permanent visa remains foreign natural person necessary visa granted seems highly improbable officer sro would give advice different shown sro website 35 inrudd noor discussed tribunal decision inshafer v commissioner state revenue 17 andwinnett v commissioner state revenue 18 make clear principle estoppel apply relation collection commissioner state tax 36 concern imposing fpad taxpayer australia able access medicare accept commissioner submission parliament chosen enact fpad regime define foreign natural person foreign purchaser reference themigration act andnotto provide discretion commissioner tribunal review relation application fpad foreign natural person decidenotto impose duty respect acquisition property person 37 reason extent applicant seek reassessment set aside based representation purported made sro wider concern sro administration fpad regime dismiss ground remission interest38 light commissioner concession regarding interest consider appropriate light concern raised inrudd nooras information available taxpayer understand exposure fpad set aside reassessment remit commissioner reconsideration term remitting interest r tang ammember 1 2022 vcat 188 2 since increased 8 3 example special category visa new zealand citizen insection 32 4 migration act 31 1 5 migration regulation sch 1 cl 1220a 3 c 6 ibid cl 1220a 4 7 compareduties act 3e discussed insouth wharf tower pty ltd v commissioner state revenue 2019 vcat 64 8 written contention respondent dated 26 october 2021 commissioner submission 28 32 9 evidence mr tran noted search service australia website suggested holder temporary visa entitled medicare benefit 10 commissioner also provided applicant copy advance hearing 11 2022 vcat 188 24 12 tribunal book tab 23 13 tribunal book tab 3 14 commissioner submission 35 citing ta act 110 15 victorian civil administrative tribunal act 1998 vic 98 1 b 16 2022 vcat 188 31 17 2011 vcat 277 32 18 2019 vcat 403 56 |
Construction, Forestry, Mining and Energy Union re Clay and Ceramics Industry - Pottery Manufacture - PR912273 [2001] AIRC 1308;
(6 December 2001).txt | construction forestry mining energy union clay ceramic industry pottery manufacture pr912273 2001 airc 1308 6 december 2001 pr912273australian industrial relation commissionworkplace relation act 1996s 113application variationconstruction forestry mining energy union c2001 5882 clay ceramic industry pottery manufacture victoria award 2001 odn c 32525 1993 print n5494 aw807649 construction forestry mining energy union c2001 5884 clay ceramic industry brick terra cotta tile manufacture victoria award 2000 odn c 32525 1993 print n5494 aw722585 various employeesclay ceramic industrycommissioner lewinmelbourne 6 december 2001parental leave casual employee decision 1 application construction forestry mining energy union cfmeu vary clay ceramic industry pottery manufacture victoria award 2001 clay ceramic industry brick terra cotta tile manufacture victoria award 2000 cfmeu seek vary award amending existing parental leave provision provide employee defined award eligible casual employee entitled maternity paternity adoption leave 2 variation sought cfmeu consistent decision full bench commission inpr904631and exception proposed retrospective date effect 20 september 2001 opposed victorian employer chamber commerce industry australian industry group 3 satisfied variation sought applicant made general term entitlement sought consistent object legislation principle commission governing variation award variation provide appropriate safety net fair award condition governing entitlement casual employee maternity paternity adoption leave however satisfied exceptional circumstance exist persuade issue retrospective order order operative 4 december 2001 remain force six month order issue accordingly commission commissionerprinted authority commonwealth government printer price code |
1000362 [2010] RRTA 129 (2 March 2010).txt | 1000362 2010 rrta 129 2 march 2010 last updated 12 march 20101000362 2010 rrta 129 2 march 2010 decision recordrrt case number 1000362diac reference clf2009 150077 clf2009 159181country reference sri lankatribunal member adolfo gentiledate 2 march 2010place decision melbournedecision 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 claim citizen sri lanka arrived australia november 2009 applied department immigration citizenship protection class xa visa december 2009 delegate decided refuse grant visa january 2010the delegate refused visa application basis applicant person australia protection obligation refugee convention applicant applied tribunal january 2010 review delegate decision tribunal find delegate decision rrt reviewable decision unders 411 1 c act tribunal find applicant made valid application review unders 412of act relevant lawunders 65 1 visa may granted decision maker satisfied prescribed criterion visa satisfied general relevant criterion grant protection visa force visa application lodged although statutory qualification enacted since may also relevant section 36 2 act provides criterion protection visa applicant visa non citizen australia minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention criterion grant protection class xa visa set inpart 866of schedule 2 themigration regulation 1994 definition refugee australia party refugee convention generally speaking protection obligation people refugee defined article 1 convention article 1a 2 relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notablychan yee kin v miea 1989 hca 62 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 |
Timothy Hunter v CVGT Australia [2021] FWC 5592 (11 September 2021).txt | timothy hunter v cvgt australia 2021 fwc 5592 11 september 2021 last updated 13 september 2021 2021 fwc 5592fair work commissiondecisionfair work act 2009s 394 unfair dismissaltimothy huntervcvgt australia u2021 7101 commissioner bissettmelbourne 11 september 2021application relief unfair dismissal minimum employment period dismissal unders 587at commission initiative 1 11 august 2021 mr timothy hunter applicant made application fair work commission remedy unfair dismissal pursuant tos 394of thefair work act 2009 fw act 2 applicant advised form f2 unfair dismissal application form f2 commenced employment cvgt australia 26 july 2021 dismissal took effect 6 august 2021 3 12 august 2021 commission attempted telephone applicant nominated telephone number discus employment date however applicant answer call voicemail message left advising based information provided appeared meet minimum employment period necessary make unfair dismissal application message also requested applicant return commission call 4 later day commission emailed correspondence applicant nominated email address advising basis information provided form f2 served minimum employment period correspondence directed applicant file document evidence support claim served required minimum employment period correspondence also warned applicant contact commission within 14 day application may dismissed without notice sm notification also sent applicant nominated telephone number requesting contact commission 5 required documentation received 30 august 2021 commission attempted contact applicant nominated telephone number discus application applicant answer call voicemail message left advising commission receive communication close business 31 august 2021 matter may dismissed response received 6 date applicant replied commission correspondence returned commission call 7 section 382 fw act provides person protected unfair dismissal completed period employment least minimum employment period 8 section 383 fw act set minimum employment period follows 383 meaning minimum employment periodthe minimum employment period employer small business employer 6 month ending earlier following time time person given notice dismissal ii immediately dismissal b employer small business employer one year ending time 9 section 587 1 fw act provides 587 dismissing application 1 without limiting fwc may dismiss application fwc may dismiss application application made accordance act b application frivolous vexatious c application reasonable prospect success 10 regard circumstance matter satisfied applicant completed required minimum employment period fw act application reasonable prospect success application dismissed 587 1 c fw act order 1 effect issued shortly commissioner 1 pr733643printed authority commonwealth government printer pr733642 |
Lippiatt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 330 (6 May 2010).txt | lippiatt secretary department education employment workplace relation 2010 aata 330 6 may 2010 last updated 6 may 2010administrative appeal tribunaldecision reason decision 2010 aata 330administrative appeal tribunal 2009 4944general administrative division restephanie lippiattapplicantandsecretary department education employment workplace relationsrespondentdecisiontribunalmr karas ao senior memberdate6 may 2010placebrisbanedecisionthe tribunal varies decision review extent balance debt owing applicant commonwealth waived today date sgd senior membercatchwordssocial security benefit entitlement youth allowance whether applicant incurred debt whether recovered application discretion waive part debt special circumstance special circumstance deemed exist decision varied social security act 1991 cth s 541 541b 543a 1223 1236 1237a 1237aadsocial security administration act 1999 cth s 68 100re davy secretary department employment workplace relation 2007 aata 1114 2007 94 ald 693re beadle director general social security 1984 6 ald 1re groth secretary department social security 1995 aata 121 1995 37 ald 797re ivovic director general social service 1981 aata 57 1981 3 aln n95angelakos v secretary department employment workplace relation 2007 fca 25 2007 100 ald 9reasons decision6 may 2010mr karas ao senior memberbackgroundstephanie lippiatt applicant claimed granted youth allowance centrelink 31 march 2008 basis enrolled full time student brisbane north institute tafe decision centrelink 19 march 2009 amended 30 march 2009 made recover youth allowance debt 2 814 46 period 14 july 2008 4 february 2009 relevant time period decision affirmed social security appeal tribunal ssat 22 september 2009 19 october 2009 applicant sought review decision administrative appeal tribunal tribunal issue legislationthe issue tribunal determine whether applicant incurred youth allowance debt b whether recovered legislation relevant matter thesocial security act 1991 cth act thesocial security administration act 1999 cth administration act section 540 act provides person qualified youth allowance throughout relevant period person youth allowance age satisfies activity test subsection 541 1 act provides person satisfies activity test throughout relevant period person undertaking full time study undertaking full time study defined 541b act enrolled approved course education study educational institution undertaking least three quarter normal amount full time study unless concessional study load applies full time study load defined load enables person complete study minimum time subsection 543a 2 act provides person neither reached age 18 year completed year 12 equivalent youth allowance age applicant neither 18 completed year 12 equivalent relevant period satisfy activity test therefore youth allowance age subsection 100 1 administration actprovides retrospective rate reduction person fails comply notice issued 68 2 administration act section 1223 1 act provides payment person receives entitled becomes debt due commonwealth section 1236 act provides possibility writing delaying recovery debt period section 1237a 1 act provides debt must waived attributable solely administrative error monies paid result error received good faith section 1237aad act provides discretion waive part debt special circumstance case financial hardship person knowingly omit fail comply provision act evidencea hearing matter held 8 march 2010 applicant appeared mother unrepresented mr hamilton appeared respondent applicant nearly 18 year old life mother sibling working receipt centrelink benefit referred course tafe 2008 thought enrolled whole year case 2007 arranged paid redcliffe area youth space applicant proof enrolment received documentation tafe confirm enrolment simply assumed enrolled completing workbook submitted tafe inform applicant fact enrolled recall letter centrelink asking advise change course circumstance received five letter centrelink respond know wanted applicant confirmed paying centrelink debt rate 28 fortnight applicant thought enrolled tafe 2008 year representative youth space enrolled past assumed continued take responsibility enrolment therefore enrolled applicant hope finish aged care course couple week eligible work area mr williams manager redcliffe area youth space explained enrol student tafe simple phone call process referred numeracy literacy difficulty applicant completed year 10 also impression applicant enrolled tafe 2008 confirmation tafe mr hamilton confirmed basis centrelink record enrolled tafe second semester 2008 noted evidence applicant mr williams confusion applicant tafe enrolment 2008 hearing legal service branch centrelink received letter tafe brisbane north confirming applicant enrolled tafe second semester 2008 consideration findingsfrom evidence material tribunal appears applicant receiving youth allowance centrelink basis enrolled full time student brisbane north institute tafe 2008 april december received number letter centrelink informing must report centrelink within 14 day change position circumstance including ceased full time student according tafe record applicant enrolled tafe second semester 2008 applicant became full time student february 2009 noted centrelink raised debt overpayment youth allowance 14 july 2008 4 february 2009 original debt 3 351 75 reduced centrelink 2 814 46 relevant time period recovered instalment applicant given legislative requirement matter clear applicant neither full time student youth allowance age relevant period thus qualify youth allowance tribunal note respondent written applicant number time 2008 regarding circumstance applicant failed comply letter respond spite confusion applicant fail notify centrelink ceased full time student continued receive regular youth allowance payment relevant period applicant entitled receive youth allowance relevant time period indebted commonwealth 2 814 46 tribunal note debt arise administrative error commonwealth arose applicant failed notify centrelink undertaking full time study relevant period well tribunal note applicant repaying debt regular fortnightly instalment apparently capacity repay without causing severe financial hardship therefore debt cannot waived pursuant 1237a act would inappropriate write 1236 act provision exists 1237aad act exercise discretion waive part debt ground special circumstance extent exception defined act considered widely case law see examplere beadle director general social security 1984 6 ald 1 groth secretary department social security 1995 aata 121 1995 37 ald 797 ivovic director general social service 1981 aata 57 1981 3 aln n95 angelakos v secretary department employment workplace relation 2007 fca 25 2007 100 ald 9andre davy secretary department employment workplace relation 2007 aata 1114 2007 94 ald 693 tribunal note evidence provided mr williams redcliffe area youth space applicant mother confusion applicant tafe enrolment 2008 mr williams indicated file reflected applicant enrolled tafe semester 1 2008 second semester applicant thought enrolled throughout 2008 continued complete hand work book tafe throughout entire year tafe college record indicate applicant enrolled first semester 2008 second semester centrelink relied tafe record communication regard concluding applicant enrolled tafe full time study relevant time period received youth allowance payment calculated indebted commonwealth 2 814 46 hearing mr hamilton conceded circumstance case given confused evidence presented applicant tafe enrolment 2008 casual nature enrolment process indicated mr williams respondent would averseto finding special circumstance existed case consequently tribunal find special circumstance present case given applicant dysfunctional family background particular circumstance involvement redcliffe area youth space tafe confused evidence regarding 2008 tafe enrolment notwithstanding tafe letter centrelink regarding 2008 enrolment presented hearing respondent contention regard circumstance pursuant 1237aad tribunal waif part debt still outstanding today date decisionthe decision review varied extent balance debt owing applicant commonwealth waived today date certify 22 preceding paragraph true copy reason decision herein mr karas ao senior membersigned sgd research associatedate hearing 8 march 2010date decision 6 may 2010the applicant self representedfor respondent mr b hamilton departmental advocate |
N94_05519 [1995] RRTA 2574 (17 November 1995).txt | n94 05519 1995 rrta 2574 17 november 1995 refugee review tribunaldecision reason decisionrrt reference bn94 05519tribunal j gibbon memberdate 17 november 1995place sydneydecision tribunal affirms delegate conclusion find applicant entitled protection visa tribunal varies delegate decision decision effect decision refuse grant applicant protection visa 1 decision reviewthis matter concern decision made 30 october 1992 delegate minister immigration ethnic affair minister refuse grant applicant protection visa applicant applied protection visa 17 august 1992 applicant notified decision 30 october 1992 applied review decision 10 november 1992 jurisdiction standingthe tribunal jurisdiction arises valid application made 412 act review rrt reviewable decision see 414 act delegate decision rrt reviewable decision within meaning 411 1 c act appears fact case application review valid application 412 act tribunal satisfied jurisdiction review delegate decision legislative frameworkon 1 september 1994 themigration reform act1992 |
Wallis and Anor & Solomon and Ors (Costs) [2009] FamCA 1149 (4 November 2009).txt | wallis anor solomon or cost 2009 famca 1149 4 november 2009 last updated 14 december 2009family court australiawallis anor solomon or cost 2009 famca 1149family law cost application cost made independent child lawyer application dismissedfamily law act 1975 cth applicant mr wallis andmr g wallis1st respondent m n solomon2nd respondent mr w wallis3rd respondent m solomonindependent child lawyer m shepherdfile number ncc641of2008date delivered 4 november 2009place delivered newcastleplace heard newcastlejudgment justice austinhearing date 4 november 2009representationcounsel applicant mr williamsonsolicitor applicant braye cragg solicitorscounsel 1st respondent m burnssolicitor 1st respondent catherine henry partnerscounsel 2nd respondent mr batemansolicitor 2nd respondent cmi law firmcounsel 3rd respondent mr batessolicitor 3rd respondent rod powe lawyerscounsel independent child lawyer m goodchildsolicitor independent child lawyer neisha shepherd solicitorsordersthe court entertains oral application cost made independent child lawyer application cost dismissed notedthat publication judgment pseudonymwallis anor solomon or cost approved pursuant tos 121 9 g thefamily law act 1975 cth family court australia newcastlefile number ncc 641 2008mrs wallis mr g wallisapplicantsandms n solomonfirst respondentandmr w wallissecond respondentandms solomonthird respondentandindependent child lawyerex temporereasons judgmentfollowing publication order reason concerning substantive parenting proceeding party independent child lawyer make application cost conventional informed bar table party subject grant legal aid submission subject contest independent child lawyer consequence application cost made independent child lawyer dismissed every one party reason provision ofs 117 4 thefamily law act 1975 certify preceding three 3 paragraph true copy reason judgment honourable justice austin associate date 4 november 2009 |
Ann Maree Hocking v Transport Accident Commission (1995_28256) [1998] VICCAT 1365 (7 May 1998).txt | administrative appeal tribunal victoriano 1995 28256 general division melbourne applicant ann maree hocking respondent transport accident commission john galvin deputy president date decision day may 1998 decision tribunal 1 decision respondent set aside determined applicant whole person permanent impairment 28 2 respondent shall pay applicant cost 3 february 1998 assessed upon scale county court scale taxed default agreement applicant shall pay respondent cost 3 february 1998 date assessed upon scale county court scale taxed default agreement administrative appeal tribunal victoriano 1995 28256 general division melbourne applicant ann maree hocking respondent transport accident commission john galvin deputy president reason decision applicant born warrnambool 23 june 1971 one seven child educated warrnambool secondary school hsc level leaving school worked short time local woollen mill subsequently gained admission nursing course deacon university withdrew course six month determined unsuited involved cycling triathalon competition purchased sewing machine november 1990 began making cycling triathalon clothes twelve month turned hand making bridal wear time undertook secretarial course tafe well course offered job kraft factory hand hoped work way appeal 1995 28256 page 2 administrative job completed computer part secretarial course whilst employed kraft gained distinction worked factory hand kraft twelve month casual basis time actively involved competitive cycling year 11 school competed success victorian state cycling competition married august 1992 continued ride state level became pregnant first child born april 1993 remained confident could still attain membership australian cycling team returned cycling soon birth trained hour half two hour day successful competition warrnambool endeavouring build training improve mother looked infant daughter trained 3 june 1993 whilst training involved transport accident accident riding past intersection warrnambool recollection struck next recollection ambulance scene accident able remember second ambulance doctor draining knee later preparation surgery thereafter gap clear memory following saturday accident occurred thursday woke hospital ward shoulder painful hospital returned home crutch appeal 1995 28256 page 3 respondent accepted claim medical related expense subseauently assessed permanent impairment 0 applied review decision tribunal result accident suffered knee neck pain could bathe look attended physiotherapist twice week abandon breast feeding baby remained crutch six week eager return cycling took september following accident five week began racing found could cope become afraid go bunch cyclist could longer sprint statement tribunal exhibit said 7 always anxious since accident noticed returned cycling training would get corner would become worried racing group got larger always scared would fall lost skill cycling tactic accident gave following evidence tribunal training two hour day travelled 60 km day six day week 7th day travelled approximately 100 km birth second child may 1994 returned cycling july year built training 400 km per week continued involvement racing success actively appeal 1995 28256 page 4 involved racing almost weekly season ran may october continued trainin n racin n 1996 ceased involvement state open racing suffered pneumonia july however continued involvement club racing end 1996 season 1997 participated club racing stopped riding altogether end april 1997 accident life good life offered nothing saw future longer able look towards involvement year 2000 olympics began fighting husband family friend depressed unhappy contemplated suicide number occasion particularly distressed able continue breast feed baby blamed upon accident since another child pleased able breast feed child feel frustrated pull cycling still suffers depression accident found odd thing involving cutting shaving one occasion shaved hair became incompetent shopping wakeful night contemplates would happened killed suffers regularly headache requires painkiller driving neck stiffens one reason gave cycling suffers period dizziness fainted occasion appeal 1995 28256 page 5 second child born 12 may 1994 third child born 18 february 1998 fully enciacjed role mother three child second child health problem endured ten month illness caused pain cried lot waking regularly night requiring attention husband commenced business february 1997 working home assistance skill secretary office experience fill role business supervisor take order prepares invoice sends account pay bill banking major focus injury resulting accident knee involved surgery intensive rehabilitation treatment received hospital shoulder knee since hospital treatment supervised local general practitioner subsequent treatment surgeon mr n sundaram orthopaedic surgeon attended hospital later saw post operative follow treatment dr murrary grave family doctor general matter consult regard accident longer receiving treatment done three year july 1996 suffered bout pneumonia spent four day hospital underwent cosmetic nose reconstruction operation december 1995 involved remaining hospital overnight appeal 1995 28256 page 6 notable illness however fallen bike sustained mjnqr injury nature grave rash applicant husband grant hocking gave following evidence since accident wife lot moodier previously quiet easygoing little thing cause stress edginess temper shorter get frustrated thing go right difficulty recalling thing make list memory concentration good longer reliable shopper suffers dizziness le patient child complains neck pain driving driving mood swing suffers headache longer strong cycle previously dedicated training stopped riding second child born experienced bout pneumonia assist conduct business general surgeon mr john henderson examined applicant medico legal purpose three half year accident report dated 9 october 1996 exhibit c said p 6 applicant really super fit athletic person part retained greater mobility following major injury average normal person start lean muscular obviously healthy fit appeal 1995 28256 page 7 made following finding result knocked bicycle motor accident suffered head injury substantial concussion involving significant period retrograde amnesia 30 45 minute substantial period post traumatic amnesia subsequently developed memory concentration depression irritability problem also suffered significant neck injury collar bone fracture neck injury caused distress disability anything else made remarkable recovery bilateral collarbone fracture suffered nasty disruption injury left knee joint appeared made remarkable recovery attributed recovery cycling described best physiotherapy possible finally suffered significant post traumatic stress reaction mr henderson assessed permanent impairment reference ama guide assessment permanent impairment second edition guide follows cervical impairment 3 intervertebral disc lesion c5 6 5 thoraco lumbar impairment 1 left shoulder impairment 4 deltoid muscle wasting left knee joint impairment 11 appeal 1995 28256 page 8 noted mri scan confirmed degenerative intervertebral disc disease affecting c5 6 intervertebral disc however said considered disc injury resulted accident due age view exceptional state fitness gave following evidence accident part head tibia fractured came away one end cruciate ligament attached mended surgery found laxity ligament regard wasting deltoid muscle first looked relevant nerve table 9 chapter 2 guide viz axillary nerve scale applicant entitled percentage representing maximum loss function due loss strength viz 35 wasting equated loss strength table 4 chapter 2 provides gradation loss strength 5 20 arrived top assessment 20 giving rise whole person impairment 4 neuropsychologist dr maureen molloy gave evidence tribunal report dated 24 march 1997 exhibit applied number usual test said felt applicant required assistance carry cognitive activity daily living respect considered impairment complex integrated cerebral function appeal 1995 28256 page 9 top first level impairment 15 belief impairment derived concussive effect accident reflected different change ability referred dr cole report wherein found normal level intelligence term thinking preoccupation symptom recurrent thought accident qualified medical practitioner competent make impairment assessment guide gave following evidence concern applicant short term memory function scored average memory test disclosed score also slightly average found evidence brain injury however notwithstanding could brain disturbance could recall whether noted applicant level assistance husband connection business conceded matter might looked determining applicant coping considered applicant honest genuine presentation surgeon mr w g maling saw applicant three occasion letter solicitor dated 3 april 1995 exhibit e said saw applicant 9 february 1995 ongoing symptom following accident said neck initially troublesome however appeal 1995 28256 page 10 back training connection cycling career pain neck esnec allv tnminn rinht s8 r revealed single level c5 6 disc degeneration without focal disc protrusion r necessary investigate condition x ray normal appeared likely disc injury report examination made 9 february 1995 exhibit f confirmed spent 55 minute examining applicant without treating doctor report said sustained depressed fracture portion plateau left tibia clinical examination knee suggested posterior cruciate ligament injured added fortunately racing cyclist rehabilitation including cycling excellent still audible crepitus flexing extending knee instability said described neck injury greatest problem however although described pain stiffness particularly cycling said restriction movement evident added nearly two year post accident obviously considerable impact time accident quite long period loss consciousness likely symptom presently experienced neck persist accordance guide assessed cervical impairment 5 left knee impairment including anterior cruciate ligament laxity appeal 1995 28256 page 11 questionable post traumatic arthritis whole person total 8 giving rise 8 total whole person impairment 13 report dr c perry radiologist warrnambool district base hospital dated 3 june 1993 said regard left knee evidence fracture involving medial tibia spine shown small fragment bone lying immediately adjacent p lateral view appearance would consistent anterior cruciate ligament injury addition small bone avulsion injury involving medial condyle lower end femur consistent possible injury medial collateral ligament report applicant solicitor dated 13 december 1995 exhibit g mr maling seen applicant purpose progress report 13 december 1995 said patient still injury reported last year still causing problem life described body report main aim life road racing cyclist fact champion ability regard compromised particular neck injury still causing pain difficulty stiffness difficulty riding bike assessed cervical spine impairment whole person impairment 2 disc impairment 5 left knee 2 impairment respect station gait 5 impairment respect sleep disorder 5 giving rise reference combined chart guide total whole person impairment 18 appeal 1995 28256 page 12 letter applicant solicitor dated 17 december 1997 exhibit h described applicant main physical problem painful back shoulder left knee stiff painful neck way summary observed still problem memory irritability said important thing lost nerve cycle racing thus given although may come back cannot produce best lost nerve mingling rough going necessary order win road race disconcerting symptom pain shoulder blade region d5 tender cause lie day make irritable believe disc may well injured shown yet imaging imaging arranged end current pregnancy third last also stiffness pain neck still greatly troublesome riding addition also pain instability left knee believe pain left knee may due patellofemoral arthritis crepitus grinding patella also laxity anterior cruciate posterior cruciate ligament believe provided ama assessment still giving rise overall whole person impairment 18 calculated reference following particular impairment left knee 8 cervical spine 2 disc derangement residual c5 6 5 station gait 2 sleep disorder 2 appeal 1995 28256 page 13 gave following oral 0 ide nce tribunal bike riding superb exercise knee injury nothing better improved applicant knee maximum extent ligament detached piece bone stretching expected mri scan show stretching excessive doubt engagement road racing would aggravate applicant cervical problem c5 6 stress cycling would make area symptomatic applicant minimises problem adopts positive approach knee disability would worse save exceptional condition muscle shown good rate recovery impairment resulting knee damage reduced cyclist able ride knee problem depends upon extent determination sort philosophy go sporting fraternity recovered neck knee injury thoracic spine injury yet fully investigated may disc injury found clavicle shoulder deficit mri scan showed knee abnormality ligament stretching always show ligament laxity obvious last two occasion saw applicant since making first assessment found posterior anterior cruciate weakness allowed 5 respect expected stretching occur piece bone detaches appeal 1995 28256 page 14 ligament attached stretching repair allowed 5 impairment respect station gait december 1995 time applicant difficulty riding bicycle uphill reduced 2 december 1997 given riding considered perhaps left 5 considered applicant presented positive person embracing adult life normal kind expectation neurosurgeon mr david brownbill examined applicant solicitor request 13 march 1997 believed genuine describing symptom report solicitor dated 21 march 1997 exhibit j said information provided applicant suffered mild concussive head injury neck pain main problem situated level back neck radiating back head recorded history constant pain shoulder blade fluctuating time neck pain shoulder pain side top shoulder said experienced headache occipital region neck pain severe recorded neck pain occurring occasionally particularly prolonged standing physical activity found neurological abnormality considered suffered mild concussive head injury accident recommended assessment neuropsychologist assessment made dr appeal 1995 28256 page 15 molloy whose report exhibit referred earlier reason decision 10 june 1997 seen dr molloy report mr brownbill sent report applicant solicitor exhibit k said higher intellectual function disturbance outlined dr molloy report consistent occurring result diffuse cerebral damage occurring described concussive head injury said accordance guide result concussive head injury impairment assessment order 15 respect complex integrated cerebral function disturbance table 1 chapter 2 appropriate earlier report assessed impairment accordance table 53 chapter 1 guide 5 respect disc derangement unaware applicant involved husband business said would useful known commented functioning intellect province neurosurgeon neuropsychologist thrust evidence regard applicant demonstrated incapacity engage road racing indicated depended upon whether cyclist operating reflex whether really concentrating effect neuropsychologist make appropriate analysis appeal 1995 28256 page 16 applicant called psychiatrist dr edward cole examined solicitor request 11 july 1996 report dated 2 july 1996 exhibit l dr cole expressed opinion applicant suffering chronic anxiety state reactive depression mild moderate degree said condition seen stemming accident injury received accident limitation imposed upon injury said state mind rather aware preoccupied pain iimitations might otherwise case evidence obtained suggest symptom exaggeration either conscious unconscious level seems made every effort pursue normal lifestyle despite injury said certain symptom including frontal headache dizziness irritability impaired concentration would consistent suffering post concussive syndrome however think suffering post traumatic stress disorder assessed collective whole person psychiatric impairment 20 thought inclined minimise problem since assessed noted improvement would reduce whole person impairment 20 15 aware suffered pneumonia fall bicycle aware hospitalised pneumonia conceded conscientious mother two young appeal 1995 28256 page 17 child bad fall might give rise anxiety stress said treatment appropriate condition unlikely recover completely applicant also relied upon report mr sundaram dr grave mr p donoghue dr hill none called report applicant solicitor dated 27 january 1995 exhibit 3 mr sundaram recorded applicant evidence anterior cruciate ligament laxity said sustained fracture clavicle repaired cruciate ligament said x ray knee showed fracture tibial spine ie evidence tear anterior cruciate distal insertion piece bone fracture sustained clavicle managed conservatively described injury left knee significant report dated 9 august 1995 dr murray grave referred applicant orthopaedic surgeon dr sundaram treating doctor said way conclusion anne hocking sustained significant road trauma causing fracture right left clavicle well major derangement left knee anterior cruciate rupture fracture medial tibial spine anne hocking required surgery repair anterior cruciate appeal 1995 28256 page 18 ligament required hospitalisation extensive rehabilitation following injury good range movement shoulder knee joint stable unaware current condition knowledge well last seen clinic 24 6 94 mr sundaram taking care ann orthopaedic problem mr donoghue ear nose throat surgeon first saw applicant 30 january 1997 report solicitor dated 31 january 1997 said notice sudden loss hearing accident feel gradual loss hearing since time get tinnitus time time bother also get attack vertigo last minute usually bought sic sudden change head position occur day examination found ear drum intact mobile throat nose normal said serious injury result accident torn anterior cruciate ligament left knee neck injury said also suffered benign positional vertigo brought head injury still minor problem said hearing marginally damaged said fell either class 1 class 2 relevant class accordance guide class 2 would entitled 5 impairment whole person objective finding inconclusive would entitled impairment undated report filed oto neurologist dr j w hill relation dizziness getting sitting kneeling position said almost certainly postural hypo tension significance related appeal 1995 28256 page 19 accident regard sort dizziness time considered almost certainly psychogenic problem thirdly referred episode visual symptom associated feeling imbalance possibly even true vertigo said could migraine equivalent could reasonably said result accident migraine precipitated head neck injury respondent called orthopaedic surgeon mr peter lugg examined applicant 24 july 1996 reported examination 16 august 1996 exhibit 1 diagnosis 1 fracture mid third right clavicle 2 fracture outer third left clavicle 3 avulsion tibial attachment anterior cruciate ligament left knee 4 soft tissue injury thoracic spine 5 soft tissue injury cervical spine 6 secondary patello femoral degenerative change left knee went say 7 think direct relationship condition accident condition seems causing significant symptom relates left knee cervico thoracic spine probable soft tissue pain association disc degeneration cervical spine possibly also soft tissue pain relating thoracic spine independent problem certainly pain relating patello femoral joint left knee either direct result accident may secondary anterior cruciate injury appeal 1995 28256 page 20 impairment assessment said 7 think impairment assessment mr maling wrong clinical evidence posterior cruciate ligament injury young woman evidence anterior cruciate ligament laxity either thus impairment assessment given think contribution post traumatic change patello femoral joint attributed accident would table 1 38 5 would estimate 10 impairment lower extremity left side would reasonable due think probable disc degeneration c5 6 related accident certain however one would offer 5 impairment whole person due well table 1 53 impairment lower extremity relating patello femoral condition would assessed 4 impairment related whole person together 5 impairment disc injury would total 9 whole person impairment said course hearing examined report mri scan attached mr maling report observed disclosed ligament within normal limit said mri would pick stretching unless minor order 90 accurate regard said laxity applicant knee ligament would apparent mr sundaram examined applicant seven eight month accident examined applicant shoulder found evidence wasting also found normal range movement neck agreed applicant frank honest presentation report great problem negotiating stair said disability regard event compensible gait concerned walking flat appeal 1995 28256 page 21 agreed best treatment applicant knee injury return cycling n cross examination conceded possible applicant may demonstrated restriction neck movement day examined psychiatrist dr chris grant assessed applicant behalf respondent 12 july 1996 report assessment dated day exhibit 2 said used median method calculating psychiatric impairment 0 found evidence psychiatric illness observe mild anxiety symptom consistent normality evidence tribunal said symptom detected nervousness riding bicycle found evidence depression serious anxiety found calm well adjusted well contained said presented competent young woman told felt depressed suicidal concentration memory sleep problem tell thought accident great extent asked told matter assessment would affected said may nevertheless still presented normally asked mood frustration irritability whether felt depressed said described intermittent depressive thought said say much current feeling tested memory found perform normally regard said appeal 1995 28256 page 22 would trouble reconciling assessment range 20 impairment sought treatment presentation applicant relies upon report surgeon mr n sundaram dated 27 january 1995 exhibit 3 however called surgeon treated admitted warrnambool district base hospital 3 june 1993 report said following examination swelling knee blood aspirated casualty department also evidence anterior cruciate ligament laxity mr hocking sustained fracture clavicle repaired cruciate ligament left knee clavicle fracture managed conservatively intensive physiotherapy although knee initially stiff regained movement exercise saw 21 february 1994 complaint relating shoulder knee felt stable time full range shoulder knee movement saw 29 june 1994 complained paraesthesia lateral aspect knee seemed tender lower part scar referred surgeon mr fischer investigation treatment concluded likely maintain function left knee shoulder seemed recovered quite well accident appeal 1995 28256 page 23 applicant also relies upon report dr murray grave dated 9 august 1q95 evhihit 4 report confirmed applicant hgh attended clinic since august 1992 said good range movement shoulder knee joint stable last seen clinic 24 june 1994 regard submission made counsel applicant counsel respondent apparent evidence result accident applicant suffered injury knee especially left knee probably result resumed cycling brought usual degree rehabilitation problem shorter time might ordinarily expected observed mr henderson nevertheless assessed present impairment respect left knee 11 mr maling ultimately assessed impairment 8 mr lugg called respondent agreed pain relating patello femoral joint applicant left knee either direct result accident secondary anterior cruciate injury event found related accident assessed impairment 10 lower extremity 4 related whole person appeal 1995 28256 page 24 ligament laxity mr henderson found none mr maling first found anterior cruciate ligament laxity questionable post traumatic arthritis later found laxity anterior cruciate ligament posterior cruciate ligament accident resulted breaking away piece bone anterior cruciate ligament attached mr maling evidence circumstance expected stretching occur although knee abnormality detected mri scan expert evidence mr maling mri scan always disclose ligament stretching mr maling examined applicant three time period february 1995 december 1997 mr henderson saw three half year accident mr lugg also saw july 1996 circumstance prefer opinion mr maling applicant whole person permanent impairment respect knee injury 8 evidence warrant permanent impairment assessment respect right knee mr henderson assessed cervical impairment 3 noting applicant neck injury caused distress anything else applicant said much mr maling notwithstanding found restriction movement however accepting symptom described view symptom would persist assessed cervical impairment 2 mr lugg diagnosed soft tissue injury cervical spine opined applicant probable soft tissue pain associated disc degeneration assessed impairment regard relation disc appeal 1995 28256 page 25 prefer evidence mr maling seen applicant often longer period time event assessment close mr henderson accordingly find applicant permanent cervical impairment excluding disc impairment 2 whole person mr henderson assessed whole person impairment respect c5 6 disc 5 mri scan confirmed degenerative intervertebral disc disease considered resulted accident age regard exceptional fitness applicant initially similar assessment made mr maling mr lugg said probable disc degeneration related accident agreed assessment 5 circumstance find impairment respect disc derangement residual c5 6 5 mr henderson determined permanent impairment thoraco lumbar spine 1 second impairment assessment contained exhibit h mr maling allocate impairment thoraco lumbar spine questioned whether 5 might appropriate found tenderness d5 region also found almost full movement mr brownbill noted history constant pain shoulder blade fluctuating time neck pain mr lugg diagnosed soft tissue appeal 1995 28256 page 26 injury thoracic spine found permanent impairment regard considered condition continuin cause applicant nrob em left knee cervico thoracic spine contemplated possibility soft tissue pain relating thoracic spine although allow percentage impairment regard positive assessment mr henderson light uncertainty mr maling mr lugg consider would reasonable adopt mr henderson assessment 1 mr henderson assessed left shoulder impairment regard deltoid muscle wasting 4 whole person mr maling mr lugg neurosurgeon brownbill made assessment circumstance balance satisfied impairment assessment appropriate mr maling assessed impairment respect station gait 2 questioned whether ought stood earlier assessment 5 made assessment light applicant experienced difficulty riding bicycle uphill mr lugg said assessment respect gait concerned walking flat mr maling last examination made 17 december 1997 well applicant given cycling although allocated 2 impairment assessment last report made mention basis assessment report save reference clicking left knee going upstairs result satisfied assessment warranted appeal 1995 28256 page 27 mr maling also assessed sleep disorder 2 although report elaborate upon assessment applicant reported sleep problem dr cole none dr grant evidence insufficient warrant finding sleep problem applicant experiencing probably caused accident sequela rather experience experience neuropsychologist dr molloy conducted number test opinion demonstrated applicant impairment complex integrated cerebral function derived concussive effect accident although qualified ass impairment accordance guide test opinion value assistance neurosurgeon mr brownbill found applicant suffered mild concussive head injury neurological abnormality sought assessment neuropsychologist seen dr molloy report assessed neurological impairment order 15 respect complex integrated cerebral function disturbance reference table 1 chapter 2 guide submitted dr molloy thought accident applicant unable race opinion disregarded however appeal 1995 28256 page 28 formed opinion reference number specific test appear significantly dependent upon total accuracy history given applicant validity mr brownbill evidence cognitive impairment unchallenged evidence neurological expert circumstance find applicant permanent cognitive impairment 15 remains consider psychiatric impairment dr cole examined applicant 11 july 1996 three year accident found suffering chronic anxiety state reactive depression mild moderate degree saw accident injury caused resultant limitation imposed cause assessed impairment 15 however unaware applicant relevant history dr grant saw applicant time appears taken comprehensive history found evidence psychiatric impairment observe mild anxiety consistent normality considered presented normal person considered assessment psychiatric impairment order 20 incompatible sought treatment consider positive way applicant got life resumed cycling pursued appeal 1995 28256 page 29 motherhood involved husband business presented medical assessor tribunal point consistency view expressed dr grant furthermore applicant occasion resort psychiatric treatment since accident occurred circumstance consider opinion dr grant preferred dr cole accordingly find balance assessment psychiatric impairment result find following whole person impairment appropriate left knee impairment 8 cervical impairment 2 disc impairment 5 thoracic lumbar spine impairment 1 cognitive impairment 15 application combined chart guide resultant combined whole person impairment 28 accordingly set aside decision respondent determine applicant whole person permanent impairment 28 order respondent pay applicant cost assessed upon scale county court scale taxed default agreement appeal 1995 28256 page 30 certificate certify preceding 29 page true correct copy reason decision mr john galvin deputy president administrative appeal tribunal registrar appeal 1995 28256 page 31 appearance applicant mr hennessy instructed stringer clark respondent mr p clark instructed phillips fox date hearing 30 31 march 1998 30 31 march 1998 |
Chiropractic Board of Australia v Shanahan [2017] SAHPT 9 (13 July 2017).txt | chiropractic board australia v shanahan 2017 sahpt 9 13 july 2017 last updated 27 july 2017chiropractic board australia v shanahan 2017 sahpt 9health practitioner tribunal south australiachiropractic board australiavshanahan anthonyjurisdiction health practitionersfile 589 2016hearing date 21 22 november 2016decision sa health practitioner tribunalconstituted president ardliedr barry steeledr micheal greigms rosemary horderndelivered 13 july 2017catchwords complainant alleged respondent behaved way constitutes professional misconduct four ground alleged three ground related inappropriate conduct part respondent towards patient one ground related repeated breach undertaking voluntarily given respondent respondent self represented hearing advance rebuttal evidence effectively participate hearing tribunal satisfied complainant established requisite degree four ground set complaint held conduct set complaint constitutes professional misconduct respondent reprimanded strongest possible term respondent registration chiropractor cancelled respondent permanently disqualified reapplying registration respondent prohibited providing health service whether remunerated utilise skill knowledge gained chiropractor respondent pay complainant cost incidental proceeding agreed default agreement adjudicated s 195 196 schedule 2 health practitioner regulation national law south australia act 2010psychology board australia v mcarthur 2015 qcat 475craig v medical board south australia 2001 sasc 169 2001 79 sasr 545nursing midwifery board australia v rogers 2011 sahpthoney v medical practitioner board victoria 2007 vcat 526representation counsel complainant m g walkerrespondent personsolicitors complainant ahprarespondent n aintroductionthe complainant alleged respondent behaved way constitutes professional misconduct complaint dated 11 february 2016 four separate ground set ground 1 3 inclusive related patient respondent ground 4 alleged breach undertaking ground 1 alleged respondent caused l expose bra treating patient necessary treatment without obtaining consent ground 2 alleged respondent engaged physical contact sm treating patient necessary treatment without obtaining consent ground 3 alleged respondent engaged physical contact lh treating patient necessary treatment without obtaining consent ground 4 alleged date 18 september 2013 late 2014 respondent continued engage practice chiropractic breach undertaking respondent signed 18 september 2013 would engage practice chiropractic state territory australia respondent filed response complaint dated 1 july 2016 respondent unrepresented course hearing tribunal explained one occasion need challenge evidence witness called complainant necessary put version event various witness also informed raise objection document contained book document 1 document would tribunal unchallenged evidence respondent object document contained exhibit c1 tribunal requested review material contained exhibit c1 prior tender taking place respondent declined respondent elected cross examine sm ground 2 lh ground 3 cross examine l ground 1 conclusion hearing respondent invited address tribunal main concentration relation people treated breach undertaking indicated people treated people cared friend family people would normally treat without charge regard balance complaint made submission indicate agree 2 tribunal advised could within 14 day provide written submission hearingls ground 1 cross examined respondent allegation treating l patient respondent asked unbutton shirt done opened shirt exposing bra performing perform treatment chest area l respondent response denied stated shirt unbuttoned maximum two button enable palpate area assessment l wearing shirt shirt evidence chief l denied respondent asked unbutton two button shirt also denied wearing shirt underneath shirt cross examined respondent denied wearing shirt underneath shirt indicated wearing shirt would worried felt uncomfortable 3 tribunal accepts evidence l regard credible witness unbuttoning shirt consequent exposure bra necessary treatment respondent provided l sm ground 2 cross examined respondent tribunal made clear respondent chose put version event witness consequence would flow 4 sm provided statement 5 consulted respondent treatment workplace injury back injury initially period 6 month concern regard treatment received four separate occasion sm described inappropriate physical contact prior first second occasion respondent informed would focusing pectoral muscle sm changed gown leaving bra underwear first two occasion followed similar pattern namely sm bra became undone sm breast exposed respondent cupped sm breast hand andtouched sm nipple second occasion involved respondent pressing sm breast fingertip fondling sm breast third fourth occasion respondent informed sm would treating groin muscle respondent placed left hand sm groin kept hand placed right hand underneath sm underwear touched pubic area moved sm underwear respondent second occasion involving groin area placed hand underneath sm underwear touched sm pubic area underneath underwear placed finger sm outer genital area underneath underwear andstroked sm genital area underneath underwear time consent sought respondent sm touch breast manner referred touch sm genital area go underwear sm described inappropriate contact made feel remembered feeling embarrassed completely undignified described feeling raw vulnerable almost dirty also referred feeling sick humiliated dirty ashamed happened indicated made another appointment worker compensation undergoing approved treatment plan involved seeing respondent significantly sm referred fact two four occasion inappropriate contact respondent stopped interrupted someone door treatment room evidence sm unchallenged tribunal regard credible witness conduct part respondent towards sm regarded tribunal appalling far standard expected health practitioner level training experience respondent obtain informed consent exploited relationship treating health practitioner patient made inappropriate physical contact inappropriate contact described necessary treatment respondent provided sm lh ground 3 gave evidence tribunal even though understandably embarrassed respondent challenge evidence conduct established evidence lh without obtaining consent respondent one occasion undid bra strap also placed hand underneath lh underwear close genitalia second last visit lh evidence consistent content record interview dated 13 march 2007 6 lh evidence reinforces credibility sm evidence inappropriate contact described lh necessary treatment respondent provided lh performed without respondent obtained consent lh ground 4 alleges breach undertaking 18 september 2013 respondent signed undertaking would engage practise chiropractic state territory australia undertaking 7 included following word purpose undertaking practise chiropractic mean role whether remunerated individual us skill knowledge chiropractor undertaking given respondent confronted notice proposed immediate action dated 30 august 2013 noted correspondence respondent proposed accord enter voluntary undertaking practise period investigation 8 respondent admitted ground 4 save except admit breach undertaking amounted unprofessional conduct professional misconduct breach undertaking involved provision treatment 20 occasion 10 patient 3 female respondent invited make submission conclusion evidence stated seen anyone sense treating anyone almost 2 year january 2015 hearing date 22 november 2016 respondent say following take seriously commitment regarding patient decided accept offer stepping back practice decided let thing run say honestly tried feel right 9 whilst little unclear tribunal regard attempt respondent justify breach undertaking regarded reason way justify action complainant submissionsthe conduct subject ground 1 3 inclusive constitutes professional misconduct counsel made reference description professional misconduct contained section 5 schedule 2 health practitioner regulationnational law south australia act2010 national law namely unprofessional conduct practitioner amount conduct substantially standard reasonably expected registered health practitioner equivalent level training experience b one instance unprofessional conduct considered together amount conduct substantially standard reasonably expected registered health practitioner equivalent level training experience c conduct practitioner whether occurring correction practice health practitioner profession inconsistent practitioner fit proper person hold registration profession counsel made reference code conduct relevant code 2005 place lh conduct occurred 10 code make reference need informed consent professional boundary example state practitioner shall never initiate form sexual conduct patient presence make inappropriate physical contact patient relevant code time l conduct occurred 11 make reference power imbalance chiropractor patient relationship cl 3 2 g also make reference professional boundary cl 9 2 conduct set substantial departure standard reasonably expected respondent competent qualified chiropractor addition conduct respect sm lh inconsistent respondent fit proper person hold registration chiropractor respondent breached undertaking gave observation made tribunal inpsychology board australia v mcarthur 12 context 13 breach must viewed seriously professional enter undertaking affecting practice profession must assiduously adhere 57 undertaking wilfully breached practitioner suspension practitioner registration often appropriate sanction tribunal expressed view breach undertaking serious departure proper standard breach undertaking respondent regarded wilful fact repeated breach compound issue turn escalates conduct level professional misconduct viewed whole respondent approach hearingthe respondent self represented tribunal several occasion explained respondent needed put version event witness called complainant tribunal left evidence witness challenged way 13 tribunal informed respondent object document folder 14 document would tribunal unchallenged evidence respondent two volume document wrapped brown paper respondent asked opened parcel referred document following exchange took place q going even refer document matter progress next three day 15 save except question cross examination put one witness respondent engage cross examination respondent closing address brief really referred treated people breach undertaking call evidence response complaint 16 made certain admission generally denied conduct complained previously noted regard breach undertaking make full admission save except admitting breach amounted unprofessional conduct professional misconduct matter raised response contradiction allegation made respondent advance evidence tribunal analysis consideration sanctionsit unanimous view tribunal complainant established requisite degree four ground set complaint also unanimous view tribunal conduct set complaint proved constitutes professional misconduct tribunal regard conduct grave departure standard expected chiropractor respondent advanced nothing way rebuttal evidence submission course hearing tribunal consider respondent abhorrent behaviour set ground 1 3 inclusive clearly amount professional misconduct disregard undertaking entered number breach undertaking also amount professional misconduct tribunal note imposition disciplinary action health practitioner protect public noted previous decision imposition discipline may serve one following purpose preventing practitioner unfit practice practising securing maintenance professional standard assuring member public profession appropriate standard maintained professional misconduct unprofessional conduct tolerated bringing home practitioner seriousness conduct deterring practitioner future departure appropriate standard deterring member profession might minded act similar way andimposing restriction practitioner right practice ensure public protected 17 tribunal view respondent registration cancelled respondent conduct spanned number year evidence indicates disturbing propensity subject female patient inappropriate physical contact regard issue cancellation suspension decision victorian civil administrative tribunalhoney v medical practitioner board victoria 18 say cancellation registration sends clear message unsuitability practice suspension may thought indicate confidence doctor future ability practice period suspension served 19 tribunal regard respondent fit proper person hold registration health professional unanimous view tribunal appropriate public protection discipline would achieved term order set ordersupon tribunal finding respondent conduct pleaded complaint herein professional misconduct within meaning schedule 2 thehealth practitioner regulation national law south australia act 2010 act accordance 195 196 schedule 2 act tribunal order respondent reprimanded strongest possible term respondent registration chiropractor cancelled respondent permanently disqualified reapplying registration respondent prohibited providing health service whether remunerated utilise skill knowledge gained chiropractor respondent pay complainant cost incidental proceeding agreed default agreement adjudicated 1 ex c1 2 tr 61 3 tr 23 4 tr 35 5 ex c1 pp 611 619 6 ex c1 pp772 794 7 ex c1 p 109 8 ex c1 p 105 106 9 tr p 61 10 ex c1 p 40 11 ex c1 p 18 20 12 2015 qcat 475 13 tr p 11 14 tendered marked exhibit c1 15 tr p11 16 ex c1 p13 17 craig v medical board south australia 2001 sasc 169 2001 79 sasr 545at 553 555 andnursing midwifery board australia v rogers 2011 sahpt 21at para 5 18 2007 vcat 526 19 para 43 |
Sihag v Minister for Immigration & Anor [2017] FCCA 2318 (7 September 2017).txt | sihag v minister immigration anor 2017 fcca 2318 7 september 2017 last updated 26 september 2017federal circuit court australiasihag vminister immigration anor 2017 fcca 2318catchwords migration migration review tribunal student temporary class tu subclass 572 visa whether open tribunal consider whether applicant coherent career path whether tribunal bound confine consideration matter issue tribunal previously constituted failed properly consider legislation migration act 1958 499migration regulation 1994 sch 2 cl 572 223direction 53 assessing genuine temporary entrant criterion student visa applicationscases cited craig v state south australia 1995 184 clr 163 1995 39 ald 193 1995 131 alr 595 1995 69 aljr 873 1995 82 crim r 359 1995 hca 58applicant mahavir sihagfirst respondent minister immigration border protectionsecond respondent administrative appeal tribunalfile number mlg 1104 2015judgment judge rileyhearing date 7 september 2017date last submission 7 september 2017delivered melbournedelivered 7 september 2017representationcounsel applicant personsolicitors applicant nonecounsel first respondent oliver youngsolicitors first respondent sparke helmore lawyerscounsel second respondent appearancesolicitors second respondent sparke helmore lawyersorders 1 application filed 18 may 2015 dismissed 2 applicant pay first respondent cost proceeding fixed sum 5 800 federal circuit courtof australiaat melbournemlg 1104 2015mahavir sihagapplicantandminister immigration border protectionfirst respondentadministrative appeal tribunalsecond respondentreasons judgment revised transcript application review decision migration review tribunal applicant applied student temporary class tu subclass 572 visa delegate minister refused grant applicant visa basis complied substantially condition 8202 last held student visa subject condition required applicant enrolled registered course study delegate also found applicant gap 294 day enrolment found genuine student complied substantially criterion repealed delegate decision made applicant applied tribunal review delegate decision tribunal found applicant intend genuinely stay australia temporarily required cl 572 223 1 schedule 2 themigration regulation 1994 regulation applicant applied court review court made order consent remitting matter tribunal reconsider according law consent order made basis tribunal properly considered paragraph 9 direction 53 assessing genuine temporary entrant criterion student visa application made unders 499of themigration act 1958 act paragraph 9 concerned applicant circumstance home country following remittal tribunal reconstituted tribunal invited applicant attend hearing applicant appeared tribunal hearing 17 april 2015 tribunal asked applicant numerous matter including proposed career path tribunal found applicant intend genuinely stay australia temporarily principal finding tribunal course applicant sought study represent coherent career path tribunal noted applicant completed law degree india paragraph 36 reason decision tribunal summarised applicant stay australia follows applicant arrived australia subclass 572 student visa 12 april 2009 study certificate iii level automotive technology january 2010 applicant stopped studying certificate iii automotive technology completing 50 found work gardener house painter july 2010 applicant enrolled certificate iv business enrolment cancelled reason unknown applicant october 2010 applicant enrolled certificate iii painting decorating 27 july 2011 applicant granted second subclass 572 student visa valid 1 february 2013 october 2011 applicant stopped certificate iii painting decorating course completing 85 applicant travelled india care father unwell january 2012 applicant returned australia unable find work money study able live friend 2012 applicant applied another temporary residence visa require study december 2012 temporary residence visa refused applicant advised enrol diploma business student visa still valid 29 january 2013 applicant applied student visa presently consideration 3 may 2013 delegate minister refused grant applicant student visa applicant applied 29 january 2013 applicant applied tribunal review decision march 2014 applicant completed diploma business 19 may 2014 applicant commenced certificate iv marketing 8 august 2014 tribunal differently constituted affirmed delegate decision student visa applicant applied 29 january 2013 applicant applied judicial review 16 november 2014 applicant completed certificate iv marketing 19 february 2015 order made consent quashing decision tribunal made 8 august 2014 remitting matter tribunal determination according law andon 16 april 2015 day tribunal hearing applicant enrolled diploma marketing scheduled run 20 april 2015 23 august 2015 andan advanced diploma marketing scheduled run 24 august 2015 7 august 2016 tribunal second decision decision presently review made 4 may 2015 point applicant diploma marketing course running two week advance diploma marketing course yet started already mentioned tribunal particularly concerned applicant career path tribunal noted applicant australia six year completed one course certificate iv level one course diploma level however tribunal noted neither course related applicant previous legal qualification previous work experience legal field india tribunal considered applicant circumstance india particularly father paralysed tribunal noted applicant remained australia extensive period without study tribunal considered course applicant proposed undertake questionable value relation proposed career path tribunal noted required regard direction 53 tribunal summarised effect direction 53 set entirety reason decision tribunal set reason decision part cl 572 223 schedule 2 regulation relevantly provided time decision 1 minister satisfied applicant genuine applicant entry stay student minister satisfied applicant intends genuinely stay australia temporarily regard applicant circumstance ii applicant immigration history iii applicant minor intention parent legal guardian spouse applicant iv relevant matter b paragraph 31 tribunal reason decision tribunal recorded hearing put certain matter applicant regarding course recently enrolled related coherent career path tribunal noted applicant claimed marketing course recently enrolled would assist work cousin medical business questioned applicant said may necessarily work cousin business ultimately tribunal satisfied applicant intended genuinely stay australia temporarily meet cl 572 223 1 schedule 2 regulation application court appears formulated applicant appeared hearing court without benefit legal representation first ground application eror order mrt mrt follow proper direction 53 migration act family condition india applicant oral submission read prepared statement court statement sounded though drafted assistance lawyer applicant said tribunal apply direction 53 properly said tribunal imposed additional unlawful criterion tribunal required demonstrate coherent career path applicant said tribunal twice used term coherent career path reason decision applicant said mention regulation direction 53 career path applicant referred tocraig v state south australia 1995 184 clr 163 1995 39 ald 193 1995 131 alr 595 1995 69 aljr 873 1995 82 crim r 359 1995 hca 58 high court said tribunal would fall jurisdictional error asked wrong question imposed wrong test imposing criterion relevant legislation minister pointed regulation fact permit tribunal consider relevant matter clause 572 223 1 iv schedule 2 regulation specifically requires tribunal regard toany relevant matter minister submitted applicant career path relevant matter shed light whether applicant intend genuinely stay australia temporarily seems minister submission correct obviously person choosing course would assist proposed career stated reason studying australia properly doubted seem irrelevant consider applicant stated career path assessing whether genuinely intends study australia temporarily opposed remaining australia indefinitely addition minister pointed direction 53 specifically refers career pathway paragraph 12 direction say value course applicant futuredecision maker must regard following factor considering value course applicant future whether student seeking undertake course consistent current level education whether course assist applicant obtain employment improve employment prospect home country decision maker allow reasonable change tocareer study pathway emphasis added relevance course student past proposed future employment either home country third country true paragraph 12 direction 53 say decision maker allow reasonable change career pathway however crux paragraph 12 concern whether course applicant studying wish study would assist future career person coherent career study pathway allowing reasonable change career pathway circumstance would rationally bring doubt whether person intends genuinely remain australia temporarily student reason accept applicant argument tribunal asked wrong question imposed wrong test word whether applicant study showed coherent career pathway relevant matter ground 1 application also refers tribunal failing properly consider applicant family condition india relation aspect ground 1 applicant said oral submission tribunal confined consideration paragraph 9 direction 53 paragraph 9 concern applicant circumstance home country paragraph 9 b particularly refers extent applicant personal tie home country example family community employment whether would serve significant incentive return home country paragraph 15 reason decision tribunal set heading applicant circumstance india tribunal set applicant description family circumstance follows applicant father farmer became paralysed confined wheelchair six year applicant mother homemaker older brother married child work father farm andthe applicant three married sister live husband family contact rest family year paragraph 37 reason decision tribunal specifically said regard applicant family circumstance reaching decision tribunal said accept applicant family circumstance represented sufficient incentive applicant return india tribunal reason decision clear tribunal considered applicant family circumstance however applicant point tribunal confined matter referred paragraph 9 direction 53 rather considering matter applicant career path minister representative noted order remitting matter tribunal confine matter reconstituted tribunal could consider indeed accordance basic principle tribunal required consider fact existed time decision would wrong tribunal merely consider matter referred paragraph 9 direction 53 tribunal required consider relevant criterion relevant fact make decision based matter ground 1 made second ground application according mrt decision im genuine student mrt member even proper look ongoing study history even paid half tuition fee study case mrt given chance finish leftover study tribunal summarised applicant history current enrolment paragraph 36 reason decision described paragraph 6 tribunal also noted applicant made part payment tuition fee paragraph 38 reason decision tribunal said also regard applicant srecent performance aptitude study thepart payment fee isolation take positive indication genuine student taken context applicant history australia previous qualification career path india course proposes undertake questionable value previous qualification career path applicant put forward emphasis added persuaded substance ground 2 tribunal clearly considered issue applicant study history current enrolment part payment fee neither applicant written ground made neither subsequent oral ground made application must dismissed cost certify preceding twenty eight 28 paragraph true copy reason judgment judge rileyassociate date 25 september 2017 |
EYO -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 129 (28 August 2019).txt | eyo v state western australia 2019 wasca 129 28 august 2019 last updated 28 august 2019jurisdiction supreme court western australiatitle court court appeal wa citation eyo v state western australia 2019 wasca 129coram bus pmazza japritchard jaheard 22 february 2019delivered 22 march 2019published 28 august 2019file cacr 216 2018between eyoappellantandthe state western australiarespondentjurisdiction district court western australiacoram stone dcjfile number ind x 27 2017criminal law appeal conviction conviction trial indecent dealing child age 13 year inciting child age 13 year engage sexual behaviour admissibility video record interview whether interview voluntary whether caution understood whether interview excluded exercise unfairness discretion anungaguidelines judgment acquittal retriallegislation criminal appeal act 2004 wa 30 3 b 30 3 c 30 5 criminal code wa 320 3 320 4 criminal investigation act 2006 wa 138 2 result leave refused ground 1 3leave granted ground 2appeal allowedconvictions set asidejudgments acquittal enteredcategory brepresentation counsel appellant j gullaci k heathrespondent k c cooksolicitors appellant aboriginal legal servicerespondent director public prosecution wa case referred decision reason court 22 march 2019 court made following order leave appeal granted ground 2 leave appeal refused ground 1 3 appeal allowed conviction set aside judgment acquittal entered court said would deliver reason order later time reason appellant charged district court indictment two offence count 1 alleged 26 april 2017 specified country town town appellant indecently dealt j child age 13 year touching groin contrary 320 4 thecriminal code wa code count 2 alleged date place count 1 appellant incited j child age 13 year engage sexual behaviour contrary 320 3 code 21 june 2018 appellant found guilty offence jury duly convicted 1 29 august 2018 appellant sentenced 2 year immediate imprisonment offence served concurrently thus total effective sentence 2 year immediate imprisonment appellant made eligible parole sentence backdated commence 11 january 2018 2 appeal commenced approximately 2 month time thus extension time required 7 december 2018 urgent appeal order made 3 21 january 2019 application extension time within appeal granted 4 appeal heard 22 february 2019 time appeal heard appellant served entire non parole portion sentence appellant relied upon three ground appeal follows ground 1 appellant denied procedural fairness trial judge refused application adjournment trial preventing appellant obtaining prior trial verification another expert interpreter translator accuracy mr nanala interpretation translation jaru portion police interview jaru english 5 ground 2 trial judge erred admitting appellant record interview evidence ground 3 verdict guilty unreasonable could supported regard evidence led trial jury must entertained reasonable doubt veracity reliability complainant evidence particular complainant evidence internally inconsistent relevantly contradicted inherently improbable multiple material respect b open jury satisfied beyond reasonable doubt appellant guilty given evidence focus hearing appeal upon ground 2 6 ground upheld conviction set aside judgment acquittal entered unnecessary address ground 1 3 backgroundthe state case trial expressed prosecutor opening address jury may summarised way complainant j 12 year age time offence lived house town along two younger brother mother partner night question gone visit mother way home ran told one relative house looking j brother appellant uncle 7 away house j watched cartoon mother bedroom appellant stumbled bedroom laid next j mother bed appellant touched j groin area specifically penis outside clothing count 1 appellant allegedly told j suck j refused demand appellant got bed left room count 2 8 made way back house saw appellant knew leaving bedroom beer hand walked bedroom j immediately told mother man done remonstrated appellant told j said police called time arrived property appellant gone 9 following day 27 april 2017 j participated child witness interview cwi 10 cwi j described happened gave description offender name appellant offender trial state sought prove element identity combination evidence j statement made appellant video record interview vroi police defence casethe appellant elected give evidence adduce evidence trial 11 based way trial conducted defence case j unreliable historian jury could satisfied beyond reasonable doubt based evidence indecently dealt someone incited engage sexual conduct alleged however even jury accepted j evidence matter state could prove beyond reasonable doubt appellant offender vroion 23 may 2017 appellant arrested detective senior constable timothy oldfield detective oldfield advised appellant right consult lawyer seek legal representation also told right friend relative advised whereabouts 12 point prior vroi arrangement made appellant speak telephone lawyer aboriginal legal service western australia al appellant first language djaru although clear basic competency english appellant specifically requested djaru interpreter robert nanala assist vroi interpreter turned mr nanala town time attended town police station assist interview 13 prior commencement vroi marcus dyason lawyer employed al sent letter facsimile detective oldfield dated 23 may 2017 omitting formal part letter follows understand part police investigation offence alleged indecent dealing child committed town note sought client participate interview answer question regarding knowledge circumstance surrounding commission offence supplied appellant legal advice basis advice appellant provided clear unequivocal instruction wish exercise right silence wish participate police interview decline provide written statement police answer question matter short wish enter discussion police appellant provided instruction limited comprehension english jarru sic preferred language language appellant truly comfortable conversing interview proceed appellant need aid jarru interpreter client also instructed u wish exercise right legal representation particular asks point police communication directed u first instance accompanied lawyer alswa future dealing police trust abide client decision remain silent reserve right tender correspondence court proceeding concerning admissibility confessional evidence obtained client face position explicitly set facsimile header document indicates letter sent detective oldfield 2 29 pm 23 may 2017 evidence voir dire held determine admissibility vroi discus later reason detective oldfield acknowledged receiving letter said could recall received interviewed appellant 14 vroi commenced 3 29 pm 23 may 2017 interview took place town police station present interview detective oldfield another detective referred first given name john interpreter robert nanala appellant 15 introduction appellant asked detective oldfield background ability speak english course interview detective oldfield question interpreted english mr nanala answered english appellant however question interpreted mr nanala djaru mr nanala said appellant djaru interpreted back english occurs bracketed word english appear 16 det tim alright appellant name advise interview recorded appellant yeah det tim microphone table ah camera behind bit glass interpreter robert microphone middle table tv interpreter robert yeah yeah brother problem appellant yeah good aye yeah det tim okay john tim detective name town appellant yeah yeah det tim okay come investigate offence interpreter robert two detective name town interpreter robert want talk detective name town appellant yeah interpreter robert yeah det tim alright time watch 3 29 pm appellant yeah det tim today 23rd may 2017 town police station tape appellant name get full name appellant appellant name det tim date birth appellant name appellant oh twenty second second 73 det tim okay current address appellant oh indistinct det tim okay staying town right backstreets appellant yeah yeah probably going home tomorrow det tim okay um level education reached year school finish appellant oh ten det tim read write english appellant ah much det tim much okay indicated u speak another language okay told u djaru appellant yeah det tim um requested robert name appellant yeah det tim um also interpreter kimberley interpreting service right appellant yes det tim okay robert normally spiel say explain interpreter robert yes alright name robert yanalla sic work ki ki used work freelance got employed ki 2008 given job done training done qualified um interpreter det tim okay interpreter robert originally balgo live hall creek cause got partner hall creek det tim okay ah explained interview well appellant name obviously got good level english interpreter robert yeah det tim happy speak u sometimes english um thing probably want go guy want work think um yeah making sure appellant name understands everything interpreter robert yeah alright det tim okay interpreter robert going talk djaru detective use high big english break djaru detective going take slowly interpreter robert english appellant yeah interpreter robert english appellant yeah interpreter robert english tell tell slowly appellant yeah interpreter robert yeah alright det tim appellant name robert well time interview say something understand okay appellant yeah det tim robert understand said stop let know try explain better okay interpreter robert understand detective saying going fast need tell pull say slowly interpreter robert english appellant yeah interpreter robert english appellant indistinct det tim understood everything asked far appellant yeah det tim understood everything robert explained far appellant yeah indistinct understand det tim yeah appellant yeah det tim okay understand everything happening right appellant yeah yeah det tim okay alcohol today appellant det tim okay drug medication today appellant det tim injury illness appellant required bys 138 2 thecriminal investigation act 2006 wa detective oldfield sought administer appellant caution effect appellant right answer question put detective chose answer question answer would recorded may used evidence part interview term 17 det tim advised arrest suspicion indecently dealing child thirteen appellant yeah det tim okay understand appellant yeah det tim alright indecent dealing mean touching child like sexually inappropriate way appellant oh interpreter robert english interpreter robert like touching child leg appellant um went house det tim oh explain right first okay appellant name interpreter robert hang appellant name detective going say interpreter robert english det tim okay also also right speak lawyer appellant yeah det tim okay spoken lawyer appellant yeah det tim yeah phone aboriginal legal service appellant yeah det tim given advice appellant yeah told say every word say say word told say det tim okay need know advice gave alright appellant name advice gave appellant yeah det tim okay answer question though okay appellant yeah det tim alright prob imagine along line told speak u appellant yeah det tim alright exactly right talk appellant yeah yeah det tim answer question appellant yeah det tim okay um chose sic answer question okay understand recording appellant yeah det tim okay anything say recorded used evidence court appellant yeah interpreter robert english interpreter robert lawyer talked said willing talk two policeman also want talk two policeman also live tv appellant yeah interpreter robert english appellant yeah interpreter robert english appellant yeah interpreter robert english appellant yeah interpreter robert english appellant yeah interpreter robert english appellant alright det tim okay understand speak today appellant nah det tim okay whose choice speak appellant ah det tim sorry appellant choice want talk det tim yeah appellant yeah interpreter robert right appellant yeah det tim yeah det john full caution process interpreter reckon like repeat whole thing yeah reckon understanding back det tim alright want repeat read appellant yep yeah det tim advise obliged say anything unless wish interpreter robert english interpreter robert want talk give evidence two police appellant yeah interpreter robert english interpreter robert want give word police yes appellant english appellant det tim anything say recorded may given evidence interpreter robert english interpreter robert want talk two policeman djaru equivalent word evidence appellant english appellant det tim okay answer question others understand interpreter robert english interpreter robert willing talk two policeman appellant english appellant saying nothing interpreter robert english appellant english det tim okay talk today appellant name appellant nah det tim want talk know say appellant yeah want speak det tim yeah appellant yeah det tim fine nup yeah interpreter robert said appellant name djaru det tim yeah language interpreter robert yeah det tim yep okay yep alright happy appellant name understands language det john understand want say anything appellant yeah det john tell u want say anything appellant yeah want say anything det john oh okay emphasis added shortly detective oldfield began asking appellant event 26 april 2017 following exchange took place english 18 det tim 26 april month ago appellant yeah det tim okay know appellant well went drunk went um told come indistinct went went um indistinct det tim yeah remember appellant yeah remember det tim yeah appellant thing like lawyer told know lawyer tell say det tim oh appellant word yeah det tim okay um remembered happened inside house appellant oh drunk emphasis added appellant proceeded inform detective going inside house laid room got walked away 19 said drunk house admitted child know name said child watching tv appellant told police officer lay lounge room 20 appellant told police officer went house saw told piss appellant said went dry centre 21 one point detective oldfield put appellant allegation made j appellant responded oh stupid aye appellant said recollection touching j penis telling j suck dick 22 appellant told detective oldfield day question drinking beer wine said drank thought four can beer shared bottle chardonnay 23 response detective oldfield question drunk appellant said pretty smoked 24 detective also asked appellant question occurred house appellant agreed room kid watching tv 25 appellant gave somewhat confused account slept relation child eventually told police sleeping left bed child sleeping different bed 26 towards conclusion interview exchange took place 27 det tim um formal assessment evidence um speak bos decide going still arrest still stay okay appellant name appellant yeah det tim okay free go um done assessment advise charged okay um charged give copy interview um ask lawyer asks give fourteen day ask okay appellant copy det tim ask copy get charged okay appellant going court det tim um talk sergeant whether need go court okay um need go court tell give paperwork tell day time okay appellant yeah det tim alright um got question appellant nah voir direon 19 june 2018 voir dire held determine admissibility vroi counsel appellant submitted vroi excluded involuntary exercise trial judge discretion submitted behalf appellant vroi involuntary appellant understand caution administered defence counsel submit appellant overborne 28 submitted citing guideline laid forster j inr v anunga 29 anungaguidelines police told first letter al several occasion vroi appellant wish answer question interview terminated 30 defence counsel submission unfairness focussed upon prosecution late decision adduce vroi trial result alleged defence effect precluded obtaining independent translation portion vroi interpreter speaks djaru appellant 31 voir dire state adduced evidence detective oldfield detective identified john course examination chief vroi tendered exhibit 1 32 letter al detective oldfield dated 23 may 2017 exhibit 2 33 detective oldfield testified examination chief 23 may 2017 arrested appellant vicinity bus terminal town said appellant able communicate mostly effectively scene 34 detective oldfield said cautioned appellant advised right contact lawyer relative friend appellant asked sister called let know arrested detective oldfield said attempted contact appellant sister lived hall creek get hold 35 detective oldfield said contacted office al appellant spoke somebody office phone 36 appears appellant conversation english detective oldfield testified speaking appellant level english lockup town appellant indicated would like interpreter present appellant first language djaru specifically requested mr nanala act capacity 37 detective oldfield said mr nanala happened town day arrangement made brought police station sit interview 38 prosecutor referred detective oldfield letter mr dyason al detective oldfield said understanding notwithstanding content letter allowed conduct vroi appellant 39 detective oldfield cross examination brief focused letter al particularly statement letter appellant wish interview 40 detective oldfield asked whether saw letter interview unable say whether seen 41 voir dire mr nanala testified djaru one aboriginal language spoke said worked called kimberley interpreting service naati qualified interpreter one two interpreter western australia able translate djaru english 42 mr nanala testified understood appellant spoke djaru 43 interpretation djaru english correct 44 cross examination mr nanala denied making mistake interpretation statement made appellant djaru 45 examination elicited mr nanala word djaru english word investigate 46 appellant give evidence voir dire call witness 47 prosecutor submission support tender vroi without objection defence counsel appellant 26 page criminal history tendered evidence voir dire exhibit 3 48 late afternoon 19 june 2018 learned trial judge gave ex tempore reason admitting vroi evidence 49 honour found vroi voluntary would unfair admitted evidence 50 honour made extensive reference content vroi deciding vroi voluntary honour found 1 djaru word english word investigate based appellant 26 page criminal history appellant would understood questioned police matter arrested 51 2 honour referred number passage vroi appellant acknowledged understood answer question put detective well portion vroi appellant said word effect wish answer question advised lawyer answer question 52 3 based answer appellant gave vroi honour said satisfied balance probability appellant understood legal advice given right remain silent concluding interview voluntary honour said 53 say satisfied balance probability understood right silence understood nature police interview overborne continued questioning particularly circumstance requested particular interpreter questioning short period time 26 minute observed demeanour playing interview nothing indicate overborne pressured persistent questioning anything nature honour addressed question whether vroi excluded exercise discretion addressed defence counsel submission independent interpretation djaru portion vroi 54 honour held absence evidence suggesting mr nanala interpretation said inaccurate basis exclude vroi discretionary ground 55 honour briefly considered whether exclude vroi basis unfairness regard honour observed appellant throughout interview demonstrated understanding appreciation asked right 56 honour illustrated point observing towards end interview appellant asked copy interview going court english without prompted honour observed 57 none usual factor seen evidence duress intimidation pressure decline exclude interview basis unfairness ground 2ground 2 alleges trial judge erred admitting appellant record interview evidence submitted behalf appellant vroi excluded basis involuntary alternative admission unfair appellant contrary public policy behalf respondent submitted trial judge err alleged appellant understood caution voluntarily answered question investigating officer feature vroi justified exclusion discretionary ground relevant lawthe relevant legal principle relation admission exclusion confessional statement described bus p beech ja hall j joint judgment inkelly v state western australia lengthy appropriate quote full 58 fundamental common law requirement confessional statement must voluntary seer v swaffield 1998 hca 1 1998 192 clr 159 50 toohey gaudron gummow jj presumed confessional statement voluntary nothing suggest involuntary seehough v ah sam 1912 hca 78 1912 15 clr 452 457 barton j issue voluntariness raised state bear onus establishing balance probability statement voluntary seewendo v queen 1963 hca 19 1963 109 clr 559 572 573 taylor owen jj nature voluntariness applicable test determining whether confession voluntary explained gibbs cj wilson j inmacpherson v queen 1981 hca 46 1981 147 clr 512 519 see alsomcdermott v king 1948 hca 23 1948 76 clr 501 511 dixon j r v lee 1950 hca 25 1950 82 clr 133 149 latham cj mctiernan webb fullagar kitto jj tofilau v queen 2007 hca 39 2007 231 clr 396 10 13 gleeson cj 45 55 64 gummow hayne jj 123 kirby j 245 283 323 callinan heydon crennan jj confessional statement voluntary admissible state case subject thecriminal investigation act confessional statement voluntary prima facie admissible unnecessary refer provision thecriminal investigation act relevant present case confessional statement voluntary may nevertheless excluded court exercise discretion basis residual discretion exercisable examined high court numerous case includingcleland v queen 1982 hca 67 1982 151 clr 1 van der meer v queen 1988 hca 56 1988 62 aljr 656 andswaffield accused asserts voluntary confession improperly unfairly obtained recognised basis excluded bear onus proving fact would justify exercise residual discretion favour seelee 152 153 wendo 565 macpherson 519 520 wright v state western australia 2010 wasca 199 2010 43 war 1 115 blaxell j inswaffield toohey gaudron gummow jj noted first basis excluding confessional statement statement voluntary however even statement voluntary may rejected exercise residual discretion one three ground honour described second third fourth base second basis would unfair accused admit statement purpose discretion exclude evidence unfairness protect right privilege accused person third basis focus unfairness accused consideration public policy make unacceptable admit statement evidence notwithstanding statement made voluntarily admission would work particular unfairness accused purpose discretion brought bear emphasis protection public interest fourth basis focus probative value statement power usually referred discretion reject evidence prejudicial impact greater probative value purpose power discretion guard miscarriage justice 52 toohey gaudron gummow jj said inswaffieldthat always possible treat voluntariness reliability unfairness accused public policy consideration discrete issue 74 honour added overlapping nature unfairness discretion policy discretion discerned incleland v queen 1982 1982 hca 67 151 clr 1 see alsofoster v queen 1993 hca 80 1993 67 aljr 550 113 alr 1 held case voluntary confession procured improper conduct part law enforcement officer trial judge consider whether statement excluded either ground would unfair accused allow admitted balance relevant consideration public policy require excluded overlapping also discerned rationale rejection involuntary statement said inadmissible law presumes untrue danger might unreliable seesinclair v king 1946 hca 55 1946 73 clr 316at 335 per dixon j referring tor v warickshall 1783 engr 60 1783 1 leach 263 168 er 234 andr v baldry 1852 2 den 430 445 169 er 568at 574 see alsocleland v queen 1982 hca 67 1982 151 clr 1at 27 28 r v scott 1856 1 dear bell 47 58 1856 engr 19 169 er 909at 913 914 rationale trench consideration fairness accused admissibility depend voluntariness policy consideration would justify exclusion confessional statement procured violence abuse power 74 toohey gaudron gummow jj observed inswaffieldthat followed fact always possible treat voluntariness reliability unfairness accused public policy consideration discrete issue wider operation given principle admissible confession must voluntary le scope practice exercise unfairness discretion particularly relation impropriety calculated cause making untrue admission may expected impropriety calculated effect often impact exercise free choice speak notion given full effect however necessarily every case 76 see alsowright 115 inr v ireland 1970 hca 21 1970 126 clr 321 barwick cj referred circumstance police officer procured evidence fact thing mean unlawful common law statute whenever unlawfulness unfairness appears judge discretion reject evidence must consider exercise exercise competing public requirement must considered weighed one hand public need bring conviction commit criminal offence hand public interest protection individual unlawful unfair treatment conviction obtained aid unlawful unfair act may obtained high price hence judicial discretion 335 inbunning v cross 1978 hca 22 1978 141 clr 54 stephen aickin jj made comment aboutireland whatirelandinvolves simple question ensuring fairness accused instead weighing two competing requirement public policy thereby seeking resolve apparent conflict desirable goal bringing conviction wrongdoer undesirable effect curial approval even encouragement given unlawful conduct whose task enforce law aim discretionary process called byirelandit follows mean take central point question unfairness accused contrary concerned broader question high public policy unfairness accused one factor present play part whole process consideration 74 75 stephen aickin jj stressed inbunning v crossthat police officer liberty disregard statutory provision enacted protection individual occur wholesale deliberate disregard safeguard toleration court would result effective abrogation legislature safeguard individual liberty subordinating executive arm would excusable however desirable might immediate end view convicting guilty court seen acquiescent face unlawful conduct whose task enforce law hand may quite inappropriate treat isolated merely accidental non compliance statutory safeguard leading inadmissibility resultant evidence nature involve overt defiance legislature calculated disregard common law reception evidence thus provided demean court tribunal whose concern upholding law 77 78 incleland deane j added concept impropriety factor weighed balance exercising public policy discretion 20 inpollard v queen 1992 hca 69 1992 176 clr 177 deane j cited written stephen aicken jj inbunning v cross honour said passage make plain principal consideration high public policy favour exclusion evidence procured unlawful conduct part investigating police transcend question unfairness particular accused forefront threat calculated disregard law empowered enforce represents legal structure society integrity administration criminal justice duty court vigilant ensure unlawful conduct part police encouraged appearance judicial acquiescence circumstance discharge duty requires discretionary exclusion public interest evidence obtained unlawful conduct part necessary prevent statement judicial disapproval appearing hollow insincere context curial advantage seen obtained unlawful conduct part necessary ensure court demeaned uncontrolled use fruit illegality judicial process 202 203 see alsoridgeway v queen 1995 hca 66 1995 184 clr 19 41 42 mason cj deane dawson jj nicholas v queen 1998 hca 9 1998 193 clr 173 31 36 brennan cj 97 105 mchugh j recently inpolice v dunstall 2015 hca 26 2015 256 clr 403 french cj kiefel bell gageler keane jj said rationale public policy discretion much concern fairness defendant public policy giving appearance curial approval wrongdoing part whose duty enforce law 26 b nettle j said exclusionary basis public policy discretion grounded public policy better possibly guilty accused allowed go free society court sanction serious illegality serious impropriety part official gathering evidence convict accused honour added discretion le anything fairness accused protecting societal norm 63 inr v clarke 1997 97 crim r 414 hunt cj cl smart j howie aj agreeing said context unfairness discretion kept mind police officer duty ascertain fact bear upon commission crime whether suspect officer bound accept first answer given questioning regarded unfair merely persistent smith 1964 vicrp 14 1964 vr 95at 97 lavery 2 1979 20 sasr 430at 460 neill 1988 48 sasr 51at 56 question degree whether persistence crossed line render unfair use answer evidence cfwilson 1981 1 nzlr 316 324 419 see alsopearce v state western australia 59 inkelly present case challenge admissibility vroi based infringement thecriminal investigation act 2006 wa exercise unfairness discretion reliability confession relevant determinative consideration reliable confession may nevertheless excluded due factor interview reliable voluntary accused bear high onus establish unfairness discretion invoked 60 appellant allege statement made vroi unreliable appellant attended school end year 10 djaru first language according letter sent detective oldfield mr dyason al 23 may 2017 djaru preferred language language appellant truly comfortable conversing 61 vroi appellant said could read write well clear vroi appellant speaks basic english understanding complex english limited appellant sought given service interpreter vroi reveals service interpreter mostly required initial part interview caution administered suspect indigenous person appellant theanungaguidelines may apply theanungaguidelines indicate required way fairness indigenous person questioned police 62 force law western australia absolute appropriate circumstance give good indication ordinarily would regarded fair interrogation 63 basic principle embodied theanungaguidelines remain relevant today first formulated 1976 however application guideline must reflect change social condition value community standard expectation seegudabi v queen 64 breach theanungaguidelines may relevant assessment voluntariness confessional evidence given aboriginal person exercise unfairness discretion 65 inanunga forster j described guideline term 66 preface statement guideline pointing aboriginal people often understand english well even understand word may understand concept english phrase sentence express even use interpreter problem mean solved police legal english sometimes translatable aboriginal language separate aboriginal word simple word like suffix added word qualify word may translate literally aboriginal language mean something different go house mean english speaking person go building aboriginal may also mean go within fence surrounding house english concept time number distance imperfectly understood aboriginal people many primitive cannot tell time clock one frequently hears answer long time depending context may minute hour day week year case may misunderstood also emphasize expressing view aboriginal people le intelligent white people simply concept certain thing term expressed may wholly different white people another matter need understood aboriginal people basically courteous polite answer question white people way think questioner want even courteous polite reaction dealing authority figure policeman indeed action probably combination natural politeness attitude someone authority aboriginal people find standard caution quite bewildering even understand answer question answer question question asked bearing mind preliminary observation based partly upon knowledge observation partly evidence heard numerous case lay following guideline apply course person questioned suspect 1 aboriginal person interrogated suspect unless fluent english average white man english descent interpreter able interpret aboriginal person language present assistance utilized whenever necessary ensure complete mutual understanding 2 aboriginal interrogated desirable practicable prisoner friend may also interpreter present prisoner friend someone aboriginal apparent confidence may mission settlement superintendent member staff one institution know known aboriginal may station owner manager overseer officer department aboriginal affair combination person situation variable category person mentioned exclusive important thing prisoner friend someone aboriginal confidence feel supported 3 great care taken administering caution appropriate simply adequate administer usual term say understand understand answer question interrogating police officer explained caution simple term ask aboriginal tell meant caution phrase phrase proceed interrogation clear aboriginal apparent understanding right remain silent experienced police officer territory already problem caution difficult one presence prisoner friend interpreter adequate simple questioning caution go long way towards solving 4 great care taken formulating question far possible answer wanted expected suggested way anything nature cross examination scrupulously avoided answer probitive sic value borne mind wording question may suggest answer also manner tone voice used 5 even apparently frank free confession obtained relating commission offence police continue investigate matter endeavour obtain proof commission offence source failure among thing led rejection confessional record interview case nari wheeler frank jagamala 6 aboriginal people often nervous ill ease presence white authority figure like policeman particularly important offered meal interviewed police station company police custody meal time arrives also offered tea coffee facility exist preparation always offered drink water asked wish use lavatory company police arrest 7 particularly important aboriginal people interrogated disabled illness drunkenness tiredness admission gained probably rejected court interrogation continue unreasonably long time 8 aboriginal seek legal assistance reasonable step taken obtain assistance aboriginal state wish answer question question interrogation continue 9 necessary remove clothing forensic examination purpose medical examination step must taken forthwith supply substitute clothing observe relation guideline 8 interviewing officer generally entitled ask question clarify accused position determine whether refusal applies question particular topic held position may well different lawyer acting client whose first language english tell police clear term client wish answer question 67 ground 2 appears invokes 30 3 b thecriminal appeal act 2004 wa criminal appeal act provides court must allow offender appeal conviction opinion conviction set aside wrong decision question law judge term ground invokes 30 3 c thecriminal appeal act provides court must allow appeal opinion miscarriage justice however 30 3 b may overlap circumstance withs 30 3 c seeak v state western australia 68 andgassy v queen 69 already set legal principle relation admission exclusion confessional statement note inr v swaffield 70 toohey gaudron gummow jj said always possible treat voluntariness reliability unfairness accused public policy consideration discrete issue 71 inr v edelsten 72 court criminal appeal new south wale carruthers allen badgery parker jj said reviewing exercise common law discretion reject evidence ground prejudice outweighing probative value unfairness evidence unlawfully improperly obtained two fundamental matter first sufficient appellant persuade intermediate appellate court would called upon exercised discretion differently appellant must demonstrate error trial judge accordance well known principle set inhouse v king 73 trial judge ignored relevant consideration relied upon irrelevant matter made error fact law alternatively fact trial judge found found trial judge discretion could properly exercised except favour exclusion evidence 74 secondly extent exercise discretion exclude evidence rest upon existence particular state fact onus accused establish state fact balance probability discretion discretion exclude otherwise admissible evidence discretion admit evidence 75 see alsomih v queen 76 andr v kyriakou 77 suggested thehouse v kingprinciples may wholly govern appellate review exercise discretion trial judge exclude otherwise admissible evidence criminal trial particular suggested appellate basis miscarriage justice in 30 3 c thecriminal appeal actmeans intermediate appellate court considers evidence excluded exercise unfairness discretion reasonably possible failure exclude evidence affected verdict ground appeal upheld seeem v queen 78 opinion unnecessary deal point regard manner ground 2 formulated manner counsel appellant put submission present case critical issue context ground 2 whether trial judge made wrong decision question law honour decided contrary law state permitted tender part case appellant vroi police trial judge made wrong decision question law made express material error kind referred inhouse v kingin deciding exercise discretion exclude interview alternatively reasonable conclusion open trial judge would unfair appellant permit state tender vroi ground 2 error established clear honour ex tempore reason formed view appellant understood obliged answer question interrogating police officer honour arrived conclusion based combination factor including answer appellant gave question put investigating officer whether question interpreted djaru mr nanala regard appellant extensive criminal history honour put 79 stranger criminal justice system though walked straight desert never met white policeman criminal history would met many many police officer attended many many court represented many different lawyer would well accustomed police officer usually job viewed vroi seen heard appellant answer question put police including interpreted djaru think honour err finding appellant understood part caution informed obliged answer question put interrogating police officer appellant answer affirmative understood answer officer question several occasion asserted wish however arriving conclusion respectfully take different view primary judge may inferred appellant extensive criminal history may accepted appellant frequently come contact police officer court lawyer past would absence evidence issue make assumption appellant understanding whole caution especially case apparent vroi took time considerable number question explain caution least part caution informed answer question interrogating officer acceptance proposition appellant understood answer question put interrogating officer inexorably lead conclusion vroi admissible remains considered whether appellant repeatedly expressed choice al letter interview speak respected police officer whether appellant understood part caution informed answer gave may given evidence deal latter issue first caution police officer obliged give arrested suspect two limb first limb suspect right answer question put police second limb suspect answer question answer may given evidence importance second limb caution ensure suspect understands effect consequence answering question put police comprehension second limb caution important comprehension first limb present case clear investigating officer explore appellant understanding second limb caution attention focussed appellant understanding first limb detective oldfield told appellant recording anything say recorded used evidence court mr nanala interpreted statement appellant also live tv interpretation plainly reflect content second limb caution later interview mr nanala asked appellant djaru want talk give evidence two police appellant answered yeah however mr nanala noted djaru equivalent word word evidence detective oldfield repeated second limb caution following term anything say recorded may given evidence mr nanala interpreted appellant asking want talk two policeman interpretation reflect content second limb caution course oral argument court counsel respondent emphasised exchange set 27 end interview detective oldfield informed appellant charged would given copy interview appellant asked english copy interview going court counsel respondent submitted may implied answer understood chose answer interrogating police officer question answer would used evidence accept submission appellant response nature question merely seek confirm advice detective oldfield gave concerning availability recording vroi whether charged offence may also reflect appreciation appellant part lawyer informed said appellant understood first limb caution satisfied appellant understood second limb caution return issue whether interrogating officer respected appellant right silence statement mason j invan der meer v queenapplies 80 whether suspect wish take advantage opportunity given matter decide vital law ensure freedom choice respected recalled mr dyason al sent letter addressed detective oldfield received town police station one hour vroi commenced term letter clear appellant wish exercise right silence wish participate police interview answer question matter wish enter discussion police wish exercise right legal representation asks accompanied lawyer alswa future dealing police trust abide client decision remain silent detective oldfield date voir dire recall whether read letter prior vroi however important point present purpose letter sent received town police station one hour vroi commenced term letter indicated clear relation appellant wish exercise right silence wish participate police interview event appellant told detective oldfield advice given lawyer various occasion asked whether wished answer question police appellant answered effect wish answer appellant could clearer said saying nothing yeah want speak yeah want say anything thing like lawyer told know lawyer tell say whenever appellant responded effect wish answer question interrogating police officer ignored response instead continued interrogate appellant alleged offence appellant answered affirmative opinion police officer conduct whittled effect caution continuing interview appellant repeatedly stated wish remain silent way interrogating officer failed respect appellant choice stay silent conduct infringed guideline 8 theanungaguidelines provides interview proceed person interviewed state wish proceed evident honour reason voir dire regard combination relevant consideration absence proper explanation appellant second limb caution b appellant multiple clear statement wish answer question effect ignored interrogating officer c effect guideline 8 theanungarules conclude great respect honour erred law failing take account combination relevant factor consequence honour decided contrary law vroi admissible appellant trial ought concluded vroi inadmissible basis unfairness discretion opinion plainly unfair admit evidence vroi regard factor reason upheld ground 2 remains issue whether court order retrial court enter judgment acquittal order new trial section 30 5 thecriminal appeal actrelevantly provides court allows appeal conviction must set aside conviction must also either order new trial enter judgment acquittal legal principle applicable question whether appellate court enter judgment acquittal order new trial set ingibson v state western australia 81 adopt written case without repeating power enter judgment acquittal without new trial exceptional course used sparingly wide range circumstance may arise two issue must considered first appellate court must ass whether admissible evidence adduced original trial sufficiently cogent support conviction second appellate court determines admissible evidence sufficiently cogent support conviction court must take account circumstance might render unjust accused make stand trial second issue requires consideration public interest proper administration justice well interest individual accused bearing mind desirable possible guilt innocence accused person finally determined jury assessment cogency evidence original trial ignored vroi regard evidence cogent enough support conviction although would characterise state case strong conclusion reached would usually lead order new trial however appellant served half sentence immediate imprisonment imposed upon non parole period retrial would take place district court either broome derby may well taken place time regard factor believe interest justice new trial ordered accordingly judgment acquittal appropriate certify preceding paragraph comprise reason decision supreme court western australia awresearch associate honourable justice murphy honourable justice mazza28 august 2019 1 t 299 2 t 323 3 wab 6 4 wab 5 5 ground amended hearing appeal 22 february 2019 appeal t 36 37 6 appeal t 37 43 51 58 7 t 48 8 t 48 9 t 48 10 t 48 49 11 t 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