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Kashwer (Migration) [2022] AATA 4768 (18 October 2022).txt

kashwer migration 2022 aata 4768 18 october 2022 last updated 31 january 2023kashwer migration 2022 aata 4768 18 october 2022 decision recorddivision migration refugee divisionapplicant mr jigar kashwerrepresentative mr shukla satyaprakash marn 2013945 case number 2117899home affair reference bcc2021 1060112member michael bradforddate time oforal decision 12 august 2022 2 55 pm nsw time date written record 18 october 2022place decision sydneydecision tribunal affirms decision review statement made 18 october 2022 4 02pmcatchwordsmigration cancellation student temporary class tu visa subclass 500 student ground cancellation incorrect information visa application applicant identity name date birth facial comparison conduct agent consideration discretion circumstance giving rise non compliance knowingly complicit agent conduct decision review affirmedlegislationmigration act 1958 cth s 101 107 109migration regulation 1994 cth schedule 8 condition 8202casesszjgo v minister immigration multicultural indigenous affair 2006 fca 393application reviewintroductionthis application review decision made delegate minister home affair 23 november 2021 cancel applicant subclass 500 student temporary class tu visa undersec 109of themigration act 1958 act conclusion hearing 12 august 2022 tribunal made oral decision affirm delegate decision informed applicant written reason would published later 7 september 2022 applicant agent requested tribunal provide written reason decision 23 september 2022 department home affair made similar request follows written reason overview casethe subject visa granted applicant subsequent entrant 29 july 2020 cancelled non compliance withsec 101 b act arising false information provided department connection visa concerning identity information initially provided behalf procure grant student tu 500 visa june 2017 earlier unsuccessful student visa application 2014 information also used procure another student tu 500 visa 2019 seen issue case delegate entitled issue notice undersec 107of act noicc issue applicant provided false information department occasion procure grant student visa breach ofsec 101 b real indeed issue whether subject visa cancelled procedural aspect hearing applicant credibility evidentiary aspectsthe review application filed 30 november 2022 thus within time applicant also filed date document support case including copy response noicc medical evidence relating consultation applicant psychologist 4 november 2021 report practitioner prepared date 16 june 2022 hearing invitation sent applicant via agent arrangement subsequently made participate telephone hearing 6 july 2022 date applicant appeared way telephone informed tribunal hindi interpreter agent mr satyaprakash shukla also intending participate currently unavailable nepal prior indication given tribunal agent unavailability applicant informed agent returning australia 9 july raised prospect adjournment sought one enable agent attend circumstance bearing mind detailed response applicant agent given department non compliance nature allegation made response adjourned hearing date 9 july request also made effect applicant agent notified separately new hearing date 13 july 2022 telephone hearing scheduled resume 12 august 2022 pursuant request separate invitation sent applicant agent tribunal 12 august 2022 applicant appeared telephone present case agent applicant said expecting agent participate occasion wished proceed complete hearing without oral evidence given hindi interpreter period 1 hour 15 minute appeared limited understanding spoken english oral evidence applicant adhered version event set response noicc broadly effect tricked migration agent india even making allowance fact somewhat lengthy oral evidence given telephone interpreter fact apparently nervous end unconvinced telling circumstance procured 2017 visa event could confidently relied unsatisfactory indeed time frustrating witness despite repeated warning seemed unwilling unable directly answer simple question regarding involvement knowledge circumstance visa procured get distinct impression evidence unfolded interested telling thought would advance case rather giving full frank account circumstance migration agent procured visa difficulty concluding delegate decision review certain aspect applicant evidence regarding circumstance matter implausible difficult reconcile objective fact including sequence event otherwise incredulous case one applicant make grave allegation wrongdoing migration agent unidentified friend neither defend involve fraud threat violence extortion tribunal feel actual persuasion evidence given accepted sufficient make allegation corollary applicant relies exclusively oral assertion made agent establish innocent victim egregious conduct case written submission contain nothing recital fact said support allegation without providing contemporaneous documentary evidence corroborate without explaining evidence led run risk tribunal remain unconvinced proved case particularly quite unable find applicant case nothing innocent party tricked thinking indian agent acted properly procured student visa 2017 circumstance another indian migration agent unable procure visa 2014 fact applicant case known agent prepared 2017 visa application moreover applicant led evidence review establish circumstance indiahad changed period 2014 2017 way extent enhance prospect obtaining visa applied 2017 ultimately case prepared rely agent assertion form written submission applicant oral evidence along line unless consists admission adverse interest consistent objective feature case otherwise corroborated reliable independent record whilst accept agent india much involved preparation 2017 visa application accept applicant nothing innocent victim agent procure visa view inherent probability case taken conjunction certain aspect applicant account establish sufficiently aware needed done procure visa event reason developed later even accept applicant account circumstance entirety would make difference eventual outcome case applicant conduct knowingly adhering false identity since arrived july 2017 thus conclusion oral evidence decided affirm decision review insufficient time remaining give oral reason immediately indicated applicant written reason would provided later documentary aspectsin addition applicant documentary case oral evidence tribunal provided paper file department contains numerous document including copy three visa application lodged applicant 2014 2017 2020 photograph front page taken two indian passport issued different name different time copy 956 form dated 8 november 2021 copy noicc course decision review tribunal also access prism record movement detail record information record discussed applicant hearing controversial noicc valid notice relevant non compliance sec 109 1 act permit minister cancel visa visa holder failed comply specified section act includingsec 101 broadly section requires non citizen provide correct information visa application sec 107aalso enables minister cancel visa failure comply withsec 101in connection previous visa exercise cancellation power undersec 109is conditional minister issuing valid notice undersec 107of act minister must provide notice adequate particular alleged non compliance notice issued comply requirement insec 107the power cancel visa arise case tribunal satisfied delegate reached necessary state mind engagesec 107and noicc complies relevant statutory requirement regard matter rightly accepted applicant response noicc issue whether non compliance way particularised noicc course necessary case consider content notice evidence relied upon department establish non compliance applicant response notice evidence given review relating issue response noicc applicant accepted failed comply withsec 101 b way particularised noicc nothing occurred hearing suggest otherwise referring relevant section act delegate recited applicant immigration study history australia since arrived july 2017 noted among thing applicant applied obtained student visa 2017 2019 2020 also noted information prism record period july 2017 july 2019 completed diploma business studying total period 6 week enrolment course cancelled applicant either response noicc review case dispute finding regarding study history australia relation visa application applicant lodged offshore 10 june 2017 delegate set information provided form concerning identification information based detail passport provided department supporting evidence passport seen bear issue date 13 june 2016 2016 passport according information visa application name jigar kashwer born 10 september 1997 karnal india never known name current passport never refused entry australia 2016 passport course contains photograph applicant face delegate noted provided passport gave detail later student visa application including one led grant dependant student tu 500 visa july 2020 delegate stated noicc decision review facial comparison conducted forensic facial image examiner using photograph applicant 2016 passport another person whose photograph appeared another passport issued 2010 according passport depicted person named neeraj pal born karnal india 27 january 1992 2010 passport according delegate comparison revealed person depicted two photograph fact person delegate went note neeraj pal applied offshore student tu 573 visa 2014 support provided department copy 2010 passport noted delegate visa refused later 2014 genuine temporary entrant ground applicant thus person refused entry australia time based information delegate inferred view correctly applicant used another name date birth 2017 visa application avoid disclose department previously refused visa information available delegate purpose assessing recent visa application wife lodged led grant student visa may affected outcome application evidence delegate considered applicant complied withsec 101 b provided incorrect answer question posed 2017 visaapplication regarding whether ever known another name current passport ever refused entry australia evidence plainly revealed otherwise dispute provided incorrect answer question response noicc applicant australian agent accepted non compliance withsec 101 b way set noicc sought avoid responsibility contending non compliance arose circumstance beyond applicant control essence contended another migration agent india identified response retained applicant prepare 2017 visa application 2016 passport procured agent using false information without applicant knowledge consent short answer contention insofar issue non compliance concerned matter act part 2 division 3 subdivision c contains various well known provision plainly intended ensure applicant responsible conduct agent preparation visa application whether applicant aware provision necessarily given full force effect decisional law see exampleszjgo v minister immigration multicultural indigenous affair 2006 fca 393at 7 8 even accept applicant evidence concerning circumstance visa procured make difference issue whether delegate correct finding applicant responsible non compliance pausing moment even applicant evidence contained agent response noicc knew indian agent done procure grant 2017 visa left india travel australia knew false information concerning identity provided department least knew passport issued contained false information concerning identity passport used procure visa thus opportunity left india avoid consequence agent done consequence knowingly entering australia false passport remaining basis since 6 july 2017 5 year ago whatever significance applicant evidence aspect discretionary stage reason already given none certainly bearing issue whether delegate entitled find ultimately stated non compliance sec 101 b established reason tribunal difficulty finding case non compliance sec 101 b described noicc articulated decision review consequently ground cancellation subject visa visa cancelled given non compliance way described noicc necessary tribunal consider whether visa cancelled sec 109 1 act although cancellation context applicant accepts discretionary matter tribunal exercising power sec 109 1 tribunal consider matter referred sec 109 1 b c insofar relevant case together matter come play including set department procedural advice manual pam3 thus matter referred regulation2 41 considered together matter consequence cancellation international obligation reading decision review deciding cancel visa delegate made finding adverse applicant regarding circumstance 2017 visa procured indicated earlier response noicc form detailed submission applicant agent written doubt instruction unnecessary recite verbatim circumstance agent refers certain aspect need mentioned applicant accepted response noicc oral evidence involved obtaining document required support 2017 visa grant steadfastly maintained unaware prior meeting indian agent airport way australia issued fresh passport gave false identity according applicant case attended local passport office 2016 request agent complete formality necessary obtain fresh passport apparently included completion signing application form issue document done circumstance 2010 passport due cease 18 november 2020 given evidence handed 2010 passport agent informed unsuccessful application 2014 infer applicant must known could used support 2017 visa application agent submits applicant thought renewing updating 2010 passport apart delegate say come grip fact applicant used support 2014 visa application using false name procure fresh one 2016 oral evidence applicant denied signed application form procure 2016 passport said agent agent would circumstance never explained satisfied applicant signed form using fictitious name fortified similarity signature appears 956 form evidence confirmed 2017 visa application applicant also undertaken request indian agent english test using false identity defies belief applicant could completed necessary formality thing without knowing using fictitious name delegate described applicant evidence effect nonetheless unaware assumed process assuming false identity procure 2017 visa met agent airport moment boarded plane travel australia implausible description view apt given extent applicant admitted involvement event led issue 2016 passport event took place along way indeed would go case seems applicant evidence led knowingly complicit agent conduct would event aware process assuming false identity procure 2016 passport would used support fresh visa application term objective feature given 2016 passport bear issue date 13 june year seems unlikely agent india would retained possession document contained false information concerning identity without applicant knowing true position agent eventually lodged 2017 visa application 10 june 2017 applicant explained either delegate tribunal agent india would retained long period applicant time understood acted lawfully met agent airport early july year accept medical issue parent experiencing stage clear medical evidence exactly anything delay lodgement 2017 visa application hearing applicant maintained given 2016 passport met agent airport new delhi shortly departure australia 6 july 2017 aspect evidence may well correct seems improbable agent would parted possession passport visa granted according movement record occur 30 june 2017 none affect finding regarding extent applicant knowingly involved obtaining false information regarding identity 2016 eventual provision department 2017 well satisfied even account applicant sufficiently involved preparatory step led 2017 visa application know going regarding identity ultimately went ahead knowing false passport obtained would used procure visa accept evidence tricked thinking nothing untoward improper happened met agent airport applicant also gave oral evidence effect indian agent made threat airport effect parent would die accident go ahead transaction accept threat made given finding knew agent done 2016 procure supporting document evidence effect stage wanted undo done despite ample opportunity withdraw instruction agent proceed visa application quite illogical assert threat made compel go ahead asked hearing explain went ahead face threat applicant said choice view case clearly threat kind fact made circumstance parent waiting outside terminal building much doubt would boarded aircraft left fend evidence either effect ever told threat made corroboration regarding evidence later visit home agent absent evidence accept say topic movement record confirms returned india two occasion 2018 period 2 month one occasion 2019 4 week although evidence regarding purpose visit prepared infer likely see parent accept close came remained close since asked hearing inform department occurred connection 2017 visa responded noicc november 2021 said scared say meant suggest evidence concerned well family accept reason already given hand referring prospect go home event visa cancelled evidence understandable little assistance circumstance 5 year living false identity time obtained basis le 2 student visa onshore numerous bridging visa evidence response noicc confirmed oral evidence effect arrival australia blackmailed friend confided thus privy migration facade threatened go department unless paid money friend identified said applicant made demand india response applicant say paid unspecified amount various time shortly prior november 2021 absent bank record substantiate payment contemporaneous documentary evidence corroborate say prepared accept evidence topic event see would assist great deal delegate reasoned meeting demand simply exacerbating already untenable migration position view respectfully agree matter one look case applicant small way author misfortune turning relevant matter appear arise consideration accept applicant possibly wife suffer disruption relationship visa cancelled absent evidence academic progress australia fact evidence regarding present academic personal circumstance career goal unable give matter real weight favour noicc delegate expressed concern applicant study history australia nothing said matter response notice otherwise review may engaged productive study since late 2021 would expected seen evidence effect none medical evidence form report effect applicant began symptom depression early november 2021 shortly noicc served although psychologist mr nick cherrie appears prescribed medication stage applicant said evidence took short period perhaps one week say ceased take medication little odd given told mr cherrie wanted go path rather undergo counselling absent updating medical evidence accept currently suffering depression recognised mental illness distressed shortly received noicc understandable living considerable time false pretence indeed obtained visa 2019 2020 knowing using false identity must face consequence done would upsetting something brought prepared find circumstance suffer relevant hardship cancellation also evidence effect wife studying become nurse noicc response agent state would obtain nursing qualification within next 12 month effect mean may already qualified nurse although given evidence support applicant case see movement record evidence granted student visa primary applicant july 2020 accept studying course nursing since time earlier shortly complete already done although suggestion applicant oral evidence current visa might also cancelled led documentary evidence effect document effect department file think reasonable circumstance proceed basis likely able complete course need seen copy 2019 visa application corresponding visa grant know whether concern arising information visa application regarding identity course possible perhaps still unaware migration position come forward evidence along line prepared infer circumstance suffer relevant hardship cancellation visa take consideration possibility applicant wife may separated event go back india remains australia complete study would necessary consequence choice made would occasion temporary disturbance married life regard possibility evidence led weighty factor discretionary level appear relevant matter evidence led otherwise require specific consideration summary conclusionthe tribunal satisfied evidence accepted applicant aware done obtain document necessary support 2017 visa application difficulty accepting applicant informed agent visa refused 2014 applicant instructed agent whatever done procure visa given applicant relevant circumstance 2016 apparently different 2014 one way visa could procured give applicant false identity thus avoid need explain department granted visa despite earlier refusal tribunal finding applicant probably knew retained agent act 2016 event knowingly complicit agent subsequently procure document necessary support visa application june 2016 giving eventual instruction lodge application june 2017 contend applicant remained unaware fact assumed false identity procure 2017 visa arrived airport proposition simply cannot accept later conduct deliberately using false identity procure visa grant 2019 2020 nothing assist indeed tends small way undermine claim nothing innocent victim unscrupulous agent considering applicant overall circumstance given due weight relevant matter tribunal concluded end oral evidence tu 500 visa cancelled decisionthe tribunal thus affirms decision review michael bradford member

Corbin, A V Coal & Oil Mine Workers Super Tribunal [1994] NSWIRComm 204; [1994] NSWIRC 91 (7 September 1994).txt

corbin v coal oil mine worker super tribunal 1994 nswircomm 204 1994 nswirc 91 7 september 1994 industrial court new south walescoram bauer adep cj wednesday 7 september 1994matter 1070 1989anthony corbin v coal oil shale mine worker superannuation tribunal appeal corbin decision coal oil shale mine worker superannuation tribunal given 14 april 1989 judgmentthis superannuation appeal brought anthony corbin pursuant 390 theindustrial relation act1991 determination made coal oil shale mine worker superannuation tribunal declined grant mr corbin lump sum superannuation payment pursuant 14e thecoal oil shale mine workerssuperannuation act 1941 section following form lump sum benefit payment disabled mine workers14e 1 mine worker prof satisfaction tribunal incapacitated injury period engaged coal oil shale mining industry ii reason incapacity unable continue engagement industry date disability 26th march 1978 iii incapacity likely permanent major effectively disabling kind b awarded pension undersection 6 entitled lump sum benefit payment section 14a respect incapacity c submitted examination required subsection 3 except tribunal satisfied incapacity caused injury mine worker would entitled lump sum benefit payment section 14a continued engaged industry date retirement entitled lump sum benefit payment amount determined subsection 2 2 amount lump sum benefit payable section tribunal satisfied incapacity caused injury mine worker amount equal amount would payable section 14a continued engaged coal oil shale mining industry date retirement ii section 14a 1 b enacted iii reference section 14a 3 date retirement reference date disability b case amount equal percentage amount referred paragraph 10 per cent amount together 10 per cent completed year engagement coal oil shale mining industry date disability maximum 100 per cent 3 tribunal may require applicant payment lump sum benefit section submit examination panel 3 medical practitioner nominated tribunal tribunal shall making nomination regard representation made regard thereto applicant 4 person entitled lump sum benefit payment incapacity caused act default intended produce incapacity 5 purpose section date person incapacity arises date disability shall deemed date date may determined tribunal tribunal shall making determination subsection regard circumstance case including medical employment history b date ceased able effectively employed mine worker 6 section reference injury includes reference illness b date mine worker disability reference date becomes unable continue engagement coal oil shale mining industry reason incapacity referred section c date retirement relation mine worker except subsection 2 iii reference date mine worker would required act retire retire retired date 7 section apply respect mineworker whose engagement coal oil shale mining industry terminated 3 july 1988 result mine worker disability 8 person make application section 14h lump sum benefit payment section may include application application lump sum benefit payment section 14fb person becomes entitled receive benefit payment section 14fb person entitled receive lump sum benefit payment section 9 person commencement coal oil shale mine worker superannuation amendment act 1990 made application lump sum benefit payment section b application determined commencement including disposal appeal section 23a application taken include alternative benefit payment application lump sum benefit payment section 14fb conceded prerequisite long section met appellant except 14e 1 issuesthere issue fact accident occurred on16 september 1981 course mr corbin work mine deputy wambo mining corporation pty limited mr corbin sustained injury later described continuing disability resulting accident issue accepted injury prevented mr corbin returning work mine deputy least date appeal hearing thus pre requisite 14e 1 also conceded raised respondent appeal whether incapacity likely permanent major effectively disabling kind 14e 1 iii issue raised whether test 14e 1 ii also satisfied medical reportsit appropriate turn medical evidence injury sustained accident set initial report treating general practitioner dr lee 9 april 1984 give economically paraphrase picture injury treatment 16 september 1981 9 april 1984 history saw casualty department singleton district hospital 16 sep 81 brought ambulance involved mining accident working underground helping change tyre shuttle car struck forcably sic left face bucket car knocked back struck head dazed unconscious examination examination mr corbin sustained following injury 1 compound complex comminuted fracture left zygomatic maxillary complex orbit 2 left facial laceration left upper eyebrow andb left cheek 3 mid occipital lacerations4 bruising left shoulder5 bruising left arm immediate subsequent treatment patient left facial laceration mid occipital laceration surgically repaired view severity l facial injury transferred mater hospital newcastle 16 sep 81 later wallsend hospital newcastle emergency explorative reconstructive facial surgery done dr c howe plastic surgeon dr r poutney opthalmic sic surgeon reviewed dr b copper dental oro maxillary surgeon newcastle subsequent treatment mr corbin continuted sic suffer severe diplopia trismus left facial neuralgia left facial surgery dr john e de burgh norman consultant maxillo facial surgeon conjunction dr peter rogers opthalmis sic surgeon mater hospital sydney 24 mar 82 also manipulation left tempo mandibular joint intra articular injection decadron dr j norman also insertion oral plate correct tempo mandibular joint position assessment mr corbin assessed dr dudley sullivan consultant neurologist sydney left facial neuralgia migraine mr corbins wearing hard hat work dr sullivan opinion left facial neuralgia migraine would articular origin arising left tempo mandibular joint mr corbin also assessed dr keith mayne consultant psychiatrist north side clinic management mr corbins condition 21 sep 83 also referred mr corbin assessed dr geoff booth 4 may 84 rehabilitation specialist newcastle see suggestion would help mr corbins future career prognosis injury mr corbin sustained mining accident extensive prognosis condition permanent diplopia shattered left orbit intermittant sic left facial neuralgia migraine arising damaged left tempo mandibular joint remains poor opinion never able return former job mine deputy underground mine dr lee report 30 march 1994 brings medical report date history mr corbin suffered severe facial neck injury 17th september 1981 employed mine deputy mr corbin hit bucket front end loader striking left facial occipital region resulted multiple fracture facial bone left zygloma orbit damage left trigeminal nerve cervical spine also large occipital laceration mr corbin extensive surgery newcastle hospital facial maxillary surgery dr john de burth sic norman oro facial maxillary surgeon sydney dr peter roger opthomologist sic sydney result accident mr corbin suffered permanent left vertical diplopia well intermittent trigeminal neuralgia intermittent headache chronic depression mr corbin made two attempt returning work first attempt nine month accident light duty unsuccessful significant amount time sic work unable tolerate work attempt return work march 1985 also unsuccessful mr corbin attempted working draughtsman unsuccessful due facial pain diplopia restriction neck movement prevented working draughtsman initially trained draughtsman several attempt try alleviate left facial pain neck pain alcohol injection dr noel dan neurosurgeon sydney nerve block treatment dr peter armstrong director pain clinic mater hospital newcastle unfortunately failed mr corbin admitted royal ryde hospital pain service inpatient dr david gronow four week pain management anxiety depression improve physical fitness pain tolerance nevertheless programme physical condition improved dependance sic pain killer markedly decreased still suffering chronic depression mr corbin taking 8 panadol day tofranil 50mg nightly help sleep progress periodical review revealed mr corbin still suffering permanent vertical diplopia constant blurring vision worsens form emotional physical stress also increase facial pain well mr corbin form manual work mowing lawn etc would upset neck well pain would start neck radiate left eye ear occipital region pain also radiating left upper limb conclusion 1 extensive facial injury mr corbin neck injury constant pain depression definitely result mining injury 17th september 1981 2 injury described permanent effectively disabling kind definitely feel mr corbin would never able return work mining industry 3 mr corbin would able wear hard hat partly due physical pressure scalp would cause pain would also evoke immediate facial pain neck pain psychological stress would cause migraineous headache would disrupt concentration view dangerous job would carry wear hard hat sort hat mr corbin quite aware symptom required wear hard hat amount psychological stress associated wearing hard hat could bring symptom well turn could evoke severe bout depression migraineous headache think dangerous crew member work concentration lapse resulting wearing hard hat mr corbin continues experience chronic depression sic form stress may exacerbate depressive symptom facial pain physical psychological factor believe prevent mr corbin working mine deputy mining industry furthermore understand part job mine deputy underground supervising production coal coal face mine deputy definitely required law wear hard hat summary mr corbin physical psychological disability permanent effectively disabling kind never able return work mine deputy secondly work position requires wear hard hat position affect cervical spine requires good concentration draughtsman numerous report made available treating doctor including dr brian capper dental surgeon dr christopher howe plastic reconstructive surgeon dr richard pountney ophthalmic surgeon dr geoff booth specialist physical rehabilitation medicine dr john e de burgh norman maxillo facial surgeon dr peter rogers ophthalmic surgeon dr dudley sullivan neurologist dr noel dan neurosurgeon dr kevin bleasel neurosurgeon dr david gronow director pain management centre dr keith mayne psychiatrist dr j j nichols psychiatrist dr graham vickery psychiatrist although repetitious period report represent report extend total 80 page addition medical report presented respondent came dr robert gertler psychiatrist dr robert cameron consultant surgeon dr anthony lowy physician occupational medicine dr michael gliksman occupational physician dr david sharpe consultant neurologist report written 32 page respondent doctor although acknowledging continuing problem accept degree disability incapacity appellant complains clinically confirmed work historymr corbin work history since accident follows date accident end july 1984 appellant duty july august 1984 appellant returned work mine deputy 9 month restricted basis work production face subsequently mid 1987 mr corbin qualified draughtsman mine survey drafting worked contract basis drafting work since mid 1987 drafting work downturn industry le available assisting wife modest enterprise screen printing onto garment shirt evidence worked 30 hour week time convenient mr corbin since 1987 continued apply mining company drafting work sub contract basis specified leamington coal allied saxonvale drayton among colliery applied amongst work mr corbin applied full time position public relation officer local council position sought unsuccessfully 1991 present complaintsthe appellant present complaint medical condition taken report dr noel dan 27 july 1993 treating neurosurgeon think doubt present situation permanent demonstrated persistence symptom twelve year clinically think reasonable doubt long ago picture permanent efflux time merely confirmed view see way mr corbin could possibly return mining industry ongoing significant symptom firstly double vision vision blur find problem worse pain fact best position ocular vision looking downwards look upwards also stress cause increased pain vision blur hand neck flexed cervical symptom aggravated also find manual work upset neck pain radiates around left eye ear occipital region still pain radiating left upper limb treatment consists 50mgs tofranil sic night paracetamol may use four time together stress control technique clinical examination confirms ongoing left enophthalmos tattooing around left eye hypersensitivity left infra orbital region pre post auricular area report could tolerate wearing sunglass sensitivity understand condition diagnosed trigeminal neuralgia tic douloreaux diagnosis specific entity quite unlike present clinical picture facial cervical injury particular double vision neck dysfunction scalp facial hypersensitivity way mr corbin could employed mining industry could undertake duty required wearing hat could work draughtsman diplopia pain induced neck holding neck flexed normal working position short period time therefore remain view permanently incapacitated result mining injury completely unfit work mining industry previously set respondent contest thatmr corbin medically fit perform demanding exacting work mine deputy accepted injury save perhaps neck pain result work accident seriously contended test major effectively disabling kind met pressed insufficient element permanency injury satisfy test mro connor senior counsel respondent argued doctor noted mr corbin condition worse stress consequently court find appeal concluded would improvement condition thus disability could found permanent view neither contention made injury likely permanent major effectively disabling kind find thus question remains whether requirement 14e 1 ii met anderson caseit argued mrcallaway senior counsel appellant thatanderson case 1 incorrectly decided industrial court bound precedent industrial commission ought come different conclusion court session inanderson case mrcallawayargued judgment ofclarkeja inmurray case 2 properly understood correct approach 14e 1 submitted judgment ofclarkeja effect court satisfied appellant capable performing pre injury work industry satisfy demand 14e reason later set proved necessary consider argument considerationmr corbin strong support number doctor regarded accurate restrained historian dr dan concede mr corbin presented room severe level disability degree possibly inconsistent person applying full time work concession viewed term mr corbin actual work history final assessment whether mr corbin could perform job work full time basis although ability training mr corbin demonstrated capable performing clerical duty question whether capable performing work full time basis mro connorsubmitted appellant could light duty job one could sit stand wished job fall within description light duty familiar compensation jurisdiction however difference job work given employee light duty employer make allowance effect injury work capacity work obligation rest employer category light duty restricted duty within definition mine worker whilst correct extended definition wide seeanderson case includes job clerk office worker bath house attendant job though involving exacting physical work must regarded full duty job attenuated concept light duty medical evidence balance support view thatmr corbin seriously handicapped injury evidence must added evidence mr corbin ofmrs corbin view restrained undemonstrative witness claim could work assist wife business said capable performing full time job work normal spread hour five day week basis evidence considered along medical expert evidence mr corbin seemed corroborate evidence given bymr corbin mro connorargued fact mr corbin applied full time work indication mr corbin believed capable work mr corbin also sought work part time basis regard evidence neutral view appellant unable injury continue engagement industry coal mining date disability 26 march 1978 find appeal upheld accordingly reference 1 unreported judgment commission court session6 august 1990 2 20 nswlr 675

Rollinson v Frankston CC [2011] VCAT 2132 (10 November 2011).txt

rollinson v frankston cc 2011 vcat 2132 10 november 2011 last updated 23 november 2011victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1848 2011permit application 161 2011 pcatchwordssection 82 planning environment act 1987 frankston planning scheme business 2 zone heritage overlay design development overlay access car parking scope consideration scope discretion objector review balance policy integrated decision making national trust principle applicantdr russell rollinsonresponsible authorityfrankston city councilrespondentfrankston holding pty ltdsubject land10 12 davey street frankstonwhere heldmelbournebeforealison glynn memberhearing typehearingdate hearing17 18 october 2011date order10 november 2011citationrollinson v frankston cc 2011 vcat 2132orderthe decision responsible authority relation permit application 161 2011 p varied permit granted relation land 10 12 davey street frankston permit allow part demolition building work heritage overlay construction fourteen storey building four level basement car parking use dwelling café reduction car parking requirement anda waiver loading bay requirement accordance endorsed plan subject condition contained notice decision grant permit issued responsible authority 25 may 2011 modified follows new condition 1f 1i inserted read 1f modification ramp basement car park per recommendation mr jason walsh witness statement tribunal dated 3 october 2011 1g detail junction treatment green planted wall retained building 10 12 davey street 1h reuse hand rail 10 davey street within landscape treatment site 1i chimney retained building 10 12 davey street new condition 8f 8g inserted read 8f detail ongoing maintenance proposed green wall including detail need moisture sensor ensure planting within green wall maintain sufficient moisture time 8g measure taken plant within planter box green wall fall disrepair condition 15d deleted new condition inserted existing condition 2 state prior commencement development wind study report prepared appropriately qualified person must submitted responsible authority report must demonstrate acceptable standard achieved intended ground floor terrace us around building condition numbered 3 condition notice decision new condition detailed renumbered accordingly alison glynnmemberappearancesfor dr rollinsonmr bill kusznirczuk town planner clement stone town planner called following witness mr craig czarny urban designer hansen partnership pty ltd frankston city councilmr john rantino solicitor maddocks called following witness mr roger beeston heritage architect rba architect conservation consultant pty ltd mr robert mcgauran architect mcguaran giannini soon pty ltd frankston holding pty ltdmr john cicero solicitor best hooper called following witness m catherine heggan town planner message consultant m robyn riddett heritage architect anthemion consultancy mr jason walsh traffic engineer traffix group mr peter williams project architect dcm department planning community developmentmr peter bergin town planner informationdescription proposalconstruction 14 storey building accommodate 89 dwelling fitness centre use resident café open public building sit behind façade two existing building affected heritage overlay work include partial demolition heritage building four level basement parking loading bay proposed sit building access rear site via bay lane nature proceedingapplication undersection 82of theplanning environment act1987

Seeto v R; Evans v R [2008] NSWCCA 227 (2 October 2008).txt

seeto v r evans v r 2008 nswcca 227 2 october 2008 last updated 7 october 2008new south wale court criminal appealcitation seeto v r evans v r 2008 nswcca 227file number 2007 139132007 14922hearing date 16 september 2008judgment date 2 october 2008parties janice seetostephen richard evansreginajudgment giles ja rothman j price jlower court jurisdiction district courtlower court file number 07 11 081007 11 0721lower court judicial officer puckeridge qc dcjlower court date decision 15 november 2007counsel c davenport sc applicant arnott sc l well respondent solicitor connor legal aid commission applicant kavanagh public prosecution respondent catchword criminal lawstatuteswhether proceeding statute barredstatutesinterpretationlegislative history ofpolice act 1990rules constructionmischief remediedconsideration extrinsic materialssecond reading speecheslegislation cited interpretation act 1987s 33 34justices act 1902police act 1990s 200 2 200 3 200 4 police amendment miscellaneous act 2006police service act 1990 106 1 police service complaint discipline appeal amendment act 1993police legislation amendment act 1996category principal judgmentcases cited attorney general commonwealth v oates 1999 hca 35 1999 198 clr 162cic insurance ltd v bankstown football club ltd 1997 187 clr 384colquhoun v brook 1888 21 qbd 52harrison v melhem 2008 nswca 67mills v meeking 1990 hca 6 1990 169 clr 214re building worker industrial union australia ex parte pillar 1991 hca 50 1992 174 clr 263re coldham ex parte bideson 1 1989 hca 2 1989 166 clr 338houssein v secretary industrial relation technology nsw 1982 hca 2 1982 148 clr 88at 94saraswati v r 1991 hca 21 1991 172 clr 1texts cited hansard legislative assembly 24 april 1996 444hansard legislative council 14 november 2006 3720decision 1 leave appeal janice seeto granted appeal dismissed 2 leave appeal stephen richard evans granted appeal dismissed judgment court ofcriminal appeal2007 139132007 14922giles jarothman jprice j2 october 2008seeto v revans v rjudgment1giles ja agree price j 2rothman j benefit reading draft reason judgment price j order proposes agree order proposed price j reason wish add following comment 3 unnecessary recite fact outcome appeal conviction depends upon correct statutory construction legislation promulgated 1996 amended pre existing legislation shall refer pre existing legislation thepolice act1990

Clark v Stonnington CC [2003] VCAT 652 (2 June 2003).txt

clark v stonnington cc 2003 vcat 652 2 june 2003 last updated 5 june 2003victorian civil adminstrative tribunalplanning environment list application review no p3187 2002p612 2003catchwordsapplication review section 82 andsection 80of theplanning environment act 1987 existing use right building work application condition character amenity impact residential amenity expectation business 1 zone 1 application review p3187 2002applicant g clark orsrespondents permit applicant worrels mators pty ltdresponsible authority stonnington city councilwhere heard melbournebefore laurie hewetdate hearing 14 april 2003date order 2 june 2003subject land 7 11a carter avenue toorak2 application review p612 2003applicant worrel motor pty ltdrespondents objector b hill douglas orsresponsible authority stonnington city councilwhere heard melbournebefore laurie hewetdate hearing 14 april 2003date order 2 june 2003subject land 7 11a carter avenue toorakmedium neutral citation 2003 vcat 652ordersthe decision responsible authority varied permit granted directed issued land 7 11a carter avenue toorak permit allow building work associated upgrading vehicle show room servicing facility erection display advertising sign permit must contain condition set responsible authority notice decision grant permit issued 26 november 2002 except 1 preamble condition 1 must amended read development start plan satisfaction responsible authority must submitted approved responsible authority approved plan endorsed form part permit plan must drawn scale dimension three copy must provided plan must generally accordance plan substituted hearing victorian civil administrative tribunal 14 april 2003 modified show 2 condition 1 f must deleted 2 condition 1 must deleted 3 condition 19 must deleted 4 condition 11 must amended read delivery vehicle sale site solely carter avenue using commercial truck vehicle carrying two vehicle time laurie hewetmemberplanning environment listappearancesmr c townshend counsel appeared direct brief behalf worrell motor pty ltd mr montebello maddocks solicitor appeared behalf responsible authority mr e gilels appeared behalf toorak village resident association mr g clark mr b hill douglas appeared behalf reasonsapplication review p3187 20021 application undersection 82of theplanning environment act 1987 theact brought g clark or review decision city stonnington council grant permit application 1386 01 application review p612 20032 application undersection 80of theactbrought worrell motor pty ltd review condition permit council decided grant preliminary matters3 commencement hearing received application undersection 60of thevictorian civil administrative tribunal act1998

Hope Island Chiropractic Centre re Hope Island Chiropractic Centre Employee Enterprise Agreement [2011] FWAA 745 (4 April 2011).txt

hope island chiropractic centre hope island chiropractic centre employee enterprise agreement 2011 fwaa 745 4 april 2011 fair work australiadecisionfair work act 2009s 185 application approval single enterprise agreementhope island chiropractic centre ag2011 5058 hope island chiropractic centre employee enterprise agreementhealth welfare servicescommissioner simpsonbrisbane 4 april 2011application approval hope island chiropractic centre employee enterprise agreement 1 application made approval enterprise agreement known thehope island chiropractic centre employee enterprise agreement agreement application made pursuant tos 185of thefair work act 2009 act made hope island chiropractic centre agreement single enterprise agreement 2 25 march 2011 undertaking provided mr davidson employer pursuant tos 190of act accept undertaking copy undertaking attached agreement annexure form part agreement 3 satisfied requirement ofss 186 187and188of act relevant application approval met 4 agreement approved accordance withs 54of act operate 11 april 2011 nominal expiry date agreement 30 november 2014 commissionerprinted authority commonwealth government printer price code j ae883975 pr506485

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2020] FWCA 7011 (22 December 2020).txt

communication electrical electronic energy information postal plumbing allied service union australia 2020 fwca 7011 22 december 2020 last updated 23 december 2020 2020 fwca 7011fair work commissiondecisionfair work act 2009s 185 enterprise agreementcommunications electrical electronic energy information postal plumbing allied service union australia ag2020 3862 bayside fire protection pty ltd cepu plumbing division vic fire protection enterprise agreement 2020 2023plumbing industrydeputy president colmanmelbourne 22 december 2020application approval bayside fire protection pty ltd cepu plumbing division vic fire protection enterprise agreement 2020 2023 1 communication electrical electronic energy information postal plumbing allied service union australia made application approval enterprise agreement known thebayside fire protection pty ltd cepu plumbing division vic fire protection enterprise agreement 2020 2023 agreement pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 application generally order commission advised employee provided voting instruction seven clear day vote circumstance regard decision full bench inhuntsman chemical company australia pty limited rmax rigid cellular plastic others 1 satisfied constitutes minor procedural technical error purpose ofs188 2 satisfied employee covered agreement likely disadvantaged error result satisfied agreement genuinely agreed within meaning ofs 188 2 act 3 basis material contained application accompanying declaration satisfied requirement ofss 186 187and188as relevant application approval met 4 communication electrical electronic energy information postal plumbing allied service union australia bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 based declaration provided organisation note agreement cover organisation 5 agreement approved 22 december 2020 accordance withs 54 operate 29 december 2020 nominal expiry date agreement 31 october 2023 deputy president 1 2019 fwcfb 318printed authority commonwealth government printer ae509941 pr725784

AKP v NSW Trustee and Guardian [2012] NSWADTAP 38 (12 October 2012).txt

akp v nsw trustee guardian 2012 nswadtap 38 12 october 2012 last updated 14 november 2012administrative decision tribunalnew south walescase title akp v nsw trustee guardianmedium neutral citation 2012 nswadtap 38hearing date 10 october 2012decision date 12 october 2012jurisdiction appeal panel externalbefore magistrate n hennessy deputy presidentdecision appeal dismissedcatchwords external appeal decision guardianship tribunal applicant standing apply guardianship financial management order applicant appeal administrative decision tribunal finding whether administrative decision tribunal jurisdiction entertain appeallegislation cited guardianship act 1987administrative decision tribunal act 1997cases cited text cited category principal judgmentparties akp appellant nsw trustee guardian first respondent akq second respondent file 128007 akt second respondent file 128008 guardianship tribunal third respondent representation counsel solicitor akp personnsw trustee guardian appearanceakq philip j king solicitorakt philip j king solicitorguardianship tribunal sprouster legal officerfile number 128007128008publication restriction reason decisionakp applied guardianship tribunal guardianship financial management order relation two woman akq akt guardianship tribunal dismissed application found akp standing theguardianship act1987

Shane Rees v Brearley Plumbing Pty Ltd [2019] FWC 3887 (5 June 2019).txt

shane rees v brearley plumbing pty ltd 2019 fwc 3887 5 june 2019 last updated 6 june 2019 2019 fwc 3887fair work commissiondecisionfair work act 2009s 394 unfair dismissalshane reesvbrearley plumbing pty ltd u2019 2940 deputy president deansydney 5 june 2019application unfair dismissal remedy 1 15 march 2019 mr shane rees made application telephone remedy unfair dismissal tos 394of thefair work act 2009 2 18 march 2019 correspondence sent mr rees advising application incomplete required filing fee paid mr rees advised completed application must filed within 14 day day telephone application made 3 18 april 2019 commission contacted mr rees telephone advised must provide completed form f2 application may dismissed 4 final attempt made 14 may 2019 contact mr rees advised written application payment still outstanding application may dismissed completed form filed 5 date completed application filing fee received 6 rule 9 thefair work commission rule 2013governs application made telephone commission relevantly provides 9telephone application 1 rule applies person wanting b make unfair dismissal application commission 2 person may alternative lodging application approved form make application telephone telephone number approved purpose general manager 3 commission must prepare written application person based telephone application give written application person 4 person must within 14 calendar day day commission give written application person complete sign written application lodge commission pay ii application section 394 act fee mentioned regulation 3 07 regulation b apply waiver fee 5 person applies waiver commission refuse application person must pay application fee within 7 calendar day notified refusal commission 6 either person pay application fee ii commission approves fee waiver b person completes sign written application lodge commission application taken made day person telephone commission make application accordance subrule 2 7 process telephoning commission accordance subrule 2 lodging completed signed written application taken application 7 section 395 act deal application fee provides 395 application fee 1 application fwc division must accompanied fee prescribed regulation 2 regulation may prescribe fee making application fwc division b method indexing fee c circumstance part fee may waived refunded 8 section 587 1 act provides follows 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 9 regard circumstance matter satisfied application made accordance act mr rees failed file completed application pay required fee reason application dismissed 587 1 act order effect issued decision deputy presidentprinted authority commonwealth government printer pr709031

Kogarah Town Centre Pty Limited v Valuer General (No 2) [2014] NSWLEC 1107 (13 June 2014).txt

kogarah town centre pty limited v valuer general 2 2014 nswlec 1107 13 june 2014 kogarah town centre pty limited v valuer general 2 2014 nswlec 1107 13 june 2014 last updated 16 june 2014land environment courtnew south walescase title kogarah town centre pty limited v valuer general 2 medium neutral citation 2014 nswlec 1107hearing date 22 may 10 june 2014decision date 13 june 2014jurisdiction class 1before moore sc brown cdecision rate per square metre adopted para 98 decision 15 may 2014 confirmed catchword valuation land calculation statutory valuationlegislation cited valuation land act 1916cases cited kogarah town centre pty limited v valuer general 2014 nswlec 1085category principal judgmentparties kogarah town centre pty limited applicant valuer general respondent representation counsel mr r white barrister applicant mr hale scms carpenter barrister respondent solicitor gadens lawyer applicant crown solicitor office respondent file number 31133 201231134 201231135 201231136 201231137 2012judgmentcommissioners judgment 13 may 2014 matter seekogarah town centre pty limited v valuer general 2014 nswlec 1085 para 133 138 set order considered appropriate flow conclusion reached concerning statutory valuation kogarah town centre year 2007 2011 inclusive base date 1 july year background factual base proposed order set detail judgment unnecessary purpose short reason set matter para 127 129 earlier decision various somewhat complex step needed undertaken derive various value gave party opportunity check calculation finalising order matter listed matter short hearing party confirmed arithmetical accuracy calculation underpinning term proposed order unusual valuation appeal court whether statutory valuation appeal valuation element resumption compensation dispute requested provided microsoft excel spreadsheet embodied calculation used valuer comparable sale analysis undertaken spreadsheet included various adjustment factor adopted valuer agreed others dispute also unusual spreadsheet requested supplied electronically reach different conclusion adopted valuer respect one adjustment factor case proceeding would able enter differing conclusion electronic spreadsheet see appropriate resulting calculation resumed hearing 22 may two matter emerged 1 first party agreed resolved one difference concerning adjustment factor usage mr duguid applicant valuer mr watt valuer general valuer adopted adjustment 10 5 respectively 2 second far greater complexity requiring hearing dealt third judgment matter emerged difference party statutory requirement apportionment value land two separate property identification descriptor consequence fact property comprises two separate allotment requiring given aggregated value straddle boundary kogarah rockdale local government area allotment boundary coinciding local government boundary first matter capable ready consideration disposal whilst second subject hearing decision complex may although certain stage require u venture unchartered statutory interpretation territory primary judgment accept resolve overlooked dispute valuer identified party may result fact multiple differing electronic version spreadsheet provided u hearing unfolded however necessary specify error arisen precision given conclusion reached described primary consideration set number arithmetical base could potentially utilised derive analysed value per square metre first allotment known lot 1 calculation resultant value lot 2 aggregated value two allotment simple mathematical process requiring one arithmetically uncontroversial nonetheless contested calculation factor derive value second allotment lot 2 thus aggregated value whole site thus triggering apportionment methodology contained in 28of thevaluation land act1916

Hay v VOCAT [2002] VCAT 45 (15 February 2002).txt

hay v vocat 2002 vcat 45 15 february 2002 last updated 15 february 2002victorian civil administrative tribunalgeneral list g50151 2001catchwordsgeneral list victim crime assistance act 1996ss 8 2 3 29 2 3 4 53and54 applicant anthony brian hayrespondent victim crime assistance tribunalwhere held melbournebefore john galvin deputy presidentdates hearing 13 14 december 2001date order 15 february 2002medium neutral citation 2002 vcat 45orders1 decision respondent set aside determined application assistance heard time 2 matter remitted respondent assessment payment ongoing reasonable counselling service cost removal tattoo applicant neck hand accordance reason decision accordance thevictims crime assistance act1996 3 respondent shall pay applicant cost assessed upon scale county court scale taxed default agreement ___________________john galvindeputy presidentappearancesfor applicant mr c w beale instructed victoria legal aidfor respondent mr e heathcote instructed victoriangovernment solicitorreasons decision1 22 january 2001 thevictims crime assistance act 1996 act applicant lodged application assistance respondent also applied extension time within make application 17 may 2001 respondent informed refused application extension time application assistance consequently also refused respondent refused extend time ground applicant provided explanation failure apply within time perception respondent delay police investigation relevant criminal act compromised 2 application assistance must made within two year occurrence act violence upon based tribunal must strike application made time unless considers particular circumstance ought struck 29 2 determining whether hear determine application made time tribunal must regard age applicant time occurrence act violence b whether applicant intellectually disabled within meaning theintellectually disabled person service act 1986or mentally ill within meaning themental health act 1986 c whether person committed alleged applicant committed act violence position power influence trust relation applicant physical psychological effect act violence applicant e whether delay making application threatens capacity tribunal make fair decision f whether applicant child time occurrence act violence application made within reasonable time reached age 18 g circumstance considers relevant 29 3 3 tribunal must decide hear determine application made time applicant unaware relevant legislation time limit within application must made 29 4 4 tribunal must refuse make award assistance satisfied act violence reported police within reasonable time applicant failed provide reasonable assistance regard investigation act violence arrest prosecution perpetrator unless considers special circumstance brought result considering whether act violence reported police within reasonable time tribunal may regard relevant matter including age victim time occurrence act violence b whether victim intellectually disabled within meaning theintellectually disabled person service act 1986or mentally ill within meaning themental health act 1986 c whether person committed alleged committed act violence position power influence trust relation victim whether victim threatened intimidated person committed alleged committed act violence person e nature injury alleged suffered victim 53 5 contested determining whether extend time tribunal regard criterion enunciated inhunter valley development pty ltd minister home affair environment 1984 3 fcr 344 revisited indix v crime compensation tribunal 1993 vicrp 21 1993 1 vr 297 viz whether applicant extension show acceptable explanation delay b whether fair equitable circumstance extend time c applicant action particular whether applicant continued make decision maker aware contest finality decision distinct allowing decision maker believe matter finally concluded whether respondent prejudiced delay e whether delay may result applicant extension successful unsettling people established practice f merit substantial application g consideration fairness applicant person otherwise like position 6 applicant evidence 1981 1983 time aged 12 14 year victim several sexual assault committed three men claim reported matter police number year ago complaint followed particularly claim 1994 contacted crime stopper told police woman assault upon week later policeman contacted stated making inquiry month later policeman informed lapse time since alleged act committed nothing could done 7 august 2000 applicant admitted box hill hospital treatment self inflicted injury hospital disclosed experience sexual molestation 1 september 2000 made detailed statement assault police box hill police station claim know existence criminal injury compensation scheme counselled advised box hill hospital august 2000 8 statement police made 1 september 2000 exhibit g applicant said tried tell parent occurred given beating response believed lying childhood lived mother stepfather three brother one sister claim stepfather subjected physical mental abuse often punched kicked also claim occasion stepfather attempted suffocate thrown house age 15 thereafter survived sleeping house friend railway station 9 1990 applicant claim diagnosed intellectual disability although said aware diagnosis 1997 1998 first saw copy relevant report longstanding drug alcohol abuse problem claim began drinking alcohol time sexual assault occurred furthermore used marijuana approximately 13 14 year age later moved harder drug amphetamine history self mutilation belief commenced 1992 admitted psychiatric hospital approximately 23 year old involuntary patient prescribed anti psychotic drug number occasion unsuccessfully attempted undergo rehabilitation programme salvation army known bridge programme 1997 1998 participated detoxification programme dandenong hospital cleland street clinic november 1999 march 2000 attended counselling session eastern drug alcohol service counsellor service referred south eastern centre sexual abuse 10 august 2000 act self mutilation admitted box hill hospital also attended forest hill medical centre received medical counselling subsequently underwent counselling south eastern centre sexual abuse 11 forensic psychologist mr maurice whitta examined 30 january 1990 motif circumstance offence report dated 1 february 1990 exhibit said boy intellectually 11 year old handicapped low level every day skill follows low intelligence marked personality weakness reflect upbringing family broke twice 16 learned use alcohol ease misery handicap trouble largely sober harmless well meaning court take treatment approach likelihood offending strengthened 12 also assessed psychologist mr ives undated report mr ives said formed opinion abuse fact take place left confused mind sexuality nature relationship adult increasingly preyed mind subsequent year one factor left angry feeling alienated society mr hay suffers number disadvantage including limited level intelligence deforming disease neuro fibromatosis mother neglected shockingly brutalised childhood hand stepfather resulting extremely emotionally reactive personality together alcohol problem 13 letter dated 14 february 2001 janet rayner drug alcohol counsellor eastern drug alcohol service exhibit k writer expressed following opinion mr hay continues struggle hazardous alcohol abuse dependency issue expressed desire continue address problem counselling medical option detoxification rehabilitation 14 medical practitioner dr p cheung applicant consulted report dated 7 february 2001 confirmed applicant patient medical centre practises since march 1999 suffered frequent alcohol induced psychosis uncontrollable temper rage depression went say counselling various psychological establishment traumatic childhood molested young age saw 29 august 2000 referred box hill hospital badly self mutilated forearm knife counselled length dressed wound need ongoing support counsellor 15 consultant forensic psychiatrist dr mark taylor assessed applicant 22 october 2001 approximately 70 minute concluded applicant suffer intellectual disability suffer mental disorder intermittently connected dependence upon alcohol said applicant suffered ongoing paranoia co morbid clinical depression minor depression two disturbance mental state construed mental illness believe large part consequent upon long standing dependence high daily dose alcohol furthermore view mr hay self destructive behaviour including alcoholism reflection self loathing low self esteem feel latter state believe related victim earlier abusive experience note addition alleged sexual abuse mr hay unhappy child family home school appears absence positive parental role model common reason delay reporting crime sexual nature victim various time denial regarding happened also plagued feeling guilt self disgust exacerbated reporting process stated opinion mr hay suffered psychological injury result act violence committed although early distressing experience home school cannot overlooked regard adult difficulty addition believe highly probable mr hay suffered significant adverse effect direct result offence committed concerned mr hay appears formal psychological therapy difficulty point also feel mr hay requires urgent attention alcohol dependence would best placed residential alcohol detoxification rehabilitation program 16 applicant extensive criminal record exhibit save one drink driving offence seemed stop offending 1997 shortly married evidence many offence related alcohol drug addiction regard record appears probable 17 applicant married april 1998 two infant child save drink driving offence referred offended since married maintains considerably reduced intake alcohol presented one anxious pursue solution addiction problem reform life extensive tattooing body indicated wish tattoo removed child would see impede employment opportunity currently sole income disability pension 18 put psychiatrist dr taylor applicant might applied earlier compensation earlier reported offence police replied physically able done arguably emotionally able said although uncertain role denial case fact victim sexual assault difficulty reporting common victim disclose experience long period even circumstance supportive family applicant dr taylor expressed view applicant marriage appears protective supportive 19 applicant seek order assistance pursuant 8 2 act expense actually incurred reasonably likely incurred primary victim reasonable counselling service section 8 3 follows exceptional circumstance may also included amount awarded primary victim within limit set sub section 1 amount expense actually reasonably incurred reasonably likely incurred primary victim assist recovery act violence 20 pursuant measure applicant seek amount specifically cost removal tattoo cost purchase computer cost visiting biological father 21 deal firstly application extension time 22 view combination following factor constitute acceptable excuse applicant failure report criminal assault upon earlier time also constitute acceptable explanation failure apply criminal injury compensation earlier assault occurred whilst applicant child perpetrated adult ii applicant brought circumstance neglect brutality iii endeavoured report assault parent accused lying beaten iv cast home young man v abused drug alcohol child continued adult vi although suffer intellectual disability le normal intelligence vii suffers psychological illness 23 although dr taylor concluded suffer intellectual disability find mental disorder forensic psychologist mr whitta found limited level intelligence psychologist mr ives also evidence suffered deforming disease known neurofibromatosis also known von recklinghausen disease although condition unrelated criminal assault perpetrated upon 24 extend time circumstance would opinion fair equitable especially circumstance regard medical opinion expressed seems claim merit issue unsettling people although must conceded view length time elapsed since act violence perpetrated delay would probably give rise disadvantage police pursuit perpetrator however opinion consideration outweighed circumstance explain delay case delay constitute threat capacity tribunal make decision matter 25 determining whether make award assistance amount assistance award tribunal must regard following character behaviour including past criminal activity number nature finding guilt conviction attitude applicant time whether commission act violence b c whether applicant provoked commission act violence extent act violence proportion provocation condition disposition applicant directly indirectly contributed injury death e whether person act violence committed alleged committed benefit directly indirectly award f circumstance considers relevant 54 26 appears extensive criminal record applicant large part probably related consequence addiction recent year appears made genuine effort reform since marrying two child endeavoured find useful employment demonstrated keen desire support family suggestion child provoked act violence perpetrated upon demonstrated condition disposition directly indirectly contributed resultant injury suggestion perpetrator stand benefit way award made applicant 28 regard circumstance appropriate tribunal set aside decision respondent determine application assistance heard time determined applicant awarded amount way reimbursement ongoing reasonable counselling service however evidence establish reasonable nature extent cost service circumstance necessary remit matter respondent determination issue 26 turn applicant claim amount cover cost removal tattoo cost purchase computer cost visiting biological father act contemplates award may made exceptional circumstance insufficient evidence warrant conclusion balance probability expense purchasing computer visiting biological father assist recovery particular act violence perpetrated upon 27 applicant uncontested evidence tattoo neck hand stomach chest back leg neck hand obvious also evidence acquired age 16 wanted body one would come near 28 upon observing tattoo neck hand difficult accept reasonableness concern extent tattoo visible upon job interview would inevitably constitute impediment obtaining employment time clear enough obtaining employment likely key element applicant recovery opinion constitutes exceptional circumstance warrant order made pursuant section 8 3 act 29 consider would keeping object act award amount applicant meet cost removal tattoo neck hand otherwise since evidence amount cost appropriate remit matter respondent determination payment proper amount accordance reason decision act 30 respondent shall pay applicant cost application assessed upon scale county court scale taxed default agreement john galvindeputy president

Re Townsend Controls Pty Ltd; Gideon Gilead and Dotan Gilad v Gideon Gilead and Dotan Gilad; James Dunstone Townsend; Townsend Controls Pty Ltd and Vinidex Tubemakers Pty Ltd [1989] FCA 190 (26 May 1989).txt

townsend control pty ltd gideon gilead dotan gilad v gideon gilead dotan gilad james dunstone townsend townsend control pty ltd vinidex tubemakers pty ltd 1989 fca 190 26 may 1989 federal court australiare townsend control pty ltd gideon gilead dotan giladand gideon gilead dotan gilad james dunstone townsend townsend control pty ltd vinidex tubemakers pty ltdno g84 1988fed 263practice procedurecourtin federal court australiasouth australia district registrygeneral divisionvon doussa j 1 catchwordspractice procedure security cost application cross respondent cross claimant cross claimant resident outside jurisdiction meaning applicant federal court rule 28 r 3 1 principal action brought patent act 1952 121 respect threat proceeding infringement cross claimant holder patent cross claim damage infringement whether cross claimant substance party attacking policy behind patent act 121 federal court australia act 1976 56 59federal court rule 28 r 3 1 patent act 1952 121willey v synan 1935 hca 76 1935 54 clr 175neck v taylor 1893 1 qb 560buckley v bennell design construction pty ltd 1974 1 aclr 301john arnold surf shop pty ltd liquidation v heller factor pty ltd allert 1979 22 sasr 20specialised building material pty ltd v eu occusted pty ltd 1981 37 actr 8bell wholesale co ltd v gate export corporation 1984 fca 34 1984 2 fcr 1barton v minister foreign affair 1984 fca 126 1984 54 alr 586energy drilling inc v petroz nl or g 1361 1988 gummow j 3 may 1989 unreported skinner co v perry 1893 10 rpc 1mechanical service trailer engineer limited v avon rubber co ltd 1977 94 rpc 66hearingadelaide26 5 1989counsel applicant cross respondent mr p mcnamarasolicitor applicant cross respondent fisher jeffriescounsel respondent cross claimant mr c kennellysolicitor respondent cross claimant knox hargraveorderthe cross claimant give security cost cross respondent amount 15 000 take proceeding 31 july 1989 security form agreed solicitor party failing form acceptable district registrar liberty granted cross respondent apply seek security respect proceeding 1 august 1989 subject cross respondent filing serving defence cross claim revocation cross claim stayed security provided cost present motion cost substantive proceeding liberty apply note settlement entry order dealt order 36 federal court rule decisionthis motion security cost cross respondent cross claimant 2 principal action townsend control pty ltd seek injunctive relief damage pursuant 121 patent act 1952 first respondent respect threat proceeding infringement australian letter patent number 516536 australian patent invention drip irrigation tube common ground townsend control pty ltd claim developed australia drip irrigation tube known vinitape applied patent protection townsend control pty ltd entered licence agreement vinidex tubemakers pty ltd pursuant latter company manufacturing selling vinitape australia first respondent registered proprietor australian patent various letter threatened action infringement townsend control pty ltd vinidex tubemakers pty ltd others distribute use vinitape 3 application principal proceeding served leave court first respondent israel citizen resident country interlocutory proceeding subsequently emerged second respondent joined respondent course application townsend control pty ltd interlocutory injunction acquired twenty five per cent interest australian patent first respondent father second respondent also citizen resident israel 4 respondent defence principal action alleges threat justified vinitape product infringes australian patent cross claim seek cross claimant relief infringement australian patent original applicant townsend control pty ltd james dunstone townsend vinidex tubemakers pty ltd joined action cross respondent extensive particular alleged infringement recently given cross claimant timetable set completion interlocutory step time allowed cross respondent file defence cross claim seeking revocation yet expired however common ground decide present application footing cross respondent seek revocation australian patent 5 affidavit support application security cost provides prima facie evidence cross claimant asset within jurisdiction answering affidavit cross claimant asserted impecunious order security would frustrate cross claim earlier affidavit file disclose israel convention country within meaning federal court rule present notice motion argued footing statutory procedure israel would enable cross respondent successful cross claim register enforce judgment order cost israel suggested material court court form view one way merit contention party cross claim 6 cross respondent rely particular 28 r 3 1 federal court rule provides 3 1 proceeding appears thecourt application respondent applicant ordinarily residentoutside australia b c court may order applicant give suchsecurity court think fit cost ofthe respondent incidental proceeding mr p mcnamara appeared cross respondent submits applicant includes cross claimant respect cross claim conceded cross claim substance part defence principal action security cost ordered cross claimant however submitted substance cross claimant attacker litigation treated applicant may properly ordered give security cost cross respondent rely particular willey v synan 1935 hca 76 1935 54 clr 175 case order security cost made plaintiff resident outside jurisdiction set aside ground substance position defendant proceeding plaintiff commenced proceeding recover coin seized custom receiving notice unless recovery proceeding instituted coin would condemned latham c j pp 179 180 said plaintiff contends even isordinarily resident beyond jurisdiction isreally party attacked party attacking therefore substantially theposition defendant orderedto give security cost held inmaatschappij voor fondsenbezit v shell transportand trading co 1923 2 kb 166that courtwhen considering application security forcosts guided substance bythe form matter court orderssecurity cost foreign attacker foreigner defending hisproperty attack 1923 2 kb p 177 thus interpleader proceeding party isa defendant issue substantiallyin position plaintiff initiating anaction foreigner residing abroad mayproperly ordered give security cost though general rule defendant cannot beordered give security tomlinson v landand finance corporation 1884 14 qbd 539 mere convenience litigant residesabroad made plaintiff interpleader issue substantially occupy positionof plaintiff commencing action notbe ordered give security cost belmonte v aynard 1879 4 cpd 221 dixon j p 184 said principle party judicialproceedings resides beyond jurisdiction required give security costsunless however party arranged upon therecord person invoking resorting tothe jurisdiction purpose establishingrights obtaining relief availhimself remedy jurisdiction providesin order obtain affirmative relief redress may ordered give security although hebecomes defendant action 7 mr mcnamara contended even though one cross respondent townsend control pty ltd initiated principal proceeding even though three cross respondent intended seek revocation australian patent reality party attacked cross claimant disturbed australian market vinitape first making threat infringement proceeding protective action taken townsend control pty ltd threat 121 cross claimant attacked cross claim infringement proposed claim revocation submitted nature response attack cross respondent contend proper course cross claimant pursued commence proceeding first place infringement done clearly 28 r 3 1 would applied applicant 8 cross claimant opposed order mr kennelly behalf presented able argument genesis court appeal decision neck v taylor 1893 1 qb 560 lord esher r p 562 said counter claim put forward respectof matter wholly distinct claim andthe person putting forward foreignerresident jurisdiction case may betreated person plaintiff andonly plaintiff order security forcosts may made accordingly absence ofanything contrary however thecounter claim respect whollydistinct matter arises respect samematter transaction upon claim isfounded court merely theparty counter claiming resident thejurisdiction order security cost willin case consider whether counter claim isnot substance put forward defence theclaim whatever form point strict law ofpleading may take allthe circumstance fair betweenthe party act accordingly therefore court case adiscretion clear presentcase counter claim respect amatter wholly distinct independent ofthat upon claim based thecontrary arises sametransaction respect action isbrought lindley l j p 563 said opinion matter set inthe counter claim appear anature closely connected cause ofaction whatever according legaltechnicalities may called insubstance nature defence action lope l j p 563 said case kind ought think haveregard much record construedaccording strict rule pleading tothe substantial position party therecord bearing mind seems methat fact set counter claim inthe nature defence arising ofthe set circumstance claim andtherefore would right require thedefendant find security cost although sheis resident abroad 9 neck v taylor followed court appeal new south wale buckley v bennell design construction pty ltd 1974 1 aclr 301 full court south australia john arnold surf shop pty ltd liquidation v heller factor pty ltd allert 1979 22 sasr 20 useful illustration application neck v taylor may also found specialised building material pty ltd v e u occusted pty ltd 1981 37 actr 8 10 mr kennelly argued present case form proceeding reflect substantial position party proceeding initiated 121 patent act section term make clear defence respondent prove act respect proceeding threatened constitute done would constitute infringement patent defence filed respondent principal action pleads fact infringement defence cross claim arises matrix fact cannot treated submitted wholly distinct principal proceeding position cross claimant therefore likened plaintiff counter claim neck v taylor 11 power order security cost found in 56of thefederal court australia act 1976 section empowers court judge order plaintiff give security cost notion plaintiff includes plaintiff strict technical sense party substance party invoking court jurisdiction purpose establishng right obtaining relief sense laid willey v synan neck v taylor 12 order 28 r 3 promulgated pursuant rule making power sub 59 1 thefederal court australia act limit general discretionary power conferred bys 56 bell wholesale co ltd v gate export corporation 1984 fca 34 1984 2 fcr 1at 3 even case party order security cost sought substance clearly applicant meet description 28 r 3 1 court discretion refuse order security barton v minister foreign affair 1984 fca 126 1984 54 alr 586and energy drilling inc v petroz nl or g 1361 1988 gummow j 3 may 1989 yet unreported however cross claimant court applicant action infringement australian patent present cross respondent think would proper exercise discretion order give security cost regard particular absence evidence order frustrate claim likely difficulty cross respondent would encounter succeeded endeavoured enforce order cost israel however proceeding developed 13 important view regard policy consideration lie behind 121 patent act section designed protect manufacturer trader patentee licencees others seeking obtain extend monopoly unwarranted allegation infringement threat proceeding skinner co v perry 1893 10 rpc 1at p 8 bowen l j said legislature desire threat patentactions shall hang man head thatthe sword damocles case shouldeither suspended fall section 121 provides statutory machinery enable party threatened bring sword provision 121 give right patentee make threat purpose section contrary provide statutory remedy person threat made patentee embarks self help measure instead enforcing claimed monopoly instituting proceeding infringement position helpfully stated graham j mechanical service trailer engineer limited v avon rubber co ltd 1977 94 rpc 66at pp 74 75 although wording section might beclearer heading first sight may createthe impression giving right thepart person making threat ifsuch threat ultimately shown bejustified judgment correctview legal effect section construedas whole context patent act 1949 uk patentee first proper remedy heconsiders defendant infringing bringan action infringement without making anythreats however life ofthe market place doubt counsel perfectionand patentee traveller human theyare doubt threat potential defendantswill continue made mean tosay law approves action already stated obviously cause seriousdamage often difficult impossibleto recover hand goodreason saying patentee prof thathis patent valid infringed adefendant ought liable action fordamages respect threat able inany action brought virtue section toshow justified section therefore give theperson threatened plaintiff right todamages injunction continuanceof threat question unless personmaking threat defendant able tojustify action section section give right plaintiff notto defendant latter given ashield defence able successfully toprove justification given rightto make threat even fact ultimatelyturns justified patentee canperfectly well bring action infringementwithout making threat 14 view mr mcnamara correct submitting substance attacker proceeding court cross claimant first instance commenced proceeding infringement australian patent mean endeavoured enforce right australia monopoly say virtue australian patent detect difference statement principle willey v synan neck v taylor however fact willey v synan closely analogous instant case 15 circumstance satisfied cross respondent made case order security cost cross claimant 16 far considered matter footing james dunstone townsend vinidex tubemakers pty ltd stand position townsend control pty ltd however james dunstone townsend vinidex tubemakers pty ltd brought proceeding cross respondent party principal proceeding mr townsend managing director townsend control pty ltd may well close interest shareholder otherwise fortune townsend control pty ltd however alone sufficient ground disregarding independent corporate identity townsend control pty ltd relationship mr townsend townsend control pty ltd one hand vinidex tubemakers pty ltd hand far clear information court argument addressed cross claimant opposition order security cost appear irrelevant position vinidex tubemakers pty ltd 17 amount security ordered another question three week commencing 21 august 1989 set aside trial footing trial occupy period solicitor cross respondent deposed estimate likely cost three cross respondent estimate however appears solicitor client basis clear whether estimate includes cost already incurred much would relate hearing interlocutory injunction made respondent think order security cost include cost referable principal proceeding relief 121 order relate cost incurred cross respondent respect infringement proceeding cross respondent propose merely defend cross claim seek revocation relief may raise issue raised cross claim think order security cost extend issue peculiar claim revocation stage pleading closed decision made whether trial august confined question liability trial date approach issue determined become clearer 18 stage therefore propose order cross claimant give security cost cross respondent amount 15 000 take proceeding monday 31 july 1989 security form agreed solicitor party failing agreement form acceptable district registrar grant liberty cross respondent apply seek security respect prosecution proceeding 1 august 1989 also order subject cross respondent filing serving defence cross claim revocation cross claim stayed security provided 19 cost present motion cost substantive proceeding liberty apply

General Mills Manufacturing Australia Pty Ltd [2015] FWCA 2065 (25 March 2015).txt

general mill manufacturing australia pty ltd 2015 fwca 2065 25 march 2015 2015 fwca 2065fair work commissiondecisionfair work act 2009s 185 enterprise agreementgeneral mill manufacturing australia pty ltd ag2015 222 general mill manufacturing pty ltd mt waverly maintenance enterprise agreement 2014manufacturing associated industriescommissioner ryanmelbourne 25 march 2015application approval general mill manufacturing pty ltd mt waverly maintenance enterprise agreement 2014 1 application made approval enterprise agreement known thegeneral mill manufacturing pty ltd mt waverly maintenance enterprise agreement 2014 agreement application made pursuant tos 185of thefair work act 2009 act made general mill manufacturing australia pty ltd agreement single enterprise agreement 2 undertaking given relation clause 38 11 agreement undertaking become term agreement accordance withs 191 1 act appended appendix 3 satisfied requirement ofss186 187and188as relevant application approval met 4 automotive food metal engineering printing kindred industry union known australian manufacturing worker union amwu communication electrical electronic energy information postal plumbing allied service union australia cepu bargaining representative agreement given notice unders 183of act want agreement cover required bys 201 2 note agreement cover amwu cepu 5 consultation term enterprise agreement meet requirement ofs 205 1 1a thefair work actas amended 1 january 2014 therefore accordance requirement ofs 205 2 act model consultation clause set schedule 2 3 fair work regulation taken term agreement model consultation clause attached appendix b 6 agreement approved accordance 54 1 operate 1 april 2015 nominal expiry date agreement 30 september 2017 commissionerprinted authority commonwealth government printer price code j ae413221pr562414 appendix aappendix bvar _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

DPP v Tuite (Ruling No 3) [2017] VSC 442 (11 August 2017).txt

dpp v tuite ruling 3 2017 vsc 442 11 august 2017 last updated 26 may 2021in supreme court victorianot restrictedat melbournecriminal division cr 2014 0007the director public prosecutionsvclinton tuite judge hollingworth jwhere held melbournedate hearing 22 23 june 2017date ruling 11 august 2017case may cited dpp v tuite ruling 3 medium neutral citation 2017 vsc 442 evidence admissibility expert evidence dna evidence application exclude prosecution dna evidence probative value whether admission dna evidence would give rise unfair prejudice accused application refused evidence act 2008 vic 137 appearance counselsolicitorsfor dppdr n rogers qcsolicitor public prosecutionsfor accusedmr j desmonddoogue brien georgeher honour background1 accused charged aggravated burglary attempted rape indecent assault causing injury intentionally charge arise incident occurred early hour 13 october 2007 home complainant 2 primary issue trial identity offender prosecution seek rely dna evidence derived item located near complainant home prove accused offender dna evidence conventionally presented form likelihood ratio express mathematical term likelihood particular person contributed detected dna sample compared person chosen random calculating likelihood ratio dna sample scientist victoria police forensic science service used statistical software program called strmix 3 strmix developed scientist australia new zealand used new zealand australian state territory introduced victoria 2013 4 various aspect dna evidence subject earlier application interlocutory appeal 23 day july october 2014 emerton j heard application defence exclude prosecution dna evidence eitherss 79or137of theevidence act 2008 vic heart application proposition strmix methodology new science largely untested generally accepted forensic science community 19 december 2014 emerton j dismissed defence application ruling 1 1 12 june 2015 court appeal dismissed interlocutory appeal ruling 1 2 b three day may june 2015 emerton j heard application prosecution limit scope evidence could given m jane taupin biological scientist proposed called defence 25 june 2015 emerton j ruled ruling 2 m taupin specialised mathematical statistical knowledge enable express opinion strmix prosecution took objection 3 16 july 2015 court appeal refused defence leave appeal ruling 2 4 c three day april 2017 emerton j held abashahearing enable defence cross examine two key prosecution dna expert dr duncan taylor professor david balding 5 2 may 2017 lasry j listed charge trial commencing 23 october 2017 fifth time charge listed trial previous trial date vacated due earlier application interlocutory appeal 6 current application argued 22 23 june 2017 defence sought exclude evidence dr taylor professor balding unders 137of theevidence actbecause 5 content pcast material shall refer shortly b strmix utilises something called product rule particular circumstance defence say inappropriate 7 direction hearing 21 july 2017 indicated would refusing application reason published future date reason 8 considering two ground necessary briefly describe dna evidence strmix methodology prosecution evidence9 prosecution seek rely trial result analysis dna derived following item seized police crime scene item 1 1 1 2 1 3 three sample taken makeshift blindfold offender placed complainant eye blindfold found floor outside complainant laundry b item 4 1 trace sample taken seven cable tie type used restrain complainant hand cable tie found complainant bathroom floor c item 5a 1 portion filter one cigarette butt found ground neighbouring property item 5b 1 portion filter second cigarette butt found fence neighbouring property 10 prosecution analysis item 1 1 1 2 1 3 contain mixed dna profile three contributor item 4 1 contains partial mixed dna profile least two contributor item 5a 1 5b 1 show single source contributor 11 using strmix result dna analysis six sample yielded extremely high likelihood ratio point accused contributor case item 5a 1 5b 1 sole contributor item 12 dna analysis complex one contributor sample 6 dna low quality 7 quantity 8 emerton j discussed problem case following term dna crime scene sample low quality quantity profile may ambiguous low template dna profile likely exhibit stochastic random effect complicating interpretation affect may include drop peak profile true allele conversely allele may go missing drop profile producing partial profile 9 13 honour went explain strmix work purport account many random effect dna profile 10 also explained difference probabilistic fully continuous methodology strmix one hand binary methodology used historically unnecessary present purpose reproduce paragraph refer detail 14 prosecution proposes call number witness give evidence relation different aspect dna evidence two expert relevant purpose current application dr taylor professor balding dr taylor principal forensic scientist forensic statistic forensic science sa one co inventor strmix professor balding professor statistical genetics university melbourne university college london general term give evidence mathematical statistical model underpinning strmix validation probabilistic genotyping software pcast groundthe status pcast materials15 pcast president council advisor science technology american body describes advisory group nation leading scientist engineer appointed president augment science technology advice available inside white house cabinet document federal agency pcast consulted often make policy recommendation concerning full range issue understanding domain science technology innovation bear potentially policy choice president 11 16 september 2016 pcast published lengthy report entitled forensic science criminal court ensuring scientific validity feature comparison method 160 page report concerned matter general scientific methodology validity one 10 chapter chapter 5 headed evaluation scientific validity seven feature comparison method relevant one seven method dealt eight page report heading 5 2 dna analysis complex mixture sample 17 6 january 2017 pcast published short document entitled addendum pcast report forensic science criminal court addendum said developed address input received stakeholder since publication pcast report specifically considered feedback received relation five seven method one dna analysis complex mixture 18 pcast report addendum collectively pcast material appear represent collective work large number scientist various field well judge lawyer possible tell authored contributed particular part qualification author contributor relation particular field science including dna analysis 19 thebashahearing april 2017 defence put pcast material dr taylor professor balding cross examination witness agreed disagreed opinion expressed pcast material refusal exclusion application prevent defence cross examining prosecution witness pcast material trial 20 pcast material marked identification purpose currentvoir direapplication whether defence able call anyone trial give evidence support opinion expressed pcast material remains seen 21 matter first came direction 25 may 2017 defence yet made attempt contact anybody pcast see could find suitably qualified expert could give relevant evidence 22 purpose thevoir dire proceeded assumption pcast material represented evidence suitably qualified defence expert would able give although hypothetical proceed assumption seemed fairest safest way proceed would allow defence application interlocutory appeal heard determined whilst minimising risk trial date would adjourned event defence manage obtain late expert report supporting opinion expressed pcast material 23 fact direction hearing 21 july 2017 completion thevoir dire defence counsel informed making numerous inquiry person may involved preparation pcast material thought unlikely defence would able call witness either video link person content pcast materials24 chapter 5 2 pcast report began general description problem inherent analysing complex mixture dna importance properly calculating statistical weight given probability 25 pcast report noted initial approach interpretation complex mixture relied upon subjective judgment examiner together use simplified statistical method combined probability inclusion cpi author highly critical subjective judgment approach use cpi concluding method clearly foundationally valid 26 pcast report discussed various probabilistic genotyping computer program developed order bring objectivity analysis report noted march 2014 least 8 program developed including strmix report described program clearly representing major improvement purely subjective interpretation said still required careful scrutiny determine whether method scientifically valid including defining limitation reliability b whether software correctly implement method 27 report said appropriate evaluation proposed method consist study multiple group associated software developer investigated performance defined limitation program testing wide range mixture different property identified four particular issue said addressed part evaluation stating follows number paper published analyze known mixture order address issue two point noted study first study evaluating software package undertaken software developer completely appropriate method developer evaluate method establishing scientific validity also requires scientific evaluation scientific group develop method second comparative study across method evaluate difference among knowledge comparative study conducted independent group importantly current study adequately explored limited range mixture type respect number contributor ratio minor contributor total amount dna two widely used method strmix trueallele appear reliable within certain range based available evidence inherent difficulty problem specifically method appear reliable three person mixture minor contributor constitutes least 20 percent intact dna mixture dna amount exceeds minimum level required method complex mixture eg contributor lower proportion relatively little published evidence study published likely possible extend range scientific validity established include challenging sample 12 28 end ofpart 5 2 pcast report made following relevant finding finding 3 dna analysis complex mixture samplesfoundational validity pcast find 1 cpi based method 2 probabilistic genotyping objective analysis complex dna mixture probabilistic genotyping software relatively new promising approach empirical evidence required establish foundational validity method within specified range present published evidence support foundational validity analysis program dna mixture 3 individual minor contributor constitutes least 20 percent intact dna mixture dna amount exceeds minimum required level method range foundational validity established likely grow adequate evidence complex mixture obtained published 13 29 9 page pcast addendum addressed matter general principle relating type feature comparison method expert evidence pcast affirmed general principle justification accepting method valid reliable absence appropriate empirical evidence addendum examined five seven method evaluated pcast report one dna analysis complex mixture discussion dna analysis addendum brief seven paragraph 30 addendum described previous finding dna analysis follows pcast found empirical testing probabilistic genotyping largely limited narrow range parameter number ratio contributor judged available literature supported validity reliability probabilistic genotyping sample three contributor person interest comprises least 20 sample beyond approximate range ie larger number contributor person interest make lower 20 contribution sample however little empirical validation 14 31 original report pcast said theminor contributorwho contribute le 20 dna sample whereas addendum said theperson interestwho make minimum contribution nothing addendum material court explains change made apart change addendum repeated available literature supported validity reliability probabilistic genotyping certain circumstance 32 addendum briefly mentioned submission made several interested party including strmix developer concluding path forward straightforward validity specific probabilistic genotyping software validated testing diverse collection sample within well defined range dna analysis field contains excellent scientist capable defining executing analyzing empirical study considering admissibility testimony complex mixture complex sample judge ascertain whether published validation study adequately address nature sample analysed eg dna quantity quality number contributor mixture proportion person interest 15 submission concerning pcast materials33 defence submitted pcast material stood proposition although probabilistic genotyping software may variously described good science developing science promising science relied upon court sufficient independent empirical study carried person independent developer defence submitted pcast weighty authority proposition study done relation probabilistic genotyping software including strmix submitted prosecution dna evidence seen highly probative august body pcast put real cloud probabilistic genotyping 34 question tenor pcast material independent empirical study undertaken relation type forensic science including dna analysis complex sample 35 however defence counsel essentially wanted court ignore part pcast material stated available literaturedidsupport validity reliability probabilistic genotyping strmix certain circumstance namely three contributor person interest comprises least 20 sample thebashahearing dr taylor professor balding accept sound reason pcast imposed particular limitation also noted explanation given making change minor contributor person interest however professor balding dr taylor clearly agreed broader pcast proposition namely validity reliability software including strmix established circumstance defence counsel sought rely taylor balding criticism limitation persuade reject ignore part pcast material said validity reliability probabilistic genotyping software established circumstance submission involved selectively picking part pcast material suited defence case ignoring part 36 prosecution also submitted part pcast material critical state validation study probabilistic genotyping software given limited weight pcast material either pre dated failed regard relevant independent validation study example given prosecution witness thebashahearing included published independent study fbi comparative exercise performed forensic regulator uk european network forensic science agency 37 essence defence submission prosecution dna evidence little probative value pcast material seriously undermined reliability 38 submission must fail several reason first discussed pcast material accept validity strmix certain specified circumstance 16 nowhere near critical defence suggested secondly even pcast material construed artificial way contended defence prosecution evidence pcast may date understanding state empirical research rapidly evolving area thirdly importantly assessing probative value dna evidence court required assume reliability evidence 39 time ruling 1 appeal therefrom assessing probative value evidence victorian court required assume truthfulness reliability evidence 17 accordingly assessing probative value prosecution dna evidence emerton j considered defence four ground attack reliability evidence 40 one four ground attack evidence alleged unreliable lack consensus broad dna scientific community reliability strmix lack comparison statistical methodology independent review assessment paucity validation study particularly given low level amount dna issue 18 emerton j accepted matter went potentially reliability likelihood ratio generated strmix 19 however noted like reliability argument raised defence contest expert evidence called either side would jury resolve 20 41 emerton j carefully evaluated evidence relating attack reliability dna evidence concluding dna evidence viewed whole highly probative may used jury put accused inside outside house night question notwithstanding small amount dna matching accused found relevant item inside house people also contributed dna found item limitation strmix methodology acknowledged prosecution witness must effect quality dna evidence however persuaded erode probative value significant degree whilst amount dna may small case fact dna matching accused found number item inside outside house view fortifies overall probative value dna evidence ass high 21 42 court appeal held conclusion well open evidence honour 22 43 attack based pcast material extent another iteration ground discussed 40 23 even required assume reliability evidence purpose application good reason put forward would cause come different conclusion honour 44 since appeal ruling 1 high court determined inimm v queen 24 assessing probative value evidence purpose ofs 137 trial judge assume jury accept evidence highest thus regard credibility reliability evidence 45 defence counsel sought rely upon following passage majority reason inimm must also understood basis upon trial judge proceeds jury accept evidence taken highest distort finding real probative value evidence circumstance surrounding evidence may indicate highest level high example given jd heydon qc identification made briefly foggy condition bad light witness know person identified identification weak one simply unconvincing 25 46 circumstance surrounding prosecution dna evidence case way analogous mr heydon qc foggy night example 47 reason find prosecution dna evidence high probative value 48 next matter considered whether pcast material given rise risk unfair prejudice whether outweighs probative value 49 evidence unfairly prejudicial accused merely make likely convicted unfair prejudice may arise number way example evidence lead jury adopt illegitimate form reasoning give evidence undue weight 50 defence primary complaint dr taylor professor balding thebashahearing referred unpublished study produced identified sufficient clarity particular professor balding disagreed proposition put cross examination taken pcast report comparative study conducted independent group said taken part several comparative exercise european network forensic science agency forensic regulator uk also done comparative exercise strmix trueallele 51 following exchange occurred defence counsel professor balding identify study please well unfortunately said aware published used agency internal reason circulated different group conducted independently body forensic regulator uk conducted one study want independent witness review noble person say yes case broadly agree enough comparative study exist aware published unfortunate involved enough form know opinion based comparison information public yes unfortunate yes 26 52 queried whether professor balding would anticipating asked detail information time defence counsel replied well probably 27 defence counsel conceded defence sought detail comparative study either professor balding prosecution matter followed either side prior trial trial expert side asked identify produce information support respective opinion unable side invite jury give little weight particular opinion failure provide suitable supporting evidence also subject appropriate direction warning trial judge necessary persuaded unfairness relation aspect capable remedied prior addressed trial 53 defence counsel tried raise several matter said give rise danger unfair prejudice abandoned pointed attempt agitate matter already ruled upon emerton j nothing pcast 54 one slightly different point albeit nothing pcast defence counsel argued called csi effect would give rise possibility jury placing undue weight prosecution dna evidence case involving scientific evidence trial judge must alert need ensure jury able understand ass evidence give warning direction may needed ensure jury give undue weight scientific evidence 55 ruling 1 emerton j rejected defence argument risk unfair prejudice dna evidence would difficult jury understand honour concluded perceived prejudice might arise complexity evidence could addressed strong direction jury must act strmix conclusion unless wholly satisfied soundly based evidence heard understood 28 defence explained strong direction type envisaged emerton j would sufficient counteract csi effect case particularly given case clear jury differing scientific opinion 56 reason persuaded evidence dr taylor professor balding excluded unders 137on basis pcast material product rule57 defence also seek exclusion evidence unders 137 basis strmix utilises something called product rule case allelic drop out 58 supplementary statement dated 17 april 2015 dr taylor set mathematical equation used strmix program explained various assumption underlie equation 59 strmix applies well established mathematical rule called product rule probability mean probability multiplied defence criticise general use product rule strmix use relation allelic drop out 60 defence proposes call evidence professor ranajit chakraborty statistician geneticist university north texas health science centre paragraph 21 report dated 22 july 2016 professor chakraborty critical use product rule relation allelic drop out set understanding strmix take allelic drop account criticised believed lack acceptance validation treatment 61 supplementary report filed 2 september 2016 dr taylor responded chakraborty report according dr taylor professor chakraborty comment paragraph 21 demonstrated misunderstanding way strmix take allelic drop account furthermore even strmix operated manner asserted professor chakraborty dr taylor said would widespread acceptance validation approach 62 cross examination thebashahearing dr taylor professor balding explained disagreed professor chakraborty criticism use product rule relation allelic drop 63 necessary present purpose consider detail competing expert opinion regard clearly matter explored thoroughly trial however purpose ofs 137 required assume reliability prosecution evidence 64 also reject defence suggestion circumstance surrounding part prosecution dna evidence analogous mr heydon qc foggy night example discussed 45 65 reason discussed earlier dna evidence high probative value defence pointed separate risk unfair prejudice might flow admission part prosecution evidence 66 reason persuaded evidence dr taylor professor balding excluded unders 137 basis use product rule relation allelic drop 1 r v tuite 2014 vsc 662 2 tuite v r 2015 vsca 148 coa 1 3 r v tuite 2015 vsc 303 4 tuite 2 v r 2015 vsca 180 5 section 137of theevidence actprovides court criminal proceeding must refuse admit evidence adduced prosecutor probative value outweighed danger unfair prejudice accused probative value evidence mean extent evidence could rationally affect assessment probability existence fact issue 6 case sample item 5a 1 5b 1 7 item 4 1 low template dna amount analysed significantly le optimal amount 0 5 ng contributor item multiple contributor also produced low amount dna 8 item 1 1 4 1 produced partial incomplete profile 9 ruling 1 19 10 ruling 1 20 29 11 quote come preface pcast report 12 pp 80 81 pcast report 13 p 82 pcast report 14 p 8 pcast addendum 15 p 9 pcast addendum 16 present case item 1 1 1 2 1 3 three person sample according prosecution expert one would meet 20 threshold suggested pcast addendum would item 1 2 sample fewer three contributor 17 dupas v queen 2012 vsca 328 2012 40 vr 182 18 ruling 1 85 b 19 ruling 1 91 20 ruling 1 92 98 21 ruling 1 112 22 coa 1 123 23 three ground reliability attacked emerton j related alleged risk contamination sample whether validation study amplification kit manufacturer supported use low copy dna specific problem m taupin identified dna analysis item 24 2016 hca 14 25 immat 50 french cj kiefel bell keane jj 26 transcript 19 april 2017 p 85 27 transcript 22 june 2017 p 46 28 ruling 1 124

Surfers Palms North [2009] QBCCMCmr 358 (21 September 2009).txt

surfer palm north 2009 qbccmcmr 358 21 september 2009 last updated 9 october 2009reference 0292 2009order adjudicatormade part 9 chapter 6body corporate community management act 1997number scheme 20846name scheme surfer palm northaddress scheme 2 st kevins court benowa qld 4217take notice pursuant application made abovementioned act bydavid abbott dennis hayde alex nicol owner committee membersi hereby orderthat applicationis dismissed statement adjudicator reason decision ref 0292 2009 surfer palm north ct 20846applicationsurfers palm north community title scheme spn 61 lot scheme thebody corporate community management act act act saccommodation module regulation accommodation module application david abbott dennis hayde alex nicol owner committee member applicant body corporate spn respondent decisionbackgroundthe application initially lodged 26 march 2009 amended since date originally interim order sought stop body corporate holding annual general meeting 28 april 2009 without notice owner ultimately interim order granted allow independent third party call hold chair annual general meeting meeting held 25 august 2009 provided minute meeting final outcome soughtthe final outcome sought 1 cancellation surfer palm north annual general meeting agm possibly scheduled 28 april 2009 2 granting extension agm held date allows sufficient time committee nomination motion submitted owner preparation realistic budget based date current financial record 3 appointment administrator mr coralie mott ct management pty ltd judy gibson conduct agm look body corporate management committee established following agm 4 immediate cancellation agreement body corporate hold capital body corporate administration provide service body corporate immediate transfer body corporate book record mr coralie mott ct management pty ltd well immediate cancellation staff capital body corporate administration signatory body corporate bank account 5 immediate stop placed payment body corporate fund except payment essential service electricity monthly payment caretaker letting agent per caretaking agreement 6 appointment administrator m judy gibson position chairman body corporate committee agm 2010 provide opportunity management body corporate improved point committee able take full control effective financial management management complex place m gibson appointed one signatory approval payment conclusionit became obvious submission committee intend hold annual general meeting 28 april 2009 without notice owner however also obvious concern proposed annual general meeting called 26 may 2009 ultimately authorised independent third party call hold chair annual general meeting note interim order effectively gave applicant final outcome 1 2 relation final outcome 3 6 minute annual general meeting 25 august 2009 indicate new chairperson body corporate manager appointed owner exercised vote express preference appointed assist administration scheme appropriate grant outcome 3 6 background fact appears unlikely expressed ground even applicant would actively seek outcome 3 6 given outcome annual general meeting application therefore dismissed orderfor reason application dismissed

DPP v Goldson [2023] VCC 496 (24 March 2023).txt

dpp v goldson 2023 vcc 496 24 march 2023 last updated 8 may 2023in county court victoriarevisednot restrictedsuitable publicationat melbournecriminal jurisdictioncr 22 01119director public prosecutionsvrobert goldson judge honour judge murphywhere held melbournedate hearing 24 march 2023date sentence 24 march 2023case may cited dpp v goldsonmedium neutral citation 2023 vcc 496reasons sentence subject catchword legislation cited case cited sentence appearance counselsolicitorsfor director public prosecutionsms c paganisoffice public prosecutionsfor accusedmr ranjitpapa hughes lawyershis honour robert goldson pleaded guilty two indictable charge intentionally damaging property common law assault three summary charge committing indictable offence bail contravening condition bail entering private place without permission trespass maximum penalty set prosecution opening incorporate reference able deal matter summary manner due comprehensive written submission prosecution defence file circumstance offending set theprosecution opening read open court earlier morning offence occurred one day 10 january 2022 day placed intervention order living mother stepfather address brookfield western suburb melbourne incident 9thof january drug affected condition mother allowed return home use drug breached condition sought intervention order removed house following day 10th returned house breach order demanded property clothes told leave house proceeded break window house got house proceeded assault stepfather count common assault second charge breaking window charge 1 property without permission constitutes summary charge trespass also breaching conduct condition bail committing indictable offence bail offence arise single course conduct occurred 10 january related back day effectively banned house placed intervention order bail breach intervention order yet contrary condition bail immediately breached one condition go within 200 metre property address brookfield cut hand broke glass window ambulance called assessed provided minor first aid arrested custody ever since time result house refusing leave mother observed run away property caused grave distress plus sister happened property day victim impact statement stepfather got two punch face doubt caused pain whole circumstance offence counsel properly conceded absolutely unacceptable conduct drug affected offending invasion parent home proscribed going add spate offending mid range seriousness stepfather said filed victim impact statement victim impact statement mother indicates offending perhaps unsurprisingly caused major trauma put life 39 year old really feel safe incarcerated say see someone look like heart start palpitating feel though going vomit feel safe home incarcerated worried released come back impact offending take six week work suffers anxiety mentally tired indicates end victim impact statement tried look many time say many time witnessed psychotic state due substance abuse every time scared traumatised point non function day week end medication anxiety help sleep avo allow back house allow contact sister put similar victim impact statement happened time vivid flashback offending caused emotional state anxiety stress result conduct day forcing mother flee house fighting stepfather feel anxious stressed worried child say trauma stress affected work life attend work four week needed time calm nerve able concentrate must take account victim impact statement dealing offending go seriousness offending moral culpability offending relatively high drug affected drug affected past cannot say would aware drug affected cause lose impulse control get sort conduct explanation given offending counsel trying return told return home went back home get work boot clothes refused broke excuse provide explanation justify particularly given drug affected justify breaking window assaulting stepfather conduct day must considered light criminal record extensive go back approximately 20 year includes two significant sentence imprisonment one supreme court offence recklessly causing serious injury back december 2009 company got three half year sentence minimum two half year court 1 may 2014 charge recklessly causing injury received community correction order fortwo year assault partner mother two child two daughter placed judicial monitoring couple year judge montgomery indeed two year appear reoffended particular section impact duration community correction order 2017 come magistrate court offence recklessly causing injury effectively three count contravening family violence intervention order recently may 2021 magistrate court shop theft using threatening word failing answer bail extensive criminal record counsel pointed go seriousness offending go moral culpability go issue general deterrence specific deterrence protection community turn matter mitigation set comprehensive submission counsel incorporate reference personal circumstance set submission also report fromms mynard clinical psychologist indicated 39 come difficult upbringing clear early childhood trauma including sexual abuse longstanding impact complete secondary education parent separated early piece mother partnered domestic abuse relationship partnered course abused mother partner count assault prison year also number trip various rehabilitation facility seen psychiatrist year back clear report decision justice king supreme court case indeed decision judge montgomery court notwithstanding dropped school left school year 9 able work get apprenticeship successfully get apprenticeship boilermaker also obtained trade qualification including forklift licence worked manual labouring life counsel put period three four year offending working civil construction firm westgate tunnel indicated counsel would making good money job notwithstanding course using money use drug gambling led issue led offending took place recently charged using threatening word failing answer bail shop stealing 21 may 2021 ultimately using drug possibly period holiday work closed time hand christmas new year periodof 2022 went back using ice criminal acquaintance led offending employment background indicates indeed counsel put period relatively stable making good money rental property engaged child although separated mother productive member society came crashing late december 2021 got back drug custody since time 10 january 2022 counsel relied reference company appear operating aboriginal controlled company obviously form labour hire arrangement company seen good worker engagement result a2b personnel although current position available company trading indicate ability productive member society plea counsel tendered number certificate undertaken prison give credit get credit relatively early plea court appeal said offender plead guilty covid environment entitled perceptible amelioration sentence get perceptible amelioration sentence pleading guilty earliest possible opportunity number charge matter finally resolved following case conference court relatively early plea facilitated course justice taken responsibility conduct saved need number witness come trial although contested committal magistrate court little evidence remorse matter accept evidence insight offending obviously lot self pity particular circumstance got effectively lost ability contact mother sister even recently today apparently one brother going give accommodation refusing period since offending obviously going take continuing toll due loss contact family plea central issue whether period custody since arrestof really 14 half month sufficient sentence imprisonment offending least two unsuccessful bail application learned prosecutor helpful submission conceded term imprisonment required make submission one way whether term imprisonment required meet sentencing requirement thesentencing act 1991 vic prosecutor made important point unprovoked attack stepfather broken family home major victim impact must taken account counsel submission made point accept period custody covid period mean higher burden imprisonment period get locked couple week first go custody le movement within prison system program constrained relatively recently person addition limited family visit hopkins correctional centre long way melbourne child visit although available able see zoom call make term imprisonment onerous pre covid shall say addition 14 half month uncertainty remand regard quite significant lawyer seeking resolve matter really need position know face focus mind future psychological report m mynard indicates longstanding complex ptsd treated submitted counsel submitted reduction moral culpability offending basis complex pstd accept drug affected behaviour reduce moral culpability take account however deprived upbringing frombugmy v r 2013 hca 37case factor take account see psychological condition requiring reduction higher burden imprisonment people prison depressed alone obviously need community either job need continuing psychological therapy 39 must getting close period lot offender burn decide look worth got life expectancy probably another 40 year might well make productive read newspaper probably indicate community desperate people got skill get work former prime minister used say best form welfare job proved past able engage form welfare obviously high paid job engaging child rental property came crashing period 14 half month obviously given enough time dry far drug offending drug use concerned perhaps reflect life unsatisfactory gaol reflect released move forward engage child get back construction workforce good money made particularly given qualification past go back get forklift driver rigger ticket whatever said people screaming may able engage aboriginal organisation lot requirement people aboriginal background given preference contractor required certain percentage aboriginal worker book particularly public work able get back workforce give raison etre life might get go back using drug turning sentencing purpose obviously general deterrence important consideration sentence court got send signal people entitled break family house banned particularly intervention order put break window proceed punch stepfather got message sent drug affected people people part sentencing synthesis conduct discussed absolutely condemned people entitled live home kick people want even family expect abide law try break assault people involved specific deterrence factor indicated number significant prior conviction assault type offending although seem prior conviction property offending got least one prior conviction breach bail breach intervention order doubt lecture numerous judge magistrate time come court going get longer longer sentence teach lesson try convince time come back sentencing five offence arise course conduct particularly breach damaging property assault mr smith offence consequential status bail prohibited going property sentencing treated essentially single event weighing respective submission counsel also learned prosecutor sentence court charge intentionally damaging property common law assault aggregate sentence 438 day imprisonment sentence court three summary charge aggregate sentence three month imprisonment concurrent declare served 438 day imprisonment declare pleaded guilty would imposed sentence 18 month imprisonment non parole period 12 month remember record like got intervention order mother mr smith probably sister breach order got number prior plus particular offending know got matter outstanding cannot deal go forward breach intervention order commit form criminal offence getting longer longer term imprisonment important thing remember current state economy literally job vacancy everyone looking job able get workforce make bob lead productive life

Wei Zheng WONG v R [2010] NSWCCA 160 (25 June 2010).txt

wei zheng wong v r 2010 nswcca 160 25 june 2010 last updated 27 july 2010new south wale court criminal appealcitation wei zheng wong v r 2010 nswcca 160file number 2008 19443hearing date 25 06 2010ex tempore date 25 june 2010parties wei zheng wong reginajudgment mcclellan cjatcl hislop j barr ajlower court jurisdiction district courtlower court file number lower court judicial officer side qc dcjcounsel p linegar applicantp leask crownsolicitors connor applicant kavanagh crowncatchwords legislation cited drug misuse trafficking act 1985 23 2 category principal judgmentcases cited regina v george 2004 nswcca 247 2004 149 crim r 38regina v morgan 1993 70 crim r 368truong v r 2009 nswcca 41bui v r 2008 nswcca 314nguyen v r 2009 nswcca 283pham v r 2009 nswcca 266phan v r 2010 nswcca 8texts cited decision grant leave appeal dismiss appeal judgment court ofcriminal appeal2008 19443mcclellan cj clhislop jbarr ajfriday 25 june 2010wei zheng wong v reginajudgment1 barr aj applicant wei zheng wong seek leave appeal sentence imposed upon district court pleaded guilty local court offence unders 23 2 drug misuse trafficking act1985

Twigg v Twigg (No 6); Lambert v Twigg Investments Pty Ltd (No 5) [2020] NSWSC 1856 (18 December 2020).txt

twigg v twigg 6 lambert v twigg investment pty ltd 5 2020 nswsc 1856 18 december 2020 last updated 2 august 2022supreme courtnew south walescase name twigg v twigg 6 lambert v twigg investment pty ltd 5 medium neutral citation 2020 nswsc 1856hearing date paper 18 december 2020decision date 18 december 2020jurisdiction equity commercial listbefore ball jdecision see paragraph 35 catchword cost offer compromise made uniform civil procedure rule r 20 26 calderbank offer whether offerees access enough information properly consider offer whether offeree reasonable time consider offer offer related two interrelated proceeding one successful whether cost order freezing order made consent set asideequity apportionment trust asset following tracing successful plaintiff found interest trust property different percentage held appropriate successful plaintiff select asset transferred specie amount equivalent respective percentage rather plaintiff allocated share individual assetlegislation cited uniform civil procedure rule 2005 nsw case cited calderbank v calderbank 1975 3 er 333twigg v twigg 2019 nswsc 373twigg v twigg 2 2019 nswsc 1356twigg v twigg 4 lambert v twigg investment pty ltd 3 2020 nswsc 1159twigg v twigg 5 lambert v twigg investment pty ltd 4 2020 nswsc 1782category costsparties 2019 71329 main proceeding diane twigg first plaintiff first cross defendant ipswich landfill pty ltd atf ipswich landfill trust second plaintiff second cross defendant brooklyn landfill waste recycling pty ltd thirdplaintiff third cross defendant twigg plant hire pty ltd fourth plaintiff fourth crossdefendant maxwell james twigg first defendant fifth crossdefendant twigg landfill pty ltd second defendant sixthcross defendant byron bay beach hotel property pty ltd thirddefendant seventh cross defendant twigg consulting pty ltd fourth defendant eighthcross defendant b bay h pty ltd fifth defendant ninth crossdefendant twigg investment pty ltd sixth defendant tenthcross defendant maly holding pty ltd seventh defendant eleventhcross defendant twigg property development pty ltd eighthdefendant twelfth cross defendant twigg motor sport pty ltd ninth defendant thirteenth cross defendant vision motor sport pty ltd tenth defendant fourteenth cross defendant twigg motor racing pty ltd eleventh defendant fifteenth cross defendant surf street holding pty ltd twelfth defendant sixteenth cross defendant w e twigg pty ltd thirteenth defendant seventeenth cross defendant france lambert fourteenth defendant cross claimant twigg co pty limited fifteenth defendant 2018 212326 ube proceeding france lambert first plaintiff elizabeth flintoff second plaintiff diane twigg third plaintiff twigg investment pty limited atf twigg investmentstrust first defendant maxwell twigg second defendant representation counsel r elliott sc dk smith plaintiff first tofourth cross defendant 2019 71329 first thirdplaintiffs 2018 212326 j evans qc p miller first thirteenth andfifteenth defendant fifth seventeenth crossdefendants 2019 71329 first seconddefendants 2018 212326 j mcinerney sc fourteenth defendant crossclaimant 2019 71329 solicitor robert partner lawyer plaintiff first tofourth cross defendant 2019 71329 first thirdplaintiffs 2018 212326 radcliffs first thirteenth fifteenth fifth toseventeenth cross defendant 2019 71329 firstand second defendant 2018 212326 rankin ellison lawyer fourteenth defendant cross claimant 2019 71329 file number 2019 71329 2018 212326judgmentintroductionon 31 august 2020 delivered reason judgment matter twigg v twigg 4 lambert v twigg investment pty ltd 3 2020 nswsc 1159 principal judgment 11 december 2020 delivered reason judgment number outstanding issue relevant final order made proceeding twigg v twigg 5 lambert v twigg investment pty ltd 4 2020 nswsc 1782 several issue remain principal one cost judgment concerned issue abbreviation used judgment meaning given principal judgment coststhere four main issue relation cost one whether court order first thirteenth fifteenth defendant pay plaintiff cost main proceeding indemnity basis 15 may 2020 second cost order made ube proceeding third whether court vary cost order made connection application freezing order refused stevenson j 5 april 2019 seetwigg v twigg 2019 nswsc 373 fourth order cost made relation cross claim indemnity cost main proceedingon 15 may 2020 plaintiff offered resolve proceeding combined total 16 million plus cost offer expressed made accordance principle stated incalderbank v calderbank 1975 3 er 333 offer settle 1 main proceeding basis would judgment favour plaintiff defendant total sum 10 million plus cost would full release plaintiff defendant cross claimant related entity party 2 ube proceeding basis would judgment favour plaintiff defendant total sum 6 million plus cost full release plaintiff defendant plaintiff claim substantially better offer consequently cost date indemnity basis max resists order indemnity cost two base first submits court cannot satisfied plaintiff better offer second submits unreasonable reject offer first max submission submission made plaintiff succeeded application reopen principal judgment plaintiff submit consequence final conclusion reached relation tracing entitled recover approximately 27 7 million amount includes property valued cost however also includes 13 663 972 73 held twigg investment 2 trust 5 525 233 50 held twigg co according portfolio valuation 20 november 2020 plain basis figure plaintiff done better offer max submits reasonable refuse offer time made access information concerning plaintiff claim later became available including affidavit evidence plaintiff submission addition submits given sufficient time accept offer expressed open 25 may 2020 accept either submission case max clear pleading material served much case depended max conduct course knew also person knew proceeds sale twigg group business dealt consequently best position ass plaintiff tracing claim important witness mr twigg whose affidavit evidence served reason max good position ass reasonableness offer offer compromise made approximately two week hearing commenced expired week hearing commenced gave max six business day consider offer opinion reasonable length time circumstance case advanced state preparation consequently max would good position ass prospect success would required additional time order reasonable offer expire week commencement hearing stage plaintiff would required incur substantial cost preparation hearing would substantial effect value offer irrecoverable legal cost likely incur one feature offer would required max accept personally liable 6 million respect ube proceeding whereas fact concluded ube proceeding would failed max event deal proceeding offer also required max accept personally liable 10 million respect main proceeding whereas conclusion reached personally liable plaintiff entitled trace asset held largely entity controlled max rather max however think reason concluding reasonable defendant refuse offer apparent term offer intended claim party would settled sum 16 million plus cost said plaintiff proceeding plainly better substance judgment satisfied asset controlled max consequently opinion plaintiff main proceeding benefit offer compromise cost ube proceedingthe plaintiff seek cost ube proceeding indemnity basis rely formal offer compromise served 7 may 2019 accordance uniform civil procedure rule 2005 nsw r 20 26 mr twigg francis elizabeth offered settle proceeding 2 4 million also rely offer compromise 16 million served proceeding 15 may 2020 defendant twigg investment max contest plaintiff claim three base first submit twigg investment liable cost since max joined ube proceeding 30 april 2020 finding made case would failed second submit mr twigg pay one third cost ube proceeding claim failed third submit cost ube proceeding awarded indemnity basis accept cost order made max respect ube proceeding finding made principal judgment 267 case would fail accept appropriate mr twigg pay one third defendant cost ube proceeding claim ube proceeding brought france elizabeth mr twigg essentially claim brought single proceeding much evidence common three claim concluded mr twigg claim would failed even plaintiff failed main proceeding unlike france elizabeth agreed proposal effect would claim ubes think regarded separate claim purpose cost rather substance single proceeding brought three plaintiff necessary decide would concluded partially successful partially unsuccessful cost would incurred whether claim advanced mr twigg well france elizabeth would possible separate cost referable mr twigg claim hand opinion cost order reflect fact would concluded mr twigg claim fail taking matter account think appropriate plaintiff recover 90 percent cost leaf question whether cost paid indemnity basis opinion date second offer compromise think could said france elizabeth better first offer compromise offer compromise offer settle three claim far clear offer could accepted respect france elizabeth alone moreover finding made ube proceeding overtaken main proceeding ultimately mr twigg corporate plaintiff succeeded main proceeding sum money ordered paid ube proceeding accordingly significance might attached first offer compromise refusal overtaken event hand think unreasonable defendant fourteenth defendant main proceeding refuse second offer compromise although two separate proceeding two proceeding interrelated arose sale twigg group business max treatment proceeds thing transpired ube proceeding advanced alternative main proceeding party different substance two proceeding involved claim mr twigg daughter max recover proceeds sale twigg group business plaintiff offered settle claim basis max entity controlled pay 16 million offer genuine offer compromise claim plaintiff better offer consequently cost entitled proceeding indemnity basis date offer made cost freezing orderon 8 march 2019 plaintiff main proceeding filed application freezing order relevantly sought order restraining max defendant disposing dealing diminishing value asset extent asset represent impugned sum asset acquired profit derived consequent upon receipt impugned sum b seven identified property two victoria five queensland share managed fund portfolio upon basis property asset acquired using impugned sum proceeds asset acquired using impugned sum c asset unencumbered value 200 million seetwigg v twigg 2019 nswsc 373at 15 per stevenson j judgment delivered 5 april 2019 stevenson j refused order consent 11 april 2019 court made order following term plaintiff pay defendant cost notice motion dated 8 march 2019 assessable forthwith subsequent judgment twigg v twigg 2 2019 nswsc 1356 stevenson j made order effect defendant could enforce assessment cost conclusion proceeding stevenson j gave following reason refusing freezing order seetwigg v twigg 2019 nswsc 373at 101 104 101 first persuaded diane shown sensible risk unrestrained max dissipate asset see 61 76 102 second persuaded adequate explanation given diane delay bringing application see 82 87 103 third speculative nature diane prospect tracing impugned sum real property max related entity let alone max share managed fund portfolio see 52 54 104 fourth nature forensic task diane face making case liability accept serious question tried max acted without authority purportedly passing director resolution leading making impugned sum diane success regard seems likely depend establishing amongst thing mr fitzpatrick recollection conversation referred put oath accepted although cannot predict express view diane prospect regard represents stark potential barrier success proceeding plaintiff submit application stevenson j proceeded false basis namely mr fitzpatrick evidence concerning meeting 26 may 2009 mr twigg alleged agreed max could liked sale proceeds twigg group business likely accepted mr twigg claim proceeds sale twigg group business could traced property owned max mr fitzpatrick knew conceded cross examination recollection conversation 26 may 2009 moreover max knew number property owned purchased using proceeds sale byron bay hotel purchased using proceeds sale twigg group business satisfied matter provide sufficient basis setting aside cost order made stevenson j order made consent following delivery stevenson j judgment open plaintiff submit question cost reserved chose make submission stevenson j gave number reason rejecting application freezing order included lack evidence max would dissipate asset delay bringing application final hearing max submitted proceeds byron bay hotel could traced proceeds sale twigg group business amount contributed proceeds sale twigg group business towards purchase price hotel repaid rejected argument however could said max basis contending relevant property could traced proceeds sale twigg group business true mr fitzpatrick gave evidence conversation fact could recall however unclear significant conversation conclusion stevenson j great significance final hearing quite apparent max took high handed approach litigation generally obligation give discovery particular approach took contributed unnecessarily cost proceeding fact alone provide basis interfering cost order already made cost cross claimthe plaintiff france seek order first thirteenth defendant pay plaintiff france fourteenth defendant cost cross claim hand max seek order france pay fifth seventeenth cross defendant cost cross claim france joined main proceeding permit pursue cross claim appropriate joined purpose opinion appropriate make order sought max necessary express final view cross claim however indicated principal judgment necessary would found max corporate plaintiff breached duty france distributing proceeds sale twigg group business way regard conclusion reason france pay fifth seventeenth cross defendant cost cross claim issue relating coststhe plaintiff seek order cost motion filed 3 october 2020 cost cause plaintiff largely successful motion accordingly reason order made apportionment trust assetsin judgment 11 december 2020 concluded mr twigg 48 percent interest asset could traced second plaintiff 28 percent interest third plaintiff 24 percent interest plaintiff seek give effect finding treating asset subject trust solely favour mr twigg asset subject trust favour plaintiff according different percentage net result apportionment accordance judgment max hand submits court make declaration traceable asset held trust proportion stated judgment opinion reason plaintiff entitled agree among fund traceable asset provided agreement genuinely reflects conclusion court possible trace particular sum particular asset apportionment according plaintiff interest original fund depends assumption made court reason assumption capable displaced agreement affected party agreement division asset practical benefit term enforcement reduces complication may arise asset practically divisible motor vehicle real estate owned individual trustee discretionary trust max criticises distribution asset proposed plaintiff based date valuation rather based cost price relevant real property vehicle however property question acquired relatively recently consequently cost price reasonable guide value accordingly accept division proposed plaintiff freezing orderthe plaintiff seek continuation freezing order first made 3 june 2020 relation asset twigg investment 2 trust asset twigg co pending determination account agreed made subject reference max opposes order agrees continuation freezing order determination appeal plaintiff subject carve respect share asset payment legal cost opinion appropriate continue freezing order respect max share asset twigg investment 2 trust twigg co pending determination account max seriously resist order hand accept max entitled use asset pay reasonable legal cost respect appeal usual exception freezing order reason depart exception case staythe defendant seek short stay order giving effect transfer property pending application stay pending appeal opinion appropriate grant stay basis proposed max one qualification case involved number complicated legal issue particularly concerning application limitation period doctrine laches accept max arguable appeal relation issue given time year practical deal properly application stay immediately plaintiff submitted max delayed making application stay however would difficult application made final order made would plainly unsatisfactory order relating transfer real property take effect risk reversed apparent reason liquid asset treated differently real property short period stay operate qualification order sought max temporary stay operate fixed period time order opinion best way ensuring application pursued expeditiously ordersattached copy thefinal order 94947 pdf made consistently judgment amendments18 december 2020 order linked02 august 2022 removed semi colon word investment inadvertently added case name

NATURAL TROPICAL PRODUCTS PTY LTD (Migration) [2018] AATA 5617 (8 October 2018).txt

natural tropical product pty ltd migration 2018 aata 5617 8 october 2018 last updated 9 may 2019natural tropical product pty ltd migration 2018 aata 5617 8 october 2018 decision recorddivision migration refugee divisionapplicant natural tropical product pty ltdcase number 1709599dibp reference bcc2017 788516member r skarosdate 8 october 2018place decision sydneydecision tribunal affirms decision approve applicant standard business sponsor statement made 08 october 2018 10 11amcatchwordsmigration nomination standard business sponsor training requirement amendment regulation training requirement omitted applicable requirement additional criterion still satisfied invitation provide information information provided lack evidence ongoing business activity decision review affirmedlegislationmigration act 1958 s 140 359 360 363migration legislation amendment temporary skill shortage visa complementary reform regulation 2018migration regulation 1994 rr 2 59 2 60 2 61 schedule 13 cl 6704 2 caseshasran v miac 2010 fcafc 40cargo first pty ltd v mibp 2016 fca 30statement decision reasonsapplication reviewthis application review decision made delegate minister immigration border protection 12 april 2017 approve applicant standard business sponsor applicant applied approval standard business sponsor unders 140eof themigration act 1958 act r 2 61 regulation 28 february 2017 delegate decided approve application basis applicant satisfy r 2 59 themigration regulation 1994 regulation delegate satisfied training requirement met applicant provided copy delegate decision record tribunal applicant represented relation review registered migration agent 18 march 2018 r 2 59 amended requirement relating training requirement omitted transitional provision 1 provide r 2 59 e j apply relation application approval standard business sponsor made finally determined commencement date application made commencement date e prior 18 march 2018 finally determined requirement relating training longer applicable case however application approved tribunal must still satisfied time decision applicant meet applicable requirement approval required r 2 59 additional criterion r 2 60 extract applicable provision attached decision 14 september 2018 tribunal wrote review applicant pursuant 359 2 act inviting review applicant provide current information various requirement r 2 59 r 2 60 approval standard business sponsor writing invitation sent last email address provided connection review advised information provided writing 28 september 2018 tribunal may make decision review without taking step obtain information review applicant would lose entitlement might otherwise act appear tribunal give evidence present argument review applicant provided information within prescribed period extension granted circumstance 359c applies pursuant 360 3 review applicant entitled appear tribunal effect 363a act review applicant entitlement hearing tribunal power permit appear hasran v miac 2010 fcafc 40 3 october 2018 tribunal received email representative advising forwarded tribunal letter requesting information applicant person previously dealt advised longer business thought company going deregistered representative advised also sent email director still received response information tribunal indicate applicant deregistered would raised issue whether applicant still standing pursue review information received representative provided applicant former director appears suggest deregistration yet occurred may future absence information confirming applicant deregistered company tribunal proceeds basis applicant registered tribunal jurisdiction respect application review date tribunal received correspondence applicant representative tribunal decided proceed decision information following reason tribunal decided affirm decision review approve applicant standard business sponsor consideration claim evidencethe issue case whether applicant meet requirement approval standard business sponsor accordance criterion r 2 59 additional criterion r 2 60 must satisfied regardless application approval made application approved requirement must met 140e 1 indicated applicant invited provide information various requirement approval standard business sponsor done reason follow tribunal found requirement r 2 59 c met lawfully operating businessregulation 2 59 c requires applicant lawfully operating business either outside australia tribunal requested applicant provide current information whether lawfully operating business either inside outside australia without limiting type information could provided tribunal suggested example information document applicant could provide show operating business evidence current business registration recent business activity statement financial report response received invitation provide information tribunal considers r 2 59 c requires applicant show engaged ongoing business activity applicant provided current evidence tribunal indicates presently engaged business activity circumstance tribunal unable satisfied time decision applicant operating business either outside australia given tribunal find requirement r 2 59 c met reason given tribunal satisfied applicant meet applicable criterion prescribed regulation approved standard business sponsor accordingly tribunal must affirm decision review decisionthe tribunal affirms decision approve applicant standard business sponsor r skarosmemberattachment extract themigration regulation 19942 59 criterion approval standard business sponsorfor subsection 140e 1 act criterion must satisfied minister approve application person theapplicant approval standard business sponsor minister satisfied applicant applied approval standard business sponsor accordance process set inregulation 2 61 b applicant standard business sponsor c applicant lawfully operating business whether outside australia f applicant lawfully operating business australia applicant attested writing applicant strong record demonstrated commitment employing local labour ii applicant declared writing applicant engage discriminatory recruitment practice g either adverse information known immigration applicant person associated applicant ii reasonable disregard adverse information known immigration applicant person associated applicant h applicant lawfully operating business outside australia lawfully operate business australia applicant seeking approved standard business sponsor relation holder applicant proposed applicant thevisa applicant subclass 457 visa applicant intends visa holder visa applicant establish assist establishing behalf applicant business operation australia overseas connection ii fulfil assist fulfilling contractual obligation applicant note 2 60 additional criterion class sponsor transfer recovery payment cost 1 subsection 140e 1 act criterion regulation addition criterion inregulations 2 59to 2 60m 2 criterion must satisfied minister approve application person applicant approval sponsor mentioned ofregulations 2 59to 2 60m include criterion minister satisfied applicant taken action sought take action would result transfer another person cost including migration agent cost associated applicant becoming approved sponsor b applicant taken action sought take action would result another person paying person cost including migration agent cost associated applicant becoming approved sponsor c applicant taken action sought take action would result transfer another person cost including migration agent cost relate specifically recruitment non citizen purpose nomination subsection 140gb 1 act applicant taken action sought take action would result another person paying person cost including migration agent cost relate specifically recruitment non citizen purpose nomination subsection 140gb 1 act e f 3 criterion must satisfied minister approve application person applicant approval sponsor mentioned ofregulations 2 59to 2 60m include criterion minister satisfied applicant recovered another person cost including migration agent cost associated person becoming approved sponsor ii relate specifically recruitment non citizen purpose nomination subsection 140gb 1 act b applicant sought recover another person cost including migration agent cost associated person becoming approved sponsor ii relate specifically recruitment non citizen purpose nomination subsection 140gb 1 act c 4 however minister may disregard criterion referred subregulation 2 3 minister considers reasonable 1 cl 6704 2 schedule 13 migration legislation amendment temporary skill shortage visa complementary reform regulation 2018 f2018l00262

Industrial Relations Commission Decision 783_1988 [1988] AIRC 695; (6 September 1988).txt

industrial relation commission decision 783 1988 1988 airc 695 6 september 1988 industrial relation commission decision 783 1988 australian conciliation arbitration commission conciliation arbitration act 1904 matter application federated furnishing trade society australasia vary furnishing trade award 1981 1 odn c 1333 1977 relation august 1988 national wage case decision c 32809 1988 mr commissioner turbet melbourne 6 september 1988 wage rate national wage august 1988 union gave required undertaking employer consented commission varied award increase wage rate 3 september 1988 also recommended 3 increase overaward payment decision decision endorses application federated furnishing trade society australasia vary furnishing trade award 1981 increasing wage rate 3 per cent accordance august 1988 national wage case decision mr grady appeared society submitted federal executive society met considered term august 1988 national wage decision determined give commitment required decision m mara victorian employer federation mr mason australian chamber manufacture also represented employer association within industry expressing consent application drew attention obligation placed party national wage case decision particular mr mason identified number area would desire see reviewed term structural efficiency principle society indicated preparedness enter discussion respondent employer commission indicated prepared become involved exercise appropriate time future commission therefore vary award increasing wage rate contained therein 3 per cent operate beginning first pay period commence 2 september 1988 also commission recommendation award payment may paid employee covered award also increased 3 per cent effective date commission commissioner 1 print g0770

Appropriation Bill (No.3) 1996-97.txt

appropriation bill 3 1996 97appropriation bill 3 1996 97bills digest 121 1996 97appropriation bill 3 1996 97warning digest prepared debate reflects legislation introduced canvas subsequent amendment digest official legal status source consulted determine subsequent official status bill contentspassage historypurposebackgroundmain provisionsendnotescontact officer copyright detailspassage historyappropriation bill 3 1996 97date introduced 5 february 1997house house representativesportfolio financecommencement act commences day receives royal assentpurposeto authorise minister finance issue additional 930 275 000 consolidated revenue fund addition fund appropriated theappropriation act 1 1996 97 annual service government backgroundannual authorisation expenditure contained theappropriation act 1 authorises expenditure ordinary service government theappropriation act 2 deal expenditure capital work service payment state purpose authorised special legislation parliamentary department covered theappropriation parliamentary department bill additional appropriation may sought appropriation bill commonly known additional estimate appropriation sought appropriation bill insufficient financial year supply bill required result timing factor budget cycle commonwealth financial year begin 1 july budget may presented august usually november appropriation bill enacted since appropriation bill previous financial year lapse 30 june hiatus approximately five month duration appears financial activity government recent year move bring budget whether possible may hiatus necessitates interim appropriation achieved passing supply bill shortly end previous financial year suggested bill digest read conjunction parliamentary research servicebudget review 1996 97 bill top bill reason sum appropriated 930 275 000 comparitively small major additional appropriation effected bill department treasury 519 841 000 510 000 000 appropriated acquire debt australian national railway commission department health family service 93 551 000 19 658 000 administrative running cost 39 140 000 capital assistance residential facility 27 429 000 respect health insurance commission spending accordance thehealth insurance commission act1973 minister second reading speech state reflects increased funding double dipping initiative higher administrative cost associated change child care cash rebate payment high income family result decision reduce rebate payment family family tax initiative income cutoff double dipping context occurs person receives compensation payment cover medical care cost injury also continues claim cost commonwealth medicare nursing care department defence 92 540 000 29 111 000 compensation legal expense minister second reading state 17 000 000 compensation associated cockatoo island dockyard balance range claim question 96 page 2714 ofhansardfor 20 august 1996 noted set endnote 1 40 028 000 equipment store minister second reading speech state largely related increased purchase fuel joint exercise united state increase offset recovery cost united state 10 050 000 facility operation minister second reading speech state reflects increased provision repair maintenance minor new work activity 6 000 000 paid aerospace technology australia aircraft service proprietary limited respect avalon airport geelong limited department veteran affair 60 900 000 17 604 000 payment local medical officer specialist consultation service veteran 16 660 000 maintenance patient non departmental institution 7 535 000 payment allied health service veteransthe minister second reading speech state amount reflect increased demand service together clearance claim backlog associated transfer claim processing health insurance commission december 1995 12 440 000 pharmaceutical service main provisionsclause 3 authorises minister finance issue consolidated revenue fund total 930 275 000 respect year ending 30 june 1997 theschedulegives portfolio program breakup proposed expenditure clause 4authorises minister finance issue additional fund respect increase salary 1996 97 provision bill primarily provide item change may arise creation various proposed agency national science technology centre gene technology authority aged care standard agency productivity commission endnotescockatoo dockyard question 96 senator margetts asked minister defence upon notice 11 june 1996 reference litigation involving department contractor relation former cockatoo dockyard cockatoo island sydney harbour 1 current position arbitration proceeding relating cockatoo island dockyard 2 award made b award expected made c amount award 3 legal cost incurred party date b legal cost expected senator newman minister defence provided following answer honourable senator question 1 arbitration proceeding involved two main aspect cockatoo dockyard pty ltd codock sought damage breach contract arising former government 1990 decision cease oberon submarine refit cockatoo island dockyard arbitration hearing aspect completed interim award except matter legal cost given decision arbitrator commonwealth seeking leave appeal decision nsw court second aspect involves commonwealth claim codock alleged contamination cockatoo island arbitration currently adjourned aspect pending resolution commonwealth application claim heard preference nsw court nsw supreme court hearing application commenced 12 june 1996 2 see answer b decision legal cost award commonwealth contamination claim outstanding c interim award given arbitrator commonwealth 10 864 240 plus interest 5 315 355 8 december 1995 however interim award challenged indicated 3 since 1992 93 legal cost involved three main element borne attorney general department totalling 7 9m cost involved non commonwealth support including barrister totalling 5 7m expert consultancy including environmental study amounting 3 6m cost cover aspect arbitration nsw court proceeding related thereto legal cost incurred codock parent australian national industry ltd matter party confirm b 1 5m budgeted next financial year may vary depending upon duration legal proceeding outcome appeal application contact officer copyright detailslee jones24 march 1997bills digest serviceinformation research servicesthis digest official legal status source consulted determine whether bill enacted whether subsequent act reflects amendment irs staff available discus paper content senator member staff member public issn 1323 9031 commonwealth australia 1996except extent us permitted thecopyright act 1968 part publication may reproduced transmitted form mean including information storage retrieval system without prior written consent parliamentary library member australian parliament course official duty published department parliamentary library 1997 page prepared parliamentary library commonwealth australialast updated 9 april 1997

Thalari v Regina [2009] NSWCCA 170 (26 June 2009).txt

thalari v regina 2009 nswcca 170 26 june 2009 last updated 26 june 2009new south wale court criminal appealcitation thalari v regina 2009 nswcca 170file number 2008 1138hearing date 17 june 2009judgment date 26 june 2009parties saheen thalari appellant regina respondent judgment young ja johnson j latham jlower court jurisdiction district courtlower court file number 2008 1138lower court judicial officer english dcjlower court date decision 15 august 2008counsel mr wj hunt appellant m jr dwyer respondent solicitor legal aid nsw appellant solicitor public prosecution respondent catchword criminal lawconviction appealappellant pleaded guilty unauthorised possession pistol 7 1 firearm act 1996whether miscarriage justice arose plea guiltywhethers 7 1 offence requires possession prohibited pistol appellant possessed pistol prohibited pistol legislative history ofs 7 1 offencelaw part code consideredheld 7 1 required unauthorised possession pistol miscarriage justicesentences imprisonment imposed 7 1 offence offence possession loaded firearm public place supply prohibited drugform 1 offenceswhether sentence manifestly excessivelegislation cited firearm act 1996crimes act 1900drug misuse trafficking act 1985summary offence act 1988firearms amendment trafficking act 2001firearms amendment public safety act 2002firearms amendment prohibited pistol act 2003crimes legislation amendment act 2003interpretation act 1987criminal appeal act 1912category principal judgmentcases cited r v boag 1994 73 crim r 35r v van 2002 nswcca 148 2002 129 crim r 229elmir v r 2009 nswcca 22r v marchando 2000 nswcca 8 2000 110 crim r 337r v toro martinez 2000 nswcca 216 2000 114 crim r 533r v sewell 2001 nswcca 299wong v director public prosecution 2005 nswsc 129 2005 155 crim r 37r v liberti 1991 66 crim r 120r v parkes 2004 nswcca 377r v sl 2004 nswcca 397charlesworth v r 2009 nswcca 27meissner v queen 1995 hca 41 1995 184 clr 132lodhi v queen 2006 nswcca 121 2006 199 flr 303r v tolley 2004 nswcca 165r v krstic 2005 nswcca 391r v najem 2008 nswcca 32cramp v r 2008 nswcca 40luu v r 2008 nswcca 285r v cromarty 2004 nswcca 54 2004 144 crim r 515r v young 1999 nswcca 166 1999 46 nswlr 681r v plv 2001 51 nswlr 736beckwith v queen 1976 hca 55 1976 135 clr 569chanthaboury v r 2007 nswcca 290 2007 176 crim r 438r v mitchell 2002 nswcca 270r v amurao 2005 nswcca 32yang v r 2007 nswcca 37r v aa 2006 nswcca 55attorney general application unders 37of thecrimes sentencing procedure act 1999 1 2002 2002 nswcca 518 2002 56 nswlr 146r v mouloudi 2004 nswcca 96r v hemsley 2004 nswcca 228r v hamid 2006 nswcca 302 2006 164 crim r 179markarian v queen 2005 hca 25 2005 228 clr 357texts cited decision 1 appeal conviction dismissed 2 leave appeal sentence granted 3 appeal sentence dismissed judgment court ofcriminal appeal2008 1138young jajohnson jlatham j26 june 2009saheen thalari v reginajudgment1young ja agree johnson j 2johnson j following plea guilty appellant saheen thalari sentenced term imprisonment penrith district court 15 august 2008 respect firearm drug supply offence 3 court appeal conviction sentence offence unauthorised possession pistol contrary tos 7 1 firearm act 1996 sentences4 15 august 2008 appellant sentenced follows count 1 unauthorised possession pistol contrary tos 7 1 firearm act 1996 maximum penalty 14 year imprisonment standard non parole period three year sentenced imprisonment comprising non parole period two year commencing 5 september 2007 balance term one year six month b count 2 possession loaded firearm public place contrary 93g 1 crime act 1900 maximum penalty 10 year imprisonment sentenced fixed term imprisonment 18 month commencing 5 september 2007 c count 3 supplying prohibited drug contrary 25 1 drug misuse trafficking act 1985 maximum penalty 15 year imprisonment sentenced fixed term 12 month imprisonment commencing 5 march 2008 5 following offence taken account form 1 passing sentence count 1 offence 1 posse unregistered firearm 22 calibre pistol contrary tos 36 1 firearm act 1996 b offence 2 posse ammunition without holding licence contrary tos 65 3 firearm act 1996 c offence 3 supply prohibited drug 16 1 gram cannabis leaf contrary tos 25 1 drug misuse trafficking act 1985 offence 4 posse prohibited drug 1 57 gram methylamphetamine contrary tos 10 1 drug misuse trafficking act 1985 e offence 5 good custody cash sum 565 00 contrary 527c 1 c crime act 1900 f offence 6 custody knife public place contrary 11c 1 summary offence act 1988 6 total effective sentence involved imprisonment three year six month non parole period two year date 5 september 2007 earliest date upon appellant eligible release parole 4 september 2009 sentence count 2 3 entirely subsumed within non parole period fixed count 1 fact offences7 statement fact tendered consent sentencing hearing revealed following 8 4 58 pm 5 september 2007 police conducting perimeter patrol richmond raaf base part operation apec summit whilst police travelling pitt street richmond observed green ford falcon utility stopped intersection driver apparently reaching seatbelt police immediately recognised appellant driver vehicle suspecting driver licensed police followed vehicle home unit bowman street richmond knocked door home unit woman answered door police saw appellant inside police searched found key 15 round 22 calibre ammunition form 1 offence 2 9 police searched vehicle found jonathan arthur ciener 22 calibre self loading pistol count 1 form 1 offence 1 front driver seat contained magazine fitted 10 22 calibre long range bullet firearm loaded ready discharged count 2 one police officer observed rear right side pistol grip small identity lug removed lug ordinarily containing serial number pistol 10 police officer also found 565 00 cash wallet appellant vehicle form 1 offence 5 search appellant revealed black handled lock knife clipped inside pant pocket form 1 offence 6 appellant taken custody 11 search appellant vehicle revealed small plastic resealable bag containing green vegetable matter later analysed cannabis also located vehicle black coffee tin containing medium sized plastic resealable bag inside another medium sized resealable bag containing green vegetable matter later analysed cannabis 10 small resealable bag containing cannabis total quantity cannabis 16 1 gram form 1 offence 3 12 police also located within black coffee tin tin containing two small resealable bag found 19 green tablet stamped imprint butterfly analysed 3 4 methylemedioxymethylamphetamine mdma weighing 4 82 gram 10 tablet tested purity 28 5 count 3 police also located within tin one small resealable bag containing white paste substance analysed 1 57 gram methylamphetamine form 1 offence 4 13 examination mobile phone located within appellant vehicle revealed several message inbox section stating hey bro jonezy get green stuff ready sarge nigel interesting info ace going tonight want pill possible nigel want pill appellant known nickname sarge 14 appellant participated electronically recorded interview admitted possessing knife stating carried protection also admitted possession small tin containing ammunition denied knowledge ammunition denied driver motor vehicle vehicle time day denied knowledge firearm prohibited drug located within vehicle admitted ownership mobile phone located within vehicle denied knowledge message phone content appellant stated unemployed form income 15 check police revealed appellant bail matter time arrest 16 registered owner vehicle appellant father attended windsor police station informed police appellant custodian vehicle appellant key vehicle 17 given issue raised court appropriate refer aspect evidence district court concerning pistol senior constable thompson observed black semi automatic pistol brown handgrip lying driver seat appellant vehicle slide pistol closed locked position magazine fitted removed magazine observed contained 22 calibre round certificate senior constable dusting forensic ballistics investigation section described pistol ammunition following way jonathan arthur ciener manufactured self loading pistol test fired working order three cartridge marked discharged exhibit test purpose capable propelling mean explosive projectile could inflict lethal wound upon human reasonably capable raised fired one hand exceed prescribed dimension 65 cm length exhibit consists 22 long rifle calibre model 1911a1 slide barrel manufactured jonathan arthur ciener fitted replica model inc manufactured frame detachable box magazine capacity hold ten 22 long rifle calibre cartridge opinion exhibit pistol pistol defined insection 4 1 thefirearms act 1996 25 cartridge federal philippine remington winchester manufacture designed use weapon chambered 22 long rifle calibre cartridge suitable use exhibit pistol opinion exhibit cartridge ammunition defined insection 4 1 thefirearms act 1996 18 also evidence certificate unders 87firearms act 1996evidencing subject pistol never registered appellant 5 september 2007 holder firearm licence permit new south wale authorised possession use firearm appellant subjective circumstances19 appellant born 1981 26 year old time offence 20 pre sentence report concerning appellant district court together report dated 2 october 2007 dr dong tran psychiatrist report dated 17 april 2008 dr olav nielssen psychiatrist 21 appellant gave evidence sentencing hearing sister 22 learned sentencing judge recounted evidence concerning appellant history drug abuse including use ecstasy amphetamine reference made report dr tran dr nielssen diagnosis schizophrenia made 23 honour recounted appellant evidence concerning assault upon led acquisition pistol ammunition honour observed ros8 9 offender evidence said paid 2 000 item told dr nielssen paid 500 pistol bullet either way significant sum money someone unemployed ready access addition sum found 565 time arrest denies business supplying however fly face evidence quantity cash able access selling drug support habit selling friend find involved far greater degree willing admit 24 honour found appellant contrite despite initial attempt minimise level culpability good prospect rehabilitation 25 reference made appellant limited criminal antecedent offence driving mid range prescribed concentration alcohol driving expired licence fined disqualified windsor local court 7 june 2006 26 learned sentencing judge allowed combined discount 30 appellant plea guilty contrition assistance authority appeal conviction27 ground appeal 1 2 following term 1 miscarriage justice occasioned sentencing judge acceptance appellant plea guilty offence againsts 7firearms act 1996 2 plea guilty offence againsts 7firearms act 1996was entered circumstance amounting miscarriage justice submissions28 mr hunt counsel appellant submitted miscarriage justice occurred appellant despite plea guilty first count capable guilty crime evidence court submitted element offence unders 7firearms act 1996that appellant possession prohibited pistol defined act submitted sufficient weapon pistol within meaning act accordingly court set aside conviction count 1 29 point taken district court raised first time court 30 support argument mr hunt read affidavit appellant affirmed 22 may 2009 concerning circumstance came plead guilty count disclosed lack understanding part said technical requirement offence relevant firearm prohibited pistol defined act 31 crown submitted relevant element 7offence person possessed pistol defined act term prohibited pistol unrelated offence unders 7 although acknowledging court attendance notice charging appellant offence unders 7asserted posse prohibited pistol crown submitted accurate statement relevant element offence crown submitted word prohibited court attendance notice ought disregarded mere surplusage decision32 court may quash conviction entered upon plea guilty sentencing court demonstrated miscarriage justice occur appellant permitted withdraw plea r v boag 1994 73 crim r 35at 36 r v van 2002 nswcca 148 2002 129 crim r 229 elmir v r 2009 nswcca 22at 33 ff 33 onus lie upon appellant demonstrate leave granted r v marchando 2000 nswcca 8 2000 110 crim r 337at 338 4 r v toro martinez 2000 nswcca 216 2000 114 crim r 533at 536 537 16 23 appellant must establish good substantial reason court taking course granting leave withdraw plea r v sewell 2001 nswcca 299at 39 wong v director public prosecution 2005 nswsc 129 2005 155 crim r 37at 46 39 application withdraw plea guilty approached caution bordering circumspection r v liberti 1991 66 crim r 120 122 r v parkes 2004 nswcca 377at 48 34 plea guilty cogent admission ingredient offence r v sl 2004 nswcca 397at 51 indeed described cogent admission guilt made charlesworth vr 2009 nswcca 27at 25 35 person may plead guilty upon ground extend beyond person belief guilt entry plea guilty upon ground nevertheless constitutes admission element offence conviction entered upon basis plea set aside appeal unless shown miscarriage justice occurred normally arise accused person understand nature charge intend plea admit guilt meissner v queen 1995 hca 41 1995 184 clr 132at 157 wong v director public prosecutionsat 45 46 36 question whether appellant submission concerning proper construction ofs 7firearms act 1996ought accepted issue one statutory construction 37 outset note court attendance notice case alleged appellant posse prohibited pistol authorised licence permit although court attendance notice refers law part code 53107 observed form support text used court attendance notice 38 term law part code official status defined part 75 r 3d 4 supreme court rulesas meaning law part code allocated offence law code database maintained judicial commission new south wale cflodhi v queen 2006 nswcca 121 2006 199 flr 303at 324 92 spigelman cj 39 published law code database maintained judicial commission new south wale law part code 53107 valid 14 february 2004 provides short description offence 7firearms act 1996of posse unauthorised prohibited firearm long description person must posse prohibited firearm unless person authorised licence permit 40 law part code 53108 also valid 14 february 2004 contains short description posse unauthorised pistol long description person must posse pistol unless person authorised licence permit 41 appears author court attendance notice case used combination law part code 53107 53108 although content law part code 53107 53108 assist crown construction 7 remains matter court undertake process statutory construction resolve present matter controversy 42 mr hunt drew court attention number decision court relevant offence 7 described passing possession prohibited pistol r v tolley 2004 nswcca 165at 49 r v krstic 2005 nswcca 391at 3 4 6 r v najem 2008 nswcca 32at 2 cramp v r 2008 nswcca 40at 9 10 15 luu v r 2008 nswcca 285at 4 inr v najem hulme j 35 adverted present issue 35section 7of thefirearms actmakes offence posse use weapon refers seem possible conclude least abstract one concept likely worse another must recognised range weapon encompassed bys7are answering description prohibited firearm pistol given act refers pistol prohibited pistol immediately clear whether non prohibited pistol within section although issue arise case term pistol prohibited pistol defined ins4and s4c difference two lying primarily calibre length 43 none case referred preceding paragraph court called upon construes 7so determine breadth application present question construction raised determination however necessary court resolve question 44 helpful trace relevant history thefirearms act 1996 act replaced thefirearms act 1989and part national campaign implement firearm control following port arthur massacre r v cromarty 2004 nswcca 54 2004 144 crim r 515at 519 15 described complex detailed legislation r v najemat 14 45 section 7firearms act 1996 enacted originally provided follows 7offence unauthorised possession use firearm cf 1989 act 5 apmc 3 1 person must posse use firearm unless person authorised licence permit maximum penalty summary conviction 50 penalty unit imprisonment 2 year maximum penalty conviction indictment imprisonment 10 year established beyond reasonable doubt firearm concerned prohibited firearm pistol imprisonment 5 year case 2 without limiting operation subsection 1 person holder licence guilty offence section person us firearm purpose otherwise connection purpose established person genuine reason possessing using firearm b contravenes condition licence 46 observed 7 1 created offence possession use firearm higher maximum penalty conviction indictment established beyond reasonable doubt firearm concerned prohibited firearm pistol term firearm pistol prohibited firearm defined 4 1 1996 act following way firearmmeans gun weapon time capable propelling projectile mean explosive includes blank fire firearm air gun include anything declared regulation firearm pistolmeans firearm reasonably capable raised fired one hand b exceed dimension prescribed regulation prohibited firearmmeans firearm described schedule 1 47 apparent statutory scheme 1996 envisaged aggravated 7 offence possession firearm either prohibited firearm pistol defined act 48 section 7 amended thefirearms amendment trafficking act 2001by increasing maximum penalty aggravated offence 7 1 10 year 14 year imprisonment 49 section 7 amended thefirearms amendment public safety act 2002 omitting matter relating penalty end 7 1 inserting place following maximum penalty imprisonment 14 year firearm concerned prohibited firearm pistol imprisonment five year case 50 amendment 7 lay within schedule 2 2002 act entitled miscellaneous amendment tofirearms act 1996to clarify operation existing penalty 51 definition firearm prohibited firearm pistol 4 1 act altered 2001 2002 amending act 52 thefirearms amendment prohibited pistol act 2003commenced 1 october 2003 long title act follows act amend thefirearms act 1996and thefirearms general regulation 1997to make provision relation regulation control pistol used purpose sporting target shooting provide compensation surrendering certain pistol purpose 53 act introduced definition prohibited pistol 4 1 4c act section 4c provides 4cmeaning prohibited pistol 1 act prohibited pistol mean following kind pistol pistol calibre 38 inch b self loading pistol barrel length le 120 mm c revolver barrel length le 100 mm include kind pistol black powder pistol note prohibited pistol prohibited firearm prohibited firearm listed schedule 1 see definition prohibited firearm section 4 1 2 purpose act pistol would prohibited pistol something missing defect obstruction b fact something done something opinion commissioner accordance recognised specification pistol taken prohibited pistol 54 act made amendment range section act referred prohibited pistol s 8 1 16b 1 20 58 63 1a 78 78a clause 21 schedule 3 act apparent provision term prohibited pistol created part statutory scheme reduce range pistol available purpose sporting target shooting compensation scheme established 78 act involving buy back period person surrendering prohibited pistol temporary amnesty provided clause 21 schedule 3 act facilitate buy back period clear term prohibited pistol statutory term art enacted specifically defined 4c act aid precise statutory purpose concerning sporting target shooting 55 4c 1 made clear prohibited pistol subclass pistol purpose act section 4c 1 stated prohibited pistol meant following kind pistol term prohibited pistol pistol mutually exclusive hulme j observed inr v najemat 35 see 42 difference two definition lay primarily calibre length 56 amendment effected act touch 7 act term firearm prohibited firearm pistol used section defined 4 1 act 57 confined nature amendment enacted thefirearms amendment prohibited pistol act 2003is confirmed perusal second reading speech mr watkins minister police delivered legislative assembly 17 june 2003 included following pleased introduce firearm amendment prohibited pistol bill amend thefirearms act 1996 thefirearms general regulation 1997and prohibited weapon legislation implement prime minister handgun control agreement reached council australian government coag 2 december 2002 thefirearms amendment prohibited pistol bill 2003fully implement national agreement place range restriction handgun target shooter include restricting handgun used target shooting maximum 38 calibre semi automatic handgun barrel length 120 millimetre revolver single shot handgun barrel length 100 millimetre proposed section 4c 8 act create new class prohibited pistol proposed section 58 2 making offence maximum penalty five year imprisonment unlawfully posse prohibited pistol barrel however line coag agreement two limited class person may access prohibited pistol proposed section 16b provides person participating international shooting sport federation event count olympic commonwealth game qualifier access highly specialised target pistol fail meet new barrel restriction coag agreed restricted use ground highly specialised target pistol large visually distinctive readily concealable due overall size national agreement also includes provision prohibited pistol buyback proposed section 78 provides framework buyback 58 later 2003 thecrimes legislation amendment act 2003was enacted act amended 7 enacted new 7a thereafter provided follows 7offence unauthorised possession use prohibited firearm pistol cf 1989 act 5 apmc 3 1 person must posse use prohibited firearm pistol unless person authorised licence permit maximum penalty imprisonment 14 year 2 without limiting operation subsection 1 person holder licence guilty offence section person us prohibited firearm pistol purpose otherwise connection purpose established person genuine reason possessing using prohibited firearm pistol b contravenes condition licence 3 trial offence section jury satisfied accused guilty offence satisfied evidence person guilty offence section 7a may find person guilty offence guilty offence section 7a accused liable punishment accordingly 7aoffence unauthorised possession use firearm generally 1 person must posse use firearm unless person authorised licence permit maximum penalty imprisonment 5 year 2 without limiting operation subsection 1 person holder licence guilty offence section person us firearm purpose otherwise connection purpose established person genuine reason possessing using firearm b contravenes condition licence 59 observed effect amendment divide separate section s 7 7a previously covered 7 1 act section 7 1 provided offence unauthorised possession use prohibited firearm pistol maximum penalty imprisonment 14 year section 7a provided lesser offence unauthorised possession use firearm prohibited firearm pistol maximum penalty imprisonment five year 60 section 7 1 used phrase prohibited firearm pistol despite creation earlier 2003 concept prohibited pistol s 7 7a use term reason clear enough explained term prohibited pistol statutory term art introduced confined purpose thefirearms amendment prohibited pistol act 2003 examination term legislation statutory purpose identified second reading speech reinforces view term prohibited pistol role play respect offence contained 7 act 61 view confirmed reference second reading speech mr watkins minister police legislative assembly 2 december 2003 respect thecrimes legislationfurther amendment bill 2003 said schedule 5 make minor change tosection 7of thefirearms act 1996to create two separate offence possession use unauthorised firearm currentlysection 7conflates effectively two different offence one despite considerable difference degree criminality associated two offence namely maximum penalty 14 year relation prohibited firearm pistol remains section 7 act maximum penalty 5 year relation firearm section 7a act amendment clarifies better defines two offence enable judicial commission bureau crime statistic research better collect publish sentencing statistic accurately reflect circumstance particular case amendment schedule 5 minor change viewed context government commitment significantly overhauling gun law improve safety new south wale 62 mr hunt submitted word prohibited firearm pistol 7 1 act construed mean prohibited firearm prohibited pistol submits proper construction would see word prohibited qualify word firearm pistol mr hunt submitted amendment 7 effected thecrimes legislation amendment act 2003did take opportunity alter section state example pistol prohibited firearm submits consequence legislature adopted language wittingly otherwise extends term prohibited firearm pistol 63 crown submitted construction entirely inconsistent legislative history 7 1 term prohibited pistol created confined purpose 2003 64 view short answer appellant submission 7 1 mean say term prohibited firearm pistol defined 4 1 act different meaning since enactment thefirearms act 1996 definition remained constant possession use item constituted aggravated offence attracting higher maximum penalty 7 act 65 appellant argument requires construction act entirely inconsistent statutory purpose history 7 term prohibited pistol introduced elsewhere act 2003 entirely different purpose logical explanation possession prohibited pistol defined 4c act would constitute aggravated offence attracting higher maximum penalty 7 opposed possession pistol defined 4 1 act includes subclass prohibited pistol truth appellant submission injects element absurdity construction 7 act 66 extent construction advanced appellant arguable one satisfied construction would promote purpose object legislation construction advanced crown clearly preferable 33interpretation act 1987 use extrinsic material form second reading speech reference made assist conclusion 34interpretation act 1987 67 extent appellant argument involves reading word prohibited qualifies term pistol in 7 1 warrant exists construction strained entirely inconsistent statutory scheme cfr v young 1999 nswcca 166 1999 46 nswlr 681at 685 691 r v plv 2001 51 nswlr 736at 742 744 80 91 task court construction word actually used parliament process militates firmly construction advanced appellant conclusion reached application principle concerning interpretation penal statute event one last resort beckwith v queen 1976 hca 55 1976 135 clr 569at 576 68 satisfied offence 7 1 act involves unauthorised possession use prohibited firearm pistol defined 4 1 act term pistol 7 1 confined narrower class pistol falling within definition prohibited pistol 4c although 7 catch unauthorised possession pistol prohibited pistol well long pistol le 65 cm overall length pistol purpose 4 1 act clause 120firearms regulation 2006 69 follows content law part code 53108 see 40 correct description relevant offence 7 1 act 70 likewise follows court attendance notice case incorrect alleging appellant possessed prohibited pistol accepted court appellant argument rejected word prohibited court attendance notice could disregarded mere surplusage appellant pleaded guilty offence unauthorised possession pistol 7 1 act apart admission element offence implicit plea see 34 ample evidence district court certificate senior constable dusting item question constituted pistol defined 4 1 act 71 necessary resort proviso 6 1 criminal appeal act 1912to resolve present appeal conviction case court attendance notice omitted allege essential element offence circumstance led appeal conviction dismissed application proviso inchanthaboury v r 2007 nswcca 290 2007 176 crim r 438 word prohibited court attendance notice may simply disregarded surplusage notice otherwise alleging offence known law 7 1 act 72 although resolution issue view straightforward one appropriate refer relevant statutory history thefirearms act 1996given earlier decision court referred 42 description ofs 7offences decision suggest time time police prosecutor misdescribing offence unders 7 1 possession prohibited pistol court attendance notice case repeat error 73 present appeal indicates wisdom close compliance police prosecutor form contained law part code 53108 respect offence unauthorised possession pistol 7 1 act 74 view ground 1 2 ought rejected appeal conviction ought dismissed application leave appeal sentence75 ground 3 contends sentence imposed offence 7 1 firearm act 1996was manifestly excessive submissions76 support ground mr hunt submitted non parole period two year balance term one year six month manifestly excessive circumstance positive finding made sentencing judge respect appellant subjective circumstance prospect rehabilitation combined 30 discount allowed early plea guilty contrition assistance authority mr hunt submitted passing erroneous factor appellant contrition discount 77 mr hunt accepted honour entitled regard standard non parole period guidepost notwithstanding appellant plea guilty thes 7 1 offence submitted unusual circumstance thes 7 1 offence whereby appellant possessed pistol consequence attack upon earlier time matter reduced objective seriousness offence submitted effective head sentence three year six month non parole period two year application 30 discount placed great emphasis circumstance offence specific general deterrence opposed rehabilitation relatively young offender subjective mitigating factor term mental health drug usage 78 whilst acknowledging necessary sentencing judge regard six matter form 1 mr hunt contended sentence imposed manifestly excessive 79 although accepting sentencing statistic blunt tool absence factual particular case mr hunt sought rely upon statistic compiled judicial commission new south wale support submission manifest excess imposition sentence thes 7 1 offence 80 crown submitted thes 7 1 offence case serious one necessary sentencing judge regard well six offence taken account form 1 offence committed whilst appellant bail respect matter 81 crown submitted despite unusual feature thes 7 1 offence objectively serious sentencing judge found correctly fell towards mid range objective seriousness crown pointed fact pistol loaded additional ammunition found firearm offence committed broader context appellant supplying drug crown submitted sentence manifestly excessive decision82 appellant narrow focus sentence imposed count 1 introduces element artificiality case appellant sentenced three offence form 1 offence taken account well count 1 count 2 3 separate offence involving serious criminality count 3 deemed supply offence involving appellant possession 4 82 gram mdma six time traffickable quantity 0 75 gram yet appellant sentence count 2 3 fell entirely within non parole period count 1 83 turn argument directed sentence count 1 84 inr v najem hulme j 38 pointed described two irreconcilable standard 7 1 offence measured maximum penalty 14 year imprisonment standard non parole period three year 85 approaching challenge sentence imposed case necessary keep mind available maximum penalty thes 7 1 offence well relatively low standard non parole period available guidepost following plea guilty 86 although appellant reason acquiring pistol somewhat unusual remained fact time detection police possessed loaded pistol vehicle conjunction range drug possessed supply possessed paraphernalia drug supplier including plastic bag may readily inferred used purpose supplying drug together insignificant sum money spent substantial sum money purchase pistol criminal source 87 despite appellant unwillingness evidence sentencing hearing acknowledge extent drug supply message mobile phone see 13 possession fund point clearly business drug supply 88 fact pistol loaded appellant possessed ammunition bore upon seriousness crime r v mitchell 2002 nswcca 270at 14 r v amurao 2005 nswcca 32at 69 yang v r 2007 nswcca 37at 18 appellant claim possessed loaded pistol protection matter significant mitigation since policy legislature evinced enactment offence 7 1 maximum penalty 14 year imprisonment act deterrent punish possession pistol per se r v krsticat 14 rule law authority court depends upon proposition person illegal mean take protection hand r v aa 2006 nswcca 55at 46 89 fact serial number pistol obliterated although explicable criminal origin weapon assist appellant possessed firearm criminal purpose yang v rat 18 fact appellant possessed pistol context involved supply drug also bear objective seriousness pistol offence luu v rat 32 90 necessary sentencing judge regard well imposing sentence count 1 six offence contained form 1 matter taken account sentencing appellant view increasing penalty would otherwise appropriate thes 7 1 offence sentence imposed offence reflect need personal deterrence retribution arising additional criminality involved form 1 offence attorney general application unders 37of thecrimes sentencing procedure act 1999 1 2002 2002 nswcca 518 2002 56 nswlr 146at 159 42 43 r v mouloudi 2004 nswcca 96at 66 91 sentencing judge regard objective seriousness offence appellant subjective circumstance circumstance case combined discount 30 allowed generous finding made appellant contrite although denied business supplying drug position rejected sentencing judge see 23 otherwise caught red handed respect offence accept mr hunt submission error revealed use rolled discount case 92 appropriate sentencing judge regard issue general specific deterrence imposition sentence although evidence concerning appellant mental state psychiatric report prepared purpose sentencing proceeding evidence view render appellant inappropriate vehicle general deterrence mr hunt referred issue passing noting mount fullhemsleystyle argument court argument advanced district court 93 whether principle emerging case asr v hemsley 2004 nswcca 228ought applied render offender le appropriate vehicle general deterrence depends upon circumstance case see generally r v hamid 2006 nswcca 302 2006 164 crim r 179at 198 200 109 115 case referred therein case appellant involved supply drug gain well personal user drug possessed loaded lethal pistol context activity consider evidence district court concerning appellant mental state rendered le appropriate vehicle general deterrence indeed issue public safety arising possession loaded pistol tends heighten concern manner might fairly reflected significant allowance personal general deterrence case 94 consider sentencing statistic fors 7 1 offence provide real assistance case significant offence taken account form 1 passing sentence thes 7 1 offence 95 make good ground 3 asserting manifest excess necessary appellant demonstrate sentence imposed count 1 unreasonable plainly unjust markarian v queen 2005 hca 25 2005 228 clr 357at 370 371 25 appellant made good ground 96 indeed total effective sentence imposed combination firearm drug supply offence committed appellant lay towards lenient end range sentence criminality 97 would reject ground 3 proposed orders98 propose following order appeal conviction dismissed b grant leave appeal sentence appeal dismissed 99latham j agree johnson j last updated 26 june 2009

Philippopoulos-Mihalopoulos, Andreas --- "Epistemologies of doubt" [2015] ELECD 662; in Grear, Anna; Kotze, J. Louis (eds), "Research Handbook on Human Rights and the Environment" (Edward Elgar Publishing, 2015) 28.txt

philippopoulos mihalopoulos andreas epistemology doubt 2015 elecd 662 grear anna kotzé j louis ed research handbook human right environment edward elgar publishing 2015 28book title research handbook human right environmenteditor grear anna kotzé j louispublisher edward elgar publishingisbn hard cover 9781782544425section chapter 3section title epistemology doubtauthor philippopoulos mihalopoulos andreasnumber page 18abstract description human longer considered central world question knowing affected one know one thrown box anthropocene everywhere cannot equated central everything chapter connects issue posthuman term methodology ontological position specific issue environmental degradation path followed neither one binarisms anthropo ecocentrism one third term third space thus far comfortably solved problem human suprematism rather text begin space ontological exposure vulnerability space continuum characterized human nonhuman indistinguishability yet amidst space rapid flow epochal pause human responsibility emerges powerfully situated responsibility requires deep ethical understanding position body regard assemblage part finally text end description main challenge called critical environmental law

Enviro Commercial Painting Pty Ltd re FTAA Enterprise Agreement 2011-2015 between Enviro Commercial Painting Pty Ltd and the CFMEU [2012] FWAA 1798 (6 March 2012).txt

enviro commercial painting pty ltd ftaa enterprise agreement 2011 2015 enviro commercial painting pty ltd cfmeu 2012 fwaa 1798 6 march 2012 fair work australiadecisionfair work act 2009s 185 enterprise agreementenviro commercial painting pty ltd ag2012 415 ftaa enterprise agreement 2011 2015 enviro commercial painting pty ltd cfmeubuilding metal civil construction industriessenior deputy president watsonmelbourne 6 march 2012application approval ftaa enterprise agreement 2011 2015 enviro commercial painting pty ltd cfmeu 1 application made approval enterprise agreement known theftaa enterprise agreement 2011 2015 enviro commercial painting pty ltd cfmeu agreement application made pursuant tos 185of thefair work act 2009 act made enviro commercial painting pty ltd 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 54 operate 13 march 2012 nominal expiry date agreement 31 march 2015 senior deputy presidentprinted authority commonwealth government printer price code j ae892049 pr520767

SZCAQ & Ors v Minister for Immigration [2006] FMCA 229 (24 February 2006).txt

szcaq or v minister immigration 2006 fmca 229 24 february 2006 last updated 4 april 2006federal magistrate court australiaszcaq or v minister immigration 2006 fmca 229migration review decision rrt whether breach 424amigration act 1958 cth whether tribunal misunderstood applicant meant word severe whether statement contradiction fact given applicant reason part reason affirming decision review tribunal found applicant credible result inconsistent statement made applicant whether statement actually inconsistent statement whether tribunal made mistake effect foreign law whether tribunal duty enquire content effect foreign law whether failure tribunal take adequate step enquire affected tribunal assessment applicant credibility whether failure regard term foreign legislation failure take account relevant material migration act 1958 s 424a 422bnational security act 1980 india szfkl v minister immigration 2005 fca 931szeie v minister immigration 2005 fca 987szerv v minister immigration 2005 fca 1221szeky v minister immigration 2005 fca 1138szbve v minister immigration 2005 fca 1325nabe v minister immigration no2 2004 fcafc 263naav v minister immigration 2002 fcafc 228savic v minister immigration multicultural affair 2001 fca 1787vhaj others v minister immigration 2003 fcafc 186 2003 131 fcr 80applicants v 722 2000 v minister immigration 2002 fca 1059minister immigration v surjit singh 1997 74 fcr 553wagj v minister immigration 2002 fcafc 277minister immigration v sglb 2004 hca 32 2004 78 aljr 992w41 01a v minister immigration 2001 fca 742namo v minister immigration 2004 fmca 14namo v minister immigration 2004 fca 1419prasad v minister immigration 1985 fca 47 1985 6 fcr 155re minister immigration ex parte cassim 2000 hca 50 2000 175 alr 209azzi v minister immigration 2002 fca 24wafp v minister immigration 2003 fcafc 319minister immigration v yusuf 2001 plaintiffs157 2002 v commonwealth australia 2003 w352 v minister immigration 2002 fca 398nadh 2001 v minister immigration 2005 214 alrapplicant m185 2003 v minister immigration 2005 fcafc 230 paul v minister immigration 2001 fca 1196minister immigration v rajamanikkam 2002 hca 32first applicant second applicant third applicant szcaqszcarszcasrespondent minister immigration multicultural indigenous affairsfile number syg2600 2003judgment raphael fmhearing date 01 february 2006date last submission 2006delivered sydneydelivered 24 february 2006representationsolicitors applicant parish patience immigrationcounsel respondent mr reillysolicitors respondent blake dawson waldronthe court declares decision refugee review tribunal made 14 october 2003 handed 6 november 2003 void effect court order 1 application refugee review tribunal made 31 december 2002 referred back tribunal differently constituted heard determined according law 2 respondent pay applicant cost assessed sum 4 000 federal magistratescourt australia atsydneysyg2600 2003szcaqfirst applicantszcarsecond applicantszcasthird applicantandminister immigration multicultural indigenous affairsrespondentreasons judgment1 three applicant proceeding husband wife son although elder male applicant alleged application protection visa wife arrested neither son made separate claim asylum treated delegate tribunal family member reason decision reference applicant male applicant applicant arrived australia 10 july 2002 23 august 2002 lodged application protection class xa visa department immigration multicultural indigenous affair 10 december 2002 delegate minister refused grant visa 31 december 2002 applicant applied review decision 1 august 2003 tribunal wrote applicant copy consultant letter headed name three applicant advising applicant tribunal considered material relation application unable make decision favour information alone applicant instructed advise applicant letter wife child invited come hearing tribunal give oral evidence present argument support claim applicant signed response hearing invitation cb 91 behalf family member advising family member required separate hearing indicating would attend applicant attend hearing clear transcript whether wife attended 2 applicant 45 year old karate teacher born educated delhi seek protection australia convention ground political opinion claimed become active member new india democracy movement nidm conducted class prominent communist thinker activist marx lenin mao nidm distributed magazine known new culture criticised certain tamil organisation naxalite communist party applicant claimed member nidm regularly subjected violence ruthless attack member party applicant claimed picked police eighteen occasion 1995 1998 february 1998 applicant arrested national security act spent four month prison taken back magistrate court term extended another six month original application applicant claimed january 2000 wife arrested placed jail three month tribunal stated incorrect time wife arrested whilst united state 2001 applicant travelled united state three time 1996 1999 august december 2001 returned united state 2001 discovered wife arrested decided leave country seek asylum australia feared wife returned india would face arrest imprisonment membership nidm 3 tribunal accept applicant say cb 105 commencement substantive part finding reason applicant gave unsatisfactory evidence tribunal membership organisation called nidm charge laid national security act time jail wife arrest reason apply refugee status usa whilst visiting usa 1996 1999 2001 4 applicant represented hearing mr dobbie filed amended application made two claim respect breach ofs 424aof themigration act 1958 particular tribunal failed give applicant writing particular first applicant protection visa application form 866part c lodged 23 august 2002 tribunal considered would reason part reason affirming decision review failed ensure far reasonably practicable applicant understood relevant review failed invite applicant comment tribunal relied onpart c schedule visa application form conviction listed first applicant cb 105 ii tribunal failed give applicant writing particular first applicant statutory declaration lodged first applicant protection visa application form 866 part b c 23 august 2002 tribunal considered would reason part reason affirming decision review failed ensure far reasonably practicable applicant understood relevant review failed invite applicant comment information included february 1998 arrested national security act sentenced 4 month prison taken back magistrate court sentence extended 6 month cb 106 b march 1998 first applicant picked police detained 2 3 day cb 106 c first applicant wife arrested january 2000 cb 107 first applicant arrested approximately 18 time 1995 1998 cb 107 court advised mr dobbie would appearing accordance usual practice looked green book basis applicant may self represented court concerned remark set made tribunal note part c schedule applicant primary visa application conviction charge listed applicant however statutory declaration attached primary visa application folio 47 applicant told tribunal correct stated inter alia february 1998 arrested national security act sentenced 4 month prison taken back magistrate court sentence extended 6 month statement clearly implied applicant tried court law found guilty offence sentenced magistrate sentence extended magistrate tribunal asked applicant arrested imprisoned sentenced february 1998 applicant told tribunal distributed nidm magazine contained article critical government tribunal pointed applicant appear criminal offence asked charged connection arrest applicant response police arrest person delhi person beaten impliedly charged tribunal asked applicant whether correct say held prison four month february 1998 charged offence applicant said charged offence although told something else file tribunal said telling held prison four month charged offence told charge applicant answered yes tribunal asked applicant knew charged offence told applicant answer question responded saying wife told arrested national security act nothing could done find applicant muddled evasive inconsistent implausible statement answer question asked relation whether charged offence national security act piece legislation indicate never charged found guilty offence moreover pointed applicant fond guilty jailed offence national security act unlikely would able subsequently obtained two different usa visa accept able obtain visa taught karate part time usa embassy court concerned tribunal may applying provision thethe national security act 1980 india reading inconsistent act indeed would inconsistent many act passed throughout world counter terrorism tribunal appeared questioning applicant basis required charged tried found guilty offence order imprisoned tribunal found applicant story relation brought magistrate court detained sit well procedure believe national security act 1980 require arrest charge trial finding guilt punishment way detention contains section 2 3 power make order detaining certain person 2 central government state government may satisfied respect person view preventing acting manner prejudicial security state acting manner prejudicial maintenance public order acting manner prejudicial maintenance supply service essential community necessary make order directing person detained explanation purpose sub section acting manner prejudicial maintenance supply service essential community include acting manner prejudicial maintenance supply commodity essential community defined explanation sub section 1 section 3 prevention black marketing maintenance supply essential commodity act 1980 accordingly order detention shall made act ground order detention may made act 3 regard circumstance prevailing likely prevail area within local limit jurisdiction district magistrate commissioner police state government satisfied necessary may order writing direct period may specified order district magistrate commissioner police may also satisfied provided sub section 2 exercise power conferred said sub section provided period specified order made state government sub section shall first instance exceed three month state government may satisfied aforesaid necessary amend order extend period time time period exceeding three month one time 5 proceeding commenced advised mr dobbie mr reilly concern relating tribunal finding allowed time prepare written submission mr reilly previously seen copy amended application submission also intended address claim found document 6 first point applicant make tribunal breached 424amigration actbut failing give applicant writing particular first applicant statutory declaration lodged protection visa application form 866 23 august 2002 tribunal considered would reason part reason affirming decision review information alleged included statement february 1998 applicant arrested national security act 1980 sentenced four month prison taken back magistrate court sentence extended six month cb 106 b march 1998 first applicant picked police detained 2 3 day cb 106 c first applicant wife arrested january 2000 cb 107 first applicant arrested approximately 18 time 1995 1998 cb 107 7 tribunal found tribunal asked applicant encountered many problem india applied refugee status usa 3 separate visit applicant response time first two visit usa 1996 1999 think severe problem india said wife arrested absence started thinking move family india inconsistent statement cast serious doubt applicant preceding evidence particularly relating claim jailed 1998 detained police approximately 19 time 1995 1998 satisfied neither applicant wife ever member organization called applicant nidm either distributed pamphlet issued vaguely described applicant organization either ever arrested jailed even questioned police political activity either interest authority matter go core applicant claim put applicant conclusion tribunal hearing find credibility claim refugee status complete fabrication 8 applicant say statement put tribunal intended use claimed detention yardstick ass credibility applicant statement severe problem india applicant suggest tribunal obligation point applicant going consider yardstick word severe applicant could explain whathemeant word seems point real problem submission leaving aside whether statement adopted applicant therefore information given purpose application tribunal within 424a 3 b szfkl v minister immigration 2005 fca 931at 7 8 szeie v minister immigration 2005 fca 987at 40 andszerv v minister immigration 2005 fca 1221at 11 whether statement contradiction reason part reason affirming decision review szeky v minister immigration 2005 fca 1138at 19 24 szbve v minister immigration 2005 fca 1325at 8 10 andszerv v minister immigration supra 11 real issue misunderstanding tribunal use word serious 9 mistake tribunal applicant meant word serious mistake fact unless mistaken fact jurisdictional fact jurisdictional error nabe v minister immigration no2 2004 fcafc 263 naav v minister immigration 2002 fcafc 228 applicant real claim tribunal taken particularly strong view inconsistency found used existence inconsistency take firm view applicant credibility tribunal may hard upon applicant appeal another court might said use word severe context constitute inconsistent statement dealt tribunal interpreted applicant evidence way led find applicant little credibility think interfere finding 10 next complaint relates finding arising applicant alleged arrest national security act applicant argues tribunal relied fact exist draw inference make material finding adverse fact say exist national security act required person charged tried court law sentenced associated allegation tribunal failed take account relevant consideration failed make necessary investigation irrelevant consideration section 2 3 13 national security act section 13 provides maximum period detention 12 month 11 already set 4 reason tribunal reference claim concerning applicant detention national security act matter set illuminated transcript t10 t12 q okay page could please tell whether arrested february 1998 national security act didand put gaol q yes yes q february 1998 february 1998 yes took four month q imprisoned four month yes please q answer question ask sureq arrest national security act distributing magazine stuff already arrested sometimes q offence interpreter writing central government police q offence interpreter writing central government police q offence interpreter writing something personally mention inaudible episode also q say arrested national security act february 1998 imprisoned four month right yes q tried offence interpreter delhi indian part police arrest charge start beating want show somebody arrested q pardon want show someone arrested q others q arrested held prison four month charged offence time told nothing q answer charged offence charged offence told nothing put something file q clear say held prison four month charged offence told trying tell yes q know charged offence sorry say interpreter wife trying get told arrested national security act nothing done parent also u q strange statutory declaration page two paragraph say march 1998 picked police selling magazine taken local police station detained two three day released correct yes q could tell arrested february 1998 detained four month could could arrested picked march 1998 supposed already prison interpreter mistake date q yes must mistake date interpreter must mistake date q well interpreter date must somewhere beginning 98 q also say bottom page february 1998 arrested national security act told three time correct sentenced four month say something strange say taken back magistrate court term extended another six month mean interpreter wife trying get released q pardon interpreter wife trying get released somehow put appeal magistrate engaging lawyer q term extended another six month prison ten month six month q able believed told imprisoned four month trying tell imprisoned ten month four month took magistrate extended six month 12 applicant argues view tribunal national security act required arrested charged tried court law sentenced respondent argues implication arose applicant statement view would arise applicant statement mind person assumes normal western procedure would apply longer normal western procedure since passing anti terrorism legislation much western world point view tribunal benefit copy national security act used term applicant appropriate normal criminal procedure procedure act transcript reveals applicant tried explain situation tribunal arrested act police charge tried explained told nothing offence wife made enquiry detained informed arrested national security act regime australia person detained anti terrorism legislation really much different described applicant certainly third party enquiring person detained would received information know situation india national security act quite clear tribunal tribunal attitude may understandable decision made 2003 general awareness reach anti terrorist legislation tribunal consulted act seen applicant story consistent term legislation might taken harsh view credibility 13 mistake regarding foreign law mistake fact savic v minister immigration multicultural affair 2001 fca 1787at 14 vhaj others v minister immigration 2003 fcafc 186 2003 131 fcr 80at 11 principle also clearly stated inapplicants v 722 2000 v minister immigration 2002 fca 1059where ryan j relation question proof foreign law 32 33 32 trite proposition state effect law foreign country question fact see eg phipson evidence 15th edn p 974 susceptible proof expert evidence witness suitably qualified express opinion law relevant foreign state see eg duke wellington 1947 ch 506at 514 33 however necessary court tribunal resort expert evidence kind order make finding effect relevant law foreign country example text presumably relevant statute country authoritative statement legal text book authority appears suggest sufficient precision effect law question court tribunal entitled absence contradictory expert evidence make finding accordingly evidence act cth 1995 174 1 could said tribunal mistaken effect foreign law could said tribunal regard irrelevant matter interpretation law could said tribunal failed regard relevant matter actual law tribunal failed make enquiry circumstance enquiry would easy prompted assertion claim made applicant relation matter direct bearing tribunal view applicant credibility generally speaking tribunal duty enquire minister immigration v surjit singh 1997 74 fcr 553 wagj v minister immigration 2002 fcafc 277 minister immigration v sglb 2004 hca 32 2004 78 aljr 992 way example insglb supra high court held whilst tribunal power obtain medical report may aided enquiry themigration actdid impose duty obligation request applicant inw41 01a v minister immigration 2001 fca 742at 19 23 r nicholson j articulated duty enquire may exist exceptional rare circumstance case tribunal already concluded applicant claim implausible correct exception general rule duty enquire tribunal obligation conduct hearing according rule procedural fairness require tribunal enquire unclear fact would unreasonably difficult namo v minister immigration 2004 fmca 14at 15 namo v minister immigration 2004 fca 1419 inprasad v minister immigration 1985 fca 47 1985 6 fcr 155wilcox j said 170 case obvious material readily available centrally relevant decision made seems proceed decision without making attempt obtain information may properly described exercise decision making power manner unreasonable reasonable person would exercised decision followed inre minister immigration ex parte cassim 2000 hca 50 2000 175 alr 209 w41 01a v minister immigration 2001 supra azzi v minister immigration 2002 fca 24 readily seen enquiry consists merely checking wording piece foreign legislation written english readily available internet would fall category exception failure enquire amount failure accord procedural fairness 14 respondent argues fair reading tribunal decision operation national security act hardly critical issue case opposed applicant contradiction evidence sure contradiction tribunal describes applicant view severity situation india contradictory found matter interfere although doubt constitutes contradiction contradiction applicant claimed arrested picked march 1998 also claimed arrested national security act february 1998 applicant put mistake date tribunal claim contradiction fact applicant said arrested four month term extended six month contradiction one regard national security act contradiction applicant said conviction charge part c schedule document tribunal interpreted clearly implying applicant tried court law found guilty offence sentenced magistrate sentence extended magistrate would contradiction national security act considered implication would existed tribunal also alleges applicant evidence muddled evasive inconsistent implausible tribunal may well come view applicant evidence regard national security act read act view tribunal failure regard national security act caused come negative view applicant credibility applicant lack credibility given tribunal reason accepting story therefore considering person australia owed protection obligation credibility applicant jurisdictional fact naav v minister immigration 2002 fcafc 228 wafp v minister immigration 2003 fcafc 319 nabe v minister immigration 2 2004 fcafc 263 buts 422bof themigration act 1958 cth already place application made rule procedural fairness thereby much proscribed view better way looking tribunal action regard failure consider national security act failure take account relevant material constitutes jurisdictional error minister immigration v yusuf 2001 plaintiffs157 2002 v commonwealth australia 2003 211 clr 476 nabe v minister immigration 2 2004 fcafc 263 w352 v minister immigration 2002 fca 398 nadh 2001 v minister immigration 2005 214 alr applicant m185 2003 v minister immigration 2005 fcafc 230 15 think circumstance tribunal fallen jurisdictional error way came conclusion relation case think exercise discretion ignore jurisdictional error tribunal decision firmly based upon credibility erroneous finding regard even sole finding relation credibility must infect whole decision paul v minister immigrationaffairs 2001 fca 1196 minister immigration v rajamanikkam 2002 hca 32 16 declare decision refugee review tribunal made on14 october 2003 handed 6 november 2003 void effect order application refugee review tribunal referred back tribunal differently constituted heard determined according law order necessary prerogative writ required order respondent pay applicant cost ass sum 4 000 certify preceding sixteen 16 paragraph true copy reason judgment raphael fmassociate date 24 february 2006

Silvana Cizerle v Human Resources - DOCEP [2005] WAIRComm 2984 (8 November 2005).txt

silvana cizerle v human resource docep 2005 waircomm 2984 8 november 2005 last updated 9 july 2007western australian industrial relation commissionpartiessilvana cizerleappellant v human resource department consumer employment protectionrespondentcorampublic service arbitratorcommissioner p e scottdatetuesday 8 november 2005file nopsa 18 2005citation 2005 wairc 02984resultappeal dismissedorderwhereas reclassification appeal made pursuant theindustrial relation act 1979 andwhereas notice hearing dated 24thday october 2005 hearing scheduled convened tuesday 8thday november 2005 9 00am appellant show cause appeal dismissed andwhereas hearing tuesday 8thday october 2005 9 00am appearance appellant therefore public service arbitrator pursuant power conferred theindustrial relation act 1979 hereby order appeal hereby dismissed commissioner p e scottpublic service arbitrator

R v Tuncbilek [2000] NSWCCA 465 (24 October 2000).txt

r v tuncbilek 2000 nswcca 465 24 october 2000 last updated 10 november 2000new south wale criminal court appealcitation r v tuncbilek 2000 nswcca 465file number 60349 00hearing date 24 10 00judgment date 24 10 2000parties regina v tarkan tuncbilekjudgment sheller ja dowd j smart ajlower court jurisdiction district courtlower court file number 99 11 0587 99 11 0707lower court judicial officer ainslie wallace dcjcounsel crown p hock respondent r burgesssolicitors crown e connor respondent b duchencatchwords crown appeal sentence armed robbery illness intellectual disability legislation cited crime act 1900decision appeal dismissed judgment court ofcriminal appeal60349 00sheller jadowd jsmart ajtuesday 24 october 2000regina v tarkan tuncbilekjudgment1smart aj director public prosecution appeal alleged inadequacy sentence robbery armed dangerous weapon 2 sentence one six year imprisonment non parole period three year judge took account two unrelated charge robbery whilst armed dangerous weapon one charge take drive conveyance without consent owner director also appeal concurrent sentence three year imprisonment second armed robbery committed immediately first armed robbery location prisoner convicted jury trial lasting ten day 3 21 may 1999 holden commodore vkf 299 stolen little church street ryde prisoner two co offender travelled stolen vehicle concord west newsagency vehicle stopped short distance newsagency one co offender remained driver seat vehicle engine running 4 2 30 2 40 pm mr sorbello serving customer newsagency co offender followed prisoner entered shop prisoner produced silver replica pistol asked safe told open till pistol pointed chest 120 removed till co offender office area 5 mr sorbello son working outside mother shop noticed man walk street shop son entered shop directed lie floor front counter whilst son lying ground prisoner tapped shoulder pistol demanded bum bag obtaining bag offender left newsagency bag contained son wallet 120 cash personal item 6 prisoner co offender returned stolen vehicle three offender left area vehicle short time later police observed vehicle followed pursuit commenced ultimately stolen car crashed occupant ran away prisoner co offender apprehended distance scene accident driver arrested nearby pleaded guilty driving car used robbery 7 mr hickey co offender tried time prisoner absconded jury deliberating convicted absence 8 prisoner defence part robbery area arrested way shop hired video turkish language claimed intended hire video watch mother 9 offence taken account first robbery whilst armed dangerous weapon occurred 4 april 1999 prisoner co offender entered bottle shop paddington prisoner armed handgun pointed chest lone sale assistant co offender punched sale assistant jaw knocking display prisoner co offender rifled drawer till removing 200 demanded victim wallet available shop 10 second armed robbery taken account occurred 17 may 1999 prisoner stopped lone female victim intersection chippendale pretence asking direction prisoner produced silver coloured semi automatic styled pistol short menaced victim telling get car victim afraid life backed away prisoner grabbed victim car key also gave prisoner handbag prisoner got victim car valued 38 000 drove left traumatised street 11 arising incident prisoner also charged take drive conveyance without consent owner 12 prisoner born 24 august 1977 lengthy record beginning july 1991 record includes major lesser offence include sexual assault offence break enter steal offence driving offence robbery company escape lawful custody assault occasioning actual bodily harm 13 october 1997 sentenced respect three count robbery armed company received minimum term three year ending 3 january 1999 additional term three year ending 3 january 2002 six count robbery armed company taken account well charge robbery common assault assault police 14 subject offence taken account committed prisoner parole 23 may 2000 prisoner parole order revoked directed serve balance parole period two year seven month 14 day prisoner sentence started 21 may 1999 mean prisoner serve two day revoked parole period uncommon successive sentence 15 material reveal prisoner father died 1991 prisoner much affected became confused prisoner sister said prisoner always difficult behavioural problem father understand behavioural problem eventually diagnosed product illness used violent towards prisoner prisoner mother sister older brother supportive continues 16 sister stated mother poor english unable comply treatment medication regime prescribed prisoner doctor time time report dr g l serfontein 4 september 1992 record assessed treated prisoner past attention deficit disorder date report dr serfontein thought prisoner still distinct feature attention deficit disorder 17 dr serfontein noted apart prisoner inattentiveness restlessness remained impulsive low frustration threshold self esteem poor dr serfontein stressed crucial prisoner take medication report 7 december 1992 dr serfontein wrote prisoner severe form attention deficit disorder medication every day year dr serfontein stated prisoner behaviour could modified given ability cope change environment could attention deficit disorder untreated 18 prisoner sister said brother always getting trouble school accepted sought company child older quickly fell bad company 19 report april 1997 associate professor susan hayes wrote prisoner receptive language level three year eleven month continued mr tuncbilek mildly intellectually disabled overall function cognitively level lower 99 7 per cent population adaptive behaviour level lower 99 9 per cent population particular poor communication skill especially receptive language say great difficulty understanding people say also find difficult express verbally relation diagnosis attention deficit disorder possible suffered attention deficit disorder may still extent also intellectual disability mean short attention span intellectual disability plus aggressive behaviour school meant received inadequate schooling assistance year mr tuncbilek need prepared release context mild intellectual disability serious deficit communication skill cannot comprehend behaviour difficulty understanding long term effect thing describes acting spur moment probably correct description situation think need involved anger management class specifically designed people mild intellectual disability also need involved vocational preparation program similarly designed people mild intellectual disability since highly motivated towards good parent son would also good strategy involve parenting skill class would able perceive practical application class combination aggressive behaviour poor attention span mild intellectual disability contributed mr tuncbilek offending behaviour past vital rehabilitation program designed bearing mind intellectual disability 20 dr thomas oldtree clark examined prisoner 18 july 1997 noted well educated due difficulty also noted finding professor hayes prisoner difficulty understanding people say received schooling detention centre dr clark concluded prisoner still attention deficit syndrome adult version disorder concluded clear man disorder recognised psychiatric syndrome attempt made treat enter suitable program addition problem disculturalisation move hinterland society prison control put behaviour released recognise glimmer hope paradox steady relationship family mother sister particularly positive well obvious disturbance suffers intellectual retardation effect disorder controlled learn degree hope 21 progress report probation parole service annandale district office record prisoner admitted relapsed heroin usage three four week prior alleged offence period ten day habit cost 400 daily report state given extensive psychological assessment one month prior offence near time admitted relapse assessment confirmed mild intellectual disability considered would vulnerable influence peer otherwise outwardly progressing well time mr tuncbilek benefit strong family support mother sister stated descended quickly heavy drug usage adverse influence associate 22 family arranged enter detoxification unit 31 may 1999 unfortunately subject offence intervened 23 evidence prisoner dealt briefly learning difficulty difficulty school got trouble went number boy home juvenile detention centre said started taking drug like marijuana eleven twelve started drinking fifteen sixteen started heroin couple year later heroin addiction came later still experienced difficulty girlfriend son said took heroin gaol free heroin release six week took heroin reached stage needed treatment encouragement family agreed see doctor 15 march 1999 receiving referral specialist heroin addiction 24 judge held given intellectual capacity prisoner element deterrence prominent case disability however expressly recognised general deterrence must play part sentencing process recognised sentence imposed must reflect individual deterrence correctly took account clear need rehabilitation prisoner addiction enable lead crime free life eventual release would need considerable support guidance obvious professor hayes report need depth support special kind extended period 25 judge emphasised objective seriousness offence careful lose sight overall criminality prisoner action judge regard judgment court inr v henry or 1999 nswcca 111 1999 46 nswlr 346 held case prisoner made real choice using drug age started using drug became addicted limited intellectual functioning 26 took drug addiction account limited way mitigation recognised sentence imposed must recognise prisoner engaged violent crime member public 27 judge correctly recognised special circumstance justifying longer usual non parole period included prisoner youth need rehabilitation significant period support supervision release prison judge finding special circumstance challenged appeal 28 judge gave question correct sentence significant thought took account relevant consideration obvious tension length sentence required overall criminality revealed prisoner conduct special subjective feature including illness namely attention deficit syndrome need controlling medication necessary trial marked disability inevitable consequence least easily led also drug addiction relative youth make appeal troubling medical intellectual condition contributes much behavioural problem grave criminality action 29 crown contended written submission judge made three specific error mistakenly stated maximum penalty 20 year whereass 97 2 thecrimes act 1900fixes maximum penalty 25 year submitted error alone entitled court intervene sentence mason 2000 nswcca 82 chanh thanh manswcca 31 march 1995 unreported case overstating maximum penalty appeal accused b failed give sufficient weight offence taken account two separate unrelated armed robbery offence necessary give proper weight offence taken account procedure fails achieve true purpose bavadra 2000 nswcca 292 paragraph 31 per wood cj cl c judge gave insufficient weight seriousness prisoner parole time offence abuse conditional liberty represented 30 submitted prisoner extensive criminal record including previous conviction armed robbery parole weapon used dangerous knife plea guilty factor led situation serious contemplated inhenry or supra factor justified significantly higher head sentence five year benchmark judge mention factor present case serious henry mention similar feature thus submitted little additional penalty imposed offence taken account reliance placed onbavadra 31 doubt misstatement maximum penalty negligible impact penalty imposed misstatement may well slip tongue one sentence hearing drew judge attention point regard replica toy pistol dangerous knife submitted reverse position fact even though armed replica toy pistol carry greater maximum penalty reason 32 judge stated expressly took account two offence armed robbery contained form 1 gave short summary also took account offence stealing car noted related second robbery judge took account total criminality stating subject offence part course conduct prisoner committed number distinct act criminality offence involved conduct similar kind 33 judge treated commission offence prisoner parole matter aggravation 34 understatement maximum penalty specific error negligible consequence matter relied upon support argument specific error established leniency sentence bespeaks error last alternative referred inhouse v king 1936 hca 40 1936 55 clr 499at 505 dinsdale v queen 2000 hca 54reminds court need find identify error consequence 35 approach matter basis court decide whether leniency sentence bespeaks error appreciate force argument crown earlier recounted offence serious inhenry plea guilty poor record contained many similar serious offence previously received similar sentence similar offence 36 serious armed robbery taken account offence committed parole serve balance sentence earlier offence course offence sentenced led revocation parole 37 illness intellectual disability prisoner sentence would manifestly inadequate say sentence bespeaks error given matter mentioned earlier 38 prisoner illness intellectual disability sentence imposed though low side ought disturbed exceptional case emphasise need prisoner receive proper treatment gaol problem well planned supervised program release prevent happened release january 1999 39 propose crown appeal dismissed 40sheller ja mypart ihave found appeal troubling circumstance strike penalty imposed indeed lenient one however reason justice smart given come conclusion ground made crown court intervene accordingly agree order honour proposes 41dowd j agree remark presiding judge agree remark justice smart order proposes 42sheller ja accordingly appeal dismissed last updated 03 11 2000

THERA AGRI CAPITAL NO 2 PTY LTD v WAKE & ANOR [2023] SASC 96 (22 June 2023).txt

thera agri capital 2 pty ltd v wake anor 2023 sasc 96 22 june 2023 last updated 26 june 2023supreme court south australia civil 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 thera agri capital 2 pty ltd v wake anor 2023 sasc 96judgment judge dart master supreme court22 june 2023procedure civil proceeding state territory court ending proceeding early summary disposal summary judgment plaintiff applicantrespondents gave guarantee applicant relation loan company also gave security applicant security includes real property company defaulted receiver appointed sold real property applicant requires respondent sign transfer document contractual term effect order sought directing respondent sign relevant document held 1 applicant entitled order respondent execute relevant document permit transfer subject land purchaser mirzikinian v tom bill waterhouse pty ltd 2009 nswca 296 master v garcia 2 2006 nswca 15 considered thera agri capital 2 pty ltd v wake anor 2023 sasc 96this application summary judgment claim limited scope respondent partnership registered proprietor particular farming land guaranteed loan given applicant company called romley pty ltd liquidation farming property provided security loan respective obligation guarantor company defaulted loan obligation requisite notice served respondent comply notice result applicant appointed receiver offered farming property sale contract sale entered receiver due settle 17 june 2023 registered proprietor natural person receiver required act power attorney execute transfer document lodged land title office principal loan documentation contained document called general security deed gsd deed contains grant power attorney grant commonly contained security document registrar general requires production original gsd accept transfer document executed receiver power attorney applicant executed copy gsd unable locate original executed copy deed dispute gsd executed respondent second hearing respondent pointed gsd may ever executed applicant led adjournment hearing applicant filed affidavit additional submission applicant say gsd deed operates unconditionally delivery matter applicant may signed respondent returned deed executed email 17 february 2021 inmirzikinian v tom bill waterhouse pty ltd 1 new south wale court appeal held delivered deed binding ipp ja said follows 2 inmonarch petroleum v citco petroleum 1986 war 310kennedy j judge deep knowledge law relating deed said 355 delivery mean conduct indicating person executed deed intends bound anything show treat instrument deed suffice depends upon intention manifested word act either expressly proved inferred circumstance carile 1920 arguslawrp 96 1920 vlr 427at 433 356 particular form word act necessary constitute delivery word act sufficiently show intended finally executed necessary deed delivered possession custody person intended take benefit deed someone behalf frequently inferred execution honour reasoning followed inscook v premier building solution pty ltd others 2003 wasca 263 2003 28 war 124where steytler j mckechnie hasluck jj agreed said 25 enough meet requirement delivery act word sufficient show document intended party executed deed presently binding tupper v foulkes 1861 engr 240 1861 142 er 314at 319 xenos v wickham 1867 uklawrphl 15 1867 lr 2 hl 296at 312 per blackburn j windsor refrigerator co ltd v branch nominee ltd 1961 ch 88at 98 per cross j andvincent v premo enterprise voucher sale ltd 1969 2 qb 609at 619 per lord denning mr need physical handing deed doe garnons v knight 1826 engr 153 1826 108 er 250at 257 andxenos v wickham hl 323 whether delivery question fact xenos v wickham hl 309 311 319 ansett transport industry operation pty ltd v comptroller stamp vic 1985 vicrp 7 1985 vr 70at 78 intention deliver may expressly proved inferred circumstance carile dakin v trustee executor agency co ltd 1920 arguslawrp 96 1920 vlr 427at 433 intention ascertained circumstance prior contemporaneous delivery permissible look later event order ascertain intention person concerned critical time poole v neely 1976 1 nzlr 529at 541 monarch petroleum 356 25 applicant point evidence respondent twice confirmed amending deed executed party transactional document including gsd remained full force effect party entered written agreement 25 march 2022 effect confirming gsd valid enforceable appears arguable issue relation enforceability gsd delivered binding respondent sought action various order allow contract sale land settle first order one requiring respondent execute document necessary permit transfer land purchaser right order said arise clause 10 05 b gsd 10 05 assurancewhenever secured party request grantor anything b aiding execution exercise right power remedy authority conferred deed collateral security grantor shall immediately cost compliance clause may include execution registering document agreement financing statement delivery document evidence title secured property execution delivery transfer obtaining consent third party order type specific performance deed however form mandatory injunction distinction two explained inmasters v garcia 2 3 court said 4 convenient note although talk remedy way specific performance case executed contract obligation one party perform particular obligation outstanding relief may better described injunctive relief seeburns philp trust co pty ltd v kwikasair freightlines ltd 1963 63 sr nsw 492 496 497 sugerman hardie collins jj court grant appropriate injunction affirmative mandatory form obligation properly regarded affirmative obligation enforce negative stipulation ibid 499 order sought requires respondent perform outstanding obligation contained gsd nature final relief hearing respondent sought time seek legal advice file submission since filed submission effect submission property sold receiver subject security given applicant case clearly applicant would entitled order sought mentioned gsd primarily regulates relation party respondent defined grantor schedule 2 gsd clause 3 1 document respondent granted security interest secured property latter term defined document mean grantor present acquired property including without limitation land property definition land property refers property right kind including real property asset nature satisfied circumstance respondent registered proprietor subject property granted security interest applicant respect subject property applicant contractually entitled order order obliges respondent comply contractual obligation basis put respondent would require court decline make order order form sought 1 2009 nswca 296 2 2009 nswca 296at 33 34 3 2006 nswca 15 4 2006 nswca 15at 30

ARDILL v POLICE [2005] SASC 450 (30 November 2005).txt

ardill v police 2005 sasc 450 30 november 2005 last updated 1 december 2005supreme court south australia magistrate appeal criminal 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 ardill v policejudgment honourable justice gray30 november 2005traffic law offence particular offence driving manner dangerous publicappeal conviction driving speed manner dangerous public whether finding magistrate open evidence consideration public interest held error magistrate appeal dismissed road traffic act 1961 sa 46 crime act 1900 nsw 52 traffic act 1925 ta 32 1 referred stoeckel v harpas 1971 1 sasr 155 king v conventry 1938 hca 31 1937 38 59 clr 633 mcbride v queen 1966 hca 22 1965 66 115 clr 44 pope v hall 1982 30 sasr 78 r v smith 1969 tasstrp 24 1969 ta sr 159 mark senior v south australia police 2005 sasc 88 considered ardill v police 2005 sasc 450magistrates appealgray j 1this appeal conviction 2the appellant robert gunson ardill chargedinter aliawith offence driving speed manner dangerous public contrary section 46 theroad traffic act 1961 sa 27 july 2005 following trial magistrate convicted appellant charge 3section 46 theroad traffic actrelevantly provides 1 person must drive vehicle recklessly speed manner dangerous public 2 considering whether offence committed section court must regard nature condition use road offence alleged committed b amount traffic road time offence c amount traffic might reasonably expected enter road road place relevant circumstance whether nature mentioned trial4the prosecution case 7 55 pm 10 december 2003 police officer observed appellant motorcycle pillion passenger appellant stopped traffic light marion road intersection marion road south road officer also motorcycle 5the officer observed appellant accelerate rapidly stationary position process wheelie meant appellant drove manner front wheel motorcycle left ground rode forward rear wheel contact road surface 6it crown case following incident appellant rapidly increased speed travelling alleged speed kilometre per hour 70 kilometre per hour zone along flagstaff road police officer followed appellant appellant crown case approached roundabout slowed weaved traffic manner police officer described dangerous cleared roundabout appellant accelerated speed 130 kilometre per hour 80 kilometre per hour zone along happy valley drive 7the police motorcyclist activated warning light sounded siren appellant appear respond police motorcyclist drew along side appellant indicated pull appellant 8flagstaff road winding approximately 2 kilometre straightens number road accessed relevant section flagstaff road two lane southbound one lane northbound traffic however change depending time day black road intersection controlled roundabout two lane southbound large median strip separate southbound northbound traffic happy valley drive one lane direction travel broken white line separate two lane police officer described happy valley drive slow continuous bend 9at trial appellant acknowledged accelerated manner led front wheel leaving ground explained occasioned bump road appellant denied attained speed 130 kilometre per hour acknowledged speed well speed limit area assessed speed 100 120 kilometre per hour 10the appellant denied weaved traffic vicinity roundabout explained evidence moved traffic staggered fashion manner considered safe appellant acknowledged sped beyond speed limit maintained speed exceed 100 120 kilometre per hour 11the appellant claimed unaware police motorcyclist following hear siren explained motorcycle rear vision mirror provided limited rear vision size said helmet wearing noise motorcycle made hearing difficult 12in course evidence appellant informed magistrate one first occasion first ridden particular motorcycle pillion passenger explained experienced motorcycle rider considered could travel quite safely speed travelling occasion acknowledged motorist roadway vicinity roundabout claimed danger occasioned motorist section road exceeded speed limit claimed whilst limited traffic motorist endangered action 13the learned magistrate preferred evidence appellant police officer speed however magistrate preferred evidence police officer manner appellant moved traffic vicinity roundabout 14the magistrate reached conclusion ride speed admitted appellant manner observed police officer amounted driving speed manner dangerous public course reasoning magistrate concluded make quite clear defendant note 70 zone built area drive speed even happy valley road flagstaff road well known built area although may slip lane around flagstaff hill clear enough vehicle expected time night emerging either side assure great potential danger appeal15on appeal appellant appeared person submitted police officer opportunity observe manoeuvre roundabout limited due distance separating officer roundabout submitted officer far away able make reliable observation appellant sought tender plan photograph make good point 16at trial appellant represented counsel plan photograph subject proposed tender appeal either existence could existence reasonable step taken evident number document bar table trial pursuant considered decision tendered 17it appropriate receive material appeal trial deliberately conducted without reference evidence evidence either available could available reasonable step taken time basis established would permit receipt evidence appeal 18the finding fact made magistrate open error shown process reasoning appellant shown regard immaterial consideration failed regard relevant consideration issue whether judge appeal would reach different conclusion whether conclusion reached magistrate open evidence view accordingly challenge factual finding cannot sustained 19the appellant contended notwithstanding finding conduct amount driving speed manner dangerous public drew attention width carriageway generally quiet road condition time 20as earlier observed appellant claimed highly skilled young alert motorcyclist could safely travel speed manner travelled occasion 21the conduct driver assessed according objective standard incoventry 1 latham cj rich dixon mctiernan jj observed 2 standard impersonal universal sense vary individual universal sense applicable case person drive motor vehicle speaking generally expression driving speed manner dangerous public describes actual behaviour driver require given state mind essential element offence 22inmcbride 3 barwick cj noted 4 section 5 speaks speed manner dangerous public import quality speed manner driving either intrinsically circumstance particular circumstance surrounding driving real sense potentially dangerous human human being member member public may upon vicinity roadway driving taking place may course potential danger property vicinity roadway would suffice make speed manner driving dangerous public person may drive speed manner dangerous public without causing actual injury potentiality fact danger public manner driving whether realized accused make dangerous public within meaning section concept dangerous driving sharp contrast concept negligence concept section deal requires serious breach proper conduct vehicle upon highway serious reality speculatively potentially dangerous others involve mere breach duty however grave particular person significance damage caused thereby 23the meaning dangerous public also discussed well j inpope v hall 6 circumstance impeached driving passed beyond point represented mere departure nothing serious rule ordinary highway code became serious departure rule manner speed driving created wholly unreasonable unwarranted danger life limb road user one directing jury one would say ask likely circumstance accident sort would occur time assuming accident occur serious would weighing factor together able determine degree risk created situation word dangerous defendant driving 24the term public defined theroad traffic act however remark burbury cj dealing comparable section 7 insmith 8 apposite 9 public endangered speed manner driving therefore protected statute therefore regarded number particular individual endangered innominate class section community aggregate shown actually potentially within ambit danger created speed manner driving section concerned breach duty drive carefully vi vi particular person 25inmark senior v police 10 sulan j considering whether driver could constitute member public noted 11 significant public interest preventing road accident even victim driver alone vehicle person put risk driving policy act ensure driver motor vehicle comply rule road drive safely avoid accident may result death injury damage social economic cost community road user injured accident involving 26all road user particular vehicle driver motorcyclist alert danger road everyday carnage road bring home need vigilance care need defensive driving important factor emphasise need compliance road rule observation well j instoeckel v harpas 12 concerning need defensive driving remain relevant three decade 13 three four decade ago speaking generally reasonable expect driver deal exigency motor pedestrian traffic presented moment moment asked look far ahead seek possible trouble today think situation changed fundamentally population increased high proportion family least one car infrequently two accident numerous death road become tragically familiar circumstance think court performing role jury entitled indeed bound require motorist measure sometimes called defensive driving look see immediate immediately developing danger look well ahead search potential danger nowadays example young child footpath person many foot away human may suddenly present path green light authority spring mark without thought invitation look right left moving case someone trying unsuccessfully beat light bus stationary vehicle represents cover time pedestrian may emerge car turning flicker may going turn may left flicker inadvertently car following kept respectable distance front moment driver may stop slow virtually without notice crest road another part road danger point motorist coming opposite direction may well seek pas rise situation countless others besides call consideration reasonable driver experience repeatedly shown peril road time go seem giving le le warning emergence course said corollary road user marked increase power weight speed today vehicle compared immediate post war period implication driver motor vehicle view stronger court time time spoken need guard human folly opinion need court emphasize guarding referred includes ever present attempt foresee danger well ahead immediate driving situation 27on appellant admission either first nearly first occasion rode motorcycle pillion passenger incident front wheel motorcycle left roadway demonstrates even experienced rider confront circumstance leading potential loss control appellant explained rear vision mirror body size allowed limited view rear helmet precluded aware hearing noise police siren accordingly view obscured ability hear impaired notwithstanding appellant asserted motorcycle experience riding ability follow riding speed manner found magistrate safe allowance must made road user appellant pillion passenger appellant police officer road user roundabout road user must contemplate driver expect road user comply road rule particular comply speed limit motorist others area would expect encounter motorcycle travelling 100 120 kilometre per hour 28having regard circumstance open appropriate magistrate conclude appellant driving speed manner dangerous public 29this appeal dismissed 1 king v coventry 1938 hca 31 1937 38 59 clr 633 2 king v coventry 1938 hca 31 1937 38 59 clr 633at 638 3 mcbride v queen 1966 hca 22 1965 66 115 clr 44 4 mcbride v queen 1966 hca 22 1965 66 115 clr 44at 49 50 5 crime act 1900 nsw section 52 worded follows speed manner dangerous public 6 pope v hall 1982 30 sasr 78at 79 80 7 thetraffic act1925 ta section 32 1 person drive motor vehicle public street recklessly speed manner dangerous public regard circumstance case including nature condition use public street amount traffic actually time might reasonably expected public street guilty offence act 8 r v smith 1969 tasstrp 24 1969 ta sr 159 9 r v smith 1969 tasstrp 24 1969 ta sr 159at 163 163 10 mark senior v south australia police 2005 sasc 88 11 mark senior v south australia police 2005 sasc 88at 20 footnote omitted 12 stoeckel v harpas 1971 1 sasr 172 note see alsowalton v rowbottom unreported judgment 9362 17 september 1996 von doussa j 13 stoeckel v harpas 1971 1 sasr 172 note

Fingal Pastoral Pty Ltd v Page Seager Lawyers (No 2) [2020] TASSC 40 (6 August 2020).txt

fingal pastoral pty ltd v page seager lawyer 2 2020 tassc 40 6 august 2020 last updated 29 september 2020 2020 tassc 40citation fingal pastoral pty ltd v page seager lawyer 2 2020 tassc 40parties fingal pastoral pty ltdvpage seager lawyer firm file 922 2014delivered 6 august 2020delivered launcestonhearing date written submissionsjudgment pearce jcatchwords procedure civil proceeding state territory court cost depriving successful party cost conduct party proceeding generally failure admit fact notice admit certified reasonable supreme court rule 2000 ta r 401 aust dig procedure 1542 procedure civil proceeding state territory court cost offer compromise payment court settlement offer compromise offer settle consent judgment pursuant rule generally tasmanian rule application wholly successful defendant supreme court rule 2000 ta r 280 aust dig procedure 1581 procedure civil proceeding state territory court cost offer compromise payment court settlement informal offer calderbank letter unreasonable refusal offer application successful defendant indemnity cost refusal offer refusal offer unreasonable time refusal stewart v atco control pty ltd liquidation 2 2014 hca 31 252 clr 331 referred miwa pty ltd v siantan property pty ltd 2 2011 nswca 344 applied aust dig procedure 1591 representation counsel plaintiff g robert sc k loxleydefendant b mcelwaine scsolicitors plaintiff shield heritagedefendant shaun mcelwaine associatesjudgment number 2020 tassc 40number paragraph 60serial 40 2020file 922 2014fingal pastoral pty ltd acn 009 478 817 v page seager lawyer firm abn 37 078 672 294 2 reason judgment pearce j6 august 2020this decision cost unsuccessful action action plaintiff claimed damage defendant firm solicitor breach contract negligence misleading deceptive conduct provision legal advice 19 december 2019 found plaintiff action defendant failed fingal pastoral pty ltd v page seager lawyer 2019 tassc 48 dismissed action ordered judgment defendant reason read earlier reason ordinary course successful party litigation entitled order unsuccessful party pay cost action party party basis case party contend depart usual order make cost order favourable party defendant applies special order plaintiff pay solicitor client cost alternatively indemnity cost 30 may 2018 filed served offer compromise accompanied acalderbankoffer also seek order defendant cost determined fixed amount plaintiff oppose order pay percentage defendant cost however contends defendant cost determined party party basis either required pay 80 cost alternative defendant required meet cost incurred plaintiff connection specified issue matter defendant applicationthe power award cost discretionary power jurisdiction derives thesupreme court civil procedure act1932

ASP Ship Management Pty Ltd [2019] FWCA 643 (4 February 2019).txt

asp ship management pty ltd 2019 fwca 643 4 february 2019 last updated 5 february 2019 2019 fwca 643fair work commissiondecisionfair work act 2009s 185 enterprise agreementasp ship management pty ltd ag2018 5567 asp ship management aimpe engineer tt line fleet enterprise agreement 2017maritime industrycommissioner leemelbourne 4 february 2019application approval asp ship management aimpe engineer tt line fleet enterprise agreement 2017 1 application made approval enterprise agreement known theasp ship management aimpe engineer tt line fleet enterprise agreement 2017 agreement application made pursuant tos 185of thefair work act 2009 act made asp ship management pty ltd agreement single enterprise agreement 2 employer provided written undertaking copy undertaking attached annexure satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement 3 subject undertaking referred satisfied requirement ofss 186 187 188and190as relevant application approval met 4 pursuant tos 205 2 act model consultation term prescribed thefair work regulation 2009is taken term agreement 5 australian institute marine power engineer bargaining representative agreement given notice 183 act want agreement cover accordance withs 201 2 note agreement cover organisation 6 agreement approved accordance 54 act operate 11 february 2019 nominal expiry date agreement 31 july 2019 commissionerprinted authority commonwealth government printer ae501605pr704532 annexure

Superannuation (Productivity Benefit) 1995-96 Continuing Contributions Declaration 1995 No. 174.txt

superannuation productivity benefit 1995 96 continuing contribution declaration 1995 174superannuation productivity benefit 1995 96 continuing contribution declaration 1995 174explanatory statementstatutory rule 1995 174superannuation productivity benefit act 1988issued authority minister financedeclaration section 3dvariation tablethesuperannuation productivity benefit act 1988 pb act provides mechanism productivity superannuation made available australian government employee employer sponsored superannuation coverage designated employer employee required pay either superannuation fund nominated minister finance another superannuation fund approved minister periodic contribution based salary employee amount contributed calculated using table set schedule act rate table apply 1995 96 financial year benefit provided act comply minimum requirement superannuation guarantee legislation employee receiving productivity superannuation act receive flat rate superannuation contribution equivalent 6 per cent salary amount would represent reduction salary excess 86 880 per annum receive contribution equivalent 6 per cent 86 880 required superannuation guarantee legislation declaration commences 1 july 1995

Fotek and Repatriation Commission [2014] AATA 117 (5 March 2014).txt

fotek repatriation commission 2014 aata 117 5 march 2014 last updated 6 march 2014 2014 aata 117 ul none list style none divisionveterans appeal divisionfile number2013 3935rejan fotekapplicantandrepatriation commissionrespondentdecisiontribunalmr r g kenny senior memberdate5 march 2014placebrisbanethe tribunal affirms decision review sgd mr r g kenny senior membercatchwordsveterans affair disability pension operational service royal australian navy application statement principle appropriate diagnosis psychiatric condition factual basis diagnosis posttraumatic stress disorder posttraumatic stress disorder war caused decision review affirmedlegislationveterans entitlement act 1986 cth s 6c 7 9 14 37 120 120a 196bcasesfogarty v repatriation commission 2003 fcafc 136 2003 37 aar 363o dowd v repatriation commission 2013 fca 991repatriation commission v bawden 2012 fcafc 176 2012 206 fcr 296repatriation commission v cornelius 2002 fca 750repatriation commission v warren 2007 fca 866 2007 95 ald 606secondary materialsstatement principle concerning posttraumatic stress disorder 5 2008 amended byamendment statement principle 19 2014 reason decisionmr r g kenny senior member5 march 2014backgroundon 5 august 2010 jan fotek lodged repatriation commission respondent accordance withs 14of theveterans entitlement act 1986 cth act claim disability pension respect condition diagnosed posttraumatic stress disorder contended related circumstance service royal australian navy ran serving south vietnam 14 december 2010 respondent determined mr fotek posttraumatic stress disorder related service 21 may 2013 veteran review board affirmed decision issue servicemr fotek served ran 3 january 1967 8 july 1988 included period eligible war service form operational service provided in 7ands 6cof act respectively 14 september 1970 8 april 1971 also served period defence service relevant claim unders 9 1 b act condition war caused arose attributable eligible war service rendered veteran standard proof used determining diagnostic matter act provided in 120 4 requires matter determined balance probability 1 issue causation operational service standard proof set in 120 1 act read claim underpart iifor pension respect incapacity injury disease veteran death veteran relates operational service rendered veteran commission shall determine injury war caused injury disease war caused disease death veteran war caused case may unless satisfied beyond reasonable doubt sufficient ground making determination application provision affected term ofs 120 3 ands 120aof act require consideration given relevant statement principle sop published repatriation medical authority submissionsfor mr fotek anthony harding submitted mr fotek experienced three stressful event south vietnam satisfied diagnostic criterion posttraumatic stress disorder one responsible causing condition provided in 9of act respondent bruce williams submitted mr fotek case provide evidence diagnosis posttraumatic stress disorder even condition attributable operational service manner provided in 9of act none three event relied upon mr harding occurred manner effect claimed mr fotek evidencemr fotekduring operational service mr fotek aged 19 year worked radar plotter operation room hmas perth perth described perth nerve centre aspect activity monitored ship captain posted either operation room adjacent area bridge swimmer incidenton 11 october 1970 perth gunline coast vietnam three sailor reported seeing swimmer water near ship perth immediately left area clear vessel came stop ship diver could undertake search ship hull mine mr fotek said hour condition became difficult ship diver line becoming tangled brought back board search abandoned even though half hull searched mr fotek felt scared time thought mine detonated damaged even caused perth sink referred knowing unknown relation whether mine attached perth enemy swimmer concern search mine completed forward part perth thehmas voyager sunk vessel cut two hmas melbourne prisoner incidenton 1 february 1971 operating gunline perth encountered fishing boat people board usual boat signalled alongside perth men board brought perth men mr fotek believed six viet cong wanted surrender perth crew apart required tend men required remain deck included mr fotek able briefly emerge onto deck see men take photograph intercom heard south vietnamese patrol boat come take men custody understood captain perth reluctant release concerned safety mr fotek understood patrol boat departed returned later took prisoner away mr fotek disturbed incident believed would happen men believed men would killed south vietnamese thrown sea rather taken shore prisoner said felt like executioner described sombre night perth mr fotek felt impact prisoner incident year later watched medium coverage gulf war empathised iraqi soldier like viet cong prisoner serving country way done perth said think time time denied nightmare dream bombardment incidentone role perth patrol coast vietnam gunline awaiting request spotter either ground air target fire upon happened many occasion though troubled daylight firing mr fotek felt concern night firing limited capacity spotter fully aware nature target civilian including child may killed mr fotek referred one daylight occasion aircraft spotter requested perth fire upon group 400 viet cong perth commenced firing target u coast guard cutter mr fotek said cutter armed three inch gun probably reach target spotter advised firing resulted 100 casualty understood caused five inch gun perth mr fotek concerned firing event stating war however event different occurred two week later captain came operation room waving piece paper declaring mine mine mr fotek said captain received signal half casualty attributed theu cutter also fired target mr fotek aware captain meant later learned resentful share kill vessel said horrified attitude captain human life medical evidencein evidence report psychiatrist dr john chalk dated 23 february 2001 dr jonathon hargreaves dated 8 december 2010 dr hargreaves completed letter dated 13 september 2012 report undated completed may 2013 dr hargreaves also gave evidence dr chalk saw mr fotek purpose report described mr fotek reluctant somewhat sparse historian dr chalk diagnose psychiatric condition wrote mr fotek symptom major depressive illness dr hargreaves treated mr fotek february 2010 first report dr hargreaves noted 15 year old joined ran 19 year old went south vietnam referred prisoner incident wrote mr fotek felt sadness prisoner taken perth thought may killed dr hargreaves also described bombardment incident noting affect mr fotek time later saw broadcast gulf war began think terrible toll war relation prisoner incident dr hargreaves also noted mr fotek reaction delayed gulf war dr hargreaves refer swimmer incident report confirmed mentioned mr fotek dr hargreaves described 2012 letter noting mr fotek afraid ship might blown alarmed perth hull searched completely early recall ship diver final report dr hargreaves referred mr fotek distressed prisoner incident horrified captain reaction attribution kill number perth feeling quite afraid inspection perth hull swimmer incident dr hargreaves diagnosed posttraumatic stress disorder considered three incident noted satisfied diagnostic criterion condition agreed posttraumatic stress disorder may delayed onset dr hargreaves questioned severe reaction event required diagnostic criterion posttraumatic stress disorder particular asked whether needed time stressful event occurred whether reaction could considered relevant even occurred year event response sure could answer question believed would always reaction time event ran documentationcopies report proceeding report perth 1970 1971 evidence report describes swimmer incident noting sailor reported swimmer 1945 hour 11 october 1970 report continued condition time calm bright moonlight excellent visibility ship movement restricted small area time report evaluated possibly correct ship immediately proceeded south east clear area clear ship stopped water bottom search conducted nothing found however 2300 hmas perth returned gunline report perth february 1971 refers prisoner incident commencing sighting fishing boat 0840 hour following way boat signalled alongside across stern man brought onboard stripped searched boat searched arm concealed explosive device anything interest nothing ordinary found normal fishing boat crew four hailed shore previous night seven hoi chanhs viet cong ralliers government south vietnam asked taken surrender crew obviously glad rid arrival south vietnamese patrol boat pcf 55 alongside perth noted report continued 1314 hour usscgc morganthau closed scene sent across south vietnamese naval officer boat progress interrogation instruction market time coastal surveillance headquarters thoi hoi chanhs fishing boat crew transferred pcf 55 vessel fishing boat tow boat usscgc morganthau cast proceeded 1350 hour annex h report february 1971 reference made information gleaned interrogation prisoner concludes general comment hoi chanhs escorted rach gia chieu hoi centre exploitation report describes many occasion perth fired gun target response request spotter however specific reference appears relation occasion described mr fotek statement principlesthe statement principle 5 2008 statement principle 2 posttraumatic stress disorder list six diagnostic criterion taken fromdsm iv tr 3 first person exposed traumatic event person experienced witnessed confronted event event involved actual threatened death serious injury threat physical integrity self others ii person response involved intense fear helplessness horror 4 statement principle also set factor least one must exist posttraumatic stress disorder related mr fotek ran service factor statement principle 5 2008 relied mr harding relation swimmer incident read ba perception threat harm integrity self consequence individual concerned ii reasonable person circumstance individual would considered threatening hostile hazardous menacing situation environment clinical onset posttraumatic stress disorder 5 factor relevant definition statement principle 5 2008 relied mr harding bombardment prisoner incident read da perception threat harm integrity significant ii person known individual individual concerned contact discharge individual duty responsibility consequence individual concerned person ii similar circumstance individual concerned iii individual concerned iv reasonable person circumstance individual would considered threatening hostile hazardous menacing situation environment excluding perception engendered viewing listening mass medium unless viewing listening part individual duty responsibility clinical onset posttraumatic stress disorder 6 significant mean person close family bond close personal relationship important influential one life considerationinrepatriation commission v warren 7 noted introduction dsm iv tr refers use clinical judgment following term dsm iv classification mental disorder developed use clinical educational research setting diagnostic category criterion textual description meant employed individual appropriate clinical training experience diagnosis important dsm iv applied mechanically untrained individual specific diagnostic criterion included dsm iv meant serve guideline informed clinical judgment meant used cookbook fashion example exercise clinical judgment may justify giving certain diagnosis individual even though clinical presentation fall short meeting full criterion diagnosis long symptom present persistent severe hand lack familiarity dsm iv excessively flexible idiosyncratic application dsm iv criterion convention substantially reduces utility common language communication case kiefel j made following comment relation diagnostic process 27 may inferred sop written upon assumption veteran found suffering condition classified dsm iv diagnosis accordance manual would made intended sop apply diagnosis made assumption correspondence might suggest application sop criterion relation finding existence condition however one difficulty approach dsm iv whole inform clinical diagnosis upon finding based manual explains diagnosis application criterion cookbook fashion person symptom fall short meeting stated criterion may nevertheless diagnosed suffering condition dsm iv refers need exercise clinical judgment take include application experience case sop criterion may therefore met 28 cannot inferred sop drawn basis misunderstanding application dsm iv drawn reference could therefore intended strict application criterion summarised sop definition requirement substitute proper clinical diagnosis threshold question case whether diagnosis one properly made regard dsm iv clinical judgment involved difference opinion may arise need resolved tribunal material noting honour comment posttraumatic stress disorder may diagnosed without criterion statement principle met satisfied one material criterion must met posttraumatic stress disorder diagnosed cl 3 b ii statement principle criterion exposure traumatic event appropriate response regard full federal court inrepatriation commission v bawden 8 said 47 decision maker must satisfied collection symptom manifest diagnosable disease satisfied must consider whether illness disease war caused point present purpose ptsd diagnosed illness disease term traumatic event decision maker need consider whether veteran symptom manifest illness disease resulting incapacity extent claim incapacity ptsd decision maker satisfied traumatic event produced symptom decision maker cannot proceed diagnosis ptsd 48 point present case turn one insufficient correspondence symptom described dsm iv described mr bawden rather concerned inability decision maker satisfied mr bawden suffered traumatic stress diagnosis disorder depends satisfaction historical fact traumatic stress dr hargreaves diagnosed posttraumatic stress disorder however reasonably satisfied criterion diagnostic factor met evidence matter regarding swimmer incident report support element version given mr fotek certainly incident occurred however report declare inspection perth hull fully completed rather state bottom search conducted sea condition described calm difficult conceive idea perth would continue duty incomplete inspection following finding report swimmer possibly correct also report indicated inspection procedure continued 1945 hour 2300 hour rather shorter period identified mr fotek even swimmer incident sufficient satisfy criterion reasonably satisfied criterion ii met mr fotek felt scared time thought mine referred knowing unknown dr hargreaves referred afraid alarmed context understanding advised mr fotek full inspection perth hull undertaken noted reasonably satisfied inspection completed reasonably satisfied description reaction time swimmer incident fall short one involved intense fear helplessness horror regard prisoner incident evidence would support mr fotek belief men taken death departing perth report describes hoi chanhs escorted centre exploitation reasonably satisfied incident traumatic event mr fotek experienced witnessed confronted event event involved actual threatened death serious injury threat physical integrity self others event also reasonably satisfied mr fotek response involve intense fear helplessness horror described disturbed incident feeling like executioner evidence history given dr hargreaves felt impact prisoner incident year later watched medium coverage gulf war mr harding submitted requirement response criterion ii experienced event criterion matter delayed reaction would need span 20 year accept contention reasonably satisfied must degree contemporaneity criterion ii response arose 20 year later mr fotek observed coverage gulf war response phenomenon rather prisoner incident reasonably satisfied mr fotek response time prisoner incident also one fell short one involved intense fear helplessness horror although identified third incident bombardment incident relevant event bombardment consequence life rather statement captain perth two week later mr fotek already confronted death 100 viet cong response simply part war dr hargreaves reported affect mr fotek time seeing broadcast gulf war began think terrible toll war 20 year later killing viet cong remote event reasonably satisfied bombardment direct consequence satisfy criterion horrified mr fotek attitude captain human life displayed two week firing ship gun reasonably satisfied mr fotek observation attitude amount exposure traumatic event involved actual threatened death serious injury threat physical integrity self others reasonably satisfied diagnosis posttraumatic stress disorder cannot made material reason mr fotek posttraumatic stress disorder war caused accordance withs 9of act decisionthe tribunal affirms decision review certify preceding 32 thirty two paragraph true copy reason decision herein mr r g kenny senior member sgd associatedated 5 march 2014date hearing17 february 2014solicitors applicantmr anthony harding haney lawyerssolicitors respondentbruce williams department veteran affair 1 fogarty v repatriation commission 2003 fcafc 136 34 35 2003 fcafc 136 2003 37 aar 363at 373 2 statement principle concerning posttraumatic stress disorder 5 2008 amended amendment statement principle 19 2014 3 dsm iv tr defined cl 9 statement principle mean american psychiatric association diagnostic statistical manual mental disorder fourth edition text revision washington dc american psychiatric association 2000 4 statement principle concerning posttraumatic stress disorder 5 2008 cl 3 b 5 statement principle cl 6 ba 6 statement principle cl 6 da 7 2007 fca 866 2007 95 ald 606at 13 see alsoo dowd v repatriation commission 2013 fca 991at 27 8 2012 fcafc 176 2012 206 fcr 296at 47 48 noted different test causation applicable case characterisation veteran service operational rather applicant case defence service

Yarra CC v Mathisen (1996_05136) [1996] VICCAT 250 (23 May 1996).txt

yarra cc v mathisen 1996 05136 1996 viccat 250 23 may 1996 administrative appealstribunal victoriaplanning divisionappeals no 1996 005136application 84121996 006577heard melbourne thursday 23 may 1996byrussell byard deputy presidentpartiesapplicant requester andresponsible authority city yarrarespondent kevin mathisenother b ledermannature application request1996 005136application enforcement order 114 theplanning environment act1997 act 1996 006577request cancellation permit 87 act alleged contravention1996 005136construction work fence without necessary planning permission proposal1996 006577proposed cancellation permit 8412 issued responsible authority 22 december 1995 allowing construction fence accordance endorsed plan landaddress16 moorhouse streetrichmondappearancesmr montebello solicitor messrs maddock lonie chisholm appeared responsible authority mr buckmaster brother law respondent mr mathisen appeared respondent m b lederman appeared person remarkson day hearing application enforcement order lodged m lederman application given number 1996 17209 listed hearing 23 may 1996 although file hearing room commencement hearing case stood enable party discus matter dispute considerable discussion hearing reconvened party announced wished make order consent firstly party asked accede request 1996 006577 cancel permit involved second asked enforcement order application 1996 005136 adjourned date fixed anticipated necessary hearing relation enforcement order application informed party would finalise detail agreement work carried within specified time matter listed hearing unless party seek hearing propose adjourn application requested review situation two month thereafter time time might appear necessary far m lederman enforcement order application 1996 17209 concerned previously noted matter technically listed hearing notice application given date give instruction notice given next step required legislation notice pursuant 115 act inform respondent written notice objection making enforcement order given desire contest application written notice objection state ground objection however anticipated hoped application need proceed hearing indicated would give direction listed whether notice objection given unless request hearing given written objection received filed precipitate hearing without direction effect m lederman also foreshadowed may lodge tribunal request cancellation amendment permit would precautionary move designed forestall danger tribunal declining hear request basis 89 3 act making request delayed spite anticipated request proceed hearing held abeyance view eventually formally disallowed provided arrangement party carried accordance agreement m lederman enforcement order application intended request set hearing without direction would convenient correspondence relation existing proceeding including m lederman enforcement order application covering letter foreshadowed request pursuant 87 refer fact dealt proceeding 23 may 1996 asked file referred relation direction might necessary determinationa request 1996 006577 acceded planning permit 8413 issued responsible authority 22 december 1995 cancelled b enforcement order application 1996 005136 adjourned date fixed directionthe responsible authority directed pursuant 91 1 act cancel said permit 8413 accordance determination date determination russell byarddeputy presidentrb td2405

R v Serrano (Ruling No 5) [2007] VSC 209 (6 June 2007).txt

r v serrano ruling 5 2007 vsc 209 6 june 2007 last updated 15 june 2007in supreme court victorianot restrictedat melbournecriminal divisionno 1494 2006the queenvapolonio serrano judge kaye jwhere held melbournedate hearing 6 june 2007date ruling 6 june 2007case may cited r v serrano ruling 5 medium neutral citation 2007 vsc 209 criminal law murder trial accused man absconded counsel accused withdrawn case fundamental principle trial indictable offence conducted presence accused rule absolute inflexible discretion trial judge continue trial absence accused accused consciously wilfully deliberately absented accused would suffer little prejudice trial continued absence powerful public policy reason continuing trial trial continue absence accused appearance counselsolicitorsfor crownmr r gibsonoffice public prosecutionsfor accusedmr rochford withmr hallowesvictoria legal aidhis honour 1 accused man apolonio tony serrano charged murder milicia trailovic endeavour hill 26 december 2003 charged m trailovic murder 7 october 2005 june 2006 committal proceeding heard melbourne magistrate court conclusion committed trial 2 8 august 2006 accused applied bongiorno j order released bail honour acceded application made order accused admitted bail undertaking one surety sum 40 000 number condition stipulated honour order granting bail including condition accused report daily officer charge police station dandenong hour 8 6 p 3 trial listed monday 21 may 2007 4 friday 18 may conducted preliminary direction hearing trial hearing application made behalf accused man bail extended order crown oppose application accordingly made order extending bail accused man term condition fixed bongiorno j 5 trial commenced monday 21 may two day legal argument ruling jury empanelled wednesday 23 may evidence trial proceeded friday 1 june stage police witness giving evidence relation record interview conducted accused man end 1 june estimated crown case would conclude either following monday early next tuesday 6 monday 4 june accused man failed attend answer bail accordingly revoked bail issued warrant arrest proceeding adjourned next day 7 tuesday 5 june accused man attend absence jury heard evidence informant senior detective cookson inquiry made relating whereabouts accused evidence mr cookson told monday 4 june issued warrant arrest accused inspector waddell attended accused home address unit 7 186 prince highway hallam gained entrance back door premise accused home mr cookson observed door wardrobe accused bedroom open number clothes missing middle wardrobe hanger clothes apparently previously placed still wardrobe shoe wardrobe mr cookson could find bag suitcase food refrigerator shower recess dry sign accused man recently occupied unit accused vehicle garage front unit 8 police also made enquiry accused girlfriend stated seen accused three month 9 police checked hospital psychiatric unit found record recent admission institution involving accused 10 accused contact police agency left country touch spanish consulate 11 hearing evidence adjourned matter today wednesday 6 june enable police continue inquiry 12 today accused man attend senior detective cookson gave evidence told yesterday member dandenong criminal investigation unit attended accused home unit accused present neighbour police spoke told last saw accused saturday morning seen since mobile telephone switched appropriate alert posted police intranet site australian federal police notified 13 mr cookson advised belief accused man absconded 14 mr rochford appears mr hallowes behalf accused announced morning junior intended withdraw appearing case told received advice ethic committee absence client give junior instruction obligation withdraw case 15 expressed view mr rochford mr hallowes disagreed advice given ethic committee view counsel owed duty court remain participate trial notwithstanding expression view counsel departed 16 question arises concern future disposition trial crown case well progressed stated anticipated trial proceed crown would able close case within approximately one day 17 mr gibson appears prosecute submitted circumstance exercise discretion continue trial absence accused man 18 view evidence overwhelmingly support inference accused man absconded suggestion accident suffered bout ill health met foul play evidence relating condition unit consistent irresistibly lead conclusion accused man deliberately chosen abscond 19 stage refer fact condition accused man bail report daily dandenong police station mr cookson evidence told monday 4 june first time made aware dandenong police station accused man ceased comply condition bail 26 may apparently accused man signed bail book including 20 may signed 21 25 may notation attending court accused man attended signed bail book saturday 26 may signed attended dandenong police station thereafter 20 remarked mr cookson gave evidence matter grave concern dandenong police station failed comply clear important obligation inform informant crown continued breach accused man bail condition 21 little purpose served imposing reporting condition unless authority report made matter priority urgency communicates informant crown breach accused person term bail 22 case reporting condition far formality accused trial serious criminal offence lived alone view requirement report daily dandenong police station important condition imposed bongiorno j granting accused man bail 23 failure dandenong police station matter priority draw attention mr cookson accused man failure abide reporting condition imposed say least regrettable 24 long standing fundamental principle criminal justice system trial indictable offence conducted presence accused seelawrence v r 1 andr v abraham 2 however recognised principle absolute inflexible rule admits certain exception one exception referred lord atkin inlawrence scase accused conducted course trial render continued trial presence impossible case recognised trial judge discretion accused removed court trial proceed absence seer v vernell 3 25 exception principle accused present trial indictable offence recognised number recent case accused person deliberately absconds bail trial conduct accused may considered waiver right present trial case trial judge discretion whether trial continue absence accused 26 inr v mchardie danielson 4 two accused charged three count maliciously placing explosive substance premise woolworth ltd one count extortion charge related series bombing december 1981 three woolworth retail store sydney extortion demand threatening bombing unless ransom gold jewellery cash amounting value 1 000 000 paid accused 13th day trial one accused mchardie escaped gaol counsel accused danielson submitted trial continue absence crown supported submission trial judge acceded submission trial proceeded five day conclusion trial accused convicted four count sentenced 20 year imprisonment appeal submitted trial judge discharged jury mchardie absconded gaol new south wale court appeal joint judgment rejected ground appeal considered number relevant authority court observed p 742 accordingly find ultimate weight judicial authority absconding bail trial amount waiver accused right present trial think fortiori case accused present case made escape lawful custody prison fled interstate jurisdiction hold trial judge discretion continue trial absence accused mchardie 27 new south wale court appeal went hold circumstance case shown judge discretion continue trial miscarried holding court clearly took account fact bulk crown case mchardie already given time escape great deal time court jury witness expended 13 day trial stage court adopted p 745 correct following passage decision english court appeal inr v howson 5 judge conducting criminal trial course paramount duty ensure accused fairly treated also duty community whole ensure administration justice unnecessarily impeded 28 approach new south wale court appeal inmchardie danielsonwas referred followed south australian court criminal appeal inr v jones 6 case accused charged wounding intent grievous bodily harm lengthy voir dire held commencement trial trial commenced accused attended first day failed appear thereafter trial judge refused adjourn trial proceeded second day concluded fifth day trial trial judge charged jury returned verdict guilty accused sentenced four year six month imprisonment 29 court criminal appeal held trial judge erred exercise discretion determining continue trial notwithstanding absence accused lander j whose judgment prior j wick j agreed stated relevant principle follows p 412 295 opinion court may proceed trial absence accused person may circumstance accused person indicated waif right present accused person waive right present person currency trial example escape custody accused person unlawfully absents breach bail agreement without good excuse explanation person absents proceeding case court satisfied accused waived right present trial trial may proceed without injustice person except injustice caused accused waiver court may proceed accused trial discretion proceed absence accused however exercised sparingly next page pp 413 296 lander j proceeded observe must circumstance trial proceed absence accused otherwise accused bail believed time trial prospect acquittal remote could absent trial thereby force new trial cannot right principle would necessary revoke bail accused person outset trial would unfortunate unfair consequence fundamental principle whilst fundamental principle accused person entitled hear every word evidence presented trial address counsel summing judge right waived waived court may proceed complete trial absence accused court however satisfied accused waived right present 30 inr v neill 7 accused charged aggravated serious criminal trespass place residence failed appear fourth day trial trial judge determined trial proceed remaining crown evidence completed day accused absence next day accused failed appear counsel addressed jury judge summed directed jury draw adverse inference accused arising absence jury returned verdict rejecting allegation aggravation convicting accused serious criminal trespass place residence appeal south australian full court followedjones scase held accused absence trial voluntary trial judge err exercising discretion proceed trial absence 31 martin j p 367 observed absence evidence accused caused deliberate choice made accused trial accused voluntary decision absent trial taken waiver right present seer v jonesat 295 situation considerable force proposition accused thereby waived right give evidence accused make conscious decision concerning conduct trial sound reason policy accused bound conduct result trial even decision unwise 32 inr v mokbel 8 gillard j referred tor v jonesandr v mchardie danielsonand followed principle established case case accused man charged knowingly concerned importation drug absconded shortly commencement final address crown prosecutor gillard j reviewing authority held interest justice appropriate trial accused proceed absence accused convicted jury sentenced 12 year imprisonment 33 understandable right accused person attend present trial indictable offence singular importance system justice ordinarily would repugnant basic notion fairness trial proceed absence accused person person entitled hear evidence confront accuser accuser accused entitled present instruct counsel make response electing give evidence chooses 34 nonetheless authority referred made clear fact accused paramount right present trial necessarily mean trial accused may proceed accused absence particularly accused conduct made impossible trial proceed presence accused reason court recognised power trial judge continue trial accused misbehaved court render continued hearing trial presence impossible 35 likewise recent authority referred recognised discretionary power trial judge continue trial accused conscious deliberate election chosen abscond attend trial thus avail right referred 36 case charge accused man course serious crown case yet closed theoretically accused might elected give evidence conclusion crown case ordinarily would consonant basic principle justice trial continue absence accused however view powerful reason trial continue notwithstanding absence accused man 37 first foremost course accused made conscious wilful deliberate choice absent trial coincidental accused chose absent near conclusion crown case immediately weekend clear inference accused formed perception whether rightly wrongly trial going well decamped home time given maximum amount time start police making investigation whereabouts thus accused made calculated decision absent trial word south australian court criminal appeal injones voluntarily waived right attend necessary give evidence behalf 38 remark event would surprised accused given evidence case absconded listened tape recording first two record interview observed videotape third record interview two point relevant 39 firstly accused advantage interview placed evidence jury shall instruct jury accused entitled rely exculpatory part interview 40 secondly opportunity observing accused interview presumptuous say would particularly surprised counsel advised give evidence behalf accused demonstrably garrulous excitable thus would seriously doubt accused chosen give evidence absconded however perhaps beside point simple fact accused absconding plainly waived right give evidence trial 41 true accused would present remainder trial decide proceed however bulk evidence accused man completed particular important indeed key crown witness given evidence cross examined remaining evidence mainly evidence called police investigator understanding issue case evidence largely uncontroversial formal matter also need proven would doubt would contest indeed counsel remained case would expect number formal matter would proven either admission statement number witness read evidence 42 furthermore issue already well defined jury mr rochford made preliminary opening clearly succinctly outlined jury matter issue mr rochford mr hallowes cross examined number witness assisted defining issue jury need consider retire consider verdict 43 charge jury shall endeavour indicate jury point made behalf accused man 44 thus view accused suffers little prejudice decision continue trial absence disadvantage inability instruct counsel give evidence disadvantage product conscious deliberate decision answer bail attend court 45 hand matter public policy view weigh powerfully favour continuation trial absence accused man english court appeal observed inhowson scase although judge paramount duty ensure accused fair trial also duty community whole ensure administration justice unnecessarily impeded 46 crown community interest completion trial interest subordinate paramount right accused fair trial interest non existent case accused wilfully abandoned right present trial circumstance appropriate take account interest crown community completion trial accused 47 south australian court criminal appeal observed injones scase cannot right every time accused man absconds trial trial must discontinued otherwise accused would required surrender bail commencement trial view result would unfortunate would unfair overwhelmingly large majority accused person conscientiously attend trial bail 48 view relevant take account potential general perception might ensue abort trial accused failed honour term bail 49 addition appropriate take account position number witness friend m trailovic strain come give evidence case discontinue trial accused later located person would put repeated inconvenience strain giving evidence behalf crown 50 crown called 45 witness 28 witness civilian elderly least two appeared quite frail number witness already difficulty memory understandable relating event occurred four year ago 51 accused later apprehended would doubt delay bringing back trial witness called trial would need called say would involve great strain inconvenience expense crown community view would unfair crown number witness memory might eroded effluxion time 52 also relevant state observed two witness gave evidence neighbour friend m trailovic remained court almost day observe trial doubt respect m trailovic interest person cannot supersede interest accused relevant carry weight 53 finally course question crown police resource stated large number witness called three expert witness case circumstantial case involved calling disparate variety witness case aborted would involve view shameful waste community expense effort 54 taking matter account view would appropriate indeed circumstance demand exercise discretion favour continuation trial absence accused man 55 risk repetition accused man brought situation head conscious deliberate voluntary decision abscond bail 56 taking account paying full heed paramount right fair trial nonetheless well persuaded exercise discretion rule trial continue absence 1 1933 ac 699at 708 2 1895 viclawrp 73 1895 21 vlr 343at 347 8 3 1953 viclawrp 79 1953 vlr 590 4 1983 2 nswlr 733 5 1981 74 cr app r 172at 179 6 1998 sasc 7021 1998 72 sasr 281 104 crim r 399 7 2002 81 sasr 359 8 unreported supreme court victoria 23 march 2006

Tasic B., Re [2005] QLRT 9 (24 January 2005).txt

tasic b 2005 qlrt 9 24 january 2005 last updated 14 june 2005land resource tribunalqueenslandcitation b tasic 2005 qlrt 9parties matter application mining lease 95490 branislav tasicfile aml00001 2005proceeding application mining leasedelivered 24 january 2005delivered brisbanehearing date heard papersmember windridge mrorder 1 hearing dispensed 2 2 recommend honourable minister natural resource mine mining lease 95490 granted whole application area purpose mining opal term 10 year 17 catchword mining mining lease recommendationmineral resource act 1989ss 245 269 4 270 1 650 1 counsel n asolicitor n aagent n 1 windridge mr application branislav tasic unders 245of themineral resource act 1989 act mining lease 4 1495ha land lot 278 ol 363 parish alabama county mayne opalton area near winton purpose mining opal term ten year access property lease granted known three amigo ii application lodged office mining registrar winton 9 november 2004 objection lodged closing date objection 21 december 2005 underlying tenure occupation licence pastoral purpose application lodged 31 march 2003 part 17division 4 act native title provision mining lease apply 650 1 applicant become party ilua mining area request dispense hearing section 270 2 may dispense hearing satisfied matter specified 270 1 reason follow paragraph 4 satisfied provision part 7 act complied respect application objection application appears restricted land reserve land area subject application satisfied precondition exercising discretion dispense hearing fulfilled material supplied applicant mining registrar address criterion must consider making recommendation application satisfied sufficient information properly consider matter accordingly order hearing application dispensed section 269 4 criterion 3 taking account considering criterion specified 269 4 relied upon additional information statutory declaration sworn applicant 23 december 2004 also relied upon material lodged applicant department natural resource mine provided mining registrar tribunal mining registrar report relation application reason refer salient point relevant evidence taken account making recommendation section 269 4 provision act complied 4 certificate application issued registrar 9 november 2004 satisfied applicant eligible apply mining lease complied requirement act respect application section 245 section 269 4 b land applied mineralised purpose lease sought appropriate 5 application seek grant mining lease purpose mining opal area applied vicinity number lease applicant explored area authority prospecting permit lease property applicant intends follow surface trace found application area area generally known production opal satisfied area generally mineralised section 269 4 c land applied mineralised acceptable level development utilisation mineral resource within area applied 6 applicant proposes mine area machinery use excavator open area considered best potential mining operation become basic open cut operation applicant mined opal number year necessary infrastructure equipment including mining camp complete project evidence suggest acceptable level development utilisation mineral resource area section 269 4 land surface area land respect mining lease sought appropriate size shape 7 boundary lease determined area potential mineralisation applicant sought mining lease whole surface area evidence indicate size shape appropriate section 269 4 e term sought appropriate 8 applicant seek term 10 year evidence suggest 10 year term inappropriate applicant option surrender mining rehabilitation completed term expires section 269 4 f applicant necessary financial technical capability carry mining operation proposed mining lease 9 applicant sufficient asset including mining equipment required undertake proposed operation satisfied applicant access necessary financial technical resource section 269 4 g past performance applicant satisfactory 10 evidence suggest past performance applicant satisfactory section 269 4 h disadvantage result holder existing exploration permit mineral development licence existing applicant exploration permit mineral development licence 11 holder applicant exploration tenure would affected grant holder epm14144 given written consent relation application section 269 4 operation carried authority mining lease conform sound land use management 12 current land use low intensity cattle grazing occupation licence tenure landholder lodge objection application section 269 4 j adverse environmental impact extent thereof 13 draft environmental authority issued 9 november 2004 requires applicant comply standard environmental condition contained code environmental compliance mining lease project draft authority publicly advertised objection lodged relation evidence suggest environmental impact adequately dealt compliance condition code section 269 4 k public right interest prejudiced 14 public infrastructure area applied evidence indicated public right interest would prejudiced take account objection application public interest ground section 269 4 l good reason shown refusal grant mining lease 15 evidence indicated ground would justify refusal application section 269 4 proposed mining operation appropriate land use taking consideration current prospective us land 16 basis evidence considered relation criterion j k l consider proposed activity appropriate land use recommendation 17 taking account evidence particular evidence referred recommend honourable minister natural resource mine mining lease granted whole application area purpose term sought applicant

Sonia Claire Thorpe v Scitech Discovery Centre (ABN 55 009 292 700, ACN 009 292 700) [2003] WAIRComm 9956 (23 October 2003).txt

sonia claire thorpe v scitech discovery centre abn 55 009 292 700 acn 009 292 700 2003 waircomm 9956 23 october 2003 last updated 7 july 2007100319709western australian industrial relation commissionpartiessonia claire thorpeapplicant v scitech discovery centrerespondentcoramcommissioner wooddate orderthursday 6 november 2003file noapplication 1177 2003citation 2003 wairc 09956_______________________________________________________________________________resultapplication discontinuedrepresentationapplicantmr g grayrespondentmr b stokes_______________________________________________________________________________orderwhereas application pursuant tosection 29 1 b theindustrial relation act 1979 andwhereas conciliation conference convened 22 september 2003 conclusion matter resolved andwhereas applicant advised commission 22 october 2003 wanted discontinue application andwhereas party waived right speak minute proposed order pursuant tos 35 4 theindustrial relation act 1979 therefore commission pursuant power conferred theindustrial relation act 1979 hereby order application hereby discontinued commissioner wood

DXBG and National Disability Insurance Agency [2017] AATA 1752 (26 September 2017).txt

dxbg national disability insurance agency 2017 aata 1752 26 september 2017 last updated 19 october 2017dxbg national disability insurance agency 2017 aata 1752 26 september 2017 division national disability insurance scheme divisionfile number 2017 5394re dxbgapplicantandnational disability insurance agencyrespondentdecisiontribunal mr j c kelly senior memberdate 26 september 2017date written reason 12 october 2017place sydneythe tribunal jurisdiction review decision national disability insurance agency dated 8 september 2017 sgd mr j c kelly senior membercatchwordspractice procedure national disability insurance scheme jurisdiction whether national disability insurance agency made decision tribunal jurisdiction review whether internal review must occur review tribunal jurisdiction reviewlegislationnational disability insurance scheme act 2013 cth s 99 100 6 103reasons decisionmrs j c kelly senior member12 october 2017backgroundon 8 september 2017 applicant lodged application tribunal behalf dxbg participant national disability insurance scheme ndis application review decision made national disability insurance agency ndia 8 september 2017 review dxbg plan requested unders 48 2 thenational disability insurance scheme act 2013 act interlocutory hearing 26 september 2017 party appear telephone tribunal tried unsuccessfully contact applicant representative four time third occasion tribunal left message requesting representative telephone hearing room number advising 11 10am tribunal would proceed deal matter respondent representative appear telephone matter proceeded 11 10am tribunal considerationthe tribunal decided jurisdiction determine application review written reason reflect submission reason given orally interlocutory hearing matter respondent representative submitted tribunal jurisdiction deal application internal review decision dated 8 september 2017 undertake review applicant plan also pointed letter notifying applicant decision provided information request review decision ndia dissatisfied decision also advised checked respondent online system showed discussion applicant representative ndia 7 september 2017 representative seeking internal review seeking assistance process application internal review made time interlocutory hearing tribunal considered material accepted internal review decision dated 8 september 2017 regrettably legislation confusing case decision review plan reviewable decision pursuant tos 99 f act section 100of act provides review reviewable decision person directly affected reviewable decision may within three month receiving notice decision request chief executive officer ndia review reviewable decision person conducting review reviewer must make decision unders 100 6 either confirm vary set aside substitute reviewable decision tribunal jurisdiction pursuant tos 103of act review decision made reviewer unders 100 6 simpler term internal review within ndia reviewer decision review participant plan tribunal jurisdiction consequently tribunal jurisdiction review decision national disability insurance agency dated 8 september 2017 ul none list style none certify preceding 9 nine paragraph true copy reason decision herein mr j c kelly senior member sgd associatedated 12 october 2017date hearing 26 september 2017solicitors respondent m leembruggen

Adikari Arachchige, Wimal [2001] MRTA 529 (13 February 2001).txt

adikari arachchige wimal 2001 mrta 529 13 february 2001 last updated 2 may 2001 2001 mrta 529catchwords visitor long stay genuine visit exceptional circumstancesvisa applicant wimala adikari arachchigereview applicant abovetribunal migration review tribunalpresiding member lindsay fordmrt file number v00 05777dima file number clf 2000 0550142date decision 13 february 2001at melbournedecision tribunal remit matter department immigration multicultural affair reconsideration including consideration condition 8503 direction visa applicant satisfies regulation 686 211 686 221 2 c 686 221 2 g v grant long stay visitor class tn visa subclass 686 statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate wimala adikari arachchige visa applicant national sri lanka born 23 september 1932 applied long stay visitor class tn visa subclass 686 2 october 2000 requested 6 month delegate decision refuse grant visa made 2 october 2000 d1 f 1 visa applicantlodged valid application review decision tribunal 27 october 2000 t1 f 1 6 jurisdiction standing2 visa applicant standing apply review australia lodged valid application review decision reviewed tribunal legislation policy3 themigration act 1958 act various regulation made principally themigration regulation 1994 regulation provide different class visa criterion grant reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication produced department immigration multicultural affair dima procedure advice manual 3 pam 3 migration series instruction msi tribunal required regard policy apply unless cogent reason 4 general term person may considered visa complies criterion tribunal must affirm decision review one criterion essential grant visa met hand tribunal find one criterion met may remit application visa dima direction specified criterion met matter minister delegate consider remaining criterion tribunal consideration therefore usually limited might described criterion dispute many regulation require applicant provide evidence support specific criterion time application made evidence provided criterion time tribunal taken account relevant time decision criterion otherwise extent reinforces detracts evidence provided time application see bretag v immigration review tribunal fca unreported 29 november 1991 5 legislation policy relevant review legislation migration regulation schedule 2 part 686and schedule 4 clause 4011directions policy direction 1 2 1996 issued minister section 499 actpolicy procedure advice manual 3 generic guideline h visitor visas6 tribunal generally regard regulation stood time visa application later amendment may apply circumstance evidence7 tribunal regard document dima file document file material submitted behalf visa applicant hearing conducted 25 january 2001 tribunal received oral evidence visa applicant brother sunil adakari sister law ashanti adakari tribunal following document available review t1 mrt case file folio numbered 1 45d1 dima case file folio numbered 1 138 visa applicant female citizen sri lanka aged 78 first arrived australia holder long stay visitor class tn visa subclass 686 6 january 2000 authorised remain australia 6 april 2000 later extended 6 october 2000 2 october 2000 applied subclass 686 visa proposed stay 6 month d1 f 12 delegate refused application day d1 f 1 decision subject review 9 brother sister visa applicant stated statutory declaration reason visa applicant sought stay australia assist child care son d1 f 10 visa applicant submitted brother recent pay slip d1 f 7 support application also submitted information monash medical centre medical practitioner speak extent assistance provided visa applicant daughter law due circumstance surrounding personal life t1 f 19 20 visa applicant state concerned refusal visa cause hardship nephew levan nimnaka adikari child care required t1 f 4 visa applicant aged 78 brother aged 52 sister law early 30 levan adikari aged 2 year brother sister law separated reason name appear statutory declaration dated 2 october 2000 work cannot look son respective home hence visa applicant caring levan nimnaka adikari ten month medical report claim visa applicant assisting daughter law reported single mother experiencing stressful life past 20 month t1 f 19 largely low back l4 5 disc prolapse t1 f 20 10 policy direction 1 1996 state relevant consideration testing whether applicant intends genuine visit based applicant personal circumstance situation country citizenship usual residence situation person support visit paragraph 10 state reaching finding intention make genuine visit officer also required draw local experience reaching considered view level risk posed visitor applicant visitor overstay rate level incidence visitor seeking longer term temporary permanent residence australia local condition contribute higher degree non compliance visitor visa condition form part context ultimately case must receive balanced assessment merit regard circumstance pertaining applicant 11 hearing visa applicant appeared lithe fit looking elderly woman good accented english considerable charm said desire stay australia beyond term visa majority relative sri lanka satisfactory existence life property dompe colombo district gifted daughter subject retaining life tenancy t1 f 21 2 responsibility maintain property cannot away indefinitely three married son 11 child also live property teacher retired pension authority asked come back teaching take english class shortage english teacher declined happy tutor grandchild beginning complain away long pension income property keep comfortably said want stay 6 month daughter law recover point cope child relative australia welfare nephew thing keeping 12 ashanti adakari said husband separated largely problem caused son previous marriage although university age disapproves marriage managed insist father live separately husband sunil adakari said propose unite near future cannot adequately look young son partly work commitment largely restricted duty arising back injury nurse injured lifting patient physiotherapy improving hope able return full duty month investigated taking childcare duty get evening cost could manage made difficult behaviour stepson husband acquiescence mean maintain two household said visa applicant cope well child happy assist next 6 month little need maintenance expense australia spends time sister law home 13 whilst visa applicant giving evidence child decided throw tantrum robust cyclonic infant wail could heard reception area father flustering ineffectually whilst mother trouble restraining visa applicant intervened scooped scurried outside howling stopped returned hearing room minute much quieter apparently mollified nephew tow findings14 visa applicant successful application must satisfy minister access adequate fund trip regulation 686 211 b tribunal find evidence financial need meagre access adequate fund regulation 686 221 2 c requires establish expressed intention continued visit australia genuine delegate stated decision parent child ample opportunity arrange alternative child care t1 f 8 however financial consideration hour sister law must work cogent reason practicable alternative tribunal satisfied reason visit visa applicant stated namely care nephew next 6 month allow daughter law recover 15 visa applicant subject public interest criterion regulation 686 221 2 e therefore must establish isvery little likelihood remain hereon expiration visa tribunal satisfied evidence visa applicant sound reason return sri lanka end stay reason wanting stay stated prepared agree imposition condition 8503 however matter department circumstance tribunal find visa applicant meet criterion regulation 686 221 2 e little likelihood overstay 16 regulation 686 221 2 g v state grant visa would result stay consecutive period exceeding 12 monthsthe applicant must satisfy minister exceptional circumstance exist grant visa although pam provides guidance interpretation ofexceptionalthe word defined regulation macquarie dictionary 2ndrevised edition 1988 page 612 definesexceptionalasforming exception unusual instance unusual extraordinary shorter oxford english dictionary 3rd edition defines nature forming exception unusual ineastman v r 1997 2 fca 7 january 1997 burchett j page 2 refers tochamberlain v r 1982 fca 235 1982 69 flr 445in fox j 447 state relation toexceptional circumstance phrase term art plainly cover relate wide variety different situation burchett j also refers tor v giordano 1982 31 sasr 241 full court supreme court south australia state p243 unnecessary would unwise attempt compile list circumstance would regarded exceptional totality circumstance must looked court went state one factor regarded decisive court hearing application must consider circumstance order determine whether regarded aggregate exceptional 17 case issue claim exceptional circumstance based sister law incapacity arising documented lower back injury difficulty obtaining child care problem arising cost difficulty obtaining husband assistance whilst indulges older child pique evident visa applicant quite capable handling child willing able ordinary quite unusual sufficiently class exceptional circumstance visa applicant meet criterion regulation 686 221 2 g v conclusion18 visa applicant meet criterion dispute grant visa subject review decision19 tribunal remit matter department immigration multicultural affair reconsideration including consideration condition 8503 direction visa applicant satisfies regulation 686 211 686 221 2 c 686 221 2 g v grant long stay visitor class tn visa subclass 686

MPG Investments Pty Ltd v Willoughby City Council [2017] NSWLEC 1442 (17 August 2017).txt

mpg investment pty ltd v willoughby city council 2017 nswlec 1442 17 august 2017 last updated 17 august 2017land environment courtnew south walescase name mpg investment pty ltd v willoughby city councilmedium neutral citation 2017 nswlec 1442hearing date 7 8 august 2017date order 17 august 2017decision date 17 august 2017jurisdiction class 1before neill cdecision 1 appeal dismissed 2 development application 2016 280 demolition existing structure construction six storey residential flat building rooftop terrace two level basement parking refused 3 exhibit exhibit 1 returned catchword development application residential flat building existing use right abandoned non compliance height building floor space ratio development standard legislation cited environmental planning assessment act 1979land environment court act 1979cases cited cracknell lonergan architect pty ltd v leichhardt municipal council 2012 nswlec 194 193 lgera 151texts cited nilcategory principal judgmentparties mpg investment pty ltd applicant willoughby city council respondent representation counsel mr galasso sc mr nash barrister applicant m k gerathy solicitor respondent solicitor project lawyer applicant hwl ebsworth lawyer respondent file number 2016 383215publication restriction nojudgmentcommissioner appeal pursuant provision ofs 97of theenvironmental planning assessment act 1979 epa act refusal development application 2016 280 demolition existing structure construction six storey residential flat building two level basement parking rooftop terrace proposal 155 161 willoughby road naremburn site willoughby council council appeal subject mandatory conciliation 7 april 2017 accordance provision ofs 34of theland environment court act 1979 lec act agreement reached conciliation conference terminated pursuant 34 4 lec act leave granted court 24 may 2017 applicant rely amended proposal issuesthe council contention summarised proposal overdevelopment site justifying exceedance development standard basis incentive cease existing impermissible use acceptable proposal inconsistent objective development standard floor space ratio height building proposal result amenity impact surrounding development council contention regarding stormwater addressed council satisfaction agreement stormwater engineering expert reflected stormwater plan exhibit e applicant contends condition sought imposed council consent regarding stormwater unnecessary following tender exhibit e proposal includes 27 car parking space basement exhibit tender traffic parking report exhibit demonstrates would reduction car movement laneway compared existing use addressed council contention council satisfaction regarding traffic parking site contextthe site eastern side willoughby road naremburn block bounded donnelly road north chandos street south site area 1319 2sqm frontage willoughby road rear access kershaw lane site contains existing two storey commercial building fronting willoughby road 163 willoughby road north site contains nine storey residential flat building 161a willoughby road rear 163 willoughby road contains three storey residential flat building 161a accessed northern end kershaw lane 143 145 willoughby road south site contains three storey residential flat building 202 willoughby road west site opposite side willoughby road contains three four storey mixed use development proposalthe proposal demolish existing structure site construct residential flat building consisting following two basement level accessed kershaw lane containing 27 car parking space storage garbage room vertical circulation ground floor unit 1 5 private courtyard consisting 4 one bed unit 1 two bed unit landscaped area communal open space area first floor unit 6 9 balcony consisting 4 one bed unit 1 two bed unit form development divided northern wing southern wing east west circulation two wing division reflected externally articulation building northern wing extends east lower level six storey rooftop terrace lift stair access southern wing four storey rooftop terrace planning frameworkthe proposal subject relevant provision state environmental planning policy 65 design quality residential apartment development sepp 65 cl 4 1 consideration given apartment design guide adg cl 28 2 c accept applicant submission solar daylight provision adg 4a 1 requiring living room private open space least 70 apartment building receive minimum 2 hour direct sunlight 9am 3pm mid winter sydney metropolitan area apply proposal inconsistent control relation solar access willoughby development control plan wdcp effect cl 6a sepp 65 extent inconsistency site zoned r3 medium density residential pursuant willoughby local environmental plan 2012 lep 2012 relevant objective zone provide housing need community within medium density environment accommodate development compatible scale character surrounding residential development relevant aim lep 2012 include promoting development designed contribute desired future locality concerned reduce adverse impact development adjoining nearby residential property site maximum building height 12m height building map sheet hob_005 lep 2012 relevant objective height building development standard cl 4 3 1 lep 2012 follows ensure new development harmony bulk scale surrounding building streetscape b minimise impact new development adjoining nearby property disruption view loss privacy overshadowing visual intrusion c ensure high visual quality development viewed adjoining property street waterway public reserve foreshore minimise disruption existing view achieve reasonable view sharing adjacent development public open space height bulk development e set upper limit height building consistent redevelopment potential relevant land given development restriction floor space landscaping f use maximum height limit assist responding current desired future character locality h achieve transition building scale higher intensity business retail centre surrounding residential area site floor space ratio fsr 0 9 1 floor space ratio map sheet fsr_005 lep 2012 relevant objective fsr development standard cl 4 4 1 lep 2012 follows limit intensity development control apply carried accordance environmental capacity land zone objective land c minimise impact new development adjoining nearby property disruption view loss privacy overshadowing visual intrusion manage bulk scale development suit land use purpose objective zone relevant provision wdcp apply proposal wdcp includes list proposed lane widening including kershaw lane 1 2m west side 141 155 willoughby road wdcp includes d2 5 density height fourth level building r3 zone 12m height limit setback floor floor area greater 60 floor control d2 6 3 wdcp development relation streetscape require residential flat building sensitive specific characteristic site locality respect element contribute streetscape character includes form surrounding building control d2 7 3 maximum site coverage 28 four storey building 24 6 storey building proposal site coverage 29 control d2 9 5 require development 10 dwelling provide child play area addition communal open space area proposal include child play area applicant submits deficiency determinative child play equipment could provided secondary area communal landscaping south eastern portion site entry ramp basement public submissionsfive resident objector provided evidence commencement hearing site court company party viewed site balcony upper level northern elevation 143 145 willoughby road concern summarised proposal represents overdevelopment site proposal increase overshadowing unit 143 145 willoughby road south site proposal compromise privacy bedroom courtyard 161a willoughby road proposal compromise privacy apartment 161 willoughby road north site proposal exacerbate traffic conflict kershaw lane car mount kerb pas garbage truck expert evidencethe applicant relied expert planning evidence mr stuart harding council relied expert planning evidence m ana vissarion expert urban design evidence mr peter smith considerationin order power grant development consent development contravenes development standard lep 2012 must satisfied proposal consistent objective development standard objective development within zone cl 4 6 4 ii lep 2012 applicant written request adequately addressed compliance development standard unreasonable unnecessary circumstance cl 4 6 3 lep 2012 sufficient environmental planning ground justify contravening development standard cl 4 6 3 b lep 2012 proposal maximum height ground level 21 36m lift overrun required access roof terrace maximum building height development standard site 12m proposal fsr 1 14 1 fsr development standard site 0 9 1 applicant written request exhibit c contravention height building development standard fsr development standard lep 2012 justifies numerical non compliance development standard follows current use site commercial purpose impermissible use r3 zone abandoned applicant opportunity cease use pursue permissible use trigger exploring incentive promote redevelopment site land use consistent zone objective additional floor space excess fsr development standard 315sqm development consent additional floor space would provide suitable incentive developer abandon impermissible use proposed variation applicable development standard take account unique circumstance existing use right apply site proposed building envelope take account height nearby building concert footprint minimises impact resulting development building height variation excess height building development standard addition 8 82m maximum response context proposal complies objective standard zone additional height amenity impact surrounding existing future development overshadowing view privacy impact considered applicant written request cl 4 6 lep 2012 satisfied written request justifies compliance height building fsr development standard cll 4 3 4 4 lep 2012 unnecessary unreasonable circumstance appeal reason set following paragraph existing use rightsit controversial operative consent commercial use site preserved pursuant 109b epa act site benefit existing use right within meaning 106 epa act cracknell lonergan v leichhardt municipal council 2012 nswlec 194 193 lgera 151 50 cracknell lonergan applicant submits consequence circumstance existing use right site two pathway determine development application first consistent justice craig finding incracknell lonergan deal proposal non compliance development standard term set cl 4 6 lep 2012 effectively without regard existing use currently site second determine development standard lep 2012 control wdcp force effect pursuant cl 41 1 theenvironmental planning assessment regulation 2000 regulation following term 41 certain development allowed cf clause 39 ep regulation 1994 1 existing use may subject division changed another use use use may carried without development consent act orthe applicant submits understand submission second pathway mean development standard control ignored development application instead assessed term appropriateness within physical context site merely reference development standard control incracknell v lonergan 83 87 justice craig found development standard imposed applicable planning instrument derogate provision cl 41 1 regulation current form pursuant 108 3 epa act honour addressed imposition development standard determination development application notwithstanding finding 108 engaged use approved operative consent abandoned 58 basis development standard lep 2012 applicable determination development application subject term cl 4 6 lep 2012 accept applicant position articulated written request exhibit c incentive provided term exceedance development standard setting aside development standard order encourage applicant abandon existing use provision incentive reward applicant abandon existing use policy decision would appropriately reflected planning regime argument unsubstantiated provision division 10 epa act regarding existing us contexti accept agree evidence council expert height proposal justified presence nine storey building north building north set within generous landscaped ground substantial setback boundary viewed public domain tower round anomaly context deviate surrounding development vicinity proposal relatively narrower site without opportunity generous setback surrounding development distinctly different form residential tower north six storey high building roof terrace would read context building form transitioning residential tower north context site otherwise consists two four storey building desired future character block eastern side willoughby road broadly ascertained lep 2012 zoning development standard map relevant control medium density residential development three four storey fronting willoughby road opposite mixed use development western side willoughby road transition low density residential development east considered evidence expert satisfied form massing proposal consistent desired future character amenity impactsi accept agreement expert would improvement solar access unit fronting willoughby road residential flat building south site result demolition existing building fronting willoughby road accept submission applicant eastern elevation upper two floor proposal could amended improve extent overshadowing central balcony northern façade residential building south accept agreement council expert proposal case relocating portion building envelope different part site order minimise amenity impact neighbouring development concerned additional overshadowing northern façade residential building south site affect resident amenity winter solstice additional overshadowing would caused element proposal building envelope exceeds development standard lep 2012 design criterion apartment design guide 4a includes following relation solar daylight access 1 living room private open space least 70 apartment building receive minimum 2 hour direct sunlight 9am 3pm mid winter sydney metropolitan area applicant position criterion used measure performance existing residential flat building adjoining property relation impact building envelope proposal order justify acceptability proposal 70 threshold achieved disagree may appropriately applied existing adjoining residential building measure performance proposed building envelope substantially complies relevant building envelope development standard control depending relevant circumstance however applying criterion adjoining existing residential building measure performance non complying element proposal building envelope inappropriate instead actual increase overshadowing winter solstice adjoining residential building detrimental impact assessed relation non complying building envelope reason accept proposal amenity impact surrounding existing future development accept agreed evidence expert 12m high proposal would interrupt district view horizon upper level balcony opposite side willoughby road looking towards east proposal impact view balcony would therefore determinative conclusioni satisfied proposal consistent objective development standard lep 2012 satisfied applicant written request adequately addressed compliance development standard unreasonable unnecessary circumstance consequently development consent cannot granted development application ordersthe order court 1 appeal dismissed 2 development application 2016 280 demolition existing structure construction six storey residential flat building rooftop terrace two level basement parking refused 3 exhibit exhibit 1 returned ____________susan neillcommissioner court

Ratliff and Ratliff (Child support) [2022] AATA 1566 (20 April 2022).txt

ratliff ratliff child support 2022 aata 1566 20 april 2022 last updated 10 june 2022ratliff ratliff child support 2022 aata 1566 20 april 2022 division social service child support divisionreview number 2022 mc023188applicant mr ratliffother party child support registrarms ratlifftribunal member h morelanddecision date 20 april 2022decision tribunal set aside decision review substitution decides application child support assessment child continue beyond 18thbirthday accepted catchwordschild support particular administrative assessment application extend child support assessment beyond child eighteenth birthday whether child full time secondary education eighteenth birthday application accepted decision review set aside substitutednames used published decision pseudonym reference appearing square bracket indicate information omitted decision replaced generic information identify involved individual required bysubsections 16 2ab 16 2ac thechild support registration collection act 1988 reason decisionbackground1 application review extension child support assessment child born 25 january 2004 beyond 18thbirthday 2 mr ratliff m ratliff parent child child support case mr ratliff m ratliff registered child support since 8 february 2018 1 3 29 november 2021 mr ratliff lodged application extend child support case child past 18thbirthday 25 january 2022 29 november 2021 child support decided refuse mr ratliff application 4 6 december 2021 mr ratliff objected child support decision 26 january 2022 objection officer decided disallow mr ratliff objection 2 5 28 january 2022 mr ratliff lodged application review objection officer decision administrative appeal tribunal tribunal 6 20 april 2022 tribunal held hearing mr ratliff m ratliff participated via microsoft team audio gave evidence affirmation 7 prior hearing child support provided tribunal mr ratliff m ratliff bundle document taken file 80 page child support also asked tribunal could make written submission tribunal relation matter tribunal granted request document provided child support well written submission copied mr ratliff m ratliff relevant aspect evidence material tribunal referred tribunal consideration issue decided consideration8 statutory provision relevant review contained thechild support assessment act 1989 act 9 subsection 31 2 act provides child support payable day immediately day child support terminating event happens relation child carer entitled child support liable parent three 10 paragraph 12 1 c provides child turning 18 year age terminating event 11 section 151bof act however provides parent apply child support remain payable last day secondary school year child turn 18 year age child turn 18 year age year child full time secondary education 12 according tosubsection 151c 2 act registrar must accept application registrar satisfied child turned 17 year age b following applies administrative assessment child support agreement relation child force likely force day child 18thbirthday ia suspension determination undersection 150fprovides child support payable respect day child 18thbirthday ii administrative assessment take child account force likely force day child 18thbirthday c child likely full time secondary education child 18thbirthday child 18thbirthday occur last day secondary school year e either application made child 18thbirthday exception circumstance justifying making application child 18thbirthday 13 dispute time mr ratliff made application extension 29 november 2021 child turned 17 year age administrative assessment force 18thbirthday likely occur last day secondary school year application made child turned 18 year age 14 dispute whether child likely full time secondary education child 18thbirthday 15 submission child support said combined effect ofsections 151band151cof act meant child 18thbirthday fall within secondary school year secondary school year school commenced 28 january 2022 3 16 regard tosection 151bof act child support submitted end date provision providing extension child support assessment case child turn 18 year age secondary school year based last day school defined insection 5of act based child schooling end rather end relevant calendar year child support submits mean intention legislation secondary school year purpose applyingsection 151cis based secondary school institution date rather calendar year 17 regard tosection 151cof act child support submitted extension child support assessment allowed registrarmustbe satisfied accepting application child likely full time secondary education child 18thbirthday child support submitted mean expectation child receivingeducation time decision extension granted 18 mean child support concluded child full time secondary education 18thbirthday turned 18 year age school holiday 19 tribunal considered following relation child status time turned 18 year age 20 mr ratliff told tribunal 2021 child enrolled school enrolment continued new school year 2022 also told tribunal child accessing vcal program via school delivered skill invest transition child vcal program commenced late 2021 21 considering child situation tribunal find school holiday 2021 2022 school year child continued secondary school student full time secondary education 18thbirthday 25 january 2022 continuity 2021 2022 school year common sense description child summer holiday secondary school student period 22 also considering alternative proposition difficult determine child secondary school student full time secondary education date considered member adult workforce unemployed secondary school student date 23 tribunal observes approach child support similar rejecting claim made parent case child turning 18 year age intervening school holiday term 1 2 2 3 3 4 tribunal convinced kind outcome intended legislation 24 tribunal prefers straightforward interpretation legislation child support assessment continues terminating event may terminating event provided undersection 12of act unless requirement providing extension beyond child 18thbirthday met case extension applies last day school within year unless another terminating event intervenes 25 case tribunal find child met requirement undersection 151cof act mean application child support assessment child continue beyond 18thbirthday 26 tribunal also note hearing mr ratliff said simply wanted independent decision maker make decision providing outcome keeping rule decisionthe tribunal set aside decision review substitution decides application child support assessment child continue beyond 18thbirthday accepted 1 child support paper p 55 2 child support paper p 4 3 child support additional paper paragraph 16 22

Department of Health and Ageing [2005] AUSStaCSDLM 111 (11 August 2005).txt

department health ageing 2005 ausstacsdlm 111 11 august 2005 department health ageingaged care amount flexible care subsidy extended aged care home multi purpose service revocation determination 2005 unders 52 1 1 theaged care act 1997 f2005l01900 aged care act 1997made29 06 2005tabled09 08 2005 s09 08 2005 hrsummaryrevokes previous determination aca ch 3 17 2004 aged care amount flexible care subsidy multi purpose service determination2005 1 52 1 1 theaged careact 1997 f2005l01898 aged care act 1997made29 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies method determining rate flexible care subsidy payable multi purpose service 01 january 2005 aged care amount flexible care subsidy multi purpose service determination2005 2 52 1 1 theaged careact 1997 f2005l01899 aged care act 1997made29 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies method determining rate flexible care subsidy payable multi purpose service 01 july 2005 aged care residential care subsidy amount viability supplement determination2005 1 44 29 8 theaged careact 1997 f2005l01723 aged care act 1997made23 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount viability supplement payable service determined secretary eligible three specified scheme aged care residential care subsidy amount viability supplement determination2005 2 44 29 8 theaged careact 1997 f2005l01725 aged care act 1997made23 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount viability supplement payable service determined secretary eligible three specified scheme aged care residential care subsidy viability supplement eligible residential care service determination 2005 1 44 29 2 theaged care act 1997 f2005l01838 aged care act 1997made25 06 2005tabled09 08 2005 s09 08 2005 hrsummaryprovides viability supplement payable residential care service 1997 scheme service 2001 scheme service defined aged care residential care subsidy viability supplement eligible residential care service determination 2005 2 44 29 2 theaged care act 1997 f2005l01839 aged care act 1997made25 06 2005tabled09 08 2005 s09 08 2005 hrsummaryprovides viability supplement payable residential care service operate three specified scheme approval care recipient amendment principle 2005 1 96 1 1 theaged care act 1997 f2005l01658 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecify eligibility criterion assessment approval process transition care chemotherapy pharmaceutical access program arrangement subparagraph 100 1 b thenational health act 1953 pb 22 2005 f2005l02120 national health act 1953made28 07 2005tabled09 08 2005 s09 08 2005 hrsummaryamends arrangement availability chemotherapy pharmaceutical public hospital non admitted patient day admitted patient patient discharge classification amendment principle 2005 1 96 1 1 theaged care act 1997 f2005l01664 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryamend principal principle make provision situation residential care recipient take hospital leave followed leave transitional care community care subsidy amendment principle 2005 1 96 1 1 theaged care act 1997 f2005l01662 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryprovide existing recipient community care may receive transition care following acute hospital episode declaration pb 15 2005 85 2aa thenational health act 1953 f2005l02115 national health act 1953made26 07 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies certain drug medicinal preparation longer available pharmaceutical benefit declaration pb 16 2005 85 2 thenational health act 1953 f2005l02107 national health act 1953made26 07 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies revised list drug medicinal preparation available pharmaceutical benefit determination flexible care subsidy respect extended aged care home section 52 1 theaged care act 1997 aca ch 3 14 2005 f2005l01789 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount flexible care subsidy extended aged care home program determination hib 11 2005 paragraph bj schedule 1 thenational health act 1953 f2005l01712 national health act 1953made24 06 2005tabled09 08 2005 s09 08 2005 hrsummaryrevokes remake principal determination revise schedule 1 2 3 4 6 8 determination pb 17 2005 paragraph 98c 1 b thenational health act 1953 f2005l02109 national health act 1953made26 07 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies revised list drug medicinal preparation available pharmaceutical benefit determination pb 18 2005 s 85 85a 88 thenational health act 1953 f2005l02110 national health act 1953made26 07 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies revised list drug medicinal preparation available pharmaceutical benefit determination pb 19 2005 85b 1 thenational health act 1953 f2005l02111 national health act 1953made26 07 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies revised list drug medicinal preparation available pharmaceutical benefit determination pb 20 2005 93of thenational health act 1953 f2005l02113 national health act 1953made26 07 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies revised list drug medicinal preparation available pharmaceutical benefit determination pso 05 2005 pursuant tos 5d 1 thenational health act 1953 f2005l01877 national health act 1953made29 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies outreach service provided behalf france perry house determination pso 06 2005 pursuant tos 5d 1 thenational health act 1953 f2005l01878 national health act 1953made29 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies outreach service provided behalf sydney adventist hospital determination pso 07 2005 pursuant tos 5d 1 thenational health act 1953 f2005l01874 national health act 1953made29 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies outreach service provided behalf specified hospital clinic centre determination amount flexible care subsidy intermittent care service 52 1 theaged care act 1997 aca ch 3 17 2005 f2005l01795 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount flexible care subsidy care provided intermittent care service allocated aged care innovative pool 2003 04 determination amount flexible care subsidy retirement village care pilot 52 1 theaged care act 1997 aca ch 3 16 2005 f2005l01793 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount flexible care subsidy pilot service allocated aged care place retirement village care pilot determination paragraph 98b 1 thenational health act 1953 f2005l01706 national health act 1953made16 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies manner commonwealth price pharmaceutical benefit determined purpose payment approved pharmacist connection supply pharmaceutical benefit determination 84c 7 thenational health act 1953 f2005l02114 national health act 1953made28 07 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies increase additional fee ready prepared pharmaceutical benefit part safety net scheme determination section 44 3 theaged care act 1997 aca ch 3 4 2005 f2005l01767 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount basic subsidy payable residential care recipient determination section 44 6 theaged care act 1997 aca ch 3 5 2005 f2005l01770 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount concessional resident supplement payable concessional resident assisted resident determination section 44 8a theaged care act 1997 aca ch 3 15 2005 f2005l01792 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount charge exempt resident supplement payable qualifying residential care recipient determination section 44 12 theaged care act 1997 aca ch 3 6 2005 f2005l01773 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount respite supplement provided eligible recipient determination section 44 13 theaged care act 1997 aca ch 3 7 2005 f2005l01776 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount oxygen supplement provided eligible recipient determination section 44 14 theaged care act 1997 aca ch 3 8 2005 f2005l01779 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount enteral feeding supplement payable eligible care recipient determination section 44 16 theaged care act 1997 aca ch 3 9 2005 f2005l01783 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount transitional supplement payable eligible residential care recipient determination section 44 19 theaged care act 1997 aca ch 3 10 2005 f2005l01785 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount adjusted subsidy reduction payable certain nursing home determination section 44 28 theaged care act 1997 aca ch 3 12 2005 f2005l01786 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount pensioner supplement payable eligible care recipient determination section 48 1 theaged care act 1997 aca ch 3 13 2005 f2005l01787 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount community care subsidy payable eligible care recipient flexible care transition care subsidy amount determination 2005 paragraph 52 1 1 theaged care act 1997 f2005l01670 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies amount flexible care subsidy payable flexible care form transition care flexible care subsidy amendment principle 2005 1 96 1 1 theaged care act 1997 f2005l01668 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryprovide payment flexible care subsidy transition care health benefit organization capital adequacy standard 2005 73bcg 1 thenational health act 1953 f2005l01937 national health act 1953made06 07 2005tabled09 08 2005 s09 08 2005 hrsummaryprescribes revised capital adequacy standard health benefit fund health benefit organization interpretation standard 2005 s 73bcb 1 73bcg 1 thenational health act 1953 f2005l01940 national health act 1953made06 07 2005tabled09 08 2005 s09 08 2005 hrsummaryprescribes requirement interpreting various component solvency capital adequacy standard health benefit organisation health benefit organization solvency standard 2005 73bcb 1 thenational health act 1953 f2005l01939 national health act 1953made06 07 2005tabled09 08 2005 s09 08 2005 hrsummaryprescribes revised solvency standard health benefit fund health insurance allied health dental service determination 2005 3c 1 thehealth insurance act 1973 f2005l01922 health insurance act 1973made27 06 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies certain allied health dental service provided people chronic condition complex care need treated listed general medical service table health insurance general medical service table amendment regulation 2005 3 select legislative instrument 2005 170 f2005l02030 health insurance act 1973made21 07 2005tabled09 08 2005 s09 08 2005 hrsummaryamend provision principal regulation concerning annual cycle care diabetes treatment patient mental health disorder highly specialised drug program arrangement made subparagraph 100 1 b thenational health act 1953 pb 21 2005 f2005l02112 national health act 1953made26 07 2005tabled09 08 2005 s09 08 2005 hrsummaryamends arrangement availability special pharmaceutical product person receiving treatment highly specialised drug private hospital non admitted patient day admitted patient patient discharge pharmaceutical benefit determination unders 99l 1 thenational health act 1953no pb 14 2005 f2005l01888 national health act 1953made29 06 2005tabled09 08 2005 s09 08 2005 hrsummaryextends operation previous determination dealing pharmacy located adjacent supermarket 31 december 2005 residential care subsidy amendment principle 2005 2 96 1 1 theaged careact 1997 f2005l01666 aged care act 1997made21 06 2005tabled09 08 2005 s09 08 2005 hrsummaryprovide existing recipient residential care may receive transition care following acute sub acute hospital episode residential care subsidy amendment principle 2005 3 96 1 1 theaged careact 1997 f2005l01884 aged care act 1997made29 06 2005tabled09 08 2005 s09 08 2005 hrsummaryamend principal principle consequence amendment s 57 12and 57a 6 act residential care subsidy amendment principle 2005 4 96 1 1 theaged careact 1997 f2005l01721 aged care act 1997made23 06 2005tabled09 08 2005 s09 08 2005 hrsummarysubstitute newpart 14in principal principle concerning payment viability supplement residential care subsidy amendment principle 2005 4 96 1 1 theaged careact 1997 f2005l01837 aged care act 1997made23 06 2005tabled09 08 2005 s09 08 2005 hrsummaryamends principal principle relation financial reporting requirement approved provider conditional adjustment payment special authority program arrangement made subparagraph 100 1 b thenational health act 1953 pb 23 2005 f2005l02108 national health act 1953made26 07 2005tabled09 08 2005 s09 08 2005 hrsummaryspecifies arrangement supply special pharmaceutical product person require treatment imatinib mesylate therapeutic good order 73 10of thetherapeutic good act 1989 f2005l01603 therapeutic good act 1989made30 06 2005tabled09 08 2005 s09 08 2005 hrsummaryprescribes minimum standard met haematopoietic progenitor cell derived cord blood user right amendment principle 2005 1 made 96 1 1 theaged care act 1997 f2005l01885 aged care act 1997made29 06 2005tabled09 08 2005 s09 08 2005 hrsummaryamend principal principle consequence theaged care amendment transition care asset testing act 2005

Luck v University of Southern Queensland (No 2) [2018] FCA 1297 (17 August 2018).txt

luck v university southern queensland 2 2018 fca 1297 17 august 2018 last updated 27 august 2018federal court australialuck v university southern queensland 2 2018 fca 1297appeal university southern queensland v luck 2017 fcca 639file number vid 396 2017judge logan jdate judgment 17 august 2018catchwords practice procedure application stay order full court federal court australia pending outcome application special leave appeal high court australia power unders 25of thefederal court australia act 1976 cth order stay whether exceptional circumstance held stay granted legislation bankruptcy act 1966 cth s 52 4 52 5 federal court australia act 1976 cth s 23 25judiciary act 1903 cth 78bfederal circuit court rule 2001 cth r 16 05 2 c case cited petrotimor companhia de petroleos r l v commonwealth australia 2003 fcafc 82university southern queensland v luck 2017 fcca 639date hearing 17 august 2018date last submission 17 august 2018registry victoriadivision general divisionnational practice area commercial corporationssub area general personal insolvencycategory catchwordsnumber paragraph 17counsel appellant appellant appeared personcounsel respondent respondent appearordersvid 396 2017between gaye luckappellantand university southern queenslandrespondentjudge logan jdate order 17 august 2018the court order notwithstanding dismissal appellant appeal order full court 29 june 2018 proceeding sequestration order made federal circuit court 4 april 2017 stayed pending hearing determination high court australia appellant application special leave appeal court order full court cost incidental stay application abide result special leave application note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgment revised transcript logan j 4 april 2017 federal circuit court made sequestration order respect estate present applicant m gaye luck university southern queensland v luck 2017 fcca 639 order made upon creditor petition presented university southern queensland university two year prior 9 april 2015 ordinary course effect thebankruptcy act 1966 cth act creditor petition lapse expiration 12 month commencing date presentation petition expiration period fixed court jurisdiction bankruptcy accordance withs 52 5 act see 52 4 m luck appealed sequestration order full court court appeal issue whether period prescribed bys 52 4 act validly extended order made federal circuit court registrar 22 march 2016 varied purportedly varied order registrar r 16 05 2 e thefederal circuit court rule 2001 cth result majority full court dismissed m luck appeal m luck filed application high court australia special leave appeal court order made full court special leave application presently pending high court pending hearing determination high court special leave application m luck sought stay operation order full court effect though seeking continuation operation stay proceeding sequestration order granted judge court 20 april 2017 pending hearing determination appeal full court either single judge full court given power bys 25 2 thefederal court australia act 1976 cth fca act stay order full court application must heard determined single judge unless either judge directs application heard determined full court full court considers appropriate hear determine application see 25 2 e f fca act suffice say particular application one full court considers appropriate deal hence fall single judge hear determine application whilst particular power grant stay pending hearing determination special leave application referred 25 also case 23 fca act grant general power make order kind court think appropriate relation exercise jurisdiction conferred court thus m luck sought exercise power court posse consideration attend granting stay pending hearing determination special leave application conveniently summarised beaumont j agreement black cj hill j inpetrotimor companhia de petroleos r l v commonwealth australia 2003 fcafc 82at 13 22 honour make reference series earlier pronouncement high court seized application stay proceeding pending special leave application principle reference made high court case different court asked exercise like jurisdiction staying operation order pending hearing determination special leave application suffice say jurisdiction one exceptional exercised stay necessary preserve subject matter litigation application special leave might otherwise futile unless stay granted consideration relevant whether substantial prospect special leave appeal granted whether grant stay would cause loss respondent balance convenience lie m luck benefit relation prospect quite sharp respect difference view evident full court relation ability registrar make order extending time circumstance case course submission today m luck made reference wider question presently evident special leave application whether registrar quite apart view expressed dissent charlesworth j full court power regard scheme relation exercise judicial power commonwealth evident chapter iii theconstitution would need though amend special leave application raise argument kind need also give notice unders 78bof thejudiciary act 1903 cth case fall assessment reference term prospect evident difference view full court assessment prospect relation special leave somewhat fraught cannot view said m luck bereft prospect may serious consequence bankruptcy regarded necessary interest justice special leave granted allow correctness difference view evident determined ultimate appellate level certainly important point bankruptcy practice arises frequently one might hope expect raised circumstance m luck case relation extension time respect petition certainly uncommon party advert time limit prescribed respect life petition thebankruptcy act either least late piece term adverse effect respondent consideration university reason entitled respect present application chosen neither consent oppose stay application instead filed submitting appearance respect stay application overt prejudice asserted university matter prejudice immediately obvious event trustee respect m luck bankrupt estate sequel federal circuit court order official trustee bankruptcy view official trustee respect order subject stay proceeding granted north j evident letter official trustee m luck dated 10 may 2017 became exhibit 1 today hearing view official trustee stay proceeding prevent m luck bankruptcy taking legal effect example prevent recording making sequestration order national personal insolvency index prevent property vesting official trustee date sequestration order made rather official trustee view time effect stay official trustee would actively administer estate example realising property vested official trustee least presently advised seem effect making sequestration order virtue act vest property bankrupt official trustee might expected grant stay would result official trustee would disposed earlier actively administer m luck bankrupt estate pending outcome special leave application active administration bankrupt estate would visit cost administration would fall either university m luck ultimately successful event diminish worth m luck bankrupt estate creditor generally bankruptcy particular consequence include penal consequence affected stay proceeding act operates upon making sequestration order least estate remain state one might term suspended animation stay granted case one entail seeking stay respect enforcement money judgment bankruptcy quite different uncertain special leave application come hearing determination m luck filed promptly certainly possible heard determined end year may early next year heard determined high court prospect best tell term understanding ordinary course disposal special leave application period six month today might elapse high court deal special leave application come m luck prospect securing grant special leave respondent neutral relation stay significantly point prejudice prospect particular diminution bankrupt estate stay granted administration cost circumstance respect stay application necessarily interplay end result view balance convenience favour exceptionally granting stay proceeding sequestration order pending hearing determination special leave application certify preceding seventeen 17 numbered paragraph true copy reason judgment herein honourable justice logan associate dated 24 august 2018

TXBZ and Repatriation Commission [2014] AATA 19 (16 January 2014).txt

txbz repatriation commission 2014 aata 19 16 january 2014 last updated 17 january 2014 2014 aata 19 ul none list style none divisionveterans appeal divisionfile number 2012 2537retxbzapplicantandrepatriation commissionrespondentdecisiontribunalmr penglis senior memberdate16 january 2014placeperthpursuant tosection 43of theadministrative appeal tribunal act 1975 cth reviewable decision dated 19 april 2012 affirmed sgd penglis mr penglis senior membercatchwordsveterans affair veteran claim suffer post traumatic stress disorder result repeated sexual assault course applicant operational service evidence establish applicant suffers post traumatic stress disorder tribunal satisfied beyond reasonable doubt evidence alleged assault occur reviewable decision affirmed turn factslegislationveterans entitlement act 1986 cth s 120 120a 3 and196b 2 14 casesrepatriation commission v bowden 2012 fcafc 176secondary materialsstatement principle 6 2008 posttraumatic stress disorderreasons decisionmr penglis senior member16 january 2014this matter relates applicant claim suffers post traumatic stress disorder ptsd related applicant service navy respondent subsequently veteran review board refused applicant claim reason set herein tribunal also refuse applicant claim backgroundthe background fact dispute applicant born 16 july 1949 served royal australian navy 5 january 1966 25 january 1971 discharged rank able seaman weapon mechanic applicant eligible war service also operational service follows vietnam hmas sydney 8 april 1967 22 april 1967 28 april 1967 12 may 1967 19 may 1967 14 june 1967 vietnam hmas duchess 18 november 1968 25 november 1968 16 november 1969 29 november 1969 applicant absented navy without leave 25 january 1971 2010 applicant commenced treatment dr megan gilbert consultant psychiatrist 30 august 2010 dr gilbert diagnosed applicant suffering significant ptsd direct consequence experience suffered whilst navy experience suffered whilst navy reference applicant contention whilst navy sexually abused seventeen year old sailor senior non commissioned officer regimental sergeant major australian army instance abuse occurred period applicant eligible service theveterans entitlement act 1986 cth act decision made respondent veteran review boardthe applicant lodged claim respondent 29 june 2010 1 december 2010 delegate respondent rejected claim basis claimed condition related applicant service applicant applied veteran review board review decision respondent 19 april 2012 board affirmed respondent decision basis whilst accepting dr gilbert diagnosis ptsd board cannot reasonably satisfied event happened described veteran response requisite degree sustain diagnosis consequently reason given board reasonably satisfied material raise connection veteran diagnosed post traumatic stress disorder relevant service required act reviewable decision subject application relevant principlesthe law area well settled dispute tribunal section 120 act relevantly applies follows 1 claim pension respect incapacity injury disease veteran relates operational service rendered veteran commission shall determine injury war caused injury disease war caused disease case may unless satisfied beyond reasonable doubt sufficient ground making determination 2 3 applying subsection 1 2 respect incapacity person injury disease related service rendered person commission shall satisfied beyond reasonable doubt sufficient ground determining injury war caused injury defence caused injury b disease war caused disease defence caused disease case may commission consideration whole material opinion material raise reasonable hypothesis connecting injury disease death circumstance particular service rendered person section 120a 3 act relevantly applies follows purpose s120 3 hypothesis connecting injury suffered person disease contracted person death person circumstance particular service rendered person reasonable force statement principle determined subsection 196b 2 11 b determination commission subsection 180a 2 upholds hypothesis section 196b 2 act relevantly applies follows repatriation medical authority view sound medical scientific evidence indicates particular kind injury disease death related operational service rendered veteran authority must determine statement principle respect kind injury disease death setting factor must minimum exist e factor must related service rendered person said reasonable hypothesis raised connecting injury disease death kind circumstance service section 196b 14 act relevantly applies follows factor causing contributing injury disease death related service rendered person resulted occurrence happened person rendering service b arose attributable service c contributed material degree aggravated service e f g paragraph 25 30 respondent statement fact issue contention dated 19 june 2012 accurately summarised relevant legal principle follows 25 method provision applied explained full court repatriation commission v deledio 97 98 four stage process involved 1 tribunal must consider material determine whether material point hypothesis connecting injury disease death circumstance particular service rendered person question fact finding arises stage hypothesis arises application must fail 2 material raise hypothesis tribunal must ascertain whether force sop determined authority s196b 2 11 sop force hypothesis taken reasonable consequence application must fail 3 sop force tribunal must form opinion whether hypothesis raised reasonable one hypothesis fit say consistent template found sop hypothesis raised must thus contain one factor authority determined minimum must exist related person service required s 196b 2 e hypothesis contain factor could neither said contrary proved known scientific fact otherwise fanciful hypothesis fails fit within template deemed reasonable claim fail 4 tribunal must proceed consider s120 1 whether satisfied beyond reasonable doubt death war caused case claim incapacity incapacity arise war caused injury satisfied claim must succeed tribunal satisfied claim must fail stage process tribunal required find fact material question onus proof application presumption involved 26 full court held sop applies prescribes essential content reasonable hypothesis pursuant s120 3 order satisfy ss120 3 120a 3 act hypothesis must incorporate element sop prescribed order make hypothesis reasonable 27 feature disease relevantly defined applicable sop must present order connect disease person service repatriation commission v gosewinckel 1999 fca 273 1999 59 ald 690at 55 lee v repatriation commission 2002 fcafc 398 2002 125 fcr 331at 16 repatriation commission v codd 2005 fca 888at 37 repatriation commission v warren 2008 fcafc 64 2008 167 fcr 511at 25 28 hypothesis connecting condition defined relevant sop eligible service comprise number factor consistent one sop repatriation commission v mckenna 1998 52 ald 72at 80 approved full court mckenna v repatriation commission 1999 fca 323 1999 86 fcr 144at 20 factor must present connect condition service set relevant sop factor must related service one way listed s196b 14 act repatriation commission v money 2009 fcafc 11 2009 173 fcr 410at 5 29 sop made amended revoked time time decision maker called upon course review decision commission apply provision sop required first regard sop force time review decision made sop uphold connecting hypothesis decision maker required consider apply sop force time commission decision see repatriation commission v gorton 2001 fca 1194 2001 110 fcr 321at 44 64 65 30 relevant sop applicable application 6 2008 posttraumatic stress disorder issue determinationthe 2 main issue matter follows c applicant suffer ptsd whether evidence raise reasonable hypothesis applicant ptsd arose attributable ii contributed material degree aggravated applicant operational service medical evidencedr gilbert gave evidence tribunal behalf applicant based told applicant dr gilbert firmly opinion applicant suffers ptsd respondent called dr mander give evidence behalf dr mander firmly opinion applicant suffer ptsd symptom describes accounted fact applicant alcohol dependent written report dated 30 august 2010 dr gilbert recorded history presenting complaint follows applicant say problem since left navy said originally joined fifteen half year training leeuwin posted hmas sydney ordinary seaman whilst sydney five trip vietnam boat known vung tau ferry applicant stated soon joined ship molested army rsm army personnel boat said happened regularly frightened tell anyone felt would blamed applicant remained sydney six eight month sent cerberus rushcutter bay wanted become clearance diver unfortunately clear ear decompression chamber failed ultimately became weapon mechanic applicant posted hmas duchess weapon mechanic stayed next two year multiple trip vietnam time would return based sydney would break local hotel molested army rsm also drank hotel applicant left duchess stage able seaman ended hmas kuttabul remained five year molestation started reached level one particularly bad episode decided take point ran new zealand telling one including parent gone remained next ten year believing ten year would pronounced dead one would come looking ten year returned australia since time navy applicant state flashback nightmare concerning situation molested say preoccupied thought feel guilty bad frightened talk avoids situation would bring including march anzac day specifically march army rather navy fear coming applicant say poor concentration easily upset angered withdrawn say whole lifestyle solitary therefore small social life leisure pastime applicant suffers poor sleep middle terminal insomnia written report dated 28 november 2012 dr mander wrote amongst thing comment veteran review board decision reason 19 april 2012 stress applicant treating psychiatrist diagnosis post traumatic stress disorder ptsd raise issue must considered legal process particular found objective support claimant allegation disallowed claim although review board remit change diagnosis logically follows event happen another event similar magnitude cannot identified diagnosis ptsd cannot stand explained applicant adamant event described review board occur basis ongoing claim also explained applicant value reiterating claim instead would review psychiatric presentation see diagnosis reasonable given identified alternative event could led diagnosis ptsd hence revisited allegation applicant make rsm concentrated rest history development psychiatric problem context heading past history dr mander recorded following know enlisted royal australian navy january 1966 went absent without leave awol 1971 described service hmas kuttabul hmas sydney hmas duchess hmas cerberus hmas rushcutter following initial training hmas leeuwin remembers admitted hospital singapore treatment anal wart time well developed alcohol problem described got fight entry medical record 9 december 1968 passed whilst intoxicated told failed aim clearance diver could clear ear decompression chamber although wanted cook trained weapon mechanic spent two year hmas duchess b turret later quartermaster hmas kuttabul belief career prospect damaged due sexually abused also allowing extensively tattooed heavy drinking continued awol went auckland stayed next ten year many aspect history dr gilbert omitted report continued drink heavily sufficient land jail two occasion losing licence seven year significant given become professional driver sentence reduced prison seven month technicality way breath test carried although described loner de facto wife maori origin two child child another relationship impulsively left new zealand impulsively came back queried leaving family behind returning australia admitted legal problem stayed briefly mother couple day borrowed money family always black sheep family life contrast mother teetotal committed church worked lead smelter mt isa two year moving western australia subsequently regular contact parent would stop whenever driving east west route long haul driver many decade long term girlfriend last ten year showed picture approximately ten year ago living friend girlfriend suggested get medal set journey discovering past record ultimately lodging current claim surprised find paperwork said routine discharge awarded couple medal even gone awol started say year would get fight local rsl mainly ex army patron would take mickey navy inferred meant must homosexual father died 2004 point subsequent finally told mother sister subjected whilst navy ceased driving 2010 difficulty knee noted comment report dr pisano knee problem due wear tear either result job gunner subsequently truck driver say still fit short haul work employer want back focused dealing dva claim clear respective report subsequent evidence different opinion dr gilbert dr mander result proceeding upon different fact case 2 expert reviewing fact forming different conclusion rather case 2 expert forming different conclusion proceeded upon different fact made clear course dr mander evidence said agree dr gilbert report history obtained really quite different history obtained t84 asked history seems reflected report read accounted would come different conclusion doctor said ptsd would certainly differential diagnosis yes t84 accordingly end issue identified turn finding made evidence regard applicant claim sexual abuse applicant evidencethe applicant evidence chief way affirmation written statement relevantly following term base claim posttraumatic stress disorder factor 6 statement principle concerning posttraumatic stress disorder 5 2008 experiencing category 1a stressor namely sexual molestation clinical onset posttraumatic stress disorder outlined report dr megan gilbert consultant psychiatrist 30 august 2010 molested regimental sergeant major australian army period nearly four year seventeen year old time abuse began junior recruit navy well far senior rank rsm mature man mid thirty knew time believe rsm first met rsm bottom bar rex hotel sydney early 1967 know time bottom bar would call gay bar never homosexual experience time rsm invited hotel room forced sexual relationship knew wrong felt say matter kept saying would take care aboard hmas sydney transporting 7rar vietnam sail together alcohol played big part initial involvement rsm underage time served alcohol bar uniform used drinking rsm took advantage inexperience subsequently took bout heavy drinking order cope ongoing molestation abusive relationship continued hmas sydney whenever returned australia board sydney posted master arm office opposite rsm quarter assumed used influence arrange accommodation always said looking made feel rightly wrongly whatever advantage navy service result effort behalf never felt comfortable relationship would never entered free know stand advance fearful making enemy much authority power could easily make life difficult feel anyone could turn situation question make allegation senior officer sort thing talked day know became frustrated desperate time could see way medical record show year sexual abuse started reported medical officer several occasion profuse anal wart extremely painful needed surgically removed singapore saw medical document first time sent veteran review board together paper repatriation commission making primary decision always thought suffered pile time fact prior knowledge anal wart recently discovered contracted venereal mean never explained navy service attempt made counsel make enquiry regarding condition contracted believe medical record also reflect private turmoil going time reference drinking problem agitated intoxicated saying wanted get navy evidence emotionally conflicted end could longer put shame situation 1971 went absent without leave moved new zealand start new life 1980 returned sydney new zealand time thought navy would longer pursuing could tell parent real reason leaving navy past year able discus mother last decade able open people generally otherwise enjoyed life navy well completing course moving rank enjoyed command felt could control group men would stayed made career navy relationship rsm instead needed get far away possible ended loner driving truck new zealand australia lifestyle always road formed lasting relationship acquired possession year ago approached chaplain hmas stirling counselled confided thereby starting process coming term traumatic time life applicant gave evidence chief follows e virgin joined navy f first started going bar rex hotel leave 12 month junior recruit leeuwin ventured king cross ended rex hotel bottom bar g attended bar would sometimes uniform sometimes h although age time still able purchase drink alcohol bar aware time reputation bottom bar rex hotel gay bar j first met rsm claim sexually assaulted rsm standing regimental sergeant major one afternoon whilst drink everybody general conversation k rsm would well 30 l conversation turned board ship travelling vietnam could keep touch contact may able help aspect career applicant officer non commissioned officer person authority speak sort way n quite drink rsm asked would like go room indulge bit food applicant went room rex hotel rsm billeted drink talk rsm proceeded molest cuddle feel around applicant said sort wanting know sort happening quietly explaining everything would right relax take thing easy p embarking trip vietnam applicant met rsm rex hotel said second time similar first molestation playing around feeling said probably week week half first meeting rsm q third occasion applicant met rsm couple day sydney approached either hangar flight deck invited cabin rsm asked applicant whether would like drink cabin evening r applicant gave following evidence respect happened occasion one occasion trip vietnam mr endrey could tell u happened cabin well quite drink quite drink molestation started happening playing thing hope know say eventually came penetration sorry go ahead well sort cuddling sucking yeah came penetration yes shocked even ever dreaming something like ever happening distinguished encounter sydney two previous occasion well penetration like build trust yes build trust power occasion sydney sort encounter leaving manus island yes another night actually anchored vung tau harbour sea yes sir similar sequence event applicant gave following evidence 2 incident allegedly occurred return voyage said recollection also subsequently abused rsm return voyage correct yes sir recall many occasion twice way back returned australia meet rsm subsequently sir time sir last occasion saw rsm approximately august probably august 1970 quarter master hmas kuttabul right fact see rsm returned australia correct yes sir many occasion see returning twice happened occasion light discussion drink getting last couple year probably see duchess replaced voyager escort ship hmas sydney vietnam able say approximately man senior member sorry anything happen occasion sir right mr endrey many occasion would say something happen molestation sexual abuse real abuse four time hmas sydney twice rex hotel king cross approximately half dozen time yes sir applicant never considered reporting matter superior fear exposed called homosexual fear even expelled navy something young age naïve must admit u asked describe reaction alleged abuse applicant said embarrassed way going expose tell anybody action taken going like tell parent ask anybody advice ashamed kept v asked deserted navy 1971 applicant said whilst quarter master hmas kuttabul would get phone call army officer wanting see thing meet starting really upset know 2 subject away becoming leading hand navy nearly 5 year could see becoming control men thought could handle handle phone call thought going lead embarrassment stage want anybody know past history abuse let alone mum dad took easy way left gave couple week advance getting away w asked sought pursue matter 40 year applicant gave following evidence 98 99 sharing house mate wife knew vietnam time recollect navy personnel starting receive medal support vietnam advised write ask entitled little anybody know way left navy little bit well really want letter sent probably month later received medical certificate everything done whilst navy bottom said normal discharge found know unusual knowing way received two medal thought started query thing way discharged start receive medal knew damned well got left deserted work discussed encounter abuse time person never first raise someone went saw chaplain garden island hmas sterling navy chaplain navy chaplain yes say chaplain everything written statement people see front approximately approximately 2001 chaplain give advice long talk presented name number people anzac house x applicant also gave evidence effect alleged abuse regard applicant gave following evidence year new zealand 10 year living small town joined rsl knew navy vietnam knowing left would occasionally get odd remark sailor take whatever always barrel ra ra ra used upset let get much truck driver bit loner coming back receiving medal way discharged joined rsl armidale probably 2000 2011 memory proud one knowing left navy acquired quite lot friend navy personnel army air force president air force personnel occasionally would always come rubbish navy personnel always firing line always barrel well nickname truckie copped abuse relating homosexuality board ship base whatever getting would probably extra beer normal try either forget occasionally would probably take wrong action abuse answer question put tribunal applicant gave following evidence senior member addition drinking symptom want tell regard claim post traumatic stress disorder memory never forget affect asking still ashamed day people know still really happy especially couple lady present know mean want know thing shoved addition alcohol given evidence symptom condition anything want tell u say suffering consequence well thing suffer people abusing something know nothing right affect good people talk raise issue naval personnel reacted carried navy ship army personnel talking often thought well must happened kept inside inside last year able tell mother effect physically sense yes sense well couple relationship whole life right well emotional going come physical manifestation split half mean well abused yes right understand mean first trip singapore hospital couple week getting thought pile effect anal wart huge mean know never ever told got report back canberra early 2000 started reading different thing happened navy emotionally affected affected lot especially know say lot need specific well tell mother start sister never see 10 year go explanation going tell father ex army eventually tell somebody well told chaplain well chaplain chaplain know church upbringing went see cross examination mr wallace counsel respondent applicant gave following evidence put applicant rsm return vietnam ship applicant rather stayed vietnam applicant said seen report sir know fact sexually assaulted way back vietnam put applicant rsm applicant said maybe made error judgement asked whether meant answer may another rsm ship way back sexual relationship applicant said yes sir b asked explain applicant gave evidence veteran review board identify fact rsm return voyage rsm forward voyage applicant said time thought rsm asked could make mistake applicant answered well apart forty odd year ago young naïve believe know happened c answer question put tribunal applicant stated still recollection 1 rsm involved put applicant effect sexual activity applicant rsm consensual applicant evidence regard follows suggest first occasion went rsm room rex willing go invited agreed yes yes used expression molested word fondled suggest well understood going room would prospect sexual encounter sir whatever physical contact took place rsm first occasion voluntary part correct senior member answer question voluntary mean mr wallace well advance rsm made applicant object well apart influence first occasion anal intercourse sir second occasion met rsm rex invited back room correct correct would like suggest point time doubt whatsoever mind invitation accepted rsm indicating wanted come back sex bedroom well think line age naïve thing would say indicated would able help development service well suggest quite happy go back bedroom going help second occasion already sexual experience going happen circumstance second occasion well yes sir end yes jeez young mean power thing mean overpowered yes use physical force towards get go room grab take room well happened lounge room anyway sitting drinking fondling molesting well molestation suggesting willing participant sexual contact taking place well position actually violate anything like order order room sir think forty year later really happening thinking back believe situation situation time forty year last 10 explaining parent mother actually father passed away explaining family reason disappeared 10 year come clear air close people actually happened navy father would disgusted told would know whether would disowned time scared tell anybody talking first two occasion well subsequent occasion father would use expression disown well telling mother would said would understood time back think anybody never heard much back sixty sort behaviour sort behaviour talking well happened young man sexual relationship older man never heard saying well never heard certainly second occasion heard voluntarily went back room engaged sexual activity least fondling think understand use word sucking like sense mutuality correct towards objecting much say matter influence alcohol well say using excuse relaxes component body another state suppose know express well forty year ago could hardly remember could dead right remember last week yes ship occasion say anal sex took place correct correct near manus island probably maybe night prior anchoring hour say drinking correct yes sir drinking went cabin rsm drinking cabin correct correct long recall cabin drinking sexual advance made probably couple hour two hour two hour yes understand quite well let finish quite junior naval rating time yes hmas sydney operational service able leave area stowed ship go quarter army rsm couple hour invitation without telling anyone else correct happened night job hmas sydney flight deck attendance also working hangar making sure army gear secure general maintenance duty flight deck painting chipping rust whatever night would occur well nonetheless least said leading hand petty officer going around going see rsm whoever going cabin sir one junior rating ship go get permission leave area work area habitation ship go army rsm room couple hour drinking well happened sir night allowed night would movie everything would go well went room cabin could said even made invitation say probably could sir circumstance happening accepted senior member feel open mean obviously everyone say occur real option say would love said please listen question sorry occur feel real choice matter well sir long worked flight deck hangar job changed becoming gopher master arm office adjacent cabin thought well presumably thought made change working upper deck literally gopher master arm would agree could mistaken fact forty year later agreed sexual intercourse rsm yes double negative put another way think might mistaken actually agreed rather agreed sir sex rsm think young man 16 17 may perhaps unsure sexual orientation sir would seem sex woman young woman prior meeting rsm correct correct might suggesting fact may felt feeling towards rsm wanted sex case agreed sex suggesting thought could look advance career willing participate willing participate sexual encounter reason power authority said would able assist naval well naval career changed flight deck master arm office thought well done knowing anybody could done mean e asked approach master arm hmas sydney senior non commissioned officer ship applicant working directly get involved rsm invitation applicant applicant said ashamed want anyone know happening f mr wallace put applicant substance complaint still ashamed engaged unwillingly sexual relationship another male person willingly engaged sexual relationship ashamed reason applicant said willingly engaging happened yes lived right g applicant cross examined fact late 1968 developed anal wart applicant said operation remove time thought pile know anal wart put applicant undergone operation without doctor telling operating applicant said well case never ever knew anal wart h mr wallace also extensively cross examined applicant respect applicant contends symptom ptsd respondent evidencethe evidence adduced behalf respondent wholly documentary purpose reason sufficient note included documentary evidence recording rsm applicant alleges sexually assaulted hmas sydney return voyage vietnam sydney applicant alleges last 2 assault occurred submission hearingas applicant represented hearing lay advocate tribunal provided applicant respondent opportunity provide written submission hearing identifying evidence submitted behalf applicant finding fact could made consistent applicant case written submission way prefatory remark applicant sought highlight certain general finding report review allegation sexual abuse defence facing problem past volume 1 general finding recommendation october 2011 factor included following factor defence culture process lead abusive behaviour called account culture australian defence force discouraging reporting abuse creating atmosphere group hostility towards victim report another member group chain command structure defence lead superior abusing junior impunity social environmental factor excessive consumption alcohol absence family friend often confined environment increase risk abuse certain many boy 13 16 year age subjected serious sexual physical assault adf 1950 1970 many boy endured participated inflicting abuse may suffered risk suffering mental health alcohol drug problem associated physical health problem adult older male older boy adf often power young male boy based combination physical strength rank least seniority context tradition making infliction abuse right regardless official prohibition abuse heading issue credit applicant submitted follows two instance abuse aboard hmas sydney described applicant raised concern plausibility particular whether ordinary seaman could roamed vessel entered cabin rsm without challenge applicant submits regard assigned master arm role gofer passing message others part ship concerning everyday operational matter never night duty time evening free spend wished abuse took place night applicant would missed area ship opposite master arm office isolated frequented evening applicant submits unreasonable assumed rsm position authority despite nco army navy applicant completed training junior recruit naïve inexperienced rsm officer responsible standard discipline regiment parental figure commanded respect among troop hmas sydney written reply submission respondent made following submission respect question credit 4 1 tribunal need compare history obtained dr gilbert set first report 30 august 2010 history obtained dr mander set report 24 november 2012 raise serious concern regarding applicant credibility respect issue relating claim 4 2 applicant submission dealt inconsistency applicant evidence identified tribunal tribunal granted leave applicant make written submission thing consistent applicant account sexually assaulted miscreant rsm 7 rar upon proper testing allegation becomes demonstrably clear even applicant account cannot correct 4 3 application tribunal maintains two instance abuse aboard hmas sydney way vietnam another assault return voyage see transcript page 120 applicant however gave history recorded dr gilbert four instance abuse two assault way vietnam two assault return voyage applicant submission page 1 paragraph 2 b alleges two instance occurred period applicant eligible service namely aboard hmas sydney vietnam 8 april 1967 22 april 1967 4 4 record rsm regimental history 7rar set writeway report 28 february 2012 render allegation completely implausible history obtained dr gilbert relation allegation molestation made applicant inconsistent applicant evidence vrb evidence tribunal applicant oral written submission allegation key respect also belied rsm service record written submission conveniently summarised respondent case regard follows 3 4 respondent submits tribunal could applying reasonable satisfaction test satisfied evidence two instance abuse abuse occurred alleged demonstrably clear contemporaneous service record rsm could board hmas sydney return voyage australia applicant adamant rsm sexually assaulted voyage vietnam person sexually assaulted return voyage 3 5 adequate explanation given applicant resolve significant inconsistency evidence absent adequate explanation resolving inconsistency without able identify member army contingent aboard hmas sydney voyage vietnam responsible sexual assault tribunal could satisfied applicant assaulted alleged 3 6 moreover applicant evidence vrb alleged sexually assaulted second occasion voyage vietnam applicant gave evidence vrb sexually assaulted also two occasion hmas sydney returning vietnam 3 7 applicant also gave evidence rsm returned hmas sydney april 1967 aboard hmas sydney 28 april 1967 12 may 1967 contrary rsm service record 7 rar regimental history see s59 page 361 362 writeway page 153 198 s1 page 199 209 3 8 course evidence tribunal applicant advanced explanation evidence chief significant inconsistency evidence given vrb tribunal extraordinary applicant alleges two instance sexual assault vrb maintaining oath four instance sexual assault whilst aboard hmas sydney neither significant inconsistency addressed applicant submission 3 9 event tribunal satisfied applicant sexually assaulted whilst aboard hmas sydney period 8 april 1967 22 april 1967 application must fail tribunal would satisfied applicant experienced traumatic event required diagnostic criterion respect ptsd analysisthe applicant contends suffers ptsd already stated clear medical evidence satisfy suffers ptsd must find evidence least one sexual assault applicant say occurred hmas sydney took place difficulty readily accepting proposition set paragraph 37 applicant referred written submission prefatory remark accordingly neither nature allegation fact allegation made expiration decade alleged incident said taken place fact corroborating evidence mean fatal applicant case fact applicant difficulty recalling however consider fatal applicant case evidence assaulted person 6 occasion twice rex hotel sydney twice board hmas sydney route vietnam twice hmas sydney return voyage sydney evidence establishes find fact officer applicant claim sexually assaulted hmas sydney return voyage vietnam sydney indeed quite properly applicant seriously challenge fact hearing adequate explanation proffered applicant explain fact mean either applicant made mistake last 2 incident occurred applicant made mistake perpetrator 2 assault return voyage vietnam sydney incident never happened case someone getting date wrong expiration many year case someone giving evidence something happening circumstance evidence establishes beyond doubt happen regrettably written submission behalf applicant address issue reason submission applicant chosen limit stressor event 2 alleged incident board hmas sydney en route sydney vietnam party cannot overcome obvious central weakness case jettisoning allegation wholly inconsistent evidence proceeding balance case allegation never made put simply fact respondent able demonstrate objective evidence fact 2 alleged incident could simply happened strike heart reliability applicant evidence generally specifically respect alleged incident unaided expert evidence find inconceivable person alleges sexually assaulted including penetration 6 occasion could make error respect either 2 incident occurred b perpetrator 2 assault circumstance would accept reliable balance applicant evidence occurred without corroboration evidence although expert evidence effect tribunal understands one cause anal wart anal intercourse putting highest fact capable corroborating evidence applicant around time engaged anal intercourse however assist corroborating circumstance surrounding event party fact applicant absented duty without leave provide sufficient corroboration fact equivocal whilst capable consistent applicant contention sexually assaulted conduct consistent applicant contention rather could result myriad reason unhappiness part applicant within armed service therefore reject applicant evidence submission find assault took place accept submission respondent set paragraph 39 whilst sufficient decide matter also deal applicant contention purpose ofstatement principle 6 2008 post traumatic stress disorder applicant experienced category 1a stressor namely subject serious physical attack assault including rape sexual molestation applicant contention hypothesis reasonable one view based evidence reason given respect question whether applicant suffers ptsd conclusionfor reason set find applicant suffer ptsd given find fact matter stated applicant dr gilbert upon dr gilbert formed opinion applicant suffers ptsd b applicant hypothesis reasonable one reviewable decision must thus affirmed certify preceding fifty seven 57 paragraph true copy reason decision herein mr penglis senior member sgd freeman administrative assistantdated 16 january 2014dates hearing 21 22 august 2013written submission hearingapplicant 4 september 2013respondent 23 september 2013advocate applicant mr endreycounsel respondent mr j wallacesolicitors respondent australian government solicitor

Dang, Thi Kim [2000] MRTA 830 (10 April 2000).txt

dang thi kim 2000 mrta 830 10 april 2000 last updated 22 may 2000 2000 mrta 830catchwords genuine visit likelihood overstayingreview applicant thi kim thoadangvisaapplicant thi tuyet suongdangtribunal migration review tribunalpresidingmember ricky johnstonfile number a99 07493dima file number 588 hc99date decision 10 april 2000at perthdecision tribunal remit application direction visa applicant satisfies criterion short stay visitor class tr subclass 676 tourist short stay visa enable stay period exceeding three month subject mandatory condition consideration public interest criterion considered tribunal tribunal recommends visa granted subject condition 8101 8501 8503 migration regulation statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate m thi tuyet suong dang visa applicant vietnamese national born 21 march 1968 lodged application short stay visitor class tr subclass 676 tourist short stay 14 september 1999 delegate decision refuse visa made 22 september 1999 jurisdiction standing2 m thi kim thoa dang review applicant validly made application review migration review tribunal tribunal 13 december 1999 section 338 act go decision reviewable tribunal application complies section 347 act go standing review applicant legislation visa criterion policy3 themigration act 1958 act themigration regulation 1994 regulation provide different class visa government policy guideline aid interpretation application prescribed criterion visa policy guideline set procedure advice manual pam 3 issued department 4 reaching decision tribunal bound act regulation applies relevant government policy lawful tribunal applies general policy guideline unless cogent reason contrary general policy direction issued minister pursuant section 499 act applied wherever relevant see generallyre drake minister immigration ethnic affair 2 1979 1979 aata 179 2 ald 634andali v minister immigration local government ethnic affair 1992 fca 453 1992 38 fcr 144 5 relevant legislation policy force time visa applicant applied visa set relevant legislation section 31 actsubclass 676 schedule 2 regulationsclause 676 211 676 221 schedule 2 regulation clause 4011 schedule 4 regulationsrelevant policy pam 3 generic guideline h minister general policy direction 1 september 1996pam 3 schedule 4 public interest criterion 4011evidence6 determining decision tribunal consider hearing necessary able find favour visa applicant paper tribunal regard document contained file department immigration multicultural affair dima tribunal findings7 tribunal took account material file file department order succeed application visa regulation necessary visa applicant satisfy criterion granting visa 8 relevant criterion must met include provided subclauses 676 221 2 c 676 221 e 676 211 b 676 221 regulation question whether tribunal satisfied expressed intention visa applicant visit australia genuine clause 676 221 2 c tribunal refers minister general policy direction 1 september 1996 tribunal note onus applicant demonstrate intention make genuine visit assertion assurance declaration third party sufficient establish evidence genuine visit 9 evidence provided tribunal visa applicant 31 year old female married two child aged 11 6 year respectively visa applicant indicated application wish visit frail mother family member australia application refused 22 september 1999 decision maker satisfied expressed intention visa applicant visit australia genuine 10 tribunal find clause 676 221 2 676 211 b satisfied time application visa applicant sought visit australia visitor purpose visiting australian citizen namely sister family member written submission attached review application review applicant state happy put kind bond assure department immigration return visa expires believe incentive remain australia fact leaving two child behind 11 file indicate visa applicant married resides spouse two young child house vietnam visa applicant visit australia husband family care child asset vietnam employed termed regular job sell good local market review applicant submitted family member responsible visa applicant financial aspect australia 12 question whether tribunal satisfied expressed intention visa applicant visit australia genuine clause 676 221 c tribunal required consider public interest criterion particular tribunal must consider schedule 4 clause 4011 little likelihood applicant overstay visa visa applicant fall within gazetted risk factor criterion tribunal view always possibility australia visa applicant may want overstay however evidence tribunal satisfied little evidence support supposition 13 tribunal regard visa applicant personal financial employment commitment may induce visa applicant return israel visa applicant spouse child reside vietnam accompany proposed visit want visit family member including mother australia review applicant provided document show family support visa applicant financially whilst australia since lodging application review tribunal received evidence visa applicant mother died 4 april 2000 denied opportunity visit australia mother alive visa applicant wish able attend funeral proposed held approximately two week time tribunal find visa applicant sufficient personal commitment incentive satisfy tribunal return vietnam end visit australia conclusion14 reason tribunal satisfied written evidence available visa applicant demonstrated intention make genuine visit australia tribunal satisfied little likelihood remain australia expiry visa granted therefore satisfies clause 676 221 2 c e respect clause 4011 tribunal find visa applicant satisfies visa applied visa applicant permitted stay period exceeding three month specified visa application tribunal recommends condition 8101 8501 8503 set schedule 8 themigration regulationsare imposed grant visa decisionthe tribunal remit application direction visa applicant satisfies criterion short stay visitor class tr subclass 676 tourist short stay visa enable stay period exceeding three month subject mandatory condition consideration public interest criterion considered tribunal tribunal recommends visa granted subject condition 8101 8501 8503 themigration regulation

Elgas Limited re Elgas Limited Plant Operators Dandenong Bulk Terminal - TWU Agreement 2011 [2012] FWAA 794 (25 January 2012).txt

elgas limited elgas limited plant operator dandenong bulk terminal twu agreement 2011 2012 fwaa 794 25 january 2012 fair work australiadecisionfair work act 2009s 185 application approval single enterprise agreementelgas limited ag2012 2915 elgas limited plant operator dandenong bulk terminal twu agreement 2011oil gas industrycommissioner cambridgesydney 25 january 2012application approval elgas limited plant operator dandenong bulk terminal twu agreement 2011 1 application made approval enterprise agreement known theelgas limited plant operator dandenong bulk terminal twu agreement 2011 agreement application made pursuant tos 185of thefair work act 2009 act made elgas limited employer agreement single enterprise agreement 2 application lodged melbourne 12 january 2012 application included statutory declaration ofgraeme bartramdated 6 december 2011 made behalf employer declaration declaration stated agreement made 5 december 2011 therefore application lodged within 14 day time limit established bysubsection 185 3 act however circumstance acceptable explanation late lodgement provided decided exercise discretion provided bysubsection 185 3 b act extend time accordingly 3 part 2 4of act includes various procedural requirement must satisfied fair work australia fwa approve enterprise agreement reviewed content declaration satisfied procedural requirement ofpart 2 4of act met 4 application approval listed e hearing fwa 25 january 2012 note file included statutory declaration ofsofia manosmade behalf transport worker union australia twu employee organisation support application 5 note agreement contains flexibility term clause 37 consultation term clause 38 6 twu bargaining representative agreement given notice unders 183of act want agreement cover required bysubsection 201 2 act note agreement cover twu 7 agreement approved accordance withsubsection 54 1 act operate 1 february 2012 nominal expiry date agreement specified clause 6 agreement 31 december 2013 commissionerprinted authority commonwealth government printer price code g ae891278 pr519566

Bjorland, Re [2005] QMHC 26 (5 May 2005).txt

bjorland 2005 qmhc 26 5 may 2005 mental health courtcitation bjorland 2005 qmhc 026parties reference defendant legal representative respect lee bjorlandproceeding 0052 2004delivered 5 may 2005delivered brisbanehearing date 5 may 2005judge assisting psychiatrist holmes jdr j f wooddr grantfindings order 1 time offence committed defendant suffering unsoundness mind defined schedule 2 themental health act 2000 qld 2 defendant detained forensic patient gold coast district area network authorised mental health service 3 limited community treatment nature overnight limited community treatment commence immediately following condition patient reside stated address place approved advance writing authorised psychiatrist b patient attend follow appointment patient care required authorised psychiatrist c patient comply requirement authorised psychiatrist relation taking prescribed medication treatment patient refrain using alcohol illicit drug co operate fully random medical test detection substance required authorised psychiatrist e patient drive motor vehicle unless permitted authorised psychiatrist

R v Baartman [2000] NSWCCA 298 (13 September 2000).txt

r v baartman 2000 nswcca 298 13 september 2000 last updated 27 october 2000new south wale criminal court appealcitation regina v j l baartman 2000 nswcca 298revised 5 10 2000file number 60664 98hearing date 08 08 00judgment date 13 09 2000parties reginajon leslie baartmanjudgment spigelman cj kirby j smart ajlower court jurisdiction supreme courtlower court file number 70368 93lower court judicial officer dunford jcounsel l buddin sc crown p cook app solicitor e connor crown sydney regional aboriginal corp legal service app catchword criminal practice procedureappeal convictioncircumstantial evidence direction whether warning required evidence outside category s165 1 g legislation cited evidence act 1995 s165 1 s165 6 decision ref para 76judgment court ofcriminal appeal60664 98spigelman cjkirby jsmart ajwednesday 13 september 2000regina v jon leslie baartmanjudgment1spigelman cj agree kirby j 2kirby j jon leslie baartman appellant charged murder leszic henryck betcher lugarno 23 february 1993 others charged murder order made separate trial trial mr baartman took place dunford j jury retrial appellant convicted 2 november 1998 appeal conviction background3 23 february 1993 mr betcher home lugarno husband deceased heard footstep driveway husband went door open wire screen door locked mr betcher heard male voice say loudly want speak tony deceased responded saying one name lived address mr betcher heard gunshot went aid husband collapsed died shortly 4 neighbour mr mr betcher heard shot witnessed vehicle leaving suburban street high speed observed vehicle parked street beforehand account given witness varied number occupant none could provide general description feature clothing 5 however vehicle described white perhaps ten year old japanese make registration number prefix kpt also roof rack murder weapon6 approximately one month event 24 march 1993 mr baartman went flat king cross flat occupied woman given name miss brown miss brown young child mr baartman showed miss brown hand gun soon arrival screamed told place gun linen cupboard soon thereafter mr baartman stumbled collapsed lost consciousness began turn blue miss brown attempted revive unable therefore called ambulance 7 several ambulance officer answered call mr baartman lying floor child cot moved gain access moving cot black pistol uncovered near mr baartman 8 pistol given another ambulance officer secured ambulance police called mr baartman gradually regained consciousness seen pick black calculator throw went jacket also picked action described ambulance officer word feeling pocket searching feeling jacket put 9 ambulance officer left room miss brown said conversation mr baartman sitting leaning wall said 144 hard get much sense tried tell police coming found gun supposedly left linen cupboard police coming said murder weapon 10 police arrived took possession pistol later examined ballistics expert imprint made pistol matched bullet recovered body deceased ballistics evidence given challenged pistol murder weapon 11 miss brown interviewed immediately discovery pistol said seen however month later changed account recounted conversation mr baartman set interviewed police connection another matter described rip involving 6 000 miss brown acknowledged told police number lie connection rip matter said would anything protect child lose custody child 12 pistol identified murder weapon mr baartman arrested charged concealed serious offence publicity apparently given arrest evidence mr bicanic13 context mr bicanic came forward seen publicity acknowledged fear may also charged concealed serious offence first attempted furnish police information anonymously solicitor wrote letter behalf later agreed provide police statement indeed agreed allow police enter flat living install listening device 14 mr bicanic said 19 20 february 1993 day murder moved flat waterloo flat occupied number men one paul croft another mr baartman appellant met mr baartman 15 1 00 person chris sharpe came door went paul croft bedroom spoke ten minute mr sharpe left 16 mr paul croft spoke mr baartman presence mr bicanic conversation term 35 paul croft saying chris sharpe going get another gun fix gun work jon baartman sort boasting sort way saying glad tried gun tested found work 17 gun described barretta little black gun 18 following evening mr bicanic saw mr baartman tuesday 23 february 1993 day murder said mr baartman came unit 7 30 p witnessed conversation follows 76 paul croft said going try tonight tuesday gun work time saying wayne croft paul croft brother yes brother going drive jon baartman going keep cocky keep look 19 paul croft going fire bullet barretta black gun mr baartman according mr bicanic another gun described silvery metal colour 20 paul croft outlined plan chris sharpe known big boy wanted man tony shot tony lived lugarno mr bicanic said 77 paul croft said paid 1 000 job shoot man leg going split wayne croft driver jon baartman look 21 tony playing wife friend chris sharpe 22 mr bicanic said saw paul croft return unit 11 30 pm mr baartman came flat next week heard paul croft say ever caught barretta tell police got someone king cross 23 mr bicanic described wayne croft vehicle white station wagon older model roof rack police located vehicle registration plate kpt 549 white 1979 corolla station wagon roof rack since sold auto wrecker case appellant24 appellant made unsworn statement denied wrongdoing denied knowing mr bicanic never went unit waterloo know paul croft brother wayne croft others said involved shooting 25 mr baartman sought answer evidence called crown designed prove association paul croft hotel manager called crown remembered mr baartman drinking almost every day person photograph identified paul croft mr baartman said drink hotel person knew kel since learned person paul croft association kel outside hotel 26 mr baartman statement dealt briefly evidence miss brown miss brown told gun murder weapon way around knew nothing gun felt jacket looking cigarette notice appeal27 notice appeal raised four issue namely honour erred directing jury circumstantial evidence ii honour direction second element murder accused must intent cause grievous bodily harm deceased flawed iii honour failed warn jury bicanic evidence may unreliable need caution determining whether accept evidence weight given evidence iv honour failed remind jury warning earlier given summing p9 dealing evidence miss brown pp52 56 28 deal ground turn circumstantial evidence direction29 honour began direction concerning circumstantial evidence standard direction based uponpeacock v king 1911 hca 66 1911 13 clr 619 said convict circumstantial evidence however must satisfied beyond reasonable doubt fact found consistent rational conclusion accused guilty 30 honour reminded jury cumulative weight circumstance quality proof circumstance must guide said mean consider circumstance consider whether circumstance consistent innocence move next circumstance 31 followed honour direction passage complaint made honour said combination totality circumstance find proved must look must consider whether combination totality circumstance consistent innocence duty acquit 32 direction aspect concluded restatement thepeacockdirection term regard nature totality combination circumstance satisfied beyond reasonable doubt circumstance consistent guilt duty convict 33 number complaint made appellant concerning direction first said direction reversed onus proof suggested inappropriately applicant burden establishing innocence secondly direction made contrast innocence guilt true contrast guilt proved beyond reasonable doubt failure prove guilt standard thirdly jury mind misleadingly directed totality proven fact test however require proven fact simply required hypothesis consistent innocence inconsistent guilt test therefore much le demanding 34 complaint along similar line made summing judge dunford j inr v velevski 1999 nswcca 96 summing circumstantial evidence term see para 13 grove j james kirby jj agreed said para 14 argued expression consistent innocence appearing twice passage first appearance suggestive second appearance effective reversing onus proof unpersuaded conclusion fairly open context honour elaborating meaning application instruction concerning appellant entitlement acquitted unless jury satisfied beyond reasonable doubt fact inconsistent rational conclusion accused guilty 35 honour made clear jury mr baartman required establish innocence direction onus included following accused prove innocence presumed innocent unless crown proved guilty responsibility onus called proving case crown remains crown beginning end trial 36 shortly direction complaint made honour said one matter relevant question inference already heard said accused obliged prove innocence obliged say anything 37 moving second complaint uncommon context circumstantial evidence direction given either term eliminating hypothesis consistent innocence evidence consistent guilt inpeacock v king supra griffith cj said 634 rule sometimes stated circumstance must inconsistent reasonable hypothesis guilt accused 38 inshepherd v queen 1990 hca 56 1990 170 clr 573 mchugh j expressed rule term 592 3 ordinarily circumstantial evidence case guilt inferred number circumstance often numerous taken whole eliminate hypothesis innocence cogency inference guilt derived cumulative weight circumstance quality proof circumstance 39 whilst believe preferable formulate direction reference guilt rather innocence error established 40 turning third complaint jury asked look totality circumstance find proved enquire whether consistent innocence appellant argument demanding test appropriate appropriate test required simply hypothesis consistent innocence formulating hypothesis proven fact required possible fact enough appellant drew attention tor v mcintyre 2000 nswcca 6 hulme j sully hidden jj agreed said para 30 31 30 course proper common judge course summing tell jury must speculate guess operation mind quite different drawing inference however honour pointed jury circumstantial evidence case appellant entitled acquitted crown could exclude reasonable hypothesis consistent innocence 31 hypothesis must said reasonable jury able infer event subject hypothesis fact occurred relying making allowance possibility event 41 honour concerned appropriately ensure jury consider circumstance isolation use honour word consistent innocence reference proven fact possibility innocence hypothesis consistent innocence substance therefore complaint made appellant 42 aspect first ground appeal given direction set honour identified essential circumstance shepherd v queen supra said regard crown case way trial conducted one matter circumstance would satisfied case accused near scene shooting evidence 23 february 1993 necessarily front door front gate footpath outside premise either nearby keeping lookout waiting getaway car otherwise area common intention support assist person shooting 43 appellant complains presence scene crucial intermediate fact honour therefore obliged instruct jury needed satisfied fact beyond reasonable doubt 44 however instruction given indeed given immediately passage set honour gave jury following direction explain detail come deal common purpose could satisfied involved shooting one circumstance would satisfied would lugarno evening circumstance although may proved combination totality circumstance would satisfied beyond reasonable doubt could satisfied accordance principle given circumstantial evidence accused involved shooting 45 would reject therefore first ground appeal ground 2 direction intent46 second ground appeal term ii honour direction second element murder accused must intent cause grievous bodily harm deceased flawed 47 crown case one common purpose plan shoot tony leg tony lived particular address lugarno plan however went badly wrong paul croft went wrong address shot wrong man shot abdomen leg appellant said look group 48 context appellant made number complaint respect honour direction intent first failed put clearly whether intentionally firing bullet victim leg amounted intentionally inflicting grievous bodily harm secondly honour irrelevantly misleadingly made reference intention kill never crown case crown case common purpose shoot victim leg thirdly honour said jury specific result obvious inevitable consequence act may readily infer person intended result direction circumstance victim died unfortunate diverted juror real issue whether mr baartman part common purpose shoot victim leg whether amounted intent cause grievous bodily harm whether common purpose embraced possibility grievous bodily harm incompetence misadventure fourthly honour vital point direction misstated meaning grievous bodily harm referred intention cause serious injury rather intention cause really serious injury r v gary perk 1986 20 crim r 201at 210 suggested important error common purpose alleged crown shooting leg victim may well recover 49 support submission appellant pointed particular direction given honour important however examine whole honour said aspect said secondly act must done intention kill inflict grievous bodily harm grievous bodily harm mean really serious bodily injury act shooting done intention carry inflict grievous bodily harm really serious bodily injury upon person question doubt injury fact inflicted case issue whether fact injury inflicted whether injury intended crown press done intention kill necessary crown prove sufficient crown prof shooting done intention cause really serious physical injury specific result person fired gun sought achieved sic act fact caused death crown say specific act firing gun evidence intention shoot someone leg crown say one would done another person without intending last cause really serious bodily injury person accept crown case evidence intention shoot someone leg abdomen question fact may well consider shoot someone leg close range 32 calibre pistol would cause really serious physical injury person would shoot another person leg circumstance intended cause person really serious physical injury leg intention sufficient satisfy element murder intention cause grievous bodily harm direct matter law matter wrong person shot intention cause serious physical injury one person another person get killed sufficient intent constitute murder u 18 19 50 dealing appellant argument one one first believe direction clear jury provided definition grievous bodily harm told question fact matter honour made comment however entitled 51 moving second complaint cannot accept reference intention kill misleading jury reminded way crown put case told include intention kill 52 thirdly honour gave conventional direction intention entirely appropriate jury would doubt required determine whether shooting someone leg could characterised intention inflict grievous bodily harm honour later dealt issue arise suggested common purpose provided appropriate guidance whether consequence outside defined purpose contemplated possible consequence carrying common intention u 20 24 53 fourthly whilst honour occasionally used word serious bodily injury referring grievous bodily harm omitting word really jury cannot doubt honour defined term grievous bodily harm repeatedly used phrase really serious bodily injury counsel appeared trial made objection honour direction 54 would reject second ground appeal ground 3 failure give warning 55 ground three term iii honour failed warn jury bicanic evidence may unreliable need caution determining whether accept evidence weight given evidence 56 mr bicanic evidence fundamental crown case witness gave evidence common purpose mr baartman participation purpose indeed honour told jury u p47 accept substance mr bicanic evidence truthful would little evidence accused except finding murder weapon month later allegedly presence 57 number issue first request warning respect evidence mr bicanic cfs165 2 secondly need give warning thirdly error regard direction given concerning mr bicanic 58 counsel appellant addressed jury assumption honour would provide warning mr bicanic evidence may unreliable counsel concluded address absence jury need warning debated full transcript debate taken crown contended request made warning unders165 1 theevidence act 1995 section term s165 1 section applies evidence kind may unreliable including following kind evidence evidence given criminal proceeding witness witness might reasonably supposed criminally concerned event giving rise proceeding 59 honour determined mr bicanic person determination plainly right mr bicanic bystander overheard conversation evidence shared common purpose 60 appellant contended however request warning general confined tos165 1 since transcript argument incomplete prepared assume general request made 61section 165 1 exclusive code beazley ja wood cj cl sperling j agreed inr v lewis cca unreported 8 september 1998 p17 opening word ofs165 1 make clear circumstance evidence may unreliable extend beyond class evidence identified subsection g term honour judgement make plain recognised nonetheless declined give warning error 62 nature thing evidence given witness may unreliable evidence necessarily dependent upon observation recollection fallible however s165is dealing unreliability sense rather need warning typically arises either jury need acquainted accumulated experience court dealing certain type evidence danger jury may estimate probative value certain evidence see alrc 26 vol 1 para 1017 inbromley v queen 1986 hca 49 1986 161 clr 315 brennan j said following 325 danger acting upon evidence real substantial conduct trial evidence jury may fully perceived jury attention may diverted danger warning given 63 brennan j added 323 danger equally obvious lay mind failure warn existence much le likely result miscarriage justice thus much le likely provide ground quashing conviction court special knowledge danger danger obvious jury fully alive without warning warning need given 64 inlongman v queen 1989 hca 60 1989 168 clr 79 deane j made similar observation 95 96 responsibility trial judge includes giving appropriate caution warning circumstance potential danger acting upon particular evidence may without caution warning appreciated jury 65 see alsofarrell v queen 1998 194 clr 286 66 two matter said made mr bicanic evidence unreliable need specific warning unders165 first mr bicanic acknowledged fear may charged concealed serious offence provided information context fear secondly delay mr bicanic coming forward conversation recounted took place 23 february 1993 came forward june 1993 67 however believe matter would obvious jury honour would expect provided general guidance jury way ass evidence given witness direction included following another matter may consider whether particular interest purpose witness served promoted giving particular evidence saying particular thing whether witness relation friend associate person whose particular interest purpose served promoted particular evidence 68 honour dealt evidence mr bicanic length u p34 47 analysis included point made cross examination dealt mr bicanic fear prosecution attempt provide information anonymously circumstance implicated mr baartman honour returned issue summarising submission appellant counsel said therefore protect charged concealing serious offence put defendant together paul croft story fit finding gun king cross otherwise finding gun king cross come back way 69 circumstance evidence fall withins165 1 g fall within common law requirement warning cfs165 6 trial judge may called upon determine whether particular case warning required question judgement arise question reasonable mind may differ appellate court intervene warning plainly necessary necessary danger acting upon evidence real substantial unlikely fully perceived jury absence warning 70 circumstance respect mr bicanic quite different respect miss brown honour gave warning respect miss brown miss brown arrested connection rip sought obtained advantage provision information evidence could characterised coming within one subparagraphs ofs 165 yet position analogous prison informer traded information advantage honour determined circumstance warning appropriate 71 however mr bicanic came forward time nothing implicate murder publicity surrounding discovery gun suggest connection occupant unit mr bicanic resided position way analogous miss brown 72 could said circumstance warning respect mr bicanic plainly necessary issue believe exposed address counsel term summing view error would reject third ground appeal ground 4 failure refer warning73 ground four term iv honour failed remind jury warning earlier given summing p9 dealing evidence miss brown pp52 56 74 honour began summing providing direction law pp 1 24 identified number issue evidence relevant issue one issue circumstance gun found miss brown flat p 52 ff complaint made appellant concerning warning administered connection miss brown evidence complaint concerning outline provided honour respect evidence miss brown others relating finding gun complaint honour failed relate one remind jury earlier warning 75 view substance complaint relatively short summing counsel appellant ask jury reminded earlier warning although would appropriate helpful reminded jury earlier warning error failed done would therefore reject ground order76 order would therefore propose appeal dismissed 77smart aj agree kirby j last updated 05 10 2000

Chelmaness Pty Ltd v Shire of Broadford (P88_362 and L88_363) [1988] VICCAT 23 (9 June 1988).txt

administrative appeal tribunal victoria planning division appeal no p88 362 l88 363application 1493 heard melbourne 9 june 1988 appe1lant applicant chelmaness pty ltd responsible authority shire broadford nature appeal p88 362 appeal condition permit l88 363 appeal council failure seal plan subdivision use development thing permit sought 24 lot subdivision appeal site address broadford wallan road broadford b title description crown allotment 107a 108a parish broadford land described certificate title volume 1415 folio 828 volume 633 folio 439 2 c area dimension land frontage approximately 1 5 km eastern side broadford wallan road south township broadford situated road sunday creek irregular shape area 24 69 ha planning control zoning time determination responsible authority rural residential zone shire broadford interim development order 1979 time appeal hearing rural residential zone broadford planning scheme condition appealed condition 8 permit 1493 issued responsible authority upon determination 22 january 1987 read 8 permit force effect unless formal plan generally accordance endorsed tentative plan submitted together notice request form thirtieth schedule within twelve month date hereof appearance mr b rodda town planner shire broadford appeared responsible authority mr r viney town planner appeared appel lant applicant mr viney produced one mr rodda produced two written submission document annexures thereto referred course hearing submission read full reason determination appeal p88 362 tribunal power duty consider decide whether jurisdiction hear matter brought notwithstanding fact decision point conclusive may reviewed supreme court r v blakeley or 1950 82 clr 54 90 3 peko oil limited others v minister planning environment others 4 pabr 318 dunkley v shire charlton another unreported phillips j 30 3 88 mind beginning hearing tribunal asked mr viney indicate nature appeal brought appeal p88 362 said appeal condition 8 permit 1493 put appeal time required lodged within two month determination responsible authority appeal commenced document dated 23 february 1988 received administrative appeal tribunal 25 february 1988 relates determination made 22 january 1987 discussion agreed appeal indeed lodged time also agreed point considering whether failure appeal within time could overcome way hearing problem considered became clear even point appeal time overcome would problem way appel lant applicant could overcome event application made extension time appeal tribunal consider whether section 209 planning environment act 1987 amended planning environment amendment act 1988 5 1988 assistance found avail section 209 6 b operate time lodging appeal must expire 16 february 1988 already noted time appeal case expired end march 1987 tribunal informed application planning permit 1848 lodged responsible authority 10 february 1988 22 lot subdivision 18 february 1988 responsible authority refused application ground number lot proposed within crown allotment 107a excessive regard proportion site flood prone appeal lodged determination discussion pointed clause 12 4 1 broadford planning scheme specifies number residential allotment created subdivision rural residential zoned land must greater one every 1 0 ha area parcel proviso provision specifies land parcel subject inundation land included purpose calculation lot density clause 12 4 1 similar provision existed shire broadford interim development order 1979 applied land prior 12 february 1988 plan submitted applicant show three area appeal site subject inundation agreed mr rodda mr viney area totalled 4f approximately 6 7 ha area subtracted total site area 24 67 ha remains area 18 ha mean total number residential allotment obtained appeal site 18 perhaps 17 19 exact area subject flooding calculated clause 12 4 1 mandatory provision discretion given responsible authority vary valid permit granted 24 lot subdivision 22 lot subdivision appeal site purported permit granted contrary clause 12 4 1 would invalid appellant applicant wish subdivide appeal site appears make new application complies clause 12 4 1 planning scheme appeal l88 363 appeal failure council shire broadford seal plan subdivision lodged section 569 local government act presumably one version thereof subsequently lodged council plan tribunal file lodged tribunal behalf appellant applicant basis appeal dated 3 february 1988 22 lot subdivision section 569 7 e provides council shall refuse seal subdivison planning permit necessary planning scheme permit obtained permit required broadford planning schme absence valid permit council right seal plan subdivision prior 16 february 1988 section 569 7 b local government act similarly provided council must seal plan subdivision permit required interim development order permit obtained permit required shire broadford interim development order 1979 tribunal view 16 february 1988 council right seal plan follows appeal council failure seal plan subdivision must dismissed determination formal determination relation appeal p88 362 dismissed lodged time appeal l88 363 dismissed 2 5 appeal no p88 362 l88 363 russell byard presiding senior member alan kinder member appearance mr b rodda town planner represented shire broadford mr r viney town planner tomkinson associate represented chelamness pty ltd rb al 10 6

Industrial Relations Commission Decision 1218_1990 [1990] AIRC 1171; (19 October 1990).txt

industrial relation commission decision 1218 1990 1990 airc 1171 19 october 1990 industrial relation commission decision 1218 1990 a258 dec 1218 90 print j5072 australian industrial relation commissionindustrial relation act 1988s 113application variation national union storeworkers packer rubber allied worker c 30800 1990 allders international pty limited duty free retail agreement 1985 1 odn c 01167 1982 various employee airport operation deputy president hancock adelaide 19 october 1990 wage rate national wage august 1989 structural efficiency principle second stage shift work arrangement covering work span hour new wage structure implemented party agreed provision fixed term employment payment wage span hour principle satisfied increase awarded decision national union storeworkers packer rubber allied worker nuw applied variation allders international pty limited duty free retail agreement 1985 variation granted give effect latter two structural efficiency wage increase allowed national wage case decision august 1989 2 former adjustment effective 18 january 1990 granted commissioner johnson matter relates employer operation new south wale measure structural efficiency adopted time earlier adjustment included shift work arrangement covering work span ordinary hour new wage structure various subject identified discussion party agreed provision fixed term employment arrangement payment wage cash addition one hour span normal hour new span 6 00 7 00 p mr w morris nuw expressed union willingness continue discussion reform sought employer mr g henderson employer said negotiation nuw productive achieved outcome provided company net cost reduction said relation custom practice complete review procedure relation starting time finishing time meal break rest period assure commission area cost productive company _ _ 1 print f9868 a258 2 print h9100 satisfied context employer operation requirement structural efficiency principle met grant application regard tos 146 2 theindustrial relation act1988 consider operative date date order signed today appearance w morris r mcconville mansour national union storeworkers packer rubber allied worker g henderson agent c stevenson allders international pty limited date place hearing 1990 sydney october 3 end text end text

CB [2021] WASAT 67 (12 May 2021).txt

cb 2021 wasat 67 12 may 2021 last updated 12 may 2021jurisdiction state administrative tribunalact guardianship administration act 1990 wa citation cb 2021 wasat 67member mr j mansveld senior memberheard 9 february 2021delivered 9 february 2021published 12 may 2021file gaa 4076 2020cbrepresented personguardianship administration guardianship treatment decision ability make reasonable judgment informed consent presumption capacity common law position informed consentlegislation guardianship administration act 1990 wa 3 4 3 b 43 43 1 b 51 64 84 pt 9c pt 9dresult guardianship order madecategory brepresentation counsel represented person n asolicitors represented person n acase referred decision brightwater care group inc v rossiter 2009 wasc 229reasons decision tribunal introductioncb 38 year age diagnosed non cancerous brain tumour early 2010 neurosurgery address brain tumour required number occasion since original diagnosis led cognitive weakening manifesting mainly significant memory impairment cb residing community rehabilitation facility rehabilitation facility receiving specialist rehabilitation support rehabilitation team 2019 rehabilitation team filed application appointment guardian appointment administrator cb estate application made theguardianship administration act 1990 wa ga act 11 november 2019 tribunal made guardianship administration order following finding made cb found unable reason mental disability make reasonable judgment respect matter relating estate need administrator estate 64 ga act tribunal also found cb unable make reasonable judgment respect matter relating person need guardian 43 ga act tribunal appointed public trustee plenary administrator cb estate public advocate limited guardian decide live whether permanently temporarily determine service cb access act next friend commence conduct settle legal proceeding cb behalf except proceeding relating estate guardianship administration order set review five year 84 ga act current applicationin 2020 public advocate sought review guardianship order review application cb reportedly consented neurosurgery take place november 2020 november surgery expressed concern guardian post operative treatment decision could give consent made ex spouse person responsible pt 9c ga act public advocate proposing authority make cb treatment decision added existing guardianship order tribunal called direction hearing 27 october 2020 direction hearing noted surgical team accepted cb consent november surgery although lo occupational therapist assisting cb disputed fact given consent medical opinion tribunal cb unable give consent explained party authority make cb treatment decision added guardianship order authority cb loss authority would commence making order could potentially implication consent cb already given november surgery decided adjourn hearing review application enable november surgery occur final hearing review application heard 9 february 2021 attendance cb eb cb ex spouse lo representative rehabilitation team delegated guardian public advocate guardian t cb friend decided add authority making cb treatment decision existing guardianship order amending order made november 2019 said would give reason later time reason report tribunalthe following report various professional filed tribunal respect review application dr lm general practitioner cb since november 2020 dr ab neurosurgeon occupational therapy assessment undertaken 20 january 2021 cb hospital hospital assessment lo specialist support coordinator cb support plan national disability insurance scheme ndis andthe rehabilitation team evidence submissionsdr lmin report dr lm state cb significant memory impairment cannot retain information cb strong verbal skill said mask lack understanding dr lm view cb capable making treatment decision dr abin report dr ab confirms presence short term memory loss cb consequence multiple surgical intervention however considers capable making treatment decision hospital assessmentthe hospital occupational therapist note score 27 30 cb secured cognitive screening test undertaken hospital interpreted caution result reflect impact cb cognitive deficit community setting noted cb insight memory deficit reported us compensatory strategy lolo filed written report gave oral evidence state role support cb transition rehabilitation facility suitable long term accommodation commenced working cb september 2020 seen twenty five time mainly hospital environment lo state cb recovery november surgery complex required several additional surgical procedure lo contends cb ongoing risk allowed continue make treatment decision refers significant memory impairment found place cb considerable stress anxiety dealing complex treatment matter often defer eb advice uncommonly contacting middle night early morning lo say cause level tension given separated lo state cb retained high level verbal skill ability pick cue others appears recollect understand lo say cb young man want involved decision making often convince others far greater understanding circumstance actually lo provided example surgical procedure cb underwent 16 january 2021 visited hospital next day however cb unable provide information whether surgery actually occurred whether physical evidence surgery prompted shown physical feature surgery cb recalled surgery however could give account nature surgery another recent example occurred cb went pharmacy pick prescribed injection transpired medication already administered recall lo also cautioned use result cognitive screening test mentioned hospital assessment stating particular screening test generally used dementia older person lo support assessment made dr lm say plan neuropsychological assessment take place however concerned time may take lo state intent cb eventually discharged rehabilitation facility live independently private rental multidisciplinary team funded ndis lo say different model intensive support currently given cb rehabilitation team rehabilitation teamthe rehabilitation team filed written report gave oral evidence rehabilitation team state cb brain injury led significant cognitive impairment anticipated long term nature cb said able hold simple conversation demonstrating wide vocabulary mask cognitive difficulty cb oriented person time place need compensatory strategy prompt alarm assist cb present profound difficulty initiation impacting directly ability complete necessary task cb display impaired memory particularly recalling newly presented information difficulty remembering perform planned action recalling intention underlying planned action cb also experienced mental health issue currently receiving treatment depression according rehabilitation team combined impairment deficit limit cb capacity problem solve make reasonable decision concerning complex matter despite concern rehabilitation team submits cb allowed continue make medical decision cb said advised rehabilitation team 5 february 2021 wish retain treatment decision making authority rehabilitation team point fact early 2020 growth tumour found taken place cb independently requested second neurological opinion neurosurgeon advised poor prognosis second opinion led successful surgery cb given consent rehabilitation team view compensatory strategy continue used assist cb remembering medical information required might include device record information subsequent retrieval whilst cb care rehabilitation team nurse would accompany complex medical appointment rehabilitation team express concern cb fully understand restrictive nature guardian appointed make medical decision rehabilitation team favour neuropsychological assessment provide objective measure degree cb cognitive capacity cb ready discharge rehabilitation facility wish discharged private rental formal support funded ndis ebeb say never asked treating team give consent medical intervention cb however cb frequently call advice treatment decision need made advice sought often whether consent procedure eb state cb retains verbal ability belief interacting cb including hospital staff fail recognise take account severe short term memory say medical staff may example speak cb morning advise course medical action would largely forgotten visit afternoon eb state unless cb support person medical information provided upon decision made information soon lost cb eb say difficult follow matter cb secure correct information case become problematic separation eb disagrees rehabilitation team position cb independently sought second opinion early 2020 concerning possible surgery prognosis state initial neurosurgeon advised poor prognosis said second opinion could facilitated also recommended another specialist endocrinologist cb seeing time eb agrees lo lack remembering cause cb great distress belief cb vulnerability leaf open influence tsts close friend cb quite involved cb life past two year say cannot rely upon information given cb significant memory problem cb often display lack sureness recounting earlier event discussion whilst may general view unable provide detail t state obtains necessary information eb t state guardian appointed make cb treatment decision would propose would able devote necessary time required task guardianthe guardian support evidence submission lo say direct experience cb contacting distress different hospital team member would discussed treatment matter found confusing cbin oral evidence cb articulated need way think need assistance especially come decision know would like think memory okay know lose lot translation lot lost time becomes difficult recover recall suppose come especially medical side thing importance correct sort drive believe know assistance know required t 32 9 february 2020 cb go say reminded thing said cannot remember completely throw t 32 9 february 2021 cb support appointment guardian make treatment decision discussion issuesthe current guardianship order give public advocate authority make decision cb area personal life concerning living arrangement support service next friend duty personal matter finding upon based cb unable make reasonable judgment respect matter relating person 43 1 b ga act question tribunal whether finding extend cover cb treatment decision common law position whether person able give informed consent treatment withhold consent instructive exercise determining whether cb make reasonable judgment medical matter common law considered supreme court western australia inbrightwater care group inc v rossiter 2009 wasc 229 rossiter following principle stated 23 27 adult person assumed capable mental capacity consent refuse medical treatment reflecting statutory presumption capacity 4 3 b ga act adult person right autonomy self determination right choose live life informed consent patient required medical treatment undertaken lawfully note pt 9d ga act relates provision urgent treatment individual full capacity obliged give consent medical treatment regardless whether reason withholding consent rational irrational unknown even non existent withholding consent reflected definition treatment decision 3 ga act factor considered ability give informed consent decision inrossiterincluded capacity comprehend retain information given person relation treatment capacity weigh information weigh alternative option understand consequence treatment decision capacity expressing reason decision although stated capable person obliged give reason rossiterat 13 14 seems evidence consensus amongst party left device cb would able give informed consent make reasonable judgment treatment decision given inability retain new information given therefore reflect upon decision made point time light later information differing perspective proposed treatment trite observation use memory earlier decision inform decision proposed matter including treatment part judge proposed decision understanding experience earlier similar decision cb profound short term memory loss effectively prevents evidenced distress experience told consent recently given forgotten critically forgotten information provided give consent possible scaffolding cb impaired short term memory device support proposed rehabilitation team evidence resulted secure practical mean ensure safe decision making even intensive support rehabilitation team cb experience hospital setting seems given confidence decision make particular point time sustained inevitably forgets decision agree evidence submission lo regard become problematic cb leaf rehabilitation facility begin live independent accommodation albeit support likely intensity consistency received rehabilitation take place context likely complex difficult decision needing made respect cb brain injury therefore satisfied evidence cb unable make reasonable judgment concerning ongoing medical treatment make finding light cb prospective move live community would able protect health safety need oversight supervision interest health safety 43 1 b ga act satisfied evidence cb best interest treatment decision added existing function guardianship order appointing public advocate cb limited guardian noting obligation guardian act guardian considers best interest cb acting far possible amongst thing advocate cb way encourage cb live general community participate much possible life community way encourage assist cb become capable caring making reasonable judgment personal matter consult cb take account wish 51 ga act ordersthe tribunal declares represented person cb incapable looking health safety b unable make reasonable judgment respect matter relating person c need oversight care control interest health safety need guardian tribunal order guardianship order dated 11 november 2019 amended read public advocate david malcolm justice centre level 23 28 barrack street perth western australia appointed limited guardian represented person following function decide represented person live whether permanently temporarily b decide represented person live c make treatment decision represented person subject division 3 ofpart 5of theguardianship administration act 1990 wa determine service represented person access e next friend represented person commence conduct settle legal proceeding behalf represented person except proceeding relating estate represented person tribunal approves delegation public advocate function guardian represented person officer employee employed office public advocate guardianship order reviewed 11 november 2024 certify preceding paragraph comprise reason decision state administrative tribunal mr j mansveld senior member 12 may 2021

Land Engineering Pty Ltd re Land Engineering Pty Ltd Victorian Desalination Project Greenfields Agreement 2010 (Pipeline) [2011] FWAA 4810 (22 July 2011).txt

land engineering pty ltd land engineering pty ltd victorian desalination project greenfields agreement 2010 pipeline 2011 fwaa 4810 22 july 2011 fair work australiadecisionfair work act 2009s 185 enterprise agreementland engineering pty ltd ag2011 1760 land engineering pty ltd victorian desalination project greenfields agreement 2010 pipeline building metal civil construction industriescommissioner ryanmelbourne 22 july 2011application approval land engineering pty ltd victorian desalination project greenfields agreement 2010 pipeline 1 application made approval enterprise agreement known theland engineering pty ltd victorian desalination project greenfields agreement 2010 pipeline agreement application made pursuant tos 185of thefair work act 2009 act made land engineering pty ltd agreement greenfields agreement 2 satisfied requirement ofss186and187as relevant application approval met 3 satisfied australian worker union entitled represent industrial interest majority employee covered agreement relation work performed also satisfied public interest approve agreement 4 agreement approved accordance withs 54 1 operate 29 july 2011 nominal expiry date agreement 31 december 2012 commissionerprinted authority commonwealth government printer price code j ae887025 pr512424

Australian & International Pilots Association v Qantas Airways Limited [2009] FCA 500 (27 April 2009).txt

australian international pilot association v qantas airway limited 2009 fca 500 27 april 2009 last updated 14 may 2009federal court australiaaustralian international pilot association v qantas airway limited 2009 fca 500workplace relation act 1996 cth s 178 2 repealed 178 6 repealed 347 repealed 356 repealed federal court australia act 1976 cth 21qantas airway limited flight crew long haul certified agreement 2003 2004 cll 24 2 45 3 1 46 2 46 6 1australian international pilot association v qantas airway limited acn 009 661 901 2008 fca 1972referred toelectrolux home product pty ltd v australian worker union 2004 hca 40 2004 221 clr 309referred toaipa anor v qantas airway 2008 fmca 1008 2008 176 ir 453 referred toaustralian international pilot association v qantas airway limited acn 009 661 901 vid 295 2006gray j27 april 2009melbournein federal court australiavictoria district registryvid 295 2006between australian international pilot associationapplicantand qantas airway limited acn 009 661 901 respondentjudge gray jdate order 27 april 2009where made melbournethe court declares failing pay captain ian wood salary rate calculated accordance cl 24 2 qantas airway limited flight crew long haul certified agreement 2003 2004 respect period 7 15 november 2005 respondent contravened cl 46 2 coupled cl 46 6 1 qantas airway limited flight crew long haul certified agreement 2003 2004 refusing release captain simon tuma allocated flying duty 8 november 2005 respondent contravened cl 45 3 1 qantas airway limited flight crew long haul certified agreement 2003 2004 refusing release captain ian smith allocated flying duty 11 november 2005 respondent contravened cl 45 3 1 qantas airway limited flight crew long haul certified agreement 2003 2004 court order respondent pay captain ian wood sum 1 385 83 le applicable tax respondent pay captain ian wood interest sum referred para 4 amount 501 92 6 otherwise application dismissed order cost note settlement entry order dealt order 36 federal court rule text entered order located using esearch court website federal court australiavictoria district registryvid 295 2006between australian international pilot associationapplicantand qantas airway limited acn 009 661 901 respondentjudge gray jdate 27 april 2009place melbournereasons judgmenton 23 december 2008 delivered reason judgment proceeding published asaustralian international pilot association v qantas airway limited acn 009 661 901 2008 fca 1972 occasion ordered proceeding listed date fixed hearing outstanding issue referred reason judgment also directed party bring minute order reflecting conclusion reached reason judgment matter fixed hearing today deal question identified reason judgment question identified 129 reason judgment whether penalty imposed respect breach cll 45 3 1 46 2 qantas airway limited flight crew long haul certified agreement 2003 2004 described reason judgment eba6 whether two breach cl 45 3 1 two breach regarded arisen course conduct purpose relevantly then 178 2 theworkplace relation act 1996 cth theworkplace relation act thereby required treated single breach question quantum penalty penalty imposed question whether normal order made penalty paid applicant whether part paid consolidated revenue fund pursuant then 356of theworkplace relation act pursuant then 178 6 theworkplace relation act making order respect underpayment 1 385 83 captain wood president applicant entitled paid question payment interest sum andquestions cost light then 347of theworkplace relation actbecause dismissal substantial aspect original application court matter came today counsel respective party provided short minute order consent order sought declaration breach found occurred order respondent pay captain wood amount underpayment le applicable tax pay amount 501 92 interest amount andan order application otherwise dismissed order cost informed counsel applicant applicant changed position substantially relation proceeding longer seek financial penalty course necessary determine whether accept abandonment claim financial penalty ascertained contravention certified agreement occurred penalty ordered paid course unnecessary determine recipient penalty addition informed counsel party neither party seek cost neither party seek therefore argue applicability term then 347of theworkplace relation act see two particular issue arise first whether accept agreement party financial penalty imposed second whether grant declaration term sought first issue number consideration relevant event consideration penalty undoubtedly substantial mitigating circumstance present case important one time contravention occurred party taken view relevant provision certified agreement known eba6 regarded least potentially non pertaining provision therefore removed succeeding agreement eba7 agreement party order ensure certification eba7 concern whether provision pertained relevant employee qantas arose result judgment high court inelectrolux home product pty ltd v australian worker union 2004 hca 40 2004 221 clr 309 fact applicant union effective recipient benefit operation provision apparently caused party assume might non pertaining provision resulted agreement remove provision eba7 ensure certification agreement event reason judgment delivered 23 december 2008 held provision enforceable breach occurred breach occurred last day operation eba6 employee concerned already approved ballot accordance theworkplace relation actthe term eba7 supposed non pertaining provision removed application made australian industrial relation commission certify new agreement hearing application adjourned request applicant agreement respondent applicant new office bearer taken office one contravention failure pay captain wood entitlement salary calculated rate applicable president applicant agreement simply result neglect evidence finding made normal process pay arrears end future pay period never done captain wood case contravention involved failure release two pilot duty accordance provision eba6 enable attend applicant business refusal release duty arose principally failure understand significance expression operational requirement relevant provision distinguish operational requirement inconvenience managing pilot roster consequence truly said neither contravention wilful explicable degree culpability respondent substantially mitigated prior finding relevant contravention certified agreement concerned time judgment reserved case federal magistrate court australia imposed financial penalty respondent suit applicant inaipa anor v qantas airway 2008 fmca 1008 2008 176 ir 453 proceeding learned federal magistrate found respondent committed three breach clause eba7 unrelated clause eba6 issue present case federal magistrate imposed penalty respect three breach regarded arising single course conduct 5 000 whereas maximum penalty 33 000 84 honour expressed view breach particularly severe concerned conduct subsequent conduct issue present case judgment delivered judgment present case reserved respondent appealed federal magistrate judgment apparent notice appeal substantial argument proper construction provision concerned accordingly weight finding made federal magistrate considering parallel conduct respondent present purpose minimal circumstance light applicant change position seeking financial penalty necessary consider question specific general deterrence apparent need specific deterrence present case indication respondent ever attitude turning back relevant provision certified agreement occasion teaching lesson must regard provision time must comply indeed evidence emerged course case undoubtedly fact respondent devotes substantial amount resource ensuring complies certified agreement daily basis general deterrence mitigating factor little purpose would served imposing financial penalty certainly case every situation party insist construction provision award certified agreement later found unsustainable avoid imposition financial penalty nevertheless case adoption construction fairly open permit court say imposition financial penalty would appropriate special feature case party relevant time taken position relevant provision eba6 legally enforceable non pertaining pursuant theelectroluxjudgment circumstance seems purpose general deterrence would served imposition financial penalty reason agreement party financial penalty longer appropriate fall within proper range court regard determining issue penalty accordingly propose impose financial penalty respect relevant breach party course agreed suggested needed respondent obliged pay captain wood amount underpayment interest amount order made also said neither party seek visit question cost order cost made assumption general rule applies proceeding matter arising theworkplace relation actdoes attract cost remains question declaration past taken view adhere generally inappropriate make declaration record finding conclusion court reach issue fact law particular case recognised past particularly thetrade practice act 1974 cth grown practice making declaration express finding contravention various provision view practice unfortunate declaration made amount true declaration right pursuant tos 21of thefederal court australia act 1976 cth true declaration right provides party determination controversy base future relationship present case declaration proposed would least effect expressing conclusion provision concerned enforceable law despiteelectrolux non pertaining provision therefore binding party ought complied respect particular pilot respect others reason prepared depart usual antipathy towards declaration make order term sought order make follows court declares 1 failing pay captain ian wood salary rate calculated accordance cl 24 2 qantas airway limited flight crew long haul certified agreement 2003 2004 respect period 7 15 november 2005 respondent contravened cl 46 2 coupled cl 46 6 1 qantas airway limited flight crew long haul certified agreement 2003 2004 2 refusing release captain simon tuma allocated flying duty 8 november 2005 respondent contravened cl 45 3 1 qantas airway limited flight crew long haul certified agreement 2003 2004 3 refusing release captain ian smith allocated flying duty 11 november 2005 respondent contravened cl 45 3 1 qantas airway limited flight crew long haul certified agreement 2003 2004 court order respondent pay captain ian wood sum 1 385 83 le applicable tax respondent pay captain ian wood interest sum referred para 4 amount 501 92 6 otherwise application dismissed order cost certify preceding fourteen 14 numbered paragraph true copy reason judgment herein honourable justice gray associate dated 14 may 2009counsel applicant mr mooresolicitor applicant aj macken cocounsel respondent mr r kenzie qc mr meehansolicitor respondent blake dawsondate hearing 27 april 2009date judgment 27 april 2009

Hayman & Chesterton [2012] FamCA 235 (26 March 2012).txt

hayman chesterton 2012 famca 235 26 march 2012 last updated 6 june 2012family court australiahayman chesterton 2012 famca 235family law child respondent mother seek order permitted relocate melbourne party child independent child lawyer support order effect applicant father appear hearing evidence indicates father notified proceeding unwilling participate allegation domestic violence father mother father seen party child almost two year father sporadic contact child via telephone whether order proposed mother independent child lawyer child best interest mother seek move commence permanent relationship partner mother partner observed child issue noted respect family consultant child best interest move mother melbourne family law act 1975 cth applicant mr haymanrespondent m chestertonindependent child lawyer m meehanfile number brc10491of2008date delivered 26 march 2012place delivered townsvilleplace heard townsvillejudgment murphy jhearing date 26 march 2012representationthe applicant appearancethe respondent personsolicitor independent child lawyerms meehan ofmm meehan lawyersordersby consent ordered thatin accordance minute order attached hereto pursuant section 65da 2 andsection 62bof thefamily law act 1975 particular obligation order create particular consequence may follow person contravenes order detail assist party adjust comply order set annexure hereto particular included order ordered thatthe independent child lawyer discharged subpoenaed document returned person institution emanated exhibit returned person person tendered matter removed pending case list minute orderit ordered consent child k haymanborn 06 2008 live mother mother sole parental responsibility child mother allowed relocate child melbourne father shall spend time child time may agreed parent however failing agreement follows brisbane4 1 year brisbane mother provide least twenty eight 28 day notice father intention brisbane 4 2 mother arrange travel brisbane child 4 3 mother make child available spend time father five 5 consecutive day day time contact e g 9 00am 5 00pm day 4 4 father shall advise mother specific time able spend time child place intends spend time child e g location 1 location 2 park lunch etc 4 5 mother shall present father visit child though mother interfere father time child 4 6 father becomes irritated fatigued visit child end visit early 4 7 father parent sister encouraged also attend visit father 4 8 party shall responsible separate cost travel spending time child melbourne4 9 father shall provide least twenty eight 28 day notice mother intention melbourne 4 10 child commences preparatory education father shall schedule visit child school holiday 4 11 father shall accompanied either parent visit 4 12 mother shall make child available spend time father daytime contact e g 9 00am 5 00pm day father melbourne provided time five 5 consecutive day block occur four 4 time per year 4 13 father shall advise mother specific time able spend time child place intends spend time child e g location 2 park lunch etc 4 14 mother shall present father visit child though mother interfere father time child 4 15 father becomes irritated fatigued visit child end visit early 4 16 party shall responsible separate cost travel spending time child father time child shall supervised following extent 5 1 next five 5 year mother shall present father time child though mother interfere father time child 5 2 next five 5 year father consistently spend time child least year aggressive threatening incident father mother shall continue present father time child additional three 3 year 5 3 father shall accompanied either parent spends time child neither parent denigrate parent presence hearing child neither parent influence drug allow child come contact person influence drug time child care supervision neither parent shall allow mr mr p mr alone child notedthat publication judgment pseudonymhayman chestertonis approved pursuant tos 121 9 g thefamily law act 1975 cth family court australia townsvillefile number brc 10491 2008mr haymanapplicantandms chestertonrespondentex temporereasons judgmenteach party bring parenting proceeding pertain k born june 2008 significantly compromised past past detailed length report prepared family consultant m b includes case mother victim family violence particular victim family violence hand father also victim inappropriate sexual behaviour young woman father compromised particular reason accident occurred young child mother ultimately appointed litigation guardian late last year deposes suffering serious head injury 8 fell bunk bed window onto concrete coma nearly week treated intensive care deposes significant difficulty experienced since time attributable might called present purpose brain injury father previously represented right late last year order made mother appointed litigation guardian neuropsychological report filed proceeding albeit year ago report reveals father easily overwhelmed information presented verbally prose fashion expect great deal difficulty following court proceeding giving instruction whether result difficulty wider ramification included evident report m b significant cannabis use fact face face time father daughter nearly two year father last saw daughter easter time 2010 telephone contact somewhat sporadic last telephone contact two month ago mother advises morning last 12 month six eight occasion telephone time telephone time difficulty recorded comprehensively m b report m b recent report dated 8 december 2011 report upon attempt contact father mother litigation guardian event proved unsuccessful case notwithstanding difficulty report m b comprehensive helpful current order proposed mother independent child lawyer see mother moving k melbourne mother commence permanent relationship partner light circumstance earlier referred court must notwithstanding consent party non participation father pay particular regard statutory consideration particular relating parental capacity like m b record paragraph 80 report mother parental capacity dispute issue regard k care therefore explored great extent except note characteristic observed k relationship existing caregiver within maternal family characteristic observed reflected k confidence adult life familiarity caring cooperative affectionate relationship positive indicator ongoing healthy development regard mother female partner co parenting mother appear intrusive observation self report role mother parenting supportive complementary instead k report mother number particular difficulty telephone time father spending k m b take issue report say father need understand k exposed swearing father speaks yelling denigration parent stop wanting talk phone father continue k find telephone helpful form trusting bond father currently phone call supervised mother instance swearing cease phone call already referred issue cannabis use plainly significant issue extent impairs parental capacity respect father m b note failure participate report interview opportunity m b observe father cannot comment current cannabis use save note atods attendance urine screen might otherwise required independent child lawyer conducted significant history heavy cannabis use according m b report ambivalent attitude part mother towards seems suggest take edge acute aspect behaviour implicitly least result condones use m b specifically address issue mother proposed relocation melbourne form relationship female partner make obvious point nature relationship mother partner although referred disparaging derogatory term father irrelevant future care k development comprehensive part report m b detail advantage disadvantage k travel melbourne live mother city consideration circumstance discussed reference k best interest weigh heavily favour mother relocation occurring necessary current context outline detail thes 60ccconsiderations object principle inpart viiof act think obvious already said certainly comprehensive report m b factor relevant consideration considered indeed mother self prepared affidavit filed 2 march 2012 affidavit mother address relevants 60ccconsiderations mother say represents filed affidavit service affidavit notice address service independent child lawyer father mother address form affidavit disclose term document served reference division 12a act enquired mother bar table information document forwarded indicated notice address service affidavit filed 2 march 2012 served husband mother m meehan independent child lawyer history matter reveals significant lack participation part father proceeding indication fact may even represented particularly interested pursuing order respect daughter family report referred set comprehensively thes 60ccconsiderations make comprehensive recommendation time report released father represented family report forwarded solicitor order upon mother independent child lawyer agree ask court make largely mirror recommendation outlined m b report already said mother compromised past involves victim sexual misconduct seems sibling compromised past one subject criminal proceeding respect sexual offence involving child m b refers fact mother express abhorrence sort behaviour taken appropriate step ensure k protected respect order contain two provision first paragraph 8 restriction parent permitting k come contact number named individual might seen least surface present potential risk child secondly result issue earlier referred capacity present risk k paragraph 5 order provides time father k supervised next five year circumstance satisfied order sought jointly independent child lawyer mother k best interest satisfied father notice proceeding past conduct indicated unwillingness unwillingness participate within view appropriate make order notwithstanding father non appearance certify preceding twenty five 25 paragraph true copy reason judgment honourable justice murphy delivered 26 march 2012 associate date 18 april 2012

Peng, Zhao Ming [2000] MRTA 1896 (30 June 2000).txt

peng zhao ming 2000 mrta 1896 30 june 2000 last updated 17 august 2000 2000 mrta 1896catchwords visa refusal subclass 457 nomination business activity overseas business approved reviewablevisa applicant mr zhao ming pengtribunal migration review tribunalpresiding member robin huntmrt file number n99 01074dima file number 98 001528date decision 30 june 2000at sydneydecision 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 affair delegate mr zhao ming peng visa applicant national people republic china born 17 may 1957 applied temporary business entry class uc visa 27 august 1997 delegate decision refuse grant visa made 6 january 1999 delegate decision affirmed internal review officer miro 19 march 1999 jurisdiction standing2 visa applicant lodged application review immigration review tribunal 16 april 1999 became application review migration review tribunal 1 june 1999 way transitional provision themigration legislation amendment act 1 1998 decision reviewable tribunal application review validly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural affair dima tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa dima remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion tribunal review often limited consideration whether visa applicant fails meet essential criterion whether basis remitting application visa dima 5 criterion policy immediately relevant review legislation regulation 1 20g regulationsitem 1223a schedule 1 regulationspart 457of schedule 2 regulations6 tribunal generally regard regulation regulation stood time visa application however subsequent amendment may apply circumstance evidence7 tribunal following document t1 mrt case file n99 01074 folio numbered 1 56 d1 dima file 98 001528 unfolioed 8 visa applicant first arrived australia 19 august 1997 holder business visa short stay 27 august 1997 visa applicant lodged application basis review subsequently granted bridging visa subclass 020 bridging visa allows travel outside australia visa applicant done 12 separate occasion 9 visa applicant applied grant subclass 457 visa basis sponsorship overseas business tofuth light source material pty ltd 10 nomination activity director board tofuth light source material pty ltd refused delegate 6 january 1999 11 delegate stated visa applicant visa granted basis required nomination business activity approved 12 visa applicant sent letter 2 may 2000 inviting visa applicant provide comment information tribunal considered would reason part reason affirming decision review 13 visa applicant respond person migration agent copy letter sent requested extension time tribunal declined grant extension wrote 18 may 2000 inviting visa applicant hearing 15 june 2000 14 8 june 2000 visa applicant agent advised tribunal written visa applicant last known address received communication gave notice tribunal would withdraw conduct case instruction prior top hearing 15 movement record department show visa applicant left australia time ago visa applicant agent learning advised tribunal letter 13 june 2000 would attend hearing properly instructed 16 appearance made visa applicant hearing consequently tribunal made decision material findings17 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 18 subclass 457 visa obtained number ground ground visa application appears made sponsorship overseas business claim made respect ground material tribunal suggest visa applicant meet ground 19 one criterion grant subclass 457 visa basis sponsorship overseas business relates activity subject approved business nomination employer paragraph 457 223 6 b schedule 2 regulation nomination activity director board tofuth light source material pty ltd refused delegate 6 january 1999 20 application review tribunal respect decision refuse approve nomination position application review decision regulation 1 20h refuse approve business nomination made business sponsor paragraph 4 02 5 c regulation business sponsor defined inregulation 4 02as pre qualified business sponsor standard business sponsor within meaning division 1 4 business must lawfully operating business australia approved business sponsor see regulation 1 20d overseas business yet operating business activity australia cannot business sponsor provision overseas business nominate activity part consideration whether business would apart operating business australia likely approved standard business sponsor 21 approved business nomination required subclause 457 223 6 tribunal must affirm decision review basis visa applicant meet criterion grant class uc visa decision22 tribunal affirms decision review finding visa applicant entitled grant temporary business entry class uc visa

Independent Education Union of Australia v Mount Scopus Memorial College Limited T_A Mount Scopus Memorial College [2022] FWC 2374 (6 September 2022).txt

independent education union australia v mount scopus memorial college limited mount scopus memorial college 2022 fwc 2374 6 september 2022 last updated 6 september 2022 2022 fwc 2374fair work commissiondecisionfair work act 2009s 437 protected actionindependent education union australiavmount scopus memorial college limited mount scopus memorial college b2022 1338 deputy president clancymelbourne 6 september 2022proposed protected action ballot employee mount scopus memorial college limited mount scopus memorial college 1 application independent education union australia applicant made unders 437of thefair work act 2009 act protected action ballot order relation certain employee mount scopus memorial college limited mount scopus memorial college respondent 2 6 september 2022 associate advised respondent object application 3 circumstance decided determine matter paper without holding hearing 4 basis material including declaration mr earl james applicant setting step taken bargaining respondent genuinely trying reach agreement respondent satisfied notification time relation proposed agreement requirement in 443 1 act met 5 order separately issued inpr745559 deputy presidentprinted authority commonwealth government printer pr745558

Twin Palms [2017] QBCCMCmr 97 (28 February 2017).txt

twin palm 2017 qbccmcmr 97 28 february 2017 last updated 21 march 2017adjudicator orderoffice commissionerfor body corporate community managementcitation twin palm 2017 qbccmcmr 97parties kirsty best co owner lot 2 applicant body corporate twin palm respondent scheme twin palm ct 10748jurisdiction section 227 1 229 3 thebody corporate community management act 1997 qld act applying act thebody corporate community management standard module regulation 2008 standard module application 0144 2017decision date 28 february 2017decision zeidler adjudicatorcatchwords interim order whether interim order granted circumstance law whether body corporate implementation animal law reasonable act s 94 279 1 interim ordersmade hereby orderthat applicant shall permitted bring dog bear onto lot 2 pending final determination matter provided dog kept within lot 2 present scheme land b dog permitted roam common property lot scheme c dog traverse common property purpose brought onto taken scheme land time dog carried adequately restrained animal litter waste associated dog effectively promptly disposed e dog permitted cause nuisance otherwise interfere unreasonably person use enjoyment another lot common property interim order expires application finally determined discontinued upon expiry 12 month date order whichever earliest reason decisionintroduction 1 11 april 2016 applicant sought permission keep dog bear lot 27 april 2016 committee rejected applicant pet proposal 2 30 january 2017 applicant sought permission keep dog lot 15 february 2017 committee rejected pet request 3 applicant dispute body corporate decision request permission keep dog lot pending final order 4 interim order normally justified application raise serious question need determined andthe inconvenience likely result interim order outweighed potential detriment order granted jurisdiction 5 satisfied matter fall within legislative dispute resolution provision 1 dispute lot occupier body corporate section 276 1 act provides adjudicator may make order equitable circumstance resolve dispute context community title scheme claimed anticipated contravention act 6 section 279 1 act allows adjudicator make interim order satisfied reasonable ground interim order necessary nature urgency circumstance application relates procedural matter 7 accordance withsection 247of act commissioner body corporate community management referred application decide whether nature urgency circumstance application warrant interim order commissioner referred application notwithstanding affected person given notice application afforded opportunity make submission application 2 circumstance provided body corporate committee committee limited opportunity make written submission response interim application matter dispute 8 applicant say permitted keep dog lot due following dog small jack russell cross mini fox terrier weighing 6kg dog 9 year old obedient well trained microchipped vaccinated dog carried common area dog create unreasonable level noise nuisance dog short haired breed known low allergy risk dog also washed low allergen shampoo 9 response body corporate say owner purchased scheme specifically pet free complex one resident allergic cat dog analysisserious legal question 10 search body corporate record held registrar title 3 show scheme registered 5 october 1981 however specific law registered scheme rather community management statement cm scheme say law effect 13 july 2000 question arises law effect july 2000 involves examination legislation applying scheme time registered amendment occurring law july 2000 11 scheme registered thebuilding unit group title act 1980 bugt act therefore law pertaining scheme schedule 3 bugt act unless subsequently amended body corporate apparent amendment made law since scheme registered accordingly pet law law 11 schedule 3 bugt act state subject section 30 12 proprietor occupier lot shall without approval writing body corporate keep animal upon lot common property 12 law 11 permit keeping animal consent body corporate law body corporate given discretion whether approve specific request pet 13 legislation requires body corporate act reasonably carrying function including making decision 4 reasonableness question fact objective test requires balancing factor circumstance according ordinary meaning term reasonable 5 question determination whether body corporate properly exercised discretion law 11 given due consideration applicant request 14 body corporate opposes applicant pet request stating pet policy permission dog may lead precedent contrary long standing policy past practice note body corporate concern many adjudication decision held body corporate cannot rigidly apply pet policy 6 rather body corporate must take consideration individual circumstance case 15 body corporate opposes pet request noting dog may cause noise nuisance allergy injure child residing scheme stage concern solely hypothetical supported evidence satisfied hypothetical concern form reasonable basis body corporate rejection applicant pet request accordingly consider applicant raised genuine question whether body corporate acted reasonably deciding refuse permission keeping dog inconvenience interim order 16 considering whether grant interim order sought relevant balance inconvenience granting relief final order ultimately refused inconvenience refusing relief final order ultimately granted 17 apparent significant detriment body corporate allowing dog kept lot 2 pending final order fact allowing dog remain lot short period time could even assist resolution matter occupier able identify whether actual rather hypothetical concern particular dog 18 interim order sought granted applicant would faced find temporary accommodation dog dispute finally resolved conclusion 19 balance satisfied applicant raised genuine legal issue regard whether body corporate acted reasonably refusing request keep dog lot 2 circumstance consider sufficient justification applicant permitted keep dog lot 2 dispute finally resolved 20 noted however order effect pending final order way final permission applicant keep dog lot 21 matter proceed accordance normal process undertaken office first instance intend refer application commissioner recommendation conciliation conducted respect dispute conciliation unable resolve dispute matter proceed investigation final order including calling submission 1 section 227 228 276andschedule 5of act 2 section 247 3 act 3 see investigative power adjudicator insection 271of act 4 section 94of act 5 q1 2010 qbccmcmr 433 21 september 2010 6 spinnaker blue 2016 qbccmcmr 84 admiralty tower 2014 qbccmcmr 201

"A" bht "S" v State of NSW [2011] NSWDC 54 (1 July 2011).txt

bht v state nsw 2011 nswdc 54 1 july 2011 bht v state nsw 2011 nswdc 54 1 july 2011 last updated 19 july 2011district courtnew south walescase title bht v state nswmedium neutral citation 2011 nswdc 54hearing date 15 16 23 june 2011decision date 01 july 2011jurisdiction civilbefore levy sc dcjdecision 1 non publication order made respect name identification detail plaintiff tutor solicitor cso 1 cso 2 cso 3 s1 dr dr b dr c dr 2 motion filed defendant seeking dismiss alternatively stay plaintiff proceeding dismissed 3 cost dismissed motion cost cause 4 exhibit may returned 5 hear party making case management direction 6 liberty apply 7 day notice order required 7 order document marked mfi 3 placed sealed envelope opened except order judge court judge court appeal review order catchword practice procedure application defendant two proceeding brought plaintiff seeking damage breach duty care defendant seeking either dismiss permanently stay plaintiff proceeding pursuant ucpr r 12 7 claim prejudice due effluxion time resulting claimed inability defend proceeding death witness natural cause unwillingness four expert witness give evidence damage issue due alleged threat plaintiff substantial delay occurring litigation recent appointment tutor whether relief sought justified circumstance whether name judicial officer counsel subject non publication order requirement open justice whether non publication order relating plaintiff expert witness plaintiff case justifiedlegislation cited civil liability act 2002 5dcivil procedure act 2005 s 56 57 58 72crown proceeding act 1988 5federal court australia act 1976 50mental health act 1990 29mental health forensic provision act 1990protected estate act 1983uniform civil procedure rule 2005 r 12 7cases cited aon risk service australia limited v australian national university 2009 hca 27australian broadcasting commission v parish 1980 fca 33 1980 29 alr 228batistatos v rta anor 2006 hca 27 2006 226 clr 256bi v mourad 2010 nswca 17brisbane south regional health authority v taylor 1996 hca 541 1996 186 clr 541c v r 1993 67 crim r 562container terminal australia ltd v huseyin 2008 nswca 320dixon v whisprun pty ltd 2001 nswca 344general steel industry inc v commissioner railway nsw 1964 hca 69 1964 112 clr 125grassby v r 1989 hca 45 1989 168 clr 1hg v queen 1999 hca 2 1999 197 clr 414herald weekly time 2003 fcafc 217 2003 130 fcr 435hogan v australian crime commission 2010 hca 21holt v wynter 2000 nswca 143 2000 49 nswlr 128hoser v hartcher 1999 nswsc 527hume v council king school 2010 nswsc 186john fairfax group pty ltd v local court nsw 1991 26 nswlr 131john fairfax son pty ltd v police tribunal nsw 1986 5 nswlr 465john fairfax publication pty ltd v district court nsw 2004 nswca 324lee v keddie 2011 nswca 2mason v demasi 2009 nswca 227mt isa mine v pusey 1970 hca 60 1970 125 clr 383nominal defendant v saleh 2011 nswca 16ov ow v member board wesley mission council 2010 nswca 155pacanowski anor v wakerman anor 2009 nswca 402paric v john holland construction pty ltd 1984 2 nswlr 505paric v john holland construction pty ltd 1985 hca 58 1985 59 aljr 844pelechoswki v registrar court appeal 1999 hca 19 1999 198 clr 435purkess v crittenden 1965 hca 34 1965 114 clr 164r v rogerson 1992 hca 25 1992 174 clr 268rta anor v batistatos 2005 nswca 20reliance financial service v griffith 2010 nswsc 1490richards v cornford 3 2010 nswca 134sali v spc ltd 1993 aljr 841watts v rake 1960 hca 58 1960 108 clr 158texts cited category interlocutory applicationsparties bht plaintiff state nsw defendant representation counsel mr rollinson plaintiff mr windsor sc mr r lee defendant solicitor lexington law group pty ltd plaintiff crown solicitor defendant file number 1998 570172001 95166publication restriction order made pursuant 72 thecivil procedure act 2005prohibiting publication disclosure name plaintiff tutor plaintiff witness assigned litigation pseudonym including information detail within court file evidence proceeding either identifies tends identify person judgmenttable contentsinterim non publication order 1 â 6 litigation pseudonym 7 final non publication order 8 â 47 plaintiffâ background present circumstance 48 â 50 notice motion 51 â 52 underlying case 53 â 57 issue â whether dismissal stay justified 58 â 61 procedural history 62 â 69 evidence support motion 70 â 77 applicable legal principle 78 â 93 submission party 94 â 105 consideration 106 â 249 legal capacity plaintiff 108 â 115 legal aid issue 116 â 118 analysis medical allied evidence 119 â 171 claimed prejudice establishing fact 172 â 183 non application ofcivil liability act2002

Turner v Carr [2020] ACTSC 176 (30 June 2020).txt

turner v carr 2020 actsc 176 30 june 2020 last updated 2 august 2020supreme court australian capital territorycase title turner v carrcitation 2020 actsc 176hearing date 29 june 2020decisiondate 30 june 2020before robinson ajdecision see 14 catchword criminal law appeal severity sentence lengthy delay appeal heard delay seemingly due failure engross warrant proven rehabilitation offender appeal allowed sentenced time already servedparties gary turner appellant joshua carr respondent representation counsel mclaughlin appellant c wanigaratne respondent solicitorslegal aid act appellant act director public prosecution respondent file number sca 72 2002decision appeal court tribunal magistrate court actbefore magistrate somesdate decision 11 november 2002case title christopher burgess v gary turnercourt file number cc5067 2002robinson aj introduction1 1 june 2002 gary john turner appellant driver harley davidson motorcycle street ainslie pillion passenger observed police routine patrol followed police pursuit ensued ended appellant passenger fell harley davidson rear wheel motorcycle lost traction motorcycle slid short distance roadway result 2 appellant charged driving whilst licence cancelled driving recklessly obstructing police officer execution duty stopping signalled police officer driving uninsured unregistered motorbike exceeding prescribed concentration alcohol appellant pleaded guilty charge magistrate somes 11 november 2002 3 appellant sentenced imprisonment total period 27 month non parole period 18 month relation offence also fined disqualified holding driver licence 4 15 november 2002 appellant appealed notice appeal manuscript hand stated sentenced period 27 month imprisonment 18 month serve notice appeal go say heading order sought suspend sentence lieu seeking period weekend detention supervision probation parole accept direction probation parole ground appeal stated severity sentence 5 appeal due course found way justice higgins granted bail appellant 13 december 2002 subsequent hearing query raised appeal whether appellant leave appeal conviction driving without licence doubt consequent upon earlier order imposed magistrate ward 1996 efficacy question july 2004 appellant granted leave appeal conviction concerning driving without licence 6 20 august 2004 brought attention chief justice higgins appellant reside address specified bail term chief justice gave leave warrant issued appellant appears warrant ever engrossed director public prosecution execution obviously executed action appears taken appellant stage served small proportion sentence 7 interpolate record appellant prior coming magistrate somes long criminal history commenced childrens court concerned offence stolen good burglary offensive weapon assault driving charge drug charge theft appellant 42 year old time sentenced magistrate 8 appellant made recently application driver licence act road transport authority apparently brought attention authority could termed unfinished business 9 appeal listed today 10 hearing subsequent correspondence court appears appellant court one occasion 2002 2020 occasion received six month suspended sentence imprisonment two year good behaviour order contravening protection order sentence expired 2007 11 appellant 60 year age evidence reveal took active step order avoid answering request attend appeal evidence reveals almost complete reversal tenancy antisocial behaviour offending subsequent 2002 12 circumstance propose allow appeal severity regard passage time proven rehabilitation prospect offender propose order appeal upheld sentence reduced time served 13 offence appellant ordered pay fine subject appeal order made respect told bar table appellant paying fine precondition obtaining another driver licence order14 order court 1 allow appeal 2 quash sentence magistrate somes 27 month imprisonment 3 order appellant sentenced time served certify preceding fourteen 14 numbered paragraph true copy reason judgment honour acting justice robinson associate date 1 july 2020

0907423 [2012] MRTA 603 (1 March 2012).txt

0907423 2012 mrta 603 1 march 2012 last updated 9 march 20120907423 2012 mrta 603 1 march 2012 decision recordreview applicant m lida yinvisa applicant mr zhanjiu wangmrt case number 0907423diac reference osf2008 060157tribunal member patricia leehydate 1 march 2012place decision sydneydecision tribunal remit application partner provisional class uf visa reconsideration direction visa applicant meet following criterion subclass 309 spouse provisional visa cl 309 211 schedule 2 regulation cl 309 221 schedule 2 regulation statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant visa applicant partner provisional class uf visa unders 65of themigration act 1958 act visa applicant applied department immigration citizenship partner provisional class uf visa 29 december 2008 delegate decided refuse grant visa 27 july 2009 notified visa applicant decision review right letter dated 28 july 2009 delegate refused visa application basis visa applicant satisfy cl 309 211 cl 309 221 schedule 2 themigration regulation 1994 regulation satisfied party spousal relationship within meaning legislation review applicant applied tribunal 11 september 2009 review delegate decision tribunal find delegate decision mrt reviewable decision 338 5 act review applicant made valid application review 347 act relevant lawpartner visa involve two stage process visa applicant must hold provisional visa order granted permanent visa grant provisional visa enables visa applicant travel remain australia temporary basis grant permanent visa may subsequently considered generally depends whether relationship continued period least 2 year partner provisional class uf visa contains subclass 309 spouse provisional visa subclass 310 interdependency provisional visa item 1220a 4 schedule 1 regulation visa applicant made claim subclass 309 visa claim interdependent relationship defined r 1 09a required subclass 310 accordingly claim assessed criterion subclass 309 visa criterion subclass 309 visa set inpart 309of schedule 2 regulation one criterion satisfied time application visa applicant spouse intends marry australian citizen australian permanent resident eligible new zealand citizen intended marriage valid marriage act cl 309 211 time decision visa applicant must continue spouse case visa applicant time application intended marry marriage taken place applicant continues spouse time decision cl 309 221 cl 309 224 regulation 1 15aof regulation defines term spouse specifies person spouse another person two person either married de facto relationship r 1 15a 1 person married relationship must married marriage recognised valid purpose act r 1 15a 1a section 12 act provides purpose deciding whether marriage recognised valid purpose act part vaof themarriage act 1961 themarriage act applies ifs88eof act omitted subject certain exception foreign marriage recognised valid local law country solemnized recognised australia valid underpart vaof themarriage act exception relate whether either party already married whether party marriageable age time marriage whether party within prohibited relationship whether consent party real consent whether marriage voidable local law whether marriage sex union person de facto relationship must opposite sex married marriage recognised valid purpose act within prohibited relationship purpose ofs 23b 2 themarriage act r 1 15a 2 addition party must full age 18 either party domiciled australia 16 neither party domiciled australia r 1 15a 2 b case married de facto relationship tribunal must satisfied party mutual commitment shared life husband wife exclusion others relationship genuine continuing party live together live separately apart permanent basis r 1 15a 1a b 1 15a 2 c additionally tribunal must satisfied de facto relationship party satisfy requirement 12 month preceding date application unless visa applicant applying spouse member family unit person holder permanent humanitarian visa meet certain requirementsorcan establish compelling compassionate circumstance grant visa r 1 15a 2 r 1 15a 2a forming opinion whether two person married de facto relationship relation application partner provisional class uf visa tribunal must regard circumstance relationship including particular consideration set r 1 15a 3 consideration relate financial aspect relationship nature household social aspect relationship nature person commitment fact two person lived together period 6 month taken strong evidence genuine continuing relationship relationship shorter duration cannot taken genuine continuing reason r 1 15a 5 claim evidencethe tribunal department tribunal file relating visa applicant review applicant represented relation review registered migration agent department file osf2008 060157according spouse visa application visa applicant man born liaoning china 9 september 1970 married review applicant 26 june 2008 say married previously de facto spouse relationship visa applicant say parent currently resident china married sister resident china visa applicant say review applicant woman born sichuan china 27 september 1957 became australian citizen 18 december 2006 visa applicant say review applicant previously married kent yu 25 april 2001 16 june 2007 divorced say review applicant son born 1 january 1985 australian citizen father deceased mother two brother sister currently resident china visa applicant say party first met chongqing china 15 march 2008 began relationship 7 month later decided 5 may 2008 wished marry began spouse relationship 26 june 2008 date married review applicant completed form 40sp visa applicant sponsor give information relationship visa applicant review applicant say arrived australia 28 august 2002 say sponsored come australia spouse prospective spouse 28 august 2002 say currently employed supervisor devere hotel worked 1 september 2002 say dependent review applicant say paying home loan two bedroom unit life son say visa applicant live party submitted following document department certified copy review applicant australian passport visa applicant chinese passport birth certificate visa applicant marriage certificate issued ministry civil affair china stating party registered marriage shenyang city 26 june 2008 divorce certificate issued federal magistrate court australia respect review applicant showing divorced kent yu 15 may 2007 order take effect 16 june 2007australian citizenship certificate respect review applicant showing become citizen 18 december 2006 group certificate financial year ended 30 june 2007 respect review applicant showing paid gross sum 37 000 financial record review applicant june september 2008 showing employed de vere hotel statutory declaration review applicant son haoran yin stating life review applicant state mother divorced june 2007 lonely known visa applicant since march 2008 become much happier witness spoken visa applicant phone belief honest responsible statutory declaration xin li stating neighbour review applicant two year personal friend son say seen photo party observed telephone call visit home statement party relationship statement review applicant say lonely depressed divorce say friend xiaomin zhang introduced visa applicant talked phone got know six month period soon fell love review applicant went china 15 march 2008 meet visa applicant family good time together two month stay lot social activity together returned australia decided develop relationship marrying 26 june 2008 review applicant returned china traditional chinese wedding ceremony relative friend visa applicant refurnished apartment live took lot wedding photo exchanged ring review applicant return work visa applicant needed time settle business affair visa applicant statement say cousin review applicant friend many year cousin introduced visa applicant say missed review applicant much returned australia first visit 2008 delighted returned wedding even though could take week work say held wedding ceremony huancheng hotel parent relative celebrated note department file indicate visa applicant refused visitor visa australia 2006 6 february 2009 party asked provide additional documentary evidence relationship party interviewed 12 june 2009 discrepancy information provided interview including visa applicant stated review applicant older brother older sister two older brother older sister review applicant said introduce one brother visa applicant disabled recounting party introduced visa applicant said phoned mutual friend zhang chengdu buying dog suggesting meet review applicant took home two dog bought went chongqing meet review applicant review applicant said zhang gave visa applicant phone number range several phone conversation met personally recounting first meeting visa applicant said contacted first meeting zhang gave review applicant mobile number asked wait famous building chongqing met around 10 lunch review applicant went home went nearby hotel review applicant said made appointment meet famous building chongqing met morning lunch together went shopping separated early evening recounting initiated discussion marriage visa applicant said initiated together chongqing say anything first suggested marriage mentioned dinner hot pot restaurant agreed brought white gold ring diamond friend shop wedding gift review applicant said one initiated discussion marriage visa applicant proposed phone returned australia visa applicant said interview review applicant married review applicant said visa applicant aware two previous marriage visa applicant said never contact review applicant son son said statutory declaration spoken visa applicant phone review applicant said cook know visa applicant liked visa applicant said would cook food good said like vegetable visa applicant said visited review applicant mother home stay chongqing review applicant said never visited mother home meal together refusing visa delegate said discrepancy response given interview party appeared little knowledge others life circumstance stated limited evidence party undertaking joint social activity little social familial recognition claimed relationship delegate stated evidence cohabitation evidence show review applicant lived time china evidence financial nature department delegate satisfied genuine continuing spouse relationship within meaning legislation existed party tribunal file 0907423the review applicant provided additional information application review tribunal 23 december 2010 party adviser wrote tribunal enclosing submission following relevant document statutory declaration party dated november 2010 statutory declaration attesting genuineness relationship review applicant son dated 26 november 2010 cousin visa applicant introduced party dated 20 november 2010 yuqin yang employee visa applicant dated 20 november 2010 telephone record review applicant june november 2010 report prior period could retrieved since old mobile phone lost telephone record visa applicant august 2009 october 2010 record party show call regular duration parcel receipt three gift review applicant visa applicant four parcel receipt gift visa applicant review applicant evidence form flight ticket hotel receipt party indicating stayed together beijing prior wedding june 2008 certification chongqing xinshan village police station dated 9 march 2010 indicating review applicant living brother home 2 february 18 march 2010 train ticket visa applicant showing travelled shenyang beijing 25 january 2010 beijing chongqing 29 january 2010 visa applicant went meet review applicant chongqing flight ticket showing visa applicant left chongqing shenyang 18 march 2010 date review applicant left australia receipt purchase household item dated 16 june 2008 showing visa applicant purchased new tv set item prior marriage registered three commonwealth bank statement showing visa applicant sent review applicant three sum money totally aud 1500 period december 2009 september 2010 photo showing party relative friend submission adviser state discrepancy party interview caused anxiety confusion misunderstanding time interview adviser state one discrepancy related fact review applicant originally planned visit family chongqing visit husband shenyang however arrived chongqing found mother seriously ill asked visa applicant come chongqing meet visa applicant could come asked puppy delivered dog breeding business review applicant upset visa applicant inform advance left week early australia take care son sick time phoned visa applicant arrived australia call answered employee visa applicant adviser state review applicant shy say interview odds husband visa applicant told interviewer called husband night arrival australia day interview adviser submits argument spouse quite normal genuine relationship adviser state party cohabited visa applicant home shenyang prior registration marriage june 2008 visa applicant parent also lived time think getting foreigner temporary registration card local committee proof cohabitation witness statement provided addressing matter adviser state couple joint trip beijing get document required marriage registration australian embassy june 2008 receipt hotel stayed beijing previously submitted overlooked review applicant went china meet husband family 2 february 2010 returned australia 19 march 2010 visa applicant took train meet review applicant chongqing give time aged mother stayed together home review applicant brother chongqing city stay china period 6 week together looked review applicant mother also lived brother place party left chongqing day returning home australia shenyang party staying together visa applicant put spare car key driving licence review applicant purse convenience forgot took back australia visa applicant posted back adviser submits demonstrates close intimate relationship party adviser state visa applicant ask detail review applicant previous relationship believe would affect relationship found review applicant looked unhappy speaking previous failed marriage review applicant second brother estranged family year thinking disgrace family mention brother visa applicant review applicant mother elder brother elder sister met visa applicant prior marriage visa applicant accompanied review applicant chagsha city comfort review applicant sister lost daughter time adviser state party living together february march 2010 visa applicant accompanied review applicant helped mother law needed inpatient treatment recovery home fulfilled duty son law helping review applicant take care mother relation social aspect relationship adviser submits party held wedding ceremony restaurant visa applicant home town shenyang six table wedding feast 70 80 guest guest visa applicant family friend review applicant mother poor health attend elder brother needed look review applicant elder sister far away chagsha tragically lost daughter attend wedding adviser submits chinese tradition people hold grand wedding second marriage especially party mature age adviser submits party first date visa applicant moved hotel close review applicant home could see often felt relationship developed visa applicant meet future mother law get permission wedding adviser submits review applicant son haoran lin answered visa applicant phone call one occasion passing phone review applicant exchanged greeting relation financial aspect relationship adviser submits visa applicant owner dog breeding kennel review applicant work supervisor hotel party state financial situation fine require financial assistance despite visa applicant remitted money review applicant order make happy expense review applicant china paid visa applicant adviser submits party discussed future plan including possibility visa applicant may open business breeding selling pet done china family finance arranged arrived australia adviser state since spouse visa refused review applicant china visit visa applicant twice remainder time communicate regular phone call statutory declaration review applicant state son believed visa applicant communicated phone sometimes answered phone exchanged greeting however neither party thought interview review applicant confirms declaration many point adviser submits covering statement state busy work socialise cherished time together visa applicant friend elsewhere xinjiang worked long time came australia relative chongqing namely mother elder brother live together review applicant say relation financial aspect relationship husband conservative consider appropriate enquire closely income financial status consider love marriage based financial consideration however husband bought thing house prior marriage paid expense china australia review applicant able maintain son need husband financial support currently visa applicant come australia arrange finance appropriately review applicant state first met chongqing march 2008 lot thing together visa applicant lived hotel near mother place accompanied visit elder sister chagsha 4 day lived together wedding visa applicant home parent also living returned china early 2010 visa applicant came mother house meet lived brother house 6 week review applicant also explains circumstance last phone call party prior interview departmental officer detailed adviser submission review applicant say visa application refused husband felt sad time however firmly believe affection overcome situation sincerity warrant final reunion keep touch telephone husband ring care love diminished apart phone contact visa applicant sends review applicant article including book magazine like miss sends small article like relates incident early 2010 party staying together chongqing put spare car key driving licence one vehicle purse brought australia applicant describes bet visa applicant christmas new year holiday 2009 visa applicant lost sent 100 review applicant describes trip china spring festival 2010 party stayed together elder brother home visa applicant put manager business took care review applicant mother together review applicant say discussed future together want operate business breeding selling pet experience urge learn english first operating business visa applicant statutory declaration address discrepancy interview provides similar information party relationship provided review applicant statutory declaration review applicant son state brief chat visa applicant answered phone say known party relationship since may 2008 mother told friend introduced nice man spent time together son felt quite happy review applicant seemed happier review applicant returned marriage june 2008 looking forward starting new life visa applicant june 2009 review applicant china son became quite ill flu review applicant worried returned home week early son say mother disappointed visa refusal say party still deeply love call frequently visa applicant cousin zhang xiaomin state neighbour friend review applicant living zinjiang party got know introduced zhang xiaomin work visa applicant dog farm facilitated development relationship witness wedding cousin strongly support relationship yang yuqin statement also support relationship say visa applicant employee say asked work spring festival 2010 party could spend time together certification xinshan village police station certifies yin hailin permanent resident yuegang village chongqing city state review applicant visited mother 2 february 18 march 2010 4 january 2012 tribunal wrote review applicant invite comment respond certain information tribunal considered would subject comment response reason part reason affirming decision review particular information advised follows husband gave inconsistent response question interviewed phone relation partner visa application 12 june 2009 see attached record interview information relevant review fact gave conflicting information important aspect relationship first meeting decision get married might indicate tribunal account development relationship fabricated support visa application husband appear well informed interviewed phone relation partner visa application 12 june 2009 see attached record interview information relevant review fact husband example know married twice two brother know food husband liked might indicate tribunal relationship genuine one tribunal relies information making decision may satisfied husband spouse relationship defined themigration regulationsatregulation 1 15a attached may grant husband partner visa review applicant invited comment 1 february 2012 27 january 2012 adviser submitted document previously submitted 23 december 2010 advised required extension time submit evidence extension time agreed review applicant advised document submitted 27 february 2012 27 february 2012 document submitted statement lijia yin review applicant sister dated 22 february 2012 stating anaesthetist urumqi hospital giving telephone contact number state remember review applicant began relationship visa applicant recall leave chagsha april 2008 party came see train chongqing lost daughter accident party lived home four day met party several time brother home chongqing party lived mother sick subsequently died brother told review applicant returned australia visa applicant often came visit later review applicant returned chongqing see brother party stayed hotel sister state visa applicant supported review applicant many recent sad event family find easy see deep relationship party copy original document translation certificate cadre central military committee people republic china review applicant sister lijia yin issued 1 september 2007 valid 31 december 2011 stating civilian rank 3 co chief superintendent nurse urumqi general hospital tax invoice dated 17 august 2011 showing party paid chongqing bosheng hotel accommodation alien accommodation registration warrant stating applicant registered stay yueguang village dadukou district chongqing 6 december 2010 issued xinshancun police station document showing registered stay older brother chongqing 19 november 21010 8 december 2010 boarding pass relating review applicant return flight hong kong chongqing august 2011 train ticket pass shenyang chongqing chengdu december 2010 june july 2011 death certificate review applicant mother died 25 november 2010 express mail receipt good sent visa applicant review applicant 10 january 15 june 25 june 30 july 2011 6 receipt parcel sent visa applicant review applicant 2011 international call detail phone call party period november 2010 january 2012 showing frequent call substantial duration department movement record indicate review applicant departed australia 9 march 2008 returned 9 may 2008 left australia 22 june 2008 returned 28 june 2008 left australia 27 may 2009 returned 10 june 2009 left australia 2 february 2010 returned 19 march 2010 left australia 18 november 2010 returned 9 december 2010 left australia 10 august 2011 returned 18 august 2011 finding reasonsfor reason follow tribunal satisfied basis material visa applicant time application spouse review applicant within meaning r 1 15a regulation tribunal satisfied basis evidence submitted passport citizenship certificate evidence departmental record review applicant australian citizen marriage visa applicant review applicant registered china 26 june 2008 according party evidence documentary evidence submitted tribunal therefore find time application visa time decision visa applicant review applicant married marriage recognised valid purpose act therefore satisfy requirement r 1 15a 1a married relationship forming opinion whether married relationship considering whether mutual commitment shared life husband wife exclusion others whether relationship genuine continuing whether live together live separately apart permanent basis required r 1 15a 1a b tribunal regard circumstance relationship includes evidence financial social aspect nature visa applicant review applicant household commitment set r 1 15a 3 financial aspect relationshipthe evidence tribunal visa applicant paid expense review applicant visit china paid household item accommodation shared gave number gift including gift cash review applicant sent gift visa applicant party live separate country employed review applicant stated need financial help stated visa applicant discussion financial business plan come australia given party circumstance tribunal accepts financial aspect relationship consistent married couple given live apart given weight shared financial asset nature householdthe party spent limited amount time together evidence party witness indicate since marriage party lived together china several occasion since 2008 review applicant visited china since march 2008 met visa applicant stayed may 2008 june 2008 may june 2009 february march 2010 november december 2010 august 2011 represents total time party together 4 month visa applicant aware circumstance review applicant son review applicant son stated happy supportive relationship similar evidence given review applicant sister visa applicant cousin introduced party review applicant sister given detailed evidence personal knowledge party cohabitation activity together china evidence tribunal accepts party household limited period party together consistent spouse social aspect relationshipa substantial amount evidence provided third party party represent important married particular close family member party aware relationship expressed strong support photo party together friend appear tribunal indicate party close affectionate relationship family friend aware photographic evidence witness statement indicate party undertaken joint social activity china tribunal satisfied evidence social aspect relationship consistent married couple nature person commitment otherthe party claimed tribunal accepts met march 2008 quickly established relationship affection detail provided review applicant sister indicate visa applicant strong emotional support review applicant familiar personal circumstance review applicant visited visa applicant five occasion since visit china first met visa applicant phone record submitted party indicate maintained regular communication past four year party evidence indicates trust well aware others current circumstance given evidence made plan future together australia evidence tribunal find party commitment existed four year supported frequent regular contact nature commitment one consistent expected spouse indicated also committed future together relevant considerationsthe delegate concerned discrepancy evidence given party interview particularly view fact submitted significant amount evidence support aspect relationship since decision made party adviser review applicant submitted detailed evidence explaining reason inconsistency evidence well providing significant amount additional information third party relationship tribunal satisfied explanation inconsistency evidence considers substantial additional documentary evidence relationship support explanation tribunal satisfied time application time decision visa applicant review applicant mutual commitment shared life husband wife exclusion others relationship genuine continuing therefore meet requirement rr 1 15a 1a b 1 15a 1a b ii married relationship conclusionsfor reason tribunal find visa applicant satisfies requirement cl 309 211 cl 309 221 regulation decisionthe tribunal remit application partner provisional class uf visa reconsideration direction visa applicant meet following criterion subclass 309 spouse provisional visa cl 309 211 schedule 2 regulation cl 309 221 schedule 2 regulation patricia leehymember

Cashman v Wellington SC [2008] VCAT 2439 (4 December 2008).txt

cashman v wellington sc 2008 vcat 2439 4 december 2008 last updated 16 december 2008victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference no p1215 2008p1432 2008catchwordsanimal breeding farming zone noise impact effluent potential attraction wild dog fox epa kennel guideline p1215 2008applicantsrespondentssuzanna kim cashman otherse j hildebrant othersfiona david douglasp1432 2008applicantsrespondentsfiona david douglassuzanna kim cashman otherse j hildebrant othersresponsible authoritywellington shire councilsubject landr105 freeman lane stratfordwhere heldsalebeforepeter leary memberhearing typehearingdate hearing29 october 2008date order4 december 2008citationcashman v wellington sc 2008 vcat 2439order1 responsible authority decision varied responsible authority must issue permit use development dog breeding maximum 45 adult dog accordance endorsed plan condition 3 condition included appendix 1 attached decision peter learymemberappearances suzanna kim cashman othersfor e j hildebrant othersfor f douglasms suzanna kim cashmanms jane hildebrantms fiona douglasfor responsible authoritymr john traa town plannerreasonsfiona david douglas applied permit establish operate dog breeding enterprise maximum 45 dachshund dog responsible authority issued notice decision grant permit 22 condition fiona david douglas lodged appeal imposition condition 16 17 two condition state dog allowed run within hour 9am 5pm dog removed kennel complex must restrained leash equivalent time suzanna kim cashman jane hildebrant others separately lodged application review council decision seek refusal permit ground review identical stated proposal contrary objective planning outlined theplanning environment act 1987 proposal inconsistent vision strategic objective wellington planning scheme articulated municipal strategic statement ms viz rural area amenity council plan proposed use development consistent fair orderly planning area proposed use development detrimental impact amenity area proposed use development detrimental impact rural farming activity area subject land suitable proposed use development proposed use development beyond reasonable expectation surrounding neighbour management water waste inadequate accordance dpi guideline proposed use development unreasonable social economic environmental impact area scale proposed use development inappropriate unsustainable site proposal consistent principle best practice animal welfare wellington shire council lack resource monitor enforce condition permit issued viewing site hearing submission consider following matter need determined proposal inconsistent state local planning policy proposal responded epa noise kennel guideline sufficient measure undertaken prevent unreasonable escape noise effluent site proposal cause adverse impact amenity farming area condition imposed responsible authority reasonable capable enforcement purpose soughtit proposed establish operate dog breeding facility maximum 45 adult dachshund dog building would located 264 metre north southern boundary 130 metre south northern boundary applicant proposes erect new kennel building related run accommodate dog kennel rectangular shed central aisle external run attached structure 33 metre long 6 5 metre wide contain 21 kennel room individual access individual canopy overhang also individual staff lounge dog food preparation room washing whelping room kennel drained centre drain wash water direct connection septic system part building 2 6 metre high central roof pitch rising maximum height 4 5metres external wall masonry insulated roof waste water cleaning effluent treated disposed requirement council environmental health officer applicant advised located within rear paddock approximately 80 metre northwest dwelling external run extending 25 metre deep around run localitythe subject site located northern side freeman lane run east boundary road 7 5km north stratford township subject site rectilinear depth 400 metre freeman lane frontage extending along freeman lane 1100 metre currently developed dwelling central position various grazing paddock extensive planting particularly along southern section fall north south undulating manner land opposite south freeman lane occupied cashman cattle farm dwelling related farming infrastructure locality gently undulating dry farm country immediate area generally cleared pasture wider area contains parcel native bushland main activity cattle grazing cattle sheep goat horse freeman lane southern section boundary road typical sealed country road immediate area majority tree located within road reserve property area size owner usually offsite employment utility supplied area telecommunication power dwelling attached farm agricultural us dwelling located 500 metre proposed building exception cashman house 350 metre proposed kennel building planning control policy wellington planning schemethe site surrounding land farming zone overlay apply various state local planning policy relevance 1 permit required use land dog breeding animal keeping animal husbandry form part agriculture group nesting diagram clause 75 02 planning scheme animal keeping five animal right use farming zone therefore five animal requires permit building work also required clause 35 07 4 associated use insection 2of clause 35 07 1 relevant purpose farming zone implement state planning policy framework local planning policy framework including municipal strategic statement local planning policy provide use land agriculture encourage retention production agricultural land encourage non agricultural us particularly dwelling adversely affect use land agriculture protect enhance natural resource biodiversity area specific state local planning policy directed dog breeding although noise control guideline tg302 92 directed dog kennel epa referred decision review hearingat review hearing party provided detailed written submission tabled photograph extract document advised party viewed site morning review hearing basis decisionis proposal contrary state local planning policy state local planning policy framework area focus encouragement productive agricultural land discouraging non agricultural us particularly dwelling adversely affect use land agriculture proposed dog breeding enterprise many respect policy neutral permit required triggered five dog bred site assessment therefore need examined proposal affect farming area determine whether impact either agricultural productivity land surrounding farm land agree responsible authority dog breeding legitimate rural activity farming zone appreciated farmer may like sound dog barking nonetheless farming activity also generate noise farm machinery tractor forth noisy operation whilst operation may temporary nonetheless part parcel farming zone whilst resident may incorrectly assume entitled peaceful existence sedate rural enclave expectation present policy vision applicable farming zone mr cashman argued effluent dog urinating occasionally paddock flow south contaminate dam family cattle farm south subject site m douglas refuted claim argued urine exercising dog paddock absorbed ground asserted cashman cattle likely contaminate dam instance evidence called party observe kennel surround drained proper drainage point treat waste whilst dog access run day time possible walk dog around paddock separately chance high concentration urine effluent dog walking exercising seems remote site 40 hectare unless qualified evidence contrary prepared accept m cushman assertion based claim separation paddock location dam cashman property south freeman lane relative site context difficult make finding urine contamination walking exercise small dog occur extent claimed observation proposed use development reasonable satisfied issue would adversely impact farming practice area proposal adverse effect farming area reason excessive noise mr cashman m hildebrant highlighted proposed kennel facility meet epa guideline dog kennel document referred noise control guideline tg302 92 section state dog kennelsthe problem caused perpetual barking dog known exist distance far 500 metre actual source following criterion dog kennel therefore assembled limit physical stimulus dog well outbreak noise kennel kennel located least 500 metre away residential area fully enclosed acoustically baffled kennel available house particularly noisy animal ratio 1 15 electronic masking noise device provided reduce audible stimulus dog kennel constructed visually screen stimulus dog animal traffic passer access kennel restricted solely stafffeeding dog restricted within day time hour 7 00am 6 00pm exercise dog may performed within hour 9 00am 5 00pm responsible person must available site 24 hour per day kennel constructed material provide appropriate reduction emission noise material masonry cement sheeting would provide suitable structural basis kennel positioned utilize ability topography reduce noise note noise originating dog kennel may assessed using state environment protection policy control noise commerce industry trade n 1 document distinguish breeding kennel boarding kennel must document like policy document intended guide exercise discretion use word rather must absence local 2 state planning policy useful start acknowledged kennel 350 metre cashman house located 500 metre house farming area guideline recommend separation distance 500 metre aresidential area important note residential area rather farming area mr traa advised locality contains various grazing us whilst farming us may sole income particular family appearance function provide rural environment farming dominant use quite inappropriate describe residential area following therefore quite inappropriate argue kennel within 500 metre dwelling breach epa guideline assumption expectation site residential area therefore subject residential amenity clearly misunderstanding fundamental planning terminology agree point 2 epa guideline document recommends fully enclosed acoustically baffled kennel available house particularly noisy animal ratio 1 15 section 9of guidelinesstate kennel constructed material provide appropriate reduction emission noise material masonry cement sheeting would provide suitable structural basis kennel positioned utilise ability topography reduce nose actual internal layout site designed door open outwards thereby limiting opportunity stimulus dog handler plan accompanying application showed kennel masonry construction treated reduced escape noise consider detail supplied construction material design building ensure escape noise kennel limited accordingly seems fundamental breach guideline complied relevant similarly agree kennel constructed visually screen stimulus dog animal traffic passer particular location high amount passing traffic fact sealed section freeman lane end east subject property located well away road inability screen fencing landscaping ensure limited stimulus dog animal passer epa guideline refer dog kennel need distinction boarding kennel dog unfamiliar environment boarded temporarily therefore likely bark environment dog specifically housed purpose breeding irrespective distinction satisfied proposed building meet generic reference dog kennel reasonable measure control escape noise satisfied wording condition 20 notice adequately address acoustic attenuation placed new wording condition 1 provide information plan prior commencement building inserted new condition 8 require proper acoustic testing ensure appropriate noise attenuation including report follow inspection building completed qualified acoustic engineer also agree limited access kennel feeding exercise limited similar manner whilst agree dog must limited exercise 9am 5pm time 8am 6pm usual daylight time location seems quite reasonable use introduce unreasonable amenity impact objector raised substantial concern dog kennel attract wild dog fox area whilst appreciate may occur dog located within masonry building 6pm day night dog enclosed behind 1 8 metre high fence run expert evidence suggest kennel increase incidence wild dog fox say happen need qualified cause effect established credible mean make finding use definitely add wild dog problem term roaming dog seems unfair blame proposed facility problem may already exist understandable people concerned however seems matter council local law officer involved tracking owner dog assisting elimination ferrel dog vermin condition acceptable council imposed condition collection wastewater waste material faeces consider condition need tightening ensure proper plan documentation suppliedpriorto commencement development address issue advised council health officer satisfied site capable absorbing treating waste associated use could treated appropriate effective septic system rewritten comprehensive condition ensure area kennel wash area connected appropriate drainage system appropriate treatment section evidence could provided site area 47 hectare area mentioned earlier consider little justification suggest would substantial runoff urine deposited dog occasional walk outside run even run inserted condition requiring vegetation planting area north existing vegetation help shield facility visually passer help obscure stimulus dog would seem quite impractical require screening probably best addressed closer fence line manner consistent vegetation cover immediately north freeman lane roadway condition 16 17i modified condition relating ability keep dog run may present 8am 6pm whilst applicant may wish much greater hour operation consider need balance struck proposed use likelihood escape noise barking particularly early morning similarly also provided condition allowing operator walk dog around property provided effective control handler six one time would ensure handler dog could effectively manage dog remembering dachshund quite capable walked controlled leash somewhat perplexed wording condition 17 understand dog would need controlled effective control handler taken kennel complex omitted condition 20 5 identical wording instead required proper design treatment building using acoustic engineer assist selection material construction furthermore consider unreasonable establishment size require acoustic engineer return building erected take testing quantify fine tune building necessary ensure noise escaping kennel unreasonable context farming area approach provides greater certainty applicant responsible authority objector step taken contain unreasonable noise similarly matter relating waste water waste treatment addressed together also included within site management plan requirement document operational issue rather individually nominated permit condition management plan nominates done done case complaint problem conclusionfor abovementioned reason conclude responsible authority decision generally correct however fine tuned many condition make clearer party responsibility applicant conducting dog breeding establishment satisfied revised wording provides effective understanding condition confident met therefore enforced peter learymemberappendix 1before development start amended plan satisfaction responsible authority must submitted approved responsible authority approved plan endorsed form part permit plan must drawn scale dimension three copy must provided plan must generally accordance plan submitted application specified plan modified show proper scale dimensioned drawing scale either 1 100 1 200 based plan elevation date stamped february 2008 showing kennel building run fence gate tank kennel must closer 264 metre freeman lane property boundary closer 130 metre northern property boundary b kennel constructed solid masonry material roofing internally treated limit escape noise c site plan scale 1 500 1 100 showing location building dam planting drainage facility drainage line dimension nominated minimum distance kennel property boundary location buffer planting compliment existing vegetation north freeman lane e documented effluent treatment including cut drain directs stormwater around kennel facility including run waste water disposal field treatment area f acoustic treatment kennel building must include accompanying report acoustic engineer outlining recommended acoustic measure within building prevent escape noise kennel building prior occupation kennel building owner must lodge responsible authority site management plan site management plan must outline general conduct dog breeding enterprise including measure limit escape noise kennel particularly night time may include use electronic masking device similaran incident register complaint incident arising conduct business measure taken remediate issuestandard measure disposal faeces waster water material derived kennel operationmeasures exercising dog within run outside run appropriate supervisionmaintenance drainage waste treatment equipment infrastructuremethods removal waste material including faecesonce management plan endorsed responsible authority shall form part permit must complied satisfaction responsible authority hour operation following practice within dog breeding enterprise limited feedingbetween 7 00am 6 00pm day b use dog rundogs may allowed run hour 8am 6pm day c othernot 6 dog one time per handler may walked outside dog run provided direct control handler hour 8 00am 6 00pm day satisfaction responsible authoritythe kennel related facility must drained satisfaction responsible authority includes providing plan documentation cut drain constructed direct stormwater around kennel facility including run waste water disposal field satisfaction responsible authority collection waste water including absorption drain collection pit prevent escape effluent beyond site satisfaction responsible authority 45 adult dog may kept kennel complex one time access kennel must restricted permit holder person authorised permit holder direction supervision permit holder authority satisfaction responsible authority within 30 day completion kennel occupation use applicant must table report suitably qualified acoustic engineer outline measure undertaken prevent escape unreasonable noise provide acoustic testing demonstrate work installed appropriately work unsatisfactory acoustic engineer must provide written report responsible authority outlining measure undertaken time frame implementing measure additional buffer planting identified endorsed plan must planted within 6 month occupation kennel building satisfaction responsible authority permit expire development use commenced within two 2 year date permit b kennel building related work completed within two 2 year date commencement building work responsible authority may extend period referred request made writing permit expires within three 3 month expiry date 1 clause 15 05 noise abatement clause 21 06 agricultural timber production zone requirement clause 35 07 clause 65 decision guideline 2 example casey planning scheme contains clause 22 10 intensive animal husbandry policy

Bhandari v Minister for Immigration & Anor [2016] FCCA 2782 (28 October 2016).txt

bhandari v minister immigration anor 2016 fcca 2782 28 october 2016 last updated 31 october 2016federal circuit court australiabhandari v minister immigration anor 2016 fcca 2782catchwords migration application review migration review tribunal tribunal application temporary business entry class uc subclass 457 visa whether tribunal acted unreasonably refusing application adjournment review enable applicant time obtain alternative sponsor jurisdictional error legislation migration act 1958 cth s 140gb 348 353 360 1 363 1 b migration regulation 1994 cth cl 457 223 2 457 223 4 457 223 4 457 223 4 457 223 4 iii 457 223 4 case cited minister immigration border protection v eden 2016 fcafc 28minister immigration border protection v singh 2014 fcafc 1minister immigration citizenship v li 2013 hca 18 2013 249 clr 332applicant goldy bhandarifirst respondent minister immigration border protectionsecond respondent migration review tribunalfile number syg 2466 2014judgment judge manousaridishearing date 23 september 2015delivered sydneydelivered 28 october 2016representationcounsel applicant mr kumarsolicitors respondent mr l dennis ofsparke helmore lawyersorders 1 application dismissed 2 administrative appeal tribunal substituted migration review tribunal second respondent federal circuit courtof australiaat sydneysyg 2466 2014goldy bhandariapplicantandminister immigration border protectionfirst respondentmigration review tribunalsecond respondentreasons judgmentintroductionbefore court application judicial review decision second respondent tribunal affirming decision delegate first respondent minister grant applicant temporary business entry class uc subclass 457 visa 457 visa applicant relies two ground first tribunal acted unreasonably refusing applicant request time organise new sponsor second ground relates manner tribunal considered one criterion applicant satisfy need consider second ground later show tribunal rely applicant satisfying criterion affirming delegate decision backgroundto entitled grant 457 visa applicant satisfy criterion specified cl 457 223 2 cl 457 223 4 schedule 2 themigration regulation 1995 cth regulation relevant application requirement prescribed cl 457 223 4 namely nomination occupation relation applicant approved 140gbof themigration act 1958 cth requirement prescribed cl 457 223 4 iii namely approval nomination ceased provided inregulation 2 75 requirement prescribed cl 457 223 4 namely position associated nominated occupation genuine applicant nominated shinemore pty ltd shinemore position facility manager nomination however expired january 2014 response tribunal letter dated 15 april 2014 noting requirement granting 457 visa applicant subject approved nomination ceased applicant provided tribunal evidence new nomination application occupation relation applicant lodged shinemore 28 april 2014 hearing 5 june 2014 tribunal asked applicant whether latest nomination approved applicant said expected decision would made early july 2014 tribunal agreed wait department immigration border protection department finalised matter tribunal informed applicant however nomination would approved sponsor would appeal tribunal would affirm delegate decision grant applicant 457 visa tribunal agreed postpone making decision 4 july 2014 4 july 2014 applicant representative informed tribunal department refused shinemore nomination application department refused shinemore application satisfied nominated occupation facility manager genuine position according file note written officer tribunal 10 july 2014 applicant telephoned tribunal advise new sponsor request given time await outcome new nomination application 1 officer informed applicant tribunal member yet made decision applicant welcome put writing request applicant email sent tribunal 10 july 2014 error original 2 would like request regarding case case mrt refused department 457 visa nomination approved first time refused nomination time job title facility manager last one month tried apply another job got three interview two sponsor put file new nomination one 457 approved said talk solicitor get positive response want request could kindly give chance apply another nomination new employer regional area one motel manager another restaurant manager happy hire position business tribunal responded letter dated 25 july 2014 3 writing application review made relation decision refuse grant temporary business entry class uc visa tribunal considered evidence provided confirming sponsor application approval nomination refused also considered request time decided agree proceed make decision basis evidence 7 august 2014 tribunal affirmed delegate decision evidence tribunal approved nomination occupation relating applicant standard business sponsor approval nomination ceased tribunal referred applicant request time organise new sponsor summarising ground applicant relied seeking time tribunal said 4 tribunal considered request formed view insufficient evidence approved nomination forthcoming still looking employer sponsor evidence new nomination application lodged tribunal also said 5 applicant requested tribunal postpone making decision pursued employment sponsorship option tribunal considered request agreed provide applicant time evidence provided vague lacking detail tribunal satisfied approved nomination respect applicant foreseeable future tribunal noted issue whether applicant met requirement cl 457 223 4 schedule 2 regulation required applicant intention perform occupation genuine position associated nominated occupation genuine tribunal said necessary determine question applicant satisfy cl 457 223 4 schedule 2 ground 1 applicationthe first ground amended application follows tribunal unreasonable procedurally unfair failing allow applicant additional time find submit nomination alternative sponsor failing give applicant opportunity present new nomination employer particular applicant requested hearing adjourned enable present nomination cb186 187 also tribunal ii nomination sponsor essential application succeed subclass iii tribunal declined cb 201 28 adjourn proceeding enable applicant obtain relevant nomination iv tribunal unreasonable unfair refusing application provide nomination applicant counsel written submission submitted tribunal gave applicant opportunity address applicant proposed obtain alternative sponsor 6 tribunal made attempt enquire attempt applicant making secure alternative sponsor 7 tribunal gave applicant hearing issue 8 tribunal failed engage applicant request 9 andthe tribunal conclusion evidence applicant relied adjournment vague lacking detail arbitrary lacking proper engagement request adjourn 10 principlesthe outcome challenge based legal unreasonableness depend application principle emerge minister immigration citizenship v li 11 earlier authority discussed rather mere factual similarity difference 12 number matter note first power tribunal exercised said exercised unreasonably power i 363 1 b themigration act 1958 cth act provides tribunal may adjourn review time time second proposition power must exercised reasonably 13 third assessing whether decision legally unreasonable requires court evaluate decision determine whether regard subject matter scope purpose relevant statutory power decision posse one quality conveyed word expression plainly unjust arbitrary capricious irrational lacking evident intelligible justification obviously disproportionate court concludes decision posse one attribute decision held legally unreasonable 14 fourth decision claimed unreasonable supported reason reasonableness assessed reference actual reasoning decision maker adopted reaching decision outcome decision 15 circumstance decision unreasonable lack intelligible justification intelligible justification must lie within reason decision maker gave exercise power 16 application principlesin applying principle must first identify subject matter scope purpose ofs 363 1 b act subject matter adjournment review time time scope purpose power must assessed least context ofpart 5of act three provision particular relevance fundamental power conferred bys 348of act requires tribunal review application review properly brought next i 360 1 act requires tribunal invite applicant appear tribunal give evidence present argument relating issue arising relation decision review finally i 353of act time tribunal decision required tribunal carrying function act pursue objective providing mechanism review fair economical informal quick identified subject matter scope purpose ofs 363 1 b act next consider reason tribunal gave granting applicant additional time tribunal found insufficient evidence approved nomination forthcoming applicant still looking employer sponsor evidence new nomination application lodged reason tribunal found insufficient evidence considered applicant evidence matter vague lacking detail whether applicant given evidence relevant assessing whether applicant would able secure alternative sponsor time would able matter relevant tribunal exercise discretion conferred bys 363 1 b act relevant objective providing economical quick review also relevant conducting review tribunal satisfied would able review decision within finite time could satisfied unless basis concluding point future tribunal would able review application given relevant exercise tribunal power unders 363 1 b act consider whether applicant would able obtain alternative sponsor time applicant would able next question whether reasonably open tribunal conclude applicant provide sufficient evidence enable tribunal conclude applicant would able obtain alternative sponsor foreseeable future opinion reasonably open tribunal conclude reason gave applicant identify name two employer applicant claimed would sponsor specify applicant interviewed two employer claimed willing employ whether two employer willing actually apply sponsor applicant applicant anticipated nomination would made employer standard business sponsor applicant expected employer make application applicant submits duty act reasonably required tribunal invite applicant hearing hearing question applicant step taken obtain alternative sponsor time expected agree submission applicant put tribunal evidence submission relied seeking adjournment nothing material could reasonably suggest applicant expected reasonable ground expecting would given opportunity heard tribunal made decision applicant request adjournment applicant seeking adjournment applicant put tribunal material submitted ought reasonably led tribunal grant adjournment sought even contrary conclusion tribunal required provide applicant hearing could reasonably made decision adjournment application question would arisen whether applicant would entitled relief applicant put evidence court enquiry told tribunal made evidence show applicant prospect obtaining alternative sponsor tribunal given applicant opportunity heard application adjournment may relevant question whether remedy granted absence evidence possible say whether applicant would able provide detailed information information provide tribunal tribunal found insufficient turn may relevant whether tribunal given applicant opportunity heard adjournment application applicant would given information could led tribunal made different decision one made necessary however determine question ground 1 therefore fails ground 2 applicationground 2 claim tribunal fell error misdirected inquiry relation position facility manager ground appears directed question tribunal asked applicant position shinemore question directed whether applicant satisfied cl 457 223 4 schedule 2 regulation even tribunal misdirected question asked relation applicant satisfaction cl 457 223 4 schedule 2 regulation result tribunal making jurisdictional error already noted tribunal found necessary consider whether applicant satisfied cl 457 223 4 schedule 2 regulation ground 2 therefore also fails dispositioni propose dismiss application also propose order administrative appeal tribunal substituted tribunal second respondent certify preceding twenty five 25 paragraph true copy reason judgment judge manousaridisdate 28 october 2016 1 cb185 2 cb186 3 cb191 4 cb201 25 5 cb201 28 6 applicant outline submission 18 7 applicant outline submission 18 8 applicant outline submission 18 9 applicant outline submission 18 10 applicant outline submission 24 11 2013 hca 18 2013 249 clr 332 12 minister immigration border protection v singh 2014 fcafc 1at 42 13 minister immigration citizenship v li 2013 hca 18 2013 249 clr 332 14 minister immigration border protection v eden 2016 fcafc 28at 65 15 minister immigration border protection v singh 2014 fcafc 1at 47 16 minister immigration border protection v singh 2014 fcafc 1at 47

1312382 [2014] RRTA 192 (13 January 2014).txt

1312382 2014 rrta 192 13 january 2014 last updated 21 march 20141312382 2014 rrta 192 13 january 2014 decision recordrrt case number 1312382country reference china prc tribunal member bruce maccarthydate 13 january 2014place decision sydneydecision tribunal affirms decision grant applicant protection class xa visa reference appearing square bracket indicate information omitted decision pursuant tosection 431 2 themigration act 1958and replaced generic information allow identification applicant relative dependant statement decision reasonsapplication reviewthis application review decision made delegate minister immigration refuse grant applicant protection class xa visa unders 65of themigration act 1958 act applicant claim citizen china prc applied department immigration visa november 2012 delegate refused grant visa july 2013 theapplicant appeared tribunal 7 january 2014 give evidence present argument tribunal hearing conducted assistance interpreter mandarin english language applicant represented relation review registered migration agent consideration claim evidencethe criterion protection visa set in 36of act schedule 2 themigration regulation 1994 regulation applicant visa must meet one alternative criterion 36 2 aa b c applicant either person respect australia protection obligation refugee criterion complementary protection ground member family unit person person hold protection visa section 36 2 provides criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention person found meet refugee criterion 36 2 may nevertheless meet criterion grant protection visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence applicant removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion accordance ministerial direction 56 made 499 act tribunal required take account policy guideline prepared department immigration pam3 refugee humanitarian complementary protection guideline pam3 refugee humanitarian refugee law guideline country information assessment prepared department foreign affair trade expressly protection status determination purpose extent relevant decision consideration issue case whether applicant become christian whether would face harm reason return prc following reason tribunal concluded decision review affirmed applicant claimsaccording applicant came australia march 2008 student visa time arrival visa valid march 2011 applicant discontinued study early 2009 quarrelled parent later stopped asking financial support started work construction site realising expiry date visa approaching approached migration agent february 2011 help renew visa find visa cancelled decision review state visa cancelled september 2010 cancelled january 2011 reference deleted applicant attempted lodge application student visa october 2012 application invalid bar 48a act advised accordingly october 2012 reference deleted 2011 became interested christianity influenced friend christian angered parent china buddhist changed phone number kept ringing said afraid parent would punish returned china addition told chinese government persecutes christian attend approved church applicant interviewed delegate march 2013 summary interview set delegate decision record page 6 8 cd recording interview folio 47 department file tribunal listened recording satisfied delegate summary generally present fair account matter discussed hearing 7 january 2014 applicant told tribunal wish make amendment written claim set application said document supporting evidence wished submit later hearing applicant confirmed reason unwillingness return china beyond relating religion consequent fear harm hand family government tribunal said understood applicant disagreed delegate decision wanted know applicant took issue delegate summary evidence particularly oral evidence interview march 2013 set decision record indicated take issue accuracy summary hearing applicant unable demonstrate anything extremely superficial knowledge christianity tribunal asked applicant articulate belief distinguished christian follower world religion said believed jesus christ however asked expand said belief christian say belief tribunal asked applicant explain mean personally christian responded believed jesus christ elaborate tribunal asked say belief said know respond tribunal asked might say friend friend become christian said personal issue something happened first went church unable explain something say people church told lot thing previously known though said read bible time unable name fifth book new testament saying forgot said could remember book similarly tribunal asked applicant recount one parable jesus explain understanding meaning said could remember tribunal pointed various book bible variety form history setting account individual group people said relationship god contained prophecy contained collection wise saying others contained song poem praise first book new testament first category set account people said however majority book new testament different kind asked applicant explain nature book said book told people benefit would achieve believed jesus tribunal acknowledged true said could said almost book new testament said looking explain unique majority book new testament unable respond period silence tribunal elected move issue tribunal commented applicant level knowledge superficial appear consistent genuine commitment christianity background limited knowledge christianity tribunal examined aspect applicant evidence claim applicant oral evidence tribunal time contradictory example tribunal spoke applicant evidence delegate breaking bread applicant gave inconsistent evidence one stage denied said took part communion however asked directly take part communion said confirmed answer twice however tribunal asked nature activity unable participate baptised answer unable go forward share food tribunal understands reference sharing communion another inconsistency arose tribunal discussed applicant attendance church australia applicant initially told tribunal break attendance three month resumed attending church october 2011 since attended nearly every sunday however later hearing tribunal asked whether baptised yet said baptised attending church time last attendance two month previously third inconsistency arose tribunal discussed nature bible claimed read asked name person given said mother friend m said know name tribunal pointed given evidence delegate provided specific name woman saying know name applicant responded given delegate friend name tribunal said recalled told delegate mother friend named m b applicant responded friend mother surname m b tribunal pointed minute earlier said known name saying knew surname replied simply addressed auntie inquired name name person gave bible read tribunal opinion important issue however regard significant applicant gave inconsistent evidence point first told tribunal know woman name soon said knew surname tribunal also note applicant gave inconsistent evidence delegate tribunal regarding woman surname inconsistency call question applicant credibility applicant oral evidence tribunal consistent oral evidence delegate point tribunal raise contradiction applicant pursuant 424aa act first told tribunal never attended christian church service gathering china tribunal pointed later denied attended church gathering china initially said attended church gathering uncle caught chinese authority information would part reason affirming decision review suggested prepared give false information experience china corrected information quizzed greater detail could lead tribunal doubt truth statement made applicant seek time comment invited said comment interview misinterpreted said told delegate uncle son arrested gathering tribunal accept explanation discussed applicant hearing previously told tribunal take issue delegate summary oral evidence included statement originally claimed arrested second applicant told tribunal first attended christian church gathering australia middle 2011 said attended 10 time year although period attend said attended twice parent became angry told stop attending stopped three month resumed attendance october 2011 since october 2011 attended nearly every sunday tribunal pointed oral evidence delegate contradicted said told delegate first attended church 2010 attended twice attended time 2011 told delegate latter half 2012 started attending church regular basis tribunal said contradiction evidence regarding attendance pattern could lead tribunal doubt presented true picture involvement christian church applicant seek time respond information put attributed contradiction two error part interpreter interview delegate tribunal said found difficult accept given said earlier take issue summary oral evidence delegate explicitly mentioned said pattern attendance delegate decision record containing summary service migration agent assist identify problem delegate decision applicant said yet baptised attended church long time last time two month previously said stopped attending family issue contact family throughout 2012 resumed contact around time spring festival early 2013 pressure family abandon christianity recommenced broke contact stopped going church appears counterintuitive broken contact family wish attend church would reason discontinue attendance alternatively chose discontinue attendance church would seem provided reason reconcile family tribunal put point said reconciliation simply stopped attending church pressure said said mean might start attending church future student visa applicant came australia initially valid march 2013 visa document passport indicates visa subject condition 8202 required applicant met requirement course study applicant would known suspending study early 2009 stated application violation one condition visa placing risk visa cancelled even aware visa officially cancelled would known possibility event would known visa expired march 2011 date illegally australia without valid visa hearing tribunal asked applicant genuinely christian feared returning china reason sought protection much earlier november 2012 applicant said cheated migration agent 2011 applied new visa 2012 find original visa cancelled tribunal regard satisfactory explanation ignores point original visa would expired march 2011 even cancelled date applicant become active christian church late 2012 believed would cause difficulty china tribunal would expected sought protection much earlier tribunal told applicant hearing could conclude start attending church regularly late 2012 could regard significant start attending church regularly around time sought protection could conclude attended church australia order strengthen claim protection reached conclusion would obliged disregard conduct australia attending church pursuant 91r 3 act applicant denied attendance church strengthen claim protection hearing applicant said return china would wish give effect religion worshipping small house church around 10 people tribunal said hundred thousand christian fujian attended officially recognised church asked believed would able worship one church response applicant said know situation like area village different kind people attend government church believe government tribunal said may suggested attend church also give effect belief jesus applicant asserted whereas government one sort approved church catholic christian even people go genuine christian attended house church confirmed saying believed one sort government approved church christian case tribunal pointed two separate entity one catholic one protestant applicant said never attended church genuine christian village attend family gathering country research discussed applicant indicates although policy always honoured state administration religious affair sara acknowledged family friend right since 2005 meet home worship prayer bible study without registering government house church meet openly regularly membership several hundred thousand religious policy applied relatively liberally applicant home province fujian recent report member small unregistered house church harassed fuqing city applicant lived fujian province generally fujian rarely mentioned report breach religious freedom u department state united state commission international religious freedom amnesty international human right watch various christian ngo report china see u department state 2013 international religious freedom report 2012 china 27 may executive summary http www state gov document organization 208434 pdf accessed 11 december 2013 u commission international religious freedom 2012 u commission international religious freedom 2012 annual report march p 145 http www uscirf gov image annual 20report 20of 20uscirf 202012 2 pdf accessed 11 december 2013 lambert 2006 china christian million monarch book attachment 3 survey church growth province province fujian province pp240 241 simple google search revealed numerous church operating fuqing tends support country information fujian authority relatively tolerant activity small unregistered church would suggest even applicant return home province join small house church around 10 people chance would face harm reason would extremely remote response information applicant said majority people village buddhist believe christian gathering illegal said people reported christian would arrested member family arrested 2011 however tribunal pointed seemed inconsistent written claim australia 2011 changed evidence said arrest took place 2007 applicant extremely superficial knowledge christianity see paragraph 14 18 tribunal accepts applicant claiming involved christian church lengthy period time would still expect person came embrace christianity year ago two year ago according written claim able articulate much nature religion background limited knowledge religion tribunal considered internal contradiction evidence tribunal paragraph 20 23 inconsistency oral evidence tribunal given delegate paragraph 24 29 failure baptised fact currently attending church paragraph 30 31 failure seek protection late 2012 paragraph 32 34 taking factor account tribunal find applicant genuine commitment christianity tribunal prepared accept applicant attended church australia accept 2012 satisfied applicant engaged conduct attending church australia otherwise purpose strengthening claim refugee within meaning refugee convention amended refugee protocol therefore pursuant provision 91r 3 act tribunal disregard conduct follows tribunal finding applicant genuine commitment christianity tribunal accept applicant way conflict family matter related religion also follows tribunal find applicant return china reasonably foreseeable future would seek join christian church whether registered would engage religious conduct would lead facing real chance harm whether government family indeed anyone else applicant claimed uncle member man immediate family christian arrested reason however made claim non christian relative outside uncle immediate family unit applicant parent risk harm relationship uncle therefore nothing suggest applicant would risk harm relationship uncle given given finding necessary tribunal decide whether applicant uncle member man immediate family christian arrested faced harm reason reason given given applicant raised claim relating ground religion tribunal satisfied applicant person respect australia protection obligation refugee convention therefore satisfy criterion set 36 2 concluded applicant meet refugee criterion 36 2 tribunal considered alternative criterion 36 2 aa considered fact applicant attended church australia however claimed would risk attended church china possibility tribunal rejected made claim prc authority aware attended church australia would risk harm reason evidence tribunal suggest chinese citizen attended church service australia risk harm return china tribunal found see paragraph 42 applicant return china reasonably foreseeable future would seek join christian church would engage religious conduct would lead facing real chance harm rejected applicant claim conflict family matter related religion tribunal accept real risk suffering harm hand family attended church service australia given applicant claim relate assertion christian given tribunal rejected claim follows tribunal substantial ground believing necessary foreseeable consequence applicant removed australia china real risk suffer significant harm tribunal therefore 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 class xa visa bruce maccarthymember

Bausch v Buller Ski Lifts P_L [2008] VCC 923 (31 July 2008).txt

county court victoria 250 william street melbourne undefined bookmark county court victoria revised restricted wangaratta civil division serious injury case ci 07 05184 lina danielle bau sch plaintiff v buller ski lift pty ltd defendant judge jenkins held wangaratta date hearing 28 29 31 july 2008 date judgment 31 july 2008 case may cited bausch v buller ski medium neutral citation 2008 vcc 923 reason judgment catchword serious injury permanent severe mental permanent severe behavioural disturbance disorder claim pain suffering loss earnings accident compensation act 1985 134ab mu ltiple prior personal trauma appearance counsel solicitor plaintiff mr monti mr wubbeling nevin lenne gross defendant mr myer m j forbes wisewoulds vcc pdj 1 judgment bausch v bulla ski table content nature application 2 significant issue fo r determination 2 evidence 3 evidence th e plaint iff 3 personal background educ ation empl oyment 3 workplace incident 4 current symptom social restri ctions 6 domestic circu mstances 7 painting 8 counselli ng 9 medicati 9 income 10 cross examination plai ntiff 11 evidence treat ing doct or 12 medico legal opinion requ ested plaintiff 15 medico legal opinion requ ested defendant 17 video surv eillance 20 relevant statutor provis ion 21 submission defe ndant c ounsel 23 submission plai ntiff counsel 24 analysis ev idence finding 25 finding 30 conclusion 31 order 32 honour nature application 1 application leave br ing proceeding recovery damage pursuant se ction 134ab accident compensation act 1985 act made application pursuant section 134ab 4 18 december 2007 plaintiff re pect injury alleges occurred course employ ment defendant 2005 2 plaintiff seek declaration suffered serious injury defined within section 134ab 37 c involving severe sustained psychological disturbance depression anxiety suic idal ideation nightmare appetite disturbance weight gain loss libido irritability energy disturbance malaise consequent upon medication nervousness 3 leave sought relation damage fo r pain suffering loss earning capacity significant issue determination 4 defendant concedes plaint iff suffered compensable injury however deny plaintiff suffered serious injury defined addition defendant claim plaintiff suffered multiple un related far greater traumatic ev ents consequence would account current symptomatology 5 deal application follows briefly summarize relevant evidenc e plaintiff two affidavit oral evidence attest occurrence nature extent workplace incident effect upon b refer relevant medical opini ons characterise workplace incident clinical finding made various time subsequent incident vcc pdj 2 judgment bausch v bulla ski c briefly deal relevant statutory provision give fact ual finding reason nature mental behavioural di sturbance suffered consequence plaintiff 6 plaintiff bear overall burden proof evidence 7 support application plaintiff relied upon exhibit identified contained plaintiff court book comprising medical report affidavit document b oral evidence given court plaintiff 8 opposing application defendant relied upon exhibit identified contained defendant court book comprising medical report affidavit document evidence plaintiff personal background education employment 9 plaintiff born 6 sept ember 1955 making 52 year old life heathc ote 14 year old son 4 day per week estranged husband also resides treated prostate cancer also ca re plaintiff mother 10 plaintiff born grew sydney completed school year 11 attended art sc hool 2 year changing hospitality better financial prospect 2004 commenced business management course co llege tafe bendigo completed correspondence 11 worked hospitality industry 25 year including job various ski resort thredbo smiggins hole also worked spotless catering sydney 8 year became supervisor 1999 vcc pdj 3 judgment bausch v bulla ski bought pub near heathcote withdraw six month owing business partner alcohol abu se continued perform catering work completed business nagement course moved mansfield area taught art nsfield council adult education one day week paid 75 two ho ur work 10 june 2005 commencement ski season began employment wi th defendant mansfield buller sport store full time ca sual retail assistant workplace incident 12 commencement empl oyment de fendant constantly sexually harassed 17 year old employ ee shane nichol directed work close contact subject constant sexually provocative abus ive immoral behaviour including constant verbal outburst ften concert young male employee 13 17 july 2005 lunch room company others mr nichol engaged hip hop dancing action pantomimed masturbating front clearly indicated audience th involved sexual activity hip hop dancing also made feel embarrassed using lyric sexual crude occasion wearing thin top clothing insisted front others provocative way erect nipple therefore sexual desire would also stare breast 14 complained behaviour immediate anager asked put complaint writing bec ame increasingly upset anxious disturbed consulted general practitioner action taken mr nichol made written complaint employer dismissed mr nichol thereafter felt immediate manager began treat unfairly yelling rostering day knew unable work con equence also vcc pdj 4 judgment bausch v bulla ski increasing psychological symptom cease teaching mansfield council adult education 15 following dismissal mr nichol began stalk requested transfer another place employment employer initially refused three week later following second request sh e transferred mt buller ski shop however felt hat treated badly management told discus personal problem happened new fellow employee thought th everyone hated new workplace ld took meone else job 16 september 2005 submitted work cover claim offered possibility painting mural defendant ski sc hool employed next 2006 ski season withdrew claim accepted commenced work mural 17 october 2005 period time work symptom con ulted doctor advised cease workin g defendant stress 17 january 2006 returned mt bu ller ski school solely complete mural left mural incomplete believed reputation artist would significantly damaged mural completed plaintiff felt defendant give due recognition defendant also reneged agree ment refused employ 2006 ski season 18 september 2006 moved man field rochester hoping escape public humiliation sense failu make new start however son encountered social di fficulties condition improve felt driven sell house rochester move mother house heathcote vcc pdj 5 judgment bausch v bulla ski current symptom social restriction 19 summary plaintiff describes current psychological state follows migraine headache increased frequency severity experienced prior june 2005 b continues feel jumpy ea sily startled time edge c feel depressed frustrated situation feel self esteem self confidenc e effectively destroyed often tear think predicament suicidal ideation feel sad hopeless future e feel restless lonely irritable exhausted agitated unmotivated unsociable lost sex drive completely f continues nightmare regular basis related employment g difficulty sleeping night take sleeping ta blets night h cannot exercise way used lack energy motivation conseq uence gained weight suffers disturbed appetite also suffers nausea vomiting regular panic attack especially upon leaving house j unable resume social recreational activity previously enjoy ed skiing working gym helping local fire brigade k longer like meet ing people feel unable socialize attend family function previously used vcc pdj 6 judgment bausch v bulla ski l lack self confi dence whereas previo usly confident outgoing person developed stutter would make difficult operate customer service position problem concentration energy level migraine combined effect medication stutter impr oved cipramil still difficulty talking phone sh e stutter younger worked hard overcome stuttering came event work 20 could longer perform work used spotless front line customer service person organi zing large function show also planned computer graphic animation c annot lost interest 21 believe work unable function properly day day basis medi cation make drowsy lethargic sleep feel u tterly hopeless situation received retraining rehabilitation def endant workcover insurer terminated weekly payment co mpensation one year receives disability support pension domestic circumstance 22 life heathcote 14 year old son husband also life house 4 day per week care mother day currently remission prostate cancer working disability pension however lot thing around house also shopping washing cooking get wo od fire run errand thing involved running household except attending school appointment son attempt cleaning unable maintain house 23 marriage relationship son adversely vcc pdj 7 judgment bausch v bulla ski affected symptom become irritable bad tempered previously used enj oy shopping hate suffers panic attack 24 feel condition det eriorated time difficulty concentrating reading becomes muddled loses thing continues incapable dealing public al feel though constantly watched stalked peo ple constantly staring consequence af raid leave house 25 plaintiff describes typical day seeing son school performing simple household task going back bed headache medication otherwise attend pet bird two rabbit two dog perform bit th e housework cooking bit gardening however otherwise spends lot day sitting around home feel li fe turned upside since suffering workplace incident spen d time computer unable concentrate half hour unable drive motor vehicle level anxiety done case emergency used enjoy swim ming longer attend public swimming pool suffer fr equent panic attack hot cold flush feel nauseous often accompanied stomach cramp take maxo lon sit couple hour painting 26 painted since 6 year ol always pl an establish artist feel ongoing symptom wrecked ambition respect motivation idea cannot put canvas 27 2004 sold 3 painting art show 1 500 believed good potential earn good income art mural would vcc pdj 8 judgment bausch v bulla ski assisted establishing reputation however since painting mural able resume painting meaningful way commissioned paint two mural one real estate agency sold house fram ing business bendigo bot h attempted 6 8 month ago however remain un finished paid lack enthusiasm co nfidence motivation since workplace incident 28 maintained web page art work largely insistence dr maccallum said w ould good however completed sold painting since workplace incident 29 believe fit work would like returned painting need self confidence need overcome psychological impediment paint create express multi talented painting paint variable cubism expressionism wildlife counselling 30 september 2007 saw psyc hologist mr kevin holmes rochester medical centre couple occasion mr holmes left area tried seeing another psychologist february 2008 saw counselor rochester twice f ound could develop rapport counselor essentially advised join woman group get mo advice find particularly helpful given fearful leaving house feeling unwell severe migraine therefore di persist counseling 31 continues treated dr macca llum monthly awaiting psychiatric referral medication 32 2007 beyond dr maccallum treated increasingly severe vcc pdj 9 judgment bausch v bulla ski migraine way morphine injectio n 5 per mont h found helpful debilitating also taking high dose valium addition walking appeared th e thing would calm nerve medication included cipramil antidepressant crestor cholesterol maxolon nausea monopril high blood pressure plaintiff require medication extraneous medical problem prior workplace injury 33 continues attend dr maccallum abo ut monthly continues issue certificate total incapacit prescribes medication currently consists temtabs sleeping tablet deptran anti anxiety medication valium cipramil tramal panadeine fort e crestor imigran migraine maxolon monopril ad dition also morphi ne injection migraine although tried cut also applies norspan patch medication take cause stomach upset nausea take maxolon n ausea somac buscopan stomach cramp lomotril indigestion income 34 employed defendant income variable averaged 500 600 per week also paid 4 000 fo r painting mural finally completed may 2006 declared come relevant incident 2003 4 160 2004 3 625 2005 856 2006 6 229 2007 unavailable vcc pdj 10 judgment bausch v bulla ski cross examination plaintiff 35 plaintiff subjected extens ive cross examination caused considerable distress particular wa questioned past personal trauma including r ape teenage boy age 20 belief first husband conspir ed violence first two husband breakdown marri age rape second husband resulted complaint charge laid police suicide first son also effectively taken family first husband motor vehicle accident 1998 history continuing migraine behavioural problem second son allowing distre s recollection event inevitably entailed satisfied hat plaintiff dealt question direct manner consistent history whic h given reporting doctor 36 plaintiff also cross examined extensively current daily activity use motor vehicle role played husband satisfied plaintiff answered question responsive manner generally con istent affidavit history given reporting doctor 37 plaintiff also cr os examined extensively abo ut current webpage particular statement effect since workplace incident 2005 continuing paint currently working collection painting exhibition 2009 response plaintiff said content webpage dream commissioned paint two work since 2005 neither able complete paid despite attempt unable paint sold painting since workplace incident painting refl ected websit e work painted sold prior 2005 work sold comprised comput er designed generated card paid 15 also c onfirmed 1500 vcc pdj 11 judgment bausch v bulla ski received sale three painti ng 2004 reflected income tax return plaintiff also confirmed hoped start studio maindample current ly owns vacant block land 38 plaintiff agreed rochester made enquiry employment mainly voluntary work none availabl e attended mr holmes psychologist counselling left area attended another councillor twice advised join woman group felt unable mix woman currently attends dr maccallum monthly talk usually hour also awaiting advice referral psychiatrist bendigo 39 satisfied plaintiff gave oral evidence cross examination consistent affidav history given doctor otherwise gave plausible explanation apparent inconsistency evidence treating doctor 40 dr peter maccallum general practitioner treated plaintiff 1998 2005 moved mansfi eld consulted dr maccallum october 2006 moving rochester dr maccallum provided three reports1 indicates prior workplace incident defendant plaintiff treated episode migraine knew active woman lively interest art actively engaged painting mural painting 2 41 5 october 2006 plaintiff attended complaining still depressed following sexual harassment work told dr maccallum transferred mount buller attempt escape harassment followed employ ment terminated lodged 1 17 june 2007 13 february 2008 19 may 2008 pcb 27 33 2 pcb 27 vcc pdj 12 judgment bausch v bulla ski workcover claim made verbal agr eement defe ndant return work mural also understood would offered employment 2006 ski season however subsequently defendant denied promised employ meant employment snowfield effectively cl osed consequence became depressed 42 dr maccallum treated plaintiff wit h anti depressant valium nervous tension noted depressive symptom anxiety continued remainder 2006 2007 march 2007 reported could go shoppi ng let alone attempt work dr maccallum continued see monthly june 2007 still upset stuttering speech could concentrate reading felt muddled losing thing could deal public barely coping home frequency migraine increased stress dr maccallu commenced giving injection 43 report dated 13 february 2008 dr maccallum concluded plaintiff suffered considerably sexual harassment problem suffered employm ent remained nervous anxious depressed total la ck confidence knew heathcote outgoing happy artistic work major problem residual earlier sexual harassment first marriage doubt mind harassm ent occurred disturbed greatly ongoing problem great difficulty normal functioning particula r difficulty going meeting people opini really cast pall normally pleasant outgoing personality left incapable employment incapacity seems likely c ontinue co nsiderable time vcc pdj 13 judgment bausch v bulla ski indefinitely 3 44 final letter dr maccallum referral psychiatric consultation refers plaintiff earlie r rape verbal abuse 20 year old managed get however unable face work since mansfield episode depression feel getting suicidal feel nervous added artist felt quite unable paint dr maccallum note condition triggered incr easing frequency migraine headache treated wit h norspan patch turning pethidene injection frequently also taking far much valium really quivering heap time 4 45 dr john hall general practitioner first saw plaintiff 23 september 2005 quite di stressed complained stress depression following verbal sexual harassment employment distress increased verbal notice termi nate employment plaintiff attended dr hall september october 2005 reporting continuing sexually abusive verbal behaviour towa rd increasingly severe persistent headache shoulder pain due stress dr hall advised seek alternative employment october 2005 considered would fit resume alternate empl oyment provided fear continuing gossip verbal abuse sustained 5 46 dr hall last saw plaintiff june 2006 still required medication anxiety depressive symptom dr hall noted unable seek alternative employment impaired confidence although considered wa presently fit work virtually non threatening environment 6 3 pcb 33 4 part ex 5 pcb 35 6 pcb 36 vcc pdj 14 judgment bausch v bulla ski medico legal opinion quested plaintiff 47 plaintiff examined two psychiatrist request solicitor satisfied case plaintiff gave consistent account family social background including nu mber prior traumatic incident well workplace incident continuing stalking harassment original offender others doctor dennerstein epstein recorded detailed history 48 professor lorraine dennerstein psychiatrist examined plaintiff 1 may 2008 professor dennerstein also available report dr hall dr maccallum dr stern dr strauss referring many trauma contend throughout life dr dennerstein noted nevertheless able work full time retail mount buller part time art teacher fe lt harassed workplace lost job art teacher coupl e month later describes increasing depression anx iety difficulty sleeping relation work incident much wanted continue workplace symptom seemed aggravated offered employment agreement drs stern strauss adjustm ent disorder mixed anxiety depressed mood capacity em ployment affected psychiatric condition suggest referred psychiatrist review medication may possible improve mental state le fearful ot currently capacity employment outside home incide nt significant contributing factor current capacity consequence social domestic life 7 49 dr michael epstei n psychiatrist examined plaintiff 1 may 2008 dr 7 pcb 53 vcc pdj 15 judgment bausch v bulla ski epstein also available report dr hall dr maccallum dr stern dr strauss dr epst ein gave follo wing opinion lina bausch difficult lif e subjected repeated assault including sexual assault year hand number different people including first second husband context subjected repeated sexual harassment course employment ju ne 2005 time became increasingly distressed harassment subsequently developed significant symptom ade complaint offender dismissed felt tr eated offender discriminated felt reputation town destroyed claim tr ansferred another store subjected harassment vi ctimisation placed work apparently end ski season worked since told would employed mural season sh e reapplied work june 2006 application accepted moment nifests chronic adjustment disorder depressed mood anxi ety together panic disorder agoraphobia addition developed paranoid thinking likely effe ct sexual harassment aftermath profound effect may others earlier experience impression gained moment unfit work capacity situation may improve foreseeable future severe intractable migraine headache requiring use morphine become isolated withdrawn highly anxious ry suspicious would benefit psychiatric treatment although prognosis improvement may still poor 8 8 pcb 54 55 vcc pdj 16 judgment bausch v bulla ski medico legal opinion requested defendant 50 plaintiff examined three psychiatrist request defendant insurer history recorded case varied detail 51 dr ian jackson psychiatrist first examined plai ntiff 5 september 2006 made following diagnosis adjustment disorder mixed dist urbance emotion conduct emotional disturbance mixed anxiety depression prominent phobia panic conduc disturbance rather chaotic social withdrawal irritability apparent ly based suspicious thinking given psychia tric symptom six month adjustment disorder w chronic plausible account unacceptable behaviour place employment inappropriate unsupported response harassment also plausible descri be amount reje ction mistreatment others small ski community consequence making formal complaint 52 dr jackson otherwise agreed wit h opinion express ed treating gp dr hall considered long avoided employment mansfield area would fit employment within week 53 dr jackson examined plaintiff 14 february 2007 expressed difficulty obtaining precise cu rrent history symptom reason extensive medication dr ja ckson concluded found difficult make definite psychiatric diagnosis general considered regime medication excessive inappropriate particular many medication highly likely produce sedation lack drive depressive type symptom complains remain opinion suffering psychiatric illness prevents seeking obtaining employment however opinion vcc pdj 17 judgment bausch v bulla ski restriction return man field area longer applicable difficult anticipate return active productive life responding medical treatment whil e pursuing declared plan obtain financial compensation psychiatric injury 9 54 dr stephen stern con ultant psychiatrist examined plaintiff 5 march 2007 made following diagnosis woman suffering chroni c adjustment disorder mixed anxiety depressed mood related victimisation work 2005 past history early deat h father marital break ups motor car accident 198 8 death 23 year old son 2003 however feel sh e coped psychiatrically incapacitated r egular work could work home need continuing antidepres sant medication social leisure activity reduced activity daily living limited psychiatric factor psychiatric state stabilised 10 55 dr nigel strauss consultant occupational psychiatrist examined plaintiff 13 november 2007 also available report dr hall dr stern dr maccallum dr strauss noted plaintiff currently difficulty 13 year old son third marriage also proved unsatisfactory significant financial problem ed hoped keep job working buller ski lift significant possibi lity would kept working offe red work therefore tends play ongoing significance psychiatric problem present time difficult know much current problem related alleged victimisation work much problem related personal circumstance taking factor consideration 9 dcb 15 16 10 pcb 42 dcb 21 22 vcc pdj 18 judgment bausch v bulla ski accept certain extent woman suffering psychiatric problem work related opinion adjustment disorder mixed anxiety depr essed mood would uggest 30 current psychiatric condition rela ted alleged victimisation harassment experienced working buller ski lift doubt severity psychia tric problem basis prepared keep working completed mural took current workcover claim ce offered employment strongly suggests current psychiatric problem significantly interrelated resentment anger actual psychiatric problem certainl severe greatly debilitating accept however personal circumst ances adding underlying mild work related problem anxiety depression due factor mild psychiatric symptom related employment obviously would inappropriate go back old job believe woman totally incapacitated living area liked feel people knew difficulty problem new locati believe could work administrative role type work buller ski lift convinced wom currently totally incapacitated suspect make effort find work moved compensation process fi nalised believe ultimately woman prognosis reasonable 11 56 dr strauss made assessment 19 june 2008 history current symptom provided plaintiff consistent affidavit made evidence given r final opinion dr strauss expressed view hat range personal factor contributing current psychiatric condi tion dr strauss noted th plaintiff belief condition entirely due harassment received 11 dcb 33 34 vcc pdj 19 judgment bausch v bulla ski woman developed panic diso rder agoraphobic symptom apart adjustment disorder mixed anxiety depressed mood doubt whether im provement compensation claim finalised sure get better following finalisation angry resentful somewhat isolated believe become independent claim finalised obviously never work buller ski lift work possibly similar natur e may suitable currently totally temporarily incapacitated work 12 57 dr strauss asked c onsider whether plaint iff would capable undertaking certain kind work including shop assistant cleaner customer service officer dr strauss c onsidered job description provided unsuitable present time however claim finalised plaintiff may able cope position 13 dr strauss otherwise considered th e current medicati regime appropriate except urged decreas e amount minor tranquilliser take video surveillance 58 note defendant court book hat covert video surveillance plaintiff taken although none played tendered hearing accordingly infer none su rveillance taken defendant inconsistent evi dence plaintiff 12 dcb 41 42 13 dcb 43 44 vcc pdj 20 judgment bausch v bulla ski relevant statutory provision 59 division 8a act contains cu rrent regime determining whether worker entitled seek recovery common law damage work related serious injury specifically regime applies injury arising 20 october 1999 plaintiff application case relates alleged work related injury arising course employment 10 june 2005 accordingly application fall determined accordance section 134ab 60 sub section 134ab 2 prescribes condition must satisfied compensable injury may give rise entitl ement recover damage 2 worker may recover damage respect injury arising course due nature employment injury serious injury arose 20 october 1999 61 purpose current app lication serious injury mean c permanent severe mental permanent severe behavioural disturbance disorder 14 62 section 134ab 38 b fa r relevant present case set must shown order estab lish impairment loss body function paragraph c definition serious reference consequence worker 38 purpose assessment serious injury accordance sub section 16 19 b term serious severe ar e satisfied reference consequence worker mental behavioural disturbance disorder respect pain suffering ii loss earning capacity 14 section 134ab 37 vcc pdj 21 judgment bausch v bulla ski judged comparison ot case range possible mental behavioural disturbance disorder 63 section 134ab 38 provides far relevant case follows mental behavioural disturbance disorder shall held severe purpose sub section 16 unless pain suffering consequence loss earning capacity consequence judged comparis case range possible mental behavioural disturbance disorder fairly described serious extent severe 64 paragraph 134ab 38 e f g make detailed provision loss earning capacity particular paragraph e expressly cast upon worker burden estab lishing date hearing application loss earning c apacity 40 per centum loss conti nue permanently paragraph f explains measure loss paragr aph g directs court bring account possibility rehabilitation traini ng throughout bur den proof lie plaintiff 65 summary purpose assessing loss earning capacity plaintiff must effect first satisfy requ irements paragraph e f g court must still satisfied consequence plaintiff mental behavioural disturbance disorder respect loss earning capacity judged comparison case range possible mental behavioural dist urbances disorder fairly described serious extent severe 15 66 following question embody appropriate approach determination serious injury first mental behavioural disturbance disorder impairment said produced consequence secondly mental behavioural disturbance disorder permanent e likely persist foreseeable future thirdly 15 134ab 38 refer also barwon spinner pty ltd or v podolak st laurence community service barwon inc or v gledhill stojanovski v bartter enterprise pty ltd or pausak v barwon health or 2005 vsca 33 herein collectively referred barwon spinner paragraph 75 vcc pdj 22 judgment bausch v bulla ski consequence plaintiff satisfy serious extent severe test 16 furthermore court appeal emphasized necessity court analyse evidence term statutory requirement 17 submission defendant counsel 67 defendant counsel made following point plaintiff regarded tr uthful reliable witness respect counsel made particular refe rence web site initial evidence told truth subsequent admission admitted failure disclose income sale painting income tax return b plaintiff capacity work counsel referred plaintiff continued effort obtain employm ent defendant 2006 ski season enquiry employment subsequently statement web site indicates currently painting planning exhibition opi nions dr hall dr jackson dr strauss particular c taking plaintiff pre injury earni ng highest would earn 3 737 reach 60 threshold could achieved kind part time job plaintiff previously suffer ed far overwhelming traumatic incident work place incident debilitating prevent working ot herwise engage social activity e plaintiff minimal psycholog ical treatment psychiatric treatment f medical support com pensation neurosis abate 16 barwon spinner paragraph 33 17 paragraph 71 vcc pdj 23 judgment bausch v bulla ski workcover proceeding finalised g plaintiff symptom reach level severe even accepting symptom face value particular counsel noted plaintiff assessed reference ama guide suffering mild deficit various category 18 submission plaintiff counsel 68 plaintiff counsel made following point defendant counsel relia nce upon assessment ama guide misguided irrelevant context cu rrent application b court regard plaintiff credible reliable witness marked contrast finding trial judge mobilio case c workplace incident particu larly serious example sexual harassment damaging reason particular vulnerability plaintiff although painting always pa ssion plaintiff hoped would develop time fact hobby occasional sale paint ings never claimed expense tax return relating painting e website merely perpetrated pl aintiff dream reflect reality namely sinc e workplace incident plaintiff unable complete new work indeed sell past work f evidence indicates pl aintiff overcame past personal trauma june 2005 engag ed continuous responsible employment domestic social activity g since work place inci dent plaintiff continuous 18 dcb 22 23 counsel also referred mobilio case 1993 3 vr 833 vcc pdj 24 judgment bausch v bulla ski care general practitioner rece ived prescribed medication pursued psychological counselling awaiting referral treating psychiatrist 69 plaintiff counsel submitted hat plaintiff specifically cross examined one aspect dr strauss opinion namely court proceeding desire compensation may largely account current symptom likely improve proceeding finalised 70 relation plaintiff credibility court accept plaintiff understand required declare hobby income sale three painting inco tax return falsehood stated website current pai nting endeavour viewed context person passionately committed art preoccupied dream 71 medical opinion dr maccallum psychiatric opinion doctor dennerstein epstein st rauss stern concur diagnosis adjustment disorder mixed anxiety depressed mood dr maccallum dr epstein conclude plaintiff current capacity employment doctor dennerstein stern considered capacity employment outside home analysis evidence finding 72 set brief synopsis evidence however finding reason judgement de termined careful reading whole transcript evidence including submission counsel tendered document also authority referred 73 satisfied plaintiff presented reasonably forthright consistent open manner appear exaggerate embellish symptom disability equally disguise minimise physical vcc pdj 25 judgment bausch v bulla ski difficulty still encounter th consistent manner also appears received treating examining doctor 74 relation specific matter credit raised defendant counsel taking evidence whole medical opinion persuaded failure disclose cert income tax return account website cross exam ination adversely reflects upon credibility reliability generally 75 view plaintiff previous personal trauma place particular significance upon opinion general practitioner dr maccallum medical practitioner treated plaintiff relevant workplace incident withstanding prior well documented personal trauma main tained consistent work history throughout adult life revolved ar ound dealing public also completed tertiary studi e business management view prior june 2005 adjusted various personal trauma dr maccallum opinion outgoing happy artistic work major problem residual earlier sexual harassment first marriage 76 satisfied evidence plaintiff living mansfield teaching art one day per week also secured casual full time position retail assistant de fendant shop mansfield 10 june 2005 outset employment plaintiff subject extreme act victimisation obviously disturbed according police potentially dangerous 17 year old male plaintiff subjected constant humiliating verbal assault physical behaviour overtly sexual nature offensive behav iour also compounded behaviour young le employee plaintiff suffered increasing distress despite protest offensive behaviour c ontinued unabated vcc pdj 26 judgment bausch v bulla ski without intervention defendant management plaintiff complaint acted upon put complaint writing whereupon offending employee dismissed time plaintiff become increasingly anxious depre ssed fearful suffering sleep difficulty cry fit request transfer eventually granted worked defendant shop mount buller travel daily mansfield largely reason small community personal association offending employee har assment plaintiff followed new workplace management hostile isolated workplace meantime treated general practitioner depressive symptom 27 se ptember 2005 employment terminated 77 lodged workcover claim de fendant told withdrew claim would employed complete mural mount buller ski school c ould also expect employed 2006 ski season undertook mural project eventually completed experiencing ongoi ng hostility isolation consider work appreciated defendant refused employ applied work 2006 ski season 78 september 2006 relocated roches ter effort remove community hostility humiliation sh e also led believe would never employed mansfi eld mount buller throughout period 2007 continued consult general practitioner depressive symptom deteriorated medication became extensive potent move roches ter proved ill advised son encountered difficulty subsequently relocated heathcote son settled provided consistent ongoing support husband although technically separated husband resides four night per week vcc pdj 27 judgment bausch v bulla ski performs cooking hopping household chore well driving appointment 79 accept plaintiff account inability paint since workplace incident although maintained website upon face agrees reflects active painter evidence fact either completed sold work since 2004 80 accept plaintiff current psychological state reflected diagnosis conf irmed reporting psychiatrist namely chronic adjustment diso rder depressed mood anxiety panic disorder agoraphobia dr epstein also note developed paranoid thinking accept plaintiff current symptom referable workplace incident include regular nightmare increased frequency severity migraine chronic depressive symptom loss self esteem self confi dence rendered incapable voluntarily engaging cial contact accept feel extremely isolated lonely irritable completely incapable resuming painting exploring employment option 81 set major finding reporting psychiatrist general practitioner detail clearly difference opinion note dr jackson somewhat inexplicably vi ew difficulty two occasion recording coherent history otherwise th e reporting doctor particularly doctor maccallum dennerstein epstein strauss provided comprehensive history analysis plaintiff psychological condition plaintiff accepted genuine hist orian reported symptom consistent manner 82 view plaintiff following wo rkplace incident notwithstanding continuing distress depr essive symptom clearly en deavoured continue work pursue employment option l ong possible accept vcc pdj 28 judgment bausch v bulla ski reputation painter critical well knew removed totally public eye prospect artistic recognition would seriously undermined totally destroyed accept continued effort maintain web site directed end although acknowledges effort may currently amount unrealistic dream 83 also satisfied plaintiff within confines two relocation attempted undertake psychological counselling general practitioner currently pursuing referral treating psychiatrist 84 view impact workplac e incident thei r aftermath throughout 2005 2006 accurately described dr epstein appropriately place context levance past sexual trauma likely effect sex ual harassment aftermath profound effect may others earlier experience 85 colloquial term workplace incident last straw june 2005 plaintiff adjust ed coping remarkably well social domestic employment life vulnerable particularly vulnerable precisely kind abuse sh e subjected june 2005 following previously experienced multiple incident sexual abuse violence effect workplace incident may traum atic ultimately de vastating life clearly vi rtually become recluse overly medication dependant appropriate psychiatric care counselling revision medication ther e may indeed hope improvement time possibility uncertain must ass plaintiff upon evidence psycholog ical state presented today 86 satisfied basis plaint iff evidence opinion given dr maccallum dr dennerstein dr epst ein particular plaintiff vcc pdj 29 judgment bausch v bulla ski currently work capacity situation likely continue foreseeable future 87 also satisfied basis plaintiff evidence preponderance medical opin ion plaintiff currently suffers severe mental behavioural distur bance disorder likely persist foreseeable future finding 88 taking question posed barwon spinner account particular issue raised subjec application satisfied balance probabi lities plaintiff developed mental disorder behavioural disturbance arising course due na ture employment defendant 10 june 2005 following b mental disorder behavioural disturbance comprises chronic adjustment disorder depre ssed mood anxiety panic disorder agoraphobia c mental disorder behavioural disturbance permanent likely persist foreseeable future comparing state health mental status work social capacity plaintiff fter workplace incident satisfied consequence plaintiff respect pain suffering severe particular take account prolonged dependence upon medication plaintiff persistent debilitating symptom social isolation inability work e satisfied plaintiff foreseeable future capacity employmen plaintiff suffered permanent severe mental disorder behavioural disturbance result vcc pdj 30 judgment bausch v bulla ski workplace incident satisfied intended continue work would continued earn income least rate pre injury earnings accordingly readily satisfies threshold minimum loss income satisfied regard plaintiff prior work history initial desire attempt return pre injury employ ment consequence plaintiff severe 89 regard material satisfied plaintiff discharged onus placed upon 134ab 19 b conclusion 90 satisfied balance probability plaintiff currently suffer mental disorder behavioural disturbance disorder permanent b plaintiff developed mental di sorder behavioura l disturbance course empl oyment 10 june 2005 c plaintiff total incapacity kind employment accordingly proven loss earni ng capacity least 40 earnings would fairly refl ect capacity disorder behavioural disturbance occurred consequence plaintiff term pain suffering loss earning capacity judged compar ison case range possible mental behavioural disturbance disorder may fairly described serious extent severe 91 accordingly persuaded inju ry suffered result workplace incident serious injury within meaning act vcc pdj 31 judgment bausch v bulla ski order 92 plaintiff granted leave purs uant section 134ab 16 b accident compensation act 1985 commence proceeding recovery damage respect pain suffering loss earning capacity respect workplace injury 10 june 2005 relying upon paragraph c defin ition serious injury 93 hearing party question cost following order made 94 order defendant pay plaintiff cost proceeding county court scale taxed default agreement 95 certify two counsel plaintiff b senior counsel brief fee 3 800 inclusive circuit fee plus 2 hour special conference 380 per hour one refresher 2533 c assisting counsel brief fee 2230 plus 2 hour special conference 249 per hour one refresher 1483 inclusive circuit fee reasonable cost preparat ion filing service court book first copy scale subsequent necessary copy commercial rate fix ed taxing officer vcc pdj 32 judgment bausch v bulla ski vcc pdj 33 judgment bausch v bulla ski mr monti honour plea honour think would able hand consent order ho nour term cost necessarily done today honour coul await next wednesday honour fine seeing handed something left open term cost would co rrect final version posted come agreement would preferable mr monti confident honour hand honour notation order writing honour yes mr monti made consent wednesday next week honour yes could please associate need chase mr monti yes thank

Khanna v Woolworths Group Limited (ABN: 88 000 0146 75) [2021] NSWDC 427 (19 August 2021).txt

khanna v woolworth group limited abn 88 000 0146 75 2021 nswdc 427 19 august 2021 last updated 23 august 2021district courtnew south walescase name khanna v woolworth group limited abn 88 000 0146 75 medium neutral citation 2021 nswdc 427hearing date 19 august 2021date order 19 august 2021decision date 19 august 2021jurisdiction civilbefore dicker sc dcjdecision 1 notice motion filed plaintiff 7 july 2021 dismissed 2 plaintiff pay defendant cost notice motion filed 7 july 2021 agreed assessed catchword practice procedure interrogatory personal injury claim need special reason proposed interrogatory also seek document oral evidence case concluded issue delaylegislation cited civil procedure act 2005 nsw uniform civil procedure rule 2005cases cited el hayek v vasic 2010 nswsc 1498mccallum v reynolds 2016 nswsc 366category procedural rulingsparties sanjeev khanna plaintiff woolworth group limited abn 88 000 0146 75 defendant representation counsel r gambi defendant solicitor person plaintiff hba legal defendant file number 2019 00030652publication restriction noex tempore judgment1 court determination notice motion filed 7 july 2021 plaintiff seeking substance order allow issue interrogatory various person director proper officer defendant woolworth group limited b m emily gibson solicitor working solicitor defendant relation affidavit affirmed 5 march 2021 c mr david zammit assistant store manager defendant master home improvement store day plaintiff accident 18 april 2015 dr frank machart specialist orthopaedic surgeon prepared medico legal report relied upon defendant e dr doran samuell psychiatrist prepared medico legal report also relied upon defendant 2 support notice motion plaintiff read affidavit affirmed 7 july 2021 mr khanna appeared hearing notice motion mr gambi counsel appeared defendant 3 later submission plaintiff state longer seek leave administer interrogatory mr david zammit also produced proposed interrogatory dr samuell oral submission mr khanna confirmed interrogatory sought relation dr samuell 4 relation proposed interrogatory attached mr khanna 14august 2021 submission directed director proper officer public liability administration seems defendant b m emily gibson employed solicitor solicitor defendant c dr frank machart factual background5 background application summary follows plaintiff mr khanna brought claim negligence defendant woolworth group limited relation accident involved allegedly caused personal injury master home improvement store rouse hill new south wale 18 april 2015 evidence court expert report dr machart dr samuell plaintiff asserts serious continuing injury restriction arising defendant negligence placement certain good rouse hill store alleged placement good caused plaintiff wife mr geeta khanna trip chair leg stack chair resulted falling mr khanna allegedly injured attempting save mr khanna falling 6 final hearing completed relation plaintiff claim relation written oral submission determination application evidence closed 7 22 june 2021 order made filing serving written submission matter listed oral submission 26 august 2021 7 july 2021 mr khanna filed present notice motion result 29 july 2021 court made order vacating order made 22 june 2021 filing written submission 8 background present dispute party relates document mr khanna plaintiff belief defendant must defendant produced subject matter discussion first day final hearing see t3 26 4 45 t8 30 t11 46 two notice produce served mr khanna defendant notice produce dated 5 march 2021 defendant stated counsel nothing produce relation notice produce dated 9 november 2020 discussed detail second day hearing defendant similarly nothing produce see t34 4 36 44 t37 46 45 30 notice motion filed 5 march 2021 defendant sought two notice produce set aside nothing produce defendant notice motion unnecessary dismissed second day trial 11 march 2021 9 22 june 2021 last day evidence final hearing plaintiff made number application including seeking leave serve subpoena chief executive officer proper officer public liability defendant attend examination produce document b seeking adjournment serve proposed subpoena 10 application rejected court ex tempore judgment gave detailed reason rejecting mr khanna application judgment reviewed detail relied various matter including stage proceeding time application b fact possibility subpoenaing senior officer defendant referred court earlier hearing c consequence adjournment delaying hearing matter s 56 58 thecivil procedure act nsw also noted light document court lack indication potentially existence document actually held time relevant noted court would surprised chief executive officer woolworth group limited major listed public company would real knowledge relation matter master home improvement store 2015 e relation notice produce previously served plaintiff similar matter formal response defendant document produce plaintiff affidavit evidence11 affidavit affirmed 7 july 2021 mr khanna refers serious medical condition asserts paragraph 4 deteriorated b fact accident 18 april 2015 asserted c mr david zammit assistant store manager time giving evidence 21 june 2021 mr zammit asserted witnessed accident plaintiff relies mr zammit evidence stated unable assist factual issue fact document produced defendant number issue following notice produce served plaintiff paragraph 7 affidavit e assertion plaintiff right demand interrogatory prove matter favour plaintiff would accordance withs 56of thecivil procedure act 2005 nsw paragraph 8 f continued reference mr khanna failure produce document defendant light alleged legal obligation keep document expressly considered court ex tempore judgment 22 june 2021 8 page g allegation m gibson misled plaintiff paragraph 10 2 affidavit h assertion many question answered mr zammit gave contradictory evidence paragraph 11 affidavit desire issue interrogatory dr machart dr samuell relation report paragraph 12 affidavit submission parties12 cover email dated 16 17 august 2021 plaintiff served written submission proposed interrogatory signed submits interest justice given leave serve proposed interrogatory regard failure defendant produce document importance matter raised interrogatory unsatisfactory evidence mr zammit mr khanna claim leave would consistent withs 56of thecivil procedure actand would involve waste time 13 oral submission mr khanna emphasised importance matter dealt interrogatory inadequacy defendant documentary production fact safety incident report prepared person mr zammit refers person slipperiness floor accident occurred difficulty facing plaintiff difference pulse report incident report 14 interrogatory proposed occasion inappropriate nature sometimes general substance nature seeking general discovery see interrogatory director proper officer defendant paragraph 1 often ask production document ask question defendant see interrogatory director proper officer defendant paragraph 1 2 5 2 5 13 6 3 10 1 2 10 1 3 15 question relate matter law fact see paragraph 5 8 8 1 13 1 4 question relate slipperiness floor despite mr khanna oral submission relevance pleaded alleged breach duty paragraph 10 13 10 14 12 1 6 paragraph seek document irrelevant issue see interrogatory director proper officer defendant paragraph 5 1 seeking paid invoice advertisement defendant paragraph 5 13 1 defendant insurance policy 15 defendant relies written submission dated 17 august 2021 submits summary follows proper basis application dismissed cost b power order non party answer interrogatory paragraph 8 includes m gibson dr machart c plaintiff failed specify interrogatory want ask remedied plaintiff service proposed interrogatory 16 17 august 2021 affidavit support repetition application made 22 june 2021 without new evidence paragraph 10 e plaintiff provided special reason kind necessary order made shown order necessary particularly late stage proceeding paragraph 11 f interrogatory proposed really interrogatory often seek document ask irrelevant information g order sought lead adjournment delay provides significant prejudice defendant paragraph 12 h delay contrary toss 56 59of thecivil procedure act 2005 order sought similar order previously sought plaintiff rejected inappropriate abuse process paragraph 16 20 court power interrogatories16part 22of theuniform civil procedure rule 2005 ucpr provides follows part 22interrogatories22 1 interrogatory 1 stage proceeding court may order party answer specified interrogatory 2 application order must accompanied copy proposed interrogatory 3 case proceeding claim damage arising death bodily injury person b claim contribution relation damage arising order made unless court satisfied special reason exist justify making order 4 case order made unless court satisfied order necessary time made 5 order answer interrogatory may require answer given within specified time b may require answer verified affidavit c circumstance whichrule 35 3authorises someone party order addressed make relevant affidavit may specify person make affidavit person person make affidavit may chosen relation interrogatory 22 2 objection specific interrogatoriesa party may object ordered answer interrogatory except following ground interrogatory relate matter issue party party seeking order b interrogatory vexatious oppressive c answer interrogatory could disclose privileged information 22 3 answer interrogatory 1 party ordered answer interrogatory must within time required order serving statement answer active party 2 statement must deal interrogatory specifically setting interrogatory followed answer b must answer substance interrogatory without evasion c extent manner order requires must verified affidavit note seerule 22 6as admission evidence answer interrogatory 22 4 insufficient answer 1 party ordered answer interrogatory underrule 22 1fails answer interrogatory sufficiently within time specified order time specified within 28 day served order court may order party make answer verify answer affidavit b may order party case requires person kind referred inrule 35 3 1 attend orally examined 2 rule limit power court underrule 22 5 22 5 default 1 party ordered answer interrogatory underrule 22 1or22 4fails answer interrogatory sufficiently court may give make judgment order think fit including party default plaintiff order proceeding stayed dismissed whole part relief claimed party proceeding b proceeding commenced statement claim party default defendant order party defence struck 2 party solicitor order underrule 22 1or22 4need purpose enforcement order committal sequestration served personally 3 order underrule 22 1or22 4is served personally party solicitor order may enforced committal person sequestration person property person show notice order within sufficient time comply order 22 6 answer interrogatory evidence 1 party may tender evidence one answer interrogatory without tendering others b may tender evidence part answer interrogatory without tendering whole answer 2 whole part answer interrogatory tendered evidence court may look whole answer b appears court answer part answer connected matter tendered matter tendered ought used without answer part may reject tender unless answer part also tendered 17 noted thatpart 22 1 3 provides proceeding relating claim damage injury person present case order interrogatory made unless court satisfied special reason exist justify making order part 22 1 4 provides court order party answer specified interrogatory unless court satisfied order necessary time made 18 noted thatpart 22 1 1 ucpr giving court power provides power restricted ordering party answer specified interrogatory 19 inel hayak v vasic 2010 nswsc 1498at 49 51 supreme court considered requirement special reason personal injury case garling j stated follows 49 requirement special reason established restrictive one intended act limitation circumstance order made 50 whilst clear special reason phrase inexact one capable elasticity interpretation seekeating v south east sydney illawarra area health service supreme court nsw 7 july 2006 unreported 24 25 per hall j necessary applicant order show something unusual different take matter ordinary course priest v state new south wale 2006 nswsc 12at 126 128 per johnson j keatingat 24 boscoloat 18 per french j honour 51 typically exclusively take matter ordinary inability obtain requisite factual material without exercise discretion b applicant position disability disadvantage c complexity subject matter without exercise discretion real prejudice result applicant order achieve quick cheap resolution real issue proceeding discretion exercised 20 statement referred approval campbell j inmccallum v reynolds 2016 nswsc 366at 18 21 thus order special reason established applicant must show matter ordinary factor include inability obtain sought information without interrogatory complexity matter whether applicant position disability disadvantage 22 considered plaintiff submission affidavit factor relies upon context interrogatory sought administered light authority 23 view taken matter account plaintiff application rejected following reason special reason needed order interrogatory personal injury case consider present case unusual ordinary whilst plaintiff could said suffer disadvantage litigant person serious health problem case opinion unduly complex satisfied evidence interrogatory could lead information could materially advance plaintiff case mr zammit plaintiff wife alleged witness accident b trial matter completed subject submission leave granted order made would considerable delay finalisation matter mr khanna could sought leave issue interrogatory interlocutory stage matter accordingly view granting order issue interrogatory would consistent riding purpose in 56 1 thecivil procedure act facilitate quick cheap resolution real issue proceeding c interrogatory director proper officer defendant seek many paragraph document ask question interrogatory substitute discovery relation earlier non production document defendant previously subject notice produce served plaintiff followed application issue subpoena dismissed 22 june 2021 refer reason relation dismissing notice motion given ex tempore day e relation m gibson expressed view relation earlier application concerning m gibson affidavit paragraph referred plaintiff misleading m gibson also party part 22 1 1 f relation dr machart also party proceeding part 22 1 1 defendant submits plaintiff could issued subpoena dr machart available cross examination hearing addition tendered report dr machart dr samuell part exhibit case g interrogatory proposed also mixed quality often ask specific relevant question clear direct term take account mr khanna self represented h consider interrogatory necessary time order made plaintiff full opportunity pursue relevant document final hearing commenced interlocutory stage evidence director proper officer identified defendant may able assist relation particular rouse hill store april 2015 factual matter relating plaintiff alleged accident even making enquiry within defendant interrogatory largely deal matter earlier focus two notice produce referred 24 overall exercise discretion appears application plaintiff established interest justice stage trial application granted would cause extensive delay proceeding interrogatory served answered plaintiff could applied issue interrogatory earlier interlocutory stage proceeding full opportunity ask question mr zammit cross examination m gibson two doctor party proceeding emphasise plaintiff central case involves negligence placement subject chair mr khanna allegedly tripped failure warn alleged hazard essence case many interrogatory document sought relate irrelevant factor 25 defendant seek cost plaintiff submits cost ordered application rejected cost usually follow event purpose cost compensate successful party punish unsuccessful party impecuniosity mentioned mr khanna generally relevant fact exercise cost discretion see reason plaintiff pay defendant cost notice motion agreed assessed 26 accordingly make following order 1 notice motion filed plaintiff 7 july 2021 dismissed 2 plaintiff pay defendant cost notice motion filed 7 july 2021 agreed assessed

The Gardens [2011] QBCCMCmr 388 (7 September 2011).txt

garden 2011 qbccmcmr 388 7 september 2011 last updated 27 september 2011adjudicator orderoffice commissionerfor body corporate community managementcitation garden 2011 qbccmcmr 388parties m julie stanton applicant body corporate garden respondent owner affected person scheme garden ct 11750jurisdiction section 227 1 b and229 3 thebody corporate community management act 1997 act thebody corporate community management accommodation module regulation 2008 accommodation module application 0804 2011decision date 7thseptember 2011decision j underdown adjudicatorcatchwords lot entitlement interim order reversion contribution schedule lot entitlement despite claim material change time occurrence material change nature material change relevance subdivision lot prior adjustment order section 381 384act section 379act interim ordersmade hereby orderthat application interim order committee restrained commencing continuing implement process adjustment contribution schedule schemeis dismissed reason decisionapplication 1 application dated 26thaugust 2011 amended 29thaugust 2011 julie stanton owner lot 112 body corporate garden ct 11750 declaration motion submitted body corporate seeking adjust contribution schedule lot entitlement void effect 2 committee 8thaugust 2011 passed motion pursuant tosection 385 4 act body corporate consent new community management statement lodged showed reversion contribution schedule lot entitlement existing immediately prior order dated 19thoctober 2009 commercial consumer tribunal 3 applicant also seek interim order pending determination dispute body corporate restrained commencing continuing implement process adjustment contribution schedule lot entitlement jurisdiction 4 garden ct 11750 community title scheme governed thebody corporate community management act1997

BF Emmott v. Chief Executive, Department of Natural Resources [1997] QLC 152 (19 September 1997).txt

land court brisbane 19 september 1997 av96 427 appeal unimproved valuation valuation land act 1944 longreach shire b f emmott v chief executive department natural resource hearing longreach e c n 1 january 1996 department natural resource assessed unimproved value property noonbah amount 48 500 surveyed area exclusive road stock route 17 159 ha valuation equates 2 85 per ha real property description lot 2 plan vg10 lot 3 plan vg11 ghpl 29 11171 parish trotter property situ ated 150 km south west longreach via longreach jundah tonkors road bout 100 km bitumen balance earth formed access property available road dry weather electricity telephone connected mail delivery twice weekly although original valuer mr r r taylor registered valuer took responsibility defence department valuation carried inspection property together sale property provided evidence used support valuation mr taylor classified land follows 3 250 ha 19 flood channel claypan 500 ha 3 ashy down pebbly down 4 509 ha 26 red mulga 5 900 ha 34 hard tableland ridge poor 3 000 ha 18 gidyea scrub scalded flat mr taylor opinion property su itable sheep breeding wool growing assessed carrying capacity 4 900 sheep one 3 5 ha mr emmott attended hearing gave ev idence support appeal ground referred poor qua lity land woody weed infestation resultant decreased 2 carrying capacity unviability ndividual property lack marketability lack comparable sale evidence reference made sale thurles park bald hill 1994 4 10 per acre approximately 10 13 per ha includi ng plant reference also made lack market interest nearby propert evengy south noonbah asking price le 2 50 per acre 6 17 per ha estimate unimproved value land contained notice appeal 24 000 1 43 per ha evidence provided mr emmott suggested aggregation thurles park bald hill contained 40 000 ha 23 500 ha similar part noonbah much ba lance sale property superior opinion improvement noonbah worth 12 14 per acre based thurles park sale see likely sale n oonbah could achieved ev en outsider value improvement demand property would restricted adjoining owner would attract low price fact noonbah run conjunction another property ha acquired mr emmott commonwealth government leased back according mr emmott property eve ngy said contained 134 000 acre 54 228 ha eventually sold 2 30 pe r acre shortly hearing mr emmott described evengy containing flood frontage country thomson river excellent improvement although felt plan showing classi fications country produced mr taylor tendered report precisely accurate mr emmott generally agreed mr taylor classification country carrying capacity understood property previously assessed capable carrying 6 500 sheep part original objection inspection valuer time observe increase woody weed confirm significant pa rt originally good grassland lost thick bendee gidyea bluebell bush none edible long experience managing prope rty mr emmott challenged mr taylor opinion property way suitable fo r sheep breeding effort try breed frustrated low lambing percentage potential flooding channel country made dangerous lambing ewe included mr emmott evidence refe rence significant stock loss resulting activity dingo signifi cant cost involved control another particular problem mentioned abnormal maintenance cost fencing 3 mr taylor swayed opinion th breeding sheep possible noonbah albeit lower av erage lambing percentage fully aware dingo problem prevalence woody weed di sagree noonbah would economically unviable due inferior overall nature country resultant low carrying capacity however opinion valuation equated unimproved sheep area value le 10 various disability including low rainfall drought susceptibility remote location sufficiently recognised inspected thurles park established sale price 410 000 may 1994 area involved sale recorded 34 400 ha 40 000 ha suggested mr emmott mr ta ylor verbal information evengy recently sold understood sale price 300 000 sale one saw relevance much earlier date subject valuation brief detail sale upon mr taylor relied 1 merriman 16 967 ha 20 3 95 522 244 analysed 5 35 per ha unimproved applied valuation 4 77 per ha carrying cap acity 1 2 5 ha equivalent sheep area value 11 93 2 namarva 25 135 ha 11 95 780 000 analysed 5 47 per ha unimproved applied valuation 4 73 per ha carrying capac ity 1 3 ha equivalent sheep area value 14 19 3 waroona 13 581 ha 16 5 95 770 000 analysed 11 61 per ha unimproved applied valuation 11 60 per ha carrying cap acity 1 1 8 ha equivalent sheep area value 20 88 mr emmott expressed surprise learn sale upon mr taylor relied support valuation appealed opportunity investigate sale concentrated sale eviden ce understood adopted basis pointed property namarva closer winton would enjoy higher average rainfall subject property finding dispute carrying capacity property lack viability individual holding area disagreement description property whether potential sheep breedi ng prefer appellant opinion based long association subject land gard nevertheless mr taylor specifically inspected property purpose ppeal hearing inspected sale property provided analysis sale sale superior productive potential overall country type mr taylor professional opinion court 4 unimproved value subject land ba sed actual sale evidence whether sale evidence included original valuer basis unknown largely irrelevant mr emmott given consideration market evidence relative much larger property seems endeavoured consider impr oved value rather unimproved concerned subject property would prac tical sense difficult sell even conservative value improvement observed added value improvement noonbah could subject considerable argument even heavily discounted value replacement cost due th e limited potential property run separate entity noonbah clearly property infe rior nature many disability evidence suggests however disability recognised valuation appealed said represent one lowest level value shire onus matter appellant prove ground appeal valuation appealed wrong convinced latter proved appeal therefore dismissed valuation chief executive affirmed wenck member land court

Dyldam Developments Pty Ltd v The Owners âe" Strata Plan No 85305 [2019] NSWCATAP 229 (16 September 2019).txt

dyldam development pty ltd v owner âe stratum plan 85305 2019 nswcatap 229 16 september 2019 last updated 16 september 2019civil administrative tribunalnew south walescase name dyldam development pty ltd v owner stratum plan 85305medium neutral citation 2019 nswcatap 229hearing date 31 may 2019 final submission 28 august 2019 date order 16 september 2019decision date 16 september 2019jurisdiction appeal panelbefore armstrong j presidentl pearson principal memberdecision 1 appeal dismissed 2 party seek order cost appeal party may file written submission within 14 day publication reason seeking order relation cost appeal 3 party file submission accordance order 2 party may file submission response within 14 day 4 submission filed accordance order 2 3 address whether question cost may determined paper without hearing pursuant tos 50 2 thecivil administrative tribunal act 2013 catchword home building time commence proceeding consideration interim final occupation certificate collateral review legislation cited building professional act 2005 nsw building professional regulation 2007civil administrative tribunal act 2013 nsw charter right responsibility act 2006 vic conveyancing act 1919 nsw interpretation act 1987 nsw environmental planning assessment act 1979 nsw environmental planning assessment amendment act 2017 nsw environmental planning assessment regulation 2000home building act 1989 nsw home building amendment act 2011 nsw home building amendment act 2014 nsw residential tenancy act 1997 vic victorian civil administrative tribunal act 1998 vic case cited acma v today fm sydney pty ltd 2015 hca 7bankstown city council v ramahi 2 2016 nswlec 34albarran v member company auditor liquidator disciplinary board 2007 251 clr 350alz v safework nsw 2017 nswcatap 51attorney general new south wale v gatsby 2018 nswca 254burwood council v ralan burwood pty ltd 3 2014 nswca 404cachia v isaac 1985 3 nswlr 366cessnock city council v laila investment pty ltd 2012 nswlec 206chase oyster bar v hamo industry pty ltd 2010 nswlr 393cic insurance ltd v bankstown football club ltd 1997 187 clr 384 1997 hca 2collector custom v agfa gevart ltd 1996 hca 36 1996 186 clr 389collector custom nsw v brian lawlor automotive pty ltd 1979 fca 21 1979 2 ald 1concourt pty ltd v kerr 2015 nswcatap 106dino dinov v allianz australia insurance ltd 2017 nswca 270director housing v sudi 2011 vsca 266federal airport corporation v aerolineas argentina 1997 fca 723 1997 76 fcr 582gray v woollahra municipal council 2004 nswsc 112grygiel v baine or 2005 nswca 218jacobs v onesteel manufacturing pty ltd 2006 sasc 32 2006 93 sasr 568karan v champion home sale pty ltd 2016 nswcatcd 84minister immigration ethnic affair v teo 1995 fca 1203nsw breeding racing v administrative decision tribunal nsw 2001 nswsc 494 2001 53 nswlr 559northern residential pty ltd v newcastle city council 2009 nswca 141ousley v queen 1997 hca 49 1997 192 clr 69owners corporation stratum plan 64757 v mja group pty ltd 2011 nswca 236project blue sky inc v australian broadcasting authority 1998 hca 28 1998 194 clr 355r v trade practice tribunal ex parte tasmanian brewery pty ltd 1970 hca 8 1970 123 clr 361ritau v commissioner police 2000 nswadt 186technical product pty ltd v state government insurance office queensland 1989 hca 24 1989 167 clr 45timothy neil mcqueen v leduva pty limited 2008 nswsc 284the owner stratum plan 89023 v building pty limited mowbray road pty limited trustee mowbray unit trust 2018 nswcatacd 33the owner stratum plan 82076 v taricon pty ltd 2017 nswcatcd 37visy paper pty ltd v australian competition consumer commission 2003 hca 59 2003 216 clr 1texts cited aronson grove week judicial review administrative action government liability 6th ed 2017category principal judgmentparties dyldam development pty ltd appellant owner stratum plan 85305 respondent representation counsel l shipway appellant hand respondent solicitor paramonte legal appellant chamber russell respondent file number ap19 16163publication restriction nildecision appeal court tribunal civil administrative tribunaljurisdiction consumer commercial divisioncitation n adate decision 5 march 2019before goldstein senior memberfile number hb 18 42848reasons decisionintroductionthis appeal concern correctness decision tribunal dismiss application dyldam development pty ltd dyldam order effect proceeding hb18 42848 brought owner stratum plan 85305 owner brought outside limitation period specified in 18eof thehome building act 1989 nsw hb act order 1 made 5 march 2019 following term dyldam development pty ltd application order time limit owner stratum plan 85305 commenced proceeding expired 5 september 2018 result proceeding brought time dismissed order 2 5 made direction determination cost application associated application dispute decision ancillary decision purpose thecivil administrative tribunal act 2013 nsw ncat act 4 1 internal appeal decision may made right question law 80 2 b ncat act backgroundthe relevant factual background set agreed statement fact well decision tribunal dated 5 march 2019 dyldam property developer construction company 23 june 2004 holroyd city council issued notice determination application relation development consent 2004 446 site located 67 71 bangor street guildford development consent development consent granted conditional approval demolition three dwelling site erection three storey residential building containing 18 two bedroom apartment basement parking development consent stated page 20 prior issue occupation certificatethe following condition complied prior issue interim final occupation certificate following heading condition 87 116 relevant condition include condition 94 playground equipment certification required installer playground equipment provide certification equipment constructed installed accordance relevant australian standard condition expressly noted fulfilled first occupation certificate condition 103 fire safety required submission final fire safety certificate pursuant cl 170 theenvironmental planning assessment regulation 2000in respect essential fire safety measure safety measure listed fire safety schedule attached construction certificate condition 107 site detention certification covenant required positive covenant restriction use site stormwater detention system registered title condition expressly noted fulfilled first interim occupation certificate second interim occupation certificate condition 109 114 road work required construction certain road work including vehicular crossing kerb gutter concrete footpath road footpath widening well removal existing vehicular crossing laybacks compliance certificate condition expressly noted fulfilled first interim occupation certificate second interim occupation certificate condition 116 design verification statement required design verification statement submitted certifier upon completion work condition expressly noted fulfilled first interim occupation certificate 2010 2011 dyldam carried construction work development september 2011 two interim occupation certificate issued principal certifying authority pca dix gardner private certifier engaged dyldam respect development first issued 5 september 2011 amended certificate second issued 9 september 2011 first interim occupation certificate dated 5 september 2011 identified land provided detail applicant owner development consent construction certificate detail certifying authority stated type certificate interimdetermination approved whole part building work wholedescription part applicable excludes condition 94 107 109 114 116bca classification class 2 7a second interim occupation certificate dated 9 september 2011 provided detail stated type certificate interimdetermination approved whole part building work wholedescription part applicable excludes condition 107 109 114bca classification class 2 7a interim occupation certificate stated attachment 1 certificate relied upon2 final fire safety certificateon 12 october 2011 dix gardner issued final occupation certificate stated applied whole building work n description part applicable 31 october 2011 88bconveyancing act1919

R v Rowland; R v Herceg [2016] ACTSC 192 (8 July 2016).txt

r v rowland r v herceg 2016 actsc 192 8 july 2016 last updated 3 august 2016supreme court australian capital territorycase title r v rowland r v hercegcitation 2016 actsc 192hearing date 7 8 july 2016decisiondate 8 july 2016before murrell cjdecision rowland sentenced four year six month imprisonment aggravated robbery nonparole period two year four month see 51 52 herceg sentenced total 21 month imprisonment nine month served full time remainder suspended 12 month good behaviour order see 53 55 catchword criminal law jurisdiction practice procedure judgment punishment sentence serious aggravated robbery supermarket armed companycriminal law jurisdiction practice procedure judgment punishment sentence driving motor vehicle taken without consent accessory fact robbery driver getaway carlegislation crime sentencing act2005

TOWN OF PORT HEDLAND -v- REECE WILLIAM HODDER BY NEXT FRIEND ELAINE GEORGINA HODDER [2012] WASCA 9 (17 January 2012).txt

town port hedland v reece william hodder next friend elaine georgina hodder 2012 wasca 9 17 january 2012 last updated 17 january 2012 jurisdiction supreme court western australiatitle court court appeal wa citation town port hedland v reece william hodder next friend elaine georgina hodder 2012 wasca 9coram pullin jaheard 20 december 2011delivered 17 january 2012file cacv 123 2011between town port hedlandappellantandreece william hodder next friend elaine georgina hodderfirst respondentthe young men christian association perthsecond respondenton appeal jurisdiction district court western australiacoram neal dcjcitation hodder next friend elaine georgina hodder v town port hedland 2011 wadc 145file civ 1316 2008catchwords practice procedure application suspension order pending hearing appeallegislation nilresult application grantedcategory brepresentation counsel appellant mr walsh qc mr mcdonaldfirst respondent mr g droppertsecond respondent mr r clynesolicitors appellant dla piper australiafirst respondent donna percy cosecond respondent srb legalcase referred judgment eastland technology australia pty ltd v whisson 2003 wasca 307 2003 28 war 308mr rc smith pty ltd ultratune osborne park v wyatt 2011 wasca 43samuels v state western australia 2005 wasca 193 2005 30 war 4731pullin ja appellant appealing decision district court appellant found liable personal injury suffered first respondent district court ordered appellant pay first respondent damage sum 5 85 million first respondent suffered serious disability caused cerebral palsy incident dived swimming pool owned appellant rendered quadriplegic treatment care expensive first respondent mother also next friend litigation requires fund ongoing basis bear entire burden caring first respondent 2 appellant sought stay judgment pursuant r 44 thesupreme court court appeal rule 2005 wa 3 general principle apply relation application set ineastland technology australia pty ltd v whisson 2003 wasca 307 2003 28 war 308 see also mr rc smith pty ltd ultratune osborne park v wyatt 2011 wasca 43 4 applicant stay carry onus moving court exercise discretion grant stay first issue usually confronted whether stay necessary preserve subject matter integrity litigation whether refusal stay could create practical difficulty respect relief may granted appeal without grant stay right appeal rendered nugatory 5 shown appeal rendered nugatory without stay next point consider whether appeal reasonable prospect success established ground appeal rational logical prospect succeeding would irrational fanciful absurd envisage success appeal samuel v state western australia 2005 wasca 193 2005 30 war 473 56 6 even may shown appeal rendered nugatory reasonable prospect success final matter considered balance convenience 7 case money paid respondent appeal determined may real risk money dissipated entirely becomes impossible appeal succeeds make order see appellant repaid money case would prospect complete dissipation judgment sum 5 85 million paid paid national australia trustee result order made trial judge order made approving compromise settlement concerning quantum claim sum invested tax free environment next friend given undertaking pending appeal seek payment due past gratuitous service take first respondent holiday away perth might also result expenditure substantial money 8 first respondent also obtained undertaking disability service commission quadriplegic centre health corporate network wa health undertaking seek recovery first respondent money due pending hearing appeal 9 however appellant make clear money spent trustee paying ongoing expense relating care maintenance first respondent pending outcome appeal 10 money recoverable appellant appeal succeeds extent appellant able restored original position succeeds appeal hand limit 300 000 put may expended pending hearing appeal well 95 judgment sum recoverable trustee appeal succeed fact recoverable matter weighed balance considering balance convenience 11 appellant prospect success satisfied reasonable prospect success appellant first ground appeal asserts trial judge erred holding reasonable care part appellant safety first respondent one class entrant aquatic centre required removal shallow end starting block first respondent dived also particular ground trial judge erred holding merit appointment second respondent manager swimming pool reasonable response risk posed second ground contends trial judge erred law holding second respondent required indemnify appellant erred proper construction agreement relevant issue indemnity ground allege trial judge erred law determining second respondent breach duty causative first respondent injury loss erred failing order contribution second respondent erred assessment first respondent contributory negligence manifestly inadequate 12 finally necessary consider balance convenience case judgment sum reasonably necessarily spent pending hearing appeal although extent appellant lose amount even appeal succeeds weighed fact appellant case trial entitled judgment sum disadvantaged judgment sum made available pending hearing appeal clear case appellant need money pending hearing appeal 13 three factor normally considered namely whether appeal rendered nugatory entirely extent question whether appeal reasonable prospect success general discretionary factor concerning balance convenience factor weighed making decision whether stay granted court must try balance interest party best 14 application kind always nothing outcome one case case undertaking part next friend first draw money next friend would entitled secondly draw money take first respondent holiday order limiting amount spent care maintenance pending hearing appeal led accept undertaking make following order 20 december 2011 subject first respondent undertaking order application dismissed b national australia trustee directed expend total sum 300 000 judgment sum interest accrued thereon maintenance welfare advancement otherwise benefit first respondent without order court c first respondent serve copy order national australia trustee within 7 day date order liberty apply e cost application appeal

Campbell Susan on behalf of Tibble Eleanore and Campbell Susan -v-FLGOFF Smith B , FLGOFF G Kowalik and Australian Air Force Cadets [2004] TASADT 16 (12 March 2004).txt

campbell susan behalf tibble eleanore campbell susan v flgoff smith b flgoff g kowalik australian air force cadet 2004 tasadt 16 12 march 2004 last updated 21 august 2006anti discrimination decision 2004 tasadt 16parties campbell susan behalf tibble eleanore andcampbell susan v flgoff smith b flgoff g kowalik australian air force cadetsfile delivered 12 march 2004decision h wood chairpersoncatchwords equal opportunity preliminary issue regarding jurisdiction person subjected alleged discrimination died alleged discrimination occurred complaint made complaint made mother deceased whether complaint properly made behalf deceased person whether complainant made valid complaint right basis also subjected discrimination whether allegation conduct proved could give rise breach act whether determination could made alleged conduct fall within area activity prescribed act consideration threshold test determining whether complaint dismissed preliminary stage inquiry whether sufficient material proved could satisfy tribunal breach act anti discrimination act 1998 ta s 22 60 61 62 68 69 84 89 99 104representation counsel complainant m johnstonrespondent m eastmansolicitors complainant simmons wolfhagenrespondent phillips foxdecision number 2004 tasadt 16number paragraph 83reasons decision1 decision relates number preliminary issue arisen relation complaint referred anti discrimination tribunal tribunal inquiry issue raised direction conference direction conference convened tribunal purpose case management complaint listed inquiry 2 respondent represented m eastman complainant m campbell unrepresented participated proceeding son support person m eastman m campbell provided written submission tribunal supplemented submission oral submission direction conference held address preliminary issue 23 january 2003 decision reserved letter dated 29 january 2003 mr gibson solicitor respondent wrote tribunal drawing tribunal attention additional case relied upon m eastman 3 relevant fact dispute purpose tribunal determination preliminary issue fact summarised respondent written submission stage purpose determining preliminary issue respondent content tribunal take account document provided commissioner tribunal including referral report document set paragraph f report factual information also contained complainant written submission m eastman indicated tribunal content tribunal take account information well 4 tribunal taken account document purpose determining issue arisen m eastman written submission provide useful outline fact convenient set outline 8 august 2001 m campbell lodged complaint behalf deceased daughter eleanore tibble see doc 1 referral report m campbell alleged daughter discriminated ground age gender sex education training membership activity club also alleged victimisation complaint concerned alleged treatment eleanore tibble airtc october november 2000 eleanore tibble cadet sergeant 1 flight tasmanian squadron air training corp tasairtc 15 august 2000 lac harper instructor 1 flight tasairtc resigned admitted relationship female cadet identify cadet time short time later eleanore tibble identified female cadet 5 october 2000 eleanore interviewed flgoff kowalik m campbell alleges interview took place without knowledge consent 12 october 2000 eleanore signed record relation conversation allegedly took place 5 october 2000 airtc parade m campbell alleges eleanore forced coerced sign document 30 october 2000 flgoff smith telephoned eleanore home informed resign position would forced leave airtc flgoff smith also spoke m campbell informed conversation eleanore m campbell alleges eleanore told brought dishonour upon number one flight alleges eleanore denied right appeal 1 november 2000 flgoff kowalik telephoned eleanore told could parade following thursday 2 november 2000 eleanore sought written confirmation verbal communication made flgoff smith flgoff kowalik regarding status tasairtc 27 november 2000 eleanore committed suicide m campbell alleges eleanore full adult member raaf charged offence may court marshalled faced procedural consequence would offered right defence legal representation presumption innocence proven guilty para 6 16 inclusive respondent written submission 5 noted complainant written submission provide detail fact including interview m campbell daughter telephone call 30 october 2000 1 november 2000 6 question arise consideration also set m eastman written submission question 1 tribunal jurisdiction theanti discrimination act1988 ta act inquire allegation discrimination federal body australian air force cadet formally known air training corp airtc question 2 m campbell lodge claim behalf deceased daughter eleanore tibble question 3 m campbell lodge claim right question 4 flight officer flgoff smith flgoff kowalik airtc discriminated m tibble basis age gender breached section 17 1 act ie offensive conduct question 5 airforce cadet liable breach flgoff smith flgoff kowalik section 104 theanti discrimination act page 1 2 respondent written submission question 1 jurisdiction commonwealth bodies7 respondent written submission paragraph 65 identify 3 issue arise relation first question 1 act properly construed bind crown right commonwealth 2 implied constitutional immunity mean act cannot apply commonwealth entity employee volunteer 3 act inconsistent commonwealth law regulating defence force para 65 respondent written submission 8 noted respondent reserve right relation second third issue would seek leave question determined question determined 9 m eastman submission tribunal consideration stage proceeding confined first issue described question statutory construction whether theanti discrimination act 1998 act applies commonwealth body m eastman reserved right make submission later time constitutional argument refer issue 2 3 may flow tribunal determination concerning construction act tribunal considers approach appropriate stage tribunal consider first issue regarding construction act 10 respondent made following submission relation first issue set respondent submit act application commonwealth body act commonwealth employee volunteer particularly performing duty associated theair force act1923

Bradley and Minister for Immigration and Citizenship [2011] AATA 646 (15 September 2011).txt

bradley minister immigration citizenship 2011 aata 646 15 september 2011 bradley minister immigration citizenship 2011 aata 646 15 september 2011 last updated 16 september 2011administrative appeal tribunaldecision reason decision 2011 aata 646administrative appeal tribunal 2011 2591general administrative division rerichard alexander bradleyapplicantandminister immigration citizenshiprespondentdecisiontribunalms regina perton memberdate15 september 2011placemelbournedecisionthe tribunal set aside decision review remit matter respondent direction discretion cancel mr bradley visa pursuant tosection 501 2 themigration act 1958not exercised sgd membermigration citizen united kingdom class bf transitional permanent visa cancellation conviction serious offence character test exercise discretionmigration act 1958ss 499 1 499 2a 501 2 501 6 501 7 minister immigration local government ethnic affair v batey 1993 fca 75 1993 112 alr 198re stone minister immigration ethnic affair 1981 3 aln 81reasons decision15 september 2011ms regina perton memberrichard bradley born scotland citizen united kingdom migrated australia age 10 month 1965 parent elder sister apart short overseas holiday 1994 1996 remained australia since family migrated 46 year old mr bradley convicted murder sentenced 20 december 1999 17 year imprisonment non parole period 13 year appeal conviction dismissed 28 november 2001 mr bradley released parole 14 june 2011 20 june 2011 delegate minister immigration citizenship minister decided cancel theclass bf transitional permanent visaheld mr bradley pas thecharacter testset themigration act 1958 act due criminal record mr bradley served notice cancellation 23 june 2011 since held immigration detention mr bradley maintains commit murder however tribunal unable go behind conviction sentence tribunal must decide whether exercise discretion cancel mr bradley visa despite failure pas thecharacter test involves assessment number prescribed consideration set legislative backgroundsection 501 2 themigration act 1958provides minister may cancel visa granted person minister satisfied person pas thecharacter test several ground set in 501 6 act met lead failure character test ground applicable matter found in 501 6 person substantial criminal record defined subsection 7 section 501 7 c provides person asubstantial criminal recordifthe person sentenced term imprisonment 12 month unders 499 1 act minister may give direction person body performing function exercising power act direction accordance withs 499 2a person body must comply 3 june 2009 minister exercising power unders 499 1 act issueddirection 41 visa refusal cancellation unders 501 direction41 came operation 15 june 2009 direction provides guidance decision maker making decision refuse cancel visa unders 501of act including exercise discretion decide whether non citizen permitted enter remain australia circumstance person pas character test paragraph 9 direction 41 requires decision maker take account four primary consideration every case set paragraph 10 1 protection australian community serious criminal harmful conduct particularly crime involving violence b whether person minor began living australia c length time person ordinarily resident australia prior engaging criminal activity relevant conduct relevant international obligation including limited best interest child described convention right child croc ii non refoulement obligation contained convention protocol relating status refugee refugee convention international covenant civil political right iccpr convention torture cruel inhuman degrading treatment punishment cat paragraph 11 direction 41 provides thatother consideration primary consideration taken account include family tie person age health link country person would removed hardship person immediate family lawfully resident australia person level education whether person advised previously deportation character provision act paragraph 11 also note consideration generally given le weight thanprimary consideration mr bradley failure meet character testmr bradley concedes tribunal find substantial criminal record therefore fails meet character test first primary consideration protection australian community serious criminal harmful conductparagraph 10 1 2 direction 41 provides factor relevant assessing level risk community include seriousness nature relevant conduct b risk conduct may repeated seriousness nature conductparagraph 10 1 1 1 direction 41 specifies crime involving violence threat violence special concern welfare safety australian community crime involving violence especially abhorrent whole community murder obviously example abhorrent serious offence paragraph 10 1 1 3 5 direction 41 require decision maker exercising discretion take account number factor sentence imposed offence considered indicative offender conduct community regard must also given number nature offence period offence time elapsed since recent offence factor considered include relevant information including limited evidence independent authoritative source judicial comment professional psychological report parole assessment mr bradley criminal history follows courtdateoffencecourt resultvictorian supreme court08 nov 1999murderimprisonment 17 yearsvictorian county court04 apr 1991theft 2 charge go equipped steal cheat 2 charge count community based order 18 month perform 150 hoursbroadmeadows magistrate court19 may 1986assault kickingassault police person assisting policedrunk public placeassault police person assisting policefined 250fined 200fined 50albury district court15 dec 1983break enter steal 2 count imprisonment 17 yearsconvicted released entering recognizance self 1000 good behaviour 3 year pay compensation 1066 mr bradley appealed conviction sentence murder 28 november 2001 court appeal dismissed appeal mr bradley 522 day pre sentence detention taken account calculating eligibility parole paroled 14 june 2011 mr bradley widow victim found guilty murder jury jury found mr bradley accepted contract man wife kill man barely known victim wife worked mr bradley partner victim killed bullet wound head bullet linked sawn rifle owned mr bradley mr bradley conceded visited victim night killing partner victim wife socialising killing victim wife withdrew money bank mr bradley paid cash car repair high value note following day another piece circumstantial evidence sentencing remark vincent j included case richard bradley jury found killed deceased motivation engagement crime desire secure financial gain commission perhaps possible reason destruction human life one ignoble ormiston j court appeal refusing appeal pointed evidence support prosecution case entirely circumstantial indeed obvious motive murder suggestion done money arguably significant element crown case fact applicant gun kept bedroom drawer used shoot deceased also evidence sought mislead police first questioned saying time know deceased killed sought dispose murder weapon quickly sending bendigo factual basis applicant conviction seen evidence given trial course trial applicant victim wife judge gave appropriate instruction jury mr bradley described circumstance surrounding previous conviction first offence 18 year old involved equally drunken housemate breaking liquor store throwing brick window stole whisky bourbon preferred beverage friend arrested two day later mr bradley pleaded guilty released good behaviour bond paid compensation loss incurred store mr bradley said second offence occurred 1986 night 21stbirthday celebration friend heading nearby convenience store replenish supply soft drink mr bradley passenger car driven sober guest another carcut offmr bradley car stopped remonstrated driver convenience store near police station driver assaulted turned duty policeman heading work assault taking place front police station given lightness sentence seems unlikely assault serious end spectrum next conviction five year later involved theft equipment vicrail mr bradley worked vicrail time shunter group worker regularly took item store one shift mr bradley joined stored item intended use personally garage police investigated everyone shift mr bradley caught received community based order lost vicrail job community service comprised scraping tar hull museum ship minister representative described mr bradley first three conviction asrelatively minor mr bradley expressed regret conviction however murder conviction 17 year sentence clearly serious abhorrent crime mr bradley expressed regret death victim remorse stated kill risk conduct may repeated paragraph 10 1 2 b direction 41 requires tribunal assessing risk harm community consider risk conduct may repeated factor amplified paragraph 10 1 2 directs tribunal attention person previous general conduct total criminal history evidence breach judicial order evidence extent rehabilitation already achieved prospect rehabilitation written oral evidence tribunal indicates mr bradley conducted model prisoner became mentor younger prisoner prison completed several program including workplace trainer introduction psychology prisoner listener program intellectual disability mentoring program odyssey house harm reduction program worked cook one prison gardener another maintained strict fitness regime adverse report behaviour prison serious offender initially housed high security prison downgraded 2002 lower security prison ultimately open prison farm allowed contact family visit last year sentence prison record indicate long list visitor including wife child stepchild sibling friend september 2010 mr bradley selected participate intensive integration program long term prisoner judy lazarus transition centre jltc served last nine month sentence facility house 25 prisoner time granted leave numerous occasion jltc initially escorted first month unsupervised unescorted although accountable time supervisor term particular location time undertook work experience community work study obtained number employment related qualification including forklift licence heavy rigid truck licence completed dogging course basic intermediate rigging course period leave became longer time went week mr bradley required stay jltc night month parole four period 48 hour home leave saturday morning sunday night m megan mcclelland acting senior transition officer jltc provided statement 1 july 2011 stated amongst thing centre accommodates 25 prisoner within final 12 month sentence importantly considered suitable jltc prisoner must assessed low security risk significant transitional need addressed unescorted permit community carefully selected classified centre must demonstrated good behaviour custody participated required offence specific treatment program risk assessment conducted prior transfer monthly placement jltc ensure placement place community risk mr bradley completed escorted unescorted permit without incident proactive motivated completing education vocational training assist employment post release compliant committed moving transition program highly motivated committed achieving goal mr bradley place interpersonal relationship high priority life writer doubt continue strive strengthen family relationship writer considers mr bradley removal australia counterproductive transition supportive community family towards final month sentence mr bradley spending majority time unescorted community mr bradley demonstrated motivated ability successful offence free life upon release m mcclelland acting manager system planning sentence management branch correction victoria confirmed still held view mr bradley said 0 5 victorian prisoner opportunity participate jltc program criterion selection include sentence three year history good behaviour prison risk assessment process special category prisoner convicted murder lengthy sentence enter jltc program includes individual assessment ministerial advisory committee includes representative victoria police member community mr bradley assessed regularly throughout imprisonment going jltc achieved rating allowing housed minimum security prison achieve rating relevant overseeing committee confident prisoner risk community jail staff inmate date likelihood return prison completing jltc program far lower prisoner sister mary shannassy director catholic prison ministry victoria provided statement dated 17 july 2011 sister shannassy stated first metmr bradley came custody maintained contact release jltc indicated many conversation withmr bradley prison year assessment history time prison includes following initial stage settling prison routine richard soon turned effort supporting others year took opportunity train various supportive role sic within prison resident e g port phillip prison undertook training prison listener enable sic richard listen prisoner e g challenged environment received message serious illness loss within family especially counsellor chaplain left prison role fulfilled port phillip prison loddon prison loddon prison richard also undertook training mentor intellectually disabled resident one two mentor cottage style accommodation 2 intellectually disabled men involved amongst thing assisting men learn care e g personal hygiene caring clothes etc caring clothes etc caring home assisting contribute learning prepare cook meal learn table manner clean etc experienced richard supportive men came prison first time dhurringile prison richard involved community work within community richard also struggled last year dhurringile judy lazarus transitional centre wife diagnosed cancer really concerned child well wife endeavoured could assist distance challenge continues richard family would respectfully request consideration given discern way forward richard future citizen potential contribute positively society life parole board determined appropriate grant mr bradley parole first eligible date condition include advising change address employment reporting least twice week supervising community correction officer parole expires 14 june 2015 mr bradley started work day following release parole obtained position mcg crane worked including 23 june 2011 day notified cancellation visa pending deportation tribunal note following sentencing remark vincent j expressed view mr bradley prospect rehabilitation weregood richard bradley married aged 44 sic year child born present marriage two child earlier relationship family background unfortunate parent separating quite young placed foster care year ten year age placed baltara child home aged 12 appears subjected sexual abuse returned live mother father 13 upon leaving school commenced employment victorian railway remained eight year changed employment twice year followed seems constant employment sustained injury playing football eight week prior killing deceased prepared accept basis number matter including written reference tendered behalf course plea employment history history member army reserve participation local sporting activity assistance provided inmate period detention remand generally conducted person good character number sens consider done rather well overall basis unfortunate background prospect rehabilitation must considered background accordingly regard good dr nigel strauss consultant psychiatrist prepared report dated 29 august 2011 request minister representative dr strauss opinion aboutmr bradley expressed report follows psychiatric point view doubt man psychiatric illness believe psychiatric illness influenced behaviour past word believe man past psychiatric history believe currently psychiatric illness believe man genuine attempt rehabilitate believe shown work following release jail believe genuine desire continue employment also left impression genuine desire family support family note extended family note three natural child two natural grandchild apart step child step grandchild impression close member family note formed acceptable relationship stepfather claim stepfather violent abusive argument appear mr bradley maintains reasonable relationship man well maintaining good relationship mother could determine significant risk point view man might post australian community allowed remain living australian community believe man genuine family association country believe proven rehabilitation prospect good believe deported u k would probably cause significant emotional difficulty mr bradley also immediate extended family believe mr bradley difficult childhood adolescence believe resulted development psychiatric condition man require treatment point view oral evidence dr strauss said cannot guarantee risk recidivism matter said know statistical risk commented person need assessed individual maintained opinion psychiatric point view little likelihood thatmr bradley would offend dr strauss said indicator point mr bradley good prospect continued rehabilitation dr strauss commented thatmr bradley difficulty formative year stepfather subsequent reconciliation positive factor demonstrating mr bradley resilience ability cope many family friend mr bradley provided statement tribunal expressed unanimous view believe risk mr bradley would offend tribunal also statement mr bradley former employer colleague mr luke squire project manager prime project construction australia pty ltd provided undated statement described mr bradley beingvery hard working highly competent employee mr squire originally gained mr bradley employment jltc immediately impressed went state time rick worked got know fairly well convinced considering rick past history changed man could see hard worked job getting life back together convinced intention hence attempted gain rick full time employment released rick however interested gaining employment crane hence provided reference mcg crane eventually becoming rick employer since spoken mick mcg confirmed rick excellent employee got really well boy subsequently disappointed hear current circumstance wish confirm would huge mistake keep detaining rick bradley issue residency australia believe much offer society offer much industry worker like becoming rare need like lose one would waste disappointment mr mick martin director general manager mcg crane provided statement dated 6 july 2011 stated mr bradley working alongside employee building site brunswick traineedogmanover previous month mr martin said interviewed mr bradley relation another building site impressed honest account past plan future point thought would good employee keen get work learn new trade start started work one construction site camberwell made regular inquires progress men worked staff job little surprised highly everyone spoke keen work keen learn popular rick mother contacted tell would work indicated outcome favourable would hesitation rick back team mr david lee co worker mr bradley mcg crane provided statement dated 27 august 2011 stated amongst thing richard enthusiastic worker always keen learn type work punctual attentive obviously showed desire get life outside betterment family know position still available richard earns good income job consequently would reliant welfare would able support family would happy taxpayer writing found richard decent person good demeanour spending 13 year confinement released able find job life derailed therefore implore show compassion give richard chance prove family community decent member society mr michael egan crane co ordinator oh representative large building company hansen yuncken provided statement dated 29 august 2011 stated conducted induction mr bradley 15 june 2011 mr egan stated mr bradley candid past wasshaping top confident crane crew member also stated mr bradley job remained open said workmatessincerely hope decision richard detained immigration reversedin thisnation fair go mr bradley employed since leaving school completing year 10 worked first tallow factory company making billiard table shunter vicrail several year vicrail promoted supervisory role lost job result theft leaving vicrail worked kraft food storeman moved rank senior position apart two month work due broken hand sustained playing football appears working life leaving school charged murder minister representative provided tribunal report includingrecidivism rate custodial population influence criminal history offence gender factor stuart ross tricia guarnieri february 1996 criminology research council grant 35 89 author examined recidivism pattern 838 offender release victorian prison may 1985 december 1986 period seven half year amongst finding recidivism rate decline age person imprisoned property offence likely offend age first offence conviction strong correlate recidivism namely younger person first time round likely would convicted research showed high proportion conviction within first year release report note homicide offender conviction rate markedly sample average inre stone minister immigration ethnic affair 1981 3 aln 81 davy j held even risk recidivism high strongly support deportation visa cancellation recidivism occur may cause great harm inminister immigration local government ethnic affair v batey 1993 fca 75 1993 112 alr 198the full court federal court held real risk recidivism one far fetched fanciful include low minimal risk considering likelihood recidivism tribunal find offence mr bradley convicted 1999 extremely serious however earlier offence least 20 year ago receive custodial sentence offence evidence m mcclelland sister shannassy dr strauss believe mr bradley would offend mr bradley record prison unblemished chosen participate highly sought rehabilitation program selection included risk assessment independent ministerial advisory committee large community jltc without incident total compliance schedule provided management jltc parole board granted mr bradley parole earliest eligible date subject supervision mid 2015 parole mr bradley close supportive family employer work colleague well family friend describe mr bradley diligent hard working employed since leaving school promoted responsible position demonstrated commitment employed circumstance tribunal find risk mr bradley willre offend low however given seriousness offence imprisoned relying onre stone tribunal concludes first primary consideration weighs slightly favour cancellation visa second primary consideration whether mr bradley minor began living australiaparagraph 10 2 direction 41 provides favourable consideration given person minor first began living australia spent formative year australia le weight given person began living australia minor close attaining adulthood time mr bradley 10 month old first began living australia lived ever since familial tie australia second primary consideration weighs cancellation visa third primary consideration length time mr bradley ordinarily resident australia prior engaging criminal activityparagraph 10 3 direction 41 provides consideration given length time person ordinarily resident australia favourable consideration given longer person ordinarily resident australia prior engaging criminal activity activity reflects negatively person character mr bradley committed first offence 18 year old second 21 year old australia 17 year first offence committed third primary consideration limited relevance matter fourth primary consideration relevant international obligationstheinternational convention civil political rightsand theconvention torture cruel inhuman degrading treatment punishmentmust considered relevant given mr bradley would deported united kingdom also signatory convention would impact convention theconvention right child croc provides action involving child best interest child primary consideration interest mr bradley four year old daughter substantially affected cancellation mr bradley visa mr bradley two grandchild step grandchild also 18 year age affected cancellation best interest childparagraph 10 4 1 4 note australian law generally presumed child best interest served child remains parent paragraph 10 4 1 5 set factor taken account considering best interest child nature relationship child person example relationship parental right regular meaningful contact child compared relationship long period absence limited meaningful contact child b duration relationship including number length separation reason separation c extent person likely play full parental role child eighteenth birthday child age e whether child australian citizen permanent resident new zealand citizen f likely effect separation person would child g existence person already fulfil parental role relation child h impact person prior conduct whether conduct negative positive contact child time child spent australia j court order relating parental access care arrangement k known wish expressed child l whether child likely accompany person overseas event person removed australia circumstance probable country future residence including educational facility standard health support system country person permitted enter remain australia taking account higher standard health educational service australia mean non citizen child removed another country n language barrier child probable country future residence taking account relative ease younger child acquire new language cultural barrier child probable country future residence taking account relative ease younger child generally adapt new circumstance amanda bradley born australia 2007 australian citizen child mr bradley wife lana bradley married october 1999 conceived authorised conjugal visit whilemr bradley prison wife wanted child relationship mr bradley lana bradley remain married mr bradley still prison regular family contact visit wife would bring daughter jltc mr bradley spent much available weekend leave amanda visit father day immigration detention centre except tuesday kindergarten mr bradley described amanda asmy light despite separation due mr bradley imprisonment current detention child mother well family witness attested close bond mr bradley amanda mr bradley expects play full parental role amanda life beyond daughter eighteenth birthday amanda mother agreed expectation well however obviously difficult another country communicate remotely separation mr bradley would mean amanda would lose physical contact guidance father lana bradley poor health receiving cancer treatment debilitating back condition mr bradley parent concerned might happen cancer spread lana bradley dy amanda still child may well result brought partly extended family rather parent father deportation would probably result amanda much poorer financial circumstance mother may well unable work given poor physical condition amanda might dependent social security benefit present father immigration detention amanda half brother male relative none appears position father figure nothing suggest mr bradley prior conduct negative impact amanda beyond limited contact early year due imprisonment current immigration detention appears positive influence amanda life court order relating parental access like mr mr bradley remain married permanently separated amanda young formally express wish however evidence mother grandmother family member close father amanda mother told tribunal would accompany husband united kingdom deported currently medical treatment want risk change regime also apprehensive well would treated british medical system also child grandchild australia parent believe would best amanda stay australia given father anticipated difficulty resettle country accommodation employment family support however amanda would access education health support like united kingdom father would language many cultural barrier although would loss access extended family one statement presented tribunal master faccin mr bradley step grandson son lana bradley daughter handwriting wrote hi name faccin age 11i like went see pop working time went nan see pop fun playing lunch latly pop coming place helping homework taking shoppig good fun beening wish time two younger sibling deprived seeing step grandfather mr bradley deported mr bradley appears important role model step grandchild mr bradley son daniel 24 year old two young child contact grandfather unlikely would much contact mr bradley united kingdom would miss close relationship physical contact paternal grandfather mr bradley required leave australia tribunal find fourth primary consideration weighs strongly cancellation visa given impact amanda bradley would also impact mr bradley grandchild step grandchild although degree impact amanda primary considerationsfamily tie nature extent relationshipsthe evidence mr bradley family friend central keeping family together twenty people present two day hearing tribunal supporting mr bradley mr bradley married lana october 1999 prison relationship started 1997 lana working mr bradley mother school cleaner first met went high school written statement mr bradley stated first married age 18 two child first husband later another relationship resulted third child stated three child toni faccin mark faccin ailise rosenow found mr bradleywhat dad supposed man listens care judge drop hat lana described development relationship mr bradley mr bradley stated found pregnant time mr bradley arrested murder miscarried course investigation mr bradley devastated mr bradley described delight husband move medium low security jail allowed contact visit indicated mr bradley moved jltc able young family visiting zoo park beach going shopping like relished time shared amanda finished written statement following everyone happy rick finally came home u spent much time judy lazarus preparing work release goal ensure could begin providing family every way soon able started work day released enjoying full time father provider great time department immigration took u much family suffer mentioned earlier diagnosed bladder cancer undergoing treatment need cortisone injection debilitating back complaint happen littler girl survive last month harder bare sic entire 13 year rick jail sentence know much take stress really taking toll ability concentrate getting better please give back husband father provider dad oral evidence mr bradley confirmed comment statement strength relationship amanda father also described quality relationship three child stepfather could talk anything important lack relationship biological father mr bradley said moved watchem small town north western victoria considerable part time mr bradley prison parent lived nearby housing much cheaper moved back melbourne lana bradley doctor birchip medical clinic dr oluwole owa provided statement dated 30 august 2011 accompanied pathology specialist report dr owa stated amongst thing current illness includes ongoing surveillance bladder cancer recurrence planned cystoscopy possible biopsy mitomycin c treatment necessary diagnosed mid september 2009 also suffers moderate severe central canal stenosis lower lumber level previous cortisone injection back 2007 2008 currently panadeine forte current treatment plan back back care rehabilitation program continue analgesia reviewed orthopaedic specialist prognosis form sic two major issue depend many factor including compliance management plan histopathology finding subsequent cystoscopy biopsy important continue keep bladder cancer surveillance back issue likely improve time getting younger may need reviewed orthopaedic surgeon possibility surgical intervention worsens mr bradley need benefit support get optimize quality daily living still early fully itemize need total depend disease process evolves m laura taylor mr bradley older sister provided written statement dated 25 august 2011 gave oral evidence described brother role looking 2 ricky male sibling family took man house role parent separated age 10 mother suffered nervous breakdown prior separation father alcoholic brother really took role protector within family suffered two breakdown ricky turned 13 put care several occasion ricky also put boy home period time still knowing mother suffering really tried everything power shield stress growing huge burden young age think experience profound affect 3 age 15 left family home leaving ricky continue take care mother younger sister 11 time one reason ricky younger sister always extremely close relied big brother father figure adult life grew environment family always extremely important need ensure family strong ricky extended area life including family sister 10 everyone close ricky desperately waiting come home thought may deported almost u even imagine let alone consider permanent situation many people rely significant wife child irreparably damaged loss m taylor expanded family dynamic hearing described central role brother bringing family together reinforced impact deportation would sister particularly wife child m tracey hellstrom mr bradley younger sister provided written statement dated 29 august 2011 stated amongst thing 2 utmost love trust respect brother ricky rock whole life supported tried protect 3 moved mum campbell stepfather home sunshine west experienced much physical mental abuse family life time pretty dysfunctional fell pregnant first child mark 16 throughout time ricky always supportive despite circumstance found 4 tragedy struck 13 september 1988 mark drowned aged four mum campbell backyard pool looking devastating cope well spiralled control 10 year roller coaster ride drug including spending short period time gaol still find thing difficult even look big brother guidance support 5 tried straighten moved away married raised two child love support ricky 7 rick major support life relationship husband 16 year partner 25 year ended 2010 felt shattered feel ricky male functional relationship due demon past rock regular treatment tin therapy help become stronger person honestly think capacity without ricky throughout life without ricky know sure future without need life close survive m hellstrom expanded statement oral evidence said recent year since 2009 brother would telephone every saturday morning check encourage recognise strength said would shattered leave australia mr daniel bradley mr bradley older son provided witness statement august 2011 gave oral evidence stated amongst thing 2 wish witness prepared statement hope keep father australia belongs since age nine father life dad imprisoned living government foster care time young take visit never knew going see next affected greatly 3 like go visit father prison like seeing environment felt affected father son relationship 4 father started work release program year ago able spend time every two week grandmother house time progressed able spend time together feel like every moment together helped much every moment father gift much time apart dad get deported feel like government taking away father getting know dad get know kid properly important think father come long way short time together 7 father deported back scotland definitely say would lot damage family tell truth cannot even put word would feel know heart would break million piece got back never thought would lose second time life oral evidence daniel bradley said nine year old parent split mother unable look ended foster care obtained driver licence age eighteen started visit father custody sometimes taking younger brother graeme daniel bradley described positive impact father wish child harrison aged three isabelle aged eighteen month know grandfather ongoing contact mr graeme bradley mr bradley younger son aged twenty provided written statement gave oral evidence five year old parent separated stayed mother contact father mr bradley imprisoned 16 year old 2007 contacted brother obtained driver licence asked taken see father graeme bradley said felt rather awkward first met unnerving meeting took place saw father loddon prison 2009 mr bradley went jltc next met 2 january 2011 father authorised leave said much better experience outside could talk freely one else listening mother happy graeme rekindling relationship father told right reluctantly accepted graeme said met many member father family met said relationship improving currently keep contact telephone like going immigration detention centre said father go scotland could afford visit relationship growing stronger might fall apart mr france galloway mr bradley mother provided written oral evidence written statement dated 30 august 2011 stated 3 came australia hoping better life thing planned arrival hard go detail past extremely painful 4 enough past last lifetime would like leave belongs illness hurt child mistake made bad choice side still haunt please believe rick man house long remember even jail helped advice encouragement 6 rick wife cancer operated four time far back injury also know come stage need care also couple daughter amada possible look amanda 67 year old sick husband husband 77 carer 7 family whole preparing rick come home long time time prison sit feeling sorry helped others prison many way kept rick going came closer coming home began train new way life new job new thinking family depend rick need australia u oral evidence mr galloway described interaction betweenmr bradley child impact departure would expressed particular concern impact lana thought would difficulty coping mr bradley required leave australia m carole binks youth worker employed salvation army westcare provided written statement dated 6 july 2011 gave oral evidence described close friend mr bradley known about24 year statement commented first met rick approximately 10 year age joined martial art club local primary school first lesson friendship connection rick taught many member club martial art also respect others honour discipline rick strong way teaching brought best many people similarly would see positive young people many others would see negative rick amazing person honestly say helped shape person today taught grow person confident show respect honour others self disciplined else judge give every person chance treat everyone equally finally would like comment rick teaching youth worker strive achieve better circumstance young people work oral evidence m binks described growing rough area many peer experimented drug ended various anti social activity credited mr bradley giving student strength mechanism rise environment martial art teaching described one major influence life tribunal numerous witness statement stepchild people mr bradley helped prison parent former martial art student mr bradley parent former sporting colleague friend attested positive influence mr bradley loss would personally community required leave australia include mr ashley humble served two half year sentence culpable driving lost best friend accident credited mr bradley helping turn life around helping break free marijuana alcohol addiction stated mr bradley taught importance work making positive choice people mixed life lesson commented thatdue richard incredible generosity selflessness willingness spend time essence mentoring pulled away future would extremely detrimental society mr humble youth work m leanne humble ashley humble mother attributed son rehabilitation influence mr bradley stated believesmr bradley deportation would extremely detrimental immediate family also countless people role model mentor m toni faccin mr bradley stepdaughter stated father never giving love support needed described positive influence child m kirsty tippet mother daniel bradley two child described positive influence perceived mr bradley former partner since started interacting perceived mr bradley deported daniel would find difficulty coping father taken away second time impact cancellation visa adult family others community primary consideration hence le weight four primary consideration consideration favour exercising discretion cancel visa agemr bradley aged 46 year consideration relevant tribunal consideration healthmr bradley appears good health evidence tribunal medical condition suffered mr bradley therefore consideration relevant tribunal consideration link country would removedevidence mr bradley sister mother revealed close relative scotland united kingdom general mr galloway said mr bradley late father estranged family met belief brother scotland migrated even know name lived mr galloway family migrated australia mr bradley visited scotland 1994 1996 went address mother gave lived hospital born demolished could find anyone knew family indeed parent apart scotland place birth place went golfing holiday mr bradley appears link scotland united kingdom generally hardship likely experienced mr bradley immediate family member lawfully resident australiamr bradley told tribunal would suffer hardship forced return scotland would accommodation job established connection country part united kingdom know whether training undertaken would recognised establishing life country left infant would difficult however hardship away wife young daughter well rest family cause concern indicated earlier lana bradley would accompany due ill health desire leave child grandchild concern difficult would mr bradley cope looking well establishing mr bradley admitted could maintain contact telephone electronic communication said would daily physical contact young daughter tribunal accepts mr bradley would suffer hardship removed australia living almost whole life level educationthe tribunal satisfied lack formal education impacted adversely mr bradley ability present claim expert legal representation migration law specialist well experienced barrister intelligent able give oral evidence forthright articulate manner however tribunal note mr bradley attended several school left school year 10 undertaken variety vocational personal development course custody outlined earlier reason decision course led obtaining employment jltc immediately following release parole detailed earlier employer prior taken immigration detention expressed willingness hire allowed stay australia mr bradley skilled martial art taught many student prior incarceration many provided statement skill arena whether mr bradley formally advised past department conduct brought within deportation provision act character provision actin august 2000 mr bradley notified possible deportation proceeding following conviction given opportunity provide comment on5 february 2002 mr bradley received following letter officer department immigration multicultural affair following recent high court decision advice received australian government solicitor indicates minster immigration multicultural indigenous affair power deport remove certain british subject arrived prior 19 october 1973 decision affect individual subject deportation order whose visa cancelled undersection 501 501aor501bof themigration act 1958 arrived australia british subject permanent resident prior 19 october 1973 fall within category department longer considering liability fors501cancellation previously stated notice 2 august 2000 mr bradley made aware change provision liability deportation received notice intention cancel dated 25 february 2011 jltc discretion cancel visa exercised mr bradley married four year old daughter australian citizen wife also australian citizen suffering serious illness mr bradley two adult son previous relationship loved valued child sister stepchild grandchild step grandchild relative friend family hold high esteem former martial art student attest importance mentor life despite difficult childhood relationship mother stepfather good family australia spent almost life friend acquaintance scotland united kingdom picture presented friend family significantly odds community would person convicted callous crime contract killing previously indicated tribunal must consider whether mr bradley visa cancelled according consideration set direction 41 mr bradley convicted jury abhorrent serious crime conviction upheld appeal sentenced 17 year imprisonment crime however despite length sentence imposed sentencing judge thought mr bradley prospect rehabilitation good assessment committee correction victoria agreed mr bradley provided little risk classifying progressively lower security classification found suitable transitional program jltc strong competition requisite assessment prisoner posed little risk community allowed unescorted leave parole board released mr bradley parole earliest possible date psychiatrist commissioned respondent thought little risk recidivism statistic provided report given tribunal indicated risk recidivism lower someone like mr bradley tribunal made finding risk mr bradley could pose community low one four primary consideration tribunal ruled would slightly favour cancellation visa primary consideration consideration favour decision cancel visa considering circumstance primary consideration consideration tribunal concludes reason given factor weighing favour cancellation visa far outweighed factor cancellation therefore discretion cancel visa exercised decisionthe tribunal set aside decision review remit matter respondent direction discretion cancel mr bradley visa pursuant tosection 501 2 themigration act 1958not exercised certify one hundred two 102 preceding paragraph true copy reason decision herein m regina perton member signed sgd kate conners associatedate hearing 5 6 september 2011date decision 15 september 2011counsel applicant mr g hughansolicitor applicant clothier andersoncounsel respondent mr brownsolicitor respondent australian government solicitor

YOUNG v THE QUEEN [2021] SASCA 51 (3 June 2021).txt

young v queen 2021 sasca 51 3 june 2021 last updated 3 june 2021supreme court south australia court appeal criminal 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 young v queen 2021 sasca 51judgment court appeal honourable president kelly honourable justice doyle honourable justice bleby 3 june 2021criminal law appeal new trial appeal sentence ground interference sentence manifestly excessive inadequatecriminal law sentence sentencing order non custodial order suspended sentence imprisonment recognisance release ordercriminal law particular offence offence decency morality child pornography child exploitation material offence sentenceappeal sentence appellant convicted three count accessing child pornography material three count transmitting child pornography material contrary criminal code act 1995 cth offending occurred period four month related exchange child pornography material chat application sentencing appellant judge considered two psychological report honour found balance probability appellant interest child pornography remains beyond offending judge also satisfied beyond reasonable doubt risk appellant would reoffend appellant sentenced head sentence 17 month imprisonment six count judge ordered appellant released recognisance order condition serving five month custody appellant appeal sentence three ground first ground contends sentencing judge erred finding appellant interest child pornography remains beyond offending applying wrong burden proof making finding second ground contends sentencing judge erred failing order immediate release upon recognisance release order third ground contends sentence manifestly excessive held court granting permission appeal ground 2 3 dismissing appeal 1 judge adopted nuanced approach onus proof correctly found balance probability appellant interest child pornography yet behind 2 judge remark reveal careful considered analysis material precisely accordance correct principle 3 error demonstrated approach sentencing judge criminal code act 1995 cth 474 19 1 474 19 1 iii referred r v olbrich 1999 199 clr 270 r v storey 1998 1 vr 359 r v buttigieg 2020 sascfc 38 r v irvine 2016 sascfc 104 r v neilson 2016 sascfc 90 r v chunza 2018 sascfc 74 cluett v queen 2019 279 crim r 57 considered young v queen 2021 sasca 51court appeal criminal kelly p doyle bleby jjathe court introductionthe appellant warren jon young pleaded guilty convicted three count accessing child pornography material three count transmitting child pornography material contrary thecriminal code act 1995 cth criminal code offending related appellant participation online chat conversation child pornography material exchanged july 2018 november 2018 21 january 2021 appellant sentenced district court head sentence 17 month imprisonment six count sentencing judge ordered appellant released recognisance order condition period five month appellant appeal sentence three ground first ground contends sentencing judge erred exercise sentencing discretion finding appellant interest child pornography remains beyond period offending applying wrong burden proof making finding addition contended judge finding weight evidence finding reason sentence second ground appeal contends sentencing judge erred exercise sentencing discretion failing find circumstance existed order immediate release upon recognisance release order third ground appeal sentence manifestly excessive circumstance 12 march 2021 judge court granted permission appeal ground 1 referred application permission appeal ground 2 3 court appeal offendingthe offending comprises three count using carriage service access child pornography material contrary 474 19 1 criminal code 1 three count using carriage service transmit child pornography material contrary 474 19 1 iii 2 3 offending occurred period approximately four month 6 july 2018 10 november 2018 time appellant using kik messenger application receive transmit pornography three user offence related total 33 image two video found exchanged following full forensic examination appellant mobile phone image video classified child exploitation tracking system scale image 32 category 1 image depicting child sexual activity one image category 4 image depicted penetrative sexual activity involving child child majority category 1 image depicted child fully clothed still constituted child pornography material video characterised category 4 offending subject count 1 occurred 24 july 2018 2 august 2018 concerned appellant accessing six category 1 image two category 4 video sent single user offending subject count 2 occurred 30 july 2018 11 august 2018 related appellant transmitting seven category 1 image user count 3 4 related communication different user offending subject count 3 occurred 6 july 2018 22 july 2018 related appellant accessing six category 1 image count 4 respect appellant transmitting five category 1 image one category 4 image 22 july 2018 3 august 2018 count 5 6 related appellant communication third user count 5 involved appellant accessing single category 1 image 10 november 2018 count 6 involved appellant transmitting seven category 1 image 9 november 2018 appellant arrested 10 april 2019 entered plea guilty six count 11 september 2020 sentencing appellantthe appellant sentenced basis offending related limited number image video majority lowest category seriousness offending remained serious contributed exploitation child furthermore appellant accessed material also transmitted others shared depraved interest however evidence appellant came sentencing judge person otherwise good character worked successful chiropractor contributed significantly swimming community volunteer prior conviction accepted genuinely remorseful contrite sentencing judge two report psychologist mr richard balfour dated 24 november 2020 15 december 2020 first report mr balfour expressed view appellant developed paedophilic proclivity however early stage secondary appellant interest adult woman consideration appellant motivation lead lawful lifestyle lack denial relation offending mr balfour concluded appellant good prospect rehabilitation good prospect ceasing offending assistance supervised structured rehabilitation program view maintained addendum report expressed belief appellant continuing interest child exploitation material effect mr balfour addendum report discussed detail later judgment notwithstanding sentencing judge satisfied risk appellant reoffending future honour found appellant interest child pornography material remains beyond offending however proceeded basis appellant reasonable prospect rehabilitation given amenability treatment sentencein light fact offence type occurred relatively short period time sentencing judge fixed one sentence offence despite honour identify notional sentence would imposed count application 20 per cent discount guilty plea respect count 1 2 judge identified notional sentence seven month seven day count considered offending subject count 1 2 related single user occurred two half week period degree concurrency deemed appropriate judge identified single notional sentence 10 month count 1 2 respect count 3 judge identified notional sentence five month 19 day notional sentence seven month seven day identified count 4 count 3 4 took place approximately three week single user judge considered concurrency appropriate single notional sentence 10 month identified count 3 4 seven month sentence served concurrently notional sentence identified count 1 2 remaining three month served cumulatively upon sentence relation count 5 6 notional sentence four month seven month seven day respectively identified offending subject count occurred consecutive day single notional sentence eight month identified count four month sentence served cumulatively upon abovementioned three month period remaining four month concurrent overall appellant sentenced head sentence 17 month imprisonment six offence non parole period fixed sentence le three year regard nature circumstance offending appellant level remorse prospect rehabilitation consideration deterrence need protect child sentencing judge satisfied appropriate entire period 17 month subject recognisance release order however honour considered appropriate appellant time prison relatively short would benefit treatment support community family sentencing judge ordered appellant released two year recognisance release order serving five month prison amount recognisance 200 condition imposed dealt appellant obligation good behaviour supervision participation rehabilitation program treatment right access internet turn discus ground appeal advanced appellant ground 1 appellant interest child exploitation materialthe first ground appeal relates judge finding appellant interest child pornography remains beyond offending essentially two main complaint respect ground first complaint wrong burden proof applied making finding second complaint finding could supported evidence particular regard contrary psychological evidence mr balfour burden proofas first complaint appellant submitted burden erroneously shifted appellant satisfy judge balance probability longer continuing interest child submitted instead judge obliged satisfied beyond reasonable doubt appellant continuing interest child relying upon come conclusion appellant prospect rehabilitation complaint raise consideration principle applied sentencing judge determining matter taken account offender obligation judge regard enunciated inr v storey 4 subsequently approved inr v olbrich 5 judge may take fact account way isadverseto interest accused unless fact established beyond reasonable doubt hand circumstance judge proposes take accountin favourof accused enough circumstance proved balance probability court observed instorey descriptor aggravating mitigating circumstance often used describe distinction however critical analysis required description attached circumstance fact use judge proposes make particular fact circumstance relation accused 6 issue appellant interest child pornography material relevant two way interest ceased entirely would relevant assessment appellant prospect rehabilitation way would operate appellant favour therefore regarded mitigating circumstance capable operating lower would otherwise appropriate sentence interest entirely dissipated open judge conclude appellant still risk reoffending event personal deterrence would play greater role determining appropriate sentence however circumstance fact must proved beyond reasonable doubt even though circumstance capable described aggravating mitigating depending judge finding topic truth ever relevant issue prospect appellant rehabilitation risk reoffending therefore ultimate conclusion appellant prospect rehabilitation risk reoffending judge needed satisfied beyond reasonable doubt rather minute analysis meaning one mr balfour opinion concerning appellant continued interest contrary appellant submission consider judge approach issue careful considered adopted nuanced approach onus proof respect disputed matter correctly found balance probability appellant interest child pornography yet behind carefully considered mr balfour two report largely accepted opinion recommendation mr balfour however ultimate conclusion relation appellant prospect rehabilitation found satisfied beyond reasonable doubt appellant risk offending despite deeply motivated despite counsel valiant attempt persuade court sentencing remark reveal error judge approach onus proof consider judge remark reveal careful considered analysis material precisely accordance correct principle finding weight evidenceas second complaint contended irrespective conclusion reached relation burden proof judge finding weight evidence issue whether appellant admitted sexual interest child continued offending whether time sentencing submission ceased exist arose sentencing counsel appellant submitted sentencing submission light mr balfour second report open judge come conclusion inconsistent characterised appellant opinion appellant sexual interest child ceased accordingly submitted appellant sentenced basis report dated 15 december 2020 mr balfour said following appellant best judgement believe sincere intention remain offence free report longer view cem unless new compelling forensic evidence indicate otherwise believe continuing interest cem time assessed interest cem arisen problem compulsively viewing internet pornography becoming habituated intimacy deficit also significant contributing factor current offending behaviour lastly bail condition severely restrict use internet suggestion breached bail condition always remote possibility mr young may experience relapse compulsive viewing internet pornography cem receive professional assistance however confident highly motivated participate rehabilitation want reoffend appellant counsel complained light mr balfour untested opinion evidence contradict mr balfour opinion judge erred failing make finding balance probability appellant interest child ceased contended therefore judge satisfied balance probability appellant sentenced basis longer sexual interest child proclivity extinguished language counsel appellant cessation towards inclination related submission complaint judge erred concluding beyond reasonable doubt appellant risk offending circumstance evidence support conclusion appellant submission respect complaint call careful assessment evidence judge particular includes thrust report mr balfour well analysis judge sentencing remark report first convenient reproduce judge said topic appellant continued interest child pornography chance reoffending accept remorse contrition genuine balance satisfied longer interest child pornography material submission dispute sexually aroused child pornography material subject offence find much obvious image video subject offending communication three others image submission interviewed author home detention report denied sexual attraction minor given offending way communicated stepdaughter balance accept sexual interest child pornography yet behind still engaging treatment sought treatment past psychologist currently appears initially engaged psychologist breakdown past relationship one psychologist consulted graeme piercy first saw two half year ago report treatment compulsive sexual behaviour personal issue detail treatment consider ongoing interest child pornography progress treatment subject report person treating ongoing basis make finding extent treatment interest child pornography extent success date say offending arose context addiction adult pornography viewed two decade assessed mr balfour provided two report report consistent paedophilic proclivity albeit satisfied proclivity exhibited accessing communicating child pornography mr balfour say offending occurred context addiction adult pornography loneliness contributor submitted view material anymore done two year accept nothing contrary also accept sincere wish reoffend feel enormous shame loss career sporting pursuit social network lesson seriousness offending need reform mr balfour report benefit cognitive behavioural therapy prognosis respect ceasing offending good said cannot go far find longer interested child pornography risk like offending future said given accessed child pornography material also provided others communicated fashion satisfied beyond reasonable doubt risk offending despite deeply motivated said proceed basis prospect rehabilitation reasonable provided engage appropriate treatment accept mr balfour view interest child pornography amenable rehabilitation personal strength family support assist regard turn sentence first difficulty appellant submission based premise judge effectively rejected evidence mr balfour however viewed proper context seen judge adopted far nuanced approach mr balfour evidence conceded appellant counsel begin mr balfour evidence go far express unequivocal opinion appellant interest child exploitation material ceased fact second report dated 15 december 2020 commenced unequivocal statement evidence clearly show client paedophilic proclivity mr balfour went express view reproduced earlier reason 40 noted commonwealth director pointed written submission sentencing judge opinion expressed mr balfour paragraph opinion sincerity appellant intention refrain offending belief appellant longer view child exploitation material properly regarded opinion within psychologist field expertise addition opinion mr balfour qualified acknowledgement always remote possibility relapse properly understood consider irresolvable tension opinion mr balfour conclusion reached judge appellant still interested child pornography risk appellant would reoffend judge conclusion properly based material included report mr balfour evidence appellant past behaviour depth nature interest demonstrated period four month offending included disseminating material communicating others evidence made clear appellant sexually aroused material judge ass appellant prospect rehabilitation light material aside noted contrary submission counsel appellant evidence mr balfour challenged sense commonwealth director made clear sentencing submission accept assertion mr balfour second report appellant longer sexual interest child apparent transcript judge acutely conscious issue judge directly addressed appellant counsel respect matter forget commonwealth put aspect mitigation client sexual interest child accepted put notice may well find difficult accept given offending clear transcript party well aware conflict particular topic judge raised matter party made written submission topic judge returned issue sentencing remark dismiss first ground appeal ground 2 3 failure order immediate release upon recognisance orderthe second third ground appeal dealt together addressed relatively briefly given conclusion reached respect first ground appeal way appellant articulated second third ground appeal although sentence 17 month within range available judge manifestly excessive judge nevertheless found circumstance justified order immediate release put another way submitted period five month ordered served prison manifestly excessive support submission appellant pointed personal circumstance appellant including fact lost career reputation standing community fact voluntarily undertaken psychological counselling taken step towards rehabilitation two year period fact offending lower range offence kind also highlighted support argument special circumstance exist make order immediate release recognisance furthermore appellant submitted immediate release justified circumstance evidence supported balance probability appellant good prospect rehabilitation already concluded respect first ground appeal judge made error approach either fact law sentencing appellant therefore much appellant argument underpinning second third ground appeal fall away may accepted judge matter faced difficult sentencing task however court made clear repeatedly discretion afforded sentencing judge respect decision whether impose immediate custodial sentence interfered appellate court simply another judge indeed appellate court might made different decision 7 seems one case offending indeed serious many positive aspect appellant personal circumstance meant would error judge made decision order immediate release recognisance however point clear judge carefully weighed competing consideration came cautiously optimistic view appellant rehabilitation prospect determining relatively small proportion sentence must served custody respect consider honour approach correct error demonstrated relevant add offence appellant convicted carry maximum penalty 15 year imprisonment 2010 maximum penalty 474 19 criminalcode 10 year increase maximum penalty 15 year reflects gravity parliament view kind offending although number image involved comparatively low appellant decision transmit others level personal interest displayed relevant assessment gravity overall offending plainly always rare case circumstance justify order immediate release commonwealth director argue contrary two case relied appellant r v chunza 8 andcluett v queen 9 fact illustrate exceptional circumstance course justified bothchunzaandcluett unusual circumstance respect circumstance offending incluett appellant personal circumstance inchunza plainly justified order immediate release consider decision provide relevant support appellant argument circumstance reason consider neither ground 2 ground 3 made would grant permission appeal ground dismiss appeal conclusionthe appeal dismissed 1 count 1 3 5 2 count 2 4 6 3 noted 474 19 since repealed following passage thecombatting child sexual exploitation legislation amendment act 2019 cth previous offence 474 19 would fall 474 22 4 1998 1 vr 359at 369 5 1999 199 clr 270at 27 6 r v storey 1998 1 vr 359at 371 7 example seer v buttigieg 2020 sascfc 38 r v irvine 2016 sascfc 104 r v neilson 2016 sascfc 90 8 2018 sascfc 74 9 2019 279 crim r 57

John Harris & Assoc (Aust) Pty Ltd & Anor v Commissioner of Stamp Duties [1999] QCA 478 (16 November 1999).txt

john harris assoc aust pty ltd anor v commissioner stamp duty 1999 qca 478 16 november 1999 john harris assoc aust pty ltd anor v commissioner stamp duty 1999 qca 478 16 november 1999 last updated 11 may 2016supreme court queenslandcitation john harris assoc aust p l andmouthpiece holding p l v csd 1999 qca 478parties john harris associate aust pty ltdandmouthpiece holding pty limited appellant vcommissioner stamp duty respondent file appeal 11969 1998appeal 11972 1998division court appealproceeding case stated commissioner stamp duty pursuant 24 1 thestamp act1894delivered 16 november 1999delivered brisbanehearing date 19 october 1999judges mcmurdo p davy thomas jjaorder answer question submitted court determination pursuant 24 1 thestamp act1894 appeal 11969 1998 yes 3 january 1989 b c unnecessary answer unnecessary answer e unnecessary answer f unnecessary answer g assessment commissioner incorrect duty payable h order respondent refund appellant sum 16 290 order respondent pay interest prescribed rate amount refunded period 11 april 1996 date refund made j order respondent pay appellant cost incidental case taxed appeal 11972 1998 yes 3 january 1989 b c unnecessary answer unnecessary answer e assessment commissioner incorrect duty payable f order respondent refund appellant sum 35 351 25 g order respondent pay interest prescribed rate amount refunded period 11 april 1996 date refund made h order respondent pay appellant cost incidental case taxed catchword tax duty stamp duty transaction instrument liable appeal case stated etc queensland appeal default assessment made 54ab thestamp act1894 whether appellant obtained estate interest real property queensland result transaction acquisition effected evidenced instrument chargeable ad valorem stamp duty point equitable interest real property obtained stamp act1894 qld 54abcounsel mr r w gotterson qc appellantsmr k dorney qc respondentsolicitors bell miller appellantscrown solicitor respondent 1 court two appeal default assessment issued 4 august 1997 assessment made 54ab stamp act 1894 basis appellant 27 april 1989 obtained estate interest real property queensland namely 53 mccarthy road salisbury brisbane property result transaction acquisition effected evidenced instrument chargeable ad valorem stamp duty question identical appeal sufficient discus term appeal john harris associate aust pty ltd common ground appeal must decided 54ab form existed prior 1991 amendment stamp act 2 fact relevant assessment appeal may summarised follows prior 3 january 1989 appellant named joint venturer executed joint venture agreement day negotiated sale owner property company nominated joint venturer b 3 january 1989 53 mccarthy road pty ltd mccarthy road 1 company nominated joint venturer entered contract contract purchase property 6 1m deposit payable contract paid joint venturer c day joint venturer including appellant executed joint venture agreement reciting mccarthy road trustee agreed purchase property nominee joint venturer joint venturer would procure trustee complete purchase joint venturer also undertook provide balance purchase price 10 february 1989 purchase completed joint venturer paying causing paid vendor balance purchase price contract e 27 april 1989 transfer property pursuant contract registered 3 section 54ab relevantly provided 1 section applies transaction acquisition result person obtaining estate interest real property queensland 1a purpose subsection 1 person deemed obtained estate interest property kind specified subsection 1 person acquires estate interest vested contingent trust trustee owns estate interest vested contingent property b trustee trust person estate interest vested contingent acquires estate interest vested contingent property 2 person person obtained estate interest property kind specified subsection 1 transaction acquisition effected evidenced instrument chargeable case transaction acquisition kind specified paragraph subsection 1 duty paragraph 4 heading conveyance transfer first schedule person shall would liable pay duty transaction acquisition effected evidenced instrument chargeable duty instrument executed person obtained estate interest property kind specified subsection 1 prepare lodge commissioner within one month entering transaction acquisition statement prescribed form containing prescribed information 4 section went provide statement deemed instrument conveyance 5 common ground least 27 april 1989 appellant obtained equitable interest real property queensland namely one twelfth equitable interest property question commissioner court whether obtained interest result transaction acquisition effected evidenced instrument chargeable ad valorem conveyance transfer duty within meaning 54ab 1 54ab 2 6 appellant contends affirmative answer given question transaction transaction purchase mccarthy road effected contract 7 upon execution contract unconditional mccarthy road acquired equitable interest vendor capable protection injunction specific performance equitable interest interest property although something le full beneficial ownership property 2 8 time appellant acquired equitable interest property co extensive mccarthy road 3 joint venturer including appellant negotiated purchase property nominee nominated mccarthy road purpose undertaken pay purchase price contract upon execution contract paid deposit thereunder 4 9 beyond argument purchaser unconditional contract sale land becomes payment whole purchase price equitable owner land consequently 10 february 1989 mccarthy road acquired equitable ownership land also follows already said acquired equitable ownership trust joint venturer time beneficial interest land 10 27 april 1989 date relied commissioner mccarthy road became registered proprietor land appellant acquired proprietary interest already part owner equity land since 10 february 1989 happened date mccarthy road interest became legal one 11 return central question appeal fact law stated interest appellant property result transaction acquisition effected evidenced instrument chargeable ad valorem conveyance transfer duty said appellant contends affirmative answer question submitting instrument contract seems u plainly correct execution contract albeit light earlier taken place sufficient result creation resulting trust upon execution created appellant equitable interest property performance contract caused interest become equitable ownership property follows view contract transaction resulted appellant obtaining interest real property queensland within meaning 54ab 1 obligation stated 54ab 2 consequence therefore arise 12 said far mean appeal must succeed however sufficiently deal argument respondent proceed 13 respondent accepted 3 january 1989 mccarthy road acquired equitable interest property contended 27 april appellant acquired equitable interest property argument beyond point entirely clear 14 primary submission respondent appears whatever interest joint venturer may arising resulting trust interest become interest land mccarthy road became registered proprietor property hence statement assessment contention appellant acquired interest property 27 april 1989 clear 15 one stage submitted joint venturer could bring action directly person actually hold land unless quoted phrase mean person hold legal title statement true 10 february mccarthy road equitable owner land joint venturer could plainly brought equitable proceeding way beneficiary express trust 16 however respondent submitted case resulting trust imposed legal estate held trustee mccarthy road respect resulting trust differ form trust made clear reference made 43 real property act 1861 section simply stated self evident proposition torrens system registrable instrument effectual pas estate interest land provision act registration difficult see could assist argument equitable interest land created beneficiary resulting trust trustee enters completes contract purchase land 17 end respondent submission respect appears resulting trust arises potential beneficiary cause potential trustee purchase land upon undertaking pay purchase price although beneficiary acquire right upon execution contract acquire interest land registration title name trustee submitted beneficial interest analogous beneficiary discretionary trust residuary beneficiary unadministered estate neither true analogy first identifiable property beneficiary entitled appointment specific property made favour beneficiary 5 second property residuary beneficiary become entitled cannot come existence administration complete 6 contrast identity property extent interest beneficiary property certain contract executed 18 appellant advanced additional argument however view conclusion reached unnecessary consider appeal case must allowed 19 appeal 11969 1998 would answer question submitted court determination follows yes 3 january 1989 b c unnecessary answer unnecessary answer e unnecessary answer f unnecessary answer g assessment commissioner incorrect duty payable h order respondent refund appellant sum 16 290 order respondent pay interest prescribed rate amount refunded period 11 april 1996 date refund made j order respondent pay appellant cost incidental case taxed 20 appeal 11972 1998 would answer question submitted court determination follows yes 3 january 1989 b c unnecessary answer unnecessary answer e assessment commissioner incorrect duty payable f order respondent refund appellant sum 35 351 25 g order respondent pay interest prescribed rate amount refunded period 11 april 1996 date refund made h order respondent pay appellant cost incidental case taxed 1 called 296 th p c nominee pty ltd changed name 53 mccarthy road pty ltd 29 march 1989 2 fact described equitable ownership sir frederick jordan described hischapters equity new south wale reprinted insir frederick jordan select legal paper legal book pty ltd sydney 1983 52 seems generally accepted overstates matter inhaque v haque 2 1965 hca 38 1965 114 clr 98at 124 kitto j said making contractto extenttransferred beneficial ownership purchaser extent illustrated deane j inkern corporation ltd v walter reid trading pty ltd 1987 hca 20 1987 163 clr 164at 191 192 deane dawson jj instern v mcarthur 1988 hca 51 1988 165 clr 489at 521 522 see alsobahr v nicolay 2 1988 hca 16 1988 164 clr 604at 612 corin v patton 1990 169 clr 540at 563 henderson caveat 1998 1 qdr 632at 642 1999 qca 328at 17 24 road australia pty ltd v commissioner stamp duty 2000 2 qdr 000at 000 1999 qca 328at 17 24 3 instant time mccarthy road acquired equitable interest free equitable interest appellant joint venturer moment acquired interest held trust joint venturer cfchief commissioner stamp duty v ispt pty ltd 1998 45 nswlr 639at 655 658 see text 4 respondent correctly described trust created resulting trust nelson v nelson 1995 184 clr 538at 547 5 goldsworthy dec 1969 vicrp 107 1969 vr 843 6 commissioner stamp duty queensland v livingston 1964 ukpc 2 1965 ac 694at 713

Bell v Ballarat CC [2016] VCAT 559 (12 April 2016).txt

bell v ballarat cc 2016 vcat 559 12 april 2016 last updated 14 april 2016victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1816 2015permit application plp 2015 244catchwordssection 82 theplanning environment act1987 ballarat planning scheme general residential zone schedule 1 development second dwelling subdivision land two lot planning policy neighbourhood character parking wall boundary noise applicantjeffrey bellresponsible authorityballarat city councilrespondentdion cartledgesubject land340 vickers street sebastopolwhere heldmelbournebeforekatherine paterson memberhearing typehearingdate hearing3 march 2016date order12 april 2016citationbell v ballarat cc 2016 vcat 559orderthe decision responsible authority affirmed permit application plp 2015 244 permit granted directed issued land 340 vickers street sebastopol accordance endorsed plan condition set notice decision grant permit plp 2015 244 issued responsible authority 7 august 2015 permit allows construction second dwelling lot andsubdivision land two lot katherine patersonmemberappearancesfor applicantmr jeffrey bell personfor responsible authorityms carly kuczer town planner ballarat city councilfor respondentmr neil haydon town planner beveridge williams co pty ltdinformationdescription proposalconstruction second dwelling two lot subdivision lot created 300 square metre 420 square metre respectively smaller two lot contain building envelope although part application includes construction three bedroom landnature proceedingapplication undersection 82of theplanning environment act1987

He v Minister for Immigration & Anor [2005] FMCA 1276 (16 September 2005).txt

v minister immigration anor 2005 fmca 1276 16 september 2005 last updated 19 september 2005federal magistrate court australiahe v minister immigration anor 2005 fmca 1276migration review migration review tribunal decision cancellation student visa whether mandatory cancellation criterion relating satisfactory academic performance applied applicant class visa time cancellation considered whether applicant institution certified satisfactory unsatisfactory performance considered reviewable error found application dismissed migration act 1958 cth s 20 116 137kmigration amendment regulation 2001 5 migration legislation amendment overseas student act 2000 cth migration regulation 1994 cth minister immigration v shi bo yu 2004 fcafc 333morsed v minister immigration 2005 fcafc 193uddin v minister forimmigration 2005 fmca 841weerasinghe v minister immigration 2004 fca 261applicant yu hefirst respondent second respondent minister immigration multicultural indigenous affairsmigration review tribunalfile number syg2203 2003judgment driver fmhearing date 2 september 2005delivered sydneydelivered 16 september 2005representationsolicitors applicant m leewilliam chan cocounsel respondent mr g kennettsolicitors respondent clayton utzorders 1 migration review tribunal joined second respondent proceeding 2 application dismissed 3 applicant pay minister cost disbursement incidental application fixed sum 4 400 federal magistratescourt australia atsydneysyg2203 2003yu heapplicantandminister immigration multicultural indigenous affairsfirst respondentmigration review tribunalsecond respondentreasons judgmentintroduction background1 application review decision migration review tribunal mrt made 24 september 2003 mrt affirmed decision cancel mr student temporary class tu visa mr holder sub class 560 visa issued 18 april 2001 13 may 2003 delegate minister decided cancel visa basis mr met course requirement 1 mr applied review decision mrt mrt affirmed delegate decision 2 2 mrt decided mr achieved academic result two term semester course certified satisfactory education provider mrt found mr breached condition 8202 applied visa mrt found virtue ofs 116 3 themigration act 1958 cth themigration act andregulation 2 43 2 b themigration regulation themigration regulation cancellation mandatory 3 application evidence3 mr relies upon amended application judicial review filed 19 may 2005 amended application asserts following ground review 1 respondent purported cancel applicant subclass 560 student visa visa cancelled mandatory cancellation provision found in 116 3 themigration actand reg 2 43 2 themigration regulation 1994 2 13 may 2003 purported visa cancellation occurred reg 2 43 2 b referred student visa class tu category 3 class tu category defined item 1222 schedule 1 themigration regulation 1994and include reference subclass 560 student visa 4 consequence mandatory requirement visa cancelled 5 therefore respondent mrt acted misapprehension law therefore decision cancel visa affirm cancellation excess jurisdiction alternative6 even condition 8202 applies denied breach condition 8202 7 condition 8202 3 b state inter alia case holder achieves academic result certified education provider least satisfactory course run le semester course ii course run least semester term semester whichever shorter course 8 purported particular breach set education provider certification applicant academic result satisfactory 9 education provider certified whilst applicant excluded faculty engineering applicant would accepted enrol faculty science 10 education provider written communication student compliance section dimia dated 28 march 2003 certified bona fide student excluded university 11 set federal court decision ofweerasinghe v mimia 2004 fca 261 19 3 04 certification education provider arithmetical exercise take discretionary matter account 12 follows therefore education provider instance certified applicant academic result satisfactory 13 indeed certifying applicant bona fide student applicant accepted faculty science applicant excluded university certification applicant academic result least satisfactory 14 material mrt respondent therefore decision cancel affirm cancellation visa excess jurisdiction 4 amended application supported mr affidavit filed 20 october 2003 received affidavit subject satisfying relevance mr required cross examination also received evidence court book filed 17 march 2004 submissions5 party prepared written submission also made oral submission counsel relevantly applicant submits follows mandatory student visa cancellation regime draconian application interpreted strictly narrowly time mr visa cancelled condition 8202 apply class visa held even condition apply time breach condition mr paul donohue sydney university written minister department 28 march 2003 term satisfied decision maker mr academic performance satisfactory 4 purported notice issued mr pursuant tos 20of themigration actis effective certification defined term purpose themigration regulationsand mr donohue letter accepted preference anything else university 6 minister relevantly submits follows condition 8202 apply class visa held mr visa granted 1 july 2001 criticism 20 notice irrelevant threat automatic cancellation flowed notice averted mr attending minister department 24 april 2003 visit given notice intention cancel visa 5 commenced process leading cancellation unders 116 condition 8202 applied relevant time envisaged positive certification satisfactory academic performance practical purpose certification unsatisfactory performance determinative 6 information provided university sydney minister department unequivocal therefore least open mrt reach conclusion mr obtained certification required condition 8202 reasoning7 dispute relevant time condition 8202 form contained item 4 schedule 4 themigration legislation amendment overseas student act 2000 cth reproduced paragraph 9 mrt decision 7 first question whether condition applied class visa held mr relevant time find sub class 560 student visa class visa included item 1222 themigration regulationsas 30 june 2001 time condition 8202 attached sub class 560 student visa condition ceased apply class visa result themigration amendment regulation 2001 5 regulation 4 regulation contained transitional provision limited operation amendment visa respect application made 1 july 2001 respect application made finally determined 1 july 2001 mr visa granted 18 april 2001 effect transitional provision continue application condition 8202 visa agree paragraph 4 8 minister written submission point 8 minister concede error 20 notice sent mr form notice sent mr different form notice issue inuddin v minister immigration 2005 fmca 841 case mr required attend compliance officer merely required report dimia mr given one option office dimia report suggestion office inconvenient 20 notice sent mr made clear option allowing visa automatically cancelled applying revocation cancellation pursuant tos 137kof themigration act attracted minister submission defect thes 20notice irrelevant process commenced notice aborted mr attendance minister department inmorsed v minister immigration 2005 fcafc 193at 17 26 delivered trial matter full federal court criticised form thes 20notice issue case expressed concern notice may misleading visa holder complies mr full court criticism relevant form notice given mr although probably le pointedly given different term form notice given mr fact matter unable conclude jurisdictional error result thes 20notice 9 time mr attended dimia office issued notice appearing page 2 3 court book unfortunate notice asserted unsatisfactory academic progress also asserted failure maintain least 80 per cent attendance nothing available minister department point unsatisfactory attendance notice based information actually available minister department follow pro forma template said information available minister department supporting assertion academic performance mr unsatisfactory 10 mr right viewing mandatory cancellation regime draconian administration also problematic face condition 8202 requires cancellation student visa whenever education provider fails certify academic result achieved visa holder least satisfactory course term semester course condition assumes need positive certification minister immigration v shi bo yu 2004 fcafc 333at 39 interpreted literally would difficult impossible administer condition fair rational manner literal interpretation would example require minister cancel visa student institution failed reason say industrial dispute provide certification satisfactory performance single term course practice condition administered way opposite intended face condition rather requiring positive certification academic performance minister department basis information received solicits certification either satisfactory unsatisfactory performance limited circumstance unsatisfactory performance anticipated practical purpose certification institution visa holder academic performance unsatisfactory determinative purpose condition 8202 11 term certify defined term purpose themigration regulation applicant submission refers various definition certify certificate dictionary mr kennett took definition certify macquarie dictionary relevantly word defined mean give reliable information testify vouch writing word given ordinary english meaning reference dictionary definition particular form certification required required reliable expression writing education institution whether academic performance visa holder relevant course relevant period course satisfactory university sydney invited certify relation mr respect term 1 term 2 course university 2001 2002 8 university responded unequivocal term 9 may 2003 9 university certified academic progress mr course university semester 1 2 2001 2002 satisfactory fact mr excluded chosen course unsatisfactory progress 12 confronted unequivocal certification unsatisfactory progress minister delegate mrt option cancel mr visa 13 mr seek rely letter mr paul donohue dated 28 march 2003 letter assist first letter certify mr performance course satisfactory either semester 2001 2002 contrary numbered paragraph 2 letter appears confirm progress satisfactory best letter express opinion mr make satisfactory progress different course future secondly mr donohue student counsellor capacity certify academic progress must open question thirdly time made decision mrt available transcript mr academic record 2001 2002 confirmed factual basis negative certification provided university plainly open mrt make decision material indeed see basis upon mrt could made decision 14 find jurisdictional error decision mrt decision therefore privative clause decision application judicial review dismissed 15 cost follow event case minister seek order cost fixed sum 4 400 accept cost properly reasonably incurred behalf minister proceeding assessed party party basis order applicant pay minister cost disbursement incidental application fix sum 4 400 certify preceding fifteen 15 paragraph true copy reason judgment driver fmassociate date 16 september 2005 1 court book page 23 29 2 court book page 117 3 court book page 125 paragraph 40 42 4 court book page 9 10 5 court book page 2 3 6 court book page 119 7 court book page 119 120 8 properly semester 1 semester 2 2001 2002 9 court book page 7 8

SZHPV v Minister for Immigration & Multicultural Affairs [2006] FCA 1818 (17 November 2006).txt

szhpv v minister immigration multicultural affair 2006 fca 1818 17 november 2006 last updated 7 february 2007federal court australiaszhpv v minister immigration multicultural affair 2006 fca 1818federal court australia act 1976 cth 25 2b bb ii szhpv v minister immigration multicultural affair refugee review tribunalnsd 1663 2006middleton j17 november 2006sydneyin federal court australianew south wale district registrynsd 1663 2006on appeal federal magistrate court australiabetween szhpvappellantand minister immigration multicultural affairsfirst respondentrefugee review tribunalsecond respondentjudge middleton jdate order 17 november 2006where made sydneythe court order 1 appeal dismissed 2 appellant pay first respondent cost fixed amount 1 200 note settlement entry order dealt order 36 federal court rule federal court australianew south wale district registrynsd 1663 2006on appeal federal magistrate court australiabetween szhpvappellantand minister immigration multicultural affairsfirst respondentrefugee review tribunalsecond respondentjudge middleton jdate 17 november 2006place sydneyreasons judgment1 matter called appellant failed attend hearing appeal satisfied appellant would notified appeal time place circumstance order pursuant tos 25 2b bb ii thefederal court australia act 1976 cth appeal dismissed failure appellant attend hearing relating appeal 2 circumstance case fix cost 1 200 appeal dismissed cost certify preceding two 2 numbered paragraph true copy reason judgment herein honourable justice middleton associate dated 21 december 2006counsel appellant appellant appear counsel respondent quinnsolicitor respondent phillips foxdate hearing 17 november 2006date judgment 17 november 2006

Wilston Grange Kindergarten & Preschool Assoc. Inc. T_A Wilston Grange Kindergarten & Preschool [2022] FWCA 1804 (2 June 2022).txt

wilston grange kindergarten preschool assoc inc wilston grange kindergarten preschool 2022 fwca 1804 2 june 2022 last updated 10 june 2022 2022 fwca 1804fair work commissiondecisionfair work act 2009s 185 enterprise agreementwilston grange kindergarten preschool assoc inc wilston grange kindergarten preschool ag2022 1283 wilston grange kindergarten preschool early childhood enterprise agreement 2022educational servicescommissioner simpsonbrisbane 2 june 2022application approval wilston grange kindergarten preschool early childhood enterprise agreement 2022 1 application made approval enterprise agreement known thewilston grange kindergarten preschool early childhood enterprise agreement 2022 agreement application made pursuant tos 185of thefair work act 2009 act made wilston grange kindergarten preschool assoc inc wilston grange kindergarten preschool applicant agreement single enterprise agreement 2 applicant provided written undertaking satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement 3 subject undertaking referred satisfied requirement ofss186 187and188as relevant application approval met undertaking taken term agreement 4 noting clause 1 2 2 agreement satisfied beneficial entitlement ne act prevail inconsistency agreement ne 5 agreement approved operate accordance withs 54of act commissionerprinted authority commonwealth government printer ae516143pr742228

Forest v City of Sydney [2011] FMCA 480 (16 May 2011).txt

forest v city sydney 2011 fmca 480 16 may 2011 last updated 18 july 2011federal magistrate court australiaforest v city sydney 2011 fmca 480human right disability discrimination reasonable prospect matter resolved conciliation complaint terminated seeking time commencement application extended explanation delay prejudice respondent whether applicant arguable case australian human right commission act 1986 cth 46podisability discrimination act 1992 cth s 5 6 8 9 10 23and24human right equal opportunity commission act 1986 cth local government act 1993 nsw equal opportunity act 1984 wa ferrus v qantas airway limited 2006 fca 812 2006 155 ir 88forest v queensland health 2007 161 fcr 152 2007 fca 936iw v city perth 1997 hca 30 1997 191 clr 1lucic v nolan 1982 45 alr 411phillips v australian girl choir pty ltd 2001 fmca 109rainsford v state victoria 2007 fca 1059 2007 167 fcr 1white industry australia limited anor v federal commissioner taxation 2007 160 fcr 298 2007 fca 511zoltaszek v downer edi engineering proprietary limited 2010 fmca 100applicant che forestrespondent city sydneyfile number brg 11 2011judgment burnett fmhearing date 16 may 2011date last submission 16 may 2011delivered brisbanedelivered 16 may 2011representationsolicitors applicant wettenhall silva solicitorssolicitors respondent bartier perryorders 1 applicant time commencing application extended 6 january 2011 2 applicant file deliver statement claim 4 00pm 24 june 2011 3 respondent file deliver defence 4 00pm 4 august 2011 4 matter listed mention 5 august 2011 commencing 10 00am 5 cost reserved federal magistratescourt australiaat brisbanebrg 11 2011che forestapplicantandcity sydneyrespondentreasons judgment revised transcript 6 january 2011 applicant made application relief respect alleged unlawful discrimination discrimination allegedly arose contravention thedisability discrimination act1992

V93_00721 [1994] RRTA 837 (6 May 1994).txt

v93 00721 1994 rrta 837 6 may 1994 refugee review tribunaldecision reason decisionrrt reference v93 00721tribunal domenico calabrò memberdate 6 may 1994place melbournedecision tribunal affirms decision delegate minister immigration local government ethnic affair applicant refugee purpose themigration act 1958 defined reference article section convention relating status refugee amended article 1 paragraph 2 protocol relating status refugee tribunal affirms decision delegate minister immigration local government ethnic affair refuse application domestic protection temporary entry permit dptep application successful accordance 166ea themigration act1958 cth amended published version decision contain statement may identify applicant relative dependent applicant decision reviewthis application made member tribunal review decision made 1 september 1993 applicant non citizen refugee 1951 united nation convention relating status refugee convention amended 1967 protocol relating status refugee protocol application domestic protection temporary entry permit refused date background applicant 26 year old single man born pakistan arrived australia xxx valid passport arrived student visa applied refugee status department immigration local government ethnic affair department received 12 march 1993 delegate minister rejected application 1 september 1993 30 september 1993 applicant applied review delegate decision tribunal section 22aa act provides minister satisfied person refugee minister may determine writing person refugee refugee defined act meaning article 1 refugee convention article amended refugee protocol see 4 1 act subsection act defines refugee convention refugee protocol respectively convention relating status refugee done geneva 28 july 1951 protocol relating status refugee done new york 31 january 1967 application tribunal made pursuant 166bb themigration actwhich provides tribunal must review rrt reviewable decision rrt reviewable decision defined 166b 1 act include subject exception relevant present case decision made 1 september 1994 non citizen refugee convention amended protocol refuse application dptep apparent background circumstance applicant also satisfies requirement 166ba therefore valid application review rrt reviewable decision taken made 166ba law central issue determination matter status applicant term definition refugee convention protocol definition contained article 1 section convention amended article 1 paragraph 2 protocol refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return definition refugee contains various element outside country nationality definition includes person outside country nationality applicant stateless person country former habitual residence applicant case meet requirement well founded fear applicant must well founded fear persecuted term well founded fear subject comment inchan yee kin v theminister immigration ethnic affair 1989 hca 62 1989 169 clr 379 chan scase observed term contains subjective objective requirement fear concern applicant state mind term qualified adjectival expression well founded requires sufficient foundation fear 396 court chan case held fear persecution well founded real chance refugee persecuted return country nationality 389 398 407 429 observed expression real chance clearly conveys notion substantial distinct remote chance persecution occurring 389 though weigh prospect persecution discount remote insubstantial 407 therefore real chance persecution may exist notwithstanding le 50 per cent chance persecution occurring persecution applicant must fear persecution term persecution defined convention every form harm constitute persecution convention purpose court chan case spoke serious punishment penalty significant detriment disadvantage applicant return country nationality 389 likewise stated notion persecution involves selective harassment whether directed person individual member group subject systematic harassment although applicant need victim series act since single act oppression may suffice 429 430 harm threatened may le loss life liberty includes appropriate case measure disregard human dignity serious violation core fundamental human right date determination refugee status whether person refugee purpose legislation determined upon fact existing time decision made regard however proper look past event absence evidence change circumstance treat event continuing time determination see chan supra circumstance person would satisfied definition change may longer eligible case lek pp 462 3 wilcox j rejected contention chan decided relevant date considering whether applicant refugee status date application rather date determination honour however note high court emphasis chan upon necessity pay attention factor gave rise applicant departure country nationality p 462 stated correct methodology separate two logically distinct question whether applicant continuing subjective fear persecution convention ground date determination whether fear objectively founded approach taken department addressed second question taking starting point position date departure asking whether available evidence establishes position since changed fear longer well founded even though subjectively continuing regard latter inquiry practical problem noted high court substance onus proof assert relevant change occurred p 463 comment entirely consistent observation mason cj chan absence fact indicating material change state affair country nationality applicant compelled provide justification continuing posse fear established well founded time left country nationality p 391 issue issue central determining whether applicant refugee 1 applicant outside country nationality country former habitual residence genuine fear 2 harm feared sufficient gravity constitute persecution 3 real chance persecution occur 4 state fail protect applicant serious harm 5 harm feared related one five ground recognised convention related factor claim hearing applicant represented lawyer mr seth richardson ascertaining applicant case tribunal considered tribunal department file including submission applicant therein evidence given hearing 15 february 1994 applicant summarised follows short time hearing applicant lawyer requested adjournment discussed possibility obtaining medical report tribunal granted adjournment date fixed mr richardson could obtain instruction client 4 march applicant lawyer wrote tribunal instruction client wish undergo medical examination hearing matter requested tribunal proceed reach decision based material convention ground applicant base application refugee status political belief member people student federation psf pakistan people party ppp family first became involved ppp applicant xxx became xxx ppp xxx family continuously suffered since 1977 general zia ul haq overthrew bhutto government 1978 xxx imprisoned charge sedition terrorism charge kept jail fourteen month xxx unable visit two xxx also facing similar problem punjab escaped u xxx fled u feared life ppp activist family property seized family forced sign property government gun placed head applicant mother supported child lived one bedroom flat school applicant sibling teased supporter bhutto teacher showed hatred towards sister could handle pressure nearly vegetable xxx released badly treated left handicapped physical mental torture endured applicant joined ppp xxx may june xxx took part many activity organised party included attending demonstration march distributing pamphlet carrying banner july xxx august xxx applicant attended first demonstration police fired tear gas whipped demonstrator applicant bleeding forehead taken clinic bandaged dropped home november december xxx applicant friend distributing pamphlet local resident badly beaten forced flee resident threatened kill russian assault rifle 1 00 police came applicant home took friend xxx police station also searched house station slapped police kept cell 13 hour refused sign paper would take part activity organised ppp told found taking part ppp activity would spent life jail family also threatened would house live applicant friend continued involvement ppp april xxx family flat shop raided police applicant father taken police station questioned next morning person called xxx denied knowledge person allowed leave although threatened lied police would face serious consequence september xxx applicant went xxx college joined psf late xxx took part first demonstration member psf way demonstration group student including applicant attacked police student beaten stick baton tear gas used disperse student applicant arrested thrown truck taken xxx police station held nine hour station applicant beaten along student applicant released taken xxx hospital x rayed given vitamin glucose drip 1984 1986 constant problem xxx college political rival applicant fellow supporter would threatened assaulted harassed college administration would nothing complaint three occasion september 1984 september 1988 applicant fellow student holding meeting raided twenty twenty five men beaten stick student injured applicant suffered head wound bruising cut police arrived despite called ambulance took two hour get scene student taken local hospital allowed leave bandaged given prescription may xxx applicant attended large student demonstration attended student college university police arrived fired tear gas whipped student forced many student run away applicant twenty student tried resist police hit hip head arrested applicant student thrown truck taken xxx jail next day argued guard beaten stick rifle butt held four day allowed ring parent know time student given glass water piece bread day release taken xxx hospital given two bottle glucose semi conscious loss blood required see doctor every week four week could attend college talk anyone three day november xxx applicant attended large gathering ppp psf member nearly 500 student attended applicant made speech read poem one hour someone started shooting crowd twenty truck police arrived armed others carried stick fired tear gas crowd thirty four student applicant arrested taken different jail applicant taken xxx police station made take clothes beaten two student objected dragged away seen next day applicant student questioned demonstration funding weapon interview four student released applicant others placed cell holding twenty people held two day applicant father came see jail told police going charge terrorism possession weapon drug trafficking also confirmed solicitor engaged ppp released bail financial assistance ppp psf applicant report police twice week trial february xxx february xxx two men came applicant family flat armed pistol hockey stick broke thing flat threatened family stop taking part ppp would many day live incident reported police fir issued matter investigated next morning applicant father shop broken merchandise stolen fire started put local incident scared applicant family two sister sent rawalpindi punjab live xxx stayed two month returning karachi returned applicant parent told police attended three occasion looking failed report court every fortnight hour applicant arrested failing report released bail father friend gave personal guarantee july xxx applicant father taken police station questioned murder xxx brother beaten hung upside eventually released three day applicant tried get job pay bribe get police character certificate could get job private industry influential friend applicant tried numerous occasion obtain clearance police obtain passport abused assaulted application form ripped applicant paid agent r 5000 obtain passport advice obtain australian visa passport correctly name applicant correctly named would able obtain passport result name change applicant able leave country authority unaware departure applicant lawyer submitted applicant family targeted local police systematically harassed considerable period particularly 1986 1988 applicant claimed result political profile local authority would issue passport information tribunal available following information amnesty international 1993 annual report amnesty international report pakistan arrest political opponent sindh province august 1990 early 1992 research directorate documentation information research branch immigration refugee board ottawa canada pakistan pakistan people party feb 1993 medium reporting national election around october november 1993 seethe age australian department foreign affair trade refugee determination country profile pakistan october 1993 amnesty international report pakistan torture death custody extrajudicial execution december 1993u department state country report human right practice 1993 pakistan section discussion claim finding claim made applicant information available ascertainable tribunal support claim fear persecution reason race religion nationality membership particular social group applicant claim persecuted authority membership ppp authority rival political party filed false charge accept xxx long history member ppp also accept applicant attended meeting ppp 1983 father applicant 15 year old time would seem appropriate member psf first ppp accept applicant became member psf 1984 interesting note 1982 amnesty international report first mention psf year even though applicant membership card australia immigration refugee board irb pakistan pakistan people party p 2 ottawa canada february 1993 state moreover many ppp worker sympathiser local level recognised party official member authority may still connect ppp treat party member even without evidence generally person affiliation political party simply known community rather recorded official list accept applicant written account experience prior departure australia light applicant activism number instance persecution state authority rival political group departure accept may risk ill treatment membership ppp left pakistan accept applicant detained possibly charged numerous offence unable accept charge relate drug trafficking terrorism matter applicant able obtain documentary evidence charge despite lawyer representing pakistan eventually released bail left country middle 1988 change government october 1993 applicant well founded fear persecution since however material change magnitude significant applicant standpoint fact ppp dominant party governing coalition occurrence excessive use force police action predominately mqm nonetheless ppp convincingly election remains power one significant aspect 1993 election army seems taken apolitical stance 1993 election seeeuropa far east australasia 1992 78 economist 17 7 93 andthe far east economic review 25 11 93 p 22 applicant left pakistan prior november 1988 election regime zia ul haq power ppp november 1988 election however time power 1988 ppp contend hostile president sindh provincial government dismissal federal government bhutto august 1990 mid 1992 ppp harassed sindh provincial government attack ppp member mqm activist department foreign affair trade dfat cable 37359 20 8 91 thousand ppp member arrested suspicion pretext associated al zulifikar terrorist organisation azo economist article dated 11 4 92 reported one time around 4 000 miss bhutto party worker locked sindh jail amnesty international also reported june 1992 wave arrest ppp member began december 1990 hundred opposition activist sindh arrested part campaign crime province following several violent incident 1991 including murder judge special court suppression terrorist activity ppp member accused responsible arrested large number though often appeared prima facie evidence linking event mass arrest occurred demonstration detainee mostly member ppp associated organisation sindh member sindhi nationalist party also dissident member mqm many arrested charged released hour day police custody harassment arrest ppp member continued early mid 1992 including death jam sadiq ali 5 march 1992 april may 1992 asia week 29 5 92 reported 1 000 3 000 ppp worker arrested charge disrupting public peace protest alleged electoral fraud since commencement operation clean reporting massive arrest ppp member either international medium dfat non government agency lead tribunal conclude ppp subjected mass arrest ppp operation targeted authority many ppp member released goal charge proceeded contrary mqm political party subjected crackdown etc since time see dfat cable 40454 18 8 92 present apparent political situation pakistan stable commentator regard prospect continuing stability unusually good economist report 16 october 1993 country growing predicability sign progress part credit must go army insisted process rebuilding civilian government disrupted p 17 following open election ppp emerged party greatest number seat pakistan national assembly age 18 october 1993 economist 23 october 1993 report leader ppp benazir bhutto sworn prime minister pakistan october 19 following negotiation minor party gained workable majority p 25 effective control ppp pakistan national assembly demonstrated election ppp candidate position speaker deputy speaker australian 20 october 1993 information obtained pakistan high commission canberra 27 october 1993 indicates ppp control right provincial assembly sindh source confirmed earlier report see example australian 21 october 1993 ppp effectively control state legislature punjab albeit support breakaway group pakistan muslim league significant candidate ppp president pakistan recently elected overwhelming majority 247 vote 168 legislator national assembly senate four provincial parliament newly elected president also announced intention remove quickly possible power head state dismiss government thereby offering much improved prospect political stability pakistan age 15 november 1993 range current information indicates ppp hold power pakistan hope stability unusually high notwithstanding certain dispute within family prime minister question however must answered whether change pakistan kind particular applicant longer face real chance persecution return pakistan mason cj stated court infer ground fear well founded time departure due circumstance existed dissipated time determination refugee status absence compelling evidence contrary emphasis see chan p 391 spoke need satisfied material change circumstance taken place see quotation dawson j said circumstance applicant refugee status fled country nationality ordinarily starting point ascertaining present status time satisfied test laid absence substantial change circumstance meantime point continuation original status p 399 gaudron j suggested much weight given might turn transitory temporary improvement state affair existing country origin said political situation properly evaluated context supporting political structure structure necessarily revealed consideration current political activity policy claim extent based political structure something required mere evaluation current political activity policy even allowing consideration think correct say question whether fear well founded answered reference situation time determination isolation past experience applicant definition refugee look mental emotional state applicant well objective fact commonplace encapsulated expression bitten twice shy circumstance insufficient engender fear may also insufficient allay fear grounded past experience although definition requires well founded fear time determination would ignore nature fear ignore ordinary human experience evaluate fear well founded otherwise without due regard applicant past experience applicant relies past experience view incumbent decision maker evaluate whether experience produced well founded fear persecuted continuing fear ought accepted well founded unless least possible say fear reasonable person position claimant would allayed knowledge subsequent change country nationality pp 414 415 discussion hathaway law refugee status 1991 particularly useful defining meant material substantial change author discus describes element substantiality effectiveness durability context cessation clause convention particularly article 1c 5 although high court dealing precisely wording sub article found three element helpful analysing judgment chan provide view appropriate mean evaluating whether test proposed chan satisfied evidence tribunal change circumstance country origin since applicant departure without placing unnecessary gloss judgment case hathaway set see three relevant factor follows first change must substantial political significance sense power structure persecution deemed real possibility longer exists collapse persecutory regime coupled holding genuinely free democratic election assumption power government committed human right guarantee fair treatment enemy predecessor regime way amnesty otherwise appropriate indicator meaningful change circumstance would contrast premature consider cessation simply relative calm restored country still governed oppressive political structure similarly mere fact democratic safe local regional government established insufficient insofar national government still pose risk refugee second must reason believe substantial political change truly effective formal political shift must implemented fact result genuine ability willingness protect refugee cessation warranted de factoexecutive authority remains hand former oppressor said truly fundamental change circumstance police military establishment yet comply dictate democracy respect human right third change circumstance must shown durable cessation decision taken lightly basis transitory shift political landscape rather reserved situation reason believe positive conversion power structure likely last pp 200 203 issue effectiveness political change occurred discussed decision house lord r v secretary state home department ex parte sivakumaran 1987 ukhl 1 1988 1 e r 193 hl lord keith p 196 said question whether circumstance ceased exist one determined objectively light new circumstance presently prevailing country person nationality example may time state security apparatus particular country accepts honour recent change taken place abuse may continue small le visible place major centre population appointment position government may continue controlled party formerly power notwithstanding change occurred find change taken place pakistan since departure far applicant concerned sufficiently compelling establish fear longer well founded information sufficient discharge onus referred chan lek find material change real chance applicant persecuted return pakistan also consider applicant may face false criminal charge dating back 1986 circumstance changed extent able face fair trial karachi court charge proceed decisive factor arriving conclusion coming power party belonged national level significant area local level tribunal unable seek information applicant point source possible persecution affecting emanating current power structure national local level country origin assessing applicant evidence prevailing situation pakistan find real chance defined high court chan case would face persecution return decision tribunal tribunal affirms decision delegate minister immigration local government ethnic affair applicant refugee purpose themigration act 1958 defined reference article section convention relating status refugee amended article 1 paragraph 2 protocol relating status refugee tribunal affirms decision delegate minister immigration local government ethnic affair refuse application domestic protection temporary entry permit dptep application successful

Western Yalanji or "Sunset" peoples v Alan & Karen Pedersen & Ors [1998] FCA 1269 (28 September 1998).txt

western yalanji sunset people v alan karen pedersen or 1998 fca 1269 28 september 1998 last updated 14 october 1998federal court australianative title application thenative title act 1993 cth determination permanent native title relation land water near mt carbine mareeba shire north queensland referral registrar national native title tribunal federal court pursuant 74 act order made judge court unders 87of act agreement reached party native title act 1993 cth s 74 87western yalanji sunset people v alan karen pedersen orsqg 6002 1996drummond jcairns28 september 1998in federal court australiaqueensland district registryqg 6002 1996between western yalanji sunset peoplesapplicantsand alan karen pedersenfirst respondentspan australian resource nl withdrawn second respondentcentamin limited withdrawn third respondentdavid costello withdrawn fourth respondentlen rosendale withdrawn fifth respondentsonny lever withdrawn sixth respondentmareeba shire councilseventh respondentminotaur gold nl withdrawn eight respondentjohn plath withdrawn ninth respondentmessrs john w withers garry dibley withdrawn tenth respondentsstate queenslandeleventh respondentmr oliver j stratton withdrawn twelth respondenttelstra corporation limited withdrawn thirteenth respondentnoel adamfourteenth respondentjudge drummond jdate order 28 09 98where made cairnsthe court order declares 1 subject order 2 native title right interest exist relation determination area marked map schedule 1 headed plan determination area schedule incorporated annexure order 2 native title right interest exist relation area described area e shown said map relation opened road dedicated road road legally constructed public use within determination area referred order 3 native title right interest extinguished grant interest land water set schedule 2a 2b incorporated annexure order court note however party acknowledge native title right interest may affected lawful physical activity carried prior date determination land water pursuant granted interest 4 native title right interest held following people native title holder cummins king costello group descendant tippo king aka deppo king maytown son joe cummins dick cummins aka dick wannacott simon king b rosendale group descendant leo rosental eric rosental snr c qawanji brady group descendant qawanji donald brady davis shane others group descendant caroline kiju rose robert e lee cheu group descendant charlie lee cheu georgina banjo f grogan group descendant rosie maytown aka rosie palmer rosie grogan g burton bricky group descendant jack burton rupert burton bula burton h meldrum group descendant ruby meldrum molly banjo macnamara group descendant dolly harry frank macnamara macnamara aka quinlan j mitchell group descendant wildtime mingkiji sambo wannacott k crowley riley group descendant jack george crowley george riley l banjo gordon group descendant lena palmer bob banjo banjo aka gordon robert group descendant charlie dolly curramore n oliver colless group descendant janie maytown snider group descendant charlie snider p rogers group descendant rowdy rogers charlotte rogers aka davis q fullerton brim group descendant annie fullerton dinah fullerton brimon behalf group aboriginal tribal grouping known alternative designation western yalanji western kuku yalanji sunset yalanji maytown people native title holder 5 native title right interest confer possession occupation use enjoyment determination area referred order 1 native title holder exclusion others native title right interest held predecessor subject operation law commonwealth state past present including local government planning scheme local law local government regulation ii right past present conferred upon person pursuant law commonwealth state iii right interest conferred subject agreement 21 thenative title act 1993 cth b diminished modified time exclusive others avoid doubt declared extent native title right interest ever exclusive character exclusivity extinguished 6 native title right interest court considers importance right common law holder accordance subject traditional law custom possession occupation use enjoyment determination area referred order 1 b access use natural resource determination area including right maintain use determination area ii conserve natural resource determination area iii safeguard determination area natural resource determination area benefit native title holder iv manage determination area benefit native title holder v use determination area natural resource social cultural economic religious spiritual customary traditional purpose particularly reside camp travel across land within area subject regional customary lawful expectation protocol permit non native title holder b exercise right use disposal natural resource including right confer use natural resource upon non native title holder c exercise carry economic life determination area including creation growing production husbanding harvesting exchange natural resource produced exercise native title right interest discharge cultural spiritual traditional customary right duty obligation responsibility relation concerning determination area welfare including preserve site significance native title holder aboriginal people determination area ii conduct secular ritual cultural activity determination area iii conduct burial determination area iv determine give effect pas expand knowledge appreciation culture tradition v regard determination area part inalienable affiliation native title holder determination area vi maintain cosmological relationship belief practice institution ceremony proper appropriate custodianship determination area special sacred site ensure continued vitality culture well native title holder vii inherit dispose native title right interest relation determination area accordance custom tradition viii determine native title holder determine amongst connection particular individual sub group specific portion determination area determination made reference multiple criterion eg descent birth conception site succession practice indigenous subdivision land ix resolve dispute native title holder aboriginal person relation determination area e construct maintain structure purpose exercising native title right 7 native title right interest derived native title right interest listed order 6 8 native title right interest subject law commonwealth state including local government planning scheme local law local government regulation 9 native title right interest may affected extent inconsistency yield right interest validly created within determination area exist may hereafter exist pursuant valid law commonwealth australia state queensland including right interest holder occupation licence 285 cooktown mining interest set schedule 2a incorporated annexure validly existing date determination 10 exercise native title right interest subject right conferred party pursuant agreement contained schedule 3 4 incorporated annexure 11 native title right interest held native title holder held trust native title holder 12 native title right interest affected future act authorised land tenure agreement contained schedule 3 incorporated annexure 13 exercise native title right interest determination area area map contained schedule 1 headed plan determination area incorporated annexure governed land use access agreement contained schedule 4 also incorporated annexure 14 agreement referred order 12 13 commence operate effective time making determination whether agreement executed 15 schedule annexure order form part determination 16 native title right interest set determination particular property native title holder enunciation right based extent material contained referred report prepared mr ray wood filed court 22 may 1998 wood report 17 accordingly determination necessary decide whether particular right exists nature extent right right said customary right duty obligation exercised accordance custom tradition initial reference intended made custom tradition right duty obligation referred wood report 18 determination unless context otherwise requires term used determination meaning given term thenative title act 1993 cth b determination area mean land water marked area b map contained schedule 1 headed plan determination area incorporated annexure namely area described lot 285 plan ol455 county dagmar parish tregoora gorilbee excluding area described area map contained schedule 1 headed plan determination area incorporated annexure c fauna meaning given thefauna conservation act 1974 qld law commonwealth state includes common law e mineral meaning mineral 5 themineral resource act 1989 qld f natural resource mean animal fish plant life found determination area time time include fauna water clay soil excludes mineral petroleum resource mining g party mean party includes assignee successor party h site significance mean site area land water sacred native title holder otherwise significance according aboriginal custom tradition includes burial birth conception navel story social history site expression native title holder common law holder meaning 19 pursuant sub section 57 2 thenative title act 1993 cth derrick oliver representative common law holder must nominate writing court within six month date determination prescribed body corporate perform function mentioned sub section 57 3 thenative title act 1993 cth prescribed body corporate becomes registered native title body corporate 20 common law holder named determination existing person unable reason death infirmity incapacity reason associated custom tradition anything required pursuant determination within time set determination common law holder liberty apply substituted representative common law holder place existing person 21 time body registered registered native title body corporate representing common law holder agreement certificate document would otherwise entered executed registered native title body corporate may entered executed behalf common law holder person entitled make nomination referred order 19 together four common law holder 22 time body becomes registered registered native title body corporate common law holder notice correspondence document required forwarded registered native title body corporate may given representative common law holder following address attn mr michael nealphillips foxlawyerspo box 2043cairns mail centre q 4870 23 deed agreement exhibit 1 incorporating various schedule annexure order court agreement applicant state queensland mr adam exhibit 3 annexure b order 24 applicant leave uplift exhibit prepare consolidated agreement filed soon reasonably practicable 25 liberty party apply 26 order cost incidental action note settlement entry order dealt order 36 federal court rule federal court australiaqueensland district registryqg 6002 1996between western yalanji sunset peoplesapplicantsand alan karen pedersenfirst respondentspan australian resource nl withdrawn second respondentcentamin limited withdrawn third respondentdavid costello withdrawn fourth respondentlen rosendale withdrawn fifth respondentsonny lever withdrawn sixth respondentmareeba shire councilseventh respondentminotaur gold nl withdrawn eight respondentjohn plath withdrawn ninth respondentmessrs john w withers garry dibley withdrawn tenth respondentsstate queenslandeleventh respondentmr oliver j stratton withdrawn twelth respondenttelstra corporation limited withdrawn thirteenth respondentnoel adamfourteenth respondentjudge drummond jdate 28 09 98place cairnsreasons judgmentthis application 87 thenative title act 1993 cth order determining native title right interest exist relation land water near mt carbine mareeba shire north queensland circumstance interested party able reach agreement today hearing originated application made may 1995 member western yalanji people national native title tribunal number person organisation interest claimed land became party proceeding included mr mr pedersen hold grazing right area remain respondent application various mining company person mining interest land mr adam remains party mareeba shire council indicated time ago intention abide order court see fit make state queensland also course remains party western yalanji claim subject mediation conducted national native title tribunal 1996 resolve competing interest party tribunal accordingly transferred claim court october 1996 negotiation continued party happily full agreement able reached document tendered record agreement various interest subject land accommodated one satisfied court power make determination effect contained document incorporate amendment set exhibit 2 appropriate make determination reaching view take account material court including anthropological material mr wood mentioned material importantly fact negotiation achieved outcome party interest land prepared support therefore make following order declaration subject order 2 native title right interest exist relation determination area indicated map schedule 1 propose read verbatim provision document headed determination native title incorporated exhibit 1 make order term following paragraph amended exhibit 2 para 2 4 5 6 7 8 9 10 11 12 15 16 17 18 20 21 22 certain order term para 6 7 8 9 document headed draft determination exhibit 6 deed agreement incorporating various schedule annexure order court agreement applicant state queensland mr adam annexure b order also order giving applicant leave uplift exhibit prepare consolidated agreement direction consolidated agreement filed forthwith ie soon reasonably practicable also liberty party apply court make order cost incidental action certify preceding two 2 page true copy reason judgment herein honourable justice drummond associate dated 28 09 98solicitor applicant phillips fox assisted north queensland land council counsel first respondent mr ge hiley qc mr gj koppenolsolicitors first respondent corrs chamber westgarthsolicitors seventh respondent macdonnellssolicitor eleventh respondent crown lawsolicitors fourteenth respondent macrossansdate hearing 28 september 1998date judgment 28 september 1998

KPE Superannuation Fund Pty Limited v Two Tempe Holdings Pty Ltd; KPE Superannuation Fund Pty Limited v QRM Holdings Pty Ltd [2022] NSWSC 1708 (14 December 2022).txt

kpe superannuation fund pty limited v two tempe holding pty ltd kpe superannuation fund pty limited v qrm holding pty ltd 2022 nswsc 1708 14 december 2022 last updated 14 december 2022supreme courtnew south walescase name kpe superannuation fund pty limited v two tempe holding pty ltd kpe superannuation fund pty limited v qrm holding pty ltdmedium neutral citation 2022 nswsc 1708hearing date 8 9 december 2022date order 14 december 2022decision date 14 december 2022jurisdiction equity real property listbefore richmond jdecision order made pursuant tos 74maof thereal property act 1900 nsw plaintiff withdraw two caveat catchword land law caveat removal caveat removal order court whether serious question tried whether balance convenience favour caveat maintained alternative security offeredlegislation cited real property act 1900 nsw 74mauniform civil procedure rule 2005 nsw case cited abraham v abraham 2012 nswsc 254australian property management pty ltd v devefi pty ltd 1997 7 bpr 15 255barlin investment ltd v westpac banking corporation 2012 nswsc 699 16 bpr 30 671biseja pty ltd v nsi group pty ltd 2006 nswsc 1331boensch v pascoe 2019 268 clr 593 2019 hca 49buchanan v crown gleeson business finance pty ltd 2006 nswsc 1465 13 bpr 24 513capgemeni u llc v case 2004 nswsc 674depsun pty ltd v tahore holding pty ltd 1990 5 bpr 11 314double bay newspaper pty ltd v aw holding pty ltd 1996 42 nswlr 409hanson construction material pty ltd v robert 2016 93 nswlr 1 2016 nswca 240iwc industry pty ltd v sergienko 2021 nswca 292 20 bpr 41 785kpe superannuation fund pty ltd v two tempe holding pty ltd 2022 nswsc 1614marinkovic v pat mcgrath engineering pty ltd 2004 61 nswlr 150 2004 nswsc 571port melbourne authority v anshun pty ltd 1981 147 clr 589 1981 hca 45re nymboida river pty ltd liq ex parte nimdale pty ltd unreported supreme court queensland ambrose j 30 september 1988 renascent interior refurbishers pty ltd v asel property group pty ltd 2002 nswsc 345 10 bpr 97 956sydney attraction group pty ltd v schulman 4 2013 nswsc 1728xcel rural property pty ltd v south creek dairy pty ltd 2002 nswsc 139 10 bpr 19 607texts cited b edgeworth butt land law 7th ed 2017 law book co category principal judgmentparties proceeding 2020 355192kpe superannuation fund pty limited trustee ellems superannuation fund plaintiff two tempe holding pty ltd trustee two tempe unit trust first defendant simon quinn second defendant afsh nominee pty ltd third defendant proceeding 2022 107858kpe superannuation fund pty limited plaintiff qrm holding pty ltd first defendant simon quinn second defendant afsh nominee pty ltd third defendant representation proceeding 2020 355192 2022 107858counsel sb docker plaintiff jc hewitt sc second defendant solicitor henry william lawyer plaintiff keypoint law second defendant file number 2020 355192 2022 107858judgmentbefore court two notice motion filed second defendant mr quinn seeking order pursuant tos 74maof thereal property act 1900 nsw act plaintiff kpe superannuation fund pty ltd withdraw two caveat lodged respect land jindabyne new south wale owned mr quinn jindabyne property first lodged kpe 9 june 2020 first kpe caveat second lodged kpe 25 november 2022 second kpe caveat first kpe caveat claimed interest jindabyne property equitable charge contained cl 2 c deed agreement dated 5 june 2020 2020 deed subject decision proceeding 2020 355192 2020 proceeding kpe superannuation fund pty ltd v two tempe holding pty ltd 2022 nswsc 1614 judgment caveat circumstance surrounding lodgement referred judgment 34 35 judgment concluded 134 2020 deed binding order made dismissing 2020 proceeding cost appeal filed respect order although appeal period yet expired notice motion relating first kpe caveat filed court lindsay j duty judge 23 november 2022 lindsay j made order short service service evidence kpe reply stood notice motion 25 november 2022 2 00pm 25 november 2022 12 noon delivered judgment principal proceeding hearing notice motion afternoon day kpe counsel informed court second kpe caveat lodged based factual allegation made statement claim filed kpe 14 april 2022 separate proceeding 2022 107858 2022 proceeding matter came back court 28 november 2022 mr quinn granted leave file court second notice motion also seeking order unders 74mafor withdrawal second kpe caveat first kpe caveati concluded order removal first kpe caveat unders 74mafor two reason first consequence judgment kpe cannot establish entitlement interest claimed caveat 2020 deed hanson construction material pty ltd v robert 2016 93 nswlr 1 2016 nswca 240at 77 second first caveat defective view effect 2020 deed kpe caveatable interest respect charge referred 2020 deed time first caveat lodged 9 june 2020 ex p 11 judgment 34 35 hence even conclusion reached judgment 2020 deed binding wrong clear evidence 2020 proceeding dispute mr quinn sign deed 10 june 2020 consequently caveatable interest claimed first kpe caveat exist time caveat lodged 9 june 2020 therefore invalid b edgeworth butt land law 7th ed 2017 law book co 12 990 boensch v pascoe 2019 268 clr 593 2019 hca 49at 104 kpe asked court grant stay order remove first kpe caveat expiry appeal period 23 december 2022 preserve status quo relying principle set insydney attraction group pty ltd v schulman 4 2013 nswsc 1728 however light conclusion reached previous paragraph stay would utility decline grant follows address second kpe caveat interest claimed second kpe caveatas noted second kpe caveat lodged afternoon 25 november 2022 claim interest identified follows estate interest claimedchargeby virtue agreementdated 10 10 2019betweenkpe superannuation fund pty limitedandsimon john quinndetails supporting claim clause 6 3 unitholders agreement dated 10 october 2019 registered proprietor granted charge favour caveator land secure repayment loan advanced caveator term agreement relevant factual background set judgment 5 73 summary kpe became unitholder qrm unit trust october 2019 trustee qrm holding pty ltd trustee previously entered contract purchase property tempe new south wale date completion contract 12 june 2020 completion occur vendor rescinded contract charge claimed second kpe caveat relates unitholder loan made kpe trustee arises cl 6 3 unitholders agreement referred judgment 9 provides follows 6 3 security unitholder loan director two tempe holding pty ltd agreed provide security kpe respect unitholder loan subject following term property used security unitholder loan jindabyne property owned mr simon john quinn thesecured property ii simon john quinn grant kpe charge secured property thereby creating caveatable interest secured property favour kpe iii kpe nominee shall right lodge caveat respect secured property security unitholder loan date agreement time head agreement entered respect property total tool entity similar reasonable satisfaction kpe iv kpe register caveat must consent dealing relating secured property inconsistent kpe right deed b prevent delay registration dealing referred clause 6 3 iv c withdraw caveat within 5 business day date head agreement entered respect property total tool entity similar reasonable satisfaction kpe v simon john quinn may object registration existence caveat b prior date head agreement entered respect property total tool entity similar reasonable satisfaction kpe seek caveat removed take action caveat removed title property dispute period 14 october 2019 31 january 2020 kpe advanced unitholder loan approximately 1 1m trustee pursuant unitholders agreement judgment 9 c cl 6 3 ii mr quinn granted kpe equitable charge jindabyne property secure repayment trustee kpe unitholder loan cl 6 3 iii kpe permitted lodge caveat respect jindabyne property date agreement 10 october 2019 date head agreement entered respect tempe property total tool entity similar reasonable satisfaction kpe cl 6 3 iv caveat lodged must withdrawn within 5 business day head agreement entered cl 6 3 v mr quinn agreed object registration existence caveat prior date head agreement entered seek removed party dispute whether head agreement ever entered respect tempe property total tool entity similar reasonable satisfaction kpe mr quinn gave evidence time unitholders agreement entered october 2019 negotiating total tool hardware tool retailer lease part tempe property redeveloped head agreement entered total tool head agreement entered least one entity ideal space pty ltd least part tempe property evidence inconclusive whether head agreement potential lessee entered although mr quinn evidence four total entered respect different part tempe property mr quinn gave evidence discussion mr ellems representing kpe regarding various leasing proposal tempe property period november 2019 may 2020 included various email sent mr ellems head agreement attached mr quinn evidence mr ellems agreed head agreement satisfactory mr ellems denied conversation occurred neither mr quinn mr ellems cross examined clear factual dispute whether requirement head agreement respect tempe property entered total tool entity similar reasonable satisfaction kpe satisfied possible interlocutory application resolve factual dispute 2022 proceedingsthere dispute party whether amount owing trustee kpe respect kpe unitholder loan hence whether amount secured charge cl 6 3 ii unitholders agreement hearing slattery j 12 april 2022 kpe refused leave amend statement claim 2020 proceeding include allegation trustee liable repay unitholder loan amount claimed approximately 1 1m however honour gave kpe leave file separate proceeding noting undertaking trustee mr quinn would take point arising principle stated inport melbourne authority v anshun pty ltd 1981 147 clr 589 1981 hca 45 kpe filed statement claim 14 april 2022 commence 2022 proceeding seeking judgment trustee first defendant debt 1 1m pursuant unitholder agreement plus interest declaration equitable charge secure debt order judicial sale jindabyne property two tempe mr quinn yet file defence 2022 proceeding kpe undertook seek default judgment without giving 7 day notice although defence filed trustee mr quinn 2022 proceeding clear mr quinn evidence draft defence evidence mr quinn trustee dispute trustee indebted kpe kpe entitled lodge caveat jindabyne property relation alleged indebtedness kpe trustee also intends file cross claim kpe relation failure provide share fund completion purchase tempe property subject joint venture referred unitholders agreement damage claimed exceed amount 1 1m advanced kpe unitholder loan addition mr quinn dispute kpe entitlement lodge caveat jindabyne property cl 6 3 iii basis referred 11 competing security interest jindabyne propertythe title search jindabyne property evidence disclosed 6 december 2022 number competing security interest respect jindabyne property registered mortgage afsh nominee pty ltd amount outstanding mortgage take priority security interest approximately 467 347 47 b caveat lodged australian secure capital fund 23 august 2022 interest claimed charge virtue agreement dated 21 july 2021 australian secure capital fund mr quinn c caveat lodged gi 417 pty ltd gi 417 22 november 2022 claiming interest charge virtue agreement gi 417 mr quinn identified including facility summary dated 3 august 2022 registered memorandum common provision two caveat referred lodged second kpe caveat necessary set briefly relevant fact regarding two prior caveat around 21 july 2021 certane ct pty ltd certane custodian australian secure capital fund lender diamond construction pty ltd trustee tullimbar unit trust entered loan agreement facility 5 4m purpose facilitating purchase land tullimbar new south wale mr quinn sole director diamond construction pty ltd gave guarantee certane secured charge given asset including jindabyne property diamond construction pty ltd drew facility august 2021 term facility expired 5 september 2022 result debt became due payable diamond construction pty ltd around date 22 august 2022 tullimbar village pty ltd purportedly replaced diamond construction pty ltd trustee tullimbar unit trust 23 august 2022 noted certane lodged caveat jindabyne property amount outstanding certane facility least 5 567 069 15 september 2022 tullimbar village pty ltd trustee tullimbar unit trust entered loan facility agreement privateinvest capital security ltd privateinvest loan facility amount equal lesser 28 25m 65 latest value tullimbar property refinance certane facility fund development property money advanced privateinvest evidence reveal clearly suggestion due inability privateinvest secure funding facility september 2022 due difficulty obtaining fund privateinvest mr quinn engaged vanguard capital finance pty ltd vanguard finance broker assist obtaining loan refinance certane facility vanguard identified two potential lender refinancing hastings capital australia pty ltd hastings fincore pty ltd fincore 28 october 2022 certane appointed receiver asset diamond construction pty ltd mr quinn among others 9 november 2022 hastings solicitor sent mr quinn solicitor letter setting requirement hastings provide facility 2 636m tullimbar village pty ltd refinance certane facility proposed security included registered mortgage mr quinn jindabyne property ex p 252 next day hastings solicitor sent letter mr quinn solicitor condition precedent checklist included one condition precedent withdrawal kpe first caveat ex p 339 10 november 2022 fincore solicitor sent letter mr quinn solicitor setting term fincore would prepared make loan among others tullimbar village pty ltd 4 337m purpose refinancing certane facility letter state condition precedent settlement fincore hold first ranking security interest present acquired property tullimbar village pty ltd diamond construction pty ltd mr quinn ex p 332 draft agreement provided fincore include deed guarantee indemnity execution mr quinn provides cl 8 2 mr quinn register charge favour lender interest freehold land secure performance obligation deed permit lender lodge caveat land interest infer identification security schedule b loan deed identify mr quinn required provide registered real property mortgage requirement fincore mr quinn provide first ranking charge interest jindabyne property protected caveat lodged fincore evidence vanguard informed mr quinn 3 november 2022 first kpe caveat needed withdrawn vanguard would able find lender refinance certane facility 3 november 2022 vanguard informed mr quinn hastings longer willing participate refinancing certane facility vanguard identified another lender replace hastings mr quinn informed vanguard lender also requested second kpe caveat removed mr hewitt sc submitted behalf mr quinn reason think new lender lender proposing refinance certane facility including replacement hastings take different position relation second kpe caveat first certane caveat gi 417 caveat second kpe caveat relate equitable charge confer equitable interest land unregistered general principle priority competing equitable interest merit equal earlier time prevails later iwc industry pty ltd v sergienko 2021 nswca 292 20 bpr 41 785at 63 barlin investment ltd v westpac banking corporation 2012 2012 nswsc 699 16 bpr 30 671at 31 also well established mere failure holder prior equitable interest land lodge caveat constitute disentitling conduct rather one circumstance considered combination others determining whether inequitable prior equitable holder retain priority iwc industriesat 118 double bay newspaper pty ltd v aw holding pty ltd 1996 42 nswlr 409at 423 whether kpe lost priority certane charge gi 417 charge delay lodging second kpe caveat matter determined interlocutory proceeding would depend least part whether certane gi 417 searched register jindabyne property acted reliance apparent absence interest kpe charge contained cl 6 3 unitholders agreement note regard first kpe caveat identified charge different instrument would face put either certane gi 417 notice existence charge relied upon second kpe caveat delay part kpe lodging second kpe caveat mean kpe priority two later charge clear relevant consideration balance convenience lie discussed urgencymr quinn urgent need refinance certane loan facility due payable diamond construction pty ltd mr quinn guaranteed obligation diamond construction pty ltd certane appointed receiver asset diamond construction pty ltd mr quinn without notice 28 october 2022 mr quinn commenced supreme court proceeding 2022 335936 16 november 2022 undertaking provided court effect gave mr quinn opportunity 9 00am 29 november 2022 refinance certane facility certane provided undertaking reappoint receiver manager asset mr quinn diamond construction pty ltd time 28 november 2022 order made supreme court proceeding 2022 335936 included among thing undertaking certane appoint receiver manager asset mr quinn diamond construction pty ltd tullimbar unit trust 5 00pm 17 january 2023 b note agreement certane repaid full 5 00pm 17 january 2023 certane entitled appoint receiver manager asset undertaking diamond construction pty ltd mr quinn without notice mr quinn gave evidence seeking refinance certane facility deadline 17 january 2023 noted mr quinn informed finance broker vanguard hastings may longer willing participate refinancing certane facility also informed vanguard another potential lender also requested second kpe caveat removed purpose refinancingundertakings proffered mr quinnmr quinn behalf behalf company control indicated preparedness give following undertaking necessary relation order seeking removal second kpe caveat 1 first usual undertaking damage within meaning ofrule 25 8of theuniform civil procedure rule 2005 nsw damage flowing making order pursuant tosection 74maof thereal property act1900

Stubbs, Ian Trevor [2002] MRTA 4989 (28 August 2002).txt

stubbs ian trevor 2002 mrta 4989 28 august 2002 last updated 17 february 2003 2002 mrta 4989catchwords review visa refusal subclass 835 remaining relative regulation 1 15 overseas near relative usually residesreview applicant ian trevor stubbsvisa applicant ian trevor stubbstribunal migration review tribunalpresiding member l wardmrt file number w01 03978dept file number clf2000 7002date decision 28 august 2002at perthdecision tribunal affirms decision review finding visa applicant entitled grant preferential relative residence class bu subclass 835 family visa statement decision reasonsapplication review1 application review decision refuse grant visa made delegate minister immigration multicultural affair delegate 8 june 2001 2 mr ian trevor stubbs visa applicant national united kingdom born 3 november 1968 33 year old applied remaining relative residence class bu visa 11 february 2000 jurisdiction standing3 mr ian trevor stubbs review applicant lodged application review tribunal 5 july 2001 decision reviewable tribunal application review properly made person standing apply review legislation policy4 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject departmental 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 5 tribunal power affirm vary set aside decision refuse grant visa 6 criterion policy material immediately relevant review legislation part 835of schedule 2 regulationsregulation 1 15of regulation definition remaining relative 7 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence8 tribunal following document t1 mrt case file w01 03978d1 departmental file clf2000 7002 folio numbered 1 127 9 tribunal heard application review 9 august 2002 visa applicant mother mr stubbs gave evidence oath hearing 10 based evidence given hearing document available tribunal material fact application set 11 visa applicant 2 daughter told ex de facto relationship england daughter 8 9 year old respectively visa applicant legal documentation show father 2 girl name appear either birth certificate visa applicant accepted throughout biological father girl relationship visa applicant girl mother ended 1996 visa applicant kept informed whereabouts daughter last saw daughter early 2001 visited australia spent time parent prior visa applicant say seen daughter 3 5 4 year whenever seen daughter always company mother occasionally girl mother contact money although occurred since 1999 daughter resided throughout united kingdom mother 12 visa applicant say recently arrived australia united kingdom july 1999 apart 6 week united kingdom november 1999 remained australia last visa visa applicant held subclass 976 visa granted 17 october 1999 cease date 15 february 2000 13 visa applicant applied remaining relative residence class bu 11 february 2000 visa applicant claim remaining relative maureen esther stubbs nominator mother australian citizen 14 visa applicant list daughter question 37 visa application request give detail family whether included application child including previous marriage relationship response visa applicant wrote n 15 later revealed department visa applicant child previous relationship response visa applicant said include daughter application name birth certificate accepted father without legal proof visa applicant tried right thing girl although ex de facto played cat mouse mind game regard child mr stubbs said helped visa applicant fill form thought circumstance correct thing leave daughter form 16 8 june 2001 delegate stated visa granted basis assessed meet definition remaining relative defined migration reg 1 15 1 c child turned 18 wholly substantially daily care control fall within definition overseas near relative regulation 1 15 2 ii 17 review applicant stated lodging application review legal right child legal documentation say child 18 april 2002 visa applicant married australian citizen findings19 time visa application lodged 11 february 2000 class bu family residence contained following subclass subclass 835 remaining relative subclass 836 carer subclass 838 aged dependent relative visa application made basis visa applicant claimed remaining relative maureen esther stubbs evidence suggest visa applicant meet ground grant subclass 835 visa 20 one criterion satisfied time application grant remaining relative residence class bu visa clause 835 212 schedule 2 regulation clause 835 212 satisfied visa applicant eligible subclass 835 visa 21 11 february 2000 clause 835 212 stated 835 21 criterion satisfied time application 835 212 applicant remaining relative person settled australian citizen settled australian permanent resident settled eligible new zealand citizen b usually resident australia c nominated applicant grant visa 22 clause part provides visa applicant remaining relative person settled australian citizen usually resident australia nominated applicant grant visa time decision clause 835 221 requires applicant continues satisfy criterion clause 835 212 remaining relative23 term remaining relative defined inregulation 1 15as 11 february 2000 follows 1 applicant visa remaining relative another person australian citizen australian permanent resident eligible new zealand citizen applicant satisfies minister person parent brother sister step parent step brother step sister applicant b person usually resident australia c applicant applicant spouse overseas near relative applicant applicant spouse usually reside country australia different country relative resides ii neither applicant applicant spouse contact relative within reasonable period making application applicant applicant spouse together 3 overseas near relative e applicant child turned 18 ii adopted australian citizen australian permanent resident eligible new zealand citizen adoptive parent overseas time making application adoptive parent residing overseas period least 12 month 2 regulation overseas near relative relation applicant mean person parent brother sister step parent step brother step sister applicant applicant spouse b child including step child applicant applicant spouse child turned 18 dependent child applicant applicant spouse ii turned 18 wholly substantially daily care control applicant applicant spouse relative kind c australian citizen australian permanent resident eligible new zealand citizen usually resident australia 3 purpose paragraph 1 c overseas near relative taken reside last known country residence unless applicant satisfies minister relative resides another country 24 summary definition remaining relative set following 5 requirement relevant application namely visa applicant must 1 relative parent australian citizen 2 relative usually resident australia 3 usually reside country australia different country overseas near relative resides 4 contact overseas near relative reasonable period preceding application and5 visa applicant 3 overseas near relative 25 visa applicant fails satisfy 1 5 requirement visa application must fail 26 appears point 1 2 satisfied mr stubbs parent visa applicant australian citizen usually resident australia accordingly paragraph 1 15 1 b regulation satisfied 27 relation point 3 tribunal must satisfied accordance subparagraph 1 15 1 c regulation c applicant applicant spouse overseas near relative applicant applicant spouse usually reside country australia different country relative resides and28 paragraph 1 15 1 c regulation refer overseas near relative 11 february 2000 term defined inregulation 1 15 2 follows 2 regulation overseas near relative relation applicant mean person b child including step child applicant applicant spouse child ii turned 18 wholly substantially daily care control applicant applicant spouse overseas near relative29 first issue determined tribunal whether visa applicant daughter overseas near relative 30 evidence available tribunal clear daughter treated throughout visa applicant parent visa applicant child evidence tribunal suggest otherwise evidence available child could said wholly substantially daily care control visa applicant minimal contact child throughout life visa applicant consulted respect aspect child life 31 accordingly tribunal satisfied visa applicant 2 overseas near relative namely 2 daughter previous relationship 32 result tribunal must examine subparagraph 1 15 1 c regulation satisfied order satisfy subparagraph 1 15 1 c regulation visa applicant must usually reside country different country daughter reside 33 relation deciding overseas near relative resides subregulation 1 15 3 regulation provided 11 february 2000 follows 3 purpose paragraph 1 c overseas near relative taken reside last known country residence unless applicant satisfies minister relative resides another country 34 visa applicant lived united kingdom coming australia 1999 visa applicant daughter lived united kingdom mother since birth 35 accordance subregulation 1 15 3 regulation date visa application visa applicant daughter usually resided united kingdom also date visa application visa applicant taken reside united kingdom home country entering australia 36 follows evidence available tribunal find visa applicant resides country namely united kingdom daughter overseas near relative accordingly visa applicant meet requirement subparagraph 1 15 1 c regulation usually reside country australia different country daughter reside 37 visa applicant disqualified remaining relative paragraph 1 15 1 c necessary tribunal consider application remaining paragraph visa applicant remaining relative mother therefore satisfy clause 835 212 schedule 2 regulation therefore meet criterion subclass 835 visa 38 accordingly tribunal make following finding visa applicant usually resides country australia overseas near relative decision39 tribunal affirms decision review finding visa applicant entitled grant preferential relative migrant class ay visa

Chris L Potter v Clarence City Council [2008] TASRMPAT 169 (16 July 2008).txt

chris l potter v clarence city council 2008 tasrmpat 169 16 july 2008 chris l potter v clarence city council 2008 tasrmpat 169 16 july 2008 last updated 30 july 2009citation chris l potter v clarence city council 2008 tasrmpat 169parties appellant chris l potterrespondent clarence city counciladdress 4 trikala place tranmeretitle tribunal resource management planning appeal tribunaljurisdiction planning appealfile 60 08pdelivered 16 july 2008delivered hobarthearing date 2 july 2008decision sj cooper chairmanb mcneill member l cosgrove membercatchwords dwelling variation site cover height eastern shore planning scheme 1963representation counsel appellant m c scott counselrespondent mr j morris counselsolicitors appellant page seagerrespondent simmons wolfhagendecision1 appeal concerned refusal clarence city council council grant permit relation residential development proposed 4 trikala place tranmere background matter 16 november 2007 application made council permit residence application accompanied comprehensive documentation including plan detailed nature proposed residence 2 trikala place zoned residential eastern shore planning scheme 1963 scheme planning scheme applies virtue section 62 3 theland use planning approval act 1993 land use act 3 accordance clause 8 4 2 scheme proposal discretionary development 4 council dealt matter normal way fact application advertised accordance requirement section 57 3 theland use actand regulation 8 theland use planning approval regulation several representation resident area received council benefit comprehensive report planning department report unequivocally recommended proposal approved complied relevant aspect requirement planning scheme notwithstanding advice council determined refuse application permit following ground proposal contrary provision city clarence eastern shore planning scheme 1963 regard 1 overdevelopment s5 2 3 5 2 5 5 2 9 2 excessive impact view s5 2 13 3 excess height s8 8 2 4 excess site cover s8 6 2 and5 objection s5 2 17 6 relation decision appeal come tribunal representor applied join appeal although course legal right brought appeal 7 subsequently application made pursuant section 22 theresource management planning appeal tribunal act 1993 appeal tribunal act amend application tribunal made order approving amendment 8 effect change reduction height cosmetic change balustrade treatment address overlooking ground floor level sundeck adjacent 6 trikala place first floor level bedroom sundeck amendment went way least towards addressing concern raised representors also mean tribunal dealing application little different council concerned 9 two discretion invoked height s8 8 height exceeds 7 5 metre natural ground level site coverage s8 6 site coverage exceeds 25 10 common ground case height site coverage exceeded albeit case significantly 11 height variation required 4 metre fact mr jago architect gave evidence tribunal accepts numerical compliance scheme height standard easily achieved removal small part one eave clear plan tendered hearing small part proposed residence exceeds 7 5 metre plan showing 7 5 metre height level plane particularly helpful regard 12 dealing issue height discretion clause 8 8 1 scheme objective need considered relate specifically building height follows ensure new residential development domestic scale compatible existing residential character b protect neighbouring building overlooking overshadowing 13 evidence m blowfield behalf proponent well mr jago satisfies tribunal term objective scheme proposed meet m blowfield evidence character area one relatively large house moderately sized lot building form presenting layering development across landscape precisely proposed case m blowfield went state three storey proposed unusual tranmere area question gave evidence building entirely consistent character area tribunal accepts evidence consistent observation tribunal understand mr goodsell behalf council seriously contest proposition tribunal satisfied every respect appropriate exercise discretion far height concerned variation height moderate consistent objective scheme 14 specifically precise nature proposal considered carefully regard existing view corridor scenic view term scheme tribunal affirmatively satisfied exercising discretion manner requested impact upon view house immediately behind 31 29 pindos place worse view term residence made strictly comply scheme standard either dropping whole residence 4 metre removing small part offending eave 15 m blowfield point extent variation requested minor impact significant meaningful way upon character surrounding area surrounding house suggested treatment balustrade material reduces ability overlooking commended tribunal note relaxation height standard require undertaken summary absolutely nothing tribunal view minor increase height objectionable 16 argument relation overdevelopment say excess site cover increase 25 site coverage 31 site coverage equally without merit tribunal hesitation accepting m blowfield evidence regard need noted power vary 40 coverage area question consistent one aspect case surrounding area site coverage exceeds 25 indeed evidence point came council house 29 31 pindos drive good example tendency increased site coverage surrounding area 17 point site coverage plainly case nothing increase site coverage impact upon amenity enjoyed residence area specifically 29 31 pindos drive simplest increase site coverage effect upon view strictly compliant residence would exactly impact 18 circumstance tribunal persuaded appropriate exercise discretion manner requested 19 conclusion open appeal must succeed order quashing decision council replacing permit council directed issue permit term agreed party failing agreement liberty apply 20 tribunal entertain application order cost appeal made tribunal writing supporting submission within next fourteen day requested tribunal reconvene hear evidence respect matter bearing order cost 21 absence application order cost order tribunal party bear cost dated 16 jul 2008mr b mcneillmr j cooperdr l cosgrovememberchairmanmember

1105506 [2012] MRTA 2282 (10 August 2012).txt

1105506 2012 mrta 2282 10 august 2012 last updated 29 august 20121105506 2012 mrta 2282 10 august 2012 decision recordapplicant mr alfredo otfon talleomrt case number 1105506diac reference bcc2010 464500tribunal member lucasdate 10 august 2012place decision melbournedecision tribunal affirms decision grant applicant temporary business entry class uc visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant temporary business entry class uc visa unders 65of themigration act 1958 act applicant applied department immigration citizenship temporary business entry class uc visa 29 october 2010 delegate decided refuse grant visa 18 may 2011 notified applicant decision review right letter dated 18 may 2011 delegate refused grant visa basis applicant satisfy cl 457 223 eb schedule 2 themigration regulation 1994 regulation applicant provide evidence level english proficiency equivalent least level english language proficiency required achieve ielts test score least 5 0 four test component speaking reading writing listening applicant applied tribunal 7 june 2011 review delegate decision tribunal find delegate decision mrt reviewable decision 338 2 act r 4 02 1a regulation tribunal find applicant made valid application review 347 act relevant lawthe temporary business entry class uc visa permit non citizen skill needed australian business enter work temporarily australia class uc contains two subclass subclass 456 business short stay subclass 457 business long stay subclass 456 visa permit stay 3 month subclass 457 visa permit stay 4 year case independent executive proposing maintain ownership interest business australia stay 2 year permitted tribunal jurisdiction relation decision refuse subclass 456 visa criterion subclass 457 visa set inpart 457of schedule 2 themigration regulation 1994 regulation one primary criterion satisfied time decision cl 457 223 one alternative requirement cl 457 223 must satisfied employment australia labour agreement la cl 457 223 2 standard business sponsorship employment nominated occupation cl 457 223 4 independent executive proposing maintain ownership interest business australia independent executive application onshore iefao cl 457 223 7a service seller representing overseas company cl 457 223 8 person engaged diplomatic type work entitled certain privilege immunity cl 457 223 9 andfor application made 1 november 2003 employment australia invest australia supported skill ia agreement cl 457 223 10 applicant present case made specific claim cl 457 223 4 claim made respect alternative sub criterion cl 457 223 clause 457 223 substantially amended 14 september 2009 visa application finally determined date application made date migration amendment regulation 2009 9 r 3 6 clause 457 223 4 applies present case provides standard business sponsorship 4 applicant meet requirement subclause either applicant business activity specified application relating applicant subject approved business nomination regulation 1 20h force immediately prior 14 september 2009 nomination made person standard business sponsor time nomination approved b approval nomination ceased effect subregulation 1 20h 5 force immediately prior 14 september 2009 ii nomination occupation relation applicant approved section 140gb act nomination made person standard business sponsor time nomination approved b approval nomination ceased provided regulation 2 75 andnotethe definition ofoccupationin clause 457 111 includes activity mentioned subparagraph aa nominated occupation specified instrument writing paragraph 2 72 10 aa effect ba business activity person made approved nomination include activity relating either recruitment labour supply unrelated business ii hiring labour unrelated business either iii occupation undertaken position business associated entity person made approved nomination iv occupation specified minister instrument writing subparagraph minister satisfied applicant intention perform occupation genuine ii position associated nominated occupation genuine e minister requires applicant demonstrate skill necessary perform occupation applicant demonstrates skill manner specified minister ea applicant would required hold licence registration membership mandatory perform occupation nominated relation applicant ii order obtain licence registration membership applicant would need demonstrate level english language proficiency equivalent level english language proficiency required achieve ielts test score 5 4 test component speaking reading writing listening applicant proficiency english least standard required grant however described licence registration membership eb applicant exempt applicant ii subclause 6 apply applicant iii least 1 subparagraphs ea ii apply applicant level english language proficiency required achieve ielts test score least 5 4 test component speaking reading writing listening ec minister requires applicant demonstrate english language proficiency applicant demonstrates english language proficiency manner specified minister f either adverse information known immigration person made approved nomination mentioned paragraph person associated person ii reasonable disregard adverse information known immigration person made approved nomination mentioned paragraph person associated person present case visa application refused basis applicant meet cl 457 223 4 eb issue arisen review relation whether applicant satisfies criterion cl 457 223 4 requires applicant subject approved nomination standard business sponsor claim evidencethe tribunal department file relating applicant tribunal also regard material referred delegate decision material available range source purpose review applicant appointed financial controller employer representative authorised recipient application departmentin application department applicant provided evidence citizen philippine form philippine passport diac file f 15 curriculum vitae applicant provided information concerning primary secondary education philippine detail employment experience motor mechanic diac file f 8 11 november 2010 department wrote applicant questing information including information applicant satisfied english language proficiency requirement diac file f 24 department advised applicant exempted requirement demonstrating english language proficiency asked applicant provide evidence score least 5 0 four test component international english language testing system ielts test 5 may 2011 applicant employer representative forwarded result ielts test undertaken applicant 12 february 2011 diac file f 26 correspondence acknowledged applicant achieved requisite score opportunity requested undertake ielts test e mail day department advised unable defer consideration application accordingly 18 may 2011 delegate made decision refuse application basis applicant meet requirement contained within cl 457 223 4 eb application reviewthe applicant provided copy delegate decision application review mrt file f 19 application review constituted presiding member 27 june 2012 mrt file f 47 12 july 2012 tribunal accessed information contained department integrated client service environment icse database mrt file f 51 confirmed applicant original sponsoring employer held status standard business sponsor 17 november 2011 17 november 2014 department record also confirmed nomination relation applicant approved 22 november 2010 12 july tribunal wrote applicant inviting comment respond information provide additional information pursuant section 359a section 359 2 respectively mrt file f 60 tribunal invitation following term writing application review made 7 june 2012 relation decision refuse grant temporary business entry class uc visa application review constituted member tribunal active consideration tribunal writes inviting comment response certain information accepted would reason part reason affirming decision review tribunal also writes inviting provide information support claim meet relevant criterion letter accordingly two part part one invitation comment respond informationthe tribunal information accepted would reason part reason affirming decision delegate however please note tribunal made mind information tribunal regard information contained departmental record indicating presently subject approved nomination standard business sponsor particular departmental record indicate subject decision approve nomination 22 november 2010 pursuant tomigration regulation2 75 nomination ceased 22 november 2011 information accepted relied upon tribunal would reason part reason tribunal affirm decision made department refuse grant subclass 457 visa one criterion contained within subclass 457 namely clause 457 223 4 requires time decision subject approved nomination standard business sponsor tribunal rely information tribunal would accordingly required affirm decision delegate basis meet criterion contained within clause 457 223 4 accordingly invited give comment respond information writing part two invitation provide informationinformation concerning current nominationsubclause 457 223 4 requires demonstrate time tribunal come deciding application must subject approved nomination standard business sponsor relation occupation specified purpose themigration regulation relevant provision set attachment 1 tribunal accordingly invite provide information satisfy requirement subject approved nomination standard business sponsor information concerning english language criteriain addition applicant subclass 457 visa generally required demonstrate english language proficiency form score international english language testing system ielts test least 5 4 component speaking reading writing listening certain applicant required demonstrate english language proficiency sitting ielts test circumstance applicant required demonstrate english language proficiency set subclauses 457 223 4 457 223 6 and457 223 11 schedule 2 themigration regulation 1994and instrument numberimmi 12 048dated 12 june 2012 commenced 1 july 2012 please findattacheda copy relevant extract subclause 457 223 schedule 2 themigration regulation 1994 attachment 1 andimmi 12 048 attachment 2 reference information tribunal able satisfy gazetted exception apply reference passport education experience occupation addition information tribunal paid base salary specified gazette 92 000 granting subclass 457 visa would interest australia accordingly tribunal invite provide information writing demonstrates meet relevant english language requirement otherwise information showing required demonstrate english language proficiency invitation sent nominated authorised recipient last facsimile number provided connection review advised information provided writing 9 august 2012 tribunal may make decision review without taking step obtain information review applicant would lose entitlement might otherwise act appear tribunal give evidence present argument review applicant provided information within prescribed period extension granted circumstance 359c applies pursuant 360 3 review applicant entitled appear tribunal effect 363a act review applicant entitlement hearing tribunal power permit appear hasran v miac 2010 fcafc 40 tribunal decided proceed decision without taking step obtain information finding reasonsrelevant review cl 457 223 4 regulation previously stated cl 457 223 substantially amended 14 september 2009 visa application finally determined date application made date migration amendment regulation 2009 9 r 3 6 paragraph 457 223 4 applies present case provides nomination business activity regulation 1 20h force prior 14 september 2009 nomination occupation 140gb current sponsorship framework must approved well time nomination approved person making nomination must standard business sponsor time decision subclass 457 visa application approval nomination must ceased effect question fact whether approved nomination order meet requirement cl 457 223 4 applicant business activity specified application relating applicant subject approved business nomination regulation 1 20h force immediately prior 14 september 2009 nomination must made person standard business sponsor time nomination approved approval nomination ceased effect subregulation 1 20h 5 force immediately prior 14 september 2009 evidence tribunal visa applicant business activity specified application relating visa applicant subject approved business nomination regulation 1 20h force immediately prior 14 september 2009 tribunal therefore find applicant satisfy cl 457 223 4 order meet requirement cl 457 223 4 ii nomination occupation relation applicant approved 140gb act nomination must made person standard business sponsor time nomination approved approval nomination ceased provided regulation 2 75 tribunal accepts nomination occupation relation visa applicant approved 140gb act made person standard business sponsor time nomination approved however reference r 2 75 nomination question ceased 22 november 2011 tribunal put information applicant invited comment response information within prescribed period tribunal received response comment adverse information addition tribunal invited additional information concerning whether applicant subject approved nomination receive information tribunal find applicant satisfy cl 457 223 4 ii therefore find applicant satisfy requirement cl 457 223 4 claim made respect sub criterion cl 457 223 however tribunal considered ground part determination whether applicant satisfies cl 457 223 evidence applicant would able satisfy criterion clause evidence labour agreement purpose cl 457 223 2 applicant made claim conducting business principal meet requirement cl 457 223 7a evidence applicant service seller person accorded diplomatic privilege thus cannot satisfy cl 457 223 8 cl 457 223 9 respectively ia agreement applicant cannot satisfy cl 457 223 10 applicant meet cl 457 223 conclusionsgiven finding made tribunal must affirm decision review decisionthe tribunal affirms decision grant applicant temporary business entry class uc visa lucasmember

Promenade Hamilton Apartments [2019] QBCCMCmr 4 (8 January 2019).txt

promenade hamilton apartment 2019 qbccmcmr 4 8 january 2019 last updated 14 january 2019adjudicator orderoffice commissionerfor body corporate community managementcitation promenade hamilton apartment 2019 qbccmcmr 4parties helen ford allan applicant body corporate promenade hamilton apartment respondent scheme promenade hamilton apartment ct 43582jurisdiction section 227 1 b and229 3 thebody corporate community management act 1997 qld act applying act thebody corporate community management accommodation module regulation 2008 accommodation module application 0971 2018decision date 8 january 2019decision p dowling adjudicatorcatchwords general meeting whether opposition motion decided resolution without dissent whether still opposition motion decided resolution without dissent act 105 ordermade hereby orderthat body corporate promenade hamilton apartment ct 43582 deemed passed resolution without dissent motion 12 agenda annual general meeting scheduled held 25 july 2018 adjourned held 1 august 2018 reason decisionintroduction 1 applicant owner lot 4007 proposed motion relating body corporate granting owner lot 4007 exclusive use part common property proposal listed motion 12 agenda annual general meeting scheduled held 25 july 2018 agm motion required body corporate decision resolution without dissent 2 motion requiring type resolution would pas vote counted motion 1 minute agm adjourned held 1 august 2018 record motion 12 lost one vote counted 3 applicant submits disputed vote made michael augustus owner lot 4018 applicant add following subsequent discussion mr augustus contacted body corporate manager retract vote regard applicant provides email mr augustus richard meek rubicon bcs admin sent 29 august 2018 mr augustus said may please request retract original vote attached motion motion 12 4 reason applicant made dispute resolution application commissioner body corporate community management seeking order adjudicator motion 12 relation grant exclusive use common property 2018 annual general meeting promenade hamilton apartment deemed passed 5 respect matter commissioner invited committee lot owner make written submission mr gilbert lot 4076 chairperson complete agreement applicant body corporate manager say agm committee fully supportive motion applicant indicated wish respond submission commissioner referred application departmental adjudication 2 decision 6 opposition motion requiring resolution without dissent motion 12 aggrieved person may challenge body corporate decision commencing proceeding commissioner ordinarily challenge would based assertion circumstance opposition unreasonable satisfied argument adjudicator may give effect motion proposed 3 7 case evident applicant discussed matter mr augustus agm consequence discussion mr augustus longer object proposition motion 12 however notwithstanding mr augustus 29 august 2018 email body corporate cannot reverse declared result voting motion 12 8 matter applicant decide proceed proposal applicant option submitting motion consideration next general meeting body corporate noted minute agm meeting may next annual general meeting held month april 2019 would approach delay settlement applicant proposal risk unforeseen opposition proposal 9 applicant chose progress matter via application commissioner commissioner accepted application invited owner make submission noted paragraph 5 submission made commissioner support application commissioner referred application department adjudication 10 adjudicator may make order equitable circumstance including declaratory order resolve dispute claimed anticipated contravention act exercise right power performance duty act 4 11 view relevant applicant proposed motion requiring body corporate decision resolution without dissent motion failed opposition one owner 172 lot scheme adjudicator power make ruling opposition unreasonable assessment cannot made case owner retracted opposition applicant proposal significantly clear submitted material including submission commissioner opposition applicant proposal 12 circumstance nothing suggest applicant disadvantaged way nature mentioned paragraph 8 regard given undeniable support owner therefore consider equitable make order term sought 1 act 105 2 act 248 3 act 276 3 schedule 5 item 10 4 act 276 1

Aurizon Operations Limited T_A Aurizon [2023] FWCA 612 (24 February 2023).txt

aurizon operation limited aurizon 2023 fwca 612 24 february 2023 last updated 27 february 2023 2023 fwca 612fair work commissiondecisionfair work act 2009s 185 enterprise agreementaurizon operation limited aurizon ag2023 45 aurizon coal enterprise agreement 2022rail industrydeputy president gostencnikmelbourne 24 february 2023application approval aurizon coal enterprise agreement 2022 1 application made approval enterprise agreement known theaurizon coal enterprise agreement 2022 agreement application made pursuant tos 185of thefair work act 2009 act made aurizon operation limited aurizon agreement single enterprise agreement 2 employer provided written undertaking copy undertaking attached annexure satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement undertaking taken term agreement 3 subject undertaking referred satisfied requirement ofss 186 187 188and190as relevant application approval met 4 rail tram bus union australian federated union locomotive employee australian manufacturing worker union communication electrical electronic energy information postal plumbing allied service union bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 5 agreement approved accordance withs 54of act operate 3 march 2023 nominal expiry date agreement 3 march 2026 deputy presidentprinted authority commonwealth government printer ae519308pr751165 annexure

Construction, Forestry, Mining and Energy Union [2016] FWCA 8504 (28 November 2016).txt

construction forestry mining energy union 2016 fwca 8504 28 november 2016 2016 fwca 8504fair work commissiondecisionfair work act 2009s 185 enterprise agreementconstruction forestry mining energy union ag2016 7123 pump pty ltd cfmeu victorian construction general division concrete pumping enterprise agreement 2016 2018building metal civil construction industriescommissioner gregorymelbourne 28 november 2016application approval pump pty ltd cfmeu victorian construction general division concrete pumping enterprise agreement 2016 2018 1 application made approval enterprise agreement known thejust pump pty ltd cfmeu victorian construction general division concrete pumping enterprise agreement 2016 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 5 december 2016 nominal expiry date agreement 30 june 2018 commissionerprinted authority commonwealth government printer price code ae422392pr587945 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

Applicant: Daniela Mitreska IRT Reference: N97_01872 #number 11207 [1998] IRTA 11207 (4 February 1998).txt

applicant daniela mitreska irt reference n97 01872 number 11207 1998 irta 11207 4 february 1998 immigration review tribunalstatement decision reason decisionirt decision n97 01872 11207 docapplicant daniela mitreskatribunal gabriel flemingpresiding membergail radfordmemberdate 4 february 1998place sydneydecision tribunal affirms decision review applicationthis review decision cancel subclass 300 prospective marriage visa held applicant daniela mitreska primary decision made 7 november 1997 delegate minister immigration ethnic affair primary decision maker 14 november 1997 applicant applied review decision tribunal applicant daniela mitreska twenty three year old citizen macedonia arrived australia 6 october 1997 fiance vasil stoilov australian citizen reason given primary decision maker cancellation visa circumstance permitted grant visa longer existed condition class 300 visa holder must enter marriage relation visa granted within visa period visa condition 8519 schedule 8 regulation mr stoilov advised department relationship broken m mitreska going marry relevant lawthe tribunal required come make decision accordance themigration act 1958 theact regulation 7 november 1997 applicant served notice intention cancel visa undersection 116of themigration act 1958 visa cancelled day m mitreska interviewed departmental officer relevant provision theactprovide follows power cancel116 1 subject subsection 2 3 minister may cancel visa satisfied circumstance permitted grant visa longer exist b holder complied condition visa c another person required comply condition visa complied condition holder entered australia entered immigration cleared would liable cancelled subdivision c incorrect information given holder holder entered immigration cleared e presence holder australia would risk health safety good order australian community f visa granted application grant contravention thisactor another law commonwealth g prescribed ground cancelling visa applies holder 2 minister cancel visa exist prescribed circumstance visa cancelled 3 minister may cancel visa subsection 1 minister must exist prescribed circumstance visa must cancelled subdivision e set procedure cancelling visa subdivision notice ground cancellation considered must given holder invited show either ground exist reason visa cancelled section 119 holder must given opportunity respond visa may cancelled holder given notice cancellation includes information relevant cancellation primary decision maker case arriving decision cancel visa relied ground provided bysection 116 1 followed procedure set subdivision e cancelling visa undersection 116 general power cancel power cancel visa undersection 116is discretionary power department issued policy guideline form migration series instruction 158 msi issued 22 october 1996 relate cancellation state far relevant follows 10 2 2 delegated officer determines ground cancellation exists consider whether cancel non citizen visa delegated officer regard limited following matter purpose intended travel stay australia whether evidence suggests visa holder intended temporary permanent stay australia whether visa holder travelled spent time australia occasion visa holder conduct occasion present circumstance visa holder length lawful residence australia strength family social business tie australia degree hardship would caused australian citizen permanent resident visa cancelled person required leave australia hardship visa holder would suffer tie country circumstance ground cancellation arose seriousness ground cancellation visa holder behaviour relation department eg cooperation department willingness come forward timeliness response department time elapsed since ground cancellation arose whether circumstance provide ground cancellation continue exist effect consequential cancellation operation law visa held family unit member event visa cancelled refer 11 information consequential cancellation effect cessation bridging visa class b held visa holder event visa cancelled refer msi visa cancellation general guideline information cessation bridging visa cancellation substantive visa 10 2 3 list intended comprehensive incumbent decision maker take account relevant matter deciding whether cancel visa policy guideline observed inconsistent legislation cogent reason application duty observe policy guideline see generallyre drake minister immigration ethnic affair 2 1979 aata 179 1979 2 ald 634and ali v minister immigration local government ethnic affair 1992 fca 453 1992 38 fcr 144 case tribunal observed department policy guideline evidencethe tribunal held hearing 10 december 1997 applicant attended tribunal heard sworn oral evidence applicant evidence telephone former sponsor fiancé vicor stoilov hearing tribunal assisted interpreter macedonian language tribunal evidence departmental file f96 023216 n97 304266t related m mitreska content file form part evidence matter number matter dispute tribunal turn first m mitreska arrived australia macedonia 6 october 1997 permission remain 3 june 1998 subject condition marry sponsor fiancé mr victor stoilov met airport sydney mr stoilov lived family home 5 november 1997 shared intimate relationship lived husband wife time m mitreska left stoilov home 5 november mr stoilov informed department relationship broken appears prospect reconciliation apart basic fact mr stoilov m mitreska give different account development breakdown relationship m mitreska told tribunal met mr stoilov prior arrival australia shown photo neighbour marriage arranged first made visitor visa application stated fiancé stojan nikolovski told tribunal fictitious person mr stoilov told make visitor visa application detail also said mr stoilov told lie department claim met one month 1994 macedonia said lot pressure macedonia bad relationship stepmother circumstance thought marriage would change life according m mitreska relationship mr stoilov broke surprised find arrival invalid felt brought australia nurse mr stoilov wife also refused get pregnant mr stoilov prior marriage eventually left went live aunty also life sydney mr stoilov told tribunal hearing give m mitreska advice previous visitor application family fail support way arrived australia said thought loving engaged couple suddenly m mitreska aunt came home took away 5 november 1997 said want become pregnant thought could coincide wedding maintained met macedonia 1994 following hearing mr stoilov rang tribunal spoke officer evidence file note conversation appears tribunal file follows vasil stoilov rang say lied hearing irt mr stoilov said daniella made lie phone questioned said made lie initial phone call dept immigration asked clarify lied phone tribunal said yes mr stoilov said never met claimed daniella instructed say apparently aunty came visit daniella 4 december home mr stoilov daniella living wanted take away ten hour later aunty came back daniella went apparently daniella said wanted go back macedonia daniella told vasil whilst bed want become pregnant year vasil claim daniella medication anti depressant vasil also said smoke bed daniella apparently said everything fine mr stoilov thought genuine put shame vasil claim teasing purpose trying make angry mr stoilov claim tormented bed saying boyfriend seven year sexual relationship one year mr stoilov said daniella coming australia meet nikoloski stojan boyfriend seven year mr stoilov would like sent back become burden welfare mr stoilov think daniella medical initially applying claim would passed questioned claim mentally ill hear someone background talking questioned mr stoilov denied someone telling say mr stoilov wanted know outcome morning hearing informed visa cancelled unable discus case happy knowing mr stoilov would like tribunal inform outcome told would speak member involved case signed tribunal officerfindingsthe tribunal carefully considered evidence outlined tribunal find m mitreska longer meet condition visa ground cancellation made intend enter marriage mr stoilov tribunal considered totality evidence surrounding grant cancellation visa relevant exercise discretion cancel exercising discretion whether cancel applicant visa tribunal taken factor outlined msis account matter m mitreska mr stoilov shown prepared lie department application mr stoilov also admitted lying tribunal m mitreska currently bridging visa class 300 visa would event lapsed 3 june 1998 evidence suggests tribunal correct fact given department m mitreska would granted visa disadvantage cancellation upheld must return macedonia earlier june 1998 tribunal view significant hardship family australia country short time significant community tie m mitreska also lied department earlier application visitor visa tribunal view m mitreska conduct serious breach australian migration law tribunal taken account m mitreska evidence believed used mr stoilov family discarded found unsuitable marriage tribunal taken matter account tribunal accept m mitreska given benefit visa clearly entitled honest dealing department tribunal view circumstance warrant exercise discretion way cancel m mitreska visa tribunal determined circumstance decision cancel applicant visa set aside decisionthe tribunal affirms decision review certify 7 preceding page true copy decision reason decision tribunal dated 4 february 1998 deputy registrar

BPX17 v Minister for Immigration and Border Protection [2018] FCA 763 (14 June 2018).txt

bpx17 v minister immigration border protection 2018 fca 763 14 june 2018 last updated 14 june 2018federal court australiabpx17 v minister immigration border protection 2018 fca 763appeal bpx17 anor v minister immigration anor 2017 fcca 3047file number nsd 2234 2017judge barker jdate judgment 14 june 2018catchwords migration application class xa protection visa appeal federal circuit court australia whether judge committed jurisdictional error whether failure find administrative appeal tribunal erred applying test real risk significant harm complementary protection appellant family unit comprising wife husband wife claim converting religion accepted appellant claim religion requires proselytise throughout home country whether relocation therefore reasonable appeal dismissedlegislation migration act 1958 cth s 36 2 36 2 aa 36 2a 36 2b 36 2c migration amendment complementary protection act 2011 cth convention torture cruel inhuman degrading treatment punishment opened signature 10 december1984 1465 unts 85 entered force 26 june 1987 convention right child opened signature 20 november1989 1577 unts 3 entered force 2 september 1990 international covenant civil political right opened signature 16 december1966 999 unts 171 entered force 23 march 1976 case cited appellant s395 2000 v minister immigration multicultural affair 2003 216 clr 473 2003 hca 71chan yee kin v minister immigration ethnic affair 1989 169 clr 379 1989 hca 62minister immigration border protection v bbs16 2017 fcafc 176minister immigration border protection v szsca another 2014 254 clr 317 2014 hca 45minister immigration citizenship v anochie another 2012 209 fcr 497 2012 fca 1440minister immigration citizenship v szqrb 2013 210 fcr 505 2013 fcafc 33szatv v minister immigration citizenship another 2007 233 clr 18 2007 hca 40szgiz v minister immigration citizenship 2013 212 fcr 235 2013 fcafc 71szqdf v minister immigration anor 2017 fcca 519date hearing 25 may 2018registry new south walesdivision general divisionnational practice area administrative constitutional law human rightscategory catchwordsnumber paragraph 122counsel appellant mr jonessolicitor appellant firmstone associatescounsel first respondent m n laingsolicitor first respondent dla piper australiaordersnsd 2234 2017between bpx17first appellantbpy17second appellantand minister immigration border protectionfirst respondentadministrative appeal tribunalsecond respondentjudge barker jdate order 14 june 2018the court order appeal dismissed appellant pay cost first respondent assessed agreed note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentbarker j appellant appeal decision federalcircuit courtof australia dismissing application judicial review decision administrative appealstribunal tribunal decision affirmed decision adelegateof theministerfor immigration border protection refusing grant protection class xa visa themigrationact1958 cth appellant wife husband 30 citizen india arrived australia 2009 wife granted student visa first applied protection visa july 2011 however initial application refused refusal decision affirmed merit review march 2012 appellant applied protection visa 2 november 2012 second application considered valid light decision inszgizv minister immigration citizenship 2013 212 fcr 235 2013 fcafc 71 basis claim complementary protection considered earlier application wife primary applicant second application husband included member family unit raising claim right complementary protection provision act introduced themigration amendment complementary protection act 2011 cth applied since march 2012 give effect australia obligation theconvention torture cruel inhuman degrading treatment punishment opened signature 10 december1984 1465 unts 85 entered force 26 june 1987 theinternational covenant civil political right opened signature 16 december1966 999 unts 171 entered force 23 march 1976 theconvention right child opened signature 20 november1989 1577 unts 3 entered force 2 september 1990 section 36 2a act provides australia permitted remove people country face real risk one following arbitrary deprivation lifethe death penaltytorturecruel inhuman treatment punishmentdegrading treatment punishmentsection 36 2b set three exception real risk significant harm applicant safely relocate another part country authority within country provide protection risk faced population generally non citizen personally section 36 2c set exclusion clause presently relevant include person committed crime peace war crime crime humanity understood international law second protection visa application wife claimed appellant left india due religious intolerance country stated since arriving australia converted jehovah witness faith return india would remain clandestine adherent significantly modify religious practice including engaging preaching activity order avoid serious harm india said jehovah witness ostracised vulnerable member indian community referred hostility directed toward people faith including family community would accept husband conversion would seek seriously harm wife claimed due religion husband would face severe discrimination tantamount persecution relation legal protection employment inheritance education stated given india remains largely caste system right derived class would taken away due apostate wife claimed indian society accept convert particularly converted jehovah witness faith stated authority would intervene religiously motivated crime july 2015 delegate refused appellant application appellant applied merit review delegate decision tribunal tribunal affirmed delegate decision 14 march 2017 tribunal ultimately found considered evidence accept real risk wife would suffer significant harm outside punjab necessary foreseeable consequence removed australia india appellant applied circuit court judicial review tribunal decision judge circuit court dismissed application 7 december 2017 finding jurisdictional error established appellant appeal single ground namely primary judge erred failing conclude tribunal made jurisdictional error purported application test determining relevant risk significant harm primary judge erred concluding first appellant properly raised tribunal fact would proselytise across india jehovah witness primary judge erred concluding decision high court s395 apply relation complementary protection primary judge erred concluding tribunal required ass reasonableness appellant refraining visiting state anti conversion law primary judge erred concluding tribunal properly determined whether reasonableness present relation appellant failed conclude unreasonable appellant modify conduct refraining visiting state india anti conclusion law understand ground necessary understand appellant second protection visa application dealt delegate tribunal judge delegate decisionon 2 november 2012 thedepartmentof immigration citizenship department home affair sent appellant notification invalid visa application due previously refused protection august 2013 however received notification application valid result full court decision inszgiz late 2013 appellant sent department baptism photo material distributed conduct preaching appellant attended interview delegate may 2014 evidence wife religious activity provided early 2015 including photo religious meeting notice regarding jehovah witness convention australia delegate refused appellant protection visa application decision dated 8 july 2015 delegate accepted wife member jehovah witness movement converted religion hinduism australia however delegate found wife demonstrated know jehovah witness living india show understanding situation people religion india regard wife claim regarding parent disapproval conversion delegate accept aware jehovah witness membership accept current risk parent harming india result religion delegate considered country information holding despite case attack jehovah witness india sizeable jehovah witness community noting number member grown year considered indication ongoing specific targeting respect member religion india number indian population affected attack jehovah witness statistically small delegate concluded wife applied protection visa reason requiring protection including wanted stay australia work family consider wife credible witness delegate stated satisfied wife real chance persecuted reason 36 2 act real risk subjected significant harm 36 2 aa tribunal decisionas part review process appellant invited attend hearing tribunal november 2016 hearing postponed twice january 2017 hearing appellant represented migration agent assisted punjabi interpreter appellant provided tribunal letter support local congregation jehovah witness appellant representative provided submission tribunal january 2017 hearing response adverse information put hearing submission referred relocation nepal access health care jehovah witness india attached country information support based authority tribunal properly considered wife claim relation 36 2 aa complementary protection criterion due previously refused protection visa 36 2 act tribunal set country information relation jehovah witness woman relocation treatment returnees noted wife claim arose came australia rather subjected persecution india departure tribunal accepted 70 decision record despite concern regarding wife credibility motivation involvement jehovah witness baptised would likely seek proselytise line religious belief returned india referred 71 claim made regard wife family considered evidence tribunal showing family threatened harm claim told stay away family dead reason conversion tribunal accept particularly punjab wife family honour may diminished result conversion however held would likely stay away family would limit adverse effect family honour tribunal consider evidence threat respect husband family serious tribunal referred chance appellant pursued located family member india considered remote far fetched acknowledging tracing could occur jehovah witness community tribunal considered nothing indicate family member relative community member would aggrieved appellant return india despite settling another place would seek locate outside village 74 tribunal commenced analysis accepting religious intolerance especially respect proselytising may lead reaction community nature practice evangelising knocking stranger door would put jehovah witness risk harm time engaged conduct 75 tribunal accepted real chance wife would suffer degree social ostracism discrimination including verbal abuse harassment conservative minded hindu knew hindu converted jehovah witness held however based information chance occurring remote respect tribunal made reference report increased tolerance jehovah witness india report disseminated jehovah witness tribunal noted tolerance reportedly particularly prevalent large city people progressive tribunal also noted incident reported india relation jehovah witness previous two year vast majority indian tolerant accepting religion referred also large population christian throughout country tribunal stated light 76 available independent information support finding real risk review applicant suffering significant harm reason practice inviting stranger conversation religion attempt try persuade correctness belief simply identifies jehovah witness regard appellant claim respect anti conversion law indian state tribunal 77 stated law intended prohibit conversion individual india others force fraudulent mean considered wife converted outside india conversion would fall within purview law 78 tribunal said note argument practising jehovah witness review applicant could fall foul law proselytising state enacted law reason discussed consider review applicant relocate avoid effect law effect 86 tribunal stated law currently existed six state 23 state including punjab tribunal said law exist haryana delhi state punjabi particularly prevalently spoken considered appellant could reasonably relocate tribunal found indication wife faced real risk extreme unemployment homelessness poverty result gender held marriage husband language ability employment history education impacted lack risk consider forced undergo medical treatment contrary religious belief medical therapeutic necessity would constitute inhuman degrading treatment tribunal also consider deprivation economic social cultural right lack availability medical treatment suitable given religious belief amounted significant harm concluding tribunal stated 87 decision record considered applicant claim singularly cumulatively tribunal accept real risk review applicant would suffer significant harm outside punjab necessary foreseeable consequence removed australia india tribunal therefore find applicant satisfy criterion set 36 2 aa judicial review circuit courtthe appellant sole ground appeal circuit court tribunal committed jurisdictional error applying incorrect test determining amount real risk significant harm particularsat paragraph 27 decision record tribunal concluded para 83 decision record risk could ameliorated relocation another part punjab another part india tribunal failed consider integer applicant claim jehovah witness would involved evangelical style preaching cannot restricted discerning conduct proselytising activity discerning limiting proselytising activity certain part india state determined tribunal would amount unreasonable restriction render proper effective adherence faith untenable 8 circuit court decision judge made reference supporting material wife provided tribunal honour stated material referred jehovah witness meeting none interstate noted letter local congregation made reference proselytising interstate judge finding 24 29 reason central appeal mr jones counsel skilfully argued first applicant reasoning tribunal would suppress attribute religion desire proselytise existence anti conversion law six 22 state mr jones argued applicant wished proselytise pan india claim made first applicant wished proselytise pan india fair reading first applicant claim identifying desire first applicant practise religion around community basis suggesting first applicant subject attribute religion travel six state anti conversion law order practise religion mr jones skilfully argued real chance real risk test follow principle ins395 2002 v minister immigration multicultural affair 2003 hca 71 2003 216 clr 473in respect persecutory harm direct application issue significant harm 36 2 aa significant harm defined 36 2a accept submission thats395has direct application term suppressing attribute determination complementary protection event present case first applicant claim wished practise proselytise religion throughout india whilst tribunal identified capacity first applicant able relocate could reasonably error made tribunal application significant harm test determining whether applicant entitled complementary protection reject submission court subject binding authority reference real chance real risk test respect argument advanced mr jones persecutory harm must therefore necessarily fall within complementary protection assessment respect significant harm present case matter fact first applicant advance claim would proselytise pan india first applicant activity practice religion apparently community local based material tribunal pan india claim could fairly said arise material tribunal first applicant would suppressing attribute religion going state anti conversion law adverse finding tribunal subject jurisdictional error applying incorrect test jurisdictional error made ground 1 honour concluded application judicial review failed establish jurisdictional error part tribunal appeal courton 18 december 2017 appellant filed notice appeal court appealing judgment order circuit court seek order tribunal decision set aside minister pay cost appellant sole ground appeal noted primary judge erred failing conclude tribunal made jurisdictional error purported application test determining relevant risk significant harm primary judge erred concluding first appellant properly raised tribunal fact would proselytise across india jehovah witness primary judge erred concluding decision high court s395 apply relation complementary protection primary judge erred concluding tribunal required ass reasonableness appellant refraining visiting state anti conversion law primary judge erred concluding tribunal properly determined whether reasonableness present relation appellant failed conclude unreasonable appellant modify conduct refraining visiting state india anti conclusion law appellant filed outline submission appeal emphasised oral submission made behalf hearing appeal appellant highlight tribunal finding appear 70 78 86 decision record 24 29 judge reason dismissing judicial review application referred appellant rely following excerpt fromminister immigration border protection vbbs16 2017 fcafc 176at 82 83 kenny tracey griffith jj referring authorityappellant s395 2000 v minister immigration multicultural affair 2003 216 clr 473 2003 hca 71 mchugh kirby jj observed ins395at 43 similar effect see gummow hayne jj 82 notion reasonable person take action avoid persecutory harm invariably lead tribunal fact failure consider properly whether real chance persecution person returned country nationality particularly action persecutor already caused person affected modify conduct hiding religious belief political opinion racial origin country nationality membership particular social group case applicant modified conduct natural tendency tribunal fact reason applicant persecuted past persecuted future fallacy underlying approach assumption conduct applicant uninfluenced conduct persecutor relevant persecutory conduct harm inflicted many perhaps majority case however applicant acted way threat harm case well founded fear persecution held applicant fear unless person act avoid harmful conduct suffer harm threat serious harm menacing implication constitutes persecutory conduct determine issue real chance without determining whether modified conduct influenced threat harm fail consider issue properly based immigration assessment authority finding flowed material consider whether first respondent would practice faith often politically active return iran feared harm would follow failure address matter involves jurisdictional error appellant contend essentially jurisdictional error arises appeal two arguable point distinction first distinction matter involve past conduct proselytising india second appeal involves tribunal assessment reasonableness relocation particular place haryana delhi however appellant submit common decisive thread say proselytising required religion without restriction location nature would involve proselytising location appellant state tribunal effectively asked avoid proselytising particular location due risk harm location respect appellant submit ins395 court held notion reasonable person take action avoid persecutory harm invariably lead tribunal fact failure consider properly whether real chance persecution person returned country nationality arises present case insisting reasonable appellant avoid particular location tribunal failed determine whether real risk appellant would face significant harm word would require appellant restrict religious belief tribunal properly determine reasonableness relocation present case appellant submit judge said nothing displace submission contend particular express proselytising would restricted location instead expressed general term result tribunal required proceed basis proselytising would pan indian notion proselytising pan indian basis meant necessarily material ask whether would suffer significant harm proselytise basis accordance withappellant s395andbbs16 present purpose material distinction well founded fear persecution real risk serious harm failing consider basis would come present relevant state india tribunal properly consider reasonableness appellant refraining visiting state enough tribunal ass reasonableness confining state india rather necessary consider reasonableness light fact appellant confining would contrary religious belief minister contends appeal without merit dismissed two reason claim consistent reason given circuit court first minister submits wife made claim effect religion required travel proselytise outside area residence area india rather minister contends wife claimed desire practise religion local community based nature meaning tribunal made finding open considering claim secondly minister say reasoning inappellant s395is specific refugee criterion apply complementary protection provision minister argues unlike 36 2 36 2 aa operate reference particular trait characteristic person operate protect specific attribute subject consideration inappellant s395 contrast minister say 36 2 aa requires risk arise necessary foreseeable consequence person removal rather incorporating well founded fear concept characteristic particular social group citesminister immigration citizenship vanochieand another 2012 209 fcr 497 2012 fca 1440at 62 regarding phrase necessary foreseeable consequence namely one observe high standard set test foreseeable consequence one thing necessary foreseeable consequence another altogether foreseeable may get wet way home today view necessary foreseeable occur cloud may clear therefore minister submits risk said arise due person conduct choice occur necessary foreseeable consequence removal citingszqdf v minister immigration anor 2017 fcca 519at 39 contends risk wife proselytising specific state necessary foreseeable consequence removal australia rather risk consequential dependent upon decision travel state perform activity finally minister contends insufficient textual support extension reasoning inappellant s395as contended appellant whereas minister position supported statutory history purpose 36 2 aa enacted implement international non refoulement obligation identical 36 2 thus tribunal considered wife claim term made circuit court err finding considerationas noted tribunal considered evidence said accept real risk wife would suffer significant harm outside punjab necessary foreseeable consequence removed australia india satisfy criterion set 36 2 aa mentioned outset reason key provision act enable person obtain protection visa reason complementary protection provision act deal provision little detail section 36 2 aa relevantly provides criterion protection visa applicant non citizen australia respect minister case review tribunal satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence non citizen removed australia receiving country real risk noncitizen suffer significant harm interpolate observe relevant statutory language owes international obligation australia assumed see discussion perram j inanochie mcadam j chong f complementary protection australia two year emerging human right jurisprudence 2014 42 fed l rev 441 far expression significant harm concerned 36 2a provides noncitizen suffer significant harm 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 however provided 36 2b taken real risk noncitizen suffer significant harm country minister relevantly satisfied would reasonable noncitizen relocate area country would real risk noncitizen suffer significant harm exception 36 2b para b para c presently relevant ineligibility criterion grant protection visa complementary protection ground specified 36 2c first question calling consideration tribunal reviewing minister decision whether wife suffer significant harm one defined kind part decisionmaking process required decisionmaker ask relevant whether wife taken real risk suffering harm would reasonable relocate area country would real risk matter sensible structured decisionmaking however open decisionmaker approach task act asking 1 significant harm defined kind apparent 2 whether would reasonable wife relocate another area would real risk instance possible significant harm claim made wife would appear encapsulated 36 2a para arbitrarily deprived life b death penalty carried c subjected torture subjected cruel inhuman treatment punishment e subjected degrading treatment punishment tribunal 44 noted wife asserted cannot return india fear persecuted family fear able practise religion free harassment persecution prosecution also fear husband family seen converted follows wife claim viewed tribunal three fold 1 returned india would persecuted family reason conversion jehovah witness faith 2 jehovah witness india would able practise religion free harassment persecution prosecution 3 husband family would cause fear harm seen converted religion tribunal noted submission made wife representative nature jehovah witness involves evangelical style preaching would result wife facing harm simply practising religion reference made representative tribunal decision record country information regarding attack anti conversion law india discussion country information tribunal dealt directly jehovah witness india well question sexual harassment woman domestic violence india especially punjab context also dealt question relocation noting department foreign affair trade dfat assessed internal relocation may viable option people punjab seeking avoid certain type mistreatment new delhi particular noted popular destination many people punjab seeking improve economic opportunity relatively greater social freedom tribunal also dealt treatment returnees india noted dfat aware credible report mistreatment returnees indian authority including failed asylum seeker tribunal turned making finding whether wife real risk significant harm returned india tribunal noted full court court held real risk test imposes standard real chance test applicable assessment well founded fear 36 2 refugee convention definition inminister immigration citizenship vszqrb 2013 fcafc 33 2013 210 fcr 505at 246 2013 fcafc 33 lander gordon jj expressed view real risk test stated 36 2 aa real chance test applicable respect 36 2 honour said question whether real chance noncitizen would suffer significant harm returned country clear exactly besanko jagot jj held joint judgment inszqrb 297 honour said reason given lander gordon jj assessment made international treaty obligation assessment made accordance law assessor failed apply correct standard proof issue whether real risk applicant would suffer significant harm assessor failed observe requirement procedural fairness perhaps taken honour saying also adopted real chance test fifth member court inszqrb flick j 342 expressed concurrence reason lander gordon jj order honour proposed may said despite observation made perram j inanochiethat test different result may court must proceed basis real risk real chance test authority high court ruled otherwise suggests otherwise adoption real chance test tribunal also observed said mason cj inchan yee kin v minister immigration ethnic affair 1989 169 clr 379 1989 hca 62about expression real chance also relevant namely clearly conveys notion substantial distinct remote chance persecution occurring even though may le 50 chance persecution occurring noted discussion persecution purpose 36 2 nonetheless concept substantial remote risk would appear relevant assessment real risk 36 2 aa purpose tribunal properly noted evidence tribunal wife subjected adverse treatment india would constitute persecution converted arriving australia tribunal accepted necessary prove persecution past order able demonstrate well founded fear language little loose question 36 well founded fear one real risk suffering significant harm tribunal proceeded assessment basis wife member jehovah witness faith would likely seek proselytise line religious belief returned india tribunal properly considered question real risk significant harm required act tribunal considered indication family threatened harm wife stay away dead tribunal accepted india punjab particular family honour may considered diminished wife religious conversion tribunal considered based lack contact family recent year would likely stay away thereby limiting adverse effect family honour tribunal consider husband position indicate threatened significant harm tribunal may taken made implied express finding effect tribunal accepted either village wife husband proselytise religious intolerance may result reaction community tribunal accepted nature practice evangelising knocking door stranger put jehovah witness risk harm every time engages conduct tribunal accepted information real chance review applicant would suffer degree social ostracism discrimination would include verbal abuse harassment conservativeminded hindu came know hindu changed religion become jehovah witness tribunal went say emphasis added however information indicate support finding chance facingsignificant harmfor reason circumstance remote tribunal regard report apparent increased tolerance witness india disseminated jehovah witness tolerance particularly prevalent large city report indicated people progressive concluded tribunal find wife would suffer significant harm 36 2a e type 76 quite expressly tribunal referred independent country information concluded view available independent information support finding real risk wife suffering significant harm reason practice inviting stranger conversation religion attempt persuade correctness belief simply identifies jehovah witness found tribunal 77 immediately made reference wife submission concerning anti conversion law indian state intended prohibit conversion individual india force fraudulent mean tribunal said wife converted outside india australia conversion would fall within purview law 78 tribunal proceeded expressly countenance circumstance wife proselytise state tribunal may taken accepted wife proselytise state could fall foul anti conversion law however tribunal considered could relocate avoid effect law infer tribunal thereby accepted significant harm defined 36 2a type could suffered wife proselytise one six state proceeded consider whether real risk significant harm would avoided avoided six state relocating tribunal rejected submission made wife behalf real risk facing extreme unemployment homelessness poverty woman india tribunal noted marriage husband language ability employment history education suggested otherwise tribunal also noted submission made behalf wife would face degrading treatment might forced undergo medical treatment without consent contrary religious belief tribunal found assuming forced medical treatment would undertaken without consent medical therapeutic necessity would constitute inhuman degrading treatment tribunal accept evidence availability medical care alternative blood transfusion well lack awareness belief jehovah witness respect medical treatment supported argument forced medical treatment tribunal made clear consider relevant deprivation economic social cultural right constituted inhuman degrading treatment lack availability certain medical treatment amount significant harm ultimately tribunal considered extent wife face risk harm could ameliorated relocation another part punjab another part india tribunal said 83 85 would reasonable wife relocate circumstance educated married woman protection husband husband speak language widely spoken throughout india punjabi english discussed applicant hearing india populous country central registration national identification system chance applicant pursued located family member relative community member home area appears remote far fetched level tracing could done jehovah witness community tribunal note 600 congregation across india nothing indicate tribunal family member relative community member would aggrieved applicant return india despite settling another place would seek make effort locate applicant applicant claim regard based speculation clear evidence indicate family member relative community member home area would actively take step locate subject significant harm outside village observe tribunal made observation relocation extent wife face risk harm pointed tribunal consider real risk significant harm existed far family member relative community member appellant home area beyond concerned observation seem strictly speaking redundant proper application 36 2 aa tribunal specifically turned question anti conversion law exist six state exist punjab 22 state notably tribunal said exist haryana delhi state punjabi particularly prevalently spoken appellant could reasonably relocate particular circumstance tribunal made finding take tribunal found noted appellant find one six state anti conversion law located may face real risk significant harm one sort another event wife husband could reasonably relocate part india avoid harm result would satisfy 36 2 aa complementary protection criterion inminister immigration border protection v szsca another 2014 254 clr 317 2014 hca 45 reference earlier authority includingappellant s395andszatv v minister immigration citizenship another 2007 233 clr 18 2007 hca 40 gummow kirby hayne callinan crennan jj french cj hayne kiefel keane jj said relocation question arose 36 2 context 25 factum upon principle relocation operates area visa applicant country nationality may safe harm matter found tribunal kabul place analogy internal relocation principle given existence place within country nationality respondent would well founded fear persecution could concluded outside afghanistan unable return country owing well founded fear persecution could reasonably expected remain kabul travel outside inszatv question may reasonably expected respondent must addressed court addressing question relocation 36 2 context consider honour said relevant way 36 2b applied basis tribunal view properly asked whether would reasonable wife relocate area india would real risk would suffer significant harm proselytising rather locate one six state harm might suffered tribunal concluded located six state anti conversion law would suffer real risk significant harm tribunal simply applied statutory criterion 36 2b finding seems fairly open tribunal finding required wife suppress attribute religion unlike inappellant s395andbbs16 appellant could freely practise attribute religion india outside six state risk harm proselytising generalised one consider finding affected jurisdictional error found nonetheless consider judge circuit court make error analysis tribunal decision example alleged particular ground appeal would appear way tribunal approached evidence wife raise prospect potentially might proselytise across india jehovah witness must said however evidence strong raised theoretical possibility whether may said judge erred concluding decision inappellant s395did apply relation complementary protection set consider tribunal approach question application 36 2 aa criterion correctly fact appellant s395was point however consider primary judge erred concluding tribunal required ass reasonableness wife husband refraining visiting state anti conversion law regard attribute religion application relocation exception pointed invite consideration whether would reasonable appellant relocate area country would real risk would suffer significant harm tribunal correctly adopted applied statutory criterion error thereby revealed judge dismissal contention similarly consider demonstrated judge erred concluding tribunal properly determine whether reasonableness present failed conclude unreasonable modify conduct refraining visiting state anti conversion law tribunal said correctly adopted applied statutory criterion 36 2b put another way tribunal entitled satisfied substantial ground believing necessary foreseeable consequence appellant removed australia india real risk would suffer significant harm judge err concluding tribunal evidence reasonably accepted wife husband need proselytise six state anti conversion law thereby avoid exposing harm state might constitute significant harm could still practise religion jehovah witness freely throughout 23 state india question significant harm could arise purpose act reason appeal dismissed conclusion ordersfor reason given court order 1 appeal dismissed 2 appellant pay cost first respondent assessed agreed certify preceding one hundred twenty two 122 numbered paragraph true copy reason judgment herein honourable justice barker associate dated 14 june 2018

Mattsson, Titti; Katzin, Mirjam --- "Vulnerability and ageing" [2017] ELECD 483; in Numhauser-Henning, Ann (ed), "Elder Law" (Edward Elgar Publishing, 2017) 113.txt

mattsson titti katzin mirjam vulnerability ageing 2017 elecd 483 numhauser henning ann ed elder law edward elgar publishing 2017 113book title elder laweditor numhauser henning annpublisher edward elgar publishingisbn hard cover 9781785369087section chapter 5section title vulnerability ageingauthor mattsson titti katzin mirjamnumber page 19abstract description chapter usefulness martha albertson fineman vulnerability theory theoretical framework analytical tool elder law discussed theory proclaims meaning human vulnerable autonomous free independent position often asserted jurisprudence overall conclusion theory useful analysis legal position elderly person well structural implication elderly due demographic technical social economic change society vulnerability theory ageing population dependency universal vulnerability lifespan approach theoretical framework

Industrial Relations Commission Decision 863_1989 [1989] AIRC 851; (17 November 1989).txt

industrial relation commission decision 863 1989 1989 airc 851 17 november 1989 industrial relation commission decision 863 1989 australian industrial relation commissionindustrial relation act 1988s 99notification industrial dispute g k connor pty ltd australasian meat industry employee union c 37073 1989 victorian meatworks product agreement award 1978 1 odn c 01883 1968 meat worker meat industry commissioner caesar sydney 17 november 1989 award structure award clause dispute whether requirement boner separate hindquarter forequarter via straight cut constituted precision boning defined award commission considered precision boning involved skill straight cut decision company notification pursuant tosection 99of theindustrialrelations act 1988which follows earlier notification filed australasian meat industry employee union amieu notifying dispute union g k connor company pakenham question precision boning g k connor notification request commission determine whether company requirement boner separate hindquarter forequarter use straight cut constitutes precision boning defined award award question victorian meatworks product agreement award 1978 dealing duty boner award state relation time work boner standard boning slicing trimming shall carried entire satisfaction employer relation pieceworkers state provision clause shall apply competent employee working individually team according requirement particular work system complete task associated boning slicing beef mutton lamb veal standard workmanship acceptable employer provided employer present meat boning boneable condition provision made award allowance paid certain type cattle dealt bull work harder take time perform regard allowance plus 15 per cent allowed precision boning precision boning defined award mean removal meat form specified trade cut portion fabricated meat method seaming require increase work performed boner order complete task _______________________________________________________________________________ 1 print d9228 v011 1979 224 car 725 matter company requesting boner make straight cut across carcass separating fore hindquarter instead following rib bone requirement said save strip loin damage strip loin part hindquarter noted allowance fact paid hindquarter boning work requiring much skill care attention performed using razor sharp knife requires great deal concentration precision boning course requires much care attention coupled exercise greater skill required normal boning skill boner justifiably proud suggest straight cut across carcass separate fore hindquarter precision boning mind demeans belittles skill needed displayed precision boning request company instance fall clearly within statement duty boner award work must performed standard acceptable employer evidence given straight cut manner required take care therefore time obvious commission inspection held however union maintains extra time involved liberty make appropriate application question properly considered suitable allowance struck however question commission asked decide time whether straight cut required fact precision boning answer question must negative necessary extra skill care attention present therefore precision boning allowance applicable straight cut separation fore hindquarter required company end text

Karekla v WorkCover (South Pacific Aluminium Windows) [1989] SAWCRP 27 (7 February 1989).txt

karekla v workcover south pacific aluminium window 1989 sawcrp 27 7 february 1989 last updated 14 september 2014 1989 sawcrp 27review officer popedetermination 27 89workcover reviewdetermination review officer made 7th february 1989 hearing 17th november 8th december 16th december 1988 karekla workcover south pacific aluminiumwindows pty ltd 88 0287 determination application lodged 6th june 1988 george karekla worker contract service south pacific aluminium window pty ltd seek review pursuant worker rehabilitation compensation act 1986 act decision made 31st may 1988 workcover claim levy agency discontinue weekly payment worker applicant worker appeared gave sworn evidence hearing behalf assisted first two hearing mr adrian heard rehabilitation co ordinator commonwealth rehabilitation service also gave sworn evidence workcover claim levy agency represented first two hearing mr john hiatt counsel piper alderman third hearing mr mark calligeros counsel piper alderman instructed occasion mr steve park senior claim officer agency third hearing witness mr darren andrew hateley appeared gave sworn evidence behalf agency reaching determination take account evidence submission put hearing document file common party demeanour applicant basis evidence find 14th january 1985 contract service within meaning act entered south pacific aluminium window pty ltd employer george karekla worker classification maintenance personnel whose main task maintenance window door built company disability within meaning act arose 2nd december 1987 worker involved motor vehicle accident course employment car driving hit behind another car worker stopped work day lodged claim compensation also day accompanied prescribed medical certificate written 2nd december 1987 dr george kerry diagnosed worker suffering whiplash injury time accident worker working full time south pacific window pty ltd part time 10 15 hour per week bouncer bar person jules bar tavern attempted return work south pacific aluminium window pty ltd two three occasion could tolerate working eight hour day dizziness headache within three week however resume part time work jules bar tavern alleged sworn evidence hearing able work short spell lie feeling dizzy worked varied number hour per week ranging 9 35 hour week ending 5th january 1988 52 20 hour week ending 24th may 1988 would appear able work jules bar consistently dismissed position matter related injury 31st december 1987 worker notified acceptance claim 31st may 1988 however workcover claim levy agency purported exercise delegated power act wrote rather extraordinary letter worker included completed enquiry determined claim rejected reason rejecting claim follows working jules bar hour increased 40 hour per week request 36 1 worker returned work therefore discontinue weekly payment seems confusion whether claim rejected payment discontinued find however intent clear pursuant power 88 act proceed without regard technicality workcover claim levy agency wrote employer south pacific aluminium window 2nd june advised pursuant 36 1 worker weekly payment would cease 2nd june 1988 section 36 1 state subject act weekly payment worker suffered compensable disability shall discontinued unless worker returned work return work clause 36 counterpart new act 52 1 c worker compensation act 1971 old act section read 52 1 except expressly provided act weekly payment payable compensation pursuant act shall discontinued diminished without consent worker except c worker returned work since operative word section take parliament intended read way review officer mason determinationhome workcover f r mayfield 1989 2 wro determination 20 89 1989 sawcrp 20 discussed concept return work old act new clear question whether return work given case question fact degree case ofphilmac pty ltd v asti 1980 26 sasr 213 47 sair part ii 663 honour zelling j said opinion taken context word returned work mean returned employment indefinite period employer basis remuneration subject term condition employment party restored position contract employment side existed previously certainly happened case within meaning honour chief justice said page 672 return work considered sufficient reason seems involves establishment f injured worker wage earner longer need weekly payment compensation return work significance purpose must opinion return settled established member wage earning workforce instance worker involved two job alleged incapacity namely whiplash injury unable continue first job however able work bartender offered jules bar asked hour work increased time hour however varied week week therefore worker cannot said returned settled established member wage earning workforce work could work available return workforce least way chief justice envisaged work returned casual irregular suited worker need time le work according feeling according availability work position decide worked hour week others clearly however return primary employment maintenance person southern pacific aluminium window conclude therefore worker return work may 1988 payment discontinued reason however question worker lack disclosure working jules bar agency difficulty therefore calculating entitlement weekly payment compensation compensation claim form worker mention second employment jules bar calculating much worker paid aggregate job consider 4 2 act relevant section instance actual weekly earnings worker previous twelve month motor vehicle accident however long worked two job le twelve month taken account weekly payment made notional amount pursuant 35 basis worker partial incapacity since able perform paid working one job though presumably able work hour casual job accident working permanent job reason consider make pay worker exceed aggregate average weekly earnings motor vehicle accident section 36 4 expressly state apart confirming reversing agency decision review officer might make independent decision review weekly payment discontinued reduced review officer mason inhome workcoversaid presumably ground different agency since otherwise simple confirmation agency decision would appropriate addition power 96 allow make fresh determination matter hand large number medical report rehabilitation counsellor summary decide worker fitness otherwise return work basis medical evidence find clear worker fit sort work south pacific aluminium window pty ltd sufficient doubt report dr j rowland otorhinolaryngolist mr morrison orthopaedic surgeon whose opinion prefer find worker fully recovered effect motor vehicle accident note co operating rehabilitation advisor mr adrian heard employer willing attempt rehabilitate worker back permanent workplace conclude therefore worker remained partially incapacitated work south pacific aluminium window pty ltd assisted return work rehabilitation co ordinator find worker dismissed employment jules bar matter unrelated injury required mutuality employer jules bar tavern employee therefore broken worker paid compensation notional weekly earnings bar tending position time dismissal since continued fit earn casual wage type work determination accordingly pursuant 96 act set aside decision workcover claim levy agency discontinue payment worker ground return work decide substitution decision worker entitled aggregate average weekly earnings paid average weekly earnings south pacific aluminium window pty ltd lost job jules bar tavern treated fit earn casual payment barman party reminded worker entitlement pursuant 47 act appeal determination must lodged worker compensation appeal tribunal within one month receipt determination medical question medical review panel enquiry appeal may directed registrar review authority 4th floor hooker house 33 king william street adelaide form appeal available address c popereview officer

Drca, Nikola [2002] MRTA 5856 (9 October 2002).txt

drca nikola 2002 mrta 5856 9 october 2002 last updated 10 march 2003 2002 mrta 5856catchwords visa refusal subclass 309 regulation 1 15a genuine continuing relationship review applicant nikoladrcavisa applicant dusankadrcapresiding member m fadjiarmrt file 02 01884department file osf2001 026092date decision 9 october 2002place perthdecision pursuant power section349 2 c themigration act 1958 cth tribunal remit application reconsideration direction dusanka drca spouse nikola drca time lodgement primary application time tribunal decision application review1 application review lodged 21 march 2002 nikola drca review applicant australian citizen concern decision made 21 february 2002 delegate minister immigration multicultural indigenous affair minister refusing spouse dusanka drca applicant thirty two year old national yugoslavia partner provisional class uf subclass 309 visa spouse provisional visa jurisdiction standing2 application review validly made undersection 338of themigration act 1958 amended theact go decision reviewable tribunal complies withsection 347 go standing review applicant lodge application legislation policy3 themigration act 1958 cth theact themigration regulation 1994 theregulations provide different class visa schedule 1 regulation set various prescribed class visa specific way non citizen applies visa particular class class may one subclass relevant criterion must met visa sought may granted set part schedule 2 bear number subclass 4 tribunal bound theactand regulation applies relevant government policy guideline unless cogent reason see generallyre drake minister immigration ethnic affair 2 1979 aata 179 1979 2 ald 634andali v minister immigration local government ethnic affair 1992 fca 453 1992 38 fcr 144 policy guideline set procedure advice manual pam 3 migration series instruction msi issued department immigration multicultural affair known department immigration multicultural indigenous affair department written direction issued minister pursuant tosection 499of theactmust complied unless inconsistent provision theactor regulation seesubsection 499 2a theact 5 prescribed criterion far relevant subclass 309 spouse provisional 309 1 interpretation309 111 part intended spouse mean person referred subparagraph 309 211 3 ii iii iv woman risk visa mean 309 2 primary criterion note primary criterion must satisfied least 1 member family unit member family unit applicant visa subclass need satisfy secondary criterion 309 21 criterion satisfied time application309 211 1 applicant meet requirement subclause 2 3 2 applicant meet requirement subclause applicant spouse australian citizen b australian permanent resident c eligible new zealand citizen person entry australia holder special category visa intends usually resident australia note spouse includes de facto spouse see definition spouse inregulation 1 03 309 213 1 applicant applicant referred subclause 309 211 2 applicant sponsored applicant spouse turned 18 spouse b applicant spouse turned 18 parent guardian spouse turned 18 ii australian citizen australian permanent resident eligible new zealand citizen 309 22 criterion satisfied time decision309 221 applicant continues satisfy criterion clause 309 211 309 222 sponsorship referred clause 309 213 approved minister still force note limitation minister discretion approve sponsorship see regulation 1 20j 309 223 case applicant meet requirement subclause 309 211 2 applicant continues spouse person referred paragraph 309 211 2 b c applicant spouse time application 309 225 applicant satisfies public interest criterion 4001 4002 4003 4004 4007 4009 309 227 requested minister assurance support relation applicant given accepted minister 6 word spouse defined regulation 1 15a regulation follows spouse1 15a 1 purpose theseregulations person spouse another person 2 person married marriage recognised valid purpose theact ii de facto spouse set subregulation 2 b minister satisfied 2 person mutual commitment shared life husband wife exclusion others ii relationship 2 person genuine continuing c minister satisfied 2 person living together ii living separately apart permanent basis 2 person de facto spouse another person person opposite sex ii married marriage recognised valid purpose theact iii within relationship prohibited relationship purpose ofsubsection 23b 2 themarriage act 1961 b either person domiciled australia turned 18 ii neither person domiciled australia turned 16 3 forming opinion purpose paragraph 1 b c relation application aa extended eligibility temporary class tk visa ab family residence class ao visa ac general residence class visa ad spouse migrant class bc visa ae spouse provisional class uf visa minister must regard circumstance relationship including particular financial aspect relationship including joint ownership real estate major asset ii joint liability iii extent pooling financial resource especially relation major financial commitment iv whether one party relationship owes legal obligation respect v basis sharing day day household expense b nature household including joint responsibility care support child ii party living arrangement iii sharing responsibility housework c social aspect relationship including whether person represent people married de facto relationship ii opinion person friend acquaintance nature relationship iii basis person plan undertake joint social activity nature person commitment including duration relationship ii length time person lived together iii degree companionship emotional support person draw iv whether person see relationship long term one 4 forming opinion purpose paragraph 1 b c relation application visa class class specified paragraph 3 aa ab ac ad ae minister may regard factor set subregulation 3 5 person living another person 6 month longer fact taken strong evidence relationship genuine continuing relationship shorter duration taken genuine continuing reason evidence findings7 31 october 2001 applicant application migration australia seeking partner provisional class uf subclass 309 spouse provisional primary application lodged overseas post department australian embassy belgrade application founded ground review applicant spouse various supporting document including sponsorship form completed signed review applicant accompanied primary application 8 coming decision tribunal regard content department file file submitted tribunal pursuant tosection 352 2 theactand video photograph document submission lodged review applicant course review well hearing held 22 august 2002 review applicant friend dusan miljonovic mr miljonovic gave oral evidence affirmation 9 review applicant fifty two year old man yugoslav origin australian citizen lived australia almost thirty year marriage applicant first also case told tribunal gone yugoslav august 2001 visit relative introduced applicant one relative told good woman said told arrival yugoslavia first meeting would see two three time week notwithstanding distance respective place residence time 10 couple married belgrade 26 october 2001 50 60 guest including applicant mother brother family relative well review applicant brother family wedding mr miljonovic review applicant close friend twenty year best man couple spent honeymoon hotel vrsac applicant usually resides copy hotel account tendered evidence ten day moved home one applicant relative kovin january 2002 couple moved town closer australian embassy belgrade review applicant left belgrade 30 january 2002 11 review applicant evidence sends wife 600 per month sent total 4000 far well talk telephone week evidence relationship shared couple including photo video telephone account well telephone account bank document remittal fund review applicant wife tendered evidence 12 evidence tribunal satisfied applicant review applicant wife legally married 26 october 2001 question whether applicant review applicant genuine continuing married relationship one fact regard circumstance case particular various aspect relationship set inregulation 1 15aof theregulations pointed court inr v cahill 1978 2 nswlr 453 people enter marriage relationship variety reason circumstance reason race religion custom may necessarily conform community expectation 13 inminister immigration local government ethnic affair v dhillon 8 may 1990 unreported full court federal court found true test would suggest test whether time matter decided said party mutual commitment shared life husband wife exclusion others 14 federal court inbretag v immigration review tribunal federal court loughlin j 29 november 1991 unreported indicated tribunal may regard subsequent history relationship purpose testing determining whether relationship genuine continuing time application long tends logically show existence non existence fact relevant issue determined quotingfrom minister immigration ethnic affair v pochi 1980 fca 85 1980 4 ald 139at 160 tribunal decision maker process act mere suspicion speculation pochi decision founded irrelevant consideration 15 considering meaning word spouse tribunal mindful decision ofnassouh v minister immigration multicultural affair 2000 fca 788 14 june 2000 requires decision maker address circumstance prescribed underregulation 1 15a 3 theregulations given circumstance may applicable example pooling financial resource joint ownership real estate sharing responsibility house work however tribunal satisfied evidence review applicant wife remain committed live together husband wife australia soon able maintained contact review applicant remit fund wife regular basis 16 regard composite picture lynam v director general social security 1983 52 alr 128 absence evidence suggest marriage contrived according meaning word discussed indhillon v minister immigration local government ethnic affair 1989 17 ald 552at 555 nothing evidence would suggest couple share mutual commitment live husband wife exclusion others genuine continuing relationship intended 17 reason discussed tribunal satisfied applicant review applicant share mutual commitment live together husband wife exclusion others relationship may described genuine continuing prescribed definition spouse inregulation 1 15a 1 theregulations tribunal satisfied applicant spouse review applicant time lodgement primary application time tribunal decision decision18 reason discussed pursuant power undersection 349 2 c theact tribunal remit application reconsideration direction applicant spouse review applicant time lodgement primary application time tribunal decision

1106738 [2013] MRTA 254 (18 January 2013).txt

1106738 2013 mrta 254 18 january 2013 last updated 22 march 20131106738 2013 mrta 254 18 january 2013 decision recordapplicant miss xiaoyi qimrt case number 1106738diac reference clf2011 43094tribunal member deborah jordandate 18 january 2013place decision melbournedecision tribunal affirms decision grant applicant student temporary class tu visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant student temporary class tu visa unders 65of themigration act 1958 act applicant applied department immigration citizenship visa 4 march 2011 delegate decided refuse grant visa 20 june 2011 delegate refused grant visa basis applicant satisfy requirement cl 575 223 schedule 2 themigration regulation 1994 regulation applicant applied tribunal 6 july 2011 review delegate decision relevant lawat time visa application lodged student temporary class tu visa contained number subclass item 1222 schedule 1 regulation applicant apply student subclass granted particular case depends upon type course applicant enrolled offer enrolment principal course limited exception subclass type course specified minister r 1 40a see cl 570 232 571 232 572 231 573 231 574 231 575 231 schedule 2 subclass 576 approval course ausaid minister defence minister seepart 576of schedule 2 issue delegate whether applicant met criterion cl 575 223 however issue tribunal whether time decision applicant enrolled subject current offer enrolment course study meet requirement regulation limited exception relevant case cl 570 232 571 232 572 231 573 231 574 231 575 231 regulation require time decision applicant must enrolled subject current offer enrolment course study principal course specified r 1 40a subclass time application claim evidencethe tribunal department file relating applicant applicant lodged application review department decision 6 july 2011 applicant represented relation review registered migration agent letter dated 7 july 2011 tribunal acknowledged receipt review application invited applicant provide material written argument wished tribunal consider soon possible additional material written argument provided tribunal case constituted presiding member 14 november 2012 letter dated 20 november 2012 tribunal informed applicant considered material unable make favourable decision basis material alone applicant invited attend hearing 18 january 2013 give evidence present argument relation issue arising review applicant also invited provide evidence current enrolment purpose cl 575 222 cl 575 231 current evidence accordance schedule 5a alternative way available applicable assessment level purpose cl 575 223 2 evidence past enrolment registered course course academic achievement purpose cl 575 223 2 ii evidence access fund purpose cl 575 223 2 iii copy relevant regulation attached letter applicant respond hearing invitation provide evidence requested tribunal letter applicant appear tribunal 18 january 2013 scheduled time finding reasonsthe tribunal satisfied applicant invited appear tribunal give evidence present argument section 360 act tribunal satisfied applicant sent notice section 360a act giving day time place scheduled appear tribunal satisfied notice met requirement section 360a tribunal find applicant appear tribunal scheduled day scheduled time place applicant invited section 360 appear tribunal applicant appear scheduled time tribunal may make decision review without taking action allow enable applicant appear section 362b case applicant contact tribunal explain unable attend hearing scheduled place time tribunal therefore use discretion reschedule applicant appearance subsection 362b 2 tribunal therefore proceed make decision review without taking action allow enable applicant appear applicant applied student temporary class tu visa purpose study australia evidence tribunal applicant currently enrolled subject current offer enrolment course study tribunal therefore satisfied applicant enrolled subject current offer enrolment course study principal course type specified subclass 570 571 572 573 574 575 basis tribunal find applicant satisfy cl 570 232 571 232 572 231 573 231 574 231 575 231 schedule 2 regulation additionally evidence tribunal suggests applicant meet criterion either subclass 576 ausaid defence sector subclass 580 student guardian remaining subclass student temporary class tu visa conclusionsas tribunal found applicant meet essential requirement schedule 2 visa subclass 570 571 572 573 574 575 evidence provided tribunal could satisfied applicant meet criterion remaining student temporary class tu visa subclass decision review must affirmed decisionthe tribunal affirms decision grant applicant student temporary classdeborah jordanmember

Adam v Kosciuszko Thredbo Pty Ltd [2021] NSWPIC 112 (10 May 2021).txt

adam v kosciuszko thredbo pty ltd 2021 nswpic 112 10 may 2021 last updated 20 may 2021certificate determination membercitation adam v kosciuszko thredbo pty ltd 2021 nswpic 112applicant josef adamrespondent kosciuszko thredbo pty ltdmember mr brett batchelordate decision 10 may 2021catchwords worker compensation claim weekly benefit pursuant section 38a 1987 act determination pursuant section 53 act held respondent submission failure applicant supply particular post injury earning earning capacity enable determination weekly payment applicant may entitled rejected applicant claim based onhee v state transit authority new south wale 2019 nswca 175 worker highest need current work capacity accordance definition term section 32a 1987 act entitled award sum prescribed section 38a 1 accepted award favour applicant rate prescribed section 38a 1 indexed determination pursuant section 53 1987 act incapacity work resulting applicant injury likely permanent determination made applicant partial incapacity work result injury 29 july 2019 applicant current work capacity accordance definition term in 32aof theworkers compensation act 1987prior amendment definition theworkers compensation legislation amendment act 2018 failure applicant provide respondent particular claim weekly payment pursuant tos 38aof theworkers compensation act 1987does prevent award payment made favour worker highest need current work capacity applicant entitled award weekly payment 788 32 per week indexed 20 december 2019 date continuing pursuant tos 38aof theworkers compensation act 1987 respondent pay applicant 845 per week 20 december 2019 date continuing pursuant tos 38aof theworkers compensation act 1987 incapacity work resulting injury 29 july 2019 likely permanent nature statement reasonsbackgroundjosef adam applicant mr adam commenced work kosciuszko thredbo pty ltd respondent full time ski instructor june 2010 role responsible providing ski snowboarding lesson group individual b promoting self co worker guest safety c providing guest service providing general information skiing snowboarding e providing personal ski board equipment guest 29 july 2011 applicant course providing ski lesson single client slope section thredbo ski field struck snowboarder helmet snowboarder crashed right side applicant head neck mr adam began feel unwell short time later conveyed medical centre applicant unwell following day attendance cooma hospital 31 july 2011 underwent ct angiogram revealed marked right vertebral artery dissection intracranial blood flow conveyed canberra hospital 1 august 2011 applicant remained patient canberra hospital 7 august 2011 right vertebral artery dissection examined together closed head injury surgery possible due nature injury mr adam treated anticoagulant applicant returned germany september 2011 since time managed condition received treatment proceeding number 4789 19 former worker compensation commission applicant referred approved medical specialist since 1 march 2021 referred medical assessor assessment whole person impairment wpi respect following due injury sustained 29 july 2011 visual system b hearing loss vestibular impairment c cervical spine 1 applicant examined three approved medical specialist 27 28 november 2019 lead assessor dr michael steiner produced consolidated medical assessment certificate mac 2 formed part lead assessor mac dated 20 december 2020 3 containing following assessment wpi two assessor dr michael steiner visual system 13 b dr paul niall hearing loss 10 c dr paul niall vestibular impairment 10 dr p harvey sutton cervical spine 7 resulting total accordance combined table value 35 wpi 23 june 2020 respondent insurer gio wrote applicant advising deemed worker highest need following entitlement applied lifetime medical treatment compensable injury b time cap weekly payment except first anniversary commonwealth retirement age 4 23 july 2020 applicant solicitor wrote gio making claim weekly benefit applicant date weekly benefit ceased september 2011 date continuing accordance applicable rate 5 application commencing current proceeding lodged former worker compensation commission 27 january 2021 respondent lodged reply 17 february 2021 application applicant claim weekly benefit 20 december 2019 date lead assessor mac referred 6 pre injury average weekly earnings piawe claimed 1 500 telephone conference 24 february 2021 following direction issued 1 applicant lodge serve 24 march 2021 evidence wish rely respondent lodge serve 14 april 2021 evidence reply applicant evidence wish rely matter stood conciliation arbitration via telephone conference 2 00 pm tuesday 27 april 2021 counsel applicant respondent lodge serve 20 april 2021 short three page written submission applicant entitlement weekly payment pursuant tos 38aof theworkers compensation act 1987 written submission received party issue determinationthe party agree following issue remain dispute applicant total partial incapacity work result accident 29 july 2011 required bys 33of theworkers compensation act 1987 1987 act b applicant current work capacity accordance definition term 32a 1987 act prior amendment definition theworkers compensation legislation amendment act 2018 2018 amending act c failure applicant provide respondent particular claim weekly payment pursuant 38a 1987 act prevent award payment made favour applicant entitled award weekly payment accordance 38a 1987 act regard fact particular referred c supplied e applicant complied 53 1987 act order entitle receive weekly payment compensation view fact ceased reside australia return germany september 2011 putting matter issue respondent concedes 35 wpi suffered applicant impact permanent impairment work capacity note applicant assertion 9 10 12 statement dated 5 august 2020 6 unfit type work procedure commissioni 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 party attended conciliation arbitration 27 april 2021 conducted via telephone conference mr b mcmanamey counsel appeared applicant instructed bymr p naddaf mr p perry counsel appeared respondent instructed bymr patterson applicant attended via telephone germany elected remain telephone conference arbitration hearing commenced evidencedocumentary evidencethe following document evidence commission considered making determination application attached document b reply attached document c aald dated 25 march 2021 lodged applicant following attachment supplementary statement applicant dated 5 august 2020 ii report professor dr eva bartels dr bartels dated 8 march 2021 letter respondent solicitor applicant solicitor dated 16 april 2021 e applicant written submission undated f respondent written submission dated 22 april 2021 oral evidencethere application adduce oral evidence cross examine applicant submissionsthe oral submission party recorded transcript obtained request repeated full summarised hereunder together written submission party applicantthe applicant relies upon decision court appeal inhee v state transit authority ofnewsouth wale 7 court held worker return work able perform duty fully injury able return pre injury employment worker current work capacity worker highest need current work capacity entitled benefit 38a 1987 act even amount weekly compensation determined accordance s 36 37 38 zero follows applicant entitled payment accordance 38a 20 december 2019 shown capable performing duty pre injury employment able perform duty fully injury applicant refers finding white ja inheeat 60 72 73 simpson aja 161 162 case applicant submits significant impairment resulting significant loss visual field found 56 continuing disability neck restricted asymmetry neck movement assessment neck impairment included 2 allowance restriction activity daily living hearing loss class 2 vestibular disorder applicant note pre injury employment ski instructor injury resulting impairment clearly restrict ability perform duty position follows current work capacity accordingly entitled benefit 38a 20 december 2019 applicant submits extent permanent impairment never able return full pre injury duty incapacity resulting injury likely permanent certification made pursuant 53 1987 act oral submission applicant submits whether worker current work capacity current work capacity entitled benefit 38a 1987 act applicant relies said white ja 89 91 ofhee literal construction 38a found honour accepted honour referred second reading speech theworkers compensation amendment bill 2015that introduced 38a found interpretation section advocated respondent employer case would require writing section go well beyond legitimate scope judicial interpretation applicant submits matter amount determined amount weekly payment compensation payable pursuant s 36 37 1987 act amount determined le zero 35 2 state amount treated zero amount determined pursuant s 36 37 greater amount referred 38a 788 32 indexed applicant abandon surplus applicant submits absurd result effect section matter parliament applicant note inhee bus driver worker case able earn excess pre injury average weekly earnings piawe able perform full duty pre injury employment bus driver therefore entitled benefit 38a respect 53 1987 act applicant submits immaterial certification thereunder obtained advance departure australia certification retrospective incapacity work resulting injury likely permanent nature certification section given applicant note roche dp said 45 inuniversal consultancy service v datta 8 sufficient establish medical condition impairment suffered worker permanent must one caused incapacity work though may result entitlement award weekly compensation time time economic loss regard applicant submits incapacity open labour market must considered regard nature extent injury applicant therefore submits pursuant 53 entitled certified commission incapacity work resulting injury likely permanent nature respondentthe respondent submits whilst applicant certified significant impairment area visual system hearing loss vestibular impairment cervical spine mean constitutes evidence incapacity employment evidence effect applicant might well capacity earn well excess earnings ski instructor applicant provided evidence respondent submits report investigation observation 9 raise suggestion whilst amount second hand report applicant exercised capacity operate ski school germany canada report highlight need applicant produce evidence activity period claim weekly benefit made respondent submits complete failure applicant provide material notwithstanding specific request material disentitle proceeding claim weekly benefit alternatively applicant proceed claim claim fail absence evidence incapacity respondent relies letter dated 16 april 2021 making yet request relevant material 10 respect 53 1987 act respondent draw attention touniversal consultancy service notion incapacity work referred therein 11 respondent submits mean testing applicant assertion 9 statement dated 12 march 2021 result ongoing symptom disability unable work 27 july 2011 date continuing respondent refers report dr bartels dated 8 march 2021 note doctor appears treated applicant since 2012 report give indication doctor last saw applicant respondent opportunity obtain record dr bartels purpose material ought provided insurer time claim made latest time filing application respondent note report dr j g bodel dated 4 january 2019 following examination applicant 29 november 2018 12 doctor record ski school bavaria trying bookkeeping struggling able work 20 hour per week modified duty respondent submits clearly odds applicant say 9 statement dated 5 august 2020 written submission respondent submits ought entitlement challenge way cross examination applicant statement unable work since 27 july 2011 respondent pursue application cross examine applicant applicant consented admission evidence letter respondent solicitor applicant solicitor dated 16 april 2021 respondent emphasis must determination 38a 1987 act amount weekly payment compensation payable applicant worker highest need also determination 53 incapacity work resulting injury likely permanent neither determination made either insurer commission without material requested respondent respondent note applicant supplied basis claimed piawe 1 500 material support claim respondent repeat assertion applicant ought entitled press claim weekly benefit without providing material sought respondent ought award respondent respect claim weekly benefit alternatively respondent submits application ought struck commission light applicant sustained failure provide relevant material appropriately sought pressed ground application ought tobe struck reference ground upon commission may dismiss proceeding referred 354 7a ofworkplace injury management worker compensation act 1998 respondent submits ground vexatiousness applicant responsethe applicant submits significant omission submission respondent provided scenario information sought would allow conclusion applicant entitled weekly sum least amount prescribed 38a applicant submits must determined current work capacity current work capacity matter applicant note respondent asserts employer report injury form 13 award rate per week actual current rate paid applicant 920 per week also apparent list payment made applicant 14 information come respondent record applicant submits consequence currently earning relevant determination made 38a determination made way determination unders 53should made finding reasonssection 38athe applicant submits worker current work capacity accordance meaning term 32a 1987 act prior amendment definition 2018 amending act definition follows current work capacity relation worker mean present inability arising injury worker able return pre injury employment able return work suitable employment meaning current work capacity 32a prior amendment definition 2018 amending actis follows current work capacity relation worker mean present inability arising injury worker able return work either worker pre injury employment suitable employment applicant submission worker current work capacity injury sustained resulting impairment clearly restricted ability perform duty required pre injury employment ski instructor able return work suitable employment notwithstanding submission applicant say immaterial whether current work capacity current work capacity person current work capacity cannot return work either pre injury employment suitable employment applicant submits amount earnings suitable employment also immaterial combined effect s 35 36 37 1987 act section 35 set factor required determine rate weekly payment purpose provision subdivision 2 division 2 part 3 1987 act division 2 deal weekly compensation way income support subdivision 2 containing s 33 42 deal weekly compensation total partial incapacity section 33 provides total partial incapacity work result injury compensation payable employer 1987 act injured worker shall include weekly payment incapacity applicant relies finding court appeal inhee simpson aja agreed white ja literal interpretation 38a 1987 act accepted explained 130 131 operation s 33 38 follows 130 section 33 provides weekly compensation total partial incapacity workif total partial incapacity work result injury compensation payable employer act injured worker shall include weekly payment incapacity total partial incapacity defined however well established concept partial incapacity work reduced physical capacity reason physical disability actually work labour market employee working might reasonably expected work arnotts snack product pty ltd v yakob 1985 hca 2 1985 155 clr 171at 178 1985 hca 2 sabanayagam v st george bank ltd 2016 nswca145at 131 section 34 38 specify basis manner weekly payment compensation calculated varying according called first entitlement period 36 first thirteen week second entitlement period 37 week 14 130 thereafter 38 37 presently relevant section 37 provides alternative entitlement three category injured worker second entitlement period worker current work capacity sub 1 worker current diminished work capacity returned work le 15 hour per week sub 2 worker current diminished work capacity returned work le 15 hour per week returned work sub 3 subsection set formula entitlement calculated honour noted 133 35 2 provides determination amount purpose determining rate weekly payment payable injured worker result amount le zero amount treated zero 170 honour explained operation 35 2 follows conundrum debate meaning 35 2 say least obscure section 35 2 provide zero amount deal amount le zero treated zero fact precisely application 37 2 formula mr hee pre post injury earnings yield reason 35 2 mr hee entitlement treated zero amount payable 37 2 amount taken account 38a purpose applicant relies white ja said 60 inhee namely accept worker return work employer able perform duty able perform duty fully able injury worker able return pre injury employment within definition current work capacity current work capacity 32a construction required accommodate term 33 section provides case partial incapacity work resulting injury weekly payment compensation incapacity payable act otherwise worker returned work employer reduced hour reduced duty reduced wage would entitled weekly payment s 36 38 could said able return pre injury employment submitted applicant 21 23 significant impairment suffered never able return full pre injury duty ski instructor accept submission respondent oral submission accepted case concession respondent would make submission applicant could perform duty employed ski instructor carrying disability 15 follows applicant submission worker current work capacity must also accepted able return pre injury employment able return suitable employment regard wording 35 2 zero amount purpose determining worker entitlement weekly payment pursuant s 36 37 38 1987 act amount le 788 32 referred 38a 1 therefore literal interpretation subsection found necessary white ja simpson aja inhee worker entitlement weekly compensation s 36 38 would nevertheless entitled weekly compensation provided 38a simpson aja said 171 ofheein explanation finding 170 appreciate result may well legislature intended consequence enacted applicant also submits point applicant earning able earn suitable employment literal interpretation 38a 1 prescribed white ja simpson aja inhee determination amount weekly payment compensation payable worker highest need accordance subdivision 2 division 2 part 3 1987 act result amount le 788 32 amount treated 788 32 hand worker highest need receipt income excess 788 32 per week nevertheless entitled award sum white ja addressed situation 99 follows nothing text 38a state right worker highest need receive amount payable 38a depends upon worker earnings although determination amount weekly payment compensation payable worker requires consideration worker earnings extent s 36 37 engaged yield determination weekly compensation payment payable 38a effect described explanatory memorandum second reading speech although curious way curious worker highest need entitled benefit s 36 37 788 32 adjusted reflecting substantial reduction earnings entitled benefit 38a worker highest need whose post injury earnings closely approximates pre injury earnings entitled least amount weekly compensation payable effect section respondent submits since 2013 16 april 2021 sought information applicant enable determine applicant claim 16 submission made background respondent submission 30 35 direct evidence applicant either earning capable earning income following return germany september 2011 injury 29 july 2011 applicant submits respondent provided possible scenario information sought respondent could lead conclusion entitled weekly payment least prescribed 38a matter applicant earnings ability earn relevant applicant piawe noting respondent fact put forward figure 920 per week apparently obtained record actual current rate per week applicant paid 17 reason respondent put forward possible reason information sought relevant according applicant none relevant enquiry whether applicant current work capacity current work capacity either applicant entitled award amount prescribed 38a 1 1987 act found applicant current work capacity final analysis view majority inheemust accepted section 38a must literally interpreted according term meagher ja addressed construction 38a 31 34 judgement 29 honour referred error found decision president worker compensation commission inhee namely respect finding senior arbitrator heard case first instance finding concerning mr hee ability return pre injury employment open disclose error honour said last conclusion involved error arbitrator make finding mr hee capacity return pre injury employment context determining work capacity however view error subject ground appeal 2 directed worker case making finding purpose 33 error established appeared conceded appeal worker case must nevertheless fail face correct construction 38a requiring proof entitlement determination 37 absence claim case finding current work capacity establishing entitlement honour found 33 correct construction 38a required determination accordance s 36 37 38 provision subdivision used determine rate weekly payment payable injured worker respect week section 35 1 defines integer used calculation referred operative section s 36 37 38 honour concluded judgement noting appeal court appeal concerned worker entitlement 38a construed contended mr hee said construction correctly rejected president therefore appeal must dismissed respondent submission case accordance judgement meagher ja inhee namely determination entitlement determination s 36 37 required particular requested applicant supplied could make determination however case put forward applicant applicant relied decision majority inheethat applicant worker highest need current work capacity entitled award 38a 1 irrespective earnings determination amount purpose determining rate weekly payment payable injured worker result amount le zero amount accordance 35 2 treated zero amount referred 38a 1 applicant submits irrespective determination figure excess amount referred 38a 1 788 32 entitled award sum indexed referred 38a 2 finding applicant entitled award favour 20 december 2019 date continuing accordance 38a 1 1987 act section 53the applicant submits determination pursuant 53 1987 act incapacity work resulting injury suffered likely permanent nature alternative applicant submits determination award applicant entitled pursuant 38a question whether sufficient evidence commission determine incapacity work resulting injury likely permanent nature determined later date subject application commission degree wpi determined three approved medical specialist since 1 march 2021 commencement thepersonal jury commission act 2020referred medical assessor set 6 evidence together concession respondent finding effect applicant never able return full pre employment duty employed ski instructor sufficient basis finding incapacity work resulting injury suffered applicant 29 july 2011 likely permanent nature incapacity must likely permanent nature though may result entitlement award weekly compensation time time economic loss seeuniversal consultancy service case operation 38a 1987 act incapacity resulted award weekly compensation 20 december 2019 consequence compliance term 53 1987 act occurs applicant ceased reside australia 18 summarythe applicant partial incapacity work result injury 29 july 2011 applicant current work capacity accordance definition term 32a 1987 act prior amendment definition 2018 amending act failure applicant provide respondent particular claim weekly payment pursuant 38a 1987 act prevent award payment made favour worker highest need current work capacity applicant entitled award weekly payment 788 32 per week indexed 20 december 2019 date continuing pursuant 38a 1987 act respondent pay applicant 845 per week 20 december 2019 date continuing pursuant 38a 1987 act incapacity work resulting injury 29 july 2011 likely permanent nature 1 certificate determination consent order dated 21 october 2019 amended certificate determination consent order dated 15 january 2020 application resolve dispute application pp 11 12 2 application p 22 3 application p 18 4 application p 13 5 application p 14 6 application admit late document aald dated 25 march 2021 p 4 7 2019 nswca 175 hee 8 2008 nswwccpd 87 universal consultancy service 9 reply p 11 investigation report 10 see 15 11 see 28 12 application p 125 13 reply p 7 14 application p 9 15 p 10 25 16 reply pp 26 28 17 see 40 18 slack v crop equity pty ltd 1995 9 nswlr 231

SZSWB v Minister for Immigration and Border Protection & Anor [2015] HCATrans 17 (13 February 2015).txt

szswb v minister immigration border protection anor 2015 hcatrans 17 13 february 2015 szswb v minister immigration border protection anor 2015 hcatrans 17 13 february 2015 last updated 7 july 2015 2015 hcatrans 017in high court australiaoffice registrysydney s255 2014b e w e e n szswbapplicantandminister immigration border protectionfirst respondentrefugee review tribunalsecond respondentapplication special leave appealfrench cjgageler jtranscript proceedingsat sydney friday 13 february 2015 12 03 pmcopyright high court australiamr j b king may please court appear applicant instructed fragomen mr g johnson sc may please honour appear learned friend mr p knowles first respondent instructed australian government solicitor french cj yes mr king mr king may please court application raise two interrelated issue concerning applicant claim protection first issue put visitation point concern whether full court erred addressing basis upon applicant succeeded primary judge second issue question principle whether valid claim complementary protection section 36 themigration actwhere applicant forced modify conduct avoid real risk significant harm beginning first issue propose identify basis upon applicant succeeded primary judge go full court judgment honour aware applicant claimed left iran death threat business competitor resulting victim hit run incident someone driving utility vehicle applicant attempted recommence business received threat left country primary judge found applicant made claim applicant modified conduct threat finding seen page 64 application book paragraph 52 particular last sentence paragraph 52 applicant claim evidence indicated modified conduct involved business september 2010 caused harm suffered short scared business opposite page paragraph 56 centre paragraph primary judge said evidence tribunal strongly indicated applicant modification conduct ceasing business influenced threat harm faced bottom page paragraph 57 halfway paragraph honour noted applicant claim received threat attempted enter market 2010 evidence form basis applicant submission court applicant modified conduct refraining trading full court disturb finding basis upon primary judge granted relief begin page 64 paragraph 53 final sentence paragraph honour see statement principle court decision ins395that determine issue real chance without determining whether modified conduct influenced threat harm fail consider issue properly submission made applicant principle adopted applied primary judge page 69 paragraph 68 beginning paragraph 68 honour said tribunal error failure determine whether applicant modified conduct influenced threat harm faced finding applicant face real risk significant harm top page honour also see honour statement clear applicant claimed abandon selling free choice scared trade physical harm suffered subsequent threat harm none finding led conclusion disturbed full court turn full court reason approach taken full court best revealed division issue paragraph 4 page 83 application book paragraph 4 dichotomises issue full court full court saw paragraph issue presented potentially dispositive minister appeal visa applicant make claim complementary protection based past dispute rival distributor also intention resume business returned iran submission issue dispositive issue raised paragraph b never applicant case would resume business returned iran primary judge found applicant case modified conduct suspended business operation real risk significant harm would afraid recommence business returned gageler j find would afraid recommence business return mr king page 60 application book paragraph 39 honour see initially statement consistent full court said applicant never made claim would resume selling returned rather evidence supported proposition would afraid basis upon primary judge granted relief applicant proposition needed engaged full court respectful submission make good proposition first issue stated full court paragraph 4 dispositive appeal could take honour page 92 application book paragraph 26 minister outlined submission minister made appeal correct statement first sentence paragraph minister challenge primary judge finding tribunal erred failed consider whether visa applicant decision cease trading influenced threat harm paragraph c third submission put minister recorded event issue whether visa applicant could modify behaviour arise particular expression could modify importance reveals went wrong word infected balance full court approach issue never whether applicant could modify behaviour future case already done would afraid revert future paragraph 28 opposite page middle paragraph full court taken submission made minister beginning word one identified reason adopted language could modify noting issue didnotarise tribunal made relevant finding matter indeed visa applicant express desire resume business doubt afraid primary judge found also gageler j sorry taken u one sentence top page 61 actual tribunal finding effect mr king tribunal approach applicant claim way effect primary judge decision claim made tribunal effect tribunal erred considering claim made tribunal reason page 2 book large paragraph 7 purport summary applicant claim tribunal middle paragraph tribunal said whilst tribunal accepts may distribution dispute appears made finding dispute claimed applicant applicant failed explain hearing related refugee claim even tribunal accepts applicant involved sort territorial dispute lead run rival network controlled sepah tribunal satisfied applicant described hearing anything nonrelated convention turf war subject separate ground applicant notice contention full court ultimate finding applicant say anything happened since 2010 selling left tribunal satisfied would risk harm returned primary judge looked closely claim applicant made tribunal observed sufficient tribunal merely look fact business left nothing happened since 2010 thing referable significant harm experienced run 2010 failure tribunal ask applicant ceased business left country involved jurisdictional error basis upon primary judge granted relief full court page 93 paragraph 28 began consideration said looked submission minister whether visa applicant could modify behaviour future recorded end paragraph 28 applicant submission necessity expressly asserted would resume business recalling basis claim made tribunal afraid word could modify behaviour led full court engage review whole evidence claim tribunal looking search claim would resume business returned iran engage proposition found primary judge applicant claim would afraid resume business returned submission entirely unsurprising claim found would engage business returned inconsistent claim putting tribunal would afraid conclusion ultimately reached full court appear page 97 paragraph 42 three point want make conclusion first sentence paragraph 42 submission tribunal dealing involve proposition visa applicant would pursue business returned iran correct statement also found primary judge concluding sentence paragraph tribunal find fact visa applicant would would return business returned also correct anything rather supporting submission minister putting case revealed separate jurisdictional error tribunal suggesting misunderstood applicant claim relating threat significant harm arising business even finding whether would would resume business returned submission task tribunal based claim applicant made risk significant harm arising business required consider whether would would resume business return gageler j difficulty submission last word sentence taken u paragraph 42 proposition put proposition put tribunal mr king proposition referred proposition would return business true put proposition tribunal consistent decision primary judge proposition would return business submission engage statement would afraid return business go investigate would return business question primary judge saw significant came tribunal performing review full court statement proposition would return business put submission answer question presented gageler j point reason tribunal claim say made effect applicant feared recommencing business returned iran past conduct visitation case normally glaring error messy one afraid mr king best appears tribunal summary evidence page 28 29 choice sentence interest time take honour without meaning unfairly cherry pick page 28 paragraph 46 second sentence tribunal put talked one incident 2010 agreed person blame run year stated run called told get business top page 29 explained bedridden 12 month went back selling stated best time business accident tribunal put proposition sure related refugee far understood happened 2010 contacted date return selling answer proposition applicant recorded next paragraph make contact beg pardon receive contact warning get business applicant tried recommence business middle paragraph stated plan continue business reconnect people noticed getting closer sent warning stated 12 month hospitalised came sell stated warned go away business came australia material led primary judge find applicant scared business would afraid recommence returned gageler j say finding top page 61 evidence supported proposition mr king primary judge proceeded basis case submission read finding gageler j full court address finding mr king page 97 paragraph 43 towards end full court judgment middle paragraph full court say accept submission behalf minister visa applicant state would recommence business returned iran controversial said may accepted visa applicant past resumed business threat harm opinion show visa applicant would returned anything full court appears although really address question one way appears willing proceed basis primary judge said scared business fact case way lead relief granted primary judge appropriate reason ultimately given sentence end paragraph asserted established fact found claim claim referred claim would resume business case approach primary judge took claim identified submission issue full court french cj better go next point think mr king visitation point honour question public importance whether valid claim complementary protection section 36 applicant forced modify conduct real risk significant harm honour appreciate depends extent finding made primary judge albeit disturbed full court submission full court held applicant claim complementary protection needed considered tribunal claim would continue engage conduct gave rise risk significant harm returned iran take honour bundle legislative provision section 36 honour aware complementary protection criterion paragraph 2 aa importantly informs construction paragraph exception 36 2b premise two exception paragraph b 2b real risk satisfying complementary protection criterion notwithstanding may possible take step avoid risk paragraph possibility relocation assumes might otherwise real risk person reasonably relocate paragraph b obtaining protection authority state paragraph submission necessarily inform construction criterion 2 aa question case someone beg pardon case someone claim modified conduct real risk significant harm question presented two subparagraphs 2b whether reasonable relocate whether person could obtain protection state authority full court decision may important implication complementary protection claim generally give little attention effect paragraph construction 2 aa effect decision example girl betrothed birth distant relative come realise want go marriage nevertheless choice whether one course attracting risk significant harm others one honestly say tribunal returned want exposed risk significant harm go marriage effect full court decision unless claim made person would claim protection criterion may please court submission french cj yes thank need trouble mr johnson ground shown warranting grant special leave basis interest administration justice require consideration judgment court case otherwise suitable vehicle raise point principle applicant contends special leave refused cost court adjourn reconstitute 12 26 pm matter concluded

Nicholson, Justice Alastair --- "Berry Street Victoria's Building a Brighter Future" (FamCA) [2002] FedJSchol 11.txt

speech alastair nicholson chief justice family court australia berry street victoria building brighter future corporate luncheon thursday 4 july 2002 2 chief justice family court au stralia part icular interest system protect child adolescent abuse neglect many work brings constant contact dark side family life particularly power imbalance result vulnerable society selected innocent victim child often intimidated hurt demeaned sometimes killed misfortune member family violence way life research nd professional experience tell u frequently perpetrator abused child dangerous cycle therefore continues course inter spousal violence also common thread running history many client se paration often precipitate exacerbates behaviour indeed separation abuse common consequence relationship breakdown child also suffer see parent abused increasingly recognised legitimate form family violence example family law act directs court consider need protect child physical psychologi cal harm caused directly indirectly exposed abuse ill treatment violence behaviour directed towards may affect another person 3 many parenting dispute co family court counsellor mediator judge involve serious llegations child abuse although court required substantiate allegation must consider whether unacceptable risk chil hears application residence contact institutional system abuse also th reaten many child right done far long hear th several decade ago fortunately many advocate childre n well adult abused spoken courageously order bring abuse power attention authority prevent recurrence church official various denomination well state child protection system appear major culprit bo th australia country obviously child badly let organisation system public right expect would se rve rather compromise interest wider lens aware many way child called intact well separated family substantially disadvantaged even actually abused poor educational health outcome 4 many australia child twen ty first century frequently affect remainder life lead thei r marginalisation cycle violence referred earlier th ese child whose parent may deprived essentia l service childhood although hear much grey pow er low birthrate 28 australia population nearly 5 milli citizen aged 18 affluent industrialised c ountry many child young people leading safe happy productive life country resource opportunity unevenly distributed nd gap rich poor seems widening many child ar e facing variety disadvantage said 7 10 young australian experienced poverty physical sexual abuse homelessne s mental illness reach 181 youth suicide rate amongst highes world doubled last two decade figure accurate even near ly accurate terrible indictment u society leaving aside refugee child living de tention centre indigenous child probably vulnerable life expectancy 20 year le non indigenous background experience disadvantage relation 5 access education health service nd apprehension police incarceration current social circumstance aggrav ate going legacy past child removal policy practice many debate inquiry identified documented problem facing youth focusse important topic child right least theoretical perspective irony much rhetoric match reality inquiry debate translate action sometimes philosophi cal fiscal ttitudes government persuasion try sheet home responsibility need deed child family would surely realistic adopt holistic view take account soci al economic force put much pressure family number way society community government minimise danger child ensure equitable provision essential service speaking fro legal perspective woul prefer one law relating child protection across count ry rather jigsaw state territory commonwealth law currently plethora inconsistent legislation serve chil dren well allows 1 coalition australian child briefing kit march 1998 6 vulnerable slip system provides opportunity dispute litigated two court simultaneously nd thereby allows system abuse unfortunate division legislative sponsibility child caused federal system government probl em difficult recify reason allow problem continue naïve enough suggest law themselv e whether state territory commonwealth level necessarily improve child welfare fact unfortunately reverse possibly potent example mandatory sentencing le gislation operates still western australia repealed th e northern territory last october effect show n unnecessarily hars h many young people magistrate expressed considerable concern sentence required impose may bear little lationship offence committed mandatory sentencing legislation provides particularly potent example law maker get wrong possi bly serious consequence young people affected 7 broader way dealing w ith disadvantage discri mination albeit one find little favour government use relevant inte rnational convention united nation convention right child referred uncroc mean measuring action wo rds even suspicious instrument cynical ability anything practical aware useful weapon inactivity poor practice series benchmark effect australia played major role drafting uncroc subsequently one first country ratify decem ber 1990 came force country decade ago ja nuary 1991 however international convention wh ich australia party force result change made domestic law general approach take n country human right convention ensure make assurance domestic legislation policy practi ce comply convention prior ratification subsequently th e case uncroc compliance assessed ratificati although ratification brings clear responsibility obligation article 4 specifically provides party convention must 8 undertake appropriate legislative adm inistrative measure implementation right recognised convention convention widely accept ed international instrument ever principle grouped four main category participation child decision affecting future protection child discrimination form neglect exploitation prevention harm child provision assistance basic need recognises child right eg heard freedom expression thought conscience religion prot ection physical mental harm neglect including sexual abuse exploitati education inherent acting catalyst conve ntion recognition child adolescent also uniquely vulnera ble require independent mechanism protect promote right ratification brings obligation promote right child particul arly way disadvantaged convention take account wide ra nge resource many country ratified whilst principle protection harm anti discrimination absolute area requi ring service delivery feasibility 9 country attaining high standard recogni sed example article 24 say child right highest possible standard health australia obviously considerably eans disposal provide health care child would african asian country one would conclude first world country would would expected attain highest possible standard unfo rtunately evidence suggests number area 1995 official report united nation spoke positive term au stralia level co mpliance state territory commonwealth level non government agency provided well documented report strongly contradicted view indeed community group human right organisation law reform body professional body energetic persistency drawn attention area australia state territory fede ral level fails comply various article convention one area ongoing concern th e lack national mechanism coordinate existing policy program mechanism implement croc level government un committee right child 10recommended relation australia establishment independent officer child child ombuds man commission commissioner un committee also noted australia comprehensive policy child federal level disparity legislation practice different state th ere little knowledge australia convention general principle relation latter referred specifically non discrimination respect view child returning issue child commission several model operation overseas example new south wale queensland new zealand norway name would like elaborate today see benefit victorian child young people would gain today state decide establish office aware berry street victor ia see much merit approach spoke previously support mid 2001 yacvic launched discussion paper topic also previously urged th e federal government likewise far avail would cut across state initiative would rather view give commission 11additional clout provide higher pr ofile young people issue across country see child commission victoria much way providing voice child would neces sity independent office permanent statutory power accountable parliament rather government day ad equately resourced accessible young constituent senior officer public face would need commissioner high profile would called upon undertake number proactive highly visible task independence executive judge consider independence necessary always suit government policy child focused best world responsible minister may position direct public attention particular problem principle cabinet solidarity similar consideration apply respect child commissioner hold pu blic service type appointment 12with uncroc frame reference commission would wide range power responsibility w ould include necessarily restricted reviewing proposed existing law pr actices policy relate child young people audit would essent ial first step identifying beneficial damaging contradictory unnecessary law practi ce policy history appearing incrementally rather comprehensive cohesive manner frequently grafted predecessor without unders tanding overall effect recommending law would ensure protect right child young people would important role would allow thought given consistency state legal system would beneficial alternatively victoria may well set precedent state emulate conducting inquiry necessary every year serious allegation raised ab departmental practice relation area child protection specialised inde pendent commission would able provide fearless advice conduct comprehensive inquiry 13 promoting public education program performing advocacy role intervening case involve child young people systemic level developing mechanism consultation promotion ongoing communication child ren young people commission would give soci ety champion speak child young people could refer child youn g people family existing complains mechan ism assume role support chaperone needed monitoring rather dealing complaint commissioner would help improve acce ssibility responsiveness system comprehensive knowledge thereby acquired would create unique repository child w hether state federal level would turn inform commissioner advocacy strate gy priority could prompt formal inquiry investigate best wa dealing complaint common number child young people

Independent Education Union of Australia; West Epping Preschool Association Inc re West Epping PreSchool Association Inc Agreement 2010 [2010] FWAA 9928 (22 December 2010).txt

independent education union australia west epping preschool association inc west epping preschool association inc agreement 2010 2010 fwaa 9928 22 december 2010 fair work australiadecisionfair work act 2009s 185 application approval single enterprise agreementindependent education union australia west epping preschool association inc ag2010 23633 west epping preschool association inc agreement 2010educational servicessenior deputy president drakesydney 22 december 2010application approval west epping preschool association inc agreement 2010 1 application made approval enterprise agreement known thewest epping preschool association inc agreement 2010 agreement application made pursuant tos185of thefair work act 2009 act made independent education union australia agreement single enterprise agreement 2 agreement lodged within 14 day made 3 satisfied requirement ofss 186 187and188of act relevant application approval met 4 independent education union australia bargaining representative agreement given notice unders183of act want agreement cover accordance withs201 2 act note agreement cover organisation 5 agreement approved accordance withs54of act operate 29 december 2010 nominal expiry date agreement 29 december 2013 senior deputy presidentprinted authority commonwealth government printer price code j ae883138 pr505399

Taylor v Minister for Immigration & Multicultural Affairs [1999] FCA 661 (6 August 1999).txt

taylor v minister immigration multicultural affair 1999 fca 661 6 august 1999 last updated 10 august 1999federal court australiataylor v minister immigration multicultural affair 1999 fca 661immigration application review decision refugee review tribunal applicant conscripted faction subsequently come power deserted action applicant credibility doubted tribunal tribunal nevertheless considered rejected claim well founded fear persecution imputed political opinion whether necessary also consider whether applicant member alleged particular social groupmigration act cth 1958sellamuthu v minister immigration multicultural affair 1999 fca 247 appliedisraelian v minister immigration multicultural affairsat first instance 1998 fca 447 citedminister immigration multicultural affair 1999 1999 fca 649 citedtaylor v minister immigration multicultural affairsng 782 1998madgwick j6 august 1999sydneyin federal court australianew south wale district registryng 782 of1998between david taylorapplicantand minister immigration multicultural affairsrespondentjudge madgwickdate order 6 august 1999where made sydneythe court order 1 application dismissed 2 applicant pay respondent cost federal court australianew south wale district registryng 782 of1998between david taylorapplicantand minister immigration multicultural affairsrespondentjudge madgwickdate 6 august 1999place sydneyreasons judgmenthis honour1 application limited form judicial review available themigration act cth 1958 act relation decision refugee review tribunal tribunal upheld decision delegate respondent applicant entitled refugee status 2 applicant case 1995 civil war liberia claimed country nationality forced join armed faction known npfl father shot refused allow applicant go npfl agent come recruit later applicant escaped nplf unit attached engaged murderous mission made way uncle house uncle fled island allegedly called san pedro stowed away ship spain played professional soccer spain later italy left italy learn english continue play soccer reason come australia come air forged british passport destroyed interviewed point entry australia claimed fear persecution former npfl colleague faction come power would promoted would want kill disappointed running away 3 refugee review tribunal reservation applicant credibility relation number matter tribunal accept credible claim nationality conscripted npfl ample basis would seem concern tribunal matter concern basis would reasonable view tend powerfully applicant credibility 4 nevertheless tribunal considered matter possible persecution account imputed political opinion assuming true applicant escaped npfl two matter seem weighed tribunal first independent evidence suggested ruling power liberia date latest material available tribunal relatively benign political opponent applicant involved politically except short period npfl trainee second applicant fear individual npfl cadre personally disappointed although latter surprising conclusion material transcript evidence given applicant could support tribunal irreproducible advantage seeing hearing applicant 5 evidence tribunal sought relied capable affecting tribunal conclusion applicant probably liberian nationality also later material suggesting liberia politically unstable dangerous material deserves reconsidered minister determine whether exercise power 417 enable court intervene 6 criticism factual finding made tribunal principal submission ultimately made tribunal erred failing consider whether applicant might face persecution reason membership might particular social group deserter seeisraelian v minister immigration multicultural affairsat first instance 1998 fca 447and appeal 1999 fca 649 7 material tribunal plainly raise issue relevant question whether applicant accorded refugee status tribunal obliged consider issue even submission made behalf applicant draw specifically tribunal attention sellamuthu v minister immigration multicultural affair 1999 fca 247 8 question whether deserter might particular social group clearly raised material tribunal evidence suggest example law force save insurgent gun obliging applicant serve rank npfl evidence reasonable inference might drawn people generally liberia might perceive unwillingly impressed npfl service fled group people little captor apparently evidence anyone perceived deserter cognisable social group 9 indicated one tribunal finding applicant feared merelypersonalretribution distinct conduct engaged tolerated unable prevented responsible furnishing state protection national another liberian regime grew npfl harsh opponent finding considered enough discount real chance applicant fear persecution reason imputed political opinion well founded matter real significance present submission political opinion might imputed applicant could imputed deserted npfl applicant could belong supposed particular social group deserted npfl finding sufficient render ill founded fear persecution based authority concluding applicantopposedthem politically absent positive evidence contrary none finding must logically render fear based mere desertion unaccompanied official imputation applicant attitude political opposition equally lacking foundation 10 thus tribunal finding fairly said tribunal must come conclusion adverse applicant addressed issue possible persecution reason membership particular social group circumstance matter opinion duty tribunal consider alternative formulation possible convention reason asserted fear harm arising ultimate fact said way qualification insellamuthu case concerning objective material might supported refugee status although applicant credibility rejected many case sole substantial basis judging whether person fall within convention criterion refugee information supposed history background furnished applicant upon legally proper rejection credibility applicant case basis requiring rrt forthwith reject claim refugee status 11 likewise every case tribunal need consider initiative unformulated alternative supposed characterisation application refugee reason given would futile exercise 12 result application court must dismissed cost certify preceding twelve 12 numbered paragraph true copy reason judgment herein honourable justice madgwick associate dated 6 august 1999counsel respondent godwinsolicitor respondent australian government solicitordate hearing 6 october 1998date judgment 6 august 1999