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Tax and Superannuation Laws Amendment (Increased Concessional Contributions Cap and Other Measures) Bill 2013 [2013] AUSStaCSBRp 66 (4 December 2013).txt

tax superannuation law amendment increased concessional contribution cap measure bill 2013 2013 ausstacsbrp 66 4 december 2013 tax superannuation law amendment increased concessional contribution cap measure bill 2013backgroundtrespass personal right liberty retrospectivityschedule 3tax superannuation law amendment increased concessional contribution cap measure bill 2013introduced house representative 15 may 2013 received royal assent 28 june 2013 portfolio treasuryintroductionthe committee dealt bill amendment section ofalert digest 6 2013 former minister responded committee comment letter received 8 july 2013 previous parliament copy letter attached report alert digest 6 2013 extractbackgroundthis bill amends various taxation law schedule 1 amends theincome tax assessment act 1997and theincome tax transitional provision act 1997to increase concessional contribution cap temporarily 35 000 2013 14 financial year individual aged 60 year 35 000 2014 15 financial year later financial year individual aged 50 year temporary cap cease general cap index 35 000 schedule 2 amends thesuperannuation government co contribution low income earner act 2003to make technical change ensure low income superannuation contribution operates effectively schedule 3 amends income tax superannuation law thetaxation administration act 1953to reduce tax concession concessionally taxed superannuation contribution high income earner 15 per cent schedule 4 make consequential amendment legislation concerning commonwealth defined benefit superannuation plan member plan affected reduction tax concession concessionally taxed superannuation contribution trespass personal right liberty retrospectivityschedule 3this schedule make number amendment associated reduction tax concession concessionally taxed superannuation contribution high income earner 15 per cent change take effect concessionally taxed superannuation contribution 2012 13 income year later income year although explanatory memorandum indicates proposal announced minister financial service superannuation medium release 24 8 may 2012 noted taken 12 month bill enact proposal brought parliament neither reason delay justification retrospective application given delay dealt explanatory memorandum also noted provision within schedule 3 enable making regulation take effect retrospectively although explanatory memorandum provide justification necessity approach e g 54 committee past prepared accept amendment proposed budget retrospective effect legislation introduced usually limited publication draft bill within six calendar month date announcement taxation amendment brought parliament within 6 month announced committee usually expects delay explained justified problem committee concerned avoid practice legislation press release regrettable taken well six month announcement legislative change bill brought parliamentand committee seek minister explanation delay pending minister reply committee draw senator attention provision may considered trespass unduly personal right liberty breach principle 1 committee term reference former minister response extractthis schedule effectively reduces superannuation tax concession received individual combined income concessional contribution 300 000 30 per cent 15 per cent ensures tax concession received higher income earner closely aligned concession received average income earner standing committee scrutiny bill requested explanation delay announcement legislative change contained schedule 3 bill introduction parliament number factor contributed length time announcement introduction bill parliament firstly ensure equitable treatment possible individual accumulation interest individual defined benefit interest funded unfunded scheme concessional contribution purpose bill includes notional employer contribution defined benefit interest made drafting task necessarily complex demonstrable length schedule 3 associated explanatory material run 127 page secondly substantial amendment multiple act including theincome tax assessment act 1997and thesuperannuation resolution complaint act 1993 required consequential amendment also required range act thegovernor general act 1974andparliamentary contributory superannuation act 1948 contained schedule 4 bill necessitated extensive cross portfolio consultation cross portfolio policy approval including department finance deregulation department defence attorney general department respective minister relation committee concern around retrospectivity schedule 3 bill note proposed change announced medium release 24 8 may 2012 explicitly state policy would apply contribution made 1 july 2012 furthermore immediately following announcement treasury conducted round targeted consultation give industry opportunity provide feedback high level policy design implementation change prior commencement drafting result feedback received industry number key feature policy changed notably administrative model adopted legislation individual based model rather fund based model australian tax office ato issue assessment directly individual provides individual greater flexibility term payment significantly reduces compliance cost fund first round consultation release exposure draft legislation 1 may 2013 treasury developed legislation several agency including office parliamentary counsel ato department finance deregulation department defence attorney general department collaborative approach adopted refine clarify operation reduced tax concession lower implementation compliance cost note approach assisted legislative also contributed delay release exposure draft introduction parliament trust information assistance committee responsethe committee thanks former minister response senator helen polleychair

Asic v Rich [2004] NSWSC 969 (27 October 2004).txt

asic v rich 2004 nswsc 969 27 october 2004 last updated 3 november 2004new south wale supreme courtcitation asic v rich 2004 nswsc 969current jurisdiction equityfile number 5934 01hearing date 15 october 2004 written submission 22 october 2004judgment date 27 10 2004parties australian security investment commission p john david rich d1 mark alan silbermann d4 judgment austin jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel r b macfarlan qc j p durack sc n j beaumont j e sullivan p l williams sc j steele goodman d1 d4 solicitor jan redfern solicitor australian security investment commission p joanne kelly solicitor d1 d4 catchword evidence client legal privilege issue waiver plaintiff put issue state mind regarding propriety legality use material obtained search warrant document masked client legal privilege provided defendant basis inference masked portion relevant asic state mind search warrant issue waiver client legal privilegeacts cited decision plaintiff may provide evidence alleged privileged character document 10 11judgment supreme courtof new south walesequity divisionaustin jwednesday 27 october 20045934 01 australian security investment commission v john david rich orsjudgment claim waiver privilege respect document 10 11 1his honour judgment prepared basis submission numbered d 13 d 16 21 d 17 22 d 18 also take account brief oral submission recorded transcript 1564 line 27 1573 line 13 2 asic produced substantial quantity document claim client legal privilege supplied defendant list document case asic claimed privilege part document supplied defendant copy document part privilege claimed masked defendant challenged privilege claim led mr breckenridge solicitor part asic legal team swearing affidavit dated 14 october 2004 annex schedule giving description document privilege claimed 3 defendant contended document 10 11 schedule mr breckenridge affidavit asic produced masked form privileged communication privilege waived asic began hear argument whether document privileged senior counsel asic submitted judge responsible final hearing proceeding ought read unmasked version document formed view desirable perhaps necessary case judge determining claim privilege read unmasked document circumstance asic claim masked portion privileged taken hamilton j duty judge determination hamilton j decided masked portion document 10 11 privileged communication 4 defendant contend asic waived privilege attaching part document virtue sometimes called issue waiver reason judgment relate question waiver read masked part document 5 document 10 e mail m redfern various asic officer dated 19 october 2001 recipient messrs howell connor ryan hogan rees croft thomas myers turton headed one tel privileged communication m redfern begin saying opportunity review various document identifies say preliminary view next part e mail presumably statement preliminary view masked later e mail say thing need done follows ensuing material masked paragraph 8 e mail say counsel need advise aspect list matter appears masking paragraph 8 one thing identifies subject counsel advice use material obtained warrant remainder e mail masked 6 schedule affidavit mr breckenridge describes masked portion document 10 follows masked portion e mail refer subject matter search warrant masked portion e mail constitute legal advice m redfern recipient following topic m redfern preliminary view potential civil case director one tel b m redfern view appropriate nature case c legal advice matter need attended 7 document 11 e mail m redfern m rees mr staple copied mr howell mr connor mr hogan dated 25 october 2001 recipient asic officer e mail headed one tel privileged begin confirming opinion certain advice needed case urgently others e mail say 1 warrant advice importnat sic would like brereton advice sic asap remainder e mail masked 8 schedule affidavit mr breckenridge say document 11 masked section e mail contain reference subject matter search warrant masked portion e mail m redfern provides legal advice topic advice counsel obtained 9 question determination whether asic waived privilege respective whole document 10 11 result defendant entitled call unmasked version document general approach question waiver 122 theevidence actand common law well described hely j infort dodge australia pty ltd v nature vet pty ltd 2002 fca 501 24 april 2002 10 follows brings waiver inconsistency court necessary informed consideration fairness perceive conduct client maintenance confidentiality overriding principle fairness operating large mann v carnell 1999 hca 66 1999 201 clr 1at 13 10 sometimes distinction drawn disclosure waiver issue waiver though inconsistency principle inmann v carnellappears underlie specie defendant rely issue waiver say arisen asic affirmatively put state mind issue proceeding would inconsistent asic maintain privilege respect document going state mind 11 explored principle respect waiver privilege common law theevidence act 1995 nsw reason judgment published 7 october 2004 asic v rich 2004 nswsc 923 held asic waived privilege respect legal advice given necc meeting 21 november 2001 disclosing thing discussed meeting returned waiver principle judgment delivered 8 october 2004 asic v rich 2004 nswsc 934 held asic waived privilege producing large quantity document included legal advice observation counsel without rebutting inference disclosure document knowing voluntary unnecessary restate observation waiver principle made judgment 12 useful however investigate detail reasoning full federal court intelstra corporation ltd v bt australasia pty ltd 1998 85 fcr 152 followed applied another full federal court ryan carr marshall jj inperpetual trustee wa ltd v equuscorp pty ltd 1999 fca 925 intelstrathe plaintiff sued defendant damage alleging reliance defendant misleading deceptive conduct defendant sought discovery document would protected legal professional privilege absence waiver including document concerning retainer solicitor advise plaintiff written advice relating plaintiff entitlement rely upon certain representation notwithstanding contractual limitation held majority branson lehane jj beaumont j dissenting plaintiff pleading reliance representation thereby placing issue state mind waived privilege document material formation state mind 13 mentioned judgment 7 october 2004 reasoning full federal court affected unresolved dispute whether theevidence acthad derivatively altered common law waiver privilege court chose follow derivative modification theory adopted another full federal court inadelaide steamship co ltd v spalvins 1998 fca 144 1998 81 fcr 360 approach later rejected high court inesso australia resource ltd v commissioner taxation 1999 201 clr 49 14 nevertheless part joint judgment branson lehane jj intelstraappear reflect current law theevidence actand common law honour referred undue influence case 164 166 pointing evidence called legal advice provided weaker party rebut presumption fraud undue influence weaker party initiating undue influence case put issue quality consent issue ordinarily affected relevant legal advice received party similarly plaintiff legal professional negligence case bringing proceeding taken waived privilege would otherwise attach legal advice 166 quality particular legal advice extent causative loss damage properly assessed placed context totality legal advice received client 15 honour observed 166 party pleads undertook certain action reliance particular representation made another open element cause action issue state mind time alleged reliance occurred issue cannot fairly assessed without examination relevant legal advice received party concluded 167 conduct party lead implication consent use otherwise privileged material implied waiver privilege undue influence case legal professional negligence case sic view state mind case raising determination legal proceeding element cause action relied upon issue incapable fair resolution without reference material 16 held case material going content state mind admissible state mind put issue thus information person disregarded discounted may useful evaluating person state mind temwell pty ltd v dkgr holding pty ltd 2003 fca 948at 12 per ryan j waiver extends material could bearing state mind sense indicating probability likelihood rather mere possibility liquorland australia pty ltd v anghie 2003 vsc 73 2003 7 vr 27at 42 per byrne j followingsouthern equity corporation ltd v arthur andersen co 1997 sasc 6712 1997 70 sasr 166 193 17 present case asic intends tender large quantity document first obtained execution search warrant premise one tel ltd certain residential premise 1 june 2001 defendant object admissibility document partly ground obtained unlawful copying electronic material course execution search warrant unlawfully used asic civil purpose defendant invite court apply discretionary common law principle referred reason judgment published 22 october 2004 connection defendant 20th notice produce theridgewayprinciple referring toridgeway v r 1995 hca 66 1995 184 clr 19 inpollard v r 1992 hca 69 1992 176 clr 177at 204 deane j suggested enforcement authority engaged unlawful conduct deliberately recklessly court would ordinarily exercise power exclude evidence thereby obtained defendant submit asic deliberately recklessly engaged unlawful conduct unlawfully copying electronic material using search warrant material civil purpose court reject asic tender evidence common law principle also invite court reject evidence exercise statutory discretion underss 135and138of theevidence act 18 asic responded defendant developing case search warrant issue adducing evidence jan redfern solicitor record proceeding held senior legal administrative enforcement position asic period 2001 date written submission dated 15 october 2004 d 13 defendant said reading affidavit m redfern asic affirmatively put issue state mind relation propriety legality use search warrant material relation proceeding asic informed court dispute statement long confined asic state mind period december 2001 19 according defendant submission acting way asic waived privilege otherwise privileged material likely influenced state mind however follow asic waived privilege respect masked portion document 10 11 according mr breckenridge evidence neither document contains reference subject matter search warrant opinion legal advice m redfern dealing aspect case search warrant issue definition relate asic state mind relation propriety legality use search warrant material relation proceeding cannot said material likely influencedthat state mind opposed asic general state mind concerning proceeding particular question 20 however subsequent submission dated 20 october 2004 d 16 defendant given broader characterisation state mind say asic put issue relying m redfern evidence refer following component m redfern evidence statement paragraph 7 affidavit believe impediment asic reviewing document obtained search warrant course considered investigation relating various issue arising collapse one tel purpose determining whether documentary material kind rose level proof warrant commencement asic criminal proceeding whether material instead warranted commencement civil proceeding b statement cross examination 1482 10 view time could use search warrant material order investigate conduct consider whether contravention either criminal civil standard relation director duty provision referred view rightly wrongly c evidence understood asic 2001 single undifferentiated investigation combined civil criminal purpose 1482 21 1486 65 21 defendant rely component m redfern evidence say asserted state mind relation propriety asic use search warrant material 2001 two related component belief asic entitled use material investigation combined criminal civil purpose b belief nature asic investigation material time single investigation combined purpose instance predominantly civil investigation two investigation proceeding tandem 22 defendant contend put matter issue asic acted inconsistently maintenance privilege document going m redfern state mind relation element asserted belief 23 critical question whether correct say m redfern evidence put issue every aspect asic state mind going matter subject investigation characterisation single investigation combined criminal civil purpose defendant say asic asserts m redfern evidence acting 2001 basis m redfern believed engaged single combined investigation criminal civil wrongdoing permitted use material obtained warrant contend made assertion asic cannot fairness seek shield disclosure statement m redfern time likely reflect state mind played role formation state mind either nature permitted use material importantly present application nature use material fact put 24 state evidence however cannot inferred masked portion document 10 11 contain statement likely reflect m redfern state mind played role formation state mind regard permitted use search warrant material disagree defendant contention face document 10 likely contain expression view would played direct substantial role formulation asic view nature investigation undertaken particular extent criminal versus civil investigation point time d 16 paragraph 12 see basis unmasked portion document inference 25 basis inference one factor militates asic pointed submission 22 document 10 11 document created m redfern communicate view others rather document cited case communicating advice person whose state mind issue true defendant pointed d 18 issue determination relates asic state mind rather m redfern hearing proceeded basis m redfern state mind particularly significant component conclusion court may reach state mind employer 26 m redfern evidence put issue asic state mind relation lawfulness propriety use search warrant material 2001 evidence effect component put issue belief asic entitlement use material single investigation combined criminal civil purpose legal advice going asic entitlement use search warrant material combined purpose would admissible privileged according mr breckenridge evidence masked portion document 10 11 relate search warrant therefore relate question 27 masked portion document 10 11 contain legal advice relating say whether correct characterise asic investigation single investigation combined criminal civil purpose otherwise legal advice bearing asic state mind respect search warrant issue though expressly referring search warrant matter privilege also waived respect legal advice legal advice aspect investigation proceeding contemplation example advice defendant contemplated proceeding advice potential cause action bearing search warrant issue privilege waived asic putting issue state mind regarding lawfulness use search warrant material 2001 28 seems proper course give asic opportunity provide affidavit evidence presumably mr breckenridge reviewing content masked portion document 10 11 mr breckenridge give evidence effect masked portion bear asic state mind relating lawfulness propriety use search warrant material light m redfern evidence identified defendant submission referred mr breckenridge evidence accepted would conclude privilege masked portion waived 29 paragraph 1 written submission 21 asic conceded would entitled maintain claim privilege document indicated contrary m redfern evidence criminal side investigation come end prior date upon one tel written consent obtained namely 7 december 2001 subsequent written submission 22 asic made submission intended replace 21 primary submission submission 21 treated alternative position asic said concession 21 would applicable court find primary submission 22 30 reached conclusion generally favour asic call primary submission seems asic alternative position based misunderstanding defendant submission waiver privilege 21 appears proceed basis defendant need show masked portion document 10 11 show criminal side investigation come end time document created understand defendant position therefore view 21 misdirected 31 consequently seem document referred schedule 21 presumably way proposed tender application would relevant assistance anything decide therefore reject tender subject liberty asic apply considers tender document necessary appropriate part evidence contemplate 32 leaf concession paragraph 1 21 uncertain position presumably asic would want say withdrawn given reasoning may defendant would want contend concession remains alive evidence asic may wish provide court contemplated address question whether masked portion document contain anything indicating criminal side investigation come end material masked portion would open defendant contend asic concession survived consequence privilege waived respect material shall make decision issue arises last updated 02 11 2004

Algeri (Administrator), in the matter of Murray & Roberts Pty Ltd (Administrators Appointed) (No 4) [2023] FCA 313 (5 April 2023).txt

algeri administrator matter murray robert pty ltd administrator appointed 4 2023 fca 313 5 april 2023 last updated 6 april 2023federal court australiaalgeri administrator matter murray robert pty ltd administrator appointed 4 2023 fca 313file number wad 256 2022judgment bank smith jdate judgment 5 april 2023catchwords corporation administration clough group company application 447 1 thecorporations act 2001 cth third extension time convening second meeting creditor company within group yet executed deed company arrangement complex administration extension grantedlegislation corporation act 2001 cth s 439a 447a part 5 3acases cited algeri administrator matter murray robert pty ltd administrator appointed 2022 fca 1506algeri administrator matter murray robert pty ltd administrator appointed 2 2022 fca 1563algeri administrator matter murray robert pty ltd administrator appointed 3 2023 fca 98in matter daisytek australia pty limited 2003 fca 575re grocon pty ltd admins apptd 2 2020 vsc 859division general divisionregistry western australianational practice area commercial corporationssub area corporation corporate insolvencynumber paragraph 25date hearing 5 april 2023counsel plaintiff mr pr edgarsolicitor plaintiff king wood mallesonsorderswad 256 2022in matter murray robert pty ltd administrator appointed acn 105 617 865 salvatore algeri jason tracy glen kanevsky david orr capacity joint several administrator second thirteenth plaintiff named schedulefirst plaintiffmurray robert pty ltd administrator appointed acn 105 617 865 second plaintiffclough limited administrator appointed acn 008 678 813 others named schedule third plaintifforder made bank smith jdate order 5 april 2023the court order extension convening periodpursuant tos 447a 1 thecorporations act 2001 cth 439aoperate period within first plaintiff must convene second meeting creditor murray robert pty ltd administrator appointed acn 105 617 865 second plaintiff proceeding b clough limited administrator appointed acn 008 678 813 third plaintiff proceeding c clough operation pty ltd administrator appointed acn 109 444 279 fourth plaintiff proceeding clough overseas pty ltd administrator appointed acn 067 272 182 fifth plaintiff proceeding e clough seam gas pty ltd administrator appointed acn 139 610 656 sixth plaintiff proceeding f clough engineering pty ltd administrator appointed acn 009 093 869 eleventh plaintiff proceeding g clough project international pty ltd administrator appointed acn 109 444 902 twelfth plaintiff proceeding togethernon doca company unders 439aof thecorporations actbe extended 6 april 2023 ordered court 15 february 2023 midnight 30 june 2023 pursuant tos 447a 1 thecorporations act part 5 3aof thecorporations actis operate relation non doca company notwithstandings 439a 2 thecorporations act second meeting creditor non doca company may held time within five 5 business day end convening period extended order 1 ancillary ordersthe first plaintiff must take reasonable step cause notice order given within one business day making order creditor including person entity claiming creditor non doca company following manner creditor registered user halo platform publishing notice via halo platform ii creditor registered user halo platform first plaintiff email address creditor notifying creditor via email making order providing link website creditor may download order interlocutory process iii creditor registered user halo platform first plaintiff email address creditor postal address creditor received notification non delivery notice sent email accordance ii notifying creditor via post making order providing link website creditor may download order interlocutory process iv placing scanned sealed copy order interlocutory process website maintained first plaintiff http aurestructuring deloitte halo com clough b australian security investment commission c deputy commissioner taxation department employment workplace relation administering fair entitlement guarantee scheme person demonstrate sufficient interest liberty apply court vary discharge order three business day notice first plaintiff first plaintiff cost incidental application cost administration non doca company jointly severally note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentbanks smith j fourth application relating administration clough company 13 december 2022 made range order including order limiting liability administrator certain agreement facilitating use halo platform mean communication creditor algeri administrator matter murray robert pty ltd administrator appointed 2022 fca 1506 algeri 1 21 december 2022 made order extending statutory convening period second meeting creditor clough company required bys 439aof thecorporations act 2001 cth 12 january 2023 midnight 17 february 2023 algeri administrator matter murray robert pty ltd administrator appointed 2 2022 fca 1563 algeri 2 15 february 2023 made order extending convening period group company defined thenon doca companiesfrom 17 february 2023 midnight 6 april 2023 algeri administrator matter murray robert pty ltd administrator appointed 3 2023 fca 98 algeri 3 reason assume familiarity reason adopt defined term administrator seek extension convening period 30 june 2023 respect non doca company application supported fifth affidavit one administrator david orr affidavit patrick mackenzie solicitor employed king wood mallesons deposes manner notice application given stakeholder progress since last extensionthe background clough company administration set previous decision together summary work undertaken course administration date respective hearing anticipated inalgeri 3 extended time period permitted pooled single deed company arrangement proposed webuild webuild australia webuild doca would entered respect group clough company seventh eighth ninth tenth thirteenth plaintiff doca company circumstance sale implementation deed webuild webuild australia proposal anticipated webuild doca summarised inalgeri 3 14 17 15 february 2023 administrator conducted meeting creditor doca company creditor resolved respective company would execute webuild doca associated creditor trust deed webuild doca pooled doca covering doca company following execution administrator became deed administrator webuild doca completed 16 february 2023 converting creditor claim doca company claim creditor trust save separate arrangement implemented respect employee completion webuild doca meant doca company longer subject external administration deed administrator became trustee creditor trust whilst facilitating execution completion webuild doca administrator continued ass option respect non doca company second third fourth fifth sixth eleventh twelfth plaintiff mrpl second plaintiff administrator together houlihan lokey conducted comprehensive sale process respect mrpl share mrpl subsidiary ruc cementation mining contractor pty ltd 24 march 2023 mrpl administrator entered binding doca term sheet preferred bidder r limited condition precedent doca met administrator expect doca implemented 30 june 2023 point mrpl come external administration control assumed r limited administrator continued investigate sale opportunity respect asset non doca company business project asset australia overseas mr orr fifth affidavit disclosed detail attempt step undertaken include negotiating potential bidder expressed interest identified project asset conducting numerous meeting discussion respect future clough usa clough canada business travelling new york six day progress sale certain u based project business meeting client advisor regard attending completion share sale clough uk limited wholly owned subsidiary clough overseas pty ltd fifth plaintiff holding company clough group business based united kingdom extension convening periodrelevant legal principlesinalgeri 2 7 14 summarised principle apply application extend time convening meeting creditor unders 439a 6 ands 447a 1 thecorporations act noted relevantly thats 439a 6 thecorporations actprovides one extension time however power unders 447a 1 thecorporations actextends extending convening period notwithstanding court may already granted earlier extension principle inform exercise power extend time convene meeting unders 439aalso inform exercise power unders 447a 1 extend time accordingly paraphrase said 12 ofalgeri 3 take account desirability reaching appropriate balance expectation administration undertaken relatively speedy summary manner need part administrator consider sensible constructive option directed towards maximising return creditor stakeholder considerationi note uncommon administrator complex administration seek lengthy extension convening second meeting creditor sometimes way application seek first extension range six month whilst may appropriate course depending circumstance approach administrator case rather sought shorter period way extension continued report creditor applied court considered extension required considered justifiable fact third application reflects relatively shorter period sought occasion circumstance group course encouraged transparency satisfied administrator maintained sense urgency diligence respect task hand administration many moving part result already achieved example execution completion webuild doca according medium release 17 february 2023 tendered mr orr clough pleased announce february 16 2023 webuild acquired 100 ownership clough australia papua new guinea final acquisition perimeter comprises clough organisation office trademark credential business reference senior management office personnel aud 6 billion worth project backlog end 2022 related project workforce australia png term project transaction includes snowy 2 0 inland rail gowrie kagaru section joint project webuild tallawarra stage b waitsia gas project stage 2 lombrum naval base well project clough preferred bidder cere urea plant mt keith debottle necking woodman point treatment plant darwin shiplift consider appropriate grant extension sought occasion following reason unless extension granted convening period second meeting creditor non doca company expire midnight 6 april 2023 administrator anticipate condition precedent doca proposal respect mrpl sale process relation non doca company completed expiration current convening period mr orr state administrator opinion additional time would enable administrator continue undertake proper process negotiate sale asset non doca company consider given scale complexity administration progress made date despite statutory moratorium provided bypart 5 3aof thecorporations act proposed extension convening period unduly prejudice non doca company creditor administrator consider immediate liquidation opposed extending convening period would produce better outcome non doca company creditor particularly non doca company presently employ staff outstanding employee entitlement previous employee non doca company satisfied non doca company operating company within clough group therefore incur ongoing trade operational expense extension convening period granted therefore administrator contend prejudice may caused creditor non doca company extension convening period greatly outweighed benefit creditor whole conferred additional time available complete sale process accept circumstance giving appropriate weight administrator opinion would best interest creditor non doca company convening period extended 30 june 2023 notable administrator intend convene second meeting creditor non doca company soon practicable depending development meeting may held earlier latest possible time extended time convening meeting sought administrator accordingly also seek daisytek order named approach taken inin matter daisytek australia pty limited 2003 fca 575 permitting hold meeting time extended convening period within five business day notwithstanding term ofs 439a 2 order give administrator greater flexibility convene meeting earlier appropriate circumstance grocon pty ltd admins apptd 2 2020 vsc 859at 22 gardiner asj ancillary ordersancillary order also sought interlocutory process largely administrative standard nature appropriate circumstance accommodate person demonstrate sufficient interest approach court way liberty apply ordersaccordingly conclusion hearing order made largely term sought interlocutory application certify preceding twenty five 25 numbered paragraph true copy reason judgment honourable justice bank smith associate dated 5 april 2023schedule partieswad 256 2022plaintiffsfourth plaintiff clough operation pty ltd administrator appointed acn 109 444 279 fifth plaintiff clough overseas pty ltd administrator appointed acn 067 272 182 sixth plaintiff clough seam gas pty ltd administrator appointed acn 139 610 656 seventh plaintiff clough engineering integrated solution ceis pty ltd administrator appointed acn 097 480 736 eighth plaintiff e20 pty ltd administrator appointed acn 125 234 924 ninth plaintiff sharp resource pty ltd administrator appointed acn 166 613 127 tenth plaintiff clough project pty ltd administrator appointed acn 109 444 831 eleventh plaintiff clough engineering pty ltd administrator appointed acn 009 093 869 twelfth plaintiff clough project international pty ltd administrator appointed acn 109 444 902 thirteenth plaintiff clough project australia pty ltd administrator appointed acn 109 444 215

Trevino & Trevino [2023] FedCFamC1A 188 (2 November 2023).txt

trevino trevino 2023 fedcfamc1a 188 2 november 2023 last updated 6 november 2023federal circuit family court australia division 1 appellate jurisdictiontrevino trevino 2023 fedcfamc1a 188appeal trevino trevino 2023 fedcfamc2f 687appeal number naa 185 2023file number syc 5567 2019judgment schonell jdate judgment 2 november 2023catchwords family law appeal parenting appellant contended primary judge erred denying appellant procedural fairness primary judge made order compelling appellant obtain referral counselling neither party sought order primary judge said would make order primary judge fell error giving notice party denying opportunity heard making order inadequacy reason reason clearly adequate appeal allowed part cost certificate issued party legislation federal circuit family court australia act 2021 cth case cited abbott vastano 2022 flc 94 125 2022 fedcfamc1a 222bennett bennett 1991 flc 92 191 1990 famca 148boensch v pascoe 2019 268 clr 593 2019 hca 49collins monroe 2021 fedcfamc1a 75concrete pty ltd v parramatta design development pty ltd 2006 229 clr 577 2006 hca 55crabman v crabman 2 2020 61 fam lr 191 2020 famcafc 146house v king 1936 55 clr 499 2936 hca 40pollard v rrr corporation pty ltd 2009 nswca 110number paragraph 53date hearing 27 october 2023place heard sydney delivered melbournecounsel appellant m sheasolicitor appellant steiner legalcounsel respondent mr keserovicsolicitor respondent adam jones solicitorordersnaa 185 2023syc 5567 2019federal circuit family court australiadivision 1 appellate jurisdictionbetween m trevinoappellantand mr trevinorespondentorder made schonell jdate order 2 november 2023the court order appeal allowed part order 23 order made primary judge 9 june 2023 set aside notice appeal filed 6 july 2023 otherwise dismissed appellant granted cost certificate pursuant tos 9of thefederal proceeding cost act 1981 cth certificate opinion court would appropriate attorney general authorise payment act appellant respect cost incurred appeal respondent granted cost certificate pursuant tos 6of thefederal proceeding cost act 1981 cth certificate opinion court would appropriate attorney general authorise payment act respondent respect cost incurred appeal note form order subject entry court record note copy court reason judgment may subject review remedy minor typographical grammatical error r 10 14 b federal circuit family court australia family law rule 2021 cth record variation order pursuant r 10 13federal circuit family court australia family law rule 2021 cth section 121of thefamily law act 1975 cth make offence except limited circumstance publish proceeding identify person associated person witness involved family law proceeding noted publication judgment court pseudonymtrevino trevinohas approved pursuant tos 121 9 g thefamily law act 1975 cth reason judgmentschonell j notice appeal filed 6 july 2023 appellant mother appealed order made judge division 2 court relation party child time judgment six year age notice appeal contained five ground fell two broad category ground 1 related order compelling appellant attend general practitioner obtain referral counselling contended appellant denied procedural fairness making order ground 3 challenge power make order counsel party conceded error ground 1 established unnecessary consider ground 3 ground 2 4 5 contended inadequacy reason relation making order child travel unaccompanied basis relation easter school holiday time ground 1 contended error way denial procedural fairness consistent authority ground must dealt first concrete pty ltd v parramatta design development pty ltd 2006 hca 55 2006 229 clr 577 honour observed incrabman v crabman 2 2020 famcafc 146 2020 61 fam lr 191 defect administration justice found occurred even judge found correct order must remedied concrete pty ltd v parramatta design development pty ltd 2006 229 clr 577 231 alr 663 70 ipr 468 2006 hca 55at 117 unless done impression created defective course remains undermines public confidence administration justice antoun v r 2006 224 alr 51 2006 hca 2at 28 backgroundthe party commenced cohabitation around 2006 2007 married 2009 separated final basis august 2018 divorced 2019 party one child together x born 2016 currently 7 year age time trial 6 year age party relationship marked high degree parental conflict 6 december 2019 appellant commenced proceeding seeking parenting order various interim order subsequently made increasing respondent time child june 2022 respondent relocated brisbane life partner two child following relocation time child ceased party unable agree travel arrangement respondent subsequently spent time child august 2022 primary judge recorded august 2022 final hearing child spent time respondent brisbane approximately seven occasion travel arrangement involved respondent travelling brisbane child 36 final hearing heard primary judge two day 6 7 march 2023 46 primary judge identified issue relevant appeal follows 1 time child spend father school term holiday well whether time occur sydney 2 age child permitted travel unaccompanied minor 3 order relation special occasion 9 june 2023 primary judge delivered reason judgment found appropriate child spend block period father brisbane school holiday 219 primary judge ordered 2024 onwards child spend eight night block respondent term 1 2 3 holiday approximately half christmas school holiday honour also found child best interest child travel unaccompanied minor consequently ordered travel occur term 1 school holiday 2024 232 primary judge accepted single expert evidence appellant highly anxious regard child travelling unaccompanied 230 ameliorate appellant anxiety primary judge ordered appellant attend upon general practitioner obtain referral counselling support child travelling unaccompanied minor order 23 order made 9 june 2023 ground 1 3that trial judge erred failing afford procedural fairness appellant making order 23 compelling appellant undertake counselling order support child travelling unaccompanied minor sydney brisbane age 7 year 8 month order 23 made without power parenting order self standing order untethered parenting order order 23 following term appellant shall forthwith attend upon general practitioner obtain referral obtain counselling support child travelling unaccompanied sydney brisbane appellant shall provide counsellor copy single expert report dated 7 march 2022 b updated expert report dated 16 february 2023 coercive order issue neither party sought order appellant submitted order contemplated notice given order appellant would opportunity cross examine single expert make submission appropriateness otherwise making order appellant submitted primary judge indicated party would make order respect appellant relied upon following passage transcript honour neither addressed willingness client engage therapeutic part either seek difficulty without client think value making order engaged another area dispute counsel appellant honour mean something seems relatively sensible absence anyone actually engaging likely make well make order emphasis added transcript 7 march 2023 p 157 line 6 16 respondent submitted appellant notice therapy recommended single expert consequentially cannot heard complain submitted possibility order type ultimately made must contemplation appellant submitted primary judge made statement referred submission accordingly basis submission appellant denied opportunity cross examine single expert discussionit apparent updated family report single expert dated 16 february 2023 cross examination single expert view appellant would benefit engaging therapy assist child managing anxiety including relation issue unaccompanied travel however significant difference reading recommendation expert hearing give evidence recommending certain course action making coercive order requiring party comply recommendation fundamental tenant procedural fairness party given notice opportunity adduce evidence make submission order made compelling something tree j observed inabbott vastano 2022 fedcfamc1a 222 2022 flc 94 125 trial judge bound proposal party evidence witness u v u 2002 hca 36 2002 211 clr 238at 80 however error trial judge represent party certain order contemplation make order without affording opportunity party make submission respect seebolitho cohen 2005 famca 458 2005 flc 93 224at 85 lenova lenova 2011 famcafc 114 2011 flc 93 467at 55 robertson sento 2009 famcafc 49at 138 instance order sought either party compelled appellant attend upon counselling accordingly term party relief presented primary judge identify matter either adducing evidence making submission primary judge made plain party course submission would make coercive order order may appropriate made conditional part parenting order afforded party opportunity heard satisfied circumstance appellant notice order sought positive assurance court order would contemplated let alone made mother denied procedural fairness satisfied merit ground 1 order must set aside circumstance satisfied merit ground 1 consistent object thefederal circuit family court australia act 2021 cth calling quick resolution dispute efficient delivery justice interest judicial economy ground 3 need addressed see alsoboensch v pascoe 2019 hca 49 2019 268 clr 593 ground 2 4 5that trial judge failed give adequate reason making order 32 34 specifically finding appellant firmly held belief child travel unaccompanied age 12 likely change result counselling capable supporting child travel unaccompanied age 7 year 8 month trial judge failed give reason rejecting appellant proposal child spend time easter year trial judge failed give adequate reason accepting respondent proposal child commence spending block period three consecutive week respondent 2024 christmas school holiday ground 2 4 5 challenge adequacy primary judge reason extent adequacy reason depend upon circumstance case adequacy met court able ascertain reasoning justice seen done bennett bennett 1990 famca 148 1991 flc 92 191 reason must party able understand basis judge decision argument accepted pollard v rrr corporation pty ltd 2009 nswca 110 ground challenged adequacy primary judge reason relation travel unaccompanied minor ground 2 said absence reason relation order time easter sought appellant ground 4 order half christmas school holiday block period respondent commencing 2024 2025 ground 5 convenient deal ground order appeared appellant summary argument way oral argument relevant disposition appeal relation ground absence challenge expert evidence primary judge finding relation ground 2 appellant submitted court well knew appellant strongly held opposition order describing belief firm fixed 201 primary judge also knew mother highly anxious child travelling unaccompanied risk child mother support travel appellant submitted age child permitted travel significant therapy recommended evidence would assist appellant shifting strongly held view appellant submitted following term nowhere judgment honour explain satisfied appellant would capable supporting child travelling unaccompanied minorfrom age 7 year 8 month appellant steadfast view child travel unaccompanied age 12 evidence honour therapy would effective shifting appellant position evidence thateven ifthe appellant position could shifted would shift extent would capable supporting child travelling unaccompanied age 7 year 8 month andthat shift could realistically achieved within period 10 month final order made absence evidence possible discern honour concluded appellant would capable supporting child travelling unaccompanied minor commencement term 1 2024 school holiday found appellant highly anxious relation child travelling unaccompanied held firm fixed belief child travel unaccompanied age 12 child needed appellant support order able travel successfully unaccompanied basis incumbent primary judge explain basis decision child commence travelling unaccompanied term 1 2024 school holiday age 7 year 8 month submitted honour failed give adequate reason regard emphasis original relation ground 4 time easter appellant submitted sought specific order respondent sought order one holiday time appellant submitted follows honour ultimately made order child time either parent easter explain body judgment honour failed expose basis uponp sic rejected appellant proposal thereby fell appealable error ground 5 relation block period time christmas school holiday appellant submitted party issue block period start appellant submitting 2027 respondent submitting 2024 appellant submitted single expert made recommendation half christmas holiday start appellant submitted single expert make recommendation graduation seven consecutive night would child best interest give evidence child would capacity cope three consecutive week away appellant importantly however expressed following caveat 56 updated expert report child capacity manage longer time contingent receiving message parent find acceptable help lean increased time given noting appellant clear opposition child spending three consecutive week respondent christmas 2027 incumbent primary judge explain satisfied commencing three week block end 2024 child best interest submitted honour failed expose reasoning process behind decision thus fell appealable error footnote omitted finally appellant submitted order 23 set aside inevitably order 32 34 must also set aside respect appellant submitted submitted appeal allowed relation order 23 order cannot simply set aside honour made order 32 34 child commence unaccompanied travel term 1 2024 school holiday premise appellant would undergo counselling assist supporting unaccompanied travel prior arrangement coming effect honour clearly found child need appellant support order able travel unaccompanied appellant need therapy order provide support order 32 34 cannot remain effect order 23 set aside order 32 34 also course subject independent ground appeal ground 2 also set aside ground respondent contended sufficient reason support order made primary judge even order 23 discharged remaining order remain discussiona reading reason entirety demonstrates adequate comprehensive reason support order made primary judge primary judge carefully considered expert evidence made finding consistent evidence support order subject appeal ground 2 primary judge recorded said appellant child nervousness travelling unaccompanied well respondent evidence child travelled regularly brisbane comfortable flying independent age primary judge also recorded appellant resistance idea unaccompanied travel recording identified appellant summary argument steadfastly opposed child attained age twelve primary judge recorded appellant anxiety relation child travelling unaccompanied child best interest delay unaccompanied travel allow mother receive therapeutic support 230 primary judge acknowledged could risk child relation unaccompanied travel supported appellant 231 satisfied appellant would carefully read reason judgment would undertake therapy support child travelling unaccompanied 203 primary judge also accepted expert evidence child may find travel get older easier onus appellant assist child process 163 determination primary judge child would able travel unaccompanied minor involved exercise discretion full court observation incollins monroe 2021 fedcfamc1a 75are apposite proper exercise discretion parenting case may broad mistake think always one right answer question best interest child require footnote omitted challenge exercise discretion sense ofhouse v king 1936 55 clr 499 limited purely adequacy reason clear reading judgment whole reason primary judge clearly exposed referred 229 237 primary judge specifically addressed issue travelling unaccompanied minor including finding child risk travelling unaccompanied minor term 1 holiday 2024 232 primary judge however also accepted evidence single expert appellant given opportunity obtain professional assistance way therapy supporting child travel unaccompanied 174 192 explains delay implementing unaccompanied travel order satisfied child risk acknowledged importance child spending time extended paternal family brisbane provided appellant opportunity access therapy commencement unaccompanied travel process reasoning revealed basis submission reason primary judge unaccompanied travel commence inadequate accept appellant submission court found error pursuant ground 1 inevitably order 32 34 must set aside term primary judge order unaccompanied travel child commence term 1 school holiday 2024 counsel appellant agreed would date sometime april 2024 circumstance given judgment delivered 9 june 2023 appellant nearly ten month obtain engage therapy assist importantly daughter would disingenuous appellant engaged already embarked upon process therapy circumstance order stayed set aside appellant counsel trial submitted appellant given opportunity attend therapy appellant clearly cognisant recommendation single expert report heard course evidence march 2023 benefit judgment since 9 june 2023 merit ground 2 relation ground 4 5 primary judge recorded 165 single expert opinion child school stage development child sufficiently mature graduate spending one half school holiday parent preferable introduced graduated manner updated family report dated 16 february 2023 paragraph 55 order made primary judge introduced time gradually fact occur pace mother sought demonstrative error issue school holiday time primary judge found important child spend time father queensland would support bond paternal family 168 time occur brisbane frequently possible 182 primary judge accepted single expert evidence risk time occur brisbane child may approach adolescence resent spending sufficient time father sibling 183 primary judge accepted evidence single expert child relationship father paternal family important identity 218 given distance parent sic home appropriate child spend block period time father brisbane school holiday 219 finding expose process reasoning resulted order see child spending increasing period time respondent resulting spending eight night term 1 2 3 school holiday 2024 onwards spending block period time christmas school holiday december 2024 january 2025 ground 4 clear primary judge conscious appellant proposal time easter accepted recommendation single expert subject challenge important child spend block period time respondent extended paternal family brisbane could accommodated child spending time respondent term 1 holiday note concession appellant counsel easter always fall within school holiday period accordingly may well occasion child spending easter holiday appellant said however clear reading totality reason primary judge conscious order appellant sought judge required accept party proposal merely advocated instance primary judge reliance upon unchallenged evidence single expert accepted child best interest spend block period time respondent could accommodated school holiday period relation question child spend block period time christmas school holiday primary judge conscious competing position party well evidence single expert child would able deal block period time away appellant introduced graduated way consistent recommendation primary judge accepted single expert evidence child age would able spend one half school holiday parent recommended seven consecutive night 2023 christmas school holiday whilst single expert make recommendation thereafter entirely consistent evidence child spend block period time respondent queensland age could tolerate half school holiday parent evidence single expert accepted primary judge process reasoning supporting primary judge decision apparent primary judge reason clear capable ascertainment apparent justice seen done merit ground 2 4 5 conclusionas error established ground 1 appeal allowed part appeal succeeded part question law circumstance consider appropriate grant cost certificate appellant respondent certify preceding fifty three 53 numbered paragraph true copy reason judgment honourable justice schonell associate dated 2 november 2023

Mimoza Pty Ltd [2003] MRTA 6926 (13 October 2003).txt

mimoza pty ltd 2003 mrta 6926 13 october 2003 last updated 4 december 2003 2003 mrta 6926catchwords review business sponsorship rejection temporary business entry schemereview applicant mimoza pty ltdtribunal migration review tribunalpresiding member delofskimrt file number n03 00328dept file number opf2002 10917date decision 13 october 2003at sydneydecision tribunal affirms decision review finding review applicant meet criterion approval standard business sponsor statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate mimoza pty ltd abn 85 068 144 696 review applicant applied approval business sponsor 18 october 2002 delegate decision reject application approval made 27 november 2002 jurisdiction standing2 review applicant lodged valid application review tribunal 23 december 2002 decision reviewable tribunal application review validly made person standing apply review legislation policy3 themigration regulation 1994 regulation provide approval person business sponsor part scheme called temporary business entry scheme involves three stage person employer seeking approval business sponsor approved business sponsor seeking approval nomination activity individual proposed employed australia person applying temporary visa subclass 457 ground visa applicant proposes employed approved business sponsor activity subject approved business nomination 4 conducting review tribunal bound themigration act 1958 act various regulation made act written direction issued minister undersection 499of act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 5 tribunal power affirm decision refuse approve business sponsorship set decision aside substitute another decision 6 regulation 1 20d contains criterion approving person business sponsor guideline set pam3 tribunal generally regard regulation stood time lodgement application approval however subsequent amendment may apply circumstance evidence findings7 tribunal tribunal n03 00328 departmental opf2002 010917 case file conducted hearing 23 september 2003 8 review applicant claim business operating outlet sale australian made souvenir item foreign visitor including japanese tourist applied approval standard business sponsor seeking entitlement make one nomination business activity within 12 month period tribunal dealing separate application review relation refusal visa applied visa applicant m tomoko hamano visa applicant basis review applicant proposing employ visa applicant customer service manager mrt case number n03 00334 9 delegate stated review applicant approved business sponsor basis demonstrate would introduce utilise create australia new improved technology business skill would future addition delegate satisfied basis information provided review applicant could demonstrate satisfactory record training australian resident citizen clear evidence demonstrated commitment training australian citizen permanent resident review applicant stated lodging application review assessor reason refuse application seem groundless reason unrealistic used refuse application anyway 10 approved business sponsor review applicant must meet criterion set regulation 1 20d criterion addressed following heading drawing relevant evidence contained file provided hearing applicant approval actively lawfully operating australia 11 search record australian security investment commission indicated review applicant registered 9 february 1995 australian proprietary company limited share recent financial statement submitted company indicate currently lawfully operating australia would proposed employment contribute employment australian citizen permanent resident contribute expansion australian trade contribute improvement australian business link contribute competitiveness within sector australian economy 12 submission dated 13 august 2003 hearing review applicant stated recently increased number shop operates concomitant increase capacity employ australian submission claim visa applicant linguistic skill experience magnify sale contribute australia economy also help staff secure position equipped foreign language skill employment direct employer 13 review applicant stated nomination application sponsoring business position customer service manager would pay salary 35 000 per annum hour work would 40 hour per week visa applicant nominee review applicant applicant approval introduce utilise create new improved technology business skill alternatively applicant approval satisfactory record demonstrated commitment towards training australian citizen permanent resident 14 review applicant indicated sponsorship application would introduce utilise create new improved technology business skill tribunal therefore find review applicant meet requirement subparagraph 1 20d 2 c 15 review applicant stated submission practical recruit linguistically unskilled worker train job send language school subsidy therefore review applicant policy recruit fully skilled person start however review applicant claimed trained one australian permanent resident regular sale assistant review applicant business planned house training sale skill provided new staff start employment training also include introduction souvenir manufacturing industry basic knowledge leather product stock control training conducted job period two week review applicant planned recruit two local apprentice trainee learned sale skill existing staff would offered basic japanese tuition japanese speaking staff following trial one month duration apprentice would selected basis report staff trained staff selected would encouraged attend japanese language lesson six month part time basis completion course would continue learn shop keeping management job time come one staff would promoted shop manager would replace expatriate staff position gradually 16 review applicant also run tour company sydney past 5 year review applicant employed three driver guide australian citizen permanent resident staff trained driver guide approximately one two week start employment familiarise work assumed employee already licensed driver trainee would sit beside trained driver carrying passenger period time become accustomed manner speaking looking tourist trainee taught locality etiquette tour spot japanese culture way claimed became fully skilled driver guide one employee received training product sold well reception skill japanese customer familiarising good sale one additional local staff would recruited next year trained accordance review applicant guideline 17 hearing review applicant stated company paid tafe course one australian employee mr shane smith however review applicant considered course meet need company generally review applicant considered knowledge suitable external course job training appropriate past 3 month review applicant director visa applicant provided job training 6 7 staff member including safety training 18 following guideline taken pam3 set policy requirement training criterion regulation 1 20d evidence satisfactory training record could include number apprentice trainee graduate recruited copy training program demonstrated commitment evidenced detailed training plan specifying proposed number person ie permanent employee trained nature duration training offered word training plan sufficiently detailed quantifiable enable evaluation progress made course business sponsorship monitoring appropriate clear guideline review applicant able demonstrate policy recruiting staff receive training external internal formalised according detailed training plan result staff enhancing qualification employability economic sector work tribunal considers review applicant provided adequate evidence satisfactory training record demonstrated sort commitment training involving detailed quantifiable training plan envisaged guideline tribunal therefore find review applicant meet requirement subparagraph 1 20d 2 c ii conclusion19 tribunal find review applicant meet criterion approval business sponsor specifically paragraph 1 20d 2 c tribunal must therefore affirm decision review decision20 tribunal affirms decision review finding review applicant meet criterion approval business sponsor

Tervonen v Finland (No. 2) [2009] FCAFC 4 (30 January 2009).txt

tervonen v finland 2 2009 fcafc 4 30 january 2009 last updated 30 january 2009federal court australiatervonen v finland 2 2009 fcafc 4extradition whether appellant extraditable person section 19 ofextradition act 1988 cth court bound earlier decision error analysis conclusion trial judge whether leave amend appeal granted whether dual criminality requirement satisfied proceeding material magistrate trial judge sufficient satisfy statutory test leave amend appeal denied appeal dismissedextradition act 1988 cth 6 10 2 19 2 19 3 c 21director public prosecution cth v kainhofer 1995 185 clr 528minister home affair v tervonen 2008 fcafc 24 2008 166 fcr 91jan tervonen v finland magistrate paul lyonnsd 882 2008north buchanan jagot jj30 january 2009sydneyin federal court australianew south wale district registrynsd 882 2008on appeal single judge federal court australiabetween jan tervonenappellantand finlandfirst respondentmagistrate paul lyonssecond respondentjudges north buchanan jagot jjdate order 30 january 2009where made sydneythe court order 1 appeal dismissed 2 appellant pay first respondent cost appeal note settlement entry order dealt order 36 thefederalcourt rule text entered order located using esearch court website federal court australianew south wale district registrynsd 882 2008on appeal single judge federal court australiabetween finlandfirst respondentmagistrate paul lyonssecond respondentand jan tervonenappellantjudges north buchanan jagot jjdate 30 january 2009place sydneyreasons judgmentthe court 1 judgment appeal gyles j decided bound judgment high court indirector public prosecution cth v kainhofer 1995 185 clr 528 kainhofer conclude argument upon mr tervonen wished rely connection request finland extradition bound fail tervonen v finland 2008 fca 781 2 ground 1 2 appeal following term convenient deal first 1 court erred holding could determining whether appellant eligible surrender unders19 particulars19 2 determine whether warrant produced first respondent accused appellant offence required bys19 3 2 court erred holding could determine whether notice issued attorney general unders16 2 valid notice purpose s19 1 b 3 gyles j conducting review unders 21of theextradition act1988 cth act determination magistrate unders 19of act mr tervonen eligible surrender finland mr tervonen contended extraditable person within meaning ofs 6 act respect five eight warrant issued finland arrest gyles j thought mr tervonen contention raised issue substance issue justiciable proceeding concerned withs 19of act high court held inkainhoferthat magistrate required unders 19of act determine whether person whose extradition sought eligible surrender required decide whether person extraditable person within meaning ofs 6 act power neither question arise magistrate determination unders 19is reviewed unders 21of act 4 gyles j clearly correct conclude bound judgment high court inkainhofer 5 appellant accepted gyles j bound decision inkainhoferto reach conclusion therefore accepted present appeal cannot succeed either ground 1 2 formal submission made counsel appellant thatkainhoferwas wrongly decided preserve possibility persuading high court modified view 6 respondent filed notice contention effect gyles j wrongly characterised five warrant question one coercive investigation rather one accused mr tervonen offence purpose bringing trial light appellant concession neither ground 1 ground 2 upheld court necessary deal notice contention moreover accepted final resolution factual issue raised notice contention ever necessary may require hearing evidence circumstance would appropriate express view matter stage 7 hearing appeal counsel mr tervonen sought leave add ground 3 notice appeal raise question whether adequate attention given thes 19proceedings magistrate thes 21review gyles j dual criminality requirement general nature additional ground indicated permitted appellant formulate specific ground appeal file application leave amend amended notice appeal file written submission support proposed ground 3 respondent provided written submission answer proposed ground 3 amended notice appeal follows 3 court erred determining material adduced finland magistrate sufficient establish level conduct required bysection 19 2 c 8 regard submission made connection ground appears relate warrant 1 3 whether ultimately matter shall return question whether leave given amend appeal add rely upon ground 3 given attention issue raise light history matter 9section 19 2 c act requires dual criminality test satisfied in 19proceedings provides 19 2 purpose subsection 1 person eligible surrender relation extradition offence surrender person sought extradition country c magistrate satisfied conduct person constituting offence relation extradition country equivalent conduct taken place part australia proceeding conducted time extradition request relation person received conduct equivalent conduct would constituted extradition offence relation part australia 10 proceeding magistrate gyles j mr tervonen represented advanced argument dual criminality test way differed way point pursued 11 magistrate conducted thes 19proceedings recorded view dual criminality requirement hisex temporejudgment follows schedule attached attacked defendant affect charge equivalent offence offend australian law set attached table court satisfied offence offence australian law proved court indicated table analogous offence statement going offence certified within warrant statement supplied foreign country 12 gyles j mr tervonen written submission dual criminality follows 57 magistrate even try identify statement supporting document simply relied upon 1st respondent submission authorized act magistrate must form opinion dual criminality based statement see par 55 someone submission 58 magistrate clearly failed bys 19 2 c required satisfy dual criminality based statement describing conduct offence 13 gyles j dealt submission firstly warrant 1 3 warrant 4 8 follows 29 30 respectively 29 submitted conduct relation offence numbered 1 2 3 8 9 10 11 12 14 15 16 insufficient establish dual criminality particular given contention counsel finland provided cross reference count conduct alleged constitute relevant offence provision thecrimes act 1900 nsw corporation act 2000 cth criminal code 1995 cth submitted would contravened conduct alleged finland took place new south wale time alleged conduct accept contention behalf finland respect 30 relation offence reflected warrant 4 8 inclusive tervonen relied upon general attack upon warrant rather taking issue individual offence table provided magistrate identifying equivalent offence australia review book absence argument contrary accept submission correct 14 written submission support ground 3 counsel put matter appeal differently follows 15 crucial question exactly posed mr tervonen paragraph 57 simply magistrate reliance insufficient material rather anterior question jurisdictional nature namely whether material sufficient magistrate engage process 15 support contention counsel argued conclusion reached full court earlier appeal mr tervonen minister home affair v tervonen 2008 fcafc 24 2008 166 fcr 91 minister adequate material satisfy dual criminality provision purpose 16 answer argument counsel wished advance support proposed ground 3 appeal contended material two decision maker fundamentally different e magistrate minister material magistrate primary material provided finland although term primary material used clear magistrate material initially provided finland material referred earlier appeal supplementary understand counsel submission effect magistrate available departmental brief minister including commonwealth director public prosecution briefing memo 16 distinction made dual criminality test 19 2 act incorporation test requirement conduct constituting offence identified particular way section 10 2 act import 19 2 provision following requirement 10 2 reference act conduct constituting offence reference act omission virtue offence alleged committed 17 addition 19 3 c requires magistrate conducting proceeding 19 provided supporting document including duly authenticated statement writing setting description penalty applicable respect offence ii duly authenticated statement writing setting conduct constituting offence 18 section 19 3 c accordingly requires magistrate satisfaction dual criminality based statement offence penalty relevant country requesting extradition proper sufficient statement conduct constituting offence accordance 10 2 allow appropriate comparison australian law 19 magistrate finnish warrant warrant stated offence penalty available also statement finland minister justice stating penalty available applicable provision penal code finland provided extract form therefore adequate statement matter required 19 3 c 20 also clear earlier appeal judgment material supplied finland regarded sufficient meet requirement 10 2 act therefore 19 3 c ii example full court said 80 81 80 primary judge approached question whether sufficient statement alleged conduct mr tervonen focusing upon statement cdpp mr tervonen involved scheme number person reference opening sentence 90 cdpp advice reproduced 42 81 however seems u proper approach question whether sufficient statement conduct requires consideration statement full context material senator johnston relevant question sufficiency statement conduct material limited statement cdpp advice 21 also said 89 90 89 moreover supplementary account offence provided finnish authority contained detailed description mr tervonen involvement siira commission offence particular description mr tervonen conduct disclosed finnish authority alleged indeed could obtain evidence mr tervonen involved siira following respect mr tervonen knowledge fraud committed mr tervonen conceived idea recruiting two men sweden raappana söderqvist carry overt act mr tervonen received proceeds fraudulently obtained fund 90 statement alleged actually done mr tervonen mere restatement charge respect extradition brought williamsat 45 citingzoeller v federal republic germany 1989 23 fcr 282andde bruyn v republic south africa 1999 fca 1344 1999 96 fcr 290 22 magistrate thus adequate material form document provided finland meet requirement 10 2 act make assessment required 19 3 whether dual criminality test met even document suggested counsel mr tervonen available earlier full court 23 event appears counsel may misunderstood fact magistrate mr tervonen supplied magistrate dual criminality advice commonwealth director public prosecution annexure c written submission dated 8 may 2007 intended received use proceeding magistrate 6 june 2007 material gyles j 21 review 24 however matter viewed adequate material magistrate gyles j upon could satisfied dual criminality regard argument put attempt represented proposed ground 3 reformulate refocus argument succeed even mr tervonen allowed depart way argued case magistrate gyles j conclusion stated earlier appeal based upon substantially material magistrate gyles j leave room argument advanced circumstance injustice would caused denying leave rely upon proposed ground 3 grant leave amend ground appeal include proposed ground 3 leave granted would concluded ground 3 provide basis uphold appeal 25 appeal dismissed appropriate dismiss cost certify preceding twenty five 25 numbered paragraph true copy reason judgment herein honourable justice north buchanan jagot associate dated 30 january 2009counsel appellant mr game scmr ashsolicitor appellant ron kesselscounsel first respondent mr r beech jones scms k morgansolicitor first respondent commonwealth director public prosecutionsdate hearing 24 november 2008date judgment 30 january 2009

Z32 and Queensland Building and Construction Commission; J26 (Third Party) [2021] QICmr 52 (14 October 2021).txt

z32 queensland building construction commission j26 third party 2021 qicmr 52 14 october 2021 z32 queensland building construction commission j26 third party 2021 qicmr 52 14 october 2021 last updated 29 august 2022decision reason decisioncitation z32 queensland building construction commission j26 third party 2021 qicmr 52 14 october 2021 application number 315697applicant z32 respondent queensland building construction commissionthird party j26decision date 14 october 2021catchwords administrative law right information refusal access contrary public interest recruitment personnel information personal information prejudice agency management function accountability transparency whether disclosure would balance contrary public interest section 47 3 b and49of theright information act 2009 qld administrative law right information sufficiency agency search effort whether agency taken reasonable step identify locate document requested applicant section 130andsections 47 3 e and52of theright information act 2009 qld reason decisionsummarythe applicant applied 1 queensland building construction commission qbcc theright information act 2009 qld rti act access various document concerning recruitment qbcc named individual third party 2 qbcc located various document initial processing internal review qbcc decided 3 release whole part refuse access others ground disclosure would balance contrary public interest 4 applicant applied 5 office information commissioner oic external review qbcc decision refuse access information applicant also contested adequacy qbcc search document relevant request oic sought view third party possible disclosure relevant document third party ultimately press objection disclosure 6 qbcc subsequently agreed release additional information applicant review additionally applicant press access information 7 result small amount information remains issue reason explained consider applicant entitled access information qbcc may however refuse applicant access balance therefore vary qbcc decision refuse access information issue also satisfied qbcc taken reasonable step locate requested document therefore discharged search obligation rti act backgroundsignificant procedural step set appendix decision reviewable decisionthe decision review qbcc internal review decision dated 2 october 2020 evidence consideredevidence submission legislation material considered reaching decision referred reason including footnote appendix 9 making decision regard thehuman right act 2019 qld hr act particularly right seek receive information embodied section 21 act consider observing applying law prescribed rti act right information decision maker respecting acting compatibly right others prescribed hr act 8 done making decision required section 58 1 hr act regard note bell j observation interaction victorian analogue queensland rti act hr act perfectly compatible scope positive right charter observed reference scheme principle thefreedom information act 9 information issuethe information issue comprises segment information appearing second third page statement addressing selection criterion sasc authored third party andthree instance two payroll employee number concerning third party appearing two page 10 reason explained consider ground exist refusing access first two segment information redacted third page sasc refer information category information refer balance information redacted sasc access may view refused category b information 11 payroll employee number simply refer payroll number issue determinationthe issue determination whether qbcc may refuse access information issue ground disclosure would balance contrary public interest section 47 3 b rti act sufficiency search whether qbcc taken reasonable step locate document relevant access application access document may refused ground document nonexistent unlocatable 12 procedural complaint allegation biasbefore dealing substantive issue identified preceding paragraph firstly note applicant made various complaint allegation review including assertion bias delegate managed external review claim applicant denied procedural fairness delegate relevant allegation levelled thus seems matter fact bulk applicant grievance regard including bias essentially fall away strictly need dealt 13 complaint fairness reviewed procedure followed review quite satisfied applicant treated fairly afforded benefit detailed preliminary view issue view interest also worth remembering applicant consequence external review process considerably better position following qbcc decision secured access number page refused access qbcc success regard follows oic independently impartially assessed relevant informationappraised qbcc decision refuse access sameundertaken third party consultation required rti actadvised qbcc view established ground refusing access ultimately secured qbcc agreement release information oic acceded applicant 14 june 2021 request extension time lodge submission 14 27 july 2021 letter direct submission limited three page direction followed receipt applicant discursive 17 page submission 15 canvassing range issue many beyond power consider made context issue remaining addressed relatively limited number confined matter fact page limit imposed corresponded length oic letter inviting reply also direction given consistently broad discretion conferred information commissioner set procedure external review 16 express power give direction prescribed section 95 2 rti act 17 oic obliged conduct review expeditiously 18 strives meet obligation limited resource must apportioned meet range statutory duty heavy demand external review applicant member community given matter canvassed paragraphs16and17 satisfied page limit direction made 27 july 2021 letter appropriate operate deny applicant fair opportunity put forward case applicant assertion bias accompanying request information commissioner delegate original delegate make decision noted paragraph14 strictly necessary deal issue request given latter practise occurred come matter fresh prior dealing review indeed 19 pplicant 19it adequate simply summarise commissioner 11 august 2021 reply applicant noting review conducted without irregularity accordance oic usual practice well within broad procedural discretion conferred information commissioner delegate bysection 95 1 theright information act 2009 qld finally completeness note recurring theme applicant submission insistence agency public entity failed properly discharge duty worse done corruptly 20 coupled insistence oic thus duly report nominated applicant agency action accordance applicable statutory duty 21 make clear share applicant suspicion identified nothing material enlivening relevant reporting duty yet even obligation account discharge reporting duty let alone world large via published reason decision said turn substantive issue determined access informationqbcc maintains access may refused information remaining issue applicant hand seek access information considered qbcc applicant submission actual information issue view preferable position lie somewhere basis refusing applicant access category information disclosure balance information issue category b information payroll number would however balance contrary public interest access may therefore refused latter information deciding whether disclosure information would balance contrary public interest 22 rti act requires decision maker 23 identify irrelevant factor disregard themidentify relevant public interest factor favouring disclosure nondisclosurebalance relevant factor favouring disclosure nondisclosure anddecide whether disclosure information issue would balance contrary public interest schedule 4 rti act contains non exhaustive list factor may relevant determining balance public interest lie particular case carefully considered list together relevant information reaching decision additionally kept mind rti act pro disclosure bias 24 parliament intention ground refusing access information interpreted narrowly 25 considered irrelevant factor findingscategory informationas noted consider applicant entitled access category information following reason favouring disclosure category information firstly general public interest promoting access government held information 26 disclosure information material relied candidate relatively senior public employment apparently taken account employing agency 27 could reasonably expected 28 contribute transparency qbcc recruitment process ensure enhance accountability qbcc adherence merit equity principle making recruitment decision 29 andreveal background contextual information informing qbcc decision appoint third party 30 discussed public interest served ensuring community access information allowing satisfied public sector appointment made fairly transparently public interest factor identified preceding paragraph deserve substantial weight favouring nondisclosure fact information qbcc submits third party personal information 31 giving rise public interest harm factor prescribed schedule 4 part 4 section 6 rti act public interest harm could however reasonably expected follow disclosure personal information would exceedingly minor third party personal information authored information object release 32 given consider relevant harm factor merit slight weight balancing public interest 33 qbcc also argues disclosure category information could reasonably expected prejudice qbcc management function 34 email dated 25 august 2021 qbcc submitted release specific information could expected prejudice management function agency relation current future personnel consider qbcc employee employee agency would aggrieved information example relating internal staff matter disclosed third party deem given substantial weight nondisclosure deciding public interest accept submission oic explained qbcc review reasonable expect disclosure passage information authored concerning specific individual support individual job selection claim could aggrieve employee current prospective let alone extent might disrupt prejudice qbcc management employee determining consideration regard third party themself object release given consider reasonable expect disclosure would perturb aggrieve staff manner contended qbcc give rise relevant nondisclosure factor 35 accordingly satisfied disclosure category information could reasonably expected prejudice qbcc management function 36 factor therefore need taken account balancing public interest turn balance competing factor one another given third party object disclosure personal information embodied category information satisfied applicable public interest harm factor 37 attracts sufficient weight displace weighty accountability transparency consideration favouring release discussed paragraph29 acknowledge qbcc submission disclosure material course review advance public interest consideration nevertheless remains 38 ase 38 public interest favouring disclosure written job application material category information include public interest revealing kind skill experience claim required win particular position maintaining public confidence appropriately skilled experienced qualified people hold public sector position funded public purse ensuring application similar position accurate particular claim likely view higher seniority position question stronger public interest disclosing document revealing claim position successful applicant third party appointed relatively senior position within qbcc appointment based part gather category information public interest promoted ensuring member public verify appointment public service made equitably based upon respective merit applicant 39 reason explained satisfied release category information serve public interest extent sufficient displace marginal weight attaching sole public interest consideration telling disclosure qbcc discharged onus carry 40 establishing decision refusing access category information justified bearing mind absence objection disclosure third party information relates satisfied balance public interest case favour disclosure category b informationthe category b information consists potentially identifying reference others third party dealing professional capacity within employing agency externally segment reflect entirely commonplace example type information often relied job applicant demonstrate capacity experience given investigatory nature work third party engaged nevertheless possessed sensitivity sensitivity think attenuated third party general lack objection disclosure document appear information people consider person identity could reasonably ascertained 41 category b information comprises personal information person applicant 42 additionally information touching matter workplace performance operation agency personnel sensitive regulatory context also view unconditional disclosure limited segment information could lead potential disquiet thus could reasonably expected prejudice relevant agency management function 43 protecting personal information avoiding prejudice agency management function important public interest deserving considerable weight public interest consideration favour release category information also count favour disclosure category b information however context view avoiding public interest harm would follow release personal information potential prejudice agency management function preferred favouring disclosure information withholding segment avoid potential public interest harm prejudice significantly impairing applicant person ability understand merit third party claim appointment qbcc decision make appointment balance satisfied factor favouring nondisclosure sufficient displace favour disclosure category b information would balance contrary public interest access may therefore refused information section 47 3 b rti act payroll numbersthese number rather insignificant item information largely clerical administrative nature case release strike rather marginal disclosure would promote general public interest promoting access government held information 44 extent disclosing information informing community qbcc operation 45 relatively trivial nature information neither consideration would seem attract anything beyond modest weight nevertheless view rti act express pro disclosure bias absence substantial consideration telling disclosure 46 oic initial view disclosure would balance contrary public interest qbcc however provided u submission review establishing like information past used perpetrate attempted payroll fraud qbcc 47 reason gainsay submission oic advised applicant revised preliminary view effect unconditional disclosure payroll number could reasonably expected give rise public interest prejudice 48 sufficient displace consideration favouring release thus tip balance public interest favour nondisclosure applicant continues press access number 49 applicant case understand number may enable frame future rti access request e reference number obvious would requires access actual number document interest connected one number would seem enough information available page number appear information redacted particular page enable make meaningful application event even assumption mistaken refusing access number impair applicant manner asserts outcome preferred converse accept could reasonably expected follow unconditional release rti act potential fraud public agency summary find consideration favouring nondisclosure payroll number discussed 50 attract weight sufficient displace may tell favour release accordingly disclosure payroll number would balance contrary public interest access may therefore refused information sufficiency searchoic external review function include investigating reviewing whether agency taken reasonable step identify locate document applied applicant 51 oic asked qbcc information concerning search step taken way letter dated 21 april 2021 duly provided advice reply 52 relayed applicant way letter dated 31 may 2021 noting qbcc processing application undertaken 9 5 hour search across seven day electronic physical document repository advised applicant qbcc certified u satisfaction document exist advice prepared accept given concluded qbcc search appeared reasonable could identify search might reasonably required undertake reply 53 applicant submitted qbcc required conduct search document concerning several meeting qbcc officer third party employed another agency present 54 oic addressed contention letter applicant dated 27 july 2021 summarised applicant position term equivalent stated preceding paragraph letter continued follows footnote included disagree term access application originally lodged qbcc requested access document concerning third party qbcc employment concerning establishment recruitment selection several nominated position going qbcc initial decision appears qbcc issued notice intention refuse deal section 42 rti act following agreed narrow term application request copy document regarding recruitment process third party two position within qbcc 55 document supplied 56 however none meeting nominated submission concerned recruitment process third party targeted narrowed access application 57 document instead appear evidence case 5 december 2017 proposed 22 march 2018 meeting inter agency liaison qbcc agency initiated former effort better manage interaction dealing latter andin case 6 march 2018 meeting conduct resolution specific administrative investigation undertaken agency certain qbcc action requiring qbcc undertake search document relating inter agency meeting particular administrative investigation response narrowed application document concerning two specific recruitment process lie beyond reasonable document former kind fall outside scope present application wish pursue access need lodge fresh access application qbcc general request search document concerning meeting communication established former qbcc commissioner third party identified 58 even possible agency qbcc deal vague sweeping request 59 competent applicant unilaterally expand term access application external review 60 applied access document term summarised bound term application 61 applicant continues insist qbcc failed take reasonable step locate relevant document 10 august 2021 submission reply oic 27 july 2021 letter essentially maintaining position summarised paragraph51 without wishing appear presumptuous latter submission appear premised dissatisfaction fact information applicant disclosed qbcc perhaps rise level would expect based subjective construction understanding law regulation governing public sector recruitment whether applicant apprehension justified matter entirely outside remit external review offer opinion adequacy otherwise ofthe contentof recruitment process documentation opposed tosearchesfor process documentation process followed given agency making recruitment decision matter fall explore external review conducted rti act role limited ascertaining whether relevantly qbcc discharged search obligation response applicant access application issue say little oic letter dated 27 july 2021 extracted paragraph52above word accept reasonable step require qbcc responding access application document regarding recruitment process two position cast net broadly let alone document relating inter agency meeting particular administrative investigation another unrelated agency document concerning meeting nominated individual accordingly matter fact satisfied qbcc taken reasonable step identify locate document applied applicant consider preceding finding sufficient dispose issue necessary find access document may refused ground document extent would fall within scope access application nonexistent unlocatable 62 additional mattersbefore concluding reason briefly address two issue pressed applicant review authorship comment made decision review e qbcc internal review decision first applicant contest legitimacy validity decision review contending authored officer le senior initial decision maker flagrant breach rti act 63 applicant contends amount criminal activity public service certain qbcc officer press outcome review presumably decision reflect finding 64 second applicant take issue understand commentary internal review decision defending explaining recruitment process subject applicant rti access application 65 matter exemplifies applicant desire oic make finding issue outside power authority desire appears premised misconceived notion free ranging policing disciplinary role external review observed role limited merit review agency decision refuse access information vindicate general suspicion harboured applicant make public denouncement asserted agency shortcoming 66 information commissioner noted obligation report evidence breach duty misconduct limited circumstance 67 reporting obligation however one required carried way published decision declaration accounting applicant review participant matter bearing external review exercise given external review merit review short answer explained applicant 27 july 2021 letter way quotation observation made right information commissioner earlier unrelated decision response similar argument another applicant 68 oic conduct merit review relevant agency decision mean oic stand shoe agency make decision open agency make effect procedural issue may arisen agency processing application irrelevant external review oic role conduct fresh review relevant fact law make fresh decision accordingly applicant prejudiced procedural issue defect may occurred processing corrected irrelevant merit review process said traversed issue think appropriate least regard question authorship 69 record observation see nothing untoward qbcc internal review decision clearly bear name position signature acting commissioner position think may safely assume higher rank initial decision maker document metadata indicates document created another junior officer neither personal experience routine commonplace course action contemporary public service electronic document correspondence draft reason decision statutory instrument brought existence subordinate officer resulting officer recorded document originator computer application used create 70 finalise 71 document thecontentof correspondence instrument however settled 72 endorsed issued appropriately empowered officer delegate appears exactly case even obligation entertain address issue external review objective probative material cause decisioni vary section 110 1 b rti act qbcc decision refuse access information issue finding qbcc may refuse access category b information payroll number section 47 3 b rti act andqbcc established ground refusing access category information record satisfaction qbcc taken reasonable step identify locate document relevant applicant rti access application therefore discharged search obligation bear rti act extent may necessary access may refused additional document relevant term applicant narrowed rti access application section 47 3 e rti act basis nonexistent unlocatable within meaning section 52 act made decision delegate information commissioner section 145 rti act k shepherdacting right information commissionerdate 14 october 2021appendixsignificant procedural stepsdateevent29 october 2020oic received application external review 2 november 2020oic requested preliminary document qbcc 11 november 2020oic received requested document qbcc 24 november 2020oic notified applicant qbcc external review application accepted requested document qbcc 9 december 2020oic received requested document qbcc 10 march 2021oic consulted third party invited third party apply participate review 22 march 2021the third party applied participate review provided oic submission 8 april 2021oic notified third party application participate review accepted 21 april 2021oic conveyed preliminary view applicant agency third party 23 april 2021oic received submission qbcc response preliminary view oic received applicant request clarification part preliminary view 27 april 2021oic provided clarification applicant 6 may 2021oic received third party submission response preliminary view 11 may 2021having received reply applicant oic 21 april 2021 preliminary view oic wrote applicant confirming information discussed correspondence longer issue 11 may 2021oic conveyed third party submission applicant position response preliminary view qbcc 17 may 2021oic received qbcc submission response oic 21 april 2021 preliminary view including agreement release additional information 31 may 2021oic requested qbcc release relevant information applicant oic conveyed preliminary view applicant 15 june 2021oic received applicant submission response oic 31 may 2021 preliminary view 6 july 2021oic conveyed applicant submission qbcc requested qbcc consider disclosing document 21 july 2021oic received qbcc submission regarding disclosure document 27 july 2021oic conveyed preliminary view applicant 10 august 2021oic received applicant submission response oic preliminary view 11 august 2021oic wrote applicant concerning conduct review 12 august 2021oic requested qbcc consider disclosing information 25 august 2021qbcc agreed release additional information 7 september 2021oic requested qbcc disclose additional information applicant oic confirmed applicant qbcc third party next step review would comprise written decision oic asked third party confirm continuing participation review third party confirmed participation 1 application dated 19 may 2020 2 third party understand appointed secondment position within qbcc subsequently appointed position contract following open recruitment selection process 3 initial decision dated 11 august 2020 internal review decision dated 2 october 2020 4 section 47 3 b rti act 5 application dated 29 october 2020 6 see email third party oic dated 6 may 2021 third party however wish remain participant review application participate section 89 2 rti act accepted oic prior withdrawal objection 7 see email oic applicant dated 11 may 2021 8 xyz v victoria police general 2010 vcat 255 16 march 2010 xyz 573 horrocks v department justice general 2012 vcat 241 2 march 2012 111 9 xyzat 573 10 new appointment paperwork 14 may 2018 000003 one instance new appointment paperwork 14 may 2018 000007 two instance 11 copy relevant page sasc category clearly marked accompany copy reason forwarded qbcc 12 section 47 3 e 52 rti act 13 prior dealing matter applicant 14 email applicant dated 14 june 2021 15 dated 15 june 2021 16 section 95 1 rti act 17 comports entirely practice superior court see way one example order 2 sheridan dcj inwood v commissioner police 2021 qdc 209 18 section 90 rti act 19 thus actual bias applicant could said bring impartial mind determination issue review eye fair minded lay bystander ebner v official trustee bankruptcy 2000 hca 63 2000 205 clr 337 20 paraphrasing example applicant 10 august 2021 submission referring corrupt conduct 21 prescribed section 113 rti act 22 term public interest refers consideration affecting good order functioning community government affair well citizen mean general public interest consideration one common member substantial segment community distinct matter concern purely private personal interest although recognised public interest consideration may apply benefit individual chris wheeler public interest know important know mean 2006 aiadminlawf 2 2006 48aial forum12 14 23 section 49 rti act 24 section 44 rti act 25 section 47 2 rti act 26 implicit object rti act 27 antony griffith university 2001 6 qar 31 antony 28 phrase could reasonably expected requires decision maker distinguish merely possible andexpectations reasonably based real substantial ground exist b brisbane north regional health authority 1994 qicmr 1 1994 1 qar 279 decision information commissioner analysing equivalent exemption repealedfreedom information act 1992 qld 154 160 jurisdiction similarly interpreted phrase distinct something irrational absurd ridiculous seesmolenski v commissioner police nsw police 2015 nswcatad 21at 34 citingcommissioner police nsw police force v camilleri gd 2012 nswadtap 19at 28 mckinnon v secretary department treasury 2006 hca 45at 61 andattorney general department v cockcroft 1986 fca 35 1986 10 fcr 180at 190 29 schedule 4 part 2 item 1 rti act information commissioner predecessor previously recognised existence public interest consideration favouring disclosure information enhance accountability agency adherence merit equity principle job selection process antonyat 47 30 schedule 4 part 3 item 11 rti act 31 personal information defined insection 12of theinformation privacy act 2009 qld information opinion including information opinion forming part database whether true whether recorded material form individual whose identity apparent reasonably ascertained information opinion definition applies purpose rti act schedule 5 relevant information fall within definition 32 email third party dated 6 may 2021 33 completeness consider related privacy nondisclosure factor stated schedule 4 part 3 item 3 arises balancing view third party lack objection release information alternatively apply third party position mean factor would attract minimal weight balancing public interest insufficient shift balance public interest favour nondisclosure 34 schedule 4 part 3 item 19 rti act 35 noting event similar information concerning employee came considered disclosure rti act employee would fair opportunity put concern release accordance third party consultation requirement stated section 37 89 rti act 36 certainly related public interest harm factor set schedule 4 part 4 section 3 c rti act requires reasonable expectation mere prejudice substantial adverse effect grave weighty significant serious effect management agency agency staff cairn port authority department land cairn shelf co 16 pty ltd third party 1994 qicmr 17 1994 1 qar 663at 150 qbcc rely harm factor given onus bear section 87 rti act therefore strictly necessary address parenthetically interest completeness 37 ie schedule 4 part 4 section 6 rti act 38 byrnes department environment 2006 waicmr 6at 90 107 regard written expression interest position 39 hawck department training industrial relation unreported queensland information commissioner 31 january 1997 38 40 section 87 rti act 41 information position title 42 weight unlike category information attenuated third party general lack objection release sasc reason category b information noted personal information third party others 43 schedule 4 part 3 item 19 rti act 44 implicit example object rti act 45 schedule 4 part 2 item 3 rti act 46 accepting number comprise personal information appear overly sensitive example information kind public interest harm presumed flow release would appear significant sasc information discussed also case person relate third party object disclosure information concerning public employment number seem fall within third party personal sphere attract operation privacy nondisclosure factor schedule 4 part 3 item 3 rti act wrong given third party lack objection disclosure would afford consideration slight weight 47 submission dated 21 july 2021 48 nondisclosure factor prescribed schedule 4 part 3 item 2 rti act prejudice financial affair entity discrete public interest consideration warranting weighting balancing noting list public interest consideration set schedule 4 exhaustive 49 submission dated 10 august 2021 50 particularly identified footnote48 51 section 130 rti act recent discussion principle applicable sufficiency search nonexistent document case seev45 queensland police service 2021 qicmr 30 16 june 2021 v45 52 submission dated 17 may 2021 53 submission dated 15 june 2021 54 documentary evidence meeting applicant obtained understand way earlier rti access application linked submission 55 latter narrower application therefore comprises subject decision review ultimately external review 56 2018 01 25 email qbcc agency 2018 03 12 letter third party qbcc 2018 03 13 email qbcc third party 57 indeed even term access application originally framed none meeting concerning establishment recruitment selection position 58 paragraph 65 59 noting obligation borne applicant give sufficient information concerning document enable responsible officer agency minister identify document section 24 2 b therti act 60 robbins brisbane north regional health authority 1994 qicmr 19 1994 2 qar 30 17 61 narrowed consultation qbcc 62 section 47 3 e 52 rti act recent discussion principle relevant application provision seev45 63 submission dated 10 august 2021 contention understand based pdf document property metadata disclose author decision signatory 64 see also applicant 15 june 2021 submission 65 see particularly paragraph 33 applicant 15 june 2021 submission 66 certainly consider whether qbcc establish ed lawful recruitment selection third party executive position qbcc applicant 15 june 2021 submission paragraph 34 67 see footnote21 68 v45at 17 69 second matter already touched see paragraph54 70 e g microsoft word 71 e g adobe pdf program 72 settled

Tumur v Minister for Immigration [2016] FCCA 2500 (28 September 2016).txt

tumur v minister immigration 2016 fcca 2500 28 september 2016 last updated 4 october 2016federal circuit court australiatumur v minister immigration 2016 fcca 2500catchwords migration review decision delegate minister refusal waive condition visa interlocutory dismissal show cause application arguable case jurisdictional error legislation federal circuit court rule 2001 cth migration act 1958 cth 41migration regulation 1994 cth case cited ahmed v minister immigration 2015 fca 812salazar v minister immigration 2001 fca 899applicant zorigt tumurfirst respondent minister immigration border protectionfile number syg 876 2016judgment judge driverhearing date 28 september 2016delivered sydneydelivered 28 september 2016representationthe applicant appeared personsolicitors respondent m wong mill oakleyinterlocutory order 1 pursuant rule 44 12 1 thefederal circuit court rule 2001 cth application dismissed 2 applicant pay respondent cost disbursement incidental application sum 3 606 accordance rule 44 15 1 item 2 division 1 part 3 thefederal circuit court rule 2001 cth federal circuit courtof australiaat sydneysyg 876 2016zorigt tumurapplicantandminister immigration border protectionrespondentreasons judgment revised transcript applicant mr tumur came australia student 2013 wife zoljartal khisgee also student country mr tumur visa attached condition 8534 prevented applying additional visa appears condition imposed pursuant regulation made unders 41 2 themigration act 1958 cth condition 8534 state holder visa entering australia entitled granted substantive visa protection visa temporary visa specified kind remaining australia mr tumur student visa expired december 2013 remained australia unlawful non citizen 30 july 2015 granted bridging visa b remains effect mr tumur unsuccessfully sought another kind visa currently relevant following failure application reunited wife consequence change mr tumur twice sought waiver condition visa waiver request detailed minister outline submission filed 19 september 2016 waiver requestson 18 december 2015 mr tumur lodged request waive condition 8534 first waiver request stating wished lodge visa application dependent wife student visa 1 first waiver request refused 4 january 2016 basis mr tumur circumstance sufficiently forceful waive condition 8534 2 15 march 2016 mr tumur lodged another request waive condition 8534 second waiver request wished remain australia partner student visa holder 3 mr tumur wife two child together reside mongolia mr tumur stated intended rebuild relationship reunite family onshore 4 delegate decisionon 18 march 2016 delegate refused second waiver request delegate provided brief reason decision although obligation delegate produce reason decision made underregulation 2 05 4 5 delegate found claim support second waiver request substantially different fear claim relating first request 6 present proceedingsthese proceeding began show cause application filed 13 april 2016 two ground application 1 decision department wrong request misunderstood compelling compassionate circumstance officer failed understand compelling circumstance 2 officer referred new application circumstance substantially different first request finding wrong officer failed show two request substantially different first ground bear initial departmental decision subject proceeding second ground bear directly decision subject review application supported short affidavit filed received also evidence court book filed 30 may 2016 minister mr tumur made written submission advance today hearing also received oral submission mr tumur wife m khisgee mr tumur m khisgee oral submission explained circumstance m khisgee completed accounting study earlier year july year commenced four year course human relation business college granted student visa valid 2020 m khisgee cogently explained mr tumur required return mongolia able complete study depends upon financial emotional support circumstance might support third application mr tumur waiver condition visa however circumstance developed delegate decision review delegate obligation give reason decision follows view second ground application could succeed unless mr tumur able demonstrate decision made delegate open material plainly decision open mr tumur circumstance materially changed first second request changed mr tumur able produce additional supportive material form letter wife social worker report follows find delegate decision material change circumstance demonstrated open material question presence absence compelling compassionate circumstance focus second delegate decision need additional requirement imposed byregulation 2 05 4 b themigration regulation 1994 cth relevantly mr tumur required satisfy minister circumstance time second request substantially different considered previously delegate found decision plainly open otherwise agree minister submission relation applicant ground regulation 2 05 4 relates applicant first attempt apply waiver requires compelling compassionate circumstance developed since applicant granted visa person control resulted major change applicant circumstance regulation 2 05 4 b relates attempt seek waiver provides minister cannot waive condition waiver request already made nothing substance new time second request delegate correctly appliedregulation 2 05 4 b mr tumur second waiver application correctly considered whether satisfied circumstance second waiver application substantially different previously considered appropriate circumstance consideration whether circumstance alleged mr tumur compelling support first waiver request mr tumur stated wished lodged application dependent sic wife continues study financially supporting wife two child support second waiver request mr tumur wife provided short letter stating mr tumur broke decided rebuild family mr tumur supported countenance financial support mr tumur also provided social work assessment report stated mr tumur wife presented relationship issue fear unknown relating mr tumur irregular immigration status critical question whether claim substantially different whether delegate satisfied 7 fair reading delegate refusal letter make clear delegate understood relevant law apply considering second waiver application made mr tumur finding made open evidence material reason gave ground raised mr tumur fail raise arguable case relief claimed order pursuant rule 44 12 1 thefederal circuit court rule 2001 cth federal circuit court rule application dismissed consequence dismissal applicant minister seek order cost accordance court scale mr tumur wish heard cost order applicant pay respondent cost disbursement incidental application sum 3 606 accordance rule 44 15 1 item 2 division 1 part 3 federal circuit court rule certify preceding twenty five 25 paragraph true copy reason judgment judge driverdate 29 september 2016 1 court book cb 1 13 2 cb 14 17 3 cb 18 44 4 cb 20 5 salazar v minister immigration 2001 fca 899at 26 6 cb 49 7 ahmed v minister immigration 2015 fca 812per perram j 18

Lindsay Graham Councillor v Yamatji Barna Baba Maaja Aboriginal Corporation [2001] WAIRComm 3838 (24 September 2001).txt

lindsay graham councillor v yamatji barna baba maaja aboriginal corporation 2001 waircomm 3838 24 september 2001 last updated 5 july 2007100107335western australian industrial relation commissionpartieslindsay graham councillorapplicant v yamatji barna baba maaja aboriginal corporationrespondentcoramcommissioner j f gregordeliveredmonday 24 september 2001file noapplication 1244 2001citation 2001 wairc 03838____________________________________________________________________________resultsettled____________________________________________________________________________orderwhereas 5 july 2001 lindsay graham councillor applied commission order pursuant theindustrial relation act 1979 andwhereas 13 september 2001 commission conducted conciliation proceeding party agreed respondent pay 15 000 00 redundancy applicant without admission liability full final settlement claim therefore pursuant power vested theindustrial relation act 1979 commission hereby order respondent pay applicant 15 000 00 redundancy le amount payable commissioner taxation pursuant theincome tax assessment act 1936and actually paid without admission liability full final settlement claim commissioner j f gregor

Medical Board of Australia v Dansie [2023] QCAT 163 (19 July 2023).txt

medical board australia v dansie 2023 qcat 163 19 july 2023 last updated 19 july 2023 2023 qcat 163queensland civil administrative tribunalrobertson judicial memberassisted m ashcroftdr cavanaghdr quinnno ocr 250 2022medical board australia applicantvdansie benjamin respondentbrisbanetuesday 11 april 2023 judgmentjudicial member medical board australia board referred matter tribunal section 193 thehealth practitioner national law queensland national law 21stof september 2022 annexure referral amended filed 1stof november 2022 hearing today proceeds basis party filed statement agreed fact 1 joint submission disciplinary finding sanction factual issue dispute matter proceeds today paper backgroundthe respondent registered medical practitioner completed bachelor medicine bachelor surgery 2017 practiced optometrist 2008 2018 acquired degree optometry qut relevant time employed queensland health principal house officer ophthalmology royal brisbane woman hospital hospital common ground prior conduct subject referral respondent struggled anxiety reduced mood sleep deprivation slight tremor issue relates part breakdown long term relationship 2019 stressor referred material say seek professional help felt embarrassed felt might affect career aspiration consulting psychiatrist dr bassett provided report ahpra confirms respondent suffering major depressive disorder anxiety appropriately treated presently working locum registrar doctor stationed royaldarwin hospital relevant conductinstead seeking professional assistance health issue respondent forged filled number prescription name another doctor hospital neither knew action consented 28thof march 2019 12thof september 2019 presented four forged prescription obtain drug designed self treat health condition included diazepam schedule 4 restricted drug tapentadol schedule 8 control drug conduct contravened relevant provision thehealth drug poison regulation 1996 qld regulation however conduct brought behaviour light occurred 29thof december 2019 presented another forged prescription propranolol diazepam led pharmacist becoming suspicious contacting doctor alleged writer prescription consequence respondent interviewed employer made admission consulted general practitioner 3rdof january 2020 commenced antidepressant medication subject mental health plan 9thof december 2020 pleaded guilty one count forgery one count uttering cairn magistrate court fined 600 conviction recorded previous subsequent criminal history disciplinary matter also accepts notifying board court appearance 9th september 2020 15 day later contravened section 131 national law requires notice relevant act within seven day admitted conduct relation prescription bound individual count forgery uttering charged multiple count respect transaction transaction involved breach various provision regulation breach criminal code admitted conduct contravenes number provision good medical practice code conduct australia code conduct australia doctor code conduct provision admissible proceeding evidence constitutes appropriate professional conduct health practitioner almost invariably tribunal equivalent tribunal state conduct kind held constitute professional misconduct defined section 5 national law respondent agrees conduct amount professional misconduct tribunal find applicant proved respondent engaged professional misconduct sanctionthe relevant principle well known convenient summary set recently judicial member mcgill sc inmedical board australia v nguyen 2021 qcat 346 18 imposing sanction health safety public paramount disciplinary proceeding protective punitive nature relevant consideration include general personal general deterrence maintenance professional standard maintenance public confidence insight remorse part respondent also relevant matter fitness practise respondent time hearing respondent acting treat genuine medical condition suggestion acted otherwise immediately conduct came light made admission remorseful obtained medical treatment another medical practitioner also seen psychiatrist psychologist continued working clearly fit practice cooperated employer police court board resolving proceeding undertaken relevant education course number positive reference including one mother father undoubtedly conduct medical practitioner forging uttering prescription medication extremely serious principle general deterrence important case personal deterrence little relevance step taken address underlying cause conduct party reached agreement appropriate disciplinary response tribunal depart agreement unless order imposed namely reprimand 5000 fine fall outside permissible range sanction conduct case referred joint submission particularly ofhealth ombudsman v white 2019 qcat 36andhealth ombudsman v nlm 2018 qcat 164clearly demonstrate agreed sanction well within permissible range tribunal make following finding order pursuant 196 1 b iii national law respondent behaved way constitutes professional misconduct pursuant 196 2 national law respondent reprimanded pursuant 196 2 c national law respondent pay fine 5 000 00 applicant party bear cost adjourn 1 hearing brief hb pp 24 29

Chinese Medicine Board of Australia v Ghaffurian (No 2) (Occupational and Business Regulation) [2012] VCAT 1944 (20 December 2012).txt

chinese medicine board australia v ghaffurian 2 occupational business regulation 2012 vcat 1944 20 december 2012 last updated 31 december 2012victorian civil administrative tribunaladministrative divisionoccupational business regulation listvcat reference b178 2011catchwordshealth profession registration act2005 77 person registered chinese medicine practitioner previous finding professional misconduct unprofessional conduct based excessive unnecessary incompetent clinically unjustified treatment misleading representation causing unreasonable expectation beneficial treatment failure obtain informed consent failure make keep adequate patient record repeatedly breaching guideline practise chinese herbal medicine advertising created unreasonable expectation beneficial treatment advertising using testimonial making inaccurate false representation investigator question appropriate determination applicantchinese medicine board australiarespondentreza ghaffurianwhere heldmelbournebeforesenior member proctormembers l cali x guhearing typehearingdate hearing20 november 2012date order reasons20 december 2012citationchinese medicine board australia v ghaffurian 2 occupational business regulation 2012 vcat 1944ordershaving conducted hearing allegation referred tribunal 17 april 2012 found section 77 1 health profession registration act 2005 hpr act respondent engaged professional misconduct unprofessional conduct defined section 3 1 hpr act tribunal make following determination section 77 4 hpr act respondent registration chinese medicine practitioner division acupuncture chinese herbal medicine cancelled respondent disqualified applying registration chinese medicine practitioner period three year date order respondent reprimanded respondent fined 8 000 payable chinese medicine board australia 31 march 2013 ian proctorsenior memberpresiding memberappearances applicantdr freckelton sc instructed dla piperfor respondentmr clements instructed hwl ebsworthreasonsintroductionin june 2002 mr reza ghaffurian registered thechinese medicine registration act2000 chinese medicine practitioner division acupuncture chinese herbal medicine 1 july 2007 chinese medicine profession became regulated thehealth profession registration act2005 hpr act mr ghaffurian registration continued hpr act december 2010 patient mr ghaffurian notifier notified chinese medicine registration board victoria vic board treatment mr ghaffurian provided vic board investigated march 2011 suspended mr ghaffurian registration october 2011 section 59 2 g hpr act vic board made referral victorian civil administrative tribunal vcat hearing vcat held hearing 6 7 8 february 2012 17 april 2012 found mr ghaffurian engaged professional misconduct unprofessional conduct vcat published finding reason chinese medicine registration board victoria v ghaffurian occupational business regulation 2012 vcat 478 vcat scheduled hearing hear submission jurisdiction make determination appropriate determination however march 2012 mr ghaffurian suffered serious stroke delaying hearing 20 november 2012 1 july 2012 national law came force applicant identity changed chinese medicine board australia 20 november hearing mr clements submitted given lacuna gap hpr act vcat power make determination concerning mr ghaffurian dr freckleton made contrary submission first deal preliminary issue vcat jurisdiction determination proceedingwhere question law arises vcat proceeding panel question decided presiding legal member tribunal case senior member proctor common ground 14 december 2010 vic board received notification concerning mr ghaffurian conduct hpr act still force vic board commenced dealing notification act b 1 july 2012 hpr actwas repealed vic board abolished health profession chinese medicine governed thehealth practitioner regulation national law national law c section 289 2 b national law notification concerning mr ghaffurian conduct dealt hpr act vcat proceeding may dealt hpr act repealed vcat dealt proceeding date therefore health practitioner registered health practitioner vcat may impose one determination provided 77 4 hpr act however mr clements submitted neither suspension cancellation available determination case mr ghaffurian registration suspended since 24 march 2011 therefore registration vcat suspend cancel submits 24 march 2011 vic board suspended mr ghaffurian registration section 40 hpr act suspended ever since b section 40 3 hpr act registration remain suspended investigation hearing matter completed relevant board opinion serious risk health safety public endangered result respondent practising health practitioner ii suspension otherwise revoked c neither vic board national board reached opinion referred sub paragraph otherwise revoked suspension registration section 35 hpr act health practitioner whose registration suspended treated registered period suspension e outcome altered section 3 2 b hpr act see contrary submission nothing language section either state effect purpose proceeding part 3 part 4 act health practitioner whose registration suspended treated registration suspended f vcat must deal matter hpr acthad repealed follows since suspension mr ghaffurian registration 4 march 2011 treated registered ii therefore registration suspend cancel iii therefore vcat power impose determination suspension cancellation iv vcat also power impose determination disqualification applying registration specified period time pursuant s77 4 hpr act determination imposed tribunal first cancelled registration health practitioner reject submission section 77 4 hpr act provides vcat power make determination including reprimand cancel registration disqualify applying registration specified time say 77 determination vcat 4 vcat may make one following determination respect health practitioner c reprimand health practitioner f impose fine health practitioner 50 000 paid responsible board h cancel registration health practitioner disqualify health practitioner applying registration section 4 within specified period health practitioner registration cancelled tribunal health practitioner registration authority another state territory commonwealth new zealand agree dr freckleton submission following part modelled mr ghaffurian suspended registration act lasted 30 june 2012 note printout ahpra website www ahpra gov au provided cover affidavit solicitor acting board provided hearing evidence ongoing registration 30 june 2012 available hearing 1 july 2012 national law place section 289 2 b law proceeding heard decided hpr act still force mr ghaffurian registration status 1 july 2012 determined transitional provision part 12 national law section 269 national law say 1 section applies person immediately participation day participating jurisdiction held general registration however described health profession law jurisdiction 2 participation day person taken hold general registration law health profession 3 sectiongeneral registrationincludes full registration unconditional registration registration without condition b enrolment unconditional enrolment enrolment without condition mr ghaffurian held general registration purpose part 3 part 4of hpr act immediately participation day 30 june2012 general registration therefore capable transition pursuant tos269 national law 1 july 2012 status consolidated virtue following provision apply similar restraint mr ghaffurian registration pursuant national law existed prior transition section 290 national law provides practitioner suspended immediately participation day taken suspended national law b section 207 national law provides effect suspension person taken registered thenational law purpose part 8 deal health performance conduct practitioner section 35 hpr act purpose act mr ghaffurian whose registration suspended treated registered period registration however s3 2 b hpr act say reference registered health practitioner relation matter proceeding referred part 3 investigation panel hearing 4 proceeding review vcat taken include reference person ceased longer registered health practitioner whose registration cancelled suspended section 35of theinterpretation legislation act1984

LINX Cargo Care Pty Ltd [2021] FWCA 2977 (28 June 2021).txt

linx cargo care pty ltd 2021 fwca 2977 28 june 2021 last updated 16 july 2021 2021 fwca 2977fair work commissiondecisionfair work act 2009s 225 application termination enterprise agreement nominal expiry datelinx cargo care pty ltd ag2021 5115 linx west logistics enterprise agreement 2017road transport industrydeputy president beaumontperth 28 june 2021application termination linx west logistics enterprise agreement 2017 1 decision concern application made linx cargo care pty ltd theapplicant 13 may 2021 termination thelinx west logistics enterprise agreement 2017 theagreement 1 made unders 225of thefair work act 2009 theact 2 section act allows employer apply commission termination agreement passed nominal expiry date 3 section 226of act set detail consideration commission dealing application fwc must terminate enterprise agreementif application termination enterprise agreement made undersection 225 fwc must terminate agreement fwc satisfied contrary public interest b fwc considers appropriate terminate agreement taking account circumstance including view employee employer employee organisation covered agreement ii circumstance employee employer organisation including likely effect termination 4 support application applicant provided statutory declaration m sinead bryson human resource industrial relation business partner applicant 5 m bryson explains agreement nominal expiry date 30 june 2019 employee covered agreement intention applicant utilise agreement future work previously performed agreement longer required performed 6 transport worker union theunion invited provide view application union opposed application consideration 7 satisfied termination agreement contrary public interest circumstance case appropriate terminate agreement 8 view employer considered accept m bryson statement declaration employee covered agreement union challenged point 9 accordingly theagreementis terminated pursuant tos 227of act termination take effect date decision deputy president 1 ae427017 printed authority commonwealth government printer ae511586 pr730122

The Village At West End [2006] QBCCMCmr 159 (29 March 2006).txt

village west end 2006 qbccmcmr 159 29 march 2006 last updated 19 july 2006reference 0013 2006order adjudicatormade part 9 chapter 6body corporate community management act 1997number scheme 28712name scheme village west endaddress scheme 30 50 mollison street south brisbane qd 4101take notice pursuant application made abovementioned act byreiko macindoe co owner lot 61i hereby orderthat application reverse body corporate decision refuse permission applicant keep dog within lot dismissed orderthat applicant reiko macindoe shall within 1 month date order remove dog lot keep permanently removed lot orderthat order shall preclude applicant making application body corporate approval keep dog within lot dog barking problem resolved provided however applicant shall return dog lot unless first obtained approval statement adjudicator reason decision ref 0013 2006 village west end ct 28712order soughtthe applicant sought order adjudicator thebody corporate community management act 1997 act follows reverse decision body corporate approval keep dog jurisdictionthe application evidence dispute owner lot included community title scheme body corporate scheme section 227 1 b act section 276 1 act provides adjudicator may make order equitable circumstance including declaratory order resolve dispute context community title scheme claimed anticipated contravention act community management statement b exercise right power performance duty act community management statement c claimed anticipated contractual matter engagement person body corporate manager service contractor community title scheme ii authorisation person letting agent community title scheme order may require person act prohibit person acting way stated order section 276 2 adjudicator order may contain ancillary consequential provision adjudicator considers necessary appropriate section 284 1 scheme detailsthe village west end community title scheme comprising 68 lot common property scheme established upon registration building format plan 19 october 2000 scheme regulated thebody corporate community management accommodation module regulation 1997 accommodation module backgroundthe applicant purchased lot september 2003 28 october 2005 applicant husband applied body corporate permission keep small dog lot body corporate considered application annual general meeting held 7 december 2005 motion defeated meeting body corporate gave permission two lot owner keep cat within lot subject certain condition body corporate subsequently advised applicant remove dog lot 31 january 2006 1 february 2006 conducted teleconference applicant body corporate manager subsequently body corporate committee agreed order maintain status quo dog would permitted remain applicant lot order made relation application owner scheme body corporate committee invited respond application twenty seven submission received none supported application applicant exercised right reply document lodged letter owner large dog whose presence scheme authorized adjudicator order dated 10 march 2004 owner supported presence applicant dog within scheme essence majority response owner dog creates nuisance bark dog kept locked inside cage unit day presence dog scheme conducive maintaining maximum rental return large number investor lot scheme presence dog scheme unhygienicin response comment applicant stated dog longer kept cage moved bathroom window adjacent bedroom applicant stated checked rspca also trainer bark buster latter attended unit 24 february 2006 address barking issue stated nothing inherently wrong keeping dog manner unit applicant also stated spoken neighbour told heard noise dog applicant reported next door neighbour claimed made one complaint queried whether complaint resident applicant stated provided next door neighbour home telephone number mobile telephone number requested heard barking bark buster trainer completed session dog please call applicant stated contact next door neighbour determinationthe body corporate empowered make law provide amongst thing regulation including condition applying use enjoyment lot included scheme act s169 1 b law contained community management statement binding owner occupier lot included scheme act s59 law 14 make following provision relation keeping animal subject act occupier lot shall without written consent body corporate bring keep animal lot common property permit invitee bring keep animal lot common property circumstance shall animal weighing 7 5 kg brought kept lot common property general rule adjudicator order compliance law unless evidence either acquiescence discrimination part body corporate acquiescence occurs body corporate aware presence animal scheme fails prolonged period take step animal removed thereby causing owner animal assume implied approval animal presence basis exception would harsh inequitable owner remove animal allowed keep long period time discrimination occurs body corporate allows one owner animal within scheme refuse similar request another owner without logical reasonable basis differing decision discrimination also occur body corporate seek order one owner keeping animal owner also keeping animal logical reasonable basis action basis exception body corporate must treat owner occupier equally regarding enforcement law scheme one large dog authorised order adjudicator 10 march 2004 adjudicator determined body corporate acquiesced presence dog adjudicator provided comprehensive reason decision see application 0641 2004 annual general meeting held 7 december 2005 owner voted favour allowing two lot owner keep cat within respective lot certain condition however grant permission applicant keep dog within lot although decision would appear discriminatory evident submission dog caused nuisance barking particularly left alone lot next door neighbour unit 18 written resident manager four separate occasion complain dog barking recent occasion 16 march 2006 documented episode barking occurred 4 november 2005 1 1 2 hour 20 december 2005 morning 30 january 2006 45 minute 4 march 2006 3 hour 6 march 2006 approximately 15 minute 5 30am although applicant attempted address barking problem engaging bark buster assist modifying dog behaviour appears attempt unsuccessful provided evidence dog presence applicant lot unhygienic caused infestation flea common property addition small dog would need ever walk common property could quite easily carried outside enable exercised council provided park along public footpath furthermore applicant advised longer keep dog caged day therefore disregarded matter arriving decision however dog barking problem satisfied caused nuisance occupier unit 18 basis regard decision owner refuse permission applicant keep dog discriminatory therefore dismissed application allowed applicant period 1 month date order permanently remove dog scheme however also made provision possible return dog body corporate give consent future time event dog barking problem resolved noted however law 14 present form contemplates keeping animal body corporate consent weight limit 7 5 kg appears owner may aware one owner stated purchased lot basis pet allowed scheme whilst another stated applicant advised restriction owning pet purchasing therefore purchased somewhere could keep animal course another owner correctly pointed applicant sought body corporate approval purchased dog anxiety caused current application could avoided finally consensus amongst owner dog allowed circumstance cat weighing 7 5 kg may allowed body corporate consent subject appropriate condition imposed motion 12 annual general meeting law 14 amended state position unequivocally confusion prospective owner future

Kristian Holdings Pty Ltd v Frankston CC [2016] VCAT 1993 (18 November 2016).txt

kristian holding pty ltd v frankston cc 2016 vcat 1993 18 november 2016 last updated 28 november 2016victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p801 2016permit application 313 2015 pcatchwordssection 77 planning environment act 1987 frankston planning scheme general residential zone schedule 1 design development overlay schedule 6 bushfire management overlay neighbourhood character sustainable design energy efficiency integration street building height site coverage safety landscaping overlooking accessibility dwelling entry daylight new window private open space solar access open space design detail overdevelopment car parkingapplicantkristian holding pty ltdreferral authoritycountry fire authority vicroadsrespondentscountry fire authorityresponsible authorityfrankston city councilsubject land18 nepean highway seafordwhere heldmelbournebeforealison slattery memberhearing typehearingdate hearing3 october 2016date order18 november 2016citationkristian holding pty ltd v frankston cc 2016 vcat 1993orderthe decision responsible authority relation permit application 313 2015 p set aside pursuant tosection 85 1 b ii theplanning environmentact 1987

Froomkin, A. Michael --- "ICANN and the domain name system after the 'Affirmation of Commitments'" [2013] ELECD 518; in Brown, Ian (ed), "Research Handbook on Governance of the Internet" (Edward Elgar Publishing, 2013) 27.txt

froomkin michael icann domain name system affirmation commitment 2013 elecd 518 brown ian ed research handbook governance internet edward elgar publishing 2013 27book title research handbook governance interneteditor brown ianpublisher edward elgar publishingisbn hard cover 9781849805025section chapter 2section title icann domain name system affirmation commitment author froomkin michaelnumber page 25abstract description september 30 2009 united state department commerce doc internet corporation assigned name number icann signed affirmation commitment u department commerce icann 2009 purport recast public private relationship heart management domain name system dns icann trumpeted document culmination move public private control dns one icann said completes transition started 11 year ago place beyond doubt icann model best equipped coordinate dns icann 2009c doc treated major milestone u national telecommunication information administration 2009b fact affirmation significant significance political legal legal matter doc allowed one main agreement icann lapse thus surrendering formal visible legal control doc icann doc gave reversionary interest contract icann third party doc right require icann assign contract someone else doc ever lose faith icann

Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161 (26 May 2014).txt

nursing midwifery board australia v tainton 2014 qcat 161 26 may 2014 last updated 20 june 2014citation nursing midwifery board australia v tainton 2014 qcat 161parties nursing midwifery board australia applicant vamanda tainton respondent application number ocr089 13matter type occupational regulation mattershearing date papersheard brisbanedecision hon jb thomas judicial member assisted dr allen barnard m mary barnett mr graeme lawrencedelivered 26 may 2014delivered brisbaneorders made recorded respondent practitioner behaved way constitutes professional misconduct respondent reprimanded respondent disqualified applying registration registered nurse period three month date order respondent shall pay board cost proceeding limited 1 000 catchword profession trade health care professional nurse disciplinary proceeding registrant engaged low key improper relationship prisoner registrant admitted professional misconduct voluntarily surrendered registration two year hearing board seek impose condition future registration whether beyond power tribunal make order registration subsistingprocedure cost maximum cost order capped cost generally registrant voluntarily surrendered registration registrant co operated completely full cost order would onerous whether cost payable registrant limitedhealth practitioner disciplinary proceeding act1999s 398c 1 398k 398lhealth practitioner regulation national law act2009 schedule 193 196 1 196 2 hccc v karja 2012 nswnmt 11nursing midwifery board australia v fankhauser 2013 qcat 39pharmacy board australia v arulogun 2013 qcat 685psychology board australia v dall 2011 qcat 608appearances representation applicant mcinnes wilson lawyersrespondent g j rebetzke counsel instructed hallpayne lawyersthis matter heard determined paper pursuant tos 32of thequeensland civil administrative tribunal act2009

AIG Australia Ltd v Jaques (No 2) [2015] VSCA 3 (6 February 2015).txt

aig australia ltd v jaques 2 2015 vsca 3 6 february 2015 last updated 6 february 2015supreme court victoriacourt appeal apci 2014 0072aig australia limited acn 004 727 753 appellantvkim samuel jaquesrespondent judge warren cj neave jawhere held melbournedate hearing 16 december 2014date judgment 6 february 2015medium neutral citation aig australia ltd v jaques 2 2015 vsca 3judgment appealed 2014 vsc 269 cost cost appeal stay application indemnity cost discretion appeal court offer compromise made prior trial cost trial awarded indemnity basis commencement trial appeal dismissed cost awarded standard basis lower murray urban rural water corporation v di masi belbin marciano 2 2014 vsca 133applied appearance counselsolicitorsfor appellantmr e gisondalander rogers lawyersfor respondentmr blakemanmillens pty ltdwarren cjneave ja 1 16 december 2014 court appeal dismissed appellant appeal background proceeding set court reason judgment 1 time judgment delivered respondent made oral application appellant pay cost appeal application seeking stay trial judge order pending hearing determination appeal indemnity basis 2 time judgment delivered two member bench present party consented application decided two judge hearing submission party question cost court refused application indicated would publish reason later time 3 turn question nature cost awarded appellant respondent sought order cost indemnity basis exercise court discretion r 63 31 rule appellant resisted application indemnity cost contending required pay cost standard basis 4 respondent put two submission support application first relied fact judge trial awarded cost indemnity basis basis calderbank offer made prior trial calderbank offer expired 10 00 morning commencement trial offered settle proceeding term favourable appellant judgment respondent obtained basis offer judge awarded cost respondent indemnity basis time commencement trial 2 respondent submitted cost appeal also awarded indemnity basis ensure benefit obtained result trial judge order undermined additional cost incurred meeting appeal 5 secondly submitted degree unreasonableness appellant rejection offer compromise trial subsequent decision pursue matter appeal basis supported application relied affidavit material court suggested respondent difficulty funding defence associated proceeding federal court circumstance said make unreasonable appellant reject offer would otherwise 6 appellant submitted offer compromise trial insufficient warrant order cost appeal indemnity basis submitted far existence calderbank offer relevant appeal fall considered reference matter hazeldene chicken farm pty ltd v victorian workcover authority 2 3 matter considered apparent offer compromise engage ground appeal prospect success appeal indeed could since appeal commenced time decision whether accept reject offer called 7 appellant submitted even unsuccessful resisting order indemnity cost appeal indemnity cost awarded respect stay application application heard 24 july 2014 subsequently adjourned hearing appeal hearing appeal senior counsel respondent object granting stay time judgment appellant submitted circumstance court decline exercise discretion make special order respect application analysis8 court taken decision lower murray urban rural water corporation v di masi belbin marciano 2 4 court appeal held

BARNDEN -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 161 (1 September 2014).txt

barnden v state western australia 2014 wasca 161 1 september 2014 last updated 1 september 2014jurisdiction supreme court western australiatitle court court appeal wa citation barnden v state western australia 2014 wasca 161coram martin cjbuss jamazza jaheard 13 june 2014delivered 1 september 2014file cacr 192 2013between kim ryan barndenappellantandthe state western australiarespondenton appeal jurisdiction district court western australiacoram goetze dcjfile ind esp 8 2013catchwords criminal law appeal sentence parity principle turn factslegislation criminal code wa 378 392road traffic act 1974 wa 49 1 49 3 60 1 result application extension time appeal dismissedappeal dismissedcategory brepresentation counsel appellant mr b hanburyrespondent m c longdensolicitors appellant evangel legalrespondent director public prosecution wa case referred judgment billing v state western australia 2 2008 wasca 11green v queen 2011 hca 49 2011 244 clr 462jardim v state western australia 2011 wasca 83lowe v queen 1984 hca 46 1984 154 clr 606postiglione v queen 1997 hca 26 1997 189 clr 295r v taudevin 1996 2 vr 4021martin cj application extension time within appeal dismissed reason given bus ja agree 2buss ja application extension time appeal sentence 3 5 august 2013 appellant convicted plea guilty district court goetze dcj eight count indictment two offence notice unders 32of thesentencing act 1995 wa 4 primary judge imposed individual sentence immediate imprisonment count indictment follows countoffencemaximum sentencesentence imposed 1 aggravated robbery 392code20 year imprisonment12 month cumulative 2 stealing 378code7 year imprisonment3 month concurrent 3 stealing 378code7 year imprisonment3 month concurrent 4 stealing 378code7 year imprisonment3 month concurrent 5 stealing 378code7 year imprisonment3 month concurrent 6 stealing 378code7 year imprisonment3 month concurrent 7 stealing 378code7 year imprisonment3 month concurrent 8 aggravated robbery 392code20 year imprisonment20 month cumulative5 honour also imposed individualterms immediate imprisonment charge thes 32notice follows chargeoffencemaximum sentencesentence imposed 1 reckless driving 60 1 road traffic act 1974 wa 9 month imprisonment120 pu finenot le 6 month mdldisq 4 month cumulative 6 month mdl suspension 2 authority drive 49 1 49 3 road traffic act 1974 wa 12 month imprisonment4 30 pu finenot 3 year mdldisq 3 month concurrent6 total effective sentence 3 year immediate imprisonment motor driver licence suspension 6 month parole eligibility order made application extension time7 application extension time supported affidavit appellant solicitor vasilios evangel sworn 28 september 2013 last date appellant file appeal notice 26 august 2013 filed 27 september 2013 15 december 2013 mazza ja referred application extension hearing appeal consider merit sole ground appeal deciding whether extension granted sole ground appeal8 sole ground appeal alleges primary judge erred application parity principle imposing upon appellant total sentence count 1 8 indictment imposed upon co offender 9 15 december 2013 mazza ja granted leave appeal ground fact circumstance offence subject indictment10 offence subject eight count indictment committed 23 september 2012 11 day appellant consumed substantial quantity alcohol three co offender brandon lee peach brody russell clark juvenile wac 12 afternoon 23 september 2012 appellant drove three co offender around esperance common objective find someone suitable rob 13 count 8 first offence committed aggravated robbery victim 30 year old foreign backpacker walking footpath near twilight beach fishing rod equipment appellant stopped motor vehicle driving parked near victim remained vehicle co offender surrounded victim demanded money co offender attempted conceal identity wearing hood sunglass victim refused comply demand punched back head one co offender force blow knocked ground victim sustained minor bruising head neck jumper torn victim bag contained fishing equipment car key multi tool later recovered stolen 14 aggravated robbery subject count 1 occurred later afternoon 23 september 2012 committing count 8 appellant co offender returned house esperance continued drinking alcohol appellant drove three co offender around esperance endeavouring identify someone suitable rob 5 25 pm appellant co offender saw victim 17 year old youth slim build driving esperance followed home victim 16 year old brother alight vehicle co offender surrounded demanded money asserted victim owed friend 100 would assaulted pay victim attempted retain wallet mobile telephone wrestled grasp co offender commission offence appellant remained driver seat vehicle co offender returned vehicle appellant drove away victim home victim wallet mobile telephone recovered 15 later day 6 30 pm 11 00 pm appellant co offender committed count 2 7 went caravan park number occasion stole camping equipment personal item six different victim holidaying caravan park stolen property recovered fact circumstance offence subject thes 32notice16 appellant committed offence subject thes 32notice 23 september 2012 offending subject indictment 17 appellant drove motor vehicle used commission count indictment along road castletown co offender relation count indictment passenger mentioned appellant co offender drinking alcohol throughout day appellant accelerated heavily wheel vehicle lost traction emitted smoke made loud screeching sound observed police activated emergency light vehicle attempted stop appellant refused stop accelerated appellant attempted evade police driving high speed making sharp right turn without indication braked heavily police vehicle collided rear vehicle appellant ran away vehicle rolled hill co offender inside vehicle stopped 50 hill attempt locate appellant unsuccessful next morning attended esperance police station made full admission time driving motor driver licence knowledge suspended non payment fine primary judge sentencing remarks18 primary judge recounted sentencing remark fact circumstance offending 19 honour also noted appellant personal circumstance antecedent 20 appellant born 8 september 1991 aged 21 time offending sentenced 21 appellant dysfunctional upbringing left school end year 9 result association anti social peer experimentation illicit substance however credit later completed year 10 appellant employed occasionally unskilled occupation relied primarily centrelink benefit income expressed interest working indigenous child remote community 22 appellant long history drug alcohol abuse commenced using methylamphetamine age 14 also used cannabis ecstasy heroin 23 14 july 2009 22 september 2009 5 february 2010 15 december 2011 appellant participated intensive residential rehabilitation programme teen challenge grace academy esperance appellant told m romana lee clinical psychologist prepared report dated 16 july 2013 primary judge interval two period horrible confusing time commenced ingesting oxycontin relapsed amphetamine use recently used alcohol excess avoid abuse illicit drug 24 m lee offered following comment report appellant offending although may appear appellant lack ability transfer learning two rehabilitation stint teen challenge likely lack emotional maturity need acceptance poor sense self lack support absence pro social activity positive peer well limited emotional coping make difficult appellant cope daily life without form substance use self medicate given lack constructive activity boredom lack purpose life led hanging around antisocial peer group drinking alcohol around time offence appellant would benefit exploring opportunity traineeship employment training constructively occupied opportunity gainfully employed would increase limited protective factor additional self improvement activity gaining valid motor driver licence may also increase protective factor well increasing chance gainfully employed andgiven lack support family independent housing appellant would benefit assistance secure supportive accommodation stable living condition 25 appellant suffers anxiety depression immature year termination recent relationship young woman caused grief loss requires psychological treatment 26 primary judge allowed appellant sentencing discount 25 9aa thesentencing actfor plea guilty generous discount guilty plea fast track system first pleaded guilty magistrate court 11 june 2013 eight half month committing offence 27 appellant made substantial admission relation offending video recorded interview police day offence committed 28 honour said appellant shown remorse offending also noted appellant youthful made effort towards rehabilitation attending drug arm january june 2013 29 appellant prior criminal record previous conviction adult comprise assault occasioning bodily harm possessing thing applying graffiti breach bail undertaking offence punished fine 30 primary judge found appellant high risk reoffending 31 author pre sentence report said appellant failed engage max employment psychologist failed attend two scheduled interview connection preparation assessment report author view indicated fluctuating motivation appellant dealing personal issue 32 appellant co offender mr peach mr clark wac sentenced appellant primary judge noted sentence received personal circumstance antecedent referred parity principle 33 honour decided immediate imprisonment sentencing option open circumstance emphasised seriousness offending need personal general deterrence sentencing mr peach34 6 february 2013 scott dcj sentenced mr peach 35 honour imposed individual sentence immediate imprisonment follows count 1 16 month b count 2 7 3 month c count 8 20 month 36 scott dcj ordered sentence count 1 8 served cumulatively sentence count 2 7 served concurrently sentence count 1 8 total effective sentence therefore 3 year immediate imprisonment parole eligibility order made 37 mr peach entered fast track plea guilty honour allowed sentencing discount 25 9aa thesentencing actfor guilty plea 38 mr peach born 4 july 1993 aged 19 time offending sentenced 39 honour recounted fact circumstance offending count 8 honour found one co offender mr peach punched victim back head 40 scott dcj noted mr peach positive upbringing b one prior serious relationship commenced 16 c mr peach suffered low grade depression serious issue alcohol abuse two month period offending drinking every day sometimes early morning associating negative peer group e mr peach left school year 11 employed time time planned return work fishing industry 41 mr peach prior criminal record adult two previous conviction unlawful assault occasioning bodily harm circumstance aggravation one conviction stealing 20 may 2012 mr peach assaulted partner intoxicated september 2012 assaulted person made disparaging reference facebook three previous conviction adult punished fine juvenile mr peach convicted 28 april 2011 one count aggravated robbery committed 23 october 2010 sentenced 4 month detention mr peach sentenced scott dcj offence expunged unders 189 2 theyoung offender act 1994 wa 42 psychological report indicated mr peach moderate risk reoffending abuse reliance alcohol particular concern 43 scott dcj accepted mr peach remorseful offending insight seriousness occurred impact victim sentencing mr clark44 6 february 2013 scott dcj also sentenced mr clark 45 honour imposed individual sentence immediate imprisonment follows count 1 12 month b count 2 7 3 month c count 8 20 month 46 scott dcj ordered sentence count 1 8 served cumulatively sentence count 2 7 served concurrently sentence count 1 8 honour reduced individual sentence count 1 16 month 12 month application totality principle total effective sentence therefore 2 year 8 month immediate imprisonment parole eligibility order made 47 mr clark entered fast track plea guilty honour allowed sentencing discount 25 9aa thesentencing actfor guilty plea 48 mr clark born 10 april 1989 aged 23 time offending sentenced 49 honour recounted fact circumstance offending count 8 honour make finding mr clark punched victim back head 50 scott dcj noted although parent separated 15 16 doubt affected nothing mr clark upbringing relevant offending b commenced using cannabis age 16 alcohol main problem c mr clark left school completing year 11 since irregular employment told author pre sentence report offending question attempted self harm two separate occasion referred esperance community mental health seen youth counsellor 10 19 27 september 2012 4 october 2012 scheduled appointment visiting psychiatrist community drug service team however unable keep appointment remanded custody connection relevant offence 51 mr clark prior criminal record adult previous conviction two offence stealing one offence unlawful damage trespass one offence breaching community based order number offence involving traffic infringement possession prohibited drug previous offending punished fine community based order 52 scott dcj accepted mr clark plea guilty offence question indicated remorse appeared insight offending also appeared minimise involvement 53 honour differentiated mr peach mr clark sentencing outcome mr peach prior conviction involved violence honour view played similar role commission relevant offence sentencing wac54 unnecessary refer sentence imposed wac personal circumstance antecedent hearing appeal counsel appellant expressly disclaimed complaint parity appellant wac appeal t 3 parity principle55 object parity principle ensure appropriate consistency sentencing co offender critical question whether disparity lack disparity sentencing outcome capable giving rise legitimate justifiable sense grievance give appearance mind objective observer justice done seelowe v queen 1984 hca 46 1984 154 clr 606 610 gibbs cj 613 mason j 623 624 dawson j postiglione v queen 1997 hca 26 1997 189 clr 295 301 302 dawson gaudron jj r v taudevin 1996 2 vr 402 404 callaway ja winneke p agreeing applicable test objective subjective application effect relevant sentencing principle must taken account determining whether legitimate justifiable sense grievance seejardim v state western australia 2011 wasca 83 12 13 mclure p pullin ja agreeing 56 appellate court may interfere ground marked unjustifiable disparity ground absence marked justifiable disparity sentencing judge exercise sentencing discretion even though sentence question viewed isolation would necessarily regarded manifestly excessive otherwise open challenge parity sentencing require sentencing judge lenient shock public conscience imposing sentence entirely disproportionate offence question seebilling v state western australia 2 2008 wasca 11 11 12 steytler p mclure ja agreeing 57 recently ingreen v queen 2011 hca 49 2011 244 clr 462 french cj crennan kiefel jj said parity principle based upon norm equality law 28 b equal justice according law requires far law permit like case treated alike 28 c equal justice also requires law permit differential treatment person according difference relevant scope purpose subject matter law 28 58 honour also said appellate court refuse intervene basis parity principle disparity justified difference co offender example difference relation age background criminal history general character part co offender played relevant criminal conduct enterprise 31 59 often said highly desirable co offender sentenced sentencing judge alternatively practicable second sentencing judge fully informed sentence imposed first sentencing judge seelowe 617 622 postiglione 320 60 present case apparent appellant sentenced judge sentenced mr peach mr clark however apparent primary judge fully informed sentence imposed mr peach mr clark appellant submissions61 counsel appellant submitted appellant deserving lesser sentence mr peach mr clark count 1 count 8 total effective sentence following reason appellant remained motor vehicle count 1 8 committed b use actual violence victim count 8 c appellant wish rob people suggested co offender steal caravan park younger mr clark e appellant previously sentenced term imprisonment f personal circumstance antecedent favourable mr peach mr clark merit ground appeal62 persuaded primary judge erred alleged appellant 63 although appellant remained motor vehicle mr peach mr clark wac made demand threatened victim count 1 8 used actual violence victim count 8 appellant role getaway driver central commission offence 64 although appellant may initiated offending directly involved confronting victim level culpability materially le mr peach mr clark appellant facilitated offending driving co offender identified victim stopping vehicle needed waiting offence committed ensuring offender able leave scene quickly threatened actual violence used co offender aggravated robbery probable consequence prosecution unlawful purpose engaged appellant co offender counsel appellant accepted appellant understood would violence degree inflicted victim facilitate stealing money property appeal t 4 65 count 1 8 involved premeditation planning offence committed distance place appellant co offender resided vehicle essential part commission offence 66 mentioned 25 discount given primary judge appellant 9aa thesentencing actwas generous unlike mr peach mr clark appellant enter fast track plea guilty 67 age difference appellant mr peach mr clark significant none previously sentenced adult term imprisonment 68 appellant found high risk reoffending whereas mr peach assessed moderate risk reoffending mr peach prior criminal record worse appellant mr clark appellant mr peach prior offending included violence whereas mr clark previous offence involve violence otherwise personal circumstance andantecedents appellant mr peach mr clark significantly different 69 appellant unlike mr peach mr clark sentenced additional offending namely serious driving offence listed thes 32notice appellant reckless driving consumed alcohol endangered safety passenger police officer demonstrated wanton disregard law authority necessary sentence imprisonment reckless driving charge made cumulative upon sentence count 1 8 order properly mark seriousness appellant overall offending 70 satisfied examining weighing relevant fact circumstance relevant sentencing factor pertaining appellant mr peach mr clark absence disparity appellant perspective sentencing outcome appellant one hand mr peach mr clark infringe parity principle principle equal justice absence disparity appellant perspective sentencing outcome marked unjustified give rise legitimate justifiable sense grievance appellant part give appearance mind objective observer justice done appellant mr peach mr clark generally appellant deserving materially lesser sentence count 1 count 8 materially lesser total effective sentence mr peach mr clark conclusion71 ground appeal without merit would therefore refuse grant extension time appeal application dismissed 72mazza ja agree bus ja

SZSRM v Minister for Immigration and Border Protection [2014] FCA 221 (25 February 2014).txt

szsrm v minister immigration border protection 2014 fca 221 25 february 2014 last updated 14 march 2014federal court australiaszsrm v minister immigration border protection 2014 fca 221citation szsrm v minister immigration border protection 2014 fca 221appeal szsrm v minister immigration 2013 fcca 1613parties szsrm v minister immigration border protection refugee review tribunalfile number nsd 2129 2013judge rares jdate judgment 25 february 2014legislation federal circuit court rules2001 cth migration act 1958 cth case cited bienstein v bienstein 2003 hca 7 2003 195 alr 225appliedjackamarra v krakouer 1998 195 clr 516appliedr vsecretary state home department ex parte mehta 1975 1 wlr 1087 appliedre luck 2003 hca 70 2003 203 alr 1referred toszsrm v minister immigration 2013 fcca 1340referred toszsrm v minister immigration 2013 fcca 1613referred todate hearing 25 february 2014place sydneydivision general divisioncategory catchwordsnumber paragraph 22counsel appellant appellant appeared personsolicitor first respondent australian government solicitorin federal court australianew south wale district registrygeneral divisionnsd 2129 2013on appeal federal circuit court australiabetween szsrmappellantand minister immigration border protectionfirst respondentrefugee review tribunalsecond respondentjudge rares jdate order 25 february 2014where made sydneythe court order appeal dismissed incompetent appellant pay first respondent cost note entry order dealt rule 39 32 thefederal court rule 2011 federal court australianew south wale district registrygeneral divisionnsd 2129 2013on appeal federal circuit court australiabetween szsrmappellantand minister immigration border protectionfirst respondentrefugee review tribunalsecond respondentjudge rares jdate 25 february 2014place sydneyreasons judgment revised transcript proceeding commenced 16 october 2013 appellant filed notice appeal court decision federal circuit court given 25 september 2013 szsrm v minister immigration 2013 fcca 1613 however decision dismissed appellant application case sought proceeding federal circuit court opened failed appear original hearing application constitutional writ relief decision refugee review tribunal given 21 february 2013 earlier 30 august 2013 honour dismissed application r 13 03c 1 c thefederal circuit court rules2001 cth appellant failed appear hearing application szsrm v minister immigration 2013 fcca 1340 appellant filed application case basis sick 30 august 2013 day original hearing time appellant filed notice appeal also filed affidavit dated 16 october 2013 sought extension time basis arguable case tribunal decisionthe appellant citizen republic india tribunal noted spoke understood english well completed master degree first class honour information system university new england appellant made variety claim based political activity student india claimed reason activity member congress party student federation associated feared persecution hand member bjp rival political party organisation claimed brother family member harassed visited received threat concerning claimed father borrowed considerable sum money finance education australia money lender also source threat family debt interest due repaid tribunal found prior filing application protection visa appellant spent 21 000 pursuing attempt first obtain sufficient qualification english support skilled visa application secondly rejection application reviewed migration review tribunal thereafter federal magistrate court court high court noted amount appellant invested endeavour exceeded amount claimed owing money lender india repaid tribunal also noted considerable delay almost seven year arrival australia april 2005 march 2012 appellant made application protection visa tribunal accept appellant credible witness considered evidence neither reliable truthful accordingly accept claim past event india fear would suffer persecution convention reason return india reasonably foreseeable future found basis appellant claim fear persecution satisfied returned india real chance harmed political opinion imputed political opinion convention based reason also found would real chance would risk persecution convention based reason return india foreseeable future would subjected significant harm country tribunal concluded appellant eligible granted protection visa satisfy complementary protection criterion ins 36 2 aa themigration act 1958 cth therefore affirmed minister delegate decision grant protection visa proceeding federal circuit courtas mentioned trial judge dismissed application review seeking constitutional relief tribunal decision 30 august 2013 25 september 2013 considered whether reinstate matter based application case honour found medical certificate appellant relied excusing non attendance unsatisfactory explanation making attempt contact court indicate difficulty trial judge found appellant established condition suffered prevented able travel court participate effectively hearing 30 august 2013 nonetheless honour went consider whether appellant claim relief possible merit determined appellant amended application review federal circuit court raised three ground first two repeated ground appeal court namely tribunal acted without jurisdiction excess jurisdiction failing take account relevant consideration taking account irrelevant one andhad made jurisdictional error based assumption probability failed apply correct test persecution accordance act particular first ground simply boilerplate particular identified obligation tribunal act consider whether appellant met criterion grant protection visa without particularising tribunal either failed take account relevant consideration took account irrelevant one honour noted sought appellant clarify asserted tribunal failed consider able explain clarify assertion trial judge concluded substance ground 1 amended application agree honour reason gave second ground particularised assertion tribunal minister ignored rule procedural fairness made decision without giving consideration danger appellant claimed fear money lender others failed apply correctly test whether appellant well founded fear persecution convention reason particular asserted tribunal formed opinion limited information possible harm ignored independent information misconstrued fact honour found nothing material including tribunal decision record appellant submission support even arguable claim jurisdictional error basis alleged found evidence suggest tribunal misunderstood misapplied criterion grant protection visa complementary protection visa accordingly held substance second ground honour noted submission minister solicitor suggested third possible ground may included way particular second ground framed namely tribunal formed determinative opinion limited information honour said contention effectively attempt seek merit review judicial review proceeding trial judge found correctly permissible rejected argument noted also correctly appellant provided particular information tribunal allegedly ignored primary judge also found appellant given particularisation identification assertion tribunal misconstrued fact concluded correctly opinion assertion raised arguable case jurisdictional error honour also noted affidavit appellant alleged tribunal become biased due misunderstanding evidence honour held nothing material support assertion actual apprehended bias tribunal honour concluded regard matter including appellant explanation non attendance previous occasion satisfied interest justice set aside earlier interlocutory order dismissing proceeding default appearance accordingly honour dismissed application case appealthis morning appellant submitted confident would win appeal needed lawyer argued told tribunal sent back india would killed listened satisfied notice appeal incompetent decision made federal circuit court 30 august 2013 25 september 2013 interlocutory finally decide right party bienstein v bienstein 2003 hca 7 2003 195 alr 225at 230 25 per mchugh kirby callinan jj see luck 2003 hca 70 2003 203 alr 1at 2 4 4 9 per mchugh acj gummow heydon jj first order made following procedural default appellant attended court case heard determined honour merit second decision given interlocutory application made appellant earlier interlocutory order set aside could hearing merit minister properly contended notice appeal treated application leave appeal extension time considering whether grant extension time person file appeal court must bear mind respondent application vested right retain judgment subject proposed appeal accordingly court applies approach taken lord denning mr inr vsecretary state home department ex parte mehta 1975 1 wlr 1087 1091 applied injackamarra v krakouer 1998 195 clr 516at 519 520 3 4 per brennan cj mchugh j 540 541 66 4 per kirby j namely often like know outline case appears case strong merit ought heard fairness party may think proper case allowed proceed extend time accordingly appears flimsy case weak merit may extend time never go much detail merit like know something case deciding whether extend time appellant could forgiven confused distinction interlocutory final order federal circuit court dealing case notice appeal filed 21st day second decision would therefore time appeal right however reason given able discern arguable case appellant could mount either decision honour court suggest jurisdictional error affected decision tribunal heart appellant substantive complaint tribunal simply believe story matter parliament left entirely tribunal considered decision tribunal purpose satisfying unrepresented appellant arguable claim based ground notice appeal court argued honour otherwise comfortably satisfied arguable case conclusionfor reason given appeal must dismissed incompetent certify preceding twenty two 22 numbered paragraph true copy reason judgment herein honourable justice rares associate dated 13 march 2014

Brad James Winmar v Callacabardee Aboriginal Coroporation Inc. (ABN 38664 495 651) and Department of Housing and Works - Government of WA [2004] WAIRComm 13281 (22 October 2004).txt

brad james winmar v callacabardee aboriginal coroporation inc abn 38664 495 651 department housing work government wa 2004 waircomm 13281 22 october 2004 last updated 9 july 2007western australian industrial relation commissionpartiesbrad james winmarapplicant v callacabardee aboriginal coroporation inc department housing worksrespondentcoramsenior commissioner r beechdatethursday 11 november 2004file sappl 252 2003citation 2004 wairc 13281resultapplication dismissed want prosecutionrepresentationapplicantno appearancerespondentsmr r andretich counsel behalf department housing worksno appearance behalf callacabardee aboriginal corporation incorderhaving heard mr r andretich counsel behalf department housing work appearance behalf applicant appearance behalf callacabardee aboriginal corporation inc commission pursuant power conferred theindustrial relation act 1979hereby order application dismissed want prosecution senior commissioner r beech