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Corkill v Victorian WorkCover Authority [2021] VCC 1179 (31 August 2021).txt

corkill v victorian workcover authority 2021 vcc 1179 31 august 2021 last updated 13 september 2021in county court victoriaat melbournecommon law divisionrevisednot restrictedsuitable publicationserious injury listcase ci 19 05579martin john corkillplaintiffvvictorian workcover authoritydefendant judge honour judge missowhere held melbournedate hearing 19 july 2021date judgment 31 august 2021case may cited corkill v victorian workcover authoritymedium neutral citation 2021 vcc 1179reasons judgment subject accident compensationcatchwords damage serious injury injury left shoulder opinion medical panel binding nature opinion opinion plaintiff residual capacity number form suitable employment calculation fairly reflects plaintiff earning capacity injury occurred comparison plaintiff earn exercise residual capacity suitable employment fairly reflects earning capacity injury occurred concession pain suffering consequence serious legislation cited workplace rehabilitation compensation act2013 vic s313 4 b case cited master v mccubbery 1995 vicsc 209 1996 1 vr 635judgment plaintiff leave bring proceeding pain suffering plaintiff application loss earning capacity refused appearance counselsolicitorsfor plaintiffmr cjveticaninmaurice blackburnfor defendantmr r h stanleyidp lawyershis honour introduction1 plaintiff 54 year old man suffered injury principally left shoulder course employment master home improvement 2 commencement final address defendant conceded pain suffering consequence impairment function plaintiff left shoulder serious remaining issue whether loss earning capacity consequence impairment function plaintiff left shoulder serious 3 evidence relied upon plaintiff defendant greatly restricted reason certificate opinion medical panel dated 25 september 2020 1 return issue remain determine shortly 4 mr cvjeticanin counsel appeared plaintiff mr r h stanley counsel appeared defendant background facts5 plaintiff commenced employment master home improvement january 2012 northland store employed department manager responsible trade sale specialist floor staff within trade timber area 27 june 2014 assisting another employee fill order included timber pack cement bag timber beam similar building material course work experienced described dead left arm pain upper back 6 plaintiff reported incident master home improvement safety asset manager took medical practitioner initial diagnosis strained torn muscle plaintiff provided certificate entitling take day work prescribed painkilling medication plaintiff experienced pain number area upper body namely left shoulder left arm upper back neck pain experienced improve 7 plaintiff returned medical practitioner referred ultrasound taken 2 july 2014 referred physiotherapy prescribed medication treat pain eventually able return work christmas 2014 restriction placed treating medical practitioner continued experience pain left shoulder left arm upper back neck additionally experienced headache particularly morning 8 late january 2015 plaintiff suffered serious onset pain left upper limb engaged relatively benign activity wasp bee landed right hand swiped left hand resulted experiencing immediate excruciating pain left upper limb returned treating medical practitioner referred mri scan taken 3 february 2015 advised suffered bad tear left shoulder referred mr shane blackmore orthopaedic surgeon 9 mr blackmore operated plaintiff left shoulder 20 april 2015 surgery found left shoulder impingement partial thickness rotator cuff tear biceps tendinitis acromioclavicular joint osteoarthritis performed arthroscopy performed bursectomy rotator cuff repair sub pectoral biceps tendinitis acromioclavicular joint excision subacromial decompression 2 plaintiff described recovery extremely painful eventually returned work shop floor performing light duty 10 11 november 2015 plaintiff assisting another worker lift carry sleeper result engaging work suffered flareup left shoulder arm pain returned treating medical practitioner referred ultrasound prescribed medication treat pain condition left shoulder arm improve referred mri scan left shoulder work made attempt return work without success defendant sunbury store performing light duty 11 plaintiff referred back mr blackmore performed hydrodilatation plaintiff left shoulder around may 2016 mr blackmore noted plaintiff positive response hydrodilatation regarded disappointing result considered stage plaintiff required manipulation potentially surgery 3 12 mr blackmore performed surgery plaintiff left shoulder 4 july 2016 surgery found left shoulder stiffness partial thickness subscapularis tearing performed left shoulder manipulation anaesthetic synovectomy coracoid osteotomy 4 despite improvement range motion left shoulder plaintiff described persisting pain pin needle left upper limb 13 result concern plaintiff might suffered damage intervertebral disc neck referred mr nicholas hall neurosurgeon plaintiff first saw 19 september 2016 would appear last saw early part 2017 mr hall recorded plaintiff told cold feeling radiating left arm numbness hand referred plaintiff targeted transforaminal nerve root injection gave relief pain led mr hall consider plaintiff pathology c5 6 also referred nerve conduction study demonstrate peripheral neuropathy compressive neuropathy within left arm diagnosed c6 radiculopathy secondary c5 6 foraminal stenosis advised plaintiff undergo c5 6 anterior cervical decompression 5 14 plaintiff return work master home improvement incident occurred 11 november 2015 made redundant company 2 july 2016 15 plaintiff surgery advised mr hall would appear pursued conservative treatment physiotherapy using painkilling medication medical panel disagreed diagnosis made mr hall need surgery seen summary opinion later reason return work16 plaintiff obtained employment snowden development snowden construction manager april 2017 able tolerate duty performed employment quite well physical work work well within range experience skill ability however said time leave work early occasion able go work due pain presumably left shoulder arm neck salary package associated employment handsome one plaintiff paid 135 000 gross per annum together fully maintained car payment petrol provision phone laptop credit card presumably payment expense associated discharge duty employment 17 plaintiff retained employment seventeen month resigned employment 16 august 2018 would appear aggregate need leave work early inability go work occasion due pain led find unable cope pain experiencing left shoulder arm neck also experiencing debilitating migraine headache 18 foregoing summary derived plaintiff three affidavit report treating medical practitioner whilst summary short content sufficient outline occurrence plaintiff injury return work post injury plaintiff defendant agreed question posed consideration medical panel subsequent binding answer need summarise evidence greater detail think become patent turn specifically question medical panel asked answer content answer question medical panel19 series question referred medical panel 25 june 2020 plaintiff defendant agreed answer series question binding court 20 doubt answer binding becauses313 4 b theworkplace injury rehabilitation compensation act2013

Nicky Birkill v Pea in a Pod Pty Ltd [2020] FWC 2027 (28 April 2020).txt

nicky birkill v pea pod pty ltd 2020 fwc 2027 28 april 2020 last updated 25 may 2020 2020 fwc 2027fair work commissiondecisionfair work act 2009s 394 unfair dismissalnicky birkillvpea pod pty ltd u2019 10623 commissioner bissettmelbourne 28 april 2020application unfair dismissal remedy 1 m nicky birkill applicant employed pea pod respondent commenced employment 24 july 2007 employed general manager marketing manager respondent employment terminated 30 august 2019 made application relief unfair dismissal pursuant tos 394of thefair work act 2009 fw act 2 respondent say dismissal applicant genuine redundancy circumstance application dismissed 3 respondent small business owner mr jennifer birkill applicant mother respondent three employee time filing submission mr jenny birkill relationship manager work part time casual retail warehouse assistant 1 respondent also us service number contractor book keeping payroll marketing consultant creative operation manager pattern maker assistant fashion designer 2 background 4 much background matter contention briefly follows 5 around october 2015 discussion involving applicant mother relation ownership respondent business mr noel gibson accountant apparent advisor respondent advised applicant discussion mr jennie birkill confirmed grey street property owned mr birkill sold bank debt security respondent business would extinguished time applicant would appointed director respondent issued 50 share respondent business mr birkill would update bequeath remining 50 shareholding applicant head agreement would drawn succession plan remaining 50 respondent held mr birkill time 3 october proposal 6 february 2016 applicant wrote mr birkill sought information relation october proposal letter applicant acknowledged grey street yet sold also sought discussion mr birkill respect workload indicated could longer work overtime paid 7 20 june 2018 applicant admitted malvern private hospital subsequent worker compensation claim accepted applicant received weekly compensation payment 29 july 2019 applicant return work 20 june 2018 8 part investigation applicant claim worker compensation mr birkill made statement investigator 4 statement mr jenny birkill said applicant history panic anxiety attack prior going work intended demote retrench applicant believed applicant mental health issue basis worker compensation claim due stress respondent person organisation contributed injury 5 9 8 august 2019 applicant telephoned mr birkill discus applicant return work mr birkill respond call 10 10 august 2019 applicant emailed mr birkill advised recent independent medical examination assessment although provided commission indicated could work 12 hour per week spread across 3 day asked indication duty undertake stated would working home 6 applicant followed another email 12 august 2019 7 11 12 august 2019 applicant also sent text message mr birkill said please arrange 12 hour work per week starting week preferably site see thanks much fire sure lengthy chat brett 8 thanks choosing money daughter see 9 12 16 august 2019 applicant sent text message mr birkill said emailed time requesting 9 12 hour work per week able respond lot home website copywriting google analytics reporting research etc still available made redundant either way need answer soon possible thank 10 13 25 august 2019 applicant mr birkill met park east melbourne applicant evidence discussion primarily sorting share issue outlined october proposal 11 14 1 50pm 25 august 2019 applicant sent text message mr birkill said shame mum shame text 6 53pm read may well cancel health insurance able complete therapy wanted get well ashamed 15 following day 26 august 2019 applicant emailed mr birkill indicating yet receive reply status employment advising could work 3 4 hour per day 2 3 day 12 16 8 august 2019 mr gibson sent email mr birkill apparently following discussion read jenny two issue employmentas nicky fulfilled employment duty non attendance pap terminating employment effective immediately pay unused annual leave long service leave anyrequest return carsuccession planwe couple discussion future operation piap potential opportunity nicky step assist success piapwe discussed possibility succession plan whereby would sell equity progressively coincide future retirement formal document guarantee ever made nicky perform employeeshe substantial absence piapso would terminate employment leave car going create problem david car 13 17 28 august 2019 mr birkill emailed sarah singleton 14 said great sadness thing come applicant need make unforeseen professional break order try salvage family life please find attached applicant draft letter redundancy need complete certain figure order send please fill highlighted area send back 15 18 m singleton responded next morning said could complete information evening mr birkill responded part awful situation love nick 16 19 30 august 2019 mr birkill sent text message applicant said dear nicky responded text message time think come conclusion must separate work family sending termination letter today never stop loving hope repair relationship future door never close know capable great success life love always forever love mum 17 20 letter termination employment emailed applicant 30 august 2019 said applicant employment terminated reason redundancy evidencemrs jennifer birkill 21 mr birkill gave evidence reason terminated applicant employment longer wished anyone perform role applicant said applicant taking extended time away 2018 2019 able consider structure business determined applicant rolein formwas surplus requirement business 22 mr birkill said applicant performance good year made applicant redundant would likely continue role regardless performance conduct issue daughter 23 mr birkill also said epiphany continue surplus overblown small business general manager marketing manager role simply occupied close relative 24 mr birkill gave evidence following applicant absence june 2018 assigned work function employee contractor result said area team including design production sale marketing part decision making process 25 mr birkill produced position description general manager marketing manager position indicated taken function previously carried applicant 18 document show work mr birkill said done applicant done nicole bridget georgia 26 mr birkill gave evidence georgia grigg engaged contractor marketing consultant 19 mr birkill gave evidence bridget radomski directed work m grigg 20 m grigg social medium weekly email whilst mr birkill agreed m grigg work previously performed applicant rejected proposition put m grigg engaged perform principal component role formally performed applicant 21 27 mr birkill gave evidence bridget took major marketing company m grigg come moment working one day week email social medium 22 28 mr birkill agreed cross examination provided contradictory statement relation stress applicant may suffering work mr birkill provided following evidence commission nicky say statement wassuffering stress 2014 2016 understood suffering mental health issue understood issue mainly stemmed substance abuse work particularly stressfulas wholesale brick mortar store closing therefore le work demand went 150 wholesale account approximately 30 one else issue workplace stress tried utmost supportive nicky saw counsellor doctor throughout time think least weekly allowed time needed attend appointment fully paid time away work tolerated behaviour staff hindsight unacceptable tolerated haphazard attendance work performance work awful time nicky employer mother wanting feeling better therefore performing better 23 underlining added 29 statement workcover october 2018 said believe company organisation individual person contributed alleged subject injury believe workload increased dramatically pea pod pty ltd contributed nicole alleged subject injury say small business deadline meet staff push contribute company policy procedure provide 24 30 apparent contradictory nature two statement mr birkill said well lied one may finish answering question sit say mother tried help daughter one hand tried keep running business second hand bigger fool 25 31 mr birkill gave evidence aware applicant workcover payment stopped applicant fit return work prior 8 august 2019 time agreed contacted mr gibson received news either nicky personally workcover insurer nicky position return work graduated return work program concerned concerned received text message want return work want see want work site concerned yes greatly concerned answer question yes yes concern contacted mr gibson seek advice correct well must yes contacted mr gibson seek advice relation could terminate client employment yes written advice 8 august mr gibson provided advice step could take terminate client employment told step yes 26 32 mr birkill however said act advice mr gibson rather obtained expert hr advice asked decided make applicant redundant following receipt legal advice mr birkill said position redundant workable 12 hour week wanted come back say get text message want work site see win could someone work 12 hour week see 27 33 mr birkill said respond text applicant time think 28 m bridget radomski 34 m radomski gave evidence engaged contractor respondent role creative director operation worked respondent since march 2018 work 24 hour per week duty performs set witness statement 29 evidence since applicant absence work june 2018 taken responsibility setting office system procedure identifying best practice achieve efficient effective system procedure previously part role applicant conjunction colleague georgia grigg taken responsibility range marketing strategy initiative m nicole ferguson 35 m ferguson gave evidence employed permanent part time basis respondent relationship manager retail wholesale online said since applicant absence taken task handling inquiry complaint via phone email general correspondence ensuring customer serviced standard maintained along colleague georgia grigg monitoring outgoing communication 36 m ferguson also gave evidence task previously performed applicant performed georgia grigg andrew lee commenced applicant went leave m nicole birkill 37 applicant gave evidence never seen position description relied mr birkill although agreed detailed work performed 30 said 2010 following time work mr birkill decided needed change direction business evidence became proficient client management graphic design software 38 applicant said 2012 2013 mr birkill indicated context put business card general manager 39 applicant said 2012 addition undertaking bookkeeping preparing fashion catalogue working closely sale agent assisting designer took responsibility managing new area business producing fashion catalogue including touching indexing photograph uploading image website writing copywrite description handling inventory account e platform performing graphic design reviewing checking good entering warehouse responding customer enquiry resolving dispute devising marketing calendar managing staff providing marketing material assisting mr birkill abundance miscellaneous task 40 time addition task specified role evolved include online business skill 41 applicant said 2018 role remained workload increased went sick leave june 2018 submitted workcover claim october 2018 accepted may 2019 42 applicant said june 2019 assessed independent medical examination capacity return work 12 hour week spread across three day said 10 august 2019 emailed mr birkill number time return work receive response email 30 august 2019 received text message mr birkill advising mr birkill sending termination letter day 43 applicant gave evidence whilst work june 2018 observing dramatic fall visit pea pod site proposed mr birkill engage georgia grigg manage line business m griggs commence working pea pod thereafter 44 applicant agreed work outlined paragraph 13 14 statement m radomski work applicant performed 45 applicant maintained list task outlined position description attached mr birkill statement whilst listing task applicant performed incomplete list work 31 however agree task list performed people time sought return work 32 46 applicant agreed period december 2018 march 2019 made number demand mr birkill relation october proposal including october proposal implemented applicant paid year half salary settle matter none demand brought resolution october proposal applicant said met mr birkill july 2019 discus could move forward nothing came 47 applicant gave evidence proposal mother return work website copywriting google analytics reporting research 33 12 hour work per week suggestion type work could agreed time seeking return work relationship mother probably appropriate either u working together 34 suggested working offsite 48 applicant said asked mr birkill one text message made redundant used word redundant ask terminated meant 49 applicant gave evidence aware 52 week workcover employer required offer return work plan sure away period time 35 agreed absent excess 52 week 36 assessment witness 50 accept evidence m radomski m ferguson straight forward limited evidence gave 51 assessment evidence mr birkill applicant difficult mother daughter relationship clearly infected employer employee relationship reason much evidence mr birkill based emotional response personal relationship daughter opposed objective view circumstance employment relationship come end likewise applicant evidence recognised almost toxic relationship mother conceded could work together 52 applicant suggested given mr birkill concession lied either statement commission statement workcover cast doubt credibility mr birkill evidence treat evidence great caution accord little weight 53 whilst treated mr birkill evidence caution contrast evidence given workcover commission mr birkill statement commission related period 2014 2016 statement workcover relation injury 2018 obvious commission opposing statement referred period time 54 however treated mr birkill evidence caution founded highly emotional response personal circumstance family many action clearly apparent email sent sarah singleton text message 30 august 2019 applicant evidence commission 55 say consider mr birkill set deliberately mislead commission emotional relationship daughter provide sound basis making factual finding relation termination employment employee 56 also treated evidence applicant caution consider applicant sought overstate responsibility within business evidenced highly inflated assessment task performed downplay role others played company accept applicant seen position description produced mr birkill proceeding also accept may undertaken task indicated description difficult align claim task task allocated staff upon departure much work longer done either surprising business continues operate task part job fact longer required performed suggesting position redundant 37 57 consider applicant evidence strongly influenced desire see october proposal given force either implementation term settlement 58 add relied newspaper report 2014 relation business relevance determination whether dismissal applicant august 2019 genuine redundancy unfair apparent statutory consideration 59 section 396 fw act set matter must considered determined prior considering merit application relief unfair dismissal initial matter considered meritsthe fwc must decide following matter relating application order division 4 considering merit application whether application made within period required subsection 394 2 b whether person protected unfair dismissal c whether dismissal consistent small business fair dismissal code whether dismissal case genuine redundancy 60 satisfied disputed application made within time also satisfied applicant protected unfair dismissal 61 respondent submits dismissal case genuine redundancy applicant dispute 62 matter decide first instance dismissal case genuine redundancy genuine redundancy 63 section 389 fw act deal genuine redundancy state meaning genuine redundancy 1 person dismissal case ofgenuine redundancyif person employer longer required person job performed anyone change operational requirement employer enterprise b employer complied obligation modern award enterprise agreement applied employment consult redundancy 2 person dismissal case ofgenuine redundancyif would reasonable circumstance person redeployed within employer enterprise b enterprise associated entity employer 64 party agree award enterprise agreement applied applicant employment reason consideration respondent longer required applicant job performed anyone change operational requirement business found issue redeployment need considered however correct dismissal could genuine redundancy issue redeployment need considered consideration genuine redundancy 65 inulan coal mine limited v howarth others 38 full bench commission considered operation 389 1 fw act said 15 circumstance necessary consider meaning application relevant statutory provision particular expression person employer longer required person job performed anyone 389 1 act word long used applied industrial tribunal court practical definition redundancy see e g r v industrial commission south australia ex parte adelaide milk supply cooperative limited 1977 16 sasr 6 termination change redundancy case 1984 ctharbrp 284 1984 8 ir 34and 1984 9 ir 115 short v f w hercus pty limited 1993 40 fcr 511 also adopted national employment standard provided act dealing entitlement redundancy payment see 119 16 theexplanatory memorandum thefair work bill 2008provides example dismissal case genuine redundancy 1547 paragraph 389 1 provides person dismissal case genuine redundancy job longer required performed anyone change operational requirement employer enterprise enterprise defined clause 12 mean business activity project undertaking 1548 following possible example change operational requirement enterprise machine available job performed employee employer business experiencing downturn therefore employer need three people particular task duty instead five orthe employer restructuring business improve efficiency task done particular employee distributed several employee therefore person job longer exists 17 noted reference statutory expression person job longer required performed ryan j observed injones v department energy mineral 1995 60 ir 304a job involves collection function duty responsibility entrusted part scheme employee organisation particular employee p 308 honour case considered set circumstance employer might rearrange organisational structure breaking collection function duty responsibility attached single position distributing among holder position including newly created position circumstance said critical purpose identifying redundancy whether holder former position organisation duty left discharge longer function duty performed person position becomes redundant p 308 mean aspect employee duty still performed somebody cannot redundant seedibb v commissioner taxation 2004 fcr 388at 404 405 example given theexplanatory memorandumillustrate circumstance task duty particular employee continue performed employee nevertheless job employee longer exists 18 inkekeris v hartrodt australia pty ltd 2010 fwa 674hamberger sdp considered whether dismissal resulting restructure supervisory team case genuine redundancy result restructure four supervisory team leader position replaced three team leader position senior deputy president said one look specific duty performed applicant prior termination much common two new position new structure test however whether duty survive paragraph 1548 explanatory memorandum make clear still genuine redundancy duty previous job persist redistributed position test whether job previously performed applicant still exists par 27 66 short task attributable redundant employee continue performed mean redundancy genuine however reverse automatically true task may reallocated mean redundancy genuine critical issue consider reason redundancy reason isbecause ofthe changed operational requirement business redundancy genuine motive redundancy genuine 67 innettlefold v kym smoker pty ltd 39 lee j industrial curt australia said operational requirement act define term operational requirement obviously broad term permit consideration many matter including past present performance undertaking state market operates step may taken improve efficiency undertaking installing new process equipment skill arranging labour used productively application good management undertaking general term may said termination employment shown based operational requirement undertaking action employer necessary advance undertaking consistent management undertaking meet employer obligation employee 68 case need determine reason redundancy attributable changed operational requirement business 69 accept applicant went extended leave june 2018 work performed distributed amongst staff contractor business also accept evidence mr birkill absence applicant give pause consider best manage business however convinced evidence motivated redundancy applicant 70 consider reasonable infer satisfied motivated mr birkill go path redundancy applicant desire separate family life business life desire get family life back order mr birkill said much email m singleton 28 august 2018 two day terminating applicant employment said needed make break redundancy try salvage family 40 tell m singleton operational requirement business changed communication m singleton contemporaneous communication respect evidence decision make applicant redundant reason must accorded weight addition nothing put respondent said mr birkill suggests operational requirement business changed 71 apparent mr birkill took step resolve going employment applicant applicant sought return work although workplace 72 apparent tone text message email applicant mr birkill august 2019 applicant demand december 2018 march 2019 discussion july 2019 relation october proposal return working relationship two going difficult applicant wanted october proposal resolved employment personal relationship fraught certainly non resolution 73 accept time mr birkill sought advice mr gibson 10 august 2019 apparent advice issue raised mr birkill applicant due return work work advice hint redundancy possibility tell finding operational requirement business changed accept act advice separate advice make applicant redundant say legal advice apparently obtained mr birkill draw adverse inference decision disclose advice privileged nothing taken non release commission 74 reason satisfied motivation making applicant redundant changed operational requirement respondent rather mr birkill want daughter return workplace given breakdown personal working relationship 75 therefore satisfied basis evidence dismissal genuine redundancy jurisdictional objection genuine redundancy therefore dismissed small business fair dismissal code 76 found dismissal genuine redundancy 396 c fw act requires determine dismissal consistent small business fair dismissal code code circumstance dispute respondent small business dismissal consistent code commission jurisdiction deal unfair dismissal application 77 code state summary dismissalit fair employer dismiss employee without notice warning employer belief reasonable ground employee conduct sufficiently serious justify immediate dismissal serious misconduct includes theft fraud violence serious breach occupational health safety procedure dismissal deemed fair sufficient though essential allegation theft fraud violence reported police course employer must reasonable ground making report dismissalin case small business employer must give employee reason risk dismissed reason must valid reason based employee conduct capacity job employee must warned verbally preferably writing risk dismissed improvement small business employer must provide employee opportunity respond warning give employee reasonable chance rectify problem regard employee response rectifying problem might involve employer providing additional training ensuring employee know employer job expectation procedural mattersin discussion employee circumstance dismissal possible employee another person present assist however person cannot lawyer acting professional capacity small business employer required provide evidence compliance code employee make claim unfair dismissal fair work australia including evidence warning given except case summary dismissal evidence may include completed checklist copy written warning statement termination signed witness statement 78 respondent submits covered code dismissal applicant consistent code respondent say relationship applicant mr birkill broken applicant agreed submission mr birkill harassed threatened mr birkill gave evidence applicant father breaking point emotionally applicant behaviour caused imminent risk mr birkill husband 79 respondent submits mr birkill held belief reasonable ground applicant behaviour created health safety issue 80 applicant submits dismissal applicant summary dismissal first part code apply 81 applicant submits respondent warn applicant time employment might risk reason ever given applicant dismissal redundancy applicant say mr birkill gave evidence told applicant point time happy applicant 82 applicant submits stage put applicant issue conduct capacity given warning code complied reason applicant say dismiss claim code complied consideration code 83 applicant case summarily dismissed dismissed reason redundancy reason convinced summary dismissal provision code apply 84 wrong however summary dismissal provision apply evidence reason dismissal mr birkill basis believe breach health safety accept mr birkill concerned impact relationship applicant family life enough found belief reasonable ground breach health safety procedure matter included serious misconduct section code 85 reason dismissal capacity conduct applicant never warned capacity conduct issue therefore cannot found dismissal complied dismissal provision code 86 reason satisfied dismissal consistent code dismissal unfair 87 dealt issue must considered prior merit case necessary determine dismissal unfair 88 section 385 fw act set circumstance dismissal found unfair state unfair dismissala person unfairly dismissed fwc satisfied person dismissed b dismissal harsh unjust unreasonable c dismissal consistent small business fair dismissal code dismissal case genuine redundancy 89 satisfied applicant dismissed satisfied reason given dismissal genuine redundancy code complied therefore necessary determine dismissal harsh unjust unreasonable harsh unjust unreasonable 90 section 387 fw act set criterion commission must take account determining dismissal harsh unjust unreasonable section 387 state criterion considering harshness etc considering whether satisfied dismissal harsh unjust unreasonable fwc must take account whether valid reason dismissal related person capacity conduct including effect safety welfare employee b whether person notified reason c whether person given opportunity respond reason related capacity conduct person unreasonable refusal employer allow person support person present assist discussion relating dismissal e dismissal related unsatisfactory performance person whether person warned unsatisfactory performance dismissal f degree size employer enterprise would likely impact procedure followed effecting dismissal g degree absence dedicated human resource management specialist expertise enterprise would likely impact procedure followed effecting dismissal h matter fwc considers relevant 91 considered matter valid reason dismissal related person capacity conduct including effect safety welfare employee 92 satisfied valid reason dismissal applicant related capacity conduct whilst vague reference made performance issue respondent happy applicant time evidence actual conduct performance issue warrant dismissal could find conduct occurred performance issue generally put provided valid reason dismissal general assertion past performance matter enough find valid reason dismissal 93 mr birkill raise issue applicant daughter provide licence find matter put applicant articulated somehow provide valid reason dismissal 94 applicant clearly unwell period leading june 2018 proceeded leave workcover payment attempted return work 14 month later time work related interaction applicant mr birkill seek return work never occurred seek resolved october proposal matter personal relationship issue could form valid reason dismissal 95 effect health safety others must capacity conduct dismissed employee effect whilst may anticipated applicant returned work evidence performance conduct effect could provide valid reason dismissal 96 reason satisfied valid reason dismissal related applicant capacity conduct b c whether person notified reason whether person given opportunity respond reason related capacity conduct person 97 whether employee advised reason reference valid reason dismissal valid reason dismissal applicant advised reason given opportunity respond prior decision dismiss made event reason dismissal given applicant redundancy ground put applicant given opportunity respond evidence procedural fairness aspect termination employment unreasonable refusal employer allow person support person present assist discussion relating dismissal 98 evidence meeting applicant relation dismissal therefore denied reasonable access support person e dismissal related unsatisfactory performance person whether person warned unsatisfactory performance dismissal 99 evidence commission applicant ever warned relation performance performance provided reason dismissal f g degree size employer enterprise would likely impact procedure followed effecting dismissal degree absence dedicated human resource management specialist expertise enterprise would likely impact procedure followed effecting dismissal 100 respondent business small business 3 employee including mr birkill time applicant employment terminated 101 whilst mr birkill access mr gibson determining issue redundancy legal advice consider manner termination employment effected affected size business lack access human resource legal expertise 102 found satisfied breakdown personal relationship applicant mr birkill major contributing factor reason dismissal size business lack access human resource expertise reflected long period time within breakdown relationship allowed fester also reflected inability separate personal life employment relationship clear mr birkill know time acting mother employer clear attribute blame reflective small successful family run business circumstance mr birkill looking forward moving business hoping daughter would take clear boundary work succession business within family exist evident fall well h matter fwc considers relevant 103 sad case relationship mother daughter broken consequence round including relationship employer employee 104 taken account action demand applicant mr birkill attempting resolve impasse october proposal tone text message sought return work august 2018 text message showed little respect person ran business sought return work attempt resolve october proposal appear got hand mr birkill son applicant brother calling applicant warning stop calling mother conversation apparently occurred 15 phone call made applicant mr birkill one day 105 also taken account mr birkill apparently changed mind october proposal mr birkill stated yes changed mind changed mind good reason changed mind conduct instability nicky behaviour time original discussion sit hindsight sat nicky documented reason mother hat also business owner hat mother hat wanted see daughter get well achieve thing life sit say 41 106 clear ever advised applicant change mind 107 circumstance reflect well either party ultimately balance dismissal harsh unjust unreasonable 108 inbyrne v australian airline ltd 42 said may termination harsh unjust unreasonable unjust harsh unreasonable unreasonable harsh unjust many case concept overlap thus one termination employment may unjust employee guilty misconduct employer acted may unreasonable decided upon inference could reasonably drawn material employer may harsh consequence personal economic situation employee disproportionate gravity misconduct respect employer acted 109 valid reason dismissal generally case dismissal unreasonable 110 whilst may well ground dismiss applicant employment lack valid reason absence procedural fairness weigh heavily favour finding dismissal harsh unreasonable two matter sufficiently outweighed consideration although taken account size business 111 reason given therefore satisfied dismissal harsh punitive unreasonable conclusion 112 reason given satisfied applicant unfairly dismissal remedy 113 applicant seek reinstatement circumstance satisfied reinstatement inappropriate therefore consider compensation 114 section 392 fw act detail matter considered determining compensation remedy compensation criterion deciding amount 2 determining amount purpose order subsection 1 fwc must take account circumstance case including effect order viability employer enterprise b length person service employer c remuneration person would received would likely receive person dismissed effort person mitigate loss suffered person dismissal e amount remuneration earned person employment work period dismissal making order compensation f amount income reasonably likely earned person period making order compensation actual compensation g matter fwc considers relevant misconduct reduces amount 3 fwc satisfied misconduct person contributed employer decision dismiss person fwc must reduce amount would otherwise order subsection 1 appropriate amount account misconduct shock distress etc disregarded 4 amount ordered fwc paid person subsection 1 must include component way compensation shock distress humiliation analogous hurt caused person manner person dismissal compensation cap 5 amount ordered fwc paid person subsection 1 must exceed lesser amount worked subsection 6 b half amount high income threshold immediately dismissal 6 amount total following amount total amount remuneration received person ii person entitled whichever higher period employment employer 26 week immediately dismissal b employee leave without pay without full pay employed part period amount remuneration taken received employee period leave accordance regulation 115 first day hearing indicated party compensation relevant party would given opportunity put evidence address question reason direction issued filing evidence submission relation compensation commissionerappearances j abacoof counsel applicant j hooperof counsel respondent hearing detail 2020 melbourne january 13 final written submission applicant 24 february 2020 respondent 4 march 2020 final oral submission 2020 melbourne telephone march 20 pr718370 1 exhibit r4 paragraph 6 2 exhibit r4 paragraph 7 3 exhibit a1 4 exhibit a5 5 ibid paragraph 35 6 exhibit a17 attachment nb7 7 exhibit a17 attachment nb8 8 brett applicant bother 9 exhibit r5 attachment jb6 10 exhibit r5 attachment jb7 11 exhibit a17 paragraph 85 86 12 exhibit a17 attachment nb9 13 exhibit a4 14 book keeper pea pod 15 exhibit a13 16 exhibit a14 17 exhibit a17 attachment nb11 18 exhibit r4 attachment jb2 whilst clearly stated take reference sarah reference book keeper reference jennie mr birkill 19 transcript pn937 20 transcript pn951 21 transcript pn967 22 transcript pn972 23 exhibit r5 paragraph 35 24 exhibit a5 paragraph 35 25 transcript pn698 26 transcript pn587 591 27 transcript pn628 28 transcript pn886 29 exhibit r1 30 transcript pn1247 31 transcript pn1279 32 transcript pn1474 33 exhibit r5 attachment jb7 34 transcript pn1466 35 transcript pn1440 36 transcript pn1442 37 noting whether position genuinely redundant extend process person selected redundancy seeexplanatory memorandum thefair work bill 2008 paragraph 1553 38 2010 fwafb 3488 39 1996 irca 496 40 exhibit a13 41 transcript pn619 42 1995 hca 24 11 october 1995 per mchugh gummow jj printed authority commonwealth government printer

O'Neill v Brown [2011] QDC 221 (22 August 2011).txt

neill v brown 2011 qdc 221 22 august 2011 last updated 30 september 2011 2011 qdc 221district courtcivil jurisdictionjudge samiosno 107 2010ai neill kris neillplaintiffsandgarry phillip brown karen therese browndefendantssouthportdate 22 08 2011orderhis honour application summary judgment application served solicitor defendant defendant appeared today filed material opposition affidavit support plaintiff claim summary judgment defendant plaintiff purchased defendant house property ormeau price 360 000 settlement date agreed delayed time time defendant allowed plaintiff possession property certain condition consequence application plaintiff swear defendant mortgagee obtained possession property defendant settle contract plaintiff plaintiff therefore without property search another one clearly satisfied breach contract defendant caused loss damage plaintiff plaintiff sworn loss damage satisfied genuine reasonable circumstance particular satisfied plaintiff find another property like quality best could 65 000 original purchase price agreed defendant satisfied loss flow breach contract defendant satisfied case defendant real prospect successfully defending plaintiff claim need trial claim may therefore give judgment plaintiff defendant claim loss including cost therefore order per draft initialled left paper

Exodus (Pymble) Pty Ltd -v- Ku-ring-gai Council [2004] NSWLEC 444 (23 June 2004).txt

exodus pymble pty ltd v ku ring gai council 2004 nswlec 444 23 june 2004 last updated 18 august 2004new south wale land environment courtcitation exodus pymble pty ltd v ku ring gai council 2004 nswlec 444parties applicantexodus pymble pty ltdrespondentku ring gai councilcase number 10283 2004catch word development applicationlegislation cited ku ring gai planning scheme ordinancestate environmental planning policy 53 metropolitan residential development sepp 53 coram bly cdates hearing 17 18 06 04 23 06 04ex tempore date 23 06 2004legal representativesapplicantmr j hone solicitorsolicitorshones lawyersrespondentmr p rigg solicitorsolicitorsdeaconsjudgment 4 land andenvironment courtof new south walesc bly23 june 200410283 2004 exodus pymble pty ltd v ku ring gai counciljudgment1 appeal relates development application 1608 3 proposes demolition existing single storey dwelling house construction attached three storey dual occupancy development including basement car parking 18 knowlman avenue pymble 2 site comprises lot 23 dp 11748 essentially rectangular shape area 1 169 sq water course located towards eastern side site entering site across northern boundary exiting site south eastern corner extending beneath knowlman avenue 3 locality surrounding site mainly comprises mixture one two storey detached dwelling house brick tile construction erected mid late twentieth century 4 proposed dual occupancy development prohibited theku ring gai planning scheme ordinance planning scheme permissible development consent understate environmental planning policy 53 metropolitan residential development sepp 53 5 following lodgement 15 december 2003 application notified 17 december 8 january 2004 five letter objection received matter concern raised objection mainly include proposed building would excessive height bulk scale dual occupancy type development inappropriate street proposed building would inappropriate streetscape 6 application refused council 3 may 2004 seven reason relate requirement thedepartment infrastructure planning natural resource department adverse impact water course adverse impact streetscape resulting building excessive bulk scale impact resulting inadequate side setback non compliance zone objective residential area planning scheme 7 behalf respondent council expert evidence given miss k gordon town planner dr marten civil environmental engineer 8 addition whilst site resident objector evidence given mr g reid 16 knowlman avenue complained height bulk proposal concern close property generally concerned dual occupancy form development would appropriate street would thus unacceptable mr northern 19 knowlman avenue also concerned height bulk proposal box like shape size proposed driveway also concerned finish colour development may future generate inconsistency streetscape mr donaldson 17 knowlman avenue expressed concern similar expressed mr northern 9 behalf applicant expert evidence provided mr glendinning town planner dr ambrose zoologist ecological consultant mr ford arborist mr taylor engineer dr perrens hydraulic engineer 10 considered evidence including joint expert report viewed site environs two important issue arose determination court 1 whether design proposed building would satisfactory streetscape particularly term bulk scale relative bulk scale existing development immediate locality 2 whether proposal including engineering work associated water course would prevent provision appropriate riparian zone 11 relation streetscape issue following change proposal depicted amended plan together agreed condition consent disagreement two town planning expert considered amended proposal positioned site streetscape context particularly taking account scale design existing building street satisfied proposal would satisfactory 12 whilst recognise concern neighbour accept bulk scale amended proposal taking account thegood designrequirements sepp 53 would inconsistent design principle dual occupancy development contribute attractive residential environment clear character identity revised articulation modulation amended building also meet objective reducing building bulk responsive site landform surrounding development 13 relation water course riparian zone note relevant expert able deal engineering landscaping design proposed reached agreement riparian issue resolved achieved provision appropriate structure water course accommodate flooding requirement provision appropriate floristic structure specie diversity appropriate locality particular creek 14 circumstance satisfied arrangement proposed would satisfactory would meet objective expressed department letter dated 18 june 2004 concerned protection head water stream health role delivering ecosystem service catchment providing habitat support complex ecological interaction benefit water quality provide natural heritage present future community area enjoy 15 whilst recognise proposal strictly respond department general term approval accept objective broadly met taking account site zoned residential development scheme court approves reasonable balance urban development protection water course 16 order court 1 appeal upheld 2 development application 1608 03 demolition existing single storey dwelling house construction attached three storey dual occupancy development including basement carparking 18 knowlman avenue pymble determined granting development consent subject condition annexure hereto 3 exhibit 11 12 13 e retained 4 order cost _______________________t blycommissioner courtmp

1111382 [2012] MRTA 3941 (20 December 2012).txt

1111382 2012 mrta 3941 20 december 2012 last updated 21 february 20131111382 2012 mrta 3941 20 december 2012 decision recordreview applicant department training workforce developmentvisa applicant mr farid edward farid sharkawymrt case number 1111382diac reference bcc2011 203901tribunal member kira raifdate 20 december 2012place decision sydneydecision tribunal affirms decision grant visa applicant skilled migrant class visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant visa applicant skilled migrant class visa unders 65of themigration act 1958 act visa applicant applied department immigration citizenship visa 6 may 2011 delegate decided refuse grant visa 23 august 2011 notified visa applicant decision review right delegate refused grant visa basis visa applicant satisfy cl 176 211 schedule 2 themigration regulation 1994 regulation delegate satisfied visa applicant employed skilled occupation 12 month application made review applicant applied tribunal 27 october 2011 review delegate decision tribunal find delegate decision mrt reviewable decision 338 5 act tribunal find review applicant made valid application review 347 act relevant lawthe skilled migrant class visa permit non citizen live work permanently australia non citizen may apply visa independently sponsored eligible relative living australia nominated participating state territory government time visa application lodged skilled migrant class visa contained following subclass subclass 175 skilled independent subclass 176 skilled sponsored present case visa applicant seeking satisfy criterion grant subclass 176 visa criterion subclass 176 visa set inpart 176of schedule 2 regulation primary criterion satisfied time application follows visa applicant nominated skilled occupation specified minister instrument writing employed skilled occupation least 12 month 24 month immediately application made cl 176 211 1 relevant instrument purpose immi 10 027 visa applicant nominated specified skilled occupation either employed skilled occupation least 12 month 24 month immediately visa application made orhe satisfied australian study requirement 6 month immediately visa application made degree diploma trade qualification used satisfy requirement closely related visa applicant nominated skilled occupation cl 176 211 2 skilled occupation meaning given r 1 15i regulation r 1 03 occupation skilled occupation specified minister instrument writing skilled occupation number point specified instrument available number point available applicable person accordance specification occupation relevant instrument purpose legislative instrument immi12 068 term employed context mean engaged occupation remuneration least 20 hour weekly r 2 26a 7 claim evidencethe tribunal department file relating visa applicant tribunal also regard material available range source visa applicant national egypt born july 1984 applied skilled migrant class visa 6 may 2011 visa applicant indicated application form completed bachelor pharmaceutical science misr international university visa applicant nominated occupation retail pharmacist application enclosed evidence positive skill assessment australian pharmacy council dated 22 april 2010 visa applicant stated respect employment june 2006 march 2011 worked retail pharmacist maged pharmacy provided following description duty check prescription correct dos drug interaction provide information indication side effect medication prepare medication ointment syrup sell non prescription medication counter otc preparation cosmetic commercial product andrecord prescription including narcotic restricted drug visa applicant enclosed application various personal document including copy licence extract register qualified pharmacist dated 1 february 2007 confirmation registration syndicate pharmacist dated 1february 2007 visa applicant enclosed resume several competency reference professional refer visa applicant employment maged pharmacy since july 2006 march 2011 employment reference signed dr rizk manager maged pharmacy state visa applicant employed full time retail pharmacist since july 2006 march 2011 work 48 hour per week main duty responsibility set way information application form 23 august 2011 delegate decided refuse grant visa visa applicant primary decision record copy review applicant provided tribunal indicates diac officer cairo interviewed visa applicant employer 27 july 2011 referee confirmed diac staff visa applicant formally employed remuneration least 20 hour week pharmacist november 2010 15 march 2011 remainder claimed period visa applicant worked casual shift training purpose without remuneration employer stated visa applicant covered social insurance scheme employee period registered second pharmacist ministry health primary decision record indicates following interview visa applicant referee diac staff contacted visa applicant also confirmed paid employment pharmacy commenced november 2010 delegate found unpaid employment could counted towards work experience purpose application delegate satisfied visa applicant met cl 176 211 sponsor review applicant sought review delegate decision 27 october 2011 provided copy primary decision record 30 november 2012 shortly commencement hearing one year application review made visa applicant representative provided submission tribunal addressing statutory requirement representative set background application representative submitted delegate made error decision based incorrect information provided diac various person state information visa applicant working remuneration november 2010 incorrect admits previous employer supplied information representative submitted diac called visa applicant previous employer busy working hour result provided information relation another colleague visa applicant visa applicant enclosed professional employment reference signed dr rizk salary payment certificate confirm visa applicant paid employment july 2006 february 2011 average 48 hour per week representative submitted visa applicant evidence registration ministry health february 2007 information visa applicant employment provided dr maged rizk representative submits march 2011 visa applicant opened pharmacy brother receive remuneration profit pharmacy two month added total claimed period employment representative submitted visa applicant demonstrated work experience within skilled occupation approved department workforce training development representative noted delegate found visa applicant registered pharmacist ministry health submitted evidence registration representative enclosed payslip 2008 evidence visa applicant received payment remunerated work submitted visa applicant 6 year work experience pharmacy industry performing work pharmacist thereview applicant appeared tribunal 30 november 2012 give evidence present argument tribunal also received oral evidence visa applicant tribunal hearing conducted assistance interpreter arabic english language review applicant represented relation review registered migration agent mr morcos sabelberg morcos lawyer oral evidence tribunal summarised visa applicant said completed bachelor pharmacy egypt international university graduated june 2006 visa applicant confirmed completed study australia tribunal questioned visa applicant employment may 2009 may 2011 visa applicant said worked pharmacy dr rizk said started working immediately graduation worked february 2011 could said started 1 july 2006 february 2011 tribunal noted 30 november 2012 tribunal provided experience certificate issued ministry health state working second pharmacist 2007 visa applicant said confusion another person working dr rizk registered army service tribunal pointed visa applicant claim started working july 2006 certificate state started working february 2007 visa applicant said working dr rizk july 2006 february 2011 july 2006 february 2007 registered ministry health working dr rizk registered ministry health visa applicant confirmed registered ministry health february 2007 tribunal asked visa applicant able work pharmacist registered visa applicant said could work basis educational qualification took time prepare document registration relied certificate tribunal asked visa applicant stopped working pharmacy said stopped working 7 february 2011 sometimes dr rizk asked come help continued work 15 march 2011 registered officially stopped february 2011 tribunal referred information primary decision record indicated dr rizk interviewed diac staff stated november 2010 visa applicant paid work pharmacist may worked least 20 hour week visa applicant said diac officer contacted dr rizk gave information another person graduated recently dr rizk confused visa applicant said colleague graduated june 2010 tribunal pointed unlikely dr rizk referred november 2010 would confuse another colleague graduated five month date dr rizk referred visa applicant said dr rizk confused looking record pharmacy packed gave information another person visa applicant said pharmacy employed three four pharmacist shift dr rizk confused time tribunal noted hard accept tribunal noted dr rizk referred visa applicant employed 15 march 2011 precise date claim stopped working also hard accept dr rizk employer responsible salary payment financial responsibility business would recall paying salary employee nearly four year visa applicant said dr rizk busy man sometimes confused spoke immigration give information time look information gave information another person one signed employment certificate registered ministry health tribunal noted decision record also indicates diac officer spoke dr rizk called visa applicant spoke also confirmed paid november 2010 visa applicant said spoke diac staff tried explain worked dr rizk diac officer insisted confusing information visa applicant said assure diac officer started working 2006 tribunal noted issue started working pharmacy started getting paid work visa applicant said explained diac officer started paid soon started working working least 48 hour week officer ignored took mr maged said visa applicant said diac officer pushed say wanted say insisted dr rizk said tribunal asked visa applicant started receiving social insurance visa applicant said dr rizk unable insurance partner owner another company even able get insurance pharmacy registered another company visa applicant said paid cash normal egypt tribunal asked visa applicant salary slip cover full period employment visa applicant said others submitted six month worth tribunal explained concern tribunal noted visa applicant claim employed since 2006 primary decision record indicates interview dr rizk recorded stated started paid november 2010 tribunal noted unpaid employment could counted towards employment migration purpose tribunal informed visa applicant convinced explanation dr rizk referring another person pharmacist employed pharmacy visa applicant claim worked year since 2006 dr rizk may expected remember started paid dr rizk gave correct date visa applicant stopped working suggests refer visa applicant another employee tribunal sought visa applicant comment visa applicant said provide proof official document ministry health working dr rizk well payslip said dr rizk confused said document dr rizk signature pharmacy stamp document tribunal pointed document ministry health many document provided refer paid visa applicant said provided payslip could ask dr rizk confirm salary tribunal note claim dr rizk confused hard give much weight material presented dr rizk tribunal asked visa applicant contemporaneous record showing salary visa applicant said document said registered company insured document document ministry health confirming working training dr rizk egypt trainee get paid minimal amount trainee visa applicant said record sign drug register said taxation record relating company dr rizk said employee pay tax employer visa applicant noted presented document signed dr rizk concerning salary tribunal noted may give much weight document signed dr rizk considering dr rizk evidence interview visa applicant said able open pharmacy 2 year work experience show working pharmacist tribunal pointed issue visa applicant employment whether employment paid tribunal accepted visa applicant work dr rizk visa applicant said course paid otherwise dr rizk would stamp sign document visa applicant said pharmacist pay high pay tax visa applicant provided submission tribunal 13 december 2012 visa applicant provided statement chartered accountant maged pharmacy mr sabagh stating preparing book account pharmacy since 2004 including document relating wage salary employee mr sabagh state perusing file wage salary visa applicant name among employee pharmacy july 2006 february 2011 salary payment set mr sabagh state wage salary employee received cash virtue form receipt signed pharmacy owner pharmacist system applies pharmacy egypt visa applicant enclosed evidence mr sabagh professional qualification visa applicant presented certificate particular issued social insurance national organisation stating visa applicant employer farid edward farid sharkawy partner working june 2006 november 2011 finding reasonswhen making application visa applicant nominated occupation retail pharmacist anzsco 251513 occupation listed legislative instrument immi 10 027 applied time application visa made listed legislative instrument applies presently tribunal find visa applicant nominated skilled occupation specified minister instrument writing purpose subclause 176 211 1 tribunal find visa applicant meet cl 176 211 1 visa applicant made reference study australia application form tribunal satisfied evidence visa applicant satisfied australian study requirement period 6 month immediately day application made tribunal satisfied visa applicant meet cl 176 211 2 b clause 176 211 2 relevantly requires visa applicant employed skilled occupation least 12 month period 24 month ending immediately day application made application made 6 may 2011 relevant period 6 may 2009 5 may 2011 visa applicant claim period employed retail pharmacist maged pharmacy visa applicant also refers subsequent employment pharmacy requesting employment added overall length experience however period two month would sufficient meet requirement cl 176 211 tribunal must also consider visa applicant employment maged pharmacy visa applicant enclosed various document primary application confirm employment maged pharmacy visa applicant enclosed several competency reference professional employment reference refer visa applicant employment maged pharmacy also included evidence professional registration evidence issued ministry health confirming employment maged pharmacy tribunal accepts visa applicant worked maged pharmacy document suggest however tribunal pointed course hearing issue whether visa applicant working dr rizk whether paid employment none document indicate employment paid employment required term employed r 2 26a 7 tribunal considers document unhelpful primary decision record copy provided tribunal indicates diac officer conducted check visa applicant employment interviewed employer 27 july 2011 decision record indicates visa applicant employer stated visa applicant employed remuneration least 20 hour week november 2010 march 2011 prior period visa applicant worked casual shift training purposed without remuneration decision record indicates diac staff also contacted visa applicant give opportunity comment information visa applicant confirmed paid employment pharmacy commenced november 2010 submission tribunal 30 november 2012 visa applicant representative argues employer made mistake referred another employee work pharmacy since july 2006 remuneration visa applicant also informed tribunal oral evidence dr rizk made mistake following reason tribunal considerable concern evidence visa applicant informed tribunal dr rizk referring another employer graduated june 2010 tribunal considers unlikely dr rizk would confuse visa applicant claim working pharmacy since july 2006 period four year time diac interview another employee started 2010 worked one year time interview tribunal accept employer charged paying employee salary would make mistake state someone receiving salary three year matter busy time interview tribunal view owner pharmacy dr maged rizk would good knowledge expense including expense salary would well familiar employee status paid unpaid employee tribunal view mistake cannot explained stating dr maged rizk busy phone call significantly dr rizk reported stated visa applicant worked 15 march 2011 precisely date visa applicant claim ceased working dr rizk tribunal accept dr rizk confused visa applicant another person remembering precision date visa applicant ceased working nothing tribunal suggest following interview dr rizk attempted contact diac explain confusion mistaken answer tribunal also note diac officer contacted visa applicant recorded stated paid employment november 2010 visa applicant explained tribunal diac officer wanted state certain thing let explain tribunal considers unlikely primary decision record would record obviously incorrect information completely failed reflect visa applicant evidence evidence tribunal indicate following interview visa applicant made attempt contact delegate explain answer interview tribunal regard salary payment presented tribunal visa applicant claim signed dr rizk bear pharmacy signature therefore genuine tribunal accept visa applicant claim dr rizk provided incorrect information diac officer past concerning employment albeit busy tribunal formed view contemporaneous evidence dr rizk others given department staff course inquiry greater probative value subsequent evidence may prepared order counter balance earlier evidence correct earlier error circumstance tribunal prefers evidence dr rizk given diac staff interview give evidence weight visa applicant also presented statement pharmacy accountant confirming salary payment made however noted tribunal prefers contemporaneous evidence given interview owner pharmacy visa applicant subsequent documentary evidence presented counter concern tribunal also note absence independent verifiable record relating paid employment taxation record social insurance record etc record would assisted tribunal reaching level satisfaction required relation visa applicant employment tribunal considered totality information tribunal give significant weight information obtained diac staff interview reason stated tribunal accept visa applicant explanation dr rizk confused thinking another employee overall tribunal prefers contemporaneous evidence given dr rizk visa applicant time interview recorded primary decision record subsequent evidence presented tribunal evidence presented support application tribunal also mindful employment certificate presented primary applicant tribunal note reference refer applicant receiving payment thus tribunal accepts visa applicant working maged pharmacy since 2006 tribunal satisfied visa applicant paid employment november 2010 tribunal satisfied visa applicant engaged occupation remuneration least 20 hour weekly employment maged pharmacy november 2010 tribunal satisfied visa applicant employed within meaning r 2 26a 7 maged pharmacy tribunal satisfied applicant received remuneration november 2010 employment since november 2010 sufficient amount 12 month tribunal satisfied visa applicant employed skilled occupation least 12 month period 24 month ending immediately day application made tribunal satisfied meet cl 176 211 2 cl 176 211 conclusiongiven finding tribunal affirms decision review decisionthe tribunal affirms decision grant visa applicant skilled migrant class visa kira raifsenior member

John Dimtsis and Aklis Konstantellos v The Agricultural Diary Industry Authority of Epirus, Dodoni S.A. [1991] ATMO 38; 22 IPR 643; 90-831 (7 June 1991).txt

john dimtsis aklis konstantellos v agricultural diary industry authority epirus dodoni 1991 atmo 38 22 ipr 643 90 831 7 june 1991 28 whether mark deceptive confusing 40 proprietorship mark 24 1 whether mark registrable opposition allowed trade mark act 1955decision delegate registrar trade marksre opposition agricultural dairy industry authority epirus dodoni application 434469 name john dimtsis alkis konstantellostrade mark application 434469 lodged 10 october 1985 name john dimtsis alkis konstantellos 384 bridge road richmond victoria applicant sought registration word dodoni part register respect dairy product particular cheese good international class 29 application advertised accepted 22 september 1988 6 december 1988 notice opposition lodged name agricultural dairy industry authority epirus dodoni opponent english translation greek agrotiki viomichania galaktos ipirou dodoni description opponent given notice ground opposition set notice follows applicant trade mark qualified registration trade mark act 1955 1956 b opponent proprietor trade mark following trade mark application trade mark act commonwealth australia 484062 c reason opponent aforementioned trade mark application use mark australia applicant trade mark neither distinctive capable becoming distinctive applicant good applicant trade mark application respect trade mark identical substantially identical deceptively similar opponent aforestated trade mark application respect good description subject aforestated trade mark application e use applicant trade mark good registration sought would likely cause deception confusion trade regard opponent aforementioned trade mark application use reputation opponent trade mark f use applicant trade mark use good registration sought would likely lead passing regard opponent aforementioned trade mark application use reputation opponent trade mark opponent evidence support opposition consisting statutory declaration alexandros ragos emmanuel kotis together exhibit ek1 ek8 served applicant 3 march 1989 applicant evidence answer served opponent 4 october 1989 comprised declaration paul egonidis nick konstandellos john dimtsis nick vossos victor sapkin alkis konstantellos opponent completed service evidence reply 19 december 1990 evidence consisted declaration following people rei adameitz andrew arvanitakisjack con aristomenis diamantopoulosfrank g di virgilio amileas filokostastheo filokostas paul gaganisnick kamdouropoulos anastasios kardarasfotis kapotis george kardarasmichael pantoleon evangelos panayotakosjames phillips george vasiliemmanuel kotis nicholas zervoulias matter came hearing melbourne 7 february 1991 mr peter nicholls callinan lawrie patent attorney appeared applicant opponent represented m michelle unsworth minter ellison barrister solicitor mr nicholls made aviva voceapplication special leave adduce evidence accordance reg 47 1 b trade mark regulation opposed m unsworth allowed one week lodge statutory declaration required reg 47 3 setting ground application made nature evidence desired lodge 14 february lodged trade mark office statutory declaration date made nikolaos konstantellos describes mesne proprietor mark referred purported assignment mark dated 20 august 1988 director assignee dodoni dairy product pty ltd referred document leaving aside question standing mr konstantellos opposition proceeding ground application nature evidence set follows 5 accordingly ground application made despite continued effort paul egonidis still able obtain dimtsis material referred paragraph 6 declaration answer ii believe due dimtsis lost interest motivation present case due commitment including long standing presidency vice presidency soccer federation australia divorce marriage separation inhibiting access record premise occupied former spouse iii outline opponent submission lodged hearing 7th february 1991 raised serious question concerning opponent identity ownership name use dodoni including characterization connection status allege name iv one matter statement page 5 6 opponent registered proprietor trade mark following country greece 9797716 11 87 stat dec kotis 18 12 90 exhibit3 west germany 1153586u 721820 v enquiry indicate greek trade mark 97977 dodoni yet registered pending application date 18 12 90 kotis declaration reply produced shown markedni 1is copy callinan lawrie facsimile transmission 8th february law office thanos masoulas athens response 11th february 1991 vi enquiry also indicate contrary opponent statement arenotthe registered proprietor trade mark united state america produced shown markednk 2is copy callinan lawrie facsimile transmission 8th february fleit jacobson washington c response indicating 73 721820 ispendingand suspended 21st september 1990 vii occurs error may due mistranslation consider event matter need investigation understand patent attorney similarly checking status german trade mark viii another matter arises item 2 1 b outline submission believe true say opponent 60 government owned believe even authority usual sense word exhibit ek 1 kotis declaration support indicates relevant shareholder government agricultural bank greece verily believe 40 government owned believe ever legal entity greece name agricultural dairy industryauthorityetc note reference authority opponent formerly described dropped ix verily believe opponent adie agriculturaldairyindustry ofepirus formed name include word dodoni prompted present applicant interest mark opponent introduced word subsequently regard note amendment english version certificate shown kotis ek 1 reply regard matter note ek 6 reply 1982 opponent name simply agracultural sic dairy industry x ix believe relevant time dodoni opponent domicile rather eleousa produced shown markednk 3is catalogue greek food beverage export company c 1987 page 49 show opponent domiciled eleousa refer ek 1 reply see certificate incorporation immediately date 28 12 67 certain greek word understand mean address eleousa ioannina thereunder greek word referring object business however reference address completely omitted english translation xi opponent queried assignment egonidis dodoni dairy product pty ltd correctly point company incorporated 1989 fact intended assignment firm dodonis dairy product dodonis dairy product referred first paragraph john dimtsis declaration answer produced shown markednk 4is copy certificate registration 8th october 1985 business material time proprietor business duly authorized make declaration behalf behalf company dodonis dairy product pty ltd 6 accordingly nature evidence desired adduce follows e statutory declaration investigation relating status etc opponent related matter arising outline opponent submission ii john dimtsis matter adverted paragraph 6 declaration answer related foregoing iii john archer formerly petersville relating matter referred dimtsis paragraph 2 iv original applicant alkis konstantellos shopkeeper supplied dodoni cheese period 1975 1977 v person concerned production dodoni packaging tin label matter set sub para 5 iii xi largely inrrelevant opposition proceeding case raised m unsworth submission opponent evidence support reply declaration john dimtsis answer far relevant follows 1 thatduring period 8th october 1985 19th august 1988 partnership one alkis konstantellos also known alkiviadis konstandellos 42 arunta crescent clayton said state operating business name dodonis dairy product pursuant certificate registration business number 659243 u thebusiness name act 1962 2 thatthe partnership period entered various agreement cheese processing manufacturing concern petersville australia limited trafalgar dairy product well purchasing vast quantity milk rodney polkinhorn charlton feed lot pty ltd purpose manufacturing greek type feta cheese associated dairy product 3 thatduring period partnership abovementioned greek type feta cheese related dairy product manufactured behalf packaged partnership sold name style dodoni australia favourite dodonis dairy product various wholesaler one atlas olive oil company pty ltd 443 st george road thornbury said state 4 thatthe attached exhibit marked letter jd1 jd2 label style trade mark feta cheese dairy product packaged 5 thaton 19th day august 1988 alkis konstandellos entered agreement sell business name together assigning trade mark dodoni subject application 434469 filed 10th day october 1985 registration thetrade mark act 1955in respect dairy product particular cheese class 29 dodoni dairy product pty ltd 374 highett road highett said state purpose new proprietor requested produce various evidentiary document support application registration trade mark bearing number 434469 dodoni registered trade mark number 434561 6 thatsince requested aforementioned new proprietor produce relevant evidence support application registration attempted obtain various invoice relating purchase material invoice relating sale product well bank statement evidencing operation various bank account term aforementioned partnership name dodonis dairy product said document unable obtain various source due limited time available disposal test determining whether leave granted allow tender evidence involves consideration essentially three desideratum must shown evidence could obtained reasonable diligence earlier stage ii evidence must given would probably important influence result case iii must credible ladd v marshall 1954 ewca civ 1 1954 3 er 745 said already status opponent related matter little influence outcome opposition evidence dimtsis nikolaos konstantellos para 4 declaration refers expectation dsimtsis last able provide material referred dimtsis declaration go say far failed obtain material dimtsis lost interest busy nothing show material obtainable bearing would case mr dimtsis came scene 1985 well appear later reason relevant date determination proceeding nature evidence provided person mentioned sub para 6 iii v bearing would opposition specified fact original applicant alkis konstantellos made declaration answer dated 8 september 1989 time matter relevant opposition raised seems attempt cure deficiency evidence already lodged indeed applicant case appear seeking prolong proceeding hope like mr micawber something turn view purpose provision relating lodgment evidence absence clear demonstration exists evidence obtainable reasonable diligence earlier would important bearing determination opposition application special leave adduce evidence refused m unsworth submission raised three issue likelihood deception confusion 28 proprietorship mark 40 registrability mark 24 1 convenient deal turn section 28section 28 provides follows 28 mark use would likely deceive cause confusion b use would contrary law c comprises contains scandalous matter would otherwise entitled protection court justice shall registered trade mark m unsworth submitted use mark suit applicant assignee either date lodgment application present date would contrary 28 use would resulted would result passing action brought opponent b action pursuant tosection 52of thetrade practice act 1974 cth brought opponent c action pursuant various state fair trading provision brought opponent confusion deception trade origin good bearing trade mark four claim first three relevant tos 28 b matter within competence decide fourth go tos 28 test applied unders 28is well established one evershed j insmith hayden co application 1945 63 rpc relation 11 uk act adapted case suit test may stated thus regard opponent use mark dodoni tribunal satisfied mark applied dodoni used normal fair manner connection good covered registration proposed reasonably likely cause deception confusion amongst substantial number person furthermore established right party determined date application per kitto j insouthern cross refrigerating co v toowoomba foundry pty ltd 1954 91 clr 592 595 opponent evidence use reputation mark contained declaration alexandros ragos vice president opponent emmanuel kotis sale director elco food co pty ltd opponent australian licensee 16 person engaged trade dairy product especially cheese mr ragos state opponent began export cheese bearing mark dodoni australia 1978 since substantial quantity cheese sold throughout australia 1983 cheese distributed company called spartan spice australia pty ltd 1983 elco food company pty ltd became australian distributor mr kotis sale director latter company state since 1983 elco effected sale three four million dollar australian per annum cheese bearing mark wholesale level period company expended approximately 30 000 per year advertising promotion cheese bearing trade mark say knowledge experience trade aware member trade including wholesaler use word dodoni except identification good opponent mr kotis made declaration reply dated 18 december 1990 time become director elco declaration mr kotis state cheese bearing dodoni trade mark sold throughout australia since 1983 variety type outlet including major retail outlet example cole new world supermarket safeway supermarket tuckerbag cut price deli snow deli david jones myer store rite way supermarket foodtown supermarket ssw supermarket smaller delicatessen boutique food shop market since 1983 belief 4 800 tonne cheese bearing mark dodoni sold wholesaler australia dollar value 45 000 000 elco spent vicinity 210 000 seven year since 1983 advertising good since 1986 dodoni cheese major sponsor south melbourne hellas soccer club ltd giving product high public profile however evidence extent use mark date lodgment application 10 october 1985 indication use mark prior date number copy invoice relation advertising dodoni cheese radio television local greek newspaper evidence reply also includes 16 declaration person engaged retailing foodstuff particularly retail delicatessen person various degree experience trade ranging three 34 year length knowledge mark dodoni also varies seven mention period three claim knowledge mark since 1978 two since 1980 early 80 four specify three six eight ten year one declaration made course 1990 16 declarants associate mark cheese manufactured opponent 14 recognise elco importer distributor none 16 declarants aware use mark relation cheese anyone else evidence prepared find use applicant mark dodoni relation cheese relevant date 10 october 1985 would likely lead deception confusion substantial number person however finding conclusive section 28 subject recent decision court particular high court innew south wale dairy corporation v murray goulburn co operative company ltd 1990 hca 60 18 ipr 385 themoocase case court held majority operation para 28 limited requirement blameworthy conduct part proprietor mark likelihood deception confusion brought action proprietor whether result reading para 28 conjunctively para 28 construing 28 context act whole together general policy consideration federal court earlier reached conclusion inriv oland marble co vic pty ltd v settef spa 12 ipr 321 also majority decision true case mentioned relate application expungement registered mark also true judge high court themoocase supra brennan j expressly adverted question application registration said 404 paragraph 28 prohibits original registration mark use would likely deceive cause confusion albeit prohibition qualified concurrent use provision 34 registration para operates different regime upon registration proprietor acquires statutory right exclusive use mark subject condition limitation registration subject 58 2 regime hold registered trade mark wrongly remaining register whenever use mark becomes likely deceive cause confusion would expose registered proprietor statutory right destruction hand person creates likelihood deception confusion premium would placed windeyer j called assiduous effort infringer bali brassiere co inc registered trade mark berlei ltd application 1968 hca 72 1968 118 clr 128at 133 hand hold trade mark validly registered never expunged use becomes likely deceive cause confusion reason circumstance occurring since registration would empower registered proprietor create likelihood impunity neither construction accord object act seek give protection public deceptive confusing use trade mark eno v dunn 1890 15 app ca 252at 263 4 radio corp pty ltd v disney 1937 hca 38 1937 57 clr 448at 458 9 confer registered proprietor time specie property trade mark see s 57 82 entitling right conferred 58 allowing permitted user derivative benefit 77 refers application original registration one object effect must given application registration effect must given object operation 28 therefore depends whether applied application original registration application expunction entry attacked 22 proceeding wrongly remaining register 28 applied differently registration clear hand bowen c j federal court decision theriv olandcase said 327 think conscious leaning construction 28 regard blameworthy conduct part proprietor would lead situation described windeyer j proprietor mark might denied lose registration reason assiduous effort infringer adapt word cover period registration assiduous effort misappropriating user reference might denied registration period registration clearly imply interpretation 28 favoured court applies much application registration application expungement case lockhart j said 350 28 operation restricted reference 28 trader us registered trade mark another trader may exploit infringing use mark market place point said use registered mark proprietor mark would likely deceive cause confusion would extraordinary result conduct constituted infringing conduct could produce either invalidity mark liability expungement answer say court residual discretion decline order expungement even mark shown invalid fact infringing conduct rival trader circumstance referred could produce consequence registered mark becomes invalid extraordinary result correctness could accepted last resort would equally extraordinary proprietor mark law deprived right denied registration use mark would cause deception confusion result assiduous effort misappropriating user turn therefore question proprietorship mark proprietorshipsection 40 1 act provides follows 40 1 person claim proprietor trade mark may make application registrar registration trade mark part part b register opponent alleges applicant proprietor trade mark date application 7 march 1979 proprietor mark date concept proprietorship trade mark explained mcgarvie j insettef v riv oland marble10 ipr 402at 413 acquiring proprietorshipat common law present context treated including principle equity property trade mark could acquired public use mark trade mark right proprietor trade mark prevent use trade mark person original remedy protection right injunction restrain infringement principle way discretion exercised protect trade mark injunction settled court chancery case settled principle established type trade mark person could recognised right property would protected injunction g e trade mark 1973 rpc 297at 324 7 per lord diplock basic common law principle first person us trade mark appropriate type within country becomes proprietor mark registered trade mark yanx ex parte amalgamated tobacco ltd 1951 hca 28 1951 82 clr 199at 203 thunderbird product corp v thunderbird marine product pty ltd 1974 hca 51 1974 131 clr 592at 603 moorgate tobacco co ltd v philip morris ltd 2 1984 hca 73 59 aljr 77at 83 person becomes proprietor trade mark way entitled common law restrain person later commences use trade mark proprietor entitled restrain later user honest concurrent user trade mark example person innocently commences use trade mark unaware infringes proprietor right honest concurrent user common law neither proprietor honest concurrent user could restrict using trade mark could restrain usurper used mark g e trade mark supra 326 right concurrent user discussed detail later considering within 40 1 act time settef application registration proprietor trade mark one considers common law proprietor australia shell co australia ltd v rohm haas 1948 hca 27 1949 78 clr 601at 625 627 settef claim first person used trade mark australia therefore proprietor common law australia use trade mark settef overseas gave right proprietorship australia use inaustralia gave proprietorship thethunderbirdcase 1974 hca 51 1974 131 clr 592at 600 fact manufacturer proprietor trade mark overseas earlier used overseas give forensic advantage contest australian distributor claim proprietorship trade mark authority court regard slight use australia overseas proprietor sufficient give proprietorship trade mark australia seven co v ltd 1947 hca 59 1947 75 clr 203at 211 aston v harlee manufacturing co 1960 hca 47 1960 103 clr 391at 400 moorgate tobacco co ltd v philip morris ltd 2 1984 hca 73 59 aljr 77at 83 right claim proprietorship mark within meaning 40 1 therefore depends first use mark australia meaning word use act relevant difference concept use common law used act understood context definition trade mar 6 1 act w h will australia ltd v rothmans ltd 1956 clr 182at 191 estex clothing manufacturer pty ltd v elli goldstein ltd 1967 116 clr 254 271 definition follows trade mark mean except relation part xi mark used proposed used relation good service purpose indicating indicate connexion course trade good service person right either proprietor registered user use mark whether without indication identity person word use defined 6 2 follows 2 act reference use mark shall construed reference use printed visual representation mark b reference use mark relation good shall construed reference use mark upon physical relation good essential therefore use relied person claiming proprietorship mark use purpose indicating indicate connection course trade relevant good person use mark overseas manufacturer exporting good australia windeyer j observed theestexcase supra 271 overseas manufacturer project course trade country mean sale australian retail house good bearing mark good bearing mark displayed offered sale sold country use mark manufacturer constitutes connection course trade establishing prior use mark australia discussed high court inmoorgate tobacco v philip morris 1984 hca 73 3 ipr 545at 557 establish prior use mark australia moorgate relies upon evidence connection discussion loew philip morris introduction low tar nicotine cigarette australia packet cigarette associated advertising material displaying name kent golden light handed personally one instance sent mail representative philip morris australia evidence indicates least three occasion cigarette packet advertising material delivered time item delivered intention part loew would trade good australia matter decided name would used philip morris licence loew commence manufacture market good australia indefinite future time court referred large number case administrative decision consideration given constitutes use user trade mark purpose statutory notion proprietorship mark registration case establish necessary actual dealing good bearing trade mark local use mark trade mark may suffice imported good actually reached australia offered sale australia mark registered trade mark yanx ex parte amalgamated tobacco corporation ltd supra 204 5 mark used advertisement good course trade shell co australia v esso standard oil australia ltd supra 422 case however possible identify actual trade offer trade good bearing mark trade present case relevant time actual trade offer trade good bearing mark australia existing intention offer supply good trade local use mark trade mark merely preliminary discussion negotiation whether mark would used cigarette packet associated advertising delivered philip morris demonstrate loew marketing country philip morris might market licence loew decided manufacture trade good australia use mark locally future time relevant trade good australia delivery cigarette packet associated material philip morris circumstance constitute relevant user use australia mark kent golden light purpose indicating indicate connection course trade new cigarette loew order establish use relevant sense must possible identify actual trade offer trade good bearing mark existing intention offer supply good bearing mark trade themoorgatecase court found actual trade offer trade good bearing mark existing inteniton offer supply good bearing mark trade local use mark trade mark merely preliminary discussion negotiation whether mark would used likewise inw h will australia ltd v rothmans ltd 1956 hca 15 1956 94 clr 182cigarettes relevant trade mark available america australian company association american manufacturer transmitted order american living australia american company cigarette purchased paid united state e money sent australia australian company took part importation received commission cigarette labelled made united state australian company high court held use trade mark australia trade good took place united state trading ended good purchased otherwise acquired consumption hand thethunderbirdcase 1974 hca 51 1974 131 clr 592the importation one unit prototype purpose building selling good australia held use australia exporter australian manufacturer received unit entitled register trade mark also inblackadder v good road machinery co 1926 clr 332an australian company imported machinery united state bearing american exporter trade mark australian company removed american exporter trade mark put trade mark good sale although purchaser never saw exporter trade mark exporter held used australia absence fraud unlawful trader become registered proprietor trade mark used however extensively another trader trade mark similar good foreign country provided use foreign trade mark australia date application registration williams j inthe seven upcase regardless use right register foreign mark restricted cannot said owe duty proprietor foreign trade mark thus trade mark foreign company may properly registered australia agent australian importer good employee importer registration invalid even agent honestly registering protect principal good never sold australia bearing trade mark certina case 1970 44 aljr 191 alsoblackadder v good road supra declaration 26 january 1988 alexandros ragos vice president opponent state 1978 opponent cheese exported australia bearing dodoni mark since substantial quantity cheese sold throughout australia bearing mark unable infer statement without opponent first used mark australia 1978 alkis konstantellos evidence answer declares far relevant follows 1 thati one proprietor business name dodonis dairy product carried partnership john dimtsis said business carried partnership involved wholesale various dairy product distributor product period october 1985 august 1988 prior entering partnership mr john dimtsis october 1985 carried business selling various cheese product including feta cheese brand name dodoni also dodoni australia favourite quality feta initial involvement name dodoni dodonis begin early 1974 begun continental delicatessen oakleigh market atherton road oakleigh name dodoni delicatessen business involved realized opportunity selling greek style feta cheese could manufactured locally region greece feta cheese dairy product produced basic knowledge process begun early 1974 experiment locally produced milk various type product later begun selling brand name dodoni australia favourite feta 2 june july 1975 became acquainted one vic sapkin manager petersville milk product trafalgar supplied various type tasty vintage cheese mr sapkin also produced greek type feta cheese time discussion able enter mutually acceptable term whereby company could produce variation feta cheese supply various quantity prepacked tin container 14 5 kilogram nett product begun selling public continental delicatessen oakleigh also various small manufacturer greek type cheese pie brand name dodoni australia favourite quality feta subsequently able negotiate agreement supply atlas olive oil company pty ltd feta cheese brand name together dairy product company distributed delicatessen outlet throughout state victoria also interstate vic sapkin referred para 2 state declartion 21 september 1989 2 thatfrom period begginign sic end 1975 early 1976 negotiation made mr alkiviadis konstantellos production petersville milk product trafalgar greek style feta cheese early 1976 onwards various quantity greek style feta cheese including vintage tasty parmesan cheese manufactured sold mr alkiviadis konstantellos sold said product particular greek style feta cheese style dodoni feta quality australia favourite particular said greek style feta sold aforementioned brand name packed tin container 14 5 nett weight premise reason doubt veracity messrs konstantellos sapkin fact attested declaration constitute use mark dodoni relation cheese applicant one 1974 1975 1976 conclusion law unable draw basis statement alone thus firm evidence basis conclude applicant used mark date lodgment application registration 10 october 1985 m unsworth referred declaration reply evangelos panayotakos dated 1 june 1990 mr panayotakos state 1973 wrote opponent greece enquire possibility importing cheese australia exhibited declaration copy reply opponent dated 24 june 1973 export manager opponent state opponent would interested exporting australia quoting price term mr panayotakos later decided pursue matter exhibited second declaration emmanuel kotis dated 18 december 1990 copy together translation guarantee body called synergal epe co operative dairy factory state company conducted market research survey australia behalf opponent 1973 1974 purpose assessing possibility exporting opponent cheese m unsworth submitted activity constitute use mark course trade cannot agree first case communication opponent mr panayotakos nothing preliminary discussion negotiation referred themoorgatecase supra actual trade offer trade good existing intention offer supply good trade second case research inquiry merely act preparatory commencement trade good also exhibited second kotis declaration however number order invoice relating placement radio television newspaper advertising many contain reference word dodoni mention name distributor elco food company however several contain express reference dodoni cheese earliest date late 1983 early 1984 therefore firm evidence use mark opponent relation cheese date application whereas evidence part applicant consequence opponent entitled considered proprietor mark australia registrabilityms unsworth submitted word dodoni registrable trade mark primary signification geographical name name village greece argued therefore word disqualified registration virtue 24 1 small town village region epirus opponent resides ancient time site sanctuary oracle god zeus ancient time well modern name place ended greek letter eta indicated feminine gender roman transliterated letter eta latin equivalent place known dodona still spelling name town found example webster new geographical dictionaryandthe time atlas world publisher however adopt convention transliterating eta reflect fact modern greek letter pronounced ee word greek true example ofchambers world gazeteer case however greek letter delta transliterated dh reflect fact also letter pronounced modern greek th name village would thus rendered dhodhoni circumstance may doubted word dodoni geographical name appear reference consulted examiner reason objection raised first report withdrawn attorney applicant submitted even word name place place historical archaeological interest geographical name trade mark purpose submission like examiner agree declaration paul egonidis applicant stated many cheese manufacturing processing plant located near small village dodoni state well known many greek producer manufacturer cheese region epirus also include word dodoni part descriptive mark feta cheese evidence refers annexure marked pn1 appears photocopy photocopy photograph tin container bearing word feta cheese ioannina greece english together device indistinguishable second bear inscription greek letter together device third german bear word schafskaese feta ioannini griechenland device fourth container carry word färost feta smaller lettering three word first last illegible first letter middle word appear dodon two remaining letter illegible impossible ass significance evidence nothing show producer cheese would require use word dodoni indicate geographical origin good light doubt already expressed whether dodoni fact name place question must decline find mark registrable mark geographical name conclusionin result found mark suit registrable mark opponent entitled considered proprietor use mark applicant assignee would lead deception confusion public mark thus offends provision 28 opposition allowed opponent successful entitled cost taxed official scale award homann hearing officer7 june 1991

Wayne Newitt v Anthony Gilbert Leitch [1997] TASSC 26 (20 March 1997).txt

wayne newitt v anthony gilbert leitch 1997 tassc 26 20 march 1997 supreme court tasmaniawayne newitt v anthony gilbert leitchfile lca 150 1996judgment 24 1997number page 10restitutioncourtin supreme court tasmaniawright jcatchwordsrestitution total failure consideration partnership agreement business unprofitable whether founding partner identifiable interest business aust dig restitution 71 restitution mistake whether money paid pursuant subsisting contract may recovered unless contract vitiated whether mistake fundamental contract aust dig restitution 71 hearinghobart 4 5 14 march 1997 hearing 20 march 1997 decision 20 3 1997counsel appellant j lathamrespondent l j neaseysolicitors appellant page seagerrespondent legal aid commission tasmaniaorderorder appeal dismissed decisionwright j1 appeal judgment commissioner court request delivered hobart 16 december 1996 lower court action respondent sued appellant 4 660 alleged unpaid balance purchase money due appellant respondent respect partnership individual known duke avram entered 31 march 1992 prior respondent worked mr mccarthy statewide real estate sorell employment eighteen month short period unemployment joined michael bowerman real estate principal firm michael bowerman discussion respondent mr bowerman merit setting real estate office sorell respondent intention capitalise goodwill felt built sorell midway point dodge ferry area preparation commencement new business sorell registered name south east real estate accordance thebusiness name act1962

Re Walter Corneille Clement Marie Janus v Australian Securities Commission [1992] FCA 552 (17 November 1992).txt

walter corneille clement marie janus v australian security commission 1992 fca 552 17 november 1992 federal court australiare walter corneille clement marie janusand australian security commissionno q g3016 1992fed 999number page 9corporationscourtin federal court australiaqueensland district registrygeneral divisiondrummond j 1 catchwordscorporations application leave manage corporation pursuant 229 3 corporation law applicant convicted stealing trustee offence connected running corporation mitigating feature offence applicant given leave take part management particular corporation otherwise director corporation law 229re magna alloy research pty ltd 1975 1 aclr 203re zim metal product pty ltd 1977 2 aclr 553hearingbrisbane17 11 1992counsel applicant p r dutney qcsolicitors applicant b williamsno appearance respondent orderthe court order 1 applicant leave take part management ofthe australasian franchisees association limited anycapacity capacity director note settlement entry order dealt order 36 federal court rule decisiondrummond j application mr janus leave pursuant 229 3 corporation law manage corporation counsel mr janus explained nature application one primary relief sought general leave participate management corporation mr janus may able obtain position explains application also made alternative leave take part management particular company australasian franchisees association limited 2 far wider basis application concerned referred passage judgment bowen c j magna alloy research pty ltd 1975 1 aclr 203at 205 suggested somewhat delphic passage indeed support argument put forward honour proceeding assumption general leave kind primarily sought granted satisfied general leave granted although structure 229 impose general prohibition give court leave lift prohibition leave may condition restriction court think fit however unnecessary determine issue material even power grant general leave would regard proper case grant 3 real focus attention whether application granted relation narrow relief sought background matter covered quite fully affidavit sworn mr janus australian security commission served application original supporting affidavit attitude reflected letter dated 22 september 1992 exhibited affidavit mr janus filed 7 october 1992 legal officer queensland office commission say commission neither consent opposes application intend appear hearing matter 4 australasian franchisees association limited company management mr janus wish become associated effectively control solicitor mr stephen cummins intended seek develop business company lobbyist franchisees mr cummins desire mr janus involved activity particular company 5 mr janus solicitor supreme court queensland struck roll solicitor charge heard found proved statutory committee queensland law society july 1987 charge related dealing two group client bromleys mr lenton course practice solicitor dealing ultimately led charged two offence stealing trustee amount involved bromley matter order 27 000 00 amount involved lenton matter order 35 000 00 mr janus pleaded guilty charge 23 march 1989 sentenced imprisonment count three year sentence served concurrently honour judge mcguire imposed sentence made recommendation mr janus released parole serving one year 6 material indicates real doubt indeed whether mr janus fact guilty criminal offence relation bromley matter sequence event company controlled mr janus sold certain land bromleys accordance contract sale sum 27 000 00 paid behalf bromleys sum ultimately found way mr janus trust account account company material indicates fund belonged mr janus company relevant time 7 mortgage granted mr janus company agc advance limited agc land sold bromleys one lot large subdivision bromleys order procure unencumbered title settlement paid mortgage obligation mr janus company contract bromleys lift mortgage mr janus company dispute agc evidence indicate relevantly indebted agc agc bound lift mortgage bromley settlement without payment mr janus company nevertheless agc took attitude already indicated material indicates prior settlement sale contract mr janus behalf company offered pay without prejudice necessary fund agc procure release mortgage agc declined settlement mr janus company 8 money bromleys used lift agc mortgage came queensland law society fidelity fund law society subsequently pursued mr janus obtained summary judgment amount question sought bankrupt respect bankruptcy petition mr janus given leave go behind judgment show effect indebted fidelity fund petition dismissed law society elected proceed 9 mr janus say advice counsel committed offence nevertheless pleaded guilty explanation two fold first mr janus subjected great stress particular time concerned family state ill health suffering depressive psychiatric condition second explanation fact far lenton matter concerned indeed guilty acknowledgment affidavit read particular offence involving stealing lenton trust money may well thought little point defending bromley charge circumstance bound sentenced term prison 10 said relation lenton matter must say circumstance offence revealed affidavit indicate mean worst kind offence class envisaged fact think reflected seems fairly lenient sentence three year imposed judge mcguire experienced district court judge reinforced fact honour made recommendation early release referred 11 also say somewhat surprisingly although mr janus struck roll solicitor queensland according affidavit remains roll barrister solicitor supreme court victoria new zealand 12 far offence concerned serious offence dishonesty committed professional man involve seems misconduct connection running corporation including company controlled mr janus vendor bromleys 13 magna alloy research pty ltd 1975 1 aclr 203is authority proposition court power lift prohibition imposed 229 3 corporation law person convicted punitive power designed protection public however aspect power reflected decision regard refer decision zim metal product pty ltd 1977 2 aclr 553 case two gentleman previously good character director small family company involved business succumbed temptation buy couple electrical appliance cheap price appliance stolen convicted receiving stolen property even though controlling director small family company number year previous good character course court took case refuse application leave participate management company director grant leave applicant take part management company capacity director reason approach appears comment made mcinerney j page 558 report said considered whether grant leave theapplicants become director come theconclusion policy legislation isthat prima facie person convicted applicant excluded director possible harmwhich might occur company applicant ifthey excluded management view much morereal harm may flow allowed tobecome director something said think view public morality better vindicated ifthe applicant continue excluded director creditor person dealing company knowor may hereafter come know conviction theapplicants may take view court view theconvictions matter concern court allows anapplicant reinstated director case inmy view real need appointment 14 material indicate impediment mr janus obtaining position mr cummins company prohibited acting director nevertheless free act capacity management company evidence would course take account deciding whether would give mr janus wider leave intend give although would course depend upon quality evidence whether application wider leave would event succeed regard comment zim metal product pty ltd regard important present day 15 also mention background application mr janus long standing psychiatric illness ascribes many difficulty material includes brief report psychiatrist treated number year report dated 25 september 1992 dr theodoros specialist psychiatrist say mr janus consulted regularly last 3years 16 refers long standing disorder say time take last three year hismood stable opinion fit toexercise reasoned judgement 17 nothing seen read matter would throw slightest doubt upon doctor opinion 18 regard matter referred nature offence fact involve abuse position relation management corporation mitigating feature offence matter deposed length mr janus concerning difficulty obtaining employment support wife family prepared grant leave mr janus take part management company australasian franchisees association limited capacity capacity director

Lu, Wei Bin [2004] MRTA 1561 (12 March 2004).txt

lu wei bin 2004 mrta 1561 12 march 2004 2004 mrta 1561catchwords review visa refusal subclass 300 prospective marriage subsequently married regulation 2 08ereview applicant wei bin luvisa applicant zhan yu wentribunal migration review tribunalpresiding member wendy machinmrt file number n03 05139dept file number osf2003 051450date decision 12 march 2004at sydneydecision tribunal remit application made visa applicant prospective marriage temporary class visa department immigration multicultural indigenous affair reconsideration direction application taken also application partner migrant class bc visa ii partner provisional class uf visa andthe application visa applicant made day visa application remitted department statement decision reasonsapplication review1 miss zhan yu wen visa applicant national people republic china born 6 january 1980 applied prospective marriage temporary class visa 2 june 2003 d1 f 60 delegate minister immigration multicultural indigenous affair delegate decided refuse grant visa 17 june 2003 d1 f 75 tribunal subsequently advised visa applicant review applicant married china 6 february 2004 jurisdiction standing2 mr wei bin lu review applicant fiance visa applicant lodged application review tribunal 17 july 2003 t1 f 6 decision reviewable tribunal application review properly made combined lodgement person standing apply review legislation policy3 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa department reconsideration remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 4 regulation 2 08e amended migration amendment regulation 2002 2 statutory rule 2002 86 amendment regulation 2 08e took effect 1 july 2002 apply review application finally determined date application review made 1 july 2002 5 prospective marriage temporary class visa application refused department visa applicant marries merit review finally determined amendment regulation 2 08e permit tribunal remit application department reconsideration direction application also considered application partner migrant class bc partner provisional class uf visa regulation 4 15 4 provides tribunal permitted remit application direction relation regulation 2 08e 2b 6 relevant regulation set 2 08e 2a subregulation 2b applies person applicant applies prospective marriage temporary class visa visa application b minister refuse grant visa c applicant sponsor applicant make application review minister decision migration review tribunal review application review application made accordance act e period minister decision made review application finally determined applicant marries person specified application visa applicant prospective spouse f applicant notifies migration review tribunal marriage g marriage recognised valid purpose act 2b paragraph 349 2 c act migration review tribunal must remit visa application minister reconsideration direction application taken also application partner migrant class bc visa ii partner provisional class uf visa b made day visa application remitted minister evidence7 tribunal following document t1 mrt case file n03 05139 folio numbered 1 184 d1 departmental case file osf2003 051450 folio numbered 1 92 8 visa applicant sponsored connection visa application review applicant australian permanent resident born guangdong people republic china 13 january 1976 d1 ff 9 10 visa application made 2 june 2003 d1 f 60 9 17 june 2003 delegate refused visa application basis visa applicant satisfy clause 300 216 satisfied visa applicant review applicant genuine intention live together spousal relationship d1 f 72 10 12 february 2004 tribunal informed review applicant legal representative e mail review applicant visa applicant married representative also stated relevant document would forwarded tribunal following review applicant return australia following week 11 20 february 2004 review applicant provided tribunal evidence marriage visa applicant review applicant stated visa applicant married dongguan municipality people republic china 6 february 2004 t1 f 152 12 evidence tribunal marriage visa applicant review applicant appears valid australian law 13 prior visa applicant review applicant submitted evidence tribunal relationship including notice intended marriage d1 ff 40 41 finding reasons14 tribunal find visa applicant meet requirement subregulation 2 08e 2a visa applicant applied prospective marriage visa minister refused grant visa sponsor applicant subsequently made application review decision review application made accordance act visa applicant married prospective spouse review applicant notified tribunal marriage marriage appears recognised valid purpose act 15 accordingly pursuant regulation 2 08e 2b tribunal must remit visa application minister reconsideration decision16 tribunal remit application made visa applicant prospective marriage temporary class visa department immigration multicultural indigenous affair reconsideration direction application taken also application partner migrant class bc visa ii partner provisional class uf visa andthe application visa applicant made day visa application remitted department

Fogarty and Comcare [2007] AATA 1299 (3 May 2007).txt

fogarty comcare 2007 aata 1299 3 may 2007 last updated 4 may 2007administrative appeal tribunaldecision reason decision 2007 aata 1299administrative appeal tribunal a2006 1general administrative division relorraine fogartyapplicantandcomcarerespondentdecisiontribunalj w constance senior memberdate3 may 2007placecanberradecisionthe application comcare dismiss application pursuant tosection 42bof theadministrative appeal tribunal act 1975is dismissed j w constance senior membercatchwordspractice procedure whether application vexatious frivolous whether possible remedy would futile psychological effect return work plan real issueadministrative appeal tribunal act 1975 cth 42bsafety rehabilitation compensation act 1988 cth s 37 41 62 64re fearnley australian fishery management authority 2005 aata 147 2006 87 ald 159drake v minister immigration ethnic affair 1979 24 alr 577reasons decision3 may 2007j w constance senior memberintroductionthis application comcare dismiss application m fogarty ground frivolous vexatious reason follow comcare application refused factssince 2003 m fogarty received compensation payment respect injury received course employment finance officer within cultural facility corporation australian capital territory june 2004 m fogarty commenced return work plan plan amended march 2005 1 amended plan m fogarty worked restricted hour also attended course canberra institute technology 25 august 2005 corporation made amendment return work plan providing detailed work schedule m fogarty 2 part amendment provided unless certified medically unfit attend undertake task duty associated study work trial ie 6 hr pw diploma gov fin mngmt 10 hr pw host employer amendment provided target start date 1 august 2005 target end date 23 september 2005 amended arrangement put place period proposed period m fogarty either attended work cit course required absent appropriate medical certificate material suggests m fogarty complied fully amendment plan comcare conceded hearing upon request m fogarty decision amend plan reconsidered comcare affirmed decision m fogarty applied tribunal review comcare decision m fogarty application yet heard comcare applied direction pursuant tosection 42bof theadministrative appeal tribunal act1975

Obeid and Obeid (Child support) [2019] AATA 6620 (9 December 2019).txt

obeid obeid child support 2019 aata 6620 9 december 2019 last updated 19 march 2020obeid obeid child support 2019 aata 6620 9 december 2019 division social service child support divisionreview number 2019 sc016852applicant mr obeidother party child support registrarms obeidtribunal member j arcydecision date 9 december 2019decision tribunal set aside decision review substitution decides period 18 september 2018 10 october 2019 mr obeid child support liability assessed adjusted taxable income 154 742 thereafter mr obeid child support liability assessed m obeid adjusted taxable income determined income tax assessment catchwordschild support departure determination income property financial resource liable parent benefit derived share holding decision review set aside substitutednames used published decision pseudonym reference appearing square bracket indicate information omitted decision replaced generic information identify involved individual required bysubsections 16 2ab 16 2ac thechild support registration collection act 1988 reason decisionbackgroundmr obeid seeking review decision department human service child support child support ass child support liability adjusted taxable income 147 738 period 18 september 2018 17 september 2019 mr obeid m obeid parent child 1 born april 2012 twin child 2 child 3 born december 2013 november 2019 child support made decision care child assessed mr obeid 39 care child 22 november 2018 m obeid 61 care child november 2018 m obeid applied change assessment child support reason 8a mr obeid income earnings financial resource mr obeid cross applied reason 5 money good property received benefit child time mr obeid assessed pay annual rate child support 17 151 period 12 september 2018 21 november 2018 14 964 period 22 november 2018 30 june 2019 based provisional income 120 000 2018 2019 income estimate 50 109 m obeid march 2019 child support decision maker refused change assessment reason established m obeid objected decision june 2019 objection allowed period 18 september 2018 17 september 2019 mr obeid adjusted taxable income set 147 738 resulting increase child support payable 17 151 22 282 18 september 2018 21 november 2018 increase 14 964 19 596 22 november 2018 1 july 2019 mr obeid lodged application review administrative appeal tribunal tribunal direction issued 22 october 2019 9 december 2019 tribunal discussed application review mr obeid m obeid telephone following material available tribunal party subsection 37 1 theadministrative appeal tribunal act 1975statement document numbered 1 531 additional document a1 a333 mr obeid additional document b1 b23 m obeid hearing m obeid provided additional material tribunal recent payslip response application review letter mr obeid solicitor mother solicitor dated august 2018 tribunal exchange document mr obeid would access solicitor letter payslip consistent statement financial circumstance provided m obeid information contained response covered adequately hearing issuesthe statutory provision relevant review set thechild support assessment act 1989 assessment act section 98c provides registrar may make determination depart formula assessment establishes three step process registrar tribunal standing place registrar must consider whether ground departure exists ii whether equitable regard child liable parent carer entitled child support change administrative assessment regard matter set subsection 117 4 assessment act iii whether otherwise proper change administrative assessment child support ground departure administrative assessment child support covered subsection 117 2 assessment act relevant reason case reason 5 special circumstance case application relating administrative assessment child support would result unjust inequitable determination level financial support provided liable parent child money good property provided benefit child reason 8 special circumstance case application relating administrative assessment child support would result unjust inequitable determination level financial support provided liable parent child income property financial resource either parent reason 8a subparagraph 117 2 c ia earning capacity either parent reason 8b subparagraph 117 2 c ib considerationdoes ground departure exist reason 5 provision money good property benefit childrenmr obeid submitted m obeid child benefit living former family home time pay 915 per week rent le attractive property m obeid received rent granny flat 14 000 15 000 paying 100 week remain house estimated 40 000 difference living cost result arrangement amount considered benefit child stability provided remaining family home mr obeid explained party agreed consent order ratified family court december 2019 following recent sale property view liability included consent order however finalise property settlement expeditiously prepared raise thought 60 000 debt owed m obeid included 40 000 referred however wished amount 40 000 considered reason 5 evidence tribunal liability incurred mr obeid rent house m obeid remained house payment lieu child support according evidence given party former marital home sold consent order agreed concerning division asset open mr obeid raise issue liability discrepancy living cost caused m obeid child remaining former matrimonial home property settlement negotiation evidence chose ensure process expedited family court appropriate venue deal matter mr obeid raised outstanding liability chosen ensure settlement go ahead december 2019 avoid legal cost tribunal found open mr obeid attempt reopen property settlement issue context child support assessment mr obeid established special circumstance demonstrate paid transferred money property benefit child reason 5 established reason 8 income property financial resource partiesms obeid submitted mr obeid adjusted taxable income 251 667 made following component annual salary mr obeid payslip 119 450share dividend company 1 132 217 92 550 grossed m obeid submitted history share dealing mr obeid mother past subsequently reversed process family court negotiation proceeds placed marital asset pool rejected mr obeid response since sold share mother 300 000 aware mr obeid financial circumstance would fund purchase share added married mr obeid working would transfer dividend taxable income vicinity 100 000 year able nominate person receive dividend nominated mother receive basis past history share dealing mr obeid mother m obeid requested tribunal impute mr obeid shareholder dividend payment 132 217 2018 2019 financial year mr obeid acknowledged m obeid received dividend 30 000 company 1 considered partial property settlement recently sold 2 500 share mother 298 900 enable purchase property property settlement finalised income comprises annual earnings 119 000 according payslip evidence available tribunal tribunal make following finding party relationship mr obeid purchased share company 1 company work occupation 1 share held former wife name theconstitutionof company 1 state full time employee company 1 right share company 1 however share may held one nominee full time employee according letter mr obeid solicitor august 2018 m obeid share transferred company company 2 trustee discretionary trust trust name mr obeid director company 2 mother mr obeid director secretary company 2 consideration proposed share transfer company 2 paid may 2018 sum 208 943 deposited directly party joint home loan account mr obeid february 2018 dividend 31 500 transferred company 2 bank account transferred mr obeid may 2018 amount 30 000 paid mr obeid mother transfer discovered course property settlement proceeding equivalent amount transferred m obeid m obeid declared amount income mr obeid considered prepayment property settlement declare income conciliation conference march 2019 agreed reverse sale share mr obeid balance sheet dated august 2019 prepared registrar family court show value mr obeid share 298 800 according share purchase agreement dated october 2019 mr obeid purchased 2 500 share company 1 298 800 bank customer receipt mr obeid bank bank statement show deposit 298 800 later october 2019 shareholder dividend statement company 1 30 june 2018 show total dividend payment 47 500 m obeid 31 500 franking credit 13 500 company 2 atf trust name shareholder dividend statement 30 june 2019 show total dividend 92 550 paid company 2 atf trust name evidence legal ownership share passed mr obeid deposited amount 208 943 directly party joint home loan account mr obeid acknowledged time slow effecting legal transfer legal transfer took place time contrast recent share purchase documented share purchase agreement arguably prior october 2019 mr obeid beneficial owner share mr obeid remained legal owner share dividend payment 31 500 february 2018 29 400 july 2018 29 400 august 2018 33 750 february 2019 made company 2 letter mr obeid solicitor law firm february 2019 note purchased additional 400 share october 2018 cost 47 808 tribunal concludes legal owner share mr obeid entitled dividend payment 76 242 2019 financial resource available mr obeid comprised annual earnings 110 000 reduced 119 450 reasonable tax deduction plus 44 742 29 400 29 400 33 750 47 808 154 742 therefore period review 18 september 2018 17 september 2019 financial resource available mr obeid 154 742 prior change assessment application mr obeid assessed provisional income 120 000 available financial resource period review create special circumstance establish reason 8 tribunal also find using provisional income 120 000 period mr obeid receiving dividend would produce unjust inequitable level child support considering m obeid relatively low income period income estimate period 50 109 derived earnings casual occupation 2 period evidence access financial resource income october 2019 mr obeid longer access dividend given mother since purchased share equitable depart administrative assessment regard following matter set subsection 117 4 assessment act considering issue tribunal must regard matter stated nature duty parent maintain child stated section 3 b proper need child c income earning capacity property financial resource child income property financial resource parent party proceeding da earning capacity parent party proceeding e commitment parent party proceeding necessary enable parent support ii child another person person duty maintain f direct indirect cost incurred carer entitled child support providing care child g hardship would caused child b carer entitled child support making refusal make order ii liable parent b child another person liable parent duty support making refusal make order mr obeid m obeid updated statement financial circumstance hearing however asset liability change significantly december 2019 consent order ratified comparatively mr obeid much stronger financial position m obeid senior occupation 1 date received salary dividend clearly much higher earning capacity m obeid considering professional background m obeid occupation 2 work casual contract basis across three workplace recently advised one contract renewed estimate average weekly income 1 415 compared mr obeid average weekly income 2 291 61 care child cover education fee sporting cost school sport uniform excursion expense reasonable family four person 2 138 per week well exceeds income outstanding loan father 25 780 owes around 11 000 legal expense tribunal satisfied equitable change assessment child support based assessment mr obeid available financial resource considering contract sale share mr obeid documented amount 298 800 mr obeid longer legal owner share basis ass financial resource available october 2019 absence evidence continue receive dividend company director tribunal therefore decided ass child support liability basis adjusted taxable income 154 742 18 september 2018 10 october 2019 thereafter child support liability based adjusted taxable income determined income tax return although child support liability increase tribunal found would experience hardship given partnered expense may overstated addition stated spends 14 040 year holiday entertainment discretionary expense secondary child support responsibility otherwise proper make change administrative assessment child support subsection 117 5 requires tribunal take consideration following matter nature duty parent maintain child stated section 3 particular fact parent child primary duty maintain child b effect making order would entitlement child carer entitled child support income tested pension allowance benefit ii rate income tested pension allowance benefit payable child carer entitled child support m obeid currently receiving payment family tax benefit cost community reduce due increase mr obeid child support liability however given mr obeid duty support child according mean tribunal considered otherwise proper change assessment child support decisionthe tribunal set aside decision review substitution decides period 18 september 2018 10 october 2019 mr obeid child support liability assessed adjusted taxable income 154 742 thereafter mr obeid child support liability assessed adjusted taxable income determined income tax assessment

Shop, Distributive and Allied Employees Association v Restaurant Brands Australia Pty Ltd t_as Pizza Hut - PR956695 [2005] AIRC 251; (23 March 2005).txt

shop distributive allied employee association v restaurant brand australia pty ltd pizza hut pr956695 2005 airc 251 23 march 2005 pr956695australian industrial relation commissionworkplace relation act 1996s 170ljcertification agreementsshop distributive allied employee associationandrestaurant brand australia pty ltd pizza hut ag2005 3080 pizza hut victoria employment agreement 2004 ag839184pr956521 tarrenlea ridge pty ltd pizza hut ag2005 3106 pizza hut victoria tarrenlea ridge agreement 2004 ag839185pr956522 911 enterprise pty ltd pizza hut ag2005 3107 pizza hut victoria 911 enterprise agreement 2004 ag839186pr956523 four j pty ltd pizza hut ag2005 3108 pizza hut victoria four j agreement 2004 ag839187pr956524 restaurantssenior deputy president watsonmelbourne 23 march 2005certification division 2 agreement organisation employee decision 1 decision given transcript conclusion proceeding 16 march 2005 substantially edited ensure confidentially financial strategic information put commission confidence 2 decision arises application pursuant tos 170ljof theworkplace relation act 1996 act certification four agreement involving pizza hut victoria respect store operated directly restaurant brand australia pty ltd restaurant brand franchisees three case 3 agreement made restaurant brand shop distributive allied employee association sda relation pizza hut victoria employment agreement 2004 sda relevant franchisee case 4 satisfied agreement concern matter relating employment relationship within meaning 170li act satisfied nothing arises 170lu act respect agreement would prevent certification 5 respect 170lt act agreement meet requirement act save except within 170lt 2 agreement pas disadvantage test inpart vieof act respect party rely public interest consideration 170lt 3 act submitting commission ought satisfied certifying agreement contrary public interest agreement taken pas disadvantage test matter turn shortly otherwise satisfied agreement made accordance withs 170ljof act valid majority person employed time whose employment subject agreement genuinely approved agreement significant majority 82 percent employee voted approved agreement done knowledge agreement pas disadvantage test 170xa act 1 agreement explained person appropriately accordance 170lt 7 act agreement contains dispute settlement procedure andeach agreement contains nominal expiry date 6 circumstance 170lt 2 act agreement meet requirement certification agreement within division 4 ofpart vibof act 7 relation disadvantage test none agreement diminish entitlement employee relevant award respect wage 8 agreement however provide wage level inferior provided relevant award context party sought commission take agreement passed disadvantage test basis 170lt 3 specifically party argued commission satisfied certifying agreement contrary public interest 9 public interest argument supported financial information past trading result projection several year detailed explanation corporate strategy place associated investment provided evidence mr k whitlow general manager restaurant brand victoria msv salmon chief executive officer restaurant brand new zealand 10 background wage level agreement commences 2001 agreement 2 sda tricon restaurant australia pty ltd predecessor restaurant brand operator pizza hut brand victoria conclusion period operation 2001 agreement wage rate provided agreement le provided within relevant award 3 adjusted safety net increase period agreement wage rate proposed current agreement excess provided conclusion 2001 agreement remain provided relevant award commencement agreement 11 approach party put mr dawson behalf employer party agreement supported evidence mr whitlow increase wage rate course agreement view achieving wage rate agreement least equivalent within relevant award conclusion agreement approach involves smaller increase initially larger increase throughout course agreement 12 approach wage within agreement taken context restaurant brand took pizza hut brand 2002 circumstance large proportion store administration technically insolvent majority trading unsustainable level addition time restaurant brand took pizza hut brand range problem pizza hut operation term operational standard declining sale profitability training selection retention staff 13 restaurant brand evidence put embarked strategy turn operation around put sustainable basis upon grow strategy involves substantial investment training management team member level reduced turnover staff provided higher level training staff increased focus improved service standard andsignificant capital expenditure 14 strategy involved substantial investment restaurant brand infrastructure training staff absorption considerable loss since taking pizza hut brand 2002 restructuring business toward delivery takeaway focus 15 recovery strategy directed reaching position operation profitable sustainable within time frame disclosed commission evidence financial material provided indicates progress direction already 16 party put contrary certify agreement circumstance active strategy place turn around operation company maintain employment within pizza hut group presently order 800 person particularly circumstance employee fully appraised term effect agreement supported valid majority 17 would satisfied certifying agreement contrary public interest circumstance whereby inefficient unproductive enterprise prospect long term viability without active strategy address immediate financial problem sustained payment wage condition safety net standard provided within award 18 however case relation matter evidence advanced place clear strategy directed turning business around putting viable basis capable providing ongoing increased employment basis payment term condition provided relevant award least conclusion current agreement strategy supported substantial investment training capital service standard detailed financial strategic information provided confidence suggests least realistic prospect turning operation around moving point whereby store operate medium term wage condition inferior within relevant award 19 circumstance satisfied contrary public interest certify agreement 20 understood decision taken regard made particular circumstance basis evidence expected certification future agreement respect business would found public interest circumstance disadvantage employee continued 21 therefore satisfied agreement taken pas disadvantage test reference 170lt 3 act 22 certify agreement term entered party commission senior deputy presidentappearances w dawsonwithk whitlowandv salmonfor restaurant brand australia pty ltd pizza hut others drewfor shop distributive allied employee association hearing detail 2005 melbourne march 16 printed authority commonwealth government printer price code 1the material provided employee sda commenced highlighted advice employee agreement pas disadvantage test clear employee valid majority given basis understanding affect agreement 2thepizza hut sda national employee relation agreement 2001 ag810431 3thepizza hut sda national employee relation award 2000 aw792506

SZLDQ v Minister for Immigration & Anor [2007] FMCA 2058 (13 November 2007).txt

szldq v minister immigration anor 2007 fmca 2058 13 november 2007 last updated 14 december 2007federal magistrate court australiaszldq v minister immigration anor 2007 fmca 2058migration visa protection visa refugee review tribunal application review rrt decision affirming decision delegate minister refusing grant protection visa applicant citizen people republic china claiming fear persecution reason falun gong practitioner jurisdictional error privative clause decision migration act 1958 cth s 474 1 474 2 minister immigration multicultural affair ex parte durairajasingham 2000 168 alr 407minister immigration ethnic affair v wu liang 1996 hca 6 1996 185 clr 259applicant szldqfirst respondent minister immigration citizenshipsecond respondent refugee review tribunalfile number syg 2417 2007judgment scarlett fmhearing date 13 november 2007date last submission 13 november 2007delivered sydneydelivered 13 november 2007representationcounsel applicant nilthe applicant appeared personcounsel respondent mr reillysolicitors respondent australian government solicitororders 1 application dismissed 2 applicant pay first respondent cost fixed sum 5 000 00 allow five 5 month pay federal magistratescourt australia atsydneysyg 2417 2007szldqapplicantandminister immigration citizenshipfirst respondentrefugee review tribunalsecond respondentreasons judgmentapplicantthe applicant citizen people republic china brought application review decision refugee review tribunal affirming decision delegate minister grant applicant protection visa decision signed 13thjune handed 3rdjuly 2007 applicant arrived australia 7thjanuary 2007 applied protection class xa visa 2ndfebruary 2007 application supported statement claimed practitioner falun gong claimed sent gaol several time claimed dismissed work unit result arrested detained claimed fear returning china fear persecuted chinese government 24thfebruary 2007 delegate minister refused grant applicant protection visa applicant applied refugee review tribunal 26thmarch seeking review delegate decision application accompanied supporting material tribunal wrote applicant 13thapril inviting appear tribunal give oral evidence present argument 6thjune 2007 9 30 6thjune applicant appeared tribunal gave oral evidence assistance interpreter mandarin language applicant claimed sent gaol several time wish return china afraid persecuted chinese government claimed friend sent gaol heard one tortured disability told tribunal terrible thing would happen claimed dismissed work unit investigated local police stated police made sure falun gong practitioner sent camp three month also stated 2002 detained local police one month wanted leave china applicant told tribunal like australia freedom added liked falun gong thing claimed became falun gong practitioner made feel better health wise also told tribunal never falun gong exercise china would like australia claimed flicked falun gong book stated got book spiritual belief thing 1 tribunal handed decision 3rdjuly 2007 tribunal decision record appears page 67 75 court book finding reason found page 71 75 tribunal satisfied applicant national china based finding copy applicant passport produced hearing however tribunal satisfied applicant falun gong practitioner participated falun gong activity australia tribunal found applicant claim lacked credibility tribunal accept applicant dismissed work unit sent camp three month interest chinese authority practice falun gong accordingly tribunal accept applicant well founded fear persecution convention reason china satisfied applicant person australia protection obligation refugee convention accordingly tribunal affirmed decision grant applicant protection class xa visa applicant commenced proceeding court 6thaugust 2007 application seek following order 1 writ certiorari quashing decision refugee review tribunal 2 order requiring refugee review tribunal reconsider matter according law 3 cost set three ground application follows 1 tribunal failed consider whole claim 2 reasonable tribunal accept dismissed work detained chinese authority 3 tribunal adequately consider would put danger went back china applicant file written outline submission attended court made oral submission answer question bench first ground tribunal failed consider whole claim applicant said tribunal consider fact detained put applicant however tribunal referred claim final paragraph tribunal said second tribunal found evidence relation dismissal arrest vague implausible lacking credibility applicant stated hearing dismissed work unit detained initially claimed detained falun gong practitioner protest changed evidence stating protest arrested sitting practitioner asked exactly time said sitting floor asked police would arrest sitting said know applicant failure provide meaningful detail relation significant claim present satisfactory reason police would arrest circumstance described cast doubt credibility claim 2 applicant make submission respect second third ground application appear contain description jurisdictional error rather go challenge tribunal factual finding second third ground particular go known merit review available judicial review tribunal decision read written outline submission prepared counsel respondent minister mr reilly outline mr reilly point tribunal found applicant credible tribunal noted applicant near complete ignorance falun gong vague unconvincing nature oral evidence considering decision view matter decided tribunal basis finding credibility applicant evidence tribunal set finding reason formed negative view applicant credibility tribunal pointed applicant knew little falun gong exercise fact exercise claimed know sitting taking deep breathe tribunal also noted applicant evidence fact learned done falun gong exercise china would like australia tribunal convinced applicant account arrested detained tribunal generally noted applicant vague inconsistent unconvincing evidence short matter decided entirely basis adverse finding credibility note delegate decision delegate formed similar view applicant credibility delegate said consider several aspect applicant claim lack credibility opinion applicant claim fabricated 3 credibility finding fact indeed counsel minister pointed finding credibility finding factpar excellence seere minister immigration multicultural affair ex parte durairajasingham 4 tribunal finding open evidence court cannot review merit tribunal decision seeminister immigration ethnic affair v wu liang 5 mindful fact applicant legally represented proceeding read tribunal decision supporting document independently either applicant application minister submission order ascertain whether jurisdictional error may appear satisfied jurisdictional error whether claimed applicant absence jurisdictional error tribunal decision privative clause decision defined sub 474 2 themigration act subsection 1 privative clause final conclusive subject order nature certiorari mandamus applicant claim follows therefore application must dismissed application cost behalf respondent minister amount sought 5 000 00 accord scale provided federal magistrate court rule applicant wholly unsuccessful claim view appropriate matter cost order applicant claim money reason make order cost matter taken account allowing time pay propose allow time pay certify preceding twenty four 24 paragraph true copy reason judgment scarlett fmassociate polleydate 5 december 2007 1 see court book page 68 2 see court book page 72 3 see court book page 37 4 2000 168 alr 407 67 5 1996 hca 6 1996 185 clr 259 272

Sole & Sole [2009] FamCA 339 (22 April 2009).txt

sole sole 2009 famca 339 22 april 2009 last updated 14 may 2009family court australiasole sole 2009 famca 339family law consent ordersfamily law act 1975 cth applicant mr solerespondent m soleindependent child lawyer file number mlc3420of2007date delivered 22 april 2009place delivered melbourneplace heard melbournejudgment cronin jhearing date 22 april 2009representationcounsel applicant mr j salamancasolicitor applicant mckean parkcounsel respondent mr g r dicksonsolicitor respondent kenna teasdalecounsel independent child lawyerms boymalsolicitor independent child lawyervictoria legal aidordersthat consent order accordance minute proposed order marked exhibit sealed attached hereto directed minute remain upon court file solicitor husband engross minute deliver electronic transmission associate within 7 day material produced subpoena forthwith returned recipient subpoena proceeding otherwise removed list case awaiting hearing pursuant tos 65da 2 62b particular obligation order create particular consequence may follow person contravenes order detail assist party adjust comply order set fact sheet attached hereto particular included order notedthat publication judgment pseudonymsole soleis approved pursuant tos 121 9 g thefamily law act 1975 cth family court australia melbournefile number mlc 3420 2007mr soleapplicantandms solerespondentreasons judgmentthis matter court list time party long arduous route get final hearing today lot hard work commonsense resolved parenting issue relation teenage child well property proceeding doubt causing angst familiar issue area outcome party drawn order relation child seems sensible best interest girl property issue matter court make order consent party satisfied outcome party equitable read financial document understood respective party argument satisfied order well within range probable outcome proceeding strong ring commercial reality circumstance prepared declare order equitable certify preceding five 5 paragraph true copy reason judgment honourable justice croninassociate date 30 april 2009

Alcohol Reform (Substance Misuse Assessment and Referral for Treatment Court) Act 2011 (No 19 of 2011).txt

alcohol reform substance misuse assessment referral treatment court act 2011 19 2011 table provisionslong titlepart 1 preliminary matters1short title2commencement3object act4definitions5principles6application criminal codepart 2 smart court7establishment8jurisdiction9registrar10where court may sit11when court must may closed12procedure13rules practice directions14right appeal supreme courtpart 3 referral offender smart court15referral csj yjc16relevant offence17eligible offender18immunity prosecutionpart 4 smart order orders19criteria making smart order20deferring sentencing making smart order21suspending execution sentence making smart order22conditions smart order23copies smart order givenpart 5 monitoring progress smart order imposing final sentence24monitoring progress conferring reward imposing sanctions25rewards sanctions26variation generally27bringing offender court failure comply28revocation progress unlikely risk community29revocation substantial compliance request30final sentence deferral sentencing31final sentence suspension execution sentencepart 6 court clinician assessment reports32appointment court clinician33functions power court clinician34assessment reportpart 7 miscellaneous matters35delegations36protection liability37regulationspart 8 repeal transitional matter alcohol reform substance misuse assessment referral treatment court act 201138definitions39repeal40relevant offence committed commencement day41continuation matter repealed act42locations building court sittings43court clinicianspart 9 consequential amendments44liquor act amended45prisons correctional service act amended46other law amended47expiry partschedule

InvoCare Pty Limited [2020] FWCA 2809 (29 May 2020).txt

invocare pty limited 2020 fwca 2809 29 may 2020 last updated 16 october 2020 2020 fwca 2809fair work commissiondecisionfair work act 2009s 185 enterprise agreementinvocare pty limited ag2020 1375 invocare australia pty limited tasmanian funeral operation enterprise agreement 2019funeral directingdeputy president colmanmelbourne 29 may 2020application approval invocare australia pty limited tasmanian funeral operation enterprise agreement 2019 1 invocare pty limited made application approval enterprise agreement known theinvocare australia pty limited tasmanian funeral operation enterprise agreement 2019 agreement pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 basis material contained application accompanying statutory declaration satisfied requirement ofss 186 187and188as relevant application approval met 3 australian worker union bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 based statutory declaration provided organisation note agreement cover organisation 4 agreement approved 29 may 2020 accordance withs 54 operate 5 june 2020 nominal expiry date agreement 30 june 2022 deputy presidentprinted authority commonwealth government printer ae508164pr719745

DPP v Taylor (as pseudonym) [2019] VCC 888 (13 June 2019).txt

dpp v taylor pseudonym 2019 vcc 888 13 june 2019 last updated 5 september 2019 county court victoriarevisednot restrictedsuitable publicationatmelbournecriminal divisiondirector public prosecutionsvroy taylor pseudonym judge honour judge tinneywhere held melbournedate hearing 6 may 7 june 2019 date sentence 13 june 2019case may cited dpp v taylor pseudonym medium neutral citation 2019 vcc 888reasons sentence catchword incest half brother sister long term course conduct charge age time offending possession child abuse material 4000 image upon arrest early plea valuable admission increased burden 5thlimb appearance counselsolicitorsfor directorms coombesoffice public prosecutionsfor accusedmr barrattjames dowsley associateshis honour 1 roy taylor 1 6th may year pleaded guilty five charge laid indictment filed court three charge incest one charge committing indecent act child 16 one charge possessing child abuse material one summary offence also pleaded guilty offence failure appear bail prosecutor correctly detailed oral submission various offence maximum penalty 2 indictment read conjunction agreed summary spell factual basis charge whether charge laid specific offence course conduct basis charge 1 relates brother single event charge 5 relates collection child pornography found upon arrest 2018 three charge relating sister course conduct charge 3 33 year age criminal history facts4 detail offending set exhibit written summary prosecution opening dated 23 april year m brien acting counsel told agreed statement fact circumstance really see need fully state fact reason stray beyond agreed statement 5 offending involves specific act incest charge 1 committed upon 6 7 year old brother whilst babysitting young course point 14 year age charge 2 3 4 relate offending sister charge laid course conduct basis encompass numerous act either penetrative hence laid incest non penetrative hence encompassed indecent act charge three charge span 5 year period sister 11 point turned 16 year age dealing act occurring prior turning 16 8 august 2008 charge 2 relates indecent act period described summary charge 3 relates many occasion penile oral penetration time frame charge 4 many occasion digital vaginal penetration period follows indictment summary whilst 14 offended brother 17 22 year age period covered next three charge 23 mentioned summary turned 23 october 2008 end date charge 2 4 8 august year offending unmistakably serious final charge relates significant enough collection child pornography located upon arrest 11 january 2018 6 victim subject charge 1 brother spoke july 2017 told recording conversation made admission went police month later sister eventually provided written statement 22 february 2018 arrested 11 january 2018 already made complete admission police interview 7 bailed appear court 16 january 2018 failed appear hence related summary matter matter came court way straight hand brief september last year plea listed january year date vacated mention called december 2018 owing report yet received potential difficulty envisaged legal team plea ready january adjourned 6 may 2019 matter adjourned yet 6 may application made counsel recently received brief got quite late notice host thing done believed needed done far blameless told one point turned drunk psychological assessment assessment could proceed provided key detail mr davy role life least misgiving adjourned case date may 7 june however though plain done assist legal team hence certainly want shut shut counsel getting material undoubtedly correct stance seen material obtained since victim impact8 turn briefly impact statement filed matter read victim impact since plea amply demonstrate incest serious destructive crime sister statement remarkable one describes various stage impact upon course life many way life altered conduct want statement read aloud extent take cue descend detail reason say though strong aspect sadness looking back seeing childhood innocence stolen many happy memory look back childhood brother evidently struggled anxiety feeling sadness anger impact large indeed sibling conduct really caused untold harm way know fragmented family damaged relationship life life claim love interview regard entirety admissible portion impact statement 9 take account sizeable impact crime submission mitigation10 turn submission made counsel 11 m brien conducted sensible realistic plea behalf 12 took background level detail also took range written material filed behalf including report neuropsychologist m evans one psychologist mr newton bundle case note support worker mr davy also written application national disability insurance scheme attached within medical report dr gidley well reference support worker mr davy orygen youth health inpatient unit discharge summary pertaining admission many year ago exhibit 6 also recent letter support mr davy much material gathered date adjournment may reason glad shut obtaining 13 mitigation m brien relied mainly upon early guilty plea presence least remorse high level co operation police age time offending absence past offence criminal record increased custodial burden case argued least prospect rehabilitation 14 conceded serious offending accepted significant prison term required one requiring fixing non parole period crown submissions15 m coombes appeared prosecute argued serious offending laid course conduct basis relation three charge significant period offending spelt plain enough material earlier uncharged misconduct relation sister discovered 1998 parent punished time counsel obliquely referred issue plea matter dealing relation charge 2 4 pertaining sister therefore occurred punished warned far younger m coombes argued least power sibling good deal older alcohol involved one instance rolled charge 3 accepted remorse simple issue seemingly conceded evidence least argued general deterrence significant sentencing purpose currently posed high risk offence took couple case sibling incest dealt court case holland 2018 vsca 241as well case joyner 2018 vcc 338 read case one said four plainly 16 circumstance director public prosecution state argued term imprisonment required well much already conceded counsel background17 turn background accept personal family background placed really point repeating contained quite detail report mr newton m evans m brien also took background written outline marked exhibit 1 well oral submission 18 briefly born 3 october 1985 33 year age come complex blended family structure parent separated young three understand mother partnered man brought relationship two child mother stepfather went two child two victim half sibling 6 8 year junior schooling obviously fragmented complete vce went couple year tertiary study discontinuing degree worked sporadically large number year disability support pension single live alone appears intimate adult relationship sexuality highly problematic plainly sexual attraction child persists day sexuality described mr newton profoundly disturbed unlike many paedophile admit attraction discussion mr newton 19 much material report mr newton m evans past psychiatric psychological diagnosis based account history plainly reliable historian mr newton view exaggerating symptom mention also made diagnosis autism asperger syndrome seemingly supported either expert written report placed however recently obtained material actually support diagnosis act strength dr gidley speaks matter fact way diagnosis treated time diagnostic label way important issue way functioning important diagnostic label 20 obviously intelligent man functioning least intellectually decent level according m evans social skill entirely different proposition altogether however may labelled diagnostically police interview oddness mention alter ego clara past interest furries rather odd person easily fit socialise probably massive understatement described mr newton eccentric socially awkward real problem establishing maintaining intimacy adult child far le threatening social anxiety worry part makeup doubt reactive legal predicament provided conflicting contradictory account alcohol use abuse 21 aside asperger syndrome seems likely adjustment disorder anxiety well personality disorder dysfunctional personality clearly meet criterion paedophilic disorder relatively insightless offending limited ability reflect wrongfulness conduct hence feel genuine remorse police interview instance suggested sister instigated conduct time insisted okay confident 22 feel felt time prosecution unjustified endorse range dysfunctional distorted belief sexuality child undoubtedly present high risk sexual offending worried court case outcome day day life well portrayed bundle case note personal support worker span year exhibit 5 read prior adjourning case may material produced leading remand plain material lived isolated lonely friendless pretty strange forlorn existence much need help support assistance day day basis really positive life bit grim actually contemplate guilty plea23 turn various matter raised mitigation first guilty plea pleaded guilty done earliest stage earlier still course extremely cooperative police made damaging valuable admission including making admission taped conversation brother 24 accept plea guilty must met sizeable appreciable discount law strong utilitarian value someone pleading guilty stage important taken full legal responsibility offending early 25 everyone plead guilty often enough people charged child sexual offence run matter trial take chance jury done taken early full legal responsibility crime 26 result plea community spared time cost effort associated criminal trial court committal magistrate court facilitated course justice pleading guilty earliest stage importantly victim spared experience called cross examined court stressful indeed course entirely averted 27 additionally take account level admission made arrested interviewed conduct point come light courtesy brother speaking recording admission going police conduct come light time police interview seemingly formal statement sister made admission misconduct provide much information police probably unaware including course even admission relation brother found charge 1 referred statement case doran 2005 vsca 271 latina 2015 vsca 102 well elli 2005 vsca 105 suggest sort detailed admission matter known police demonstrative sincere genuine remorse indicative good rehabilitation prospect may even lessen need specific deterrence problem course case expert material placed suggest little empathy questionable remorse best high enough risk offence may seems making admission still matter mitigation given nature value admission relation matter necessarily hand police believe must give quite separate weight detailed admission made accordance case remorse28 turn issue remorse simple business ordinarily guilty plea indicative remorse always position course early plea also admission made recorded conversation brother detailed admission made police contain face might appear expression remorse however also expert evidence especially mr newton suggesting quite opposite see para 31 also indicating preparedness exaggerate mislead see paragraph 10 13 report mr newton say expressed remorse conduct empathy likely effect behaviour high degree self pity mr newton describes account degenerating litany problem considered exculpatory punctuated repeated expression belief unfairly persecuted conduct back police interview sometimes seemed recognising wrong damaging conduct whilst time pointing claimed sister instigation reminding police age time offending see q476 479 29 m evans saw later mr newton suggests claim remorse made may somewhat superficial 30 reviewed material think revelling crime though left impression fully even greatly remorseful one impediment feeling full remorse sure totally warped distorted view child sexuality also still whatever reason strong sense hardly done matter prosecuted much work lay ahead change distorted mindset probably capable feeling full remorse obviously work progress 31 find counsel suggests least remorse overpowering emotion case sometimes indeed take view limited indeed remorse better none take account mitigation expert reports32 already mentioned many aspect report neuropsychologist m evans psychologist mr newton take opinion account also dr gidley going descend report case note great detail reduction criminal culpability found opinion recent material placed m brien explicit submitting realistic connection various condition spoken material offending accept submission went though argue one principle case verdin heard discussed application 5th limb case dealing increased custodial burden presently significant risk offending doubt possessing warped maladapted view hold child sexuality need serious long term treatment easy thing alter mindset accept though fit prison asperger syndrome view eccentric egocentric interpersonal style prison easy accept mr newton view likely experience difficult period adjustment prison life accept 5th limb case verdin application continue increased prison burden owing condition spoken expert material support worker note take account favour rehabilitation33 turn prospect rehabilitation counsel argued find prospect rehabilitation argued prior criminal history remorseful degree pleaded guilty earliest opportunity conceded conceded expert opinion mr newton problematic plainly sizeable risk reoffence owing lack insight empathy paedophilic orientation 34 face significant term imprisonment obviously play role deterring confident required undertake sex offender program also significant bar interaction child posed lifelong liability thesex offender registration act 2004that discus later reason four offence occurred setting living house child child step sibling many year ago course grown living house child presumably never occur life honour obligation sex offender registration act 5th offence though cannot ignored occurred far recently discloses recent warped mindset opinion mr newton discussion case old aberrant behaviour nothing occurring since present problematic issue still labour dysfunctional warped sexual orientation course act given existence child abuse material charge 35 mr newton say currently high risk sexual offence accept opinion say risk significantly higher risk posed typical sex offender accept counsel submission least prospect rehabilitation future high put really quite guarded case given risk assessment current sentencing practice36 take account current sentencing practice careful looking case statistic number reason court appeal decision dalgleish 2016 vsca 148was critical past sentencing practice instance crime incest aspect decision approved high court statistical snapshot crime snapshot 217 2018 relates far serious example incest maximum penalty 25 year sibling incest actually excluded statistical study critical importance 37 rightly wrongly fact sibling incest plainly regarded parliament far le serious parliament provided 5 year maximum term imprisonment crime charged incest judicial college victoria sentencing manual large number overview sentence summary many incest case see 31 11 3 1 2 sentence virtually pertain abuse committed parent step parent grandparent people much greater breach trust maximum period 25 year offending sibling commonly dealt 38 prosecutor m coombes referred case holland 2 also case joyner 3 decision one fellow judge bench read even case different indeed joyner instance offending targeting 3 sister period aged 10 18 none offending significant duration importantly 33 year 40 year passed suggestion current offending judge case sentencing 2018 offence ended early 1980 offence committed year ago true also possession child abuse material speaks current warped ideation case holland offender 2 year senior sister one charge laid representative two event one course conduct composite called charge relating three act single day judged low risk offence good prospect rehabilitation sent prison total effective sentence 2½ year non parole period 15 month 2 year imprisonment imposed one charge composite one say related three act single day 39 another reason caution adopted looking case statistical data mentioned dealing course conduct offending three charge two incest must impose sentence reflecting totality offending constituting course conduct multiple incident conduct sizeable time frame 5 year albeit within confines single maximum penalty necessarily sentence imposed single instance incest single instance commission indecent act provide relevant guidance task see crawford 2018 vsca 113 para 68 40 amount looking statistic sentencing outcome case provide answer correct exercise sentencing discretion case case different every offender judge exercise sentencing discretion case one lower maximum penalty owing sibling relationship one sizeable period course conduct extent though really put mind sort number discussed case dalgleish disclosed judicial college victoria material generally sentence imposed crime much larger maximum penalty typically graver breach trust offence gravity41 none say serious offending plainly crime incest viewed seriously court many reason seem identify interview none said lower maximum play alters impact crime comfort sibling sibling therefore lesser penalty come play 42 court appeal case mentioned dalgleish spelt seriousness offence reason dealing different variant decision view expressed parental responsibility decision dealt misconception seemed developed incest crime accompanied violence sexual penetration child nature act violence said court appeal concluded current sentencing practice reflect objective gravity offending moral culpability offender spoke recurring theme case involving offender ongoing parental responsibility towards child 18 immediately significant difference course parent relation offence brother child least start conduct sister sibling said many case relate incest committed parent stepparent strong familial breach trust well parent stepsibling remove case gravest category course expose far lesser maximum term said though recurrent feature commented broader case present invasion victim person exploitation vulnerable child violation societal norm long term severe impact breach trust undermining familial root society exist degree 6 year older sister 17 year old start act embraced charge 11 start offence gravity43 must pay regard gravity offence court single act brother 6 7 said three charge relating sister laid course conduct basis spanning 5 year embracing countless sexual act sister large chunk adolescence greatly damaged pervasive invasive conduct alcohol one occasion provided could debauch company one friend stage 13 14 course much older 44 must regard totality conduct nature task dealing course conduct offence able find much reduction culpability posed age time youth45 mentioned age course cannot overlooked 14 time single act brother child even commencement act sister child though obviously much older one age 17 46 conduct though continued well adulthood regrettably 47 age must attract level reduction culpability seems charge 1 probably least start next three charge age probably extent exploring sexuality without full advantage adulthood adult view value however satisfied knew seriously wrong illegal satisfied beyond reasonable doubt entirely reject account 48 cannot judge conduct though time fully developed adult time act brother said child one matter come light close event would dealt child court different system strong focus rehabilitation maintaining child family community course specialist jurisdiction longer available lost potential advantage child court sentencing process even adult court consideration may led availability youth justice centre disposition dealt 21st birthday relation matter 49 make plain way criticism complainant relation complaining swiftly brother small child 6 7 sister 11 conduct dealing started delay norm especially family setting many obvious compelling reason child wish complain potentially fragment family unit destructive crime standard response conduct people react variety different way people never complain many complain day many many year delay much normal response judge continuing learn brought range factor including course tender age victim incomplete understanding time significance wrongfulness act deep concern impact disclosure fear punishment victim even concern position offender sort thing abound fear breaking family unit well sister impact statement speaks eloquently matter 50 owing age though believe usual focus specific general deterrence must moderated least relation single act brother fact moral culpability adult committed crime even early act sister quite simply one child offending seen light see sherritt 2015 vsca 1 better 2003 vsca 71 miller 2011 1 vsca 143and boland 2007 vsca 242 51 however act continuing sister unmistakably serious early stage committed adult knew wrong indeed persisted choosing offend 52 exploited step sibling sexually age time provide comfort alter lasting impact brought conduct course warped betrayed relationship caused immeasurable harm whatever reason seem real difficulty understanding offending undoubtedly serious yet still sit today sense injustice finally brought account 53 child abuse material well possessed 32 year old man child teenager warped material showing real child offended analysis showed image child torture including image baby penetrated anally screwdriver chart categorisation set material 4 000 image 24 hour film image child aged 3 10 penetrated pay regard many authority dealing way seriousness child pornography offence assessed including case garside 2016 vsca 774 see also recent case mcniece 2019 vsca 78 could easily cite 20 case court appeal many strong statement made court appeal area strong public interest protecting child authority make clear child pornography victimless crime image depict real child real child exploited real child tortured image exist result market image one vast number making market sort conduct clearly prevalent must strongly denounced general deterrence loom large sentencing task suggestion making image profiting distributing large enough collection serious image serious offence right 54 taken account submission made counsel exhibit tendered also taken account submission made prosecution serious offender provision totality55 matter indictment sentencing serious sexual offender time third sentence imposed court serious sexual offender provision contained within thesentencing act 1991 unless otherwise direct sentence passed upon third sentence would served cumulatively upon earlier sentence imposed upon upon sentence imposed see 6eof thesentencing act 1991 56 additionally sentence imposed point must regard protection community principal sentencing purpose court provision power impose disproportionate sentence relation charge achieve purpose one suggests power ought exercised passing disproportionate sentence 57 though free ignore serious offender provision involve modification principle totality must give due weight see beyer v r 2011 vsca 15 r v rhmc 2000 hca 46 2000 203 clr 452 hpw2011 vsca 88 hopson 2016 vsca 303 58 must give weight tos 6eand nature offending clear still must pay regard principle totality though modified rule totality still important 59 given consideration overall effect sentence imposed engaged last look overall effect endeavouring avoid sentence might crushing upon ensure overall effect consistent overall actual criminality 60 quite aside presumption favour cumulation found in 6e would need cumulate portion sentence event serious crime serious separate criminal conduct two different victim one victim sister three charge spanning many year embracing many act broken particular type conduct court required regard 61 course recent possession child abuse material different serious crime totally different era recognition principal totality see going order significant enough measure concurrency principles62 turn principle sentencing sentencing really never simple easy task number sentencing purpose consideration court must regard must term sentencing purpose give weight denunciation rehabilitation need specific general deterrence community protection punishment 63 take account maximum penalty incest a5 year maximum term oddness obviously enough instance section 50f sibling incest offender much older sibling offence may bear characteristic serious incest offence see jcv 31 3 2 2 fact though met 5 year maximum penalty maximum oddness demonstrated indecent act offence higher maximum penalty child abuse material charge 64 pay regard current sentencing practice impact crime upon victim must consider prospect rehabilitation strong 65 punish justly proportionately 66 must denounce conduct important denounce conduct whether realise committed serious crime conduct wrong destructive damaging 67 must also consider protection community principal purpose crime sentenced serious sexual offender community protection obviously important consideration independent statutory requirement risk assessment mr newton report tell much significant risk maybe risk reduce counselling treatment future know soon know 68 must also deterred must dissuaded deterred ever committing crime ever past relevant conduct pleaded guilty early level remorse facing significant period behind bar easy custody offending occurred setting able access child sibling said earlier reason sort thing unlikely recur given limitation contact child thrown sex offender registration act provision quite sobering opinion provided mr newton risk assessment real difficulty feeling empathy specific deterrence obviously importance task community protection currently real danger court must also seek deter others minded commit type offending known u lawyer principle general deterrence relevant purpose sentencing crime must pas sentence court must send strong clear message community may think open act family member posse material possessed upon arrest court sentence passed kind case must make clear others conduct tolerated general deterrence powerful enough purpose sentencing charge indictment bar first charge given age time act forensic samplei deal ancillary order application made forensic sample order first application forensic sample order opposed signed order pronounce abbreviated fashion order pursuant 464zf 2 crime act undergo forensic procedure taking scraping mouth accordance provision thecrimes act sample sufficient standard obtained placement database satisfied circumstance making order justified owing seriousness offending fact order opposed judge public interest relates approach made custody someone position authority approach either run swab around mouth get matter invasive process authorised blood sample use reasonable force obtain swab event issue term doubt would back making application blood sample authorised least invasive process stage issue made order disposal orderi also made announce disposal order satisfied provision theconfiscations act1997 appropriate make order sought disposal item set schedule attached order opposed satisfied material electronic material defined provision thecrimes act1958

Monash L38 (PSA) [1999] PPV 5 (12 January 1999).txt

amendment l 38 monash planning scheme proposed rezoning variation restrictive covenant applying land south west corner stephenson road hamilton place mount waverley report panel appointed minister planning local government december 1998 amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 2amendment l 38 monash planning scheme proposed rezoning variation restrictive covenant applying land south west corner stephenson road hamilton place mount waverley report panel appointed minister planning local government laurie hewet chair pam tong december 1998 amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 3table content 1 introduction 5 1 1 panel interim report 5 1 2 direction hearing 5 1 3 site visit 6 1 4 procedural matter 6 1 5 obligation 7 2 proposal 7 2 1 amendment 7 2 2 planning permit application tpa 24224 8 2 3 vcat decision regarding planni ng permit application tpa 24224 9 3 subject site environs 9 3 1 site 9 3 2 environs 9 4 planning control 10 5 submission 10 5 1 submission amendment 10 5 2 appearance 11 6 identification key issue 12 7 variation covenant 13 7 1 method removal variation restrictive covenant 14 7 2 expropriation property right without compensation 15 7 3 assessment amendment 15 7 4 application criterion 16 7 5 conclusion 20 amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 48 rezoning site business 1 20 9 panel recommendation 21 appendix 1 22 interim report panel appointed minister planning local gove rnment august 1998 amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 51 introduction report panel appoint ed minister planning local government hear consider submission amendment l38 monash planning scheme panel conducted hearing relation matter 15 16 18 june 1998 subsequently november 10 1998 amendment l 38 part process desi gned facilitate redevelopment site mt waverley shopping centre purpose supermarket associated car parking separate process relating planning permit application supermarket development subject appeal heard september 1998 planni ng authority proponent submitted panel two processe largely separate unresolved planning permit application preclude panel proceeding make recommendation regarding proposed rezoning variation restrictive covenant contrary view presented submitter effect inappr opriate panel deal issue surrounding variation covenant prior resolution planning application 1 1 panel interim report conclusion first thr ee day hearing panel prepared interim report recommended consideration amendment l38 adjourned decision tribunal respect planning permit application handed copy panel interim report included appendix 1 report following receipt advice decision victorian civil administrative appeal tribunal received hearing reconvened party invited make submission 1 2 direction hearing direction hearing conducted friday 5 june 1998 purpose direction hearing 1 establish time place hearing 2 identify clarify preliminary matter amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 63 identify issue associated wit h amendment regard existence separate planni ng permit application process direction hearing subm itted panel mr montebello representing planning aut hority panel ought confine deliberation merit proposed rezoning variation restrictive covenant thes e largely independent planning permit application panel indicated extent two process separate indeed overlapped would emerge hearing proper would inappropriate provide direction relation direction hearing stage panel advised late ubmission received mt waverley chamber commerce panel also advised dr valerie yule sought opportunity make submission panel behalf number waverley resident pursuant section 161 planning environment act 1987 panel may inform matter way think fit circumstance therefore panel advised would accept late submission planning authority directed circulate submission party 1 3 site visit panel undertook site visit subject site surround friday 5 june 1998 1 4 procedural matter commencement hearing mt waverley chamber commerce sought submit petition panel support submission subsequently dr yule also sought submit petition panel indicated would accept submission petition advised would give little weight petition deliberation reason course action established documented number earlier tribunal panel proceeding panel refers party decision tribunal h knott or v city st kilda p85 1980 respect party advised reason course hearing final day hearing mr tr ent white operator brumbys bakery 26 hamilton place mount waverley sought leave panel make submission planning authority representative amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 7advised panel mr white objector planning permit application tpa 24224 ubmitter amendment l 38 panel agreed provide mr white opportunity heard 1 5 obligation reaching conclusion recommendation panel read considered submission range material referred includes written submission verbal presentation made panel hearing well submission refe rred panel consideration 2 proposal 2 1 amendment amendment l38 monash planni ng scheme two component 1 seek rezone land restricted business public purpose 19 local government reserve business 1 zone 2 seek vary restrictive covenant applies land zoned public purpose 19 local government restrictive covenant noted ce rtificate title volume 8339 folio 581 restriction contained instrument b130832 relevant part restriction state land used purpose purpose car park building erection placed land except building erection necessary incidental use land purpose car park exhibited amendment sought vary covenant insertion following provision planning scheme 146 site specific control vari ation restrictive covenant 146 1 restrictive covenant applying certificate title volume 8339 folio 581 land set apart car park reserve plan subdivision 41724 limit use land purpose car parking varied remove striction land shaded plan amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 8at hearing planning authorit proposed following amended wording substituted contained exhibited amendment 146 site specific control vari ation restrictive covenant 146 1 restrictive covenant applying certificate title volume 8339 folio 581 land set apart car park reserve plan subdivision 41724 limit use land purpose car parking varied remove striction land shaded plan form part amendment 2 2 planning permit application tpa 24224 concurrently amendment l38 proponent luckstar international aust pty ltd lodged application planning permit develop land described application building use land building purpose shop supermarket associated car parking council acting responsible authority determined issue notice decision grant permit respect application determination subject appeal listed hearing 21 22 september 1998 panel charged asse ssing merit application council decision panel form ed view detail application pertinent panel consideration amendment l38 application involves construction supermarket 2 251 square metre 92 car parking space basement level land subject amendment principal feature applicat ion summarised panel follows existing adjacent car park redesigned layout revised provide 327 space approximately existing bus stop service facility would resited car park stephenson road frontage site existing segregated vehicle route road would removed vehicle circulation relying existing street network amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 9 existing landscape area would redeveloped new area established order facilitate devel opment envisaged planning permit application existing right reserved restrictive covenant use part land car parking need removed certificate title currently 12 parking space located affected area claimed space would replaced 92 space available current beneficiary well community user proposed shopping centre addition part land acquired monash city council currently reserved public purpose 19 local government required rezoned business 1 2 3 vcat decision regarding planning permit application tpa 24224 order tribunal application review disallowed permit directed issued allow subject land used developed purpose shop supermarket associated basement car parking accordance endorsed plan reduction parking requirement clause 19a planning scheme 3 subject site environs 3 1 site subject site comprises two portion land located south west corner hamilton place stephenson road within mt waverley shopping centre caltex service station formerly occupied larger eastern portion site portion area 1 212 square metre balance site used dev eloped part hamilton place public car park public toilet bus st op facility part site area 1 362 square metre 3 2 environs subject site located within mt waverley shopping centre located 17 8 kilometre south east melbourne gpo shopping centre contains appr oximately 150 business premise comprising approximately 31 000 square metr e commercial floor space approximately 18 000 square metr e devoted retail us approximately 1 142 car parking space available within centre shopping centre comprises following sub precinct amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 10 hamilton place stephenson road west side stephenson road east side safeway virginia street proposal subject amendment principally concerned hamilton place precinct discrete core retail precinct primary role convenience good location hamilton place developed shop surrounding central area used car parking car park capacity 203 space 4 planning control subject land included two zone monash planning scheme part site referr ed throughout proceeding former caltex service station site lo cated south west corner stephenson road hamilton place zoned restricted business public purpose reservation local government cover adjoining car park existing planning scheme provision planning permit required use land reserved local government purpose shop car park permit also required zone building work associated proposal panel advised city monash exhibited new planning scheme introduce victorian planning provision municipal strategic statement exhibi ted scheme proposed former caltex site zoned business 1 zone proposed amendment l 38 surr ounding car park placed public use zone reflecting ow nership city monash 5 submission 5 1 submission amendment following submission referred panel consideration mr ian aspinall engineer planning department vicroads peter northwood director property management dtz debenham international vic pty ltd behalf child australia inc melbourne amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 11family care organisation owner property 19 30 hamilton place mount waverley tonwell pty ltd owner land hamilton place mount waverley philip j abbott manager bus service driver group mr edwin sung 7 day supermarket 30 hamilton place mount waverley syndal welcome mart 248 blackburn road syndal syndal riteway 625 high street road syndal n nsair 51 wadham road mount waverley following late submission also referred panel mr david darke president mount waverley chamber commerce industry dr valerie yule 5 2 appearance panel conducted hearing 15 16 18 june 1998 subsequently 10 november 1998 subm itters order appearance initial hearing follows planning authority city monash mr montebello maddock lonie chisholm planning authority assisted mr b goyen proponent luck star pty mr morris qc instructed schetzer brott appel mr g appel mr r milner planning consultant mr h turnbull traffic engineer submitter mr h mcm wright qc instructed best hooper mr finanzio tonwell pty ltd mr p abbott driver group pty ltd r v u l e mr e sung amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 12 mr darke mt waverley chamber commerce reconvened hearing follo wing party represented planning authority city monash mr b goyen town planner proponent luck star pty mr r milner planning consultant panel advised letter tonwell pty ltd wish make presentation panel relied submission made behalf original hearing 6 identification key issue panel equally considered written submission well submission presented hearing addressing issue raised submission panel assisted information provided well observa tions inspection subject site surrounding area panel provided detailed reason recommendation adjourn proceeding interim report interim report appended report necessary repeat reason suffice say however panel previously felt constrained making recommendation either rezoning covenant variation aspect amendment time planning merit application tpa 24224 resolved receipt vcat determination direct issue planning permit removed major obstacle panel considering merit amendment l 38 following section report consider key issue generally fall following category 1 variation covenant 2 rezoning site business 1 amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 137 variation covenant burden covenant noted ce rtificate title volume 8339 folio 581 restriction contained instrument b130832 dated 14 12 1960 relevant part read land used purpose purpose car park building erection placed land except building erection necessary incidental use land car park amendment l38 provides covenant varied following manner version 1 i46 site specific control var iation restrictive covenant restrictive covenant applying ce rtificate title volume 8339 folio 581 land set apart car park reserve plan subdivision 41724 limit use land purpose car parking varied remove restriction land shaded plan planning authority subsequently submi tted panel recommend favour amendment l38 consider wording clause 146 read follows version 2 146 site specific control vari ation restrictive covenant restrictive covenant applying ce rtificate title volume 8339 folio 581 contained instrument b 130832 varied restrictive covenant apply land hatched plan form part amendment course hearing planning authority made submission respect wordi ng amendment proposing amended read version 3 146 site specific control var iation restrictive covenant restrictive covenant applying cert ificate title volume 8339 folio 581 contained instrument b130832 varied restrictive covenant apply land hatched plan form part clause provided land developed conjunction lot 1 lp 41724 supermarket 2310m² excluding loading bay garbage storage area provides basement car parking le 91 car amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 14b central car park hamilton place reconfigured generally accordance drawing a01 revision 4 26 02 98 prepared tomkins shaw evans pty ltd notice decision grant permit 24224 issued monash city council dated 18 march 1998 c number car space provided said central car park le number existing car park 18 june 1998 7 1 method removal variation restrictive covenant three way restrictive covenant may varied removed follows 1 application supreme court pur suant section 84 property law act 1958 2 application planning permit pursuant section 60 2 60 5 planning environment act 1987 3 application way amendment planning scheme pursuant section 6 2 g planning environment act 1987 section 84 property law act section 60 2 60 5 planning environment act contain num ber criterion used assessing whether covenant removed varied contrast legislation identif criterion used consideration application moval variation covenant way planning scheme amendment process procedure section 84 pr operty law act available owner dominant tenement si milarly procedure section 60 2 available owner dominant tenement created covenant created 25 june 1951 procedure section 60 5 invoked owner land benefited restriction either consented writing grant permit unlikely suffer detriment kind consequence removal variation including perceived detriment b owner objected obj ection vexatious made good faith result bona fide objection made owner dominant tenement claiming detriment incl uding perceived detriment permit removal variation covenant cannot granted amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 157 2 expropriation property right without compensation proposition put panel combination circumstance planning authority sponsor amendment owner land see k remove restrictive covenant constitutes acquisition council interest restrictive covenant land requires payment compensation submitted procedure prescribed land acquisition compensation act 1986 acquisition interest land determination compensation put place amendment approved panel find argument interesti ng opinion context present proceeding matter panel need form view 7 3 assessment amendment useful analysis undertaken panel amendment l41 city camberwell planning scheme wher e panel concluded planning scheme amendment process appropriate least following circumstance 1 unanimous agreement dead wood covenant possible e situation existing cov enant little effect character neighbourhood obsolete dominant tenement owner lodged bona fide objection section 60 5 would preclude removal variation circumstance 2 person ow ners dominant tenement wish remove vary covenant applicat ion section 84 property law act section 60 2 sect ion 60 5 planning environment act made person benefiting covenant 3 achievement strat egic planning objective require planning scheme limit range u e permit applied consequently permit process necessarily limited planning scheme amendment process designed address much wider strategic planning need limited consideration planning permit issue private property right amendment power contained s6 2 g merely provides planning scheme may regulate provide removal variation covenant specify criterion used assessing amendment concerned matter panel amendment l41 amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 16observed considering role played alternative method varying removing restrictive covenant planning scheme amendment process designed address much wider strategic planning need require consideration government strategy public policy community aspiration planning scheme amendment often requires examination pattern existing land us take consideration princi pal attribute land criterion planning scheme amendment generally accepted community benefit panel also concurs view expressed l41 report starting point decide development acceptable planning term private proprietary right expropriated substantial overriding community benefit achieved net community benefit enough overri de existing private contractual proprietary right criterion used assessm ent proposed variation covenant amendment process ar e generally accepted 1 purpose original restrictive covenant 2 practica l benefit covenant 3 change occurred character neighbourhood circumstance impact relevance covenant 4 modification covenant give rise detrimental impact amenity neighbouring property 5 maintenance covenant c onsistent application public planning policy 6 modification covenant create undesirable precedent 7 proposed use development reasonable use land 7 4 application criterion considering application cr iteria proposed amendment panel adopted version 3 relevant final version submitted planning authority following comment provided respect criterion outlined amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 17the purpose original restrictive covenant plietes v city knox or 10 aatr 155 tribunal said essential look purpose effect covenant one factor relevant determining likelihood loss detriment event removal variation benefit covenant ascertained consideration purpose covenant derived primarily word purpose covenant instanc e clear firstly land subject restriction used car park secondly covenant seek ensure buildi ng constructed land necessary incidental use land car park respect purpose panel make following observation proposed developed new car park configuration increase number car space 36 provided area land covenant varied used bus transport interchange rather car parking building constructed proximity shop land benefit shortage car parking vicinity mt waverley village shopping centre practical benefit covenant intention covenant provide ample car parking facility convenient access people using commercial centre amendment proposes remove l egal proprietary right landowner benefit enforce term respect part land originally encumbered practical term effect minimal land affected used car parking net loss number space available change occurred character neighbourhood circumstance impact relevance covenant criterion originally formulat ed case concerning removal variation restrictive covenant requi ring single dwelling lot present case neighbourhood character criterion le relevance appropriate consider change occurred mt waverley village shopping centre may impact relevance covenant amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 18since 1960 covenant im posed number change form function car park surrounding land photographic evidence put panel indi cated conf iguration car park altered since time number change taken place particular car park land reserved public purpose local government caltex service station woolworth supermarket closed permit hotel issued woolworth site part car park used bus interchange car parking space south centrum l car park vicinity railway station increased addi tional land vicinity car park acquired planning authority developed car parking opinion panel hese factor reduced practical relevance covenant insofar affect land proposed vary restriction modification covenant give rise detrimental impact amenity neighbouring property panel agree proposition put amenity considered amenity hose property benefit covenant number submitter either residence business proximate centre w ho made representation panel respect village atmosphere centre concerned amendment would effectively destroy pleasant environment submission carefully considered panel concluded detriment al impact amenity surrounding property except ion land proposed used access basement car park site continue used car parking modification covenant consistent application public planning policy relevant policy consideration exist two level regional local regional policy contained clause 14 4 existing monash planning scheme clause 17 01 victori planning provision form amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 19part state planning policy fram ework exhibited monash planning scheme without engaging detailed analysis complexity regional retail policy panel accepts policy encourage retail commercial administrat ive entertainment cultural development activity centre community benefit access provision variety land us local level council muni cipal strategic statement ms form part new monash planning scheme wh ich time panel hearing exhibited approv ed panel accepts ms ought given weight c onsideration planning proposal panel advised ms c ontains number strategy objective provide sound policy basis facilitation development subject amendment particular economic development strategy state business centre need positively attract retain local business provide employment opport unity investment local shopping centre active viable discourage loss expenditure city may encourage dependency private transport established shopping centre vi able likely encourage reinvestment respect second level shopping centre specifically ms emphasis need maintain expand role community level shopping centre considering retail function encouraging mixed use development enhancing streetscape improving car parking creating attractive environment local community activity series objective included ms build upon strategic intent promoting ongoing viabilit existing second level shopping centre particular council committed facilitating land assembly site consolidation program existing pattern ownership prevent implementat ion key strategic objective council taken pro active role facilitating proposed development land panel satisfied action consistent implem entation public planning policy expressed regional local level amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 207 5 conclusion indicated comment panel satisfied proposed variation covenant meet appropriate criterion established number previous panel remains panel recommend appropriate wording covenant variation cour se hearing panel presented three version including hat originally exhibited two subsequent version given justification variat ion covenant accepted panel basis requi red enable particular development proceed wording variation need reflect version three instrument vari ation come closest achieving wording desired effect achieving following land developed conjunction caltex site land developed supermarket maximum size supermarket building fixed number site car parking fixed yield central car park fixed noted however amended plan submitted vcat following panel initial hearing tribunal directed permit issued condition requiring minor amendment plan wording version 3 ought therefor e make reference plan endorsed part planning permit 8 rezoning site business 1 final matter panel deliber ations zoning site existing caltex site zoned restricted business existing monash planning scheme proposed zoned business 1 exhibited new monash planning scheme balance site developed planning permit tpa 24224 currently reserved public purpose local government land proposed zoned public use new exhibited monash planning scheme amendment l 38 exhibited proposes zone total development site business 1 amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 21the rezoning existing restricted business zone business 1 disputed course p anel hearing submission referred panel business 1 zone clearly appropriate part site effect translation existing zone equivalent zone victorian planning provision respect balance si te rezoning business 1 also appropriate regard panel finding respect variation covenant tribunal decision direct issue permit supermarket associated car parking 9 panel recommendation basis submission made assessment additional material detailed inspection ubject site surround reason contained within report panel recommends amendment l 38 monash planning scheme adopted planning authority submitted minister planning local government approval subject new clause 146 amended read follows 146 site specific control variat ion restrictive covenant 146 1 restrictive covenant applying certificate title volume 8339 folio 581 contained instrument b130832 varied restrictive covenant apply land hatched plan form part clause provided land developed conjunction lot 1 lp 41724 supermarket 2310m² excluding loading bay garbage storage area provides basement car parking le 91 car generally accordance plan endorsed part planning permit tpa 24224 b central car park ha milton place reconfigured generally accordance drawing a01 revision 4 26 02 98 prepared tomkins shaw evans pty ltd plan endorsed part planning permit tpa 24224 c number car space provided said central car park le number existing car park 18 june 1998 laurie hewet chair pam tong member amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 22 appendix 1 interim report panel appointed minister planning local government august 1998 planning environment act 1987 amendment l 38 monash planning scheme proposed rezoning variation restrictive covenant applying land south west corner stephenson road hamilton place mount waverley interim report panel appointed minister planning local government panel member mr laurie hewet chairman m pamela tong member 4 august 1998 amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 2 monash planning scheme amendment l 38 proposed rezoning variation restrictive covenant applying land south west corner stephenson road hamilton place mount waverley interim report panel appointed minister planning local government 4 august 1998 amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 3 1 introduction 4 1 2 direction hearing 4 1 3 site visit 5 1 4 procedural matter 5 1 5 obligation 5 2 proposal 6 2 1 amendment 6 2 2 planning permit application tpa 24224 7 3 subject site environs 8 3 1 site 8 3 2 environs 8 4 planning control 8 5 submission 9 5 1 submission amendment 9 5 2 appearance 9 6 consideration amendment 10 6 1 submission 10 7 conclusion 15 8 panel recommendation 17 amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 41 introduction interim report panel appointed minister planning local government hear consider submission amendment l38 monash planning scheme panel conducted hearing relation matter 15 16 18 june 1998 amendment l 38 part process desi gned facilitate redevelopment site mt waverley shopping centre purpose supermarket associated car parking separate process relating planning permit application supermarket development currently subject appeal listed hearing september 1998 planning authority proponent submitted panel two process largely separate unresolved planning permit app lication preclude panel proceeding make recommendati ons regarding proposed rezoning variation restrictive covenant contrary view presented submitter effect inappr opriate panel deal issue surrounding variation covenant prior resolution planning application conclusion hearing panel indicated party following review submission made would determine whether appropriate make recommendation future progress amendment whether ought await outco appeal concerning planning permit application reason set interim report panel considers proper course action consi deration amendment l38 adjourned decision tribunal respec planning permit application handed time panel reconvene proceeding 1 2 direction hearing direction hearing conducted friday 5 june 1998 purpose direction hearing 1 establish time place hearing 2 identify clarify preliminary matter 3 identify issue associated wit h amendment regard existence separate planni ng permit application process direction hearing ubmitted panel mr montebello representing planning aut hority panel ought confine deliberation merit proposed rezoning variation restrictive covenant thes e largely independent planning permit application amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 5the panel indicated extent two process separate indeed overlapped would emerge hearing proper would inappropriate provide direction relation direction hearing stage panel advised late ubmission received mt waverley chamber commerce panel also advised dr valerie yule sought opportunity make submission panel behalf number waverley resident pursuant section 161 planning environment act 1987 panel may inform matter way think fit circumst ances therefore panel advised would accept late submission planning authority directed circulate submission party 1 3 site visit panel undertook site visit subject site surround friday 5 june 1998 1 4 procedural matter commencement hearing mt waverley chamber commerce sought submit petition panel support submission subsequently dr yule also sought submit petition panel indicated would accept submission petition advised would give little weight petition deliberation reason course action established documented number earlier tribunal panel proceeding panel refers party decision tribunal h knott or v city st kilda p85 1980 respect party advised reason course hearing final day hearing mr tr ent white operator brumbys bakery 26 hamilton place mount waverley sought leave panel make submission planning authority representative advised panel mr white objector planning permit application tpa 24224 ubmitter amendment l 38 panel agreed provide mr white opportunity heard 1 5 obligation reaching conclusion recommendation panel read considered submission range material referred includes written submission verbal presentation made panel hearing well submission refe rred panel consideration amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 62 proposal 2 1 amendment amendment l38 monash planni ng scheme two component 1 seek rezone land restricted business public purpose 19 local government reserve business 1 zone 2 seek vary restrictive covenant applies land zoned public purpose 19 local government restrictive covenant noted ce rtificate title volume 8339 folio 581 restriction contained instrument b130832 relevant part restriction state land used purpose purpose car park building erection placed land except building erection necessary incidental use land purpose car park exhibited amendment sought vary covenant insertion following provision planning scheme 146 site specific control vari ation restrictive covenant 146 1 restrictive covenant applying certificate title volume 8339 folio 581 land set apart car park reserve plan subdivision 41724 limit use land purpose car parking varied remove restriction land shaded plan hearing planning authorit proposed following amended wording substituted c ontained exhibited amendment 146 site specific control vari ation restrictive covenant 146 1 restrictive covenant applying certificate title volume 8339 folio 581 land set apart car park reserve plan subdivision 41724 limit use land forthe purpose car parking varied remove restriction land shaded plan form part amendment amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 72 2 planning permit application tpa 24224 concurrently amendment l38 proponent luckstar international aust pty ltd lodged application planning permit develop land described application building use land building purpose shop supermarket associated car parking council acting responsible authority determined issue notice decision grant permit respect application determination subject appeal listed hearing 21 22 september 1998 panel charged asse ssing merit application council decision detail application reason become clear pertinent pane l consideration amendment l38 application involves construction supermarket 2 251 square metre 92 car parking space basement level land subject amendment removal restrictive covenant required facilitate development principal feature applicat ion summarised panel follows existing adjacent car park redesigned layout revised provide 327 space approximately existing bus stop service facility would resited car park stephenson road frontage site existing segregated vehicle route road would removed vehicle circulation relying existing street network existing landscape area would redeveloped new area established order facilitate devel opment envisaged planning permit application existing right reserved restrictive covenant use part land car parking need removed certificate title currently 12 parking space located affected area claimed space would replaced 92 space available current beneficiary well communi ty user proposed shopping centre addition part land acquired monash city council currently reserved public purpose 19 local government required rezoned business 1 amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 83 subject site environs 3 1 site subject site comprises two portion land located south west corner hamilton place stephenson road within mt waverley shopping centre caltex service station formerly occupied larger eastern portion site portion area 1 212 square metre balance site used dev eloped part hamilton place public car park public toilet bus st op facility part site area 1 362 square metre 3 2 environs subject site located within mt waverley shopping centre located 17 8 kilometre south east melbourne gpo shopping centre contains appr oximately 150 business premise comprising approximately 31 000 square metr e commercial floor space approximately 18 000 square metr e devoted retail us approximately 1 142 car parking space available within centre shopping centre comprises following sub precinct hamilton place stephenson road west side stephenson road east side safeway virginia street proposal subject amendment principally concerned hamilton place precinct discrete core retail precinct primary role convenience good location hamilton place developed shop surrounding central area used car parking car park capacity 203 space 4 planning control subject land included two zone monash planning scheme part site referr ed throughout proceeding former caltex service station site lo cated south west corner stephenson road hamilton place zoned restricted business public purpose reservation local government cover adjoining car park amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 9under existing planning scheme provision planning permit required use land reserved local government purpose shop car park permit also required zone building work associated proposal panel advised city monash exhibited new planning scheme introduce victorian planning provision municipal strategic statement exhibi ted scheme proposed former caltex site zoned business 1 zone proposed amendment l 38 surroundi ng car park placed public use zone reflecting ow nership city monash 5 submission 5 1 submission amendment following submission referred panel consideration mr ian aspinall engineer planning department vicroads peter northwood director property management dtz debenham international vic pty ltd behalf child australia inc melbourne family care organisation owner property 19 30 hamilton place mount waverley tonwell pty ltd owner land hamilton place mount waverley philip j abbott manager bus service driver group mr edwin sung 7 day supermarket 30 hamilton place mount waverley syndal welcome mart 248 blackburn road syndal syndal riteway 625 high street road syndal n nsair 51 wadham road mount waverley following late submission also referred panel mr david darke president mount waverley chamber commerce industry dr valerie yule 5 2 appearance panel conducted hearing 15 16 18 june 1998 submitter order appearance hearing follows amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 10planning authority city monash mr montebello maddock lonie chisholm planning authority assisted mr b goyen proponent luck star pty mr morris qc instructed schetzer brott appel mr g appel mr r milner planning consultant mr h turnbull traffic engineer submitter mr h mcm wright qc instructed best hooper mr finanzio tonwell pty ltd mr p abbott driver group pty ltd dr v yule mr e sung mr darke mt waverley chamber commerce 6 consideration amendment panel equally considered written submission well submission presented hearing addressing issue raised submission panel assisted information provided well observa tions inspection subject site surrounding area 6 1 submission mr montebello planning authority ubmitted outset role panel consider make recommendation amendment extend considering whether proposed building shop acceptable planning term mr montebello submitted matter tribunal dealing appeal responsible authority determination grant planning permit proposed development recognising degree overlap panel proceeding tribunal hearing urged panel resist conducting forensic exam ination proposal mr montebello referred fact hat number panel required consider variation restrictive covenant would enable development otherwis e breach covenant proceed case ever acknowledged amendment process followed consideration development application responsible authority sequence event amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 11not apply present case mr montebe llo considered procedural difference sufficient distingui sh principle apply respect role panel view whether detailed analysis undertaken tribunal co me consideration amendment affect panel deliberation planning authority submitted ther efore panel consider make recommendation whether would appropriate rezone land b vary restriction circumstance authority considered appropriate put submission panel detail development proposal outlining extent nature development use pr oposal authority confined submission proposal rezone land business 1 variation covenant principle ought guide panel consideration matter respect variation co venant mr montebello submitted set principle developed panel considering similar issue past principle come accepted appropriate test deciding whether amendment proposing variation covenant approved abandoned referring previous panel decision relied test established panel amendment l41 camberwell planning scheme referred subsequent panel hearing notably respect endment l161 melbourne planning scheme mr montebello contended starting point assessment decide development acceptable planning term private propr ietary right expropriated substantial overriding community benefit achieved net community benefit enough override existing private contractual property right panel camberwell case adopted number criterion proposed variation assessed analysis used planning authority submission c onclude would substantial community benefit obtained proposed amendment recommended approval concluding submission planning authority contended submission principal objector onwell pty ltd raised real issue rezoning part central car park business 1 zone authority argued reas onable objection could raised proposal rezone land contex associated proposal vary restrictive covenant pr inciple firmly developed considering planning proposal w hether application proposal rezone existence private covenant irrelevancy hearing submission planning authority sought address concern raised principal objec tor tonwell pty ltd proposing amendment could amended read follows 146 site specific control variation restrictive covenant amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 12146 1 restrictive covenant applying certificate title volume 8339 folio 581 contained instrument b130832 varied restrictive covenant apply land hatched plan form part clause provided land developed conjunction lot 1 lp 41724 supermarket 2310m² excluding loading bay garbage storage area provides basement car parking le 91 car b central car park hamilton place reconfigured generally accordance drawing a01 revision 4 26 02 98 prepared tomkins shaw evans pty ltd notice decision grant permit 24224 issued monash city council pursuant monash planning scheme dated 18 march 1998 c number car space provided said central car park le number existing car park 18 june 1998 change authority submitted w ould also satisfactorily address critical issue raised obj ectors would ensure land developed within caltex site land developed supermarket maximum size building fixed number site car parking lot fixed yield central car park fixed conclusion planning authority uggested substantial community benefit would flow variation covenant development subsequently allowed tribunal detail development mr montebello observed left tribunal decided issue permit panel would decided adjourn matter position would accept tribunal determination proposal acceptable planning term amended form amendment l38 submitted achieved precisely result mr morris qc luck star pty ltd adopt ed submission planning authority qualification fi rstly respect test amendment l41 l161 suggest ed substantial community benefit test constitutes useful checklist matter could considered foundation planning environment act 1987 respect reference must made act parent document drew attenti s6 1 s4 1 c e f g s4 2 b g act section argued basic criterion determining whether covenant removed mr morris agreed planning authority however event substantial community benefit test applied proposal would meet test sufficient ground exist ed therefore approve amendment amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 13 respect weight given existence proprietary right determining whether vary remo restrictive covenant mr morris referred p30 32 panel report amendment l161 competing view conveniently c anvassed panel concluded panel view legislation exclude consideration proprietary right planning scheme amendment process mr pitt pointed section 6a 3 contemplates creation covenant could override planning control thus inference primacy public policy private property right generally may drawn panel firm view considering impact varying restrictive covenant one must consider nature right varied process proposed considering impact varying covenant proprietary right one factor assessed assessment nature right varied cannot ignored ultimately panel must weigh nature right varied agai nst community benefit sought achieved community benefit seen achievement government planning objective policy mr morris submitted conclu sion pertinent present matter additionally drew panel attention planning principle underpinning development argued contribute achievement relevant planning policy principle summarised follows supermarket critical performance shopping centre based convenience shopping safeway supermarket shopping centre well located relation shop choice price better location offered proposed development overall synergistic effect result benefit existing shop supermarket safeway cole require floor area range 3300m² 4000m² commonly 3600m² modern supermarket require least 2000m² one level proposed development site supermarket lead revitalisation centre co mpetition existing safeway introduction act mr morris argued meant encourage provide mean council pro active pursuing planning policy objective incumbent par tie encourage revitalisation shopping centre concluding introductory remark mr morris noted client agreed planning authority amended wo rding variation covenant felt clearer proposal exhibited called mr r milner planning consultant present evidence proposal amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 14detail mr h turnbull traffic engi neer address traffic management aspect proposal panel propose reason elaborated later canvas interim report issue raised either mr milner mr turnbull evidence similarly number matter raised party presented verbal wr itten submission panel respect essentially site specific planning issue concern properly considered tr ibunal role arbiter merit planning application panel detail final report panel provided advice submitter would interest seek become party planning application appeal event already basis tribunal maybe appropriate forum raise site specific planning issue mr wright qc tonwell pty ltd ident ifying nature benefit covenant client acknowledged hat covenant state benefit enjoyed ow ner dominant land doubt real benefit exist sult observance term covenant legal right prev ent breach covenant instance contended real benefit owner dominant land lie provision car parking user centre preserving land burdened covenant purpose car parking submitted clear intention covenantor provide ample parking facility convenient access shopper user commercial centre proposed amendment would mr wri ght submission remove legal proprietary right benefiti ng landowner enforce term relation significant part l originally encumbered effect right require land used car parking would lost addressing procedural aspect development process mr wright submitted planning merit proposal awaited hearing administrative appeal tribunal proposed amendment indeed cannot constitu te final determination planning merit proposed development matter tribunal provide beneficiary covenant certainty final outcome planning proc es involves consideration merit proposed upermarket adequacy carparking traffic management provided seek assert covenant obsolete existence longer provides owner dominant land real benefit absence final decision relating proposed supermarket cannot ensure tho e benefit covenant disadvantaged variation amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 15in respect proposed variation covenant mr wright submitted principle developed course previous panel hearing ass variation suppor ted proposition lack certainty final form use servient land sufficient reason disturb proprietary right owner dominant land mr wright identified basic principle follows restrictive covenant legal right property varied removed substantial overriding community benefit achieved b test must applied eval uating community benefit use development necessitates variation covenant weighing benefit val ue covenant dominant owner c covenant removed vacuo rather varied allow specifically identif ied use development otherwise remain place princi ple intended ensure community benefit said flow particular use development variation co venant allows use development rather conferring carte blanche owner servient land essence mr wright submission thus order panel able properly weigh relev ant consideration associated substantial community benefit test wa essential final form development known impac benefiting owner could assessed panel word proposed amendment premature decision could made panel decision made tribunal concerning burdened land primarily material presently panel would enable properly ass substantial community benefit woul achieved planning merit application reveal substantial community benefit would result removal covenant 7 conclusion role panel vi vi role tribunal emerged significant issue co mmencement hearing primary function panel heard submission report planning authority whet amendment adopted part whole abandoned p anel agrees submission planning authority proponent panel role conduct hearing planning merit proposed use development function tribunal clearly degree overlap role two body inasmuch amendment like amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 16a planning permit application must considered within strategic policy framework developed planning authority fact overlapping role existed disputed party delineation respective role body expose procedural flaw planning authority submission planning authority effect asking panel recommend approval amendment remove restrictive covenant satisfied self general desirability subsequent development without regard detail proposed development argued justification panel supporting position land owner benefiting covenant disadvantaged removal subsequent development deliver least le car parking centre currently exists benefiting land owner entitled expect covenant panel satisfied th eventual outcome conducted forensic review app lication urged acknowledgement dilemma emerged course hearing response planning au thority suggested amended wording proposed clause 146 1 amendm ent detailed sought tie removal covenant specific application submitted proponent panel view assist forming view desirability removing covenant would require panel firstly satisfied merit application planning authority also submitted hat open panel deal amendment two part e recommend approval rezoning felt predisposed adjourn consideration covenant removal tribunal dete rmination planning application known panel reluctant adopt th course action approval rezoning site business 1 would potential implication standing third party relation current planning permit application provision business 1 zone application building work permit exempt ice requirement section 52 1 b decision requirement section 64 1 2 3 appeal right section 82 1 ac recognised planning authority requesting panel make recommendation planning merit rezoning however panel prepared make recommendation stage given third party appeal pending notice decision gr ant permit issued existing zoning third party may disadvantaged appeal result approval requested rezoning respect removal covenant specifically relevance substantial community benefit test panel find mr wright argument compelling amendment l41 l161 decision held assessment community benefit e ssentially balancing exercise balance must swing decisively favour proponent mean amendment l 38 monash planning scheme stephenson rd hamilton place mt waverley report panel appointed minister planning 17substantial community benefit would resu lt analysis reflects greater status right associ ated proprietary right present case panel considers balancing exercise possible uncertainty notwithstanding planni ng authority revised wording surrounding final form developm ent indeed tribunal directs permit issued revised pr oposition put forward authority would course allow application made respect use development site indeed may allow right use contemplated land affected covenant building work application subject notification procedure third party appeal right hearing evidence panel c onsiders proper course await decision tribunal time various argument put forward party panel considered detail panel benefit proper assessment merit proposal 8 panel recommendation basis submission made assessment additional material detailed inspection subject site surround reason contained within report panel recommends consideration amendment l38 monash planning scheme adjourned decision tr ibunal respect planning application handed laurie hewet chairman pam tong member

Franklin v R [2016] NSWCCA 319 (23 December 2016).txt

franklin v r 2016 nswcca 319 23 december 2016 last updated 23 december 2016court criminal appealsupreme courtnew south walescase name franklin v rmedium neutral citation 2016 nswcca 319hearing date 2 november 2016decision date 23 december 2016before macfarlan ja 1 r hulme j 2 bellew j 96 decision 1 grant leave appeal sentence allow appeal 2 quash sentence imposed district court 18 september 2015 3 sentence applicant aggregate term imprisonment 24 year non parole period 18 year sentence date 21 may 2014 non parole period expire 20 may 2032 whereupon applicant become eligible release parole total term expire 20 may 2038 catchword crminal law sentence child sexual assault child abuse material offence extended family member extended period blanket assessment objective seriousness without assessment individual offence taking account abuse position trust victim authority offender element offence offence committed home aggravating factor failure explain factor aggravating error established applicant resentencedlegislation cited crime act 1900 nsw s 61m 2 66a 66a 2 66c 2 91g 1 crime sentencing procedure act 1999 nsw s 3a 21a 2 k 21a 2 eb 23 4 44 2b 44 2c 53a 2 b 54b 4 crime sentencing procedure amendment act 2007 nsw criminal appeal act 1912 nsw 6 3 case cited cmb v attorney general new south wale 2015 hca 9 256 clr 356ek v r 2010 nswcca 199 79 nswlr 740ingham v r 2011 nswcca 88jm v r 2014 nswcca 297 246 crim r 528jonson v r 2016 nswcca 286jrm v r 2012 nswcca 112melbom v r 2013 nswcca 210montero v r 2013 nswcca 214 234 crim r 532mrw v r 2011 nswcca 260mulato v r 2006 nswcca 282muldrock v queen 2011 hca 39 244 clr 120panetta v r 2016 nswcca 85r v comert 2004 nswcca 125r v mak r v msk 2006 nswcca 381 167 crim r 159r v van ryn 2016 nswcca 1r v xx 2009 nswcca 115 195 crim r 38category principal judgmentparties franklin applicant regina respondent representation counsel m j roy applicant m cinque sc crown solicitor legal aid nswsolicitor public prosecutionsfile number 2014 153973decision appeal court tribunal district courtdate decision 18 september 2015before robison dcjfile number 2014 153973judgmentmacfarlan ja agree r hulme j r hulme j application leave appeal sentence imposed honour judge robison district court nowra 18 september 2015 applicant cannot identified name need protect anonymity victim accordingly referred case title pseudonym franklin learned sentencing judge imposed aggregate sentence imprisonment 27 year non parole period 18 year 18 indecent sexual assault committed applicant 2007 2013 three offence taken account applicant request detail offence indicative sentencesthe applicant aged 29 35 time offence victim niece aged 7 13 time victim six month old elder sister would stay applicant wife regularly weekend according statement fact applicant took opportunity wife absent touch victim vagina sexual contact may 2014 victim disclosed school friend applicant sexually assaulting told teacher matter ultimately reported police disclosed escalating pattern behaviour touching digital penetration offender using penis one occasion vibrator penetrate one occasion used nipple vibrator sex toy recalled put penis inside vagina lot said started month applicant wife moved particular address march 2007 said assault occurred one form another every weekend stayed limited offence applicant sentenced detail offence chronological order indicative sentence specified honour follows sentence reduced 25 per cent account applicant plea guilty statutory provision maximum penalty max referred within thecrimes act 1900 nsw standard non parole period snpp applicable prescribed thecrimes sentencing procedure act 1999 nsw count 9 indecent assault upon child 16 year 29 7 07 31 12 07when victim 7 year old occasion applicant wife victim lounge room watching television victim sat applicant lap hand went onto crutch touching penis outside clothes touched vagina outside clothing said occurred two three time occasion matter applicant disclosed police discussion hearing application whether averment offence indictment alleged offence 61m 1 61m 2 penalty maximum 7 year 10 year respectively however note count specifically nominated 61m 2 fact clearly described offence issue taken court raised ground appeal satisfied applicant pleaded guilty offence 61m 2 fact supported offence crown prosecutor court erred informing sentencing judge standard non parole period offence 61m 2 relevant time 5 year later increased 8 year effect 1 january 2008 thecrimes sentencing procedure amendment act 2007 nsw withpt 17being inserted primary act provides increased standard non parole period applies determination sentence offence whenever committed unless person convicted court accepted plea guilty plea withdrawn commencement amendment error worked applicant favour section 61m 2 max 10 year snpp 8 year see indicative sentence 1 year 6 month npp 1 yearcount 1 sexual intercourse child age 10 year 1 3 07 31 12 07the victim practice getting bed applicant wife morning scared dark occasion soon turned 7 applicant wife got left work applicant touched victim vagina underneath clothes tickled outside vagina couple minute inserted pointy rude finger vagina moved around section 66a max 25 year snpp 15 yearsindicative sentence 3 year 9 month npp 2 year 9 monthscount 2 aggravated authority sexual intercourse child age 10 year 30 7 09 28 7 10the victim aged 9 applicant first penile vaginal intercourse master bedroom applicant home took clothes began touching vagina finger took penis began rubbing vagina penetrating victim recalled moved ejaculating inside section 66a 2 max life imprisonment snpp 15 yearsindicative sentence 18 year 9 month npp 12 yearscount 12 indecent assault upon child 16 year 1 8 10 10 10 10on occasion victim aged 10 applicant bed one morning wife left work allowed touch penis outside short put hand inside short touching penis section 61m 2 max 10 year snpp 8 yearsindicative sentence 5 year 3 month npp 2 year 3 monthscount 13 indecent assault upon child 16 year 1 8 10 10 10 10on another occasion bed one morning victim aged 10 applicant wife gone work applicant touched victim vagina ran hand leg 10 time statement fact record offence disclosed applicant section 61m 2 max 10 year snpp 8 yearsindicative sentence 5 year 3 month npp 3 yearscount 10 indecent assault upon child 16 year 29 7 10 28 7 11in master bedroom applicant asked victim wanted suck penis also said wanted lick penis refused told kiss said would nothing else kissed middle penis applicant naked time victim 10 year old section 61m 2 max 10 year snpp 8 yearsindicative sentence 5 year 7 month npp 3 year 6 monthscount 11 indecent assault upon child 16 year 29 7 10 28 7 11the applicant wife left home get dinner applicant approached victim sitting lounge watching child program television put hand pant touched rubbed vagina stopped wife returned victim 10 year old section 61m 2 max 10 year snpp 8 yearsindicative sentence 5 year 9 month npp 3 year 7 monthsform 1 attaching count 11 2 offence aggravated person 16 film person private act without consent 1 1 10 31 12 12the applicant recorded six video victim sister naked shower camera focussed breast vagina bottom victim aged 9 12 sister aged 10 13 period section 91k 3 max 5 yearscount 15 indecent assault upon child 16 year 29 7 10 28 7 13when victim sitting chair lounge room applicant came took pant told kiss penis aged 10 12 time section 61m 2 max 10 year snpp 8 yearsindicative sentence 5 year 9 month npp 3 year 7 monthscounts 3 4 5 aggravated authority sexual intercourse child 10 14 year 29 7 11 31 12 11the applicant took video recording engaging sexual activity victim briefly masturbated penile vaginal intercourse minute victim facing bed back withdrew penis asked roll onto back come closer edge bed hold leg open penile anal intercourse two minute resumed penile vaginal intercourse applicant told police thought ejaculated victim anus aged 11 time section 66c 2 max 20 yearsindicative sentence 10 yearsform 1 matter attaching count 3 posse child abuse material 1 1 10 20 5 14images video child including taken applicant found police analysed camera computer usb stick belonging 506 image located small proportion worst category child exploitation tracking scheme cets scale 12 video half lower two category three middle category three second worst category section 91h 2 max 10 yearscount 6 aggravated authority sexual intercourse child 10 14 year 29 7 11 31 12 11the applicant told police immediately prior activity count 3 5 victim laying bed licked vagina 15 20 second penetrating labium tongue section 66c 2 max 20 yearsindicative sentence 7 year 6 monthscount 7 aggravated authority sexual intercourse child 10 14 year 29 7 11 31 12 11the victim woken sleeping bedroom applicant came told get bed got cover got back top removed pant underwear touched rubbed vagina hand digitally penetrating aged 11 time section 66c 2 max 20 yearsindicative sentence 8 year 3 monthscount 16 indecent assault upon child 16 year 29 7 12 31 12 13the victim lying naked back applicant bed knelt bed rubbed penis vagina aged 12 13 section 61m 2 max 10 year snpp 8 yearsindicative sentence 6 year 9 month npp 4 yearscount 17 indecent assault upon child 16 year 29 7 12 31 12 13on occasion event count 16 applicant put suction cup nipple vibrator sex toy victim breast activated suction cup told police breast pulled really hurt section 61m 2 max 10 year snpp 8 yearsindicative sentence 5 year npp 3 yearscount 8 aggravated authority sexual intercourse child 10 14 year 29 7 12 31 12 13after event count 17 applicant licked victim vagina section 66c 2 max 20 yearsindicative sentence 8 year 3 monthscount 14 indecent assault upon child 16 year 29 7 12 31 12 13on occasion applicant told victim go bedroom complied took shirt rubbed penis breast ejaculated section 61m 2 max 10 year snpp 8 yearsindicative sentence 6 year 9 month npp 4 year 3 monthscount 18 use child 14 year pornographic purpose 1 1 10 31 12 13in addition video recording event count 3 5 applicant took number photograph victim showing naked seated leg separated vagina exposed breast stomach face also depicted one photograph holding vagina open hand aged 10 13 period section 91g 1 max 14 yearsindicative sentence 7 yearsthe victim disclosed offending several friend school 19 may 2014 told teacher matter reported police apprehended violence order taken specifying victim person need protection applicant arrested presented ulladulla police station 21 may 2014 said wanted confess assault listed apprehended violence order applicant admitted police sexual contact victim said think full penetration said knowledge never full intercourse claim later resiled admitted position authority trust adult house time offending taking place applicant personal circumstancesthe applicant born 1978 educated school certificate level completed motor mechanic apprenticeship employed place nine year time arrest applicant married 2001 son born 2011 marriage appears le ideal wife told author pre sentence report longer viable criminal history 1996 1999 comprising relatively minor matter received fine bond community correction officer wrote pre sentence report applicant appeared minimise involvement offence stating denied physical penetration claimed victim encouraged contact said received level affection experienced taken wrong way claimed initiated contact always seemed want however say accepted full responsibility action handing police informing wife charge told officer hate officer impression applicant limited insight offending minimised responsibility expressed little victim empathy whilst seemed initially recognised conduct wrong appeared little avoid escalating report community correction psychologist included assessment made statistical instrument static 99r indicated applicant low moderate risk range sexual offending added may underestimate appeared number dynamic risk factor letter addressed sentencing judge applicant wrote despite initially said come realisation victim blame fault acknowledged initiated sexual activity said appreciated harm long term damage caused sorry taking away childhood perhaps emphasis stated sentiment repeatedly report dr richard furst consultant forensic psychiatrist dated 6 september 2015 tendered applicant provided history teased bullied teenager friend get well brother parent low self esteem self harmed including attempting suicide number time teen said sexually assaulted adult aged 13 disclosed sought received treatment pattern binge drinking teen 20 drinking much le past 5 6 year history illicit drug use course interview dr furst 25 august 2015 applicant said relation victim felt though willing wanted thing knew wrong claimed regretted action time since expressed awareness long term psychological harm offending would cause victim applicant claimed sexually attracted adult female child said never looked child sexual way denied deviant sexual fantasy involving child dr furst commented found hard accept assertion respect review statement agreed fact dr furst said keeping pattern deviant sexual arousal form paedophilia notwithstanding applicant assertion contrary dr furst found applicant met diagnostic criterion substance use disorder previous alcohol dependence binge pattern borderline personality disorderpaedophiliadr furst asked provide opinion may explain may contributed offending response included mention without stating anything conclusive possible relevance applicant sexually assaulted also said number dynamic factor probably contributed offending including intimacy deficit emotional dysregulation problem marital relationship probably also deviant sexual arousal fantasy especially regard age victim protracted nature offence production possession child abuse material indication unaware action wrongfulness would appear deviant cognition consequence paedophilia access victim general emotional deficit consequence borderline personality disorder contributed offending dr furst also commented applicant still deviant cognition relation victim role offending considered applicant minimised action culpability failed account gravity offending likely sexual attraction underage prepubescent child duration frequency severity offending matter dr furst suggested need addressed sex offender treatment program applicant engages contrast assessment author pre sentence report dr furst found upon consideration static 99r instrument applicant dynamic factor moderate high risk reoffending especially regard likely presence deviant sexual cognition involving child paedophilia apparent personality disorder positive note indicated applicant expressed willingness engage therapy program address offending meaning reasonable prospect successfully rehabilitated applicant gave evidence sentence proceeding agreed previously sought minimise involvement offence particularly police interview said thought time victim encouraged intimate whether meaning said come view misinterpreted child affection taken advantage agreed proposition resulted taking liberty accepted child developed trust taken advantage realised fault child hated done accepted responsibility said sorry done sorry put sorry ruining life taking childhood none fault applicant said proposed take advantage counselling rehabilitation program prepared take anti libidinal treatment wanted ensure reoffend cross examination crown prosecutor challenged applicant told author report role victim offence claimed spoken thought time offence time spoke community correction officer dr furst maintain thought agreed without equivocation sexually attracted child paedophile offence carried sexual enjoyment child going along normal behaviour destroyed young girl childhood also agreed knew time wrong grossly breached trust placed child parent ground appealthe applicant raised following ground appeal 1 sentencing judge erred assessment objective seriousness 2 sentencing judge erred taking abuse position authority account aggravating factor relation count 2 3 4 5 6 7 8 3 sentence otherwise manifestly excessive ground 1 error assessment objective seriousnessduring course remark sentence learned judge twice addressed seriousness offence immediately recounting fact pertaining offending said period offending spanned number year frankly fair assessmentof deviant evil conduct one could fairly say many respect conduct highest order criminality victim subjected abuse considerable period time undoubtedly gratification offender emphasis added later referring written oral submission party referred number finding relevant objective seriousness offence ro 20 21 hesewere isolated act repeated offence level escalation criminality involved period time offenceswere generally opportunistic must level planning honour explained made finding basis applicant seized opportunity embark criminal behaviour wife absent home w hen come child abuse material evidence suggest intended disseminate elsewhere hese offenceswere committed offender home clearly breach trust event self evident fair assessment fact emphasis added judge finding objective seriousness set following self evident thatthese offencesare objectively serious nature offending already detailed course remark need repeat objective gravity theoffending overallis considerable certainly order something excess mid range offending beyond subject nature various charge consideration sentence involves objective analysis offending conduct would sayall thisis higher end scale certainly beyond mid range although accept mind may well differ emphasis added judge referred submission crown depicted video recording made applicant offence count 3 4 5 indicated victim become sexualised said although noted counsel applicant submission contrary would seem one look objectively submission made crown considerable merit one considers actually occurred time event either way wrong objective seriousness offending conduct self evident anyway deserves view stern sentence reflect objective seriousness offence well subjective matter extent serve indicate aspect mitigation come particular offender already addressed emphasis added ro 24 submissionscounsel applicant submitted honour failed make assessment objective seriousness individual offence honour made assessment certainly order something excess mid range offending beyond relation offence finding open relation offence count 1 6 2 cited example objective seriousness lower level honour error making blanket finding submitted error well judge accepted crown submission sexualisation victim accepted victim compliance mitigating factor erroneous take sexualisation account aggravating factor victim compliance described disturbing inherent feature course applicant conduct suggestion individual offence isolated incident crown contended judge simply make global assessment objective seriousness offence characterisation objective seriousness offence classically within role sentencing judge determination court slow intervene reference made respect tomulato v r 2006 nswcca 282at 46 simpson j counsel applicant responded referring next paragraph judgment 47 one consequence might aptly termed separation power need first instance judge make clear finding fact clear evaluation matter objective seriousness absence clarity finding may result need appellate court undertake task crown submitted judge conclusion objective seriousness offence fell within similar range indicate ass criminality individual offence examination indicative sentence excluded possibility judge taking blanket approach crown also pointed feature common offence according finding made sentencing judge offence occurred victim cared applicant home entitled feel safe secure b offence part escalating pattern behaviour rather isolated incident c offence spanned almost half victim young life level planning albeit limited e applicant aware conduct wrong persisted abuse written submission also addressed detail feature various offence said support judge assessment objective seriousness also submitted judge acceptance crown submission sexualisation victim finding fact open inherent course conduct positive finding become merely compliant determinationthe asserted error accepting crown submission victim become sexualised consequence applicant offending may put aside two reason first judge advantage viewed video recording commission offence count 3 4 5 advantage court make assessment secondly significantly judge appear influenced finding assessment objective seriousness offence said effect assessment would made even wrong particular topic relation primary point raised ground satisfied judge speak term assessment seriousness offending overall articulate assessment relation individual offence abundantly clear expression used example fair assessment offence objectively serious objective gravity offending overall considerable higher end scale sign judge fact make assessment objective seriousness relation offence indicative sentence proportion maximum penalty vary significantly example indicative sentence count 1 3 year 9 month maximum penalty 25 year whereas count 14 15 6 year 9 month maximum 10 year necessary function honour sentencing task make finding gravity individual offence see example mulato v rat 47 jm v r 2014 nswcca 297 246 crim r 528at 39 4 r v van ryn 2016 nswcca 1at 133 142 may inferred indicative sentence task must intellectual engagement problem judge exposed reasoning subject lest thought case involving sentencing large number offence would involve onerous recitation lengthy elaborate reason need indicative sentence suggest judge must found lot offence fell within broadly similar range outlier assessment could stated fairly succinctly ground must upheld ground 2 taking account position authority aggravating factorthis ground based upon following passage judge sentencing remark note certainly come aggravating feature offence committed offender home clearly breach trust event self evident fair assessment fact element offence count 2 count 3 8 contrary 66a 2 66c 2 respectively committed circumstance aggravation namely victim authority applicant thecrimes sentencing procedure act 1999 nsw in 21a 2 k provides aggravating factor offender abused position trust authority relation victim conclusion ofs 21a 2 stated court additional regard aggravating factor sentencing element offence written submission district court crown referred tos 21a 2 k contended accused position trust complainant parent abused trust regular basis counsel appearing applicant submitted statutory aggravating feature offence committed offender home 21a 2 eb already element offender abused position trust authority 21a 2 k emphasis added held inmrw v r 2011 nswcca 260at 77 bathurst cj james johnson jj agreeing abuse position trust authority in 21a 2 k reference distinct concept held open sentencing judge case taken breach trust father towards child account element offence 66c 2 child father authority bathurst cj also counselled 78 however circumstance giving rise abuse trust abuse authority arise fact would seem sentencing judge cautious giving undue weight abuse position trust abuse authority aggravating factor circumstance sentencing judge error may result prospect intervention court crown also referred tojrm v r 2012 nswcca 112 andmrw v r involved sentencing judge specifically alluding fact victim authority offender element offence judge distinguished fact breach trust parent child found aggravating feature counsel applicant identified aspect contrast present case sentencing judge indicate aware fine distinction moreover submitted case fact authority fact breach trust arose fundamentally relationship core fact judge reference aggravating feature offence committed offender home also identified hearing counsel applicant erroneous seems likely judge accepting submission crown founded ons 21a 2 eb provides aggravating factor offence committed home victim person long held aggravating factor apply victim assaulted unauthorised intruder home example r v comert 2004 nswcca 125 ek v r 2010 nswcca 199 79 nswlr 740at 79 andingham v r 2011 nswcca 88 questioned regard unambiguous generality provision in 21a 2 eb expressed melbom v r 2013 nswcca 210at 44 andmontero v r 2013 nswcca 214at 47 case found primary judge entitled regard aggravating factor related circumstance offence occurred home beyond bare fact occurred five judge bench recently delivered judgment correct construction application ofs 21a 2 eb jonson v r 2016 nswcca 286where earlier authority followed problem present case basic level sentencing judge stated two aggravating feature explain circumstance case hand aggravating also nothing indicate judge saw distinction breach trust breach position authority explain would uphold ground sentencingerror established ground 1 2 therefore becomes necessary fresh assessment made order answer question posed bys 6 3 thecriminal appeal act 1912 nsw whether sentence whether le severe warranted law passed reason utility dealing ground 3 counsel applicant provided wealth material assist task including statistic table summarising 76 case reference case assist comparison sentence also identifying range conduct may encountered relation various offence case concerned reviewed material regard volume believe appropriate necessary refer detail objective seriousness offencesnone offence fell near either top bottom range objective seriousness middle range identify finding indicate must understood context fact virtue maximum penalty standard non parole period prescribed parliament offence serious relation offence appropriate take account general feature identified crown submission see 56 also appropriate take account breach authority trust except element offence relation 66a offence count 1 2 taken account age complainant relative threshold 10 year inherent offence nature activity fact applicant ejaculated inside victim relation count 2 view offence count 1 mid range offence count 2 high end mid range far 66c 2 offence concerned count 3 5 mid range accept crown submission represented particularly degrading exploitative series penile vaginal anal penetration ejaculation whilst act filmed victim aged 11 offence concerned victim aged 11 13 inclusive 66c 2 offence involved cunnilingus digital penetration victim aged 11 count 6 7 12 13 count 8 mid range relation aggravated indecent assault offence taken account age victim relative age threshold offence age applicant nature duration touching including degree physical contact aggravated indecent assault offence mid range except count 12 putting hand inside short touch penis would ass mid range count 14 rubbing penis breast ejaculation 16 rubbing penis vagina significantly mid range offence count 18 involving filming photographing victim pornographic purpose mid range particularly included child subjected anal vaginal intercourse count 3 5 concerned overlap criminality offence count 3 5 borne mind applying totality principle assessment aggregate sentence subjective mattersi reviewed applicant subjective case earlier see 30 ff accept applicant remorseful whilst might sought minimise extent gravity conduct including blaming victim sentence hearing clear time come full appreciation done harm caused accepted responsibility applicant prospect rehabilitation offending guarded much depend upon complying stated intention undertaking counselling completing relevant program prior release whether suitable anti libidinal medication long term commitment taking matter remain future applicant plea guilty entered early stage primary judge reduction indicative sentence 25 per cent maintained applicant receive credit well disclosure police matter subject specific disclosure victim something applies offence count 6 9 13 pursuant tos 23 4 thecrimes sentencing procedure act sentence apply respect offence 10 per cent le otherwise would disclosure otherwise unknown guilt fall withins 23was accepted high court incmb v attorney general new south wale 2015 hca 9 256 clr 356 see alsopanetta v r 2016 nswcca 85 matter relevant assessment sentencethe maximum penalty standard non parole period prescribed offence guidepost necessary take account context assessing relevant fact circumstance case muldrock v queen 2011 hca 39 244 clr 120 need take account three offence form 1 seems common understanding party taken account manner referred statement fact offence possessing child abuse material taken account relation count 3 two offence filming person private act without consent circumstance aggravation taken account relation count 11 term purpose sentencing in 3aof thecrimes sentencing procedure act general personal deterrence important matter need denounce sternly applicant conduct make accountable ensure adequately punished recognition harm done victim significant well addressed assessment applicant accepts must lengthy sentence promotion applicant rehabilitation another purpose punishment matter cannot override significance various matter mentioned finally obviously need apply principle totality assessment sentence mentioned overlap criminality offence count 3 5 18 conduct count 6 immediately preceded offence also fact count 8 16 17 arose single incident otherwise offence represented distinctly separate act criminality although fact formed part long term course conduct taken account scope considerable degree concurrency generally subject taken account principle set various judgment court usefully summarised joint judgment spigelman cj whealy howie jj inr v mak r v msk 2006 nswcca 381 167 crim r 159at 15 18 hall j inr v xx 2009 nswcca 115 195 crim r 38at 52 primary judge found special circumstance reduced non parole period two third total term sentence view special circumstance applicant previously sentenced custody indeed serving long sentence certainly need long term rehabilitation counselling upon release accept long term rehabilitation counselling necessary term sentence propose incorporate sufficiently lengthy parole period purpose application usual proportion dictated bys 44 2b thecrimes sentencing procedure act indicative sentencesi come view le severe aggregate sentence warranted passed compliance requirement ofs 44 2c 53a 2 b ands 54b 4 thecrimes sentencing procedure act separate sentence imposed would set following table convenience yet brevity included offence making provision maximum penalty standard non parole period applicable transparency included starting point reduction rounding utilitarian value plea guilty case count 6 9 13 assistance authority comparison purpose also include indicative sentence assessed primary judge countoffencemax snpporiginalnewbefore discount1s 66a25y 15y3y 9m 2y 9m4y 6m 3y 4m6y2s 66a 2 life 15y18y 9m 12y13y 6m 10y18y3 f1s 66c 2 20y10y6y 9m9y4s 66c 2 20y10y6y8y5s 66c 2 20y10y6y8y6s 66c 2 20y7y 6m4y 6m7y7s 66c 2 20y8y 3m5y 3m7y8s 66c 2 20y8y 3m5y 3m7y9s 61m 2 10y 8y1y 6m 1y3y 9m 2y 10m6y10s 61m 2 10y 8y5y 7m 3y 6m4y 6m 3y 4m6y11 f1s 61m 2 10y 8y5y 9m 3y 7m5y 3m 4y7y12s 61m 2 10y 8y5y 3m 2y 3m2y 3m 1y 9m3y13s 61m 2 10y 8y5y 3m 3y3y 9m 2y 10m6y14s 61m 2 10y 8y6y 9m 4y 3m5y 3m 4y7y15s 61m 2 10y 8y5y 9m 3y 7m4y 6m 3y 4m6y16s 61m 2 10y 8y6y 9m 4y5y 3m 4y7y17s 61m 2 10y 8y5y 3y3y 9m 2y 10m5y18s 91g 1 14y7y4y 6m6yordersi propose following order 1 grant leave appeal sentence allow appeal 2 quash sentence imposed district court 18 september 2015 3 sentence applicant aggregate term imprisonment 24 year non parole period 18 year sentence date 21 may 2014 non parole period expire 20 may 2032 whereupon applicant become eligible release parole total term expire 20 may 2038 bellew j agree r hulme j

The Australian Workers' Union v Killarnee Civil & Concrete Contractors Pty Ltd, ITF The Thompson Family Trust and another [2011] FWAFB 4349 (4 August 2011).txt

australian worker union v killarnee civil concrete contractor pty ltd itf thompson family trust another 2011 fwafb 4349 4 august 2011 fair work australiadecisionfair work act 2009s 604 appeal decisionsthe australian worker unionvkillarnee civil concrete contractor pty ltd itf thompson family trust construction forestry mining energy union c2011 4022 building metal civil construction industriesvice president watsondeputy president harrisoncommissioner cloghansydney 4 august 2011appeal decision fwaa 1147 deputy president mccarthy perth 24 march 2011 matter number ag2010 24319 appeal approval greenfields agreement entitlement represent interest majority employee statutory declaration approval enterprise agreement knowledge time approval onus satisfying approval requirement application admit new evidence appeal refusal hear new evidence permission appeal fair work act 2009 58 187 5 introduction 1 decision concern application permission appeal australian worker union west australia branch awu decision deputy president mccarthy perth 24 march 2011 relation approval greenfields enterprise agreement known thekillarnee civil concrete contractor pty ltd cfmeu gorgon project barrow island greenfields agreement 2010 agreement undersection 185of thefair work act 2009 act 2 appeal relates capacity construction forestry mining energy union cfmeu represent industrial interest majority employee covered agreement requirement ofs 187 5 act 3 hearing appeal sydney june 30 2011 mr gibian counsel appeared awu mr reitano counsel appeared cfmeu mr edward appeared behalf employer killarnee civil concrete contractor pty ltd itf thompson family trust killarnee background 4 22 december 2010 killarnee lodged application fair work australia approval proposed agreement agreement made killarnee cfmeu relation work carried connection gorgon project carried site barrow island application stated project broadly consisted undertaking earthwork civil construction work barrow island site 5 required act killarnee submitted employer declaration support application approval greenfields agreement employer declaration stated agreement cover employee employed classification set agreement barrow island employer declaration also stated employee organisation covered agreement taken whole entitled represent industrial interest majority employee covered agreement relation work performed agreement 6 cfmeu lodged declaration employee organisation support application approval greenfields agreement relation agreement support approval declaration also stated employee organisation covered agreement taken whole entitled represent industrial interest majority employee covered agreement relation work performed agreement 7 4 january 2011 awu filed written objection approval agreement ground objection killarnee already made greenfields agreement awu also deputy president consideration approval time objection second agreement would lead confusion amongst employee possible demarcation dispute two union ground stated cfmeu entitled represent majority employee classification listed schedule agreement ground application approval satisfys 187 5 act 8 deputy president informed killarnee cfmeu awu objection invited provide response response received 4 february 2011 representative employer submitted anticipated awu agreement would approved first would apply employee classification agreements1 employer representative submitted respect classification covered cfmeu agreement cfmeu entitled represent majority employee covered agreement neither employer cfmeu able establish number employee employed agreement classification submitted declaration party majority coverage cfmeu accepted 9 deputy president decided list awu cfmeu application hearing 9 march 2011 heard submission similar effect contained written submission specifically asked employer representative whether cfmeu able represent majority employee covered proposed cfmeu agreement representative unable provide anticipated number 10 honour approved awu agreement 23 march 2011 cfmeu agreement 24 march 2011 11 awu filed notice appeal relation deputy president decision approve agreement 13 april 2011 stay order approving agreement made 27 april 2011 senior deputy president acton decision appeal 12 deputy president satisfied agreement greenfields agreement lodged accordance act met requirement ofs 186of act 13 honour considered requirement ofs 187 5 act relation greenfields agreement including purpose section stated paragraph 33 34 decision 33 seems intention parliament facilitate making greenfields agreement whilst time preventing ability employer choose negotiate one union rather single union frustrate making agreement 34 provision appear purpose greenfields agreement instrument determines coverage issue union context considers 187 5 applied 2 14 deputy president determined cfmeu relevant employee organisation agreement basis evidence employer declaration filed killarnee employee organisation declaration filed cfmeu honour stated evidence contrary either agreement declaration incorrect 15 relation absence competing evidence honour stated paragraph 37 40 37 essence awu asking find cfmeu agreement speaks cover majority employee expected employed perform work cfmeu agreement 38 evidence likely number employee evidence classification employee employed evidence scope coverage awu exclusive awu scope coverage cfmeu exclusive cfmeu scope coverage overlap cfmeu awu evidence declaration party agreement 39 circumstance awu submission asking find face cfmeu agreement meet requirement accept declaration killarnee cfmeu 40 signatory declaration lodged assert declaration basis satisfied requirement ofs 187 5 met agree evidence sufficient reason accept content declaration stand decided accept declaration evidence meeting requirement fw act therefore satisfied agreement meet requirement 187 5 16 honour found approval agreement would public interest ground evidence approval two agreement identical term save classification would lead demarcation issue conflict two union project honour held finding consistent intention 187 5 number object act also operation 58 act allows awu agreement apply extent common classification found agreement 17 ground deputy president satisfied agreement met requirement s 186 187 act approved agreement effect seven day decision application awu admit new evidence appeal 18 hearing appeal awu sought adduce fresh evidence pursuant 607 2 act new evidence included submission put forward killarnee likely composition workforce employed agreement affidavit paul aspin assistant branch secretary awu wa branch cfmeu rule counsel awu submitted material ought considered full bench hearing appeal basis discretion conferred 607 2 act strictly confined appropriate full bench consider new material likely number type employee engaged agreement regard concession killarnee employer declaration deputy president based inadequate information information shown incorrect 19 counsel cfmeu opposed admission new evidence appeal basis affidavit mr aspin new information could obtained time decision quality would lead high degree probably result would changed similar submission made relation cfmeu rule counsel cfmeu also opposed admission submission kilarnee relation employee number coverage agreement basis information known employer time decision case would changed outcome decision submitted exist exceptional circumstance would warrant admission fresh evidence appeal 20 representative killarnee supported awu application admission new evidence submitting open full bench regard new submission company also affidavit mr aspin 21 hearing considered submission party question new evidence determined pursuant section 607 2 regard circumstance would admit new evidence appeal briefly expand reason determination note material sought elaborate upon limited information provided bar table contradict declaration filed employer cfmeu hearing first instance awu seek test declaration way cross examination leading contrary evidence seek rely apparently different assertion submitted form sworn evidence information appears result subsequent reassessment issue specifically addressed party based state knowledge time information apparently revised light date information classification employee engaged killarnee project 22 information available time initial hearing normally admitted hearing appeal information come light subsequently may admitted bear issue determined appeal case required consider correctness deputy president decision requirement act regarding enterprise agreement made decision basis evidence submission subsequent reassessment circumstance relevant specific question required consider reason declined application admit new evidence employment intention contained employer written outline submission appeal 23 proposed evidence awu official paul asplin appears relate understanding detail project read conjunction employer reassessment employment requirement information available previously least part largely hearsay cogent reason advanced evidence could adduced first instance reason given conclusion admission employer reassessment employment requirement declined admit material 24 relevance cfmeu rule issue required address made ground appeal submission party 25 indicated appeal concern narrow ground whether agreement properly approved deputy president regard provision 187 5 act 26 awu submits deputy president made error law erred interpretation application 187 5 act approving agreement light refusal admit new evidence awu appeal decision deputy president following base 27 first awu submits deputy president erred finding cfmeu represented majority employee relation agreement honour sufficient evidence upon could properly satisfied requirement 187 5 met informed course hearing killarnee unable provide information tribunal respect number type employee covered agreement awu submits statutory declaration deputy president relied made without knowledge type number employee engaged agreement therefore opinion expressed statutory declaration eligibility cfmeu cover majority employee alone sufficient basis upon honour could approved agreement 28 awu asserts even context greenfields agreement type number future employee often known certainty new enterprise project must least sufficiently crystallised order provide tribunal level certainty employee number type allows assessment whether requirement 187 5 met submits case section would redundant certainty let alone requisite standard certainty present evidence agreement approved ground made awu submits end matter appeal upheld decision quashed 29 counsel awu also submits honour erred placing onus awu objector disprove material contained statutory declaration rather assessing whether material contained statutory declaration independently satisfied requirement 187 5 30 awu contends public interest permitting appeal correcting error law indentifying correct principle applicable approving greenfields agreement principle application beyond party matter 31 awu submits aggrieved party pursuant 604 act submits person aggrieved opposed approval agreement decision first instance agreement subsequently approved also submits term person aggrieved 604 narrowly construed necessary consider relevant statutory context 187 5 submits act recognises interest industrial organisation making greenfields agreement may affect condition employment new enterprise relevant agreement cover employee member may eligible membership 32 awu submits appeal upheld decision deputy president quashed 33 cfmeu opposes standing awu appeal decision basis person aggrieved decision accordance 604 1 act demonstrated grievance decision member public cfmeu submits cfmeu agreement alter impair detract operation awu agreement 34 cfmeu also submits awu attempting run significantly different case appeal comparison case ran hearing deputy president specifically cfmeu contends awu submission decision first instance focused coverage majority classification rather coverage majority employee generally awu impermissibly seek run latter argument ground number employee covered 35 cfmeu submits open deputy president find cfmeu entitled represent majority employee basis evidence contained statutory declaration honour err submits necessary evidence determine precise number type employee engaged agreement sworn evidence party application enough satisfy requirement 187 5 particularly circumstance competing evidence tribunal consideration 36 cfmeu submits awu mistaken characterising decision deputy president reversing onus proof relation 187 5 evidentiary onus placed awu statutory declaration tendered evidence 37 cfmeu submits error law fact present decision deputy president appeal dismissed 38 killarnee submits error law present decision deputy president concede awu standing appeal decision killarnee submits light new information statutory declaration relied upon deputy president inaccurate standing appeal 39 determine awu standing appeal decision organisation agreement covering employee engaged project agreement face cover many identical classification cfmeu agreement permission appeal 40 appeal raise question proper application 187 5 act previously considered full bench role tribunal member approving agreement based declaration party satisfied public interest grant permission appeal coverage agreement 41 order approve agreement deputy president required satisfied cfmeu entitled represent industrial interest majority employee covered agreement act greenfields agreement type agreement made without consent majority employee covered agreement given opportunity vote cast vote approve agreement apparent purpose 187 5 ensure greenfields agreement made organisation representative relevant employee avoid situation employee consent confined representative minority employee covered agreement requirement could said relate quality integrity agreement reference representative nature employee representative make agreement 42 section 187 5 requires consideration industrial interest employee covered perform work relation agreement necessitate broader consideration industrial interest employee engaged particular enterprise case particular construction contract requirement consideration confined employee covered agreement important context act appear limit number agreement made respect single enterprise long representative element party satisfied agreement would normally drafted employee covered clearly established overlapping agreement would generally avoided purpose clarity minimise confusion specifically precluded term act 43 case appears overlap coverage awu cfmeu agreement least respect nominated classification extent overlap agreed need determined proceeding sufficient note however cfmeu agreement contains classification specified awu agreement conceded cfmeu cfmeu agreement contains classification cfmeu cannot cover rule 44 case operation 58 act also significant provides one enterprise agreement apply employee particular time two agreement cover employee neither nominal expiry date passed earlier agreement one applies awu agreement made 13 december 2010 cfmeu agreement made 21 december 2010 45 follows awu agreement applies employee falling within scope cfmeu agreement applies employee within classification covered awu agreement question whether cfmeu entitled represent industrial interest employee 46 deputy president relied evidence contained declaration made employer cfmeu asserting requirement satisfied without useful elaboration detail making declaration serious matter making must ensure accurate tribunal member dealing application approval agreement discretion accept declaration require information deputy president knew issue contested invited written submission listed matter hearing hearing specifically requested information time party able supply detail verification assertion declaration awu argued requirement section 187 5 satisfied relation classification agreement test refute evidence employer cfmeu declaration 47 circumstance view deputy president information available entitled follow course reach conclusion requirement 187 5 satisfied awu demonstrated appeal course followed conclusion reached wrong established decision appeal error appeal must dismissed conclusion 48 grant permission appeal dismiss appeal stay order approving agreement discharged vice president watsonappearances mr gibian counsel awu mr r reitano counsel cfmeu mr w edwardson behalf killarnee hearing detail sydney201130 june 1section 58 act 2references omitted printed authority commonwealth government printer price code c ae884278 pr511327

Boral Resources (Country) Pty Ltd re Cadia Valley Operations Concrete Drivers Enterprise Agreement 2011 [2012] FWAA 1886 (7 March 2012).txt

boral resource country pty ltd cadia valley operation concrete driver enterprise agreement 2011 2012 fwaa 1886 7 march 2012 fair work australiadecisionfair work act 2009s 185 enterprise agreementboral resource country pty ltd ag2011 3320 cadia valley operation concrete driver enterprise agreement 2011cement concrete productscommissioner ryanmelbourne 7 march 2012application approval cadia valley operation concrete driver enterprise agreement 2011 1 application made approval enterprise agreement known thecadia valley operation concrete driver enterprise agreement 2011 agreement application made pursuant tos 185of thefair work act 2009 act made boral resource country pty ltd agreement single enterprise agreement 2 satisfied requirement ofss186 187and188as relevant application approval met 3 undertaking given relation numerous clause agreement undertaking become term agreement accordance withs 191 2 act appended appendix 4 although number undertaking offered employer significant satisfied effect accepting several undertaking likely result substantial change agreement 5 received signed statement employee bargaining representative stating approval undertaking given boral 6 agreement approved accordance withs 54 1 operate 14 march 2012 nominal expiry date agreement 30 july 2013 commissionerprinted authority commonwealth government printer price code g ae892122 pr520864 appendix

MELEKA -v- WRIGHT [2012] WASC 69 (29 February 2012).txt

meleka v wright 2012 wasc 69 29 february 2012 last updated 20 march 2012jurisdiction supreme court western australiain criminalcitation meleka v wright 2012 wasc 69coram hall jheard 13 february 2012delivered 13 february 2012published 29 february 2012file sja 1076 2011between michael melekaappellantandemma victoria wrightrespondenton appeal file sja 1076 2011jurisdiction magistrate court western australiacoram magistrate g n caldercitation mi 5833 11catchwords criminal law traffic offence driving whilst suspended 18 previous similar offence sentence imprisonment appropriate sentence imposed magistrate court exceeded statutory maximum penalty appropriate rangelegislation road traffic act 1974 wa 49result appeal allowedappellant resentenced 9 month imprisonmentcategory brepresentation counsel appellant mr g w masseyrespondent m e johnsonsolicitors appellant holborn lenhoff masseyrespondent state solicitor western australiacase referred judgment 1hall j judgment delivered extemporaneously edited transcript 2this appeal sentence 20 month imprisonment imposed magistrate court 29 july 2011 day appellant pleaded guilty one charge driving whilst court imposed suspension contrary tos 49 1 theroad traffic act 1974 wa 3the maximum sentence offence driving whilst disqualified offender previously convicted offence fine 20 80 penalty unit imprisonment 18 month 49 1 c ii road traffic act sentence case statutory maximum therefore clearly error 4the respondent quite properly concedes appeal must allowed appellant resentenced whilst ground appeal unnecessary consider real issue sentence imposed 5the appellant long unfortunate history driving whilst disqualified first offence committed may 2000 appellant 18 year old present conviction 19th offence previously sentenced term imprisonment sentence imposed follows 18 december 2001 appellant sentenced relation two count driving whilst suspension two term 6 month imprisonment suspended period 12 month 21 september 2004 appellant sentenced one count driving whilst suspension term 10 month immediate imprisonment 20 december 2005 appellant sentenced two count driving whilst suspension term 12 month immediate imprisonment term served concurrently 18 july 2007 appellant convicted five count driving whilst suspended sentenced 12 month imprisonment one count 9 month imprisonment four count term served concurrently 7 november 2007 appellant convicted one count driving whilst disqualified sentenced 4 month imprisonment 17 june 2009 appellant convicted five count driving whilst suspended sentenced 6 month imprisonment count three made cumulative producing effective total sentence 18 month imprisonment finally 14 october 2009 appellant convicted one offence driving whilst suspended sentenced 5 month imprisonment term run concurrently offence appellant convicted 17 june 2009 6on occasion appellant also sentenced offence predominantly traffic nature 7when sentenced present offence appears magistrate considered sentence higher 18 month imposed 17 june 2009 required sentence sufficiently deterred appellant driving whilst suspended quite apart fact sentence imposed occasion appeal exceeded maximum statutory penalty magistrate also appears taken account 18 month previously imposed five offence one aggregate sentence consisting three cumulative 6 month sentence two concurrent 6 month sentence 8the appellant contend sentence one imprisonment appropriate issue long sentence bearing mind range sentence referred insheiner v robert 2009 wasc 281andmears v holleman 2010 wasc 39i satisfied sentence significantly lower imposed magistrate appropriate 9i take account determining appropriate sentence appellant plead guilty deserving consideration regard also note offence involved single instance whereas occasion appellant charged multiple offence furthermore previous occasion appears sought conceal offence misleading dishonest police resulted additional charge respect 10on hand clearly need significant personal deterrence offence nature considered insignificant particularly persistent course conduct many year appellant course fall punished prior offence however indicate shown ingrained disrespect law accordingly penalty imposed upon must act real deterrent commit offence nature 11i take account factual circumstance offending mr massey tell occurred circumstance appellant faced situation delivery make respect sound system business work required different location within short time alternative driver available circumstance made decision drive bad decision one made casually nonetheless conceded circumstance excuse conduct sentence immediate imprisonment appropriate 12the sentence intend impose one 9 month imprisonment backdated commence 29 june 2011 2 year cumulative suspension imposed magistrate stand

Bovaird v Frost (No 2) [2013] FCA 1166 (7 November 2013).txt

bovaird v frost 2 2013 fca 1166 7 november 2013 last updated 8 november 2013federal court australiabovaird v frost 2 2013 fca 1166citation bovaird v frost 2 2013 fca 1166parties leon lewis macgillivray bovaird leon lewis macgillivray capacity executor estate late monica catherine bovaird v alan maxwell frost diana catherine fallon max donnelly capacity trustee bankrupt estate late maxwell walter allen frostfile number nsd 1605 2013judge perram jdate judgment 7 november 2013catchwords cost discretion exercise proceeding instituted unnecessarily due conduct partylegislation bankruptcy act 1966 cth 27jurisdiction court cross vesting act 1987 cth 5 4 b ii case cited bovaird v frost 2013 fca 974citedbovaird v frost 2013 nswca 91citedbovaird v trustee bankrupt estate frost 2 2011 fca 465citedfrost v bovaird 2012 fcafc 60 2012 203 fcr 95citedre minister immigration ethnic affair ex parte lai qin 1997 hca 6 1997 186 clr 622citeddate hearing heard papersplace sydneydivision general divisioncategory catchwordsnumber paragraph 12counsel applicant mr k condon sc mr p doyle graysolicitor applicant garland hawthorn brahecounsel first second respondent mr n cotman sc mr r j carrutherssolicitor first second respondent mbp legalcounsel third respondent third respondent appearin federal court australianew south wale district registrygeneral divisionnsd 1605 2013between leon lewis macgillivray bovairdfirst applicantleon lewis macgillivray capacity executor estate late monica catherine bovairdsecond applicantand alan maxwell frostfirst respondentdiana catherine fallonsecond respondentmax donnelly capacity trustee bankrupt estate late maxwell walter allen frostthird respondentjudge perram jdate order 7 november 2013where made sydneythe court order first second respondent pay applicant cost seeking leave proceed supreme court ii resisting oral application first second respondent vary grant leave given 3 may 2011 applicant pay first second respondent cost applicant application cross vest proceeding supreme court new south wale third respondent would justified stage indemnifying first second respondent cost respect present application order cost respect cost issue arising present application note entry order dealt rule 39 32 thefederal court rule 2011 federal court australianew south wale district registrygeneral divisionnsd 1605 2013between leon lewis macgillivray bovairdfirst applicantleon lewis macgillivray capacity executor estate late monica catherine bovairdsecond applicantand alan maxwell frostfirst respondentdiana catherine fallonsecond respondentmax donnelly capacity trustee bankrupt estate late maxwell walter allen frostthird respondentjudge perram jdate 7 november 2013place sydneyreasons judgmenton 27 september 2013 dismissed bovairds application leave apply supreme court new south wale leave amend statement claim proceeding pending court entitledbovaird v frost2010 41888 bovaird v frost 2013 fca 974 previously granted leave pursue proceeding seebovaird v trustee bankrupt estate frost 2 2011 fca 465 term grant leave already encompassed making application amend pleading way bovairds sought leave court thought necessary proceeding supreme court respect debt provable administration estate bovairds accept needed approach court leave thought antecedent grant leave sufficient face claim frost need leave sought event determined need dismissed application matter formality bovairds seek cost basis application made necessary insistence frost leave court required agree frost insisted application made erroneous view leave necessary application would made thus whilst frost formally respondent application substance aggressor basic point contended rejected frost pay bovairds cost application leave apply leave amend supreme court pleading bovairds also sought order cross vesting entire matter court supreme court could determine leave issue bankruptcy time substantive question whether leave amend granted dismissed application unnecessary light determination leave necessary opinion reasonable bring application light position adopted frost hand application almost certain fail court avoid transferring matter supreme court court appears jurisdiction jurisdiction court cross vesting act 1987 cth 5 4 b ii jurisdiction court bankruptcy exclusive jurisdiction state court bankruptcy act 1966 cth 27 supreme court jurisdiction grant leave presently sought cross vesting application would therefore certainly failed clarity proposition make case one case even though determination merit reasonable make application frost would almost certainly successful matter fully tried seere minister immigration ethnic affair ex parte lai qin 1997 hca 6 1997 186 clr 622at 625 per mchugh j reason bovairds bear cost cross vesting application hearing frost applied orally leave remould original grant leave 3 may 2011 would cover application supreme court amend proceeding refused application basis would much sensible court seized proceeding determine whether amendment made perceived substantive threat estate see reason cost ought follow event frost pay cost oral application bovairds also seek order cost 4 september 2013 taxed indemnity basis submitted appropriate made offer compromise proceeding court basis unreasonable frost thereafter refuse offer leave would granted pursue amendment application supreme court party bear cost court think unreasonable frost reject offer two reason first frost benefit obiter remark basten ja inbovaird v frost 2013 nswca 91at 15 apparent judgment perram j appellant would required return federal court obtain leave order make claim devastavit proceeding although concluded fact correct reasonable frost regard statement supporting position secondly whilst accept offer compromise involve compromise bovairds part effect bovairds gave away cost already spent application think compromise rejection characterised unreasonable accordingly decline award indemnity cost respect period 4 september 2013 onwards bovairds also sought order trustee would justified meeting cost frost relation present application estate granted leave bovairds proceed 3 may 2011 also directed trustee bankruptcy would justified indemnifying frost cost defendingbovaird v frostin supreme court conclusion disturbed appeal bovairds seek characterise present application effect ancillary proceeding result frost denied indemnity effect happened litigation frost entitled current indemnity respect proceeding mean recognised main judgment present application see 2013 fca 974at 24 frost succeed litigation may ultimately entitled indemnity estate time however presently entitled frost emphasised correctly position present application unreasonable said accept remark basten ja question come whether one see proceeding court aspect bankruptcy court supervising part supreme court proceeding original decision 3 may 2011 frost entitled indemnity respect proceeding court reversed full court frost v bovaird 2012 fcafc 60 2012 203 fcr 95at 110 111 89 basis much cost proceeding court related proposed proceeding court appeal brought bovairds frost subject indemnity proceeding appeal order conduct frost already judicially determined reasonable characterisation conduct frost meant erroneous proceeded basis persuaded stage reasonableness determined conduct frost respect application court reasonable conduct relates suit however underlying question whether conduct executor reasonable lose suit unlikely entitled indemnity would little surprising circumstance entitled indemnity respect present application suggests present application ancillary supreme court proceeding circumstance conclude question indemnity await outcome proceeding supreme court accordingly make direction sought bovairds leaf question cost cost application party success order cost respect cost application order court first second respondent pay applicant cost seeking leave proceed supreme court ii resisting oral application first second respondent vary grant leave given 3 may 2011 applicant pay first second respondent cost applicant application cross vest proceeding supreme court new south wale third respondent would justified stage indemnifying first second respondent cost respect present application order cost respect cost issue arising present application certify preceding twelve 12 numbered paragraph true copy reason judgment herein honourable justice perram associate dated 7 november 2013

SZDKE v MIMIA & Anor [2006] HCATrans 29 (9 February 2006).txt

szdke v mimia anor 2006 hcatrans 29 9 february 2006 szdke v mimia anor 2006 hcatrans 29 9 february 2006 last updated 20 february 2006 2006 hcatrans 029in high court australiaoffice registrysydney s476 2005b e w e e n szdkeapplicantandminister immigration multicultural indigenous affairsfirst respondentrefugee review tribunalsecond respondentapplication special leave appealpublication reason pronouncement ordershayne jcrennan jtranscript proceedingsat canberra thursday 9 february 2006 9 19 amcopyright high court australiahayne j applicant citizen pakistan seek special leave appeal order single judge federal court australia wilcox j exercising appellate jurisdiction court order wilcox j dismissed applicant appeal order federal magistrate court dismissing application relief unders 39bof thejudiciary act1903

Mamun, Mohammed Golam [2001] MRTA 911 (8 March 2001).txt

mamun mohammed golam 2001 mrta 911 8 march 2001 last updated 10 may 2001 2001 mrta 911catchwords visa cancellation subclass 560 condition 8202 course completed time cancellationreview applicant mohammed golam mamunvisa applicant mohammed golam mamuntribunal migration review tribunalpresiding member janis buttmrt file number 0005726dima file number clf2000 37416date decision 8 march 2001at canberradecision tribunal set aside decision review cancel student temporary class tu visa subclass 560 granted visa applicant statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate mr mohammed golam mamun visa applicant citizen bangladesh born 6 october 1976 last granted student temporary class tu subclass 560 visa 7 july 2000 delegate decision cancel visa made 18 october 2000 jurisdiction standing2 visa applicant lodged application review tribunal 20 october 2000 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 theact various regulation made thatact principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound theact regulation written direction issued minister undersection 499of theact matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msi produced department immigration multicultural affair dima tribunal required regard policy apply unless cogent reason departing policy 4 legislation policy relevant review legislation section 116of theactpart 560of schedule 2 regulationsschedule 8 condition 8202policy pam3migration series instruction 203 visa cancellation subdivision e fmsi 67 visa cancellation general guidelinesgeneric guideline g student visa casesnong v minister immigration multicultural affair 2000 fca 1575katz j 6 november 2000evidence5 tribunal material contained dima file tribunal file relevant file t1 mrt case file 005726 folio numbered 1 66 d1 dima file clf2000 37416 folio numbered 1 65 6 evidence tribunal visa applicant 24 year old single male bangladesh first entered australia 6 november 1999 holding student 560 visa since time held number visa including bridging visa e visa applicant last granted subclass 560 visa 7 july 2000 basis enrolled advanced diploma marketing course cambridge international college course completion date 5 july 2002 7 14 august 2000 cambridge international college informed dima visa applicant enrolment cancelled failed meet course requirement noting attendance rate 19 attained d1 f 9 well prescribed attendance rate 80 achieved meet course requirement summary attendance sent cambridge international college list visa applicant attendance period 17 july 2000 15 september 2000 d1 f 21 8 file tribunal indicate 21 september 2000 dima advised visa applicant notice intention cancel subclass 560 visa deemed breached condition 8202 student visa d1 f 13 subsequently 26 september cambridge international college sent letter dima stating accepted visa applicant reason absence term 3 result prepared reinstate enrolment advanced diploma marketing course delegate made comment file state d1 f 26 visa applicant presented information cambridge college wish support stay australia appears happen quite often cambridge involved delegate asked visa applicant provide complete attendance record college also medical certificate relation father condition 9 file note summarising interview held visa applicant 18 october 2000 state visa applicant claim father medical condition reason poor attendance produced medical certificate dated 8 october 2000 attest father condition also complete attendance record d1 f 26 18 october 2000 dima made decision cancel visa applicant visa pursuant tos116 1 b theact delegate file note indicate accept visa applicant explanation concerning poor attendance father health visa applicant able work period yet could attend study 10 subsequent application review visa applicant provided evidence enrolment cambridge college pre paid fee june 2001 t1 f57 58 also provided copy letter dated 9 january 2001 college principal t1 f62 64 state pleased report student made improvement completed satisfactory number module 4thterm ending december 2000 copy academic transcript made available read conjunction letter passed 9 14 module shown satisfactory level performance cambridge international college therefore prepared reinstate mr mamun enrolment advanced diploma marketing course instance 11 visa applicant also provided tribunal satisfactory evidence attendance previous course undertaken result unit completed t1 f 59 60 12 letter tribunal dated 12 january 2001 t1 f 66 visa applicant still dispute attendance rate 19 state certificate key boarding technique dated 11 september appear college attendance letter definitely attended also say attendance low father sickness family sadness father ill health visa applicant state father medical certificate accepted overseas considers unfair finding reason decision13 class tu contains three visa subclass subclass 560 student subclass 562 iranian postgraduate student subclass 563 iranian postgraduate student dependent decision review decision cancel visa applicant subclass 560 visa pursuant tosection 116 1 b theact 14 section 116of theactempowers minister cancel visa certain circumstance applicant visa cancelled undersection 116 1 b state minister may cancel visa satisfied holder complied condition visa section 116 3 provides certain circumstance visa must cancelled circumstance prescribed inregulation 2 43and include non compliance condition 8202 case student visa regulation 2 43 2 b legislation relating mandatory cancellation power took effect 1 december 1998 applies case visa granted condition imposed date 15 visa applicant student visa granted 7 july 2000 included condition 8202 mandatory condition state 8202 holder must case occupational trainee satisfy requirement course occupational training approved minister subclause 442 222 1 ii case holder subclass 560 visa ausaid secondary school exchange student enrolled full time course study iii case enrolled registered course b must holder occupational trainee attend least 80 class tutorial scheduled course evidenced record attendance education provider ii attendance cannot evidenced achieve academic result certified education provider least satisfactory c must holder occupational trainee comply requirement education provider relation payment fee course 16 departmental record tribunal indicate visa applicant attendance rate cambridge international college period 17 july 2000 14 august 2000 recorded unsatisfactory 19 breach condition 8202 b subsequently 14 august 2000 cambridge international college advised dima cambridge international college cancelled visa applicant enrolment date due failure meet course requirement d1 f 9 however tribunal also note cambridge college change heart letter dima 26 september 2000 towards visa applicant result father medical condition indicated willingness reinstate course enrolled d1 f 17 fact evidence file confirms visa applicant actually studied successfully cambridge college fourth term ending december 2000 t1 f 62 64 17 evidence tribunal accepts visa applicant enrolled course study commenced 17 july 2000 almost one month elapsed notice non compliance sent dima cambridge international college tribunal note percentage rate attendance 19 noted notice non compliance summary attendance indicates poor attendance period 15 september 2000 d1 f 21 tribunal note delegate cancelled visa applicant visa mandatory ground believed breach condition 8202 b occurred basis visa applicant attendance record le 80 18 however tribunal regard mrt decision recently set aside 6 november 2000 federal court innong v minister immigration multicultural affair 2000 fca 1575 katzj katz j held mrt applied incorrect construction requirement condition 8202 case focussed requirement set par 2 8202 visa holder attend least 80 class tutorial scheduled course court held give effect ordinary meaning word par b 8202 requires construction par b contemplates examination student attendance registered course enrolled course concluded 19 based material test applied innongthat contemplates examination student attendance registered course enrolled course concluded tribunal find visa applicant enrolled registered course due concluded 5 july 2002 time visa cancellation paid fee applying test innong tribunal find visa applicant breached condition 8202 conclusion20 taking account relevant matter tribunal concludes ground cancellation visa made decisionthe tribunal set aside decision review cancel student temporary class tu visa subclass 560 visa granted visa applicant

Rogerson and Birch Surveyors v Glamorgan Spring Bay Council [2012] TASRMPAT 33 (23 February 2012).txt

rogerson birch surveyor v glamorgan spring bay council 2012 tasrmpat 33 23 february 2012 last updated 9 march 2012citation rogerson birch surveyor v glamorgan spring bay council 2012 tasrmpat 33parties appellant rogerson birch surveyorsrespondent glamorgan spring bay counciladdress 25 27 maria street swanseatitle tribunal resource management planning appeal tribunaljurisdiction planning appealfile 213 11sdelivered 23rdfebruary 2012delivered hobarthearing date 30thnovember 2011decision sj cooper chairmancatchwords planning appeal consent decisionreasons decisionas result conference pursuant tosection 17of theresource management planning appeal tribunal act 1993held 30thnovember 2011 hobart agreement reached party term decision appeal tribunal term agreement reduced writing signed party given appeal tribunal appeal tribunal satisfied decision term agreed party would within power appeal tribunal would appropriate decision make decision accordingly without holding hearing decision appeal tribunal decision glamorgan spring bay council council appealed varied follows condition 2 southern water condition deleted replaced following condition prior issue southern water certificate approval plan subdivision southern water sewer main must extended cost developer generally shown concept servicing plan awc006 719606b proposed subdivision rogerson birch dated 27 06 2011 modified southern water plan p1 dated 10 august 2011 follows new discharge maintenance hole must designed constructed developer northern boundary lot 14 order connect existing southern water sewer rising main within subject lot new gravity sewer main sewer rising main must traverse newly created lot sewer rising main discharge maintenance hole must designed union new gravity sewer maintenance hole capped dn150 stub future upstream development north lot 14 sewer servicing lot 14 15 19 20 must continuation main servicing lot 21 23 general vicinity north eastern boundary lot 14 15 replacing existing dn150 sewer existing connection must connected new sewer southern water existing sewerage rising main located within subject land rising main required connected sewerage infrastructure constructed developer service subdivision southern water requires rising main connected new sewer main rear lot 14 construction sewer main renew part existing sewer main evaluated requiring renewal work developer take account existing property connection include provision manhole service sewer main connection point southern water reimburse developer cost payment totalling 30 568 00 excl gst indexed quarterly consumer price index group hobart rate date permit date paid southern water main extension must constructed contractor approved southern water andall live connection new infrastructure including connection sewer rising main new discharge maintenance hole must undertaken southern water developer cost condition 4 southern water condition deleted replaced following condition prior work commencing onsite developer cost southern water construct water main generally shown plan p2 dated august 2011 developer cost avoidance doubt construction extend dn200 water main corner maria street julia street along maria street wellington street across maria street subdivision install hydrant dn200 water main decommission existing pvc pipe southern side maria street wellington street julia street connection transferred dn200 water main extension southern water engage developer behalf reimburse developer difference cost installing dn 200 water main 150mm water main southern water developer agree difference cost installing dn 200 water main 150mm water main 14 657 00 amount indexed quarterly consumer price index group hobart rate date permit date paid southern water developer must engage suitably qualified hydraulic engineer design appropriately sized water main meet water supply demand domestic fire fighting requirement entire subdivision lot must access minimum dn100 water main proposed water main subdivision constructed within proposed new road reserve andall main extension must constructed contractor approved southern water condition 5 southern water condition deleted condition 6 southern water condition deleted replaced following condition plan must submitted show existing redundant proposed property service accordance following requirement one sewer one water property service connection must provided lot property water service vacant lot must minimum 20mm nominal bore terminating meter box excluding water meter inside property boundary road frontage event lot existing building water used required water meter must provided installed accordance standard property connection detail contained southern water water metering guideline sewer property service connection lot must minimum 100mm nominal bore must located low point lot inside property boundary developer responsible locating existing connection clearly showing detail drawing existing connection cannot located may located southern water developer cost redundant connection must shown cut sealed private water sewerage service pipe must separated wholly contained within lot service andall modification addition property service connect directly onto southern water main must carried southern water developer cost southern water condition renumbered required directed council issue replacement permit incorporating amendment within 14 day decision tribunal order party bear cost dated 23rdday february 2012sj cooperchairman

THE STATE OF WESTERN AUSTRALIA -v- JOVANOVICH [2013] WADC 191 (6 December 2013).txt

state western australia v jovanovich 2013 wadc 191 6 december 2013 last updated 26 july 2018jurisdiction district court western australiain criminallocation perthcitation state western australia v jovanovich 2013 wadc 191coram neal dcjheard 28 october 2013delivered 6 december 2013file ind 679 2013ind 680 2013between state western australiaandmiki jovanovichcatchwords possession drug intent sell supply trial issue intention possessor following plea guilty turn factslegislation nilresult finding fact set outrepresentation counsel state western australia mr j thieringaccused mr l levy scsolicitors state western australia director public prosecutionsaccused david maneracase referred judgment 1o neal dcj miki jovanovich pleaded guilty three drug offence contained two different indictment 2 indictment 680 2013 contained two count one cultivating cannabis intent sell supply another one possessing cannabis intent sell supply another 3 indictment 679 2013 contains single charge possessing methylamphetamine intent sell supply another 4 respect charge possession methylamphetamine however mr jovanovich asserts honestly believed prohibited drug derivative cannabis cannabis oil methylamphetamine primary issue determine also claimed time offence intended use drug derivative cannabis supply others 5 28 october 2013 heard trial issue order determine matter respect indictment 679 6 background respect charge follows 7 one 29 june 2012 police executed search warrant property 7 moresby close bibra lake property seen search video tendered residence occupied mr jovanovich wife child 8 search mr jovanovich home police found 5 6 kg cannabis 5 kg head material high quality cannabis leaf stem 9 5 kg head material spread tray room provided purpose arrangement showed degree sophistication organisation cannabis subject possession count indictment 680 10 case mr jovanovich almost immediately took responsibility possession cannabis found drying room given found house attempt deny knowledge existence nature would untenable say least however repeatedly assert cannabis personal consumption allowed someone came house would offer smoke denied selling cannabis explained cost cannabis thought would grow one large lot put away taking needed said hoped would last year optimism well founded unless smoking half ounce bud cannabis day 11 accepted behalf mr jovanovich fact intention respect cannabis commercial one admission sensible one given everything circumstance surrounding possession cannabis point organized commercial effort notwithstanding earlier denial mr jovanovich area garage trimming head stock leaf material seen search video neatly organized two pair light secateurs rinsing bucket water box rubber glove two pair visible work area box moderate size clipseal bag set digital kitchen scale mr jovanovich called upon explain scale used rather struggle finally allows officer would know scale used 12 drying room mr jovanovich admits built quite neat sophisticated structure appears insulation room sealed prevent vapour odour escaping filtered extraction system remove air room reducing odour 13 sheer amount cannabis seen neatly spread four large tray make claim personal use least faintly humorous falsity mr jovanovich claim exposed however revelation existence hydroponic growing operation sea container workshop unit wellard street another crop found growing attendance mr jovanovich others unit covertly recorded police crop formed basis charge indictment 680 dish14 later day searching wellard street unit police returned second look mr jovanovich house time police found appeared cooking baking dish sealing lid dish 225 mm long 160 mm wide look like kind dish could one hand used cooking particular microwave oven used food storage refrigerator freezer dish found inside box top cupboard walk linen wardrobe connected master bedroom 15 search video mr jovanovich asked reply oil methylated spirit say metho dry liquid like oily based hash oil sort stuff asked hash sort resin answer yeah yeah yeah exhibit officer duly record exhibit log cannabis resin 16 mr jovanovich asked methylated spirit explains wash resin cause thing wash wash got print internet 17 content baking dish tipped exhibit jar sent chemistry centre analysis photo liquid look colour separated egg white 18 turn cannabis thc resin methylated spirit liquid baking dish instead consisted 158 g 100 pure methylamphetamine solution mainly water residual acetone toluene 19 according m lucinda brown chemistry centre based expertise subject illicit drug drug manufacture methylamphetamine sometimes dissolved water manufacture process water allowed slowly evaporate slowly evaporates larger crystalline structure methylamphetamine left course virtually impossible ordinary illicit manufacturing process produce 100 pure methylamphetamine analysis testing liquid produce measurement reality manufacturing process usually result methylamphetamine 80 purity thereabouts m brown explained effect liquid allowed evaporate crystalline powder would left would weighed 158 g would lesser purity 100 final product 80 purity would weighed calculation short 198 g 20 evidence hearing 2012 gram methylamphetamine would sell 500 800 witness gave evidence effect based western australia police database seemingly unable give evidence purity might expected methylamphetamine sold gram evidence price showed rather surprising degree variability examination chief cross examination regard evidence occasion put price narrower range specifies average range purity seizure kind based however evidence trial issue conservatively 100 000 worth methylamphetamine baking dish mr jovanovich wardrobe 21 extent offered explanation seemed suggesting somehow knowledgeable manufacture content baking dish particular solution still process manufacture 22 case solution process m brown said liquid saturated liquid incapable holding solid material solution room temperature solid content coming solution forming crystal cannabis hash oil behave way form crystalline powder 23 sealed exhibit bag received chemistry centre exhibit jar solution baking dish lid obvious significant amount white crystalline powder accumulated bottom exhibit bag indeed police showed mr jovanovich baking dish first seized trace white powder visible rim dish needle say subsequent analysis white powder showed contained methylamphetamine 24 submission filed behalf offender accept mr jovanovich establish balance probability belief liquid contained cannabis oil opposed methylamphetamine mr jovanovich give evidence evidence significance effect assertion mr jovanovich confronted baking dish course search course oath occasion evidence open accept conclude credible credibility25 respect mr jovanovich credibility case make number admission police searching house particular make admission respect possession cannabis also case however evidence possession cannabis found specially constructed room house overwhelming case respect issue possession resistance would futile satisfied submitted mr jovanovic lie police explained desire part protect others associated cultivation satisfied however untruthful speaking police intention respect cannabis 26 time interview mr jovanovich exercise right decline answer question first time asked cannabis house come later police found key storage unit wellard street know surveillance used hydroponic growing operation asked cannabis come unit time admits appeared admission made mr jovanovich silence denial obviously futile 27 hesitation difficulty explaining set digital kitchen scale found work area close box block bag rubber glove rather telling first asked currently employed police counted 750 50 bill found bedroom say corrects say fact employed family café business 800 week idea would remember immediately employed asked odd say least 28 manner throughout search recording unconvincing asserts baking dish contains cannabis oil offer explanation process manufacture explanation quantity highly valuable drug come cupboard nothing suggests could mistaken character accept denial knowledge character 100 000 worth methylamphetamine found walk robe satisfied believed baking dish held cannabis oil contrary satisfied beyond reasonable doubt knew drug methylamphetamine reasonable inference available conclude hoped mislead police could least knowledge 29 follows reject mr jovanovic claim intended gratuitous supply drug dish friend given admission involvement distribution cannabis commercial one reason think would gratuitously supplying methylamphetamine

The Australian Workers' Union [2014] FWCA 7289 (15 October 2014).txt

australian worker union 2014 fwca 7289 15 october 2014 2014 fwca 7289fair work commissiondecisionfair work act 2009s 185 enterprise agreementthe australian worker union ag2014 7565 sun ace australia awu brooklyn division enterprise agreement 2014manufacturing associated industriescommissioner ryanmelbourne 15 october 2014application approval sun ace australia awu brooklyn division enterprise agreement 2014 1 application made approval enterprise agreement known thesun ace australia awu brooklyn division enterprise agreement 2014 agreement application made pursuant tos 185of thefair work act 2009 act made australian worker union awu agreement single enterprise agreement 2 satisfied requirement ofss186 187and188as relevant application approval met 3 australian worker union bargaining representative agreement given notice unders 183of act want agreement cover required bys 201 2 note agreement cover organisation 4 agreement approved accordance withs 54 1 operate 22 october 2014 nominal expiry date agreement 31 august 2017 commissionerprinted authority commonwealth government printer price code g ae410662pr556636 var _gaq _gaq _gaq push _setaccount ua 9592794 1 _gaq push _trackpageview function var ga document createelement script ga type text javascript ga async true ga src http document location protocol http ssl http www google analytics com ga j var document getelementsbytagname script 0 parentnode insertbefore ga

Riverina Division of General Practice re Riverina Division of General Practice and Primary Health Enterprise Agreement 2009 [2010] FWAA 1185 (19 February 2010).txt

riverina division general practice riverina division general practice primary health enterprise agreement 2009 2010 fwaa 1185 19 february 2010 fair work australiadecisionfair work act 2009s 185 approval enterprise agreementriverina division general practice ag2009 23441 riverina division general practice primary health enterprise agreement 2009health welfare servicescommissioner thatchersydney 19 february 2010application approval riverina division general practice primary health enterprise agreement 2009 1 application made approval enterprise agreement known theriverina division general practice primary health enterprise agreement 2009 agreement application made pursuant tos 185of thefair work act 2009 act made riverina division general practice agreement single enterprise agreement 2 agreement made bridging period1as defined thefair work transitional provision consequential amendment act 2009 transitional act accordingly considering whether approve agreement taken account provision part 2 4 chapter 2 act modified schedule 7 transitional act 3 satisfied requirement s 186 187 188 act relevant application approval met 4 agreement contains term relation consultation clause 22 term view satisfy requirement act model consultation term therefore taken term agreement 5 agreement approved accordance 54 act operate 26 february 2010 nominal expiry date agreement 19 february 2014 commissioner1item 2 part 1 schedule 2 printed authority commonwealth government printer price code ae874027 pr993783

Ben Joseph Lant v Pilbara Minerals [2023] FWC 1727 (14 July 2023).txt

ben joseph lant v pilbara mineral 2023 fwc 1727 14 july 2023 last updated 14 july 2023 2023 fwc 1727fair work commissiondecisionfair work act 2009s 365 general protectionsben joseph lantvpilbara mineral c2023 3386 vice president catanzaritisydney 14 july 2023application deal contravention involving dismissal application dismissed 1 12 june 2023 mr ben joseph lant applicant made application unders 365of thefair work act 2009 cth act applicant alleges dismissed contravention general protection provision inpart 3 1of act 2 application accompanied fee prescribed thefair work regulation 2009 cth regulation completed application waiver lodgement fee waiver application applicant responded correspondence commission alerting deficiency deficiency rectified decided dismiss application following reason context 3 15 june 2023 commission emailed correspondence mr lant nominated email address advising application required payment filing fee completed waiver form wished proceed application email stated follows please pay application fee within 7 calendar day apply fee waived progress case make payment within 7 day application may dismissed 4 22 june 2023 commission emailed correspondence mr lant nominated email address reminding application required payment filing fee completed waiver form wished proceed application correspondence instructed applicant pay application fee make waiver application stated follows reminder need pay application fee apply fee waived application may dismissed 5 final attempt contact mr lant nominated telephone number made commission 26 june 2023 obtain payment completed waiver form call answered voicemail message left advising mr lant payment required fee still outstanding 6 date applicant paid lodgement fee filed completed waiver application legislative framework 7 relation application made pursuant 365 act 367 1 provides application must accompanied fee prescribed regulation time application made regulation prescribed fee 77 80 regulation also allow application made fee waived 8 section 587 act provides follows 587 dismissing application 1 without limiting fwc may dismiss application fwc may dismiss application application made accordance act b application frivolous vexatious c application reasonable prospect success 2 despite paragraph 1 b c fwc must dismiss application section 365 773 ground application frivolous vexatious b reasonable prospect success 3 fwc may dismiss application initiative b application consideration conclusion 9 applicant neither paid lodgement fee sought fee waiver accordingly application made accordance 367 act 10 applicant taken action address deficiency despite notified commission multiple occasion circumstance decided exercise discretion dismiss application accordance 587 1 act 11 application dismissed vice presidentprinted authority commonwealth government printer pr764265

FGH -v- NOP [2023] WASCA 177 (13 December 2023).txt

fgh v nop 2023 wasca 177 13 december 2023 last updated 13 december 2023jurisdiction supreme court western australiatitle court court appeal wa citation fgh v nop 2023 wasca 177coram beech jamullins ajaseaward jheard 20 september 2023delivered 13 december 2023file cacv 90 2022between fgh beneficiary estate ijappellantandnopfirst respondentfgh executor trustee estate ijsecond respondentjurisdiction supreme court western australiacoram solomon jfile number civ 2174 2019wills estate family provision claim 6 offamily provision act 1972 wa daughter claimant debt substantially exceeding asset primary judge considered payment capital sum claimant would advance object award unders 6 whethers 6empowers court order provision claimant way discretionary trust object include person successful claimant whether primary judge erred exercise discretion unders 6legislation family provision act 1972 wa 6 7 13result appeal dismissedcategory arepresentation counsel appellant curwood sc r packfirst respondent p j ward l spencersecond respondent appearancesolicitors appellant solomon hollett lawyersfirst respondent williams hughessecond respondent appearancecase referred decision table contentsbeech ja seaward j introductionthe issue appeal concern proper construction proper exercise discretion 6of thefamily provision act 1972 wa theact gratefully adopt outline background relevant legislative provision primary judge unchallenged finding fact mullins aja reason deal matter far necessary explain reason appellant first respondent active respondent refer therespondent sibling primary proceeding concerned estate mother died 13 january 2019 leaving time testator died net estate valued probate purpose 6 5 million respondent received 25 000 item personal property bulk estate left testamentary trust appellant trustee appellant daughter immediate beneficiary trust primary proceeding respondent joined defendant proceeding commenced two sister brought claim provision act claim brought respondent sister settled judge found respondent debt overwhelmed asset payment capital sum directly would advance purpose ofs 6of act would absorbed creditor without materially improving position primary judge ordered provision made way trust respondent primary beneficiary child grandchild object discretionary power event trustee considered distribution income capital respondent interest appellant challenge primary judge decision two ground first contends order exceeded limit power in 6 thats 6does empower court make order establishing trust potential beneficiary include person person eligible make claim unders 7 1 act secondly contends judge erred principle provision made respondent structured discretionary trust evident purpose quarantining award respondent creditor ii structuring award order benefited respondent child eligible applicant whose need considered court reason follow would dismiss appeal ground 1 fails accept limit in 6asserted appellant arises term another provision act 13 appellant relies limit power in 6are apparent term namely 1 application must made person eligible applicant unders 7 2 court must form opinion inadequacy provision proper maintenance support etc person 3 court power thus enlivened order must purpose making adequate provision proper maintenance support education advancement successful applicant primary judge order exceed limit order properly characterised made proper maintenance support education advancement respondent indeed appellant submit otherwise purpose primary judge order understood manner ground 2 cannot succeed respondent creditor entitlement even reasonable expectation obtaining fruit award act favour respondent convenient outline primary judge approach provide context consideration ground appeal primary reasonsas none primary judge factual finding challenged necessary outline honour comprehensive finding fact beyond mullins aja said primary judge found respondent independent mean supporting asset substance independent source income honour considered respondent prospect future employment income poor 1 significantly honour found respondent debt order several million dollar owes approximately 3 5 million litigation funder well owing child approximately 500 000 2 dispute trial true respondent financial position date testator death well trial 3 honour considered various legal principle relevant case course honour gave detailed consideration number case bearing question impact respondent dire financial circumstance extent court power proper exercise discretion 4 honour distilled number principle case salient set 118 mullins aja reason 5 primary judge satisfied make adequate provision respondent maintenance support education advancement life 6 honour satisfied breakdown relationship respondent testator preclude conclusion 7 conclusion challenged primary judge turned appellant submission favourable exercise discretion grant provision would simply flow creditor attempt craft provision quarantined fruit provision creditor would impermissible inappropriate exercise statutory discretion honour concluded inappropriate order payment capital sum respondent debt overwhelming payment amount provided would achieve anything benefit thereby serving statutory purpose order act primary judge considered respondent never bankrupt grant provision discretionary trust would achieve object act without disturbing entitlement respondent creditor creditor entitlement fund testator estate consequently honour considered would deprived anything time enjoyed entitlement 8 respondent sought order devising sum paid trust benefit respondent term requiring trustee apply income capital think fit maintenance support education advancement life reserving trustee power accumulation income primary judge recorded appellant contention rule insaunders v vautier 9 would enable respondent require transfer corpus trust imposition trust achieves better outcome simply payment capital sum honour considered doubtful rule insaunders v vautiercould take effect circumstance provision act expressly ordered court take form trust however honour considered unnecessary determine issue proposed trust respondent child grandchild would also beneficiary thereby excluding application rule insaunders v vautier primary judge concluded following term 10 taking circumstance account consider sum 850 000 set aside estate provision respondent maintenance support held term discretionary trust respondent primary beneficiary issue class general beneficiary trust thus continue death respondent benefit issue trustee include professional person lawyer accountant preferably one already professional relationship respondent otherwise accept trust enjoy power operate manner proposed respondent term trust ordered primary judge summarised mullins aja reason ground appealthe ground appeal following term primary judge erred law finding thats 6 1 thefamily provision act 1972 wa fpa permitted provision made way establishment discretionary trust potential beneficiary included first respondent applicant whose personal circumstance justified provision child grandchild applicant testator grandchild great child person eligible make claim provision unders 7 1 fpa whose financial circumstance irrelevant determination proper provision alternatively primary judge erred law exercising discretion unders 6 1 fpa make provision applicant basis wrong principle namely basis permissible exercise statutory discretion condition provision way benefit claimant manner quarantine provision bona fide creditor b mean provision made may include discretionary trust applicant primary sole beneficiary beneficiary applicant child grandchild person eligible make claim unders 7 1 fpa person dependant applicant assessment made individual need claim provision make claim proceeding inclusion object predominantly purpose insulating fund creditor ground 1 appellant submissionsthe appellant submits thats 6does empower court make order establishing trust potential beneficiary include person person eligible make claim unders 7 1 act 11 appellant submits 12 power would inconsistent object purpose act give statutory force certain moral claim others make provision whose moral claim given statutory force b wide interpretation general power in 6 1 would render otiose specific power in 13 1 also bypassing specific limit found in 13 1 beneficiary trust established court provision must eligible make claim provision citinganthony hordern son ltd v amalgamated clothing allied trade union australia 1932 hca 9 1932 47 clr 1 7 gavan duffy cj dixon j thayli pty ltd v commissioner police 2021 wasca 46 34 45 murphy mitchell beech jja c court would empowered make provision benefit eligible make claim without requirement first consider whether person need provision proper maintenance support education advancement life contrary precondition making provision person entitled make claim unders 7 1 claimant established claim based totality relationship testator financial circumstance court purpose make proper provision discretionary nature trust effect court order may provision actually ever made claimant despite purpose court make order unders 6 1 appellant contention ground 1 directed theeffectof primary judge order purpose appellant contends thats 6does empower court make order effect identified 22 13 13ground 1 dispositionthe proper construction ofs 6the general principle concerning process statutory construction well known statutory construction involves attribution meaning statutory text regard consideration text context purpose starting point text ofs 6of act seen term provision said many case court power provision depends upon forming opinion disposition deceased estate effected intestacy case may make adequate provision estate proper maintenance support education advancement life applicant person mentioned in 7of act 14 thus court power arise first person falling within class person stipulated in 7has made application act secondly court form opinion stated court form opinion court may order provision court think fit made estate deceased purpose hat purpose purpose making adequate provision estate proper maintenance support education advancement life applicant unders 7 text ofs 6thereby imposes express limit power provision confers power may exercised purpose making adequate provision proper maintenance support education advancement life successful claimant court held inlemon v mead held many case power make provision successful claimant exercised purpose purpose control limit court power 15 making order purpose court may order provision think fit thus text ofs 6confers broad power court framing order making provision successful applicant long provision made purpose stipulated in 6 therefore text ofs 6reveals following three requirement exercising power confers 1 application must made person eligible applicant unders 7 2 court must form opinion inadequacy provision proper maintenance support etc person 3 court power thus enlivened order must purpose making adequate provision proper maintenance support etc successful applicant subject requirement text ofs 6is framed language apt confer broad power namely provision court think fit view limitation power conferred bys 6are apparent text ofs 6 following two principle combine suggest construings 6 court slow read provision limitation apparent text first gummow hayne jj observed inbarns v barn 16 respect like south australian legislation thefamily provision actis remedial character construed give complete remedy phraseology permit secondly seven justice high court observed inowners shin kobe maru v empire shipping co inc 17 passage applied court many time 18 inappropriate read provision conferring jurisdiction granting power court making implication imposing limitation found express word power conferred court power must exercised judicially accordance legal principle necessity power exercised judicially tends favour liberal construction denies validity consideration might limit grant power different body including example power might exercised arbitrarily capriciously work oppression abuse 19 said 31 35 creates substantial obstacle acceptance appellant construction ofs 6 appellant accepts rightly opinion order could properly made unders 6to make provision propermaintenance support education advancementin life example spendthrift alcoholic dependent child ordering fund held trust benefit claimantand child appellant accepts circumstance bearing mind claimant obligation relation child creation trust object included claimant child could properly seen benefit claimant purpose claimant smaintenance support education advancement life 20 recognition exception inconsistent construction ofs 6advanced appellant appellant construction power extend authorising establishment trust potential beneficiary include eligible make claim unders 7 universal negative contention inconsistent existence exception 21 appellant articulate principled coherent basis adoption construction accommodates exception rightly recognises insofar as 13is said foundation limit appellant seek imply in 6 appellant explain apparent exception could arise view order kind hypothesised 37 properly seen exception general limitation court power asserted appellant rather hypothesised example reveals true nature limit power conferred bys 6 namely order must made purpose stipulated in 6 precondition making order established namely satisfaction precondition respect applicant eligible unders 7 limit court power unders 6is provision thereby made purpose propermaintenance support education advancement lifeof successful claimant reason subject effect ofs 13 appellant construction ofs 6cannot accepted oral submission appellant accepts thats 13provided primary textual foothold reading 6as limited manner asserts 22 turn consider effect ofs 13 section 13of act anthony hordernprinciple engaged view 13of act detract said tos 6 particularly 13does sustain construings 6in manner asserted appellant namely authorising establishment trust beneficiary beyond successful claimant appellant seek enlist principle statutory construction often associated case ofanthony hordern son ltd v amalgamated clothing allied trade union australia 23 statute confers general power subject limitation qualification special power subject limitation qualification general power cannot exercised subject special power 24 gavin duffy cj dixon j said inanthony hordern 25 legislature explicitly give power particular provision prescribes mode shall exercised condition restriction must observed thereby excludes operation general instrument instrument might otherwise relied upon power 26 gummow hayne jj observed inminister immigration v nystrom 27 passage recently applied court inthayli pty ltd v commissioner police 28 order principle applicable must possible say statute question confers one power take relevant action necessitating confinement another apparently applicable power reference restriction former power statement principle make clear principle statutory construction applies two provision general power special power relied upon thing namely subject special power reason 49 present case expressed another way theanthony hordernprinciple apply two provision must respect subject matter general power must encroach upon subject matter exhaustively governed special power ambit restricted power ostensibly within ambit general power 29 following reason two provision 6ands 13 cannot said subject matter section 13empowers court make order providing class fund benefit two person eligible applicant unders 7and made respective claim unders 6 term conferring discretion trustee determine successful applicant much income capital distribute view subject matter ofs 13is quite specific situation involving two successful applicant may doubt whether general power in 6encompassed power make provision kind permitted bys 13 section 6would plainly empower making separate provision court two successful applicant however doubt whethers 6would permit court order making single provision way money held trust class fund successful applicant term conferring discretion trustee determine successful applicant much income capital distribute put shortly 13permits single discretionary trust deal successful applicant rather needing make separate provision different people view 13does reveal intention limit confine amplitude power conferred bys 6 conclusion reinforced consideration relevant legislative history act passed following report law reform commission western australia august 1970 report contained recommendation following term miscellaneous procedural smoother working legislation committee recommends following provision included proposed statute b power given court order amount set aside class fundfor benefit applicant class whose future individual need cannot time assessed accurately trustee appointed court power court guidance use money whatever proportion appears reasonable benefit beneficiary see draft bill cl 7 new zealand tasmania act similar provision emphasis added reason contrary appellant submission 30 broad construction 6 favour render otiose specific power 13 1 involve bypassing limit found 13 1 ground 1 conclusionfor reason accept construction 6 advanced appellant ground 1 ground fails accordingly ground 2introductory observationsthe primary judge decision discretionary character consequently basic nonetheless fundamental importance question appeal whether court would exercised discretion manner rather error kind referred inhouse v king 31 must demonstrated court interfere discretionary decision emphasised inhancock prospecting pty ltd v dfd rhodes pty ltd 2 32 provision proper ground appeal identifying material error primary court fundamental exercise court appellate function appeal discretionary decision thus appeal necessary appellant asserts express error identify specie error asserted example acting wrong principle mistaking fact taking account irrelevant consideration identify particularity specific error specie absent specific identification alleged error principle assertion error principle may mask substance invitation appellate court simply exercise discretion different manner ground 2 asserts judge acted wrong principle reason already given incumbent appellant identify specificity error principle judge said acted essential complaint made ground 2 expressed ground two paragraph appellant submission judge acted wrong principle provision made respondent structured discretionary trust evident purpose quarantining award respondent creditor par structuring award order benefited respondent child eligible applicant whose need considered court included beneficiary predominantly insulate trust property respondent creditor par b 33 appellant submissionsthe appellant principal submission support contention follows 1 evident purpose including child object discretionary trust insulate award respondent creditor court lend aid object defeating creditor interest structuring order keep benefit award away bona fide creditor 34 2 submitted support ground 1 primary judge order benefit respondent child object discretionary trust without need considered court result contrary object act 35 3 discretion vested trustee respondent may fact receive benefit award contrary object order 6 36 4 fact respondent dy remains trust fund held trust child reveals nature trust benefit child 37 convenient begin analysis identifying purpose primary judge order regard term trust order creates term trustas already noted appellant submission focus effect primary judge order 38 bench observed course argument without demur appellant 39 appellant submit purpose order made primary judge stipulated purpose namely propermaintenance support education advancement life respondent view given term order trust thereby constituted could submitted summarise construe relevant term trust explaining trust fund established cl 17a held trustee trust beneficiary cl 2 annexure primary beneficiary defined mean respondent general beneficiary defined mean respondent child child beneficiary defined mean one general beneficiary cl 3 annexure trustee discretionary power apply trust fund income think fit combination themaintenance support education advancement life respondent however trustee consider unfettered discretion distribution respondent interest trustee may apply trust fund income think fit one general beneficiary proper construction cl 3 trustee may apply income trust general beneficiary first formed view application trust fund maintenance support education advancement life respondent respondent interest cl 4 annexure trustee corresponding discretion relation capital trust fund cl 5 trustee may applying income capital pursuant cl 3 cl 4 pay income capital beneficiary benefit third party providing housing good service care beneficiary thus clear cl 5 way example trustee could pay income capital trust fund discharge respondent liability rent outgoings associated housing trust vest earlier date death last remaining beneficiary date trust fund exhausted trustee application income capital pursuant cl 3 cl 4 date prescribed law last day perpetuity period purpose rule perpetuity cl 10 annexure clause 11 governs division remainder trust fund vesting date purpose primary judge orderin opinion clear term purpose primary judge order make provision proper maintenance support etc respondent trustee power distribute income capital beneficiary respondent strictly conditioned formation trustee opinion distribution respondent interest cl 3 provides trustee unfettered discretion deciding whether requirement decide distributing income capital beneficiary apart respondent reveals reflects purpose trust proper maintenance support etc respondent thus trust constituted judge order quite distinct conventional discretionary trust class people object broad discretionary power apply income capital whoever beneficiary trustee determines inclusion term trust power apply income capital trust fund beneficiary apart respondent limited circumstance described cannot said reveal animating purpose order make provision beneficiary rather beneficiary included context judge conclusion challenged appeal make adequate provision respondent maintenance support education advancement life ii circumstance including regard breakdown relationship testator respondent competing call testator estate substantial provision favour respondent could made estate subject issue raised iii iii inappropriate order payment capital sum respondent debt overwhelming payment amount provided would achieve anything benefit iv imposition discretionary trust favour respondent potential object would also inappropriate rule insaunders v vautierwould least arguably entitle creditor trustee bankruptcy terminate trust word notwithstanding conclusion ii payment capital sum respondent would creation discretionary trust appellant object may serve statutory purpose order act context conclusion beneficiary includedin order advance respondent interest thereby achieve statutory purpose ensuring provision way trust fund made respondent maintenance support etc fact go benefit respondent rather respondent creditor ground 2 failsin opinion purpose primary judge order understood manner ground 2 cannot succeed contrary appellant submission 57 1 neither purpose effect court order defeat creditor interest even person made bankrupt right apply provision act personal nature vest bankrupt trustee 40 ankruptcy 40but applicant obtains order pursuant receive money property money property come applicant form trustee bankruptcy reach trustee may 41 aim 41in present case respondent subject order bankruptcy material time particular bankrupt time testator died primary order made also evidence bankruptcy proceeding commenced respondent creditor entitlement even reasonable expectation obtaining fruit award act favour respondent given judge conclusion iv 70 scope proper exercise discretion result material benefit respondent creditor choice primary judge declining make order favour respondent providing respondent mechanism trust primarily benefit either way respondent creditor would obtain material benefit circumstance reason persuaded primary judge order offends public policy undermines object thebankruptcy act 1966 cth position would different effect court order disturb existing vested entitlement respondent creditor 42 reason already given agree primary judge conclusion 43 court persuaded provision estate justified permissible exercise statutory discretion condition provision way benefit claimant facilitate person maintenance support education advancement life manner quarantine provision creditor provided alter existing vested entitlement deprive creditor fund would otherwise entitled none case party refer suggests requires upholding ground 2 contrary limited extent case bear ground 2 support approach outlined 74 76 appellate decision seem u shed light resolution ground 2 neither appellate decision indiver v nealare assistance present purpose first decision 44 basten ja allsop p ipp ja agreed recognised possibility legislation may permit establishment trust claimant could obtain benefit inaccessible creditor however necessary case reach final conclusion availability appropriateness approach second decision 45 court identified question might arise making order declined grant leave reopen appeal question arise invarnel v heyes 46 court made provision claimant thefamily provision act 1982 nsw way trust favour circumstance claimant owed substantial sum centrelink recognising payment lump sum claimant would enure benefit centrelink would advance object award court crafted award way trust benefit claimant 47 primary judge present case explained two first instance decision long running series decision concerning estate george wentworth provide support approach adopted honour decision set aside appeal ground impugn appropriateness crafting order first instance judge done purpose ensuring award thefamily provision act 1982 nsw available claimant creditor first decision bryson j made order favour plaintiff daughter deceased judge found appropriate payment provision plaintiff conditional upon payment actually applied plaintiff maintenance circumstance honour expressed concern provision large sum capital would consumed conflict litigation used purpose legislation authorised awarded bryson j order provided sum paid condition included plaintiff entitlement assigned released available benefit creditor plaintiff appeal imposition condition allowed basis evidence judge finding sustain justify imposition condition 48 new south wale court appeal say anything appropriateness otherwise order proper evidentiary foundation existed plaintiff brought claim provision unders 8of thefamily provision act 1982 nsw alleging substantial detrimental change circumstance first instance santow j accepted substantial detrimental change plaintiff financial circumstance occurred reason liability legal cost taking account liability plaintiff financial position substance negative net worth 1 5 million delivering judgment plaintiff application santow j foreshadowed making order along following line 49 however ensure order made fact lack utility even cannot said inevitably protect fund made available plaintiff claim creditor far may legally possible make order incorporating following approach protective trust set favour plaintiff within meaning 45 trustee act form approved court b trust capable paying indexed annuity life 35 000 per annum indexed manner ordered bryson j two yearly basis purchasing vested annuity amount defendant paying estate notional estate c independent trustee company appointed trustee trust emphasis added section 45of thetrustee act 1925 nsw analogous tos 61of thetrustees act1962

Australian Workplace Agreements - re s170VPB(3) reference - PR947145 [2004] AIRC 497; (27 May 2004).txt

australian workplace agreement s170vpb 3 reference pr947145 2004 airc 497 27 may 2004 pr947145australian industrial relation commissionworkplace relation act 1996s 170vpb 3 reference ref 2004 286 317 ref 2004 1 8 ref 2003 534 541 australian workplace agreementssenior deputy president duncansydney 27 may 2004decision 1 matter concern reference office employment advocate oea commission certain australian workplace agreement awas reference made oea 170vpb 3 theworkplace relation act 1996 act subsection state 3 employment advocate concern whether awa pass disadvantage test concern resolved subsection 2 employment advocate must refer awa commission concern expressed oea resolved undertaking contemplated subsection 2 2 awa referred oea commission duty set 170vpg section provides 1 section applies awa referred commission employment advocate 2 commission must approve awa commission satisfied awa pass disadvantage test 3 commission concern whether awa pass disadvantage test concern resolved written undertaking given employer accepted commission b action party commission must approve awa 4 commission considers contrary public interest approve awa must approve awa whether subsection 2 3 requires commission approve awa note example case commission may satisfied approving awa contrary public interest making awa part reasonable strategy deal short term crisis assist revival business part business 5 case commission required approve awa commission must refuse approve awa 3 disadvantage test referred provided 170xa act state 1 agreement pass disadvantage test disadvantage employee relation term condition employment 2 subject section 170xb 170xc 170xd agreement disadvantage employee relation term condition employment approval certification would result balance reduction overall term condition employment employee relevant award designated award b law commonwealth state territory employment advocate commission case may considers relevant 4 decision published within constraint 170whc act provides industrial registrar obliged undersection 143to publish determination commission approves refuse approve awa variation agreement terminates awa however industrial registrar publish determination undersection 143 must ensure publication disclose identity either party awa 5 according representative employer business employer labour hire maintenance work mechanical maintenance supply erection scaffolding steel metal fabrication crane hire dry wet employee mainly local wide number industrial classification awas currently commission serviceman fire watcher trade assistant haul truck driver 6 principal provider work employer want regulated term condition employee contractor want agreement involve organisation site 7 employer took precaution applying oea pre assessment result oea issued pre assessment notice advised information provided awas submitted appear pas disadvantage test certain classification listed noted certain classification might fall award used pre assessment notice stated please note pre assessment appears pas way guarantee actual final awa submitted approved notice neither constitutes replaces approval notice lodging awa registration please provide information regarding allowance payable employee relevant award due final approval dependent allowance applicable employee 8 yet classification another award designated 9 basis favourable pre assessment employer entered negotiation principal provision staff appropriate rate pay 10 negotiation completed awas created 11 basis pre assessment employer entered awas staff working client operation location number awas particular classification approved oea clear inference evidence awas concerned classification covered pre assessment notice 12 following safety net adjustment query raised oea subsequent awas office advised effect higher rate required employer concerned proceeded basis earlier approval awas lower rate pn27there great deal correspondence agent employer office employment advocate trying resolve apparent discrepancy rate pay however matter appear reaching resolution within discussion pn28further 23 july 2003 office employment advocate wrote employer seeking undertaking respect position firewatcher trade assistant confined space watcher tested designated award seeking give undertaking increase rate pay awa 19 97 per hour undertaking course given say rate undertaken employer rate actually australian workplace agreement 13 relation haul truck driver employer said oea required undertaking payment different rate award relied oea inappropriate submitted employer oea miscalculated rate haul truck driver calculation basis working number hour per week requirement employer 14 noted passing point made oea determined designated award awas commission role matter see 170xe act employer nevertheless submitted designated award high wage area employer area operation relatively low wage area awas currently drafted without undertaking already wage excess general rate paid area 15 statement lodged support approval director employer confirmed wagesin areawere awa rate company recently entered contract major customer representing 90 annual turnover supply labour equipment service costing contract based existing approved awa wage rate time 16 considered situation presented employer conclude awas pas disadvantage test undertaking resisted 17 make necessary consider awas 170vpg 4 18 decisionaustralian workplace agreement ref 1997 1 3 print p5472 said case consideration object legislation indeterminate guide provided note following 170vpg 4 pertinent although set earlier decision repeated note example case commission may satisfied approving awa contrary public interest making awa part reasonable strategy deal short term crisis assist revival business part business example must taken indication contrary public interest drawn conclusion circumstance may create situation awa pas disadvantage test may approved without approval contrary public interest example look circumstance employer directly implicitly value employment employee said parliamentary observation restrictive see exampleaustralian workplace agreement ref 1998 222 371print q7881 whole circumstance case relevant 19 inaustralian workplace agreement ref 1997 1 3 26 september 1997 acknowledged decision matter consistent object act said view bring attention object act relevant 3 principal object act provide framework cooperative workplace relation promotes economic prosperity welfare people australia encouraging pursuit high employment improved living standard low inflation international competitiveness higher productivity flexible fair labour market b ensuring primary responsibility determining matter affecting relationship employer employee rest employer employee workplace enterprise level c enabling employer employee choose appropriate form agreement particular circumstance whether form provided act providing mean wage condition employment determined far possible agreement employer employee workplace enterprise level upon foundation minimum standard ii ensure maintenance effective award safety net fair enforceable minimum wage condition employment 1962 nzlr p 1057 p 1065 20 present position similarly affected object act need proceed balancing competing interest 21 case find following matter tip balance towards conclusion approval would contrary public interest employer took precaution seeking advice oea preparing awas advised form presented awas passed disadvantage test although qualification opinion expressed oea inferred fact classification pre assessed oea reduces impact step nevertheless employer negotiation major client based cost generated pre assessment approval employer criticised awas rate condition may compared award exactly apt relevant considering whether awa pass disadvantage test reason already outlined matter relevant consideration 170vpg 4 support commission approval rate offered favourable compared current district 22 opposed positive factor fact agreement fail pas disadvantage test significant factor lightly set aside balance satisfied contrary public interest approve awas commission subject one reservation 23 rate agreement appear fixed nominal term awas three year although competency scheme permit employee gain higher salary hold would circumstance contrary public interest adjustment base rate agreement made nominal term reason require undertaking year agreement first 2005 adjustment base rate reflect adjustment made rate commission thesafety net review wagesdecision 24 receipt suitably worded undertaking behalf employer approval issue commission senior deputy presidentprinted authority commonwealth government printer price code c

Manderson v Wright (Costs) [2018] VSC 177 (17 April 2018).txt

manderson v wright cost 2018 vsc 177 17 april 2018 last updated 23 may 2018in supreme court victorianot restrictedat melbournecommon law divisionvaluation compensation planning list ci 2016 00839warwick alexander mandersonplaintiffvvicki louise wrightdefendant judge john dixon jwhere held melbournedate hearing 17 april 2018date judgment 17 april 2018case may cited manderson v wright cost medium neutral citation 2018 vsc 177 cost cost proceeding following trial defendant successful discrete issue discretionary consideration defendant pay 50 plaintiff cost chen v chan 2009 vsca 233applied cost application gross sum cost order gross sum cost order warranted supreme court general civil procedure rule 2015 vic r 63 07 cost application plaintiff cost indemnity basis application refused appearance counselsolicitorsfor plaintiffmr c raven raven associatesfor defendantms l hicksbest hooperhis honour 1 plaintiff applied cost proceeding plaintiff contended entitled cost notwithstanding succeed aspect claim contended cost taxed indemnity basis fair circumstance make lump sum assessment cost sum 460 000 2 defendant resist proposition plaintiff entitled cost however contended significant part proceeding concerned plaintiff claim restrictive covenant protected coastal moonah woodland cmw entitled order reinstatement part plaintiff claim failed plaintiff denied cost pay defendant cost respect issue 3 acknowledge general rule cost follow event absent disqualifying conduct successful party recover cost even succeeded head claim 1 said court absolute unfettered discretion relation cost 2 may appropriate circumstance examine reality litigation attempt achieve matter cost substantial justice party 3 4 principle govern whether apportionment cost proceeding set court appeal inchen v chan 4 multiplicity issue mixed success enjoyed party court may take pragmatic approach framing order cost taking consideration success party issue basis 5 generally order made reflected successful party awarded proportion cost full amount 6 order framed primarily matter impression evaluation rather arithmetical precision court considered importance matter upon party successful unsuccessful time occupied ambit submission made well relevant matter 7 5 plaintiff successful one two distinct issue clear least emerton j preliminary determination notwithstanding may original intention restrictive covenant operate protect vegetation 8 principal judgment concluded breach covenant cannot provide basis plaintiff claim value removed vegetation alternatively reinstatement plaintiff entitled order directing reinstatement cmw directing way reinstatement achieved 9 6 satisfied issue removal reinstatement cmw significant issue throughout proceeding trial occupied substantial proportion hearing time properly understood issue whether plaintiff confined tolord cairn actdamages andremoval reinstatement cmw distinct substantial justice party matter cost would achieved cost order properly acknowledge plaintiff lost core issue 7 defendant submitted plaintiff merely denied cost related cmw claim defendant ought recover cost answering portion claim satisfied throughout conduct proceeding issue concerning cmw intermingled issue concerning enforcement restrictive covenant think probable given plaintiff mixed success complication would arise taxation cost 8 regard conclusion evidence mr saunders inadmissible disallow plaintiff cost incidental preparation tendering evidence regard balance plaintiff cost taking account relevant matter impression evaluation order plaintiff recover 50 cost 9 plaintiff contended cost ought taxed indemnity basis submitted defendant done everything power ensure litigation long protracted costly plaintiff conduct characterised strategic move plaintiff reject characterisation see litigation evidenced unusual extent vigorous contest compared many case court deal 10 plaintiff submitted defendant breach obligation underss 17and21of thecivil procedure act2010

NSW Land & Housing Corporation v Hicks (Social Housing) [2012] NSWCTTT 41 (30 January 2012).txt

nsw land housing corporation v hick social housing 2012 nswcttt 41 30 january 2012 last updated 8 february 2012nsw land housing corporation v hick social housing 2012 nswcttt 41 30 january 2012 consumer trader tenancy tribunalsocial housing divisionapplication sh 11 37731applicant nsw land housing corporationrespondent maxine gai hicksapplication compensation repair rent rubbish removal removal item end tenancyappearances mr sansom behalf applicantms arrow behalf respondenthearing 10 november 2011legislation residential tenancy act 2010issues whether tenant liable compensation amountordersthe respondent maxine gai hick pay applicant nsw land housing corporation sum 3 543 14 immediately reason rent 121 60rubbish removal 475 20removal 21 30 large item 1 380 89removal large item 2 79 67patch hole wall renew fiber sheeting patch flush door sheeting 465 30 307 20 157 08 341 70 22 77 total 1 294 05 glaze window 127 87 replace door jam 63 86 reason decisionthe proceedingsthe proceeding commenced application filed tribunal 2 august 2011 seeking compensation unpaid rent removal item removal rubbish repair premise end tenancy application listed 22 august 2011 adjourned request respondent relisted 6 september 2011 conciliation resulted agreement reached relation item balance application adjourned hearing 10 november 2011 conclusion hearing tribunal reserved decision jurisdictionthe premise social housing premise defined in 136of theresidential tenancy act 2010 tribunal accordingly jurisdiction hear determine claim agreed compensationat conciliation applicant respondent came agreement respect following rent 121 60rubbish removal 475 20removal 21 30 large item 1 380 89removal large item 2 79 67and accordingly tribunal make order respect thereof applicant evidencethe applicant relied upon ingoing outgoing condition report photograph taken conclusion tenancy contractor charge work carried applicant gave evidence also photo taken tenancy october 2010 produce photograph apparently requested tenant applicant argued tenant liable compensate cost returning property condition said premise commencement tenancy argued evidence damage caused alleged break applicant said event number attempted break evidence damage evident property conclusion tenancy caused attempted break respondent evidencethe respondent relied upon evidence argued evidence applicant inconsistent incomplete respondent said property damaged break 22 november 2011 denied responsible contested repair findingswhen claim applicant looked carefully fall following category patch hole wall renew fiber sheeting patch flush door sheeting 465 30 307 20 157 08 341 70 22 77 total 1 294 05 renew 2 fly screen door 7 window 570 02 461 59 388 50 renew 2 sliding door 620 36 hardware 2 internal door 520 40 glaze window 127 87 replace door jam 63 86 respect patch hole wall renew fiber sheeting patch flush door sheeting 465 30 307 20 157 08 341 70 22 77 total 1 294 05 satisfied hole wall door end tenancy commencement satisfied damage caused alleged break allow sum 1 294 05 claimed renew 2 fly screen door 7 window 570 02 461 59 388 50 applicant claim replacement cost fly screen door window brought evidence age item commencement tenancy tribunal allows depreciated value item absence evidence enabling tribunal determine depreciated value tribunal prepared allow amount sought renew 2 sliding door 620 36 hardware 2 internal door 520 40 applicant claim replacement cost sliding door hardware brought evidence age item commencement tenancy tribunal allows depreciated value item absence evidence enabling tribunal determine depreciated value tribunal prepared allow amount sought glaze window 127 87 applicant said window broken alleged break boarded since however photo showed glass top grass appeared deposited fairly recently tribunal satisfied window broken circumstance alleged tenant allows sum 127 87 sought replace door jam 63 86 satisfied damage door jam end tenancy commencement satisfied damage caused alleged break allow sum 63 86 claimed ordersaccordingly tribunal make following order respondent maxine gai hick pay applicant nsw land housing corporation sum 3 543 14 immediately reason rent 121 60rubbish removal 475 20removal 21 30 large item 1 380 89removal large item 2 79 67patch hole wall renew fiber sheeting patch flush door sheeting 465 30 307 20 157 08 341 70 22 77 total 1 294 05 glaze window 127 87 replace door jam 63 86 katherine rossmemberconsumer trader tenancy tribunal30 january 2012

Kelly v The Queen [2003] HCATrans 448 (3 November 2003).txt

kelly v queen 2003 hcatrans 448 3 november 2003 kelly v queen 2003 hcatrans 448 3 november 2003 last updated 20 november 2003 2003 hcatrans 448in high court australiaoffice registryhobart h1 2003b e w e e n shane leslie kellyappellantandthe queenrespondentgleeson cjmchugh jkirby jhayne jheydon jtranscript proceedingsat hobart monday 3 november 2003 11 03 amcopyright high court australiamr k b procter sc please court appear learned friend mr r wallace appellant instructed wallace wilkinson webster mr j elli sc may please honour appear learned friend mr c j rheinberger respondent instructed director public prosecution tasmania gleeson cj yes mr procter mr procter sorry honour delay gleeson cj right last counsel turn time tasmania also perth last week mr procter thank honour honour special leave granted matter argue question whether admission made course official questioning word appearing section 8 1 b tasmaniancriminal law detention interrogation act1995

WFA v Hobart City Council [2000] NSWCA 43 (28 March 2000).txt

wfa v hobart city council 2000 nswca 43 28 march 2000 last updated 27 october 2000new south wale court appealcitation wfa v hobart city council 2000 nswca 43file number 40433 98hearing date 7 february 2000judgment date 28 03 2000parties appellant wfa formerly water furnace australia pty limitedrespondent hobart city counciljudgment meagher ja powell ja fitzgerald jalower court jurisdiction supreme courtlower court file number 55017 98lower court judicial officer hunter jcounsel appellant r c mcdougall screspondent c g gee qc faulknersolicitors appellant phillips foxrespondent toomey maning co agent minter ellison catchword law contractarbitration clausewhether clause voidwhether enforcing clause constituted breach natural justiceabuse processlegislation cited jurisdiction court cross vesting act 1987arbitration act 1975 uk commercial arbitration act 1986 ta decision appeal dismissed cost judgment wfa pty ltd formerly waterfurnace australia pty limited v hobart city councillaw contract arbitration clause whether clause void whether enforcing clause consituted breach natural justice abuse processfacts clause written contract contained detail arbitration procedure follow dispute arise included timetable delivery pleading document arbitration became necessary party prior commencement arbitrator made two variation timetable accordance arbitration clause consented party arbitration begun evidence concluded appellant sought extension time prepare submit additional document refused arbitrator award made favour respondent appellant sought award set aside claim dismissed trial judge appellant appeal decision arguing refusal allow extension time constitutes breach natural justice held meagher ja purpose arbitration help party resolve difference quickly cost effectively arbitrator refuse another deviation timetable constitute breach natural justice powell ja respondent submitted proceeding constitute abuse process argued dismissed number proceeding initiated appellant dismissed respondent submit proceeding transferred thejurisdiction court cross vesting act1987

Di Maio and Secretary, Department of Social Security [1995] AATA 597 (18 August 1995).txt

di maio secretary department social security 1995 aata 597 18 august 1995 di maio secretary department social security 1995 aata 597 18 august 1995 last updated 24 september 2008decision reason decisionsocial security age pension resident overseas qualification period australian resident social security act 1991 section 43 51 and1208 schedule 1a 3 mcdonald v director general social security 1984 fca 57 1984 6 ald 6 aat decision 10365administrative appeal tribunal t95 3general administrative division antonio di maioapplicantand secretary department social securityrespondentdecisiontribunal cmdr e shotter member date 18 august 1995place hobartdecision accordance withsection 43of theadministrative appeal tribunal act 1975 tribunal affirms decision department social security reject mr di maoi claim australian age pension memberadministrative appeal tribunal t95 3general administrative division antonio di maioapplicantand secretary department social securityrespondentreasons decision18 august 1995 cmdr e shotter member 1 mr antonio di maio appealed decision social security appeal tribunal ssat affirm earlier decision department social security reject claim australian age pension decision also impinges upon claim mr liliana di maio nee ferraro associated wife pension 2 notice appeal contained letter tribunal dated 24 november 1994 following earlier letter commonwealth ombudsman initially received respondent 5 october 1994 correspondence support appeal received applicant contained tribunal file taken account making decision 3 fact matter generally dispute except applicant date arrival australia applicant also claim period period credited contribution italian social security system claim accepted respondent pertinent fact antonio di maio born italy 6 november 1925 b arrived australia 1952 claim early march respondent claim arrival date 16 august 1952 based information provided dilgea c departed australia 6 march 1962 returned married liliana ferraro born 4 march 1932 15 december 1966 italy wife never visited resided australia e party agreed matter decided without either appearing tribunal f respondent made detailed submission concerning interpretation history application legislation authority issue tribunal submission made available applicant comment 4 issue decided appeal whether mr di maio resided australia sufficient period time qualify australian age pension based criterion stated thesocial security act 1991 act modified scheduled international agreement concerning social security australia italy 5 part 2 2of act deal age pension within section 43addresses qualification criterion pension state part section 43qualification age pension43 1 qualification person qualified age pension person reached pension age b 10 year qualifying australian residence qualifying residence exemption age pension note qualifying australian resident qualifying residence exemption seesection 7 note 2 pension age seesubsection 23 5a 5b 5c 5d 2 still within part section 51 also state section 51 claimant must australian resident australiaa claim person proper claim unless person australian resident b australia day claim lodged note 1 australian resident seesubsections 7 2 3 note 2 provision scheduled international agreement may permit proper claim made person australian resident australia seesection 1208 6 dealing section 51 first mr di maio resident italy appropriate scheduled international social security agreement australia schedule 3 section 51 disqualify applicant australian age pension neither party dispute mr di maio pensionable age remaining criterion ofsection 43to examined 10 year qualifying australian residence qualifying exemption consideration appeal section 7 sub section 6 7 mr di maio quite adamant arrived australia early march 1952 stated regularly throughout correspondence absence formal proof claim department sought clarification department immigration local government ethnic affair dilgea t27 page 125 thesection 37documents dilgea confirmed antonio di maio arrived melbourne fremantle 16 august 1952 departed melbourne 6 march 1962 essence key initial part issue defined upon two conflicting statement tribunal place weight 8 decision full court federal court inre mcdonald v director general social security 1984 fca 57 1984 6 ald 6 woodward j go length discussing either party case tribunal bear onus proof extent onus refers tosection 33 1 c theadministrative appeal tribunal act 1975 state aat bound rule evidence may inform matter manner think appropriate discussing problem unable reach clear conclusion issue comment likely find answer question statute operating consideration national justice common sense later say must act material already pointed bound rule evidence accept thrust comment believe correct approach resolving dilemma tribunal examine material make appropriate decision based material common sense pure common sense 9 proven material tribunal concerning mr di maio date arrival departure australia dilgea arrived 16 august 1952 departed 6 march 1962 whilst accept mr di maio belief arrived early march 1952 unfortunately cannot place material tribunal prove contention despite elapsed period 4½ year since first made claim evidence provided party apart mr di maio contention earliest arrival date arrival australia 16 august 1952 mr di maio fails fulfil australian residency requirement ofsection 43of act qualify australian age pension 10 possibility open mr di maio qualify pension result schedule 3 act agreement social security australia republic italy article 7 agreement inter alia allows period credited contribution italy deemed period person australian resident despite earlier indecision behalf italian authority apparent final notification inps t6 page 82 repeated t22 page 113 indicated mr di maio appropriate credited contribution italy indecision evidently caused fact earlier contribution inps transferred administration post telecommunication contribution agency evidently acceptable international agreement mr di maio inps credited contribution italy therefore period deemed australian residence 11 material tribunal mr di maio total working life residence australia period 16 august 1952 6 march 1962 9 year 7 month legislative discretion round period 10 year therefore mr di maio fulfil residence requirement qualify australian age pension 12 reason accordance withsection 43of theadministrative appeal tribunal act 1975 tribunal affirms decision department social security reject mr di maio claim age pension also affirmed social security appeal tribunal mean appeal unsuccessful certify preceding 6 six page true correct copy decision reason decision cmdr e shotter member signed k l miller secretary date 18 august 1995

Carbone v James McConvill and Associates Pty Ltd [2019] FCA 1305 (19 August 2019).txt

carbone v james mcconvill associate pty ltd 2019 fca 1305 19 august 2019 last updated 20 august 2019federal court australiacarbone v james mcconvill associate pty ltd 2019 fca 1305file number vid 1416 2018judge collier jdate judgment 19 august 2019catchwords practice procedure application self executing order claim underfair work act 2009 cth rule 5 21 5 22and5 23federal court rule 2011 cth history non compliance case management order relating filing defence discover order ongoing non compliance non compliance case management order may warrant self executing order potential controversy whether self executing order triggered whether formal order court necessary 570 2 fair work act whether indemnity cost awardedlegislation fair work act 2009 cth s 340 1 ii 342 1 343 535and536 570 570 2 b federal court australia act 1976 cth 37mfederal court rule 2011 cth rr 5 21 5 22 5 23 16 58 16 59 20 11 20 14legal profession uniform law application act 2014 vic rule supreme court 1971 wa 26 r 15cases cited aon risk service australia ltd v australian national university 2009 hca 27 2009 239 clr 175banque commerciale sa en liquidation v akhil holding limited 1990 hca 11 1990 169 clr 279commissioner taxation v normandy finance investment asia pty ltd 2016 fcafc 180 2016 344 alr 589dey v victorian railway commissioner 1949 hca 1 1949 78 clr 62esso australia resource v commissioner taxation 1999 hca 67 1999 201 clr 49fisher v westpac banking corporation ltd unreported federal court french j 9 february 1994 fuller v tom 2012 fcafc 155general steel industry inc v commissioner railway nsw 1964 hca 69 1964 112 clr 125goodwill group pty ltd v pongrass associate pty ltd 2002 fca 1203in marriage g g 1981 famca 38 1981 7 fam lr 267jones v toben 2 2009 fca 477kerryj pty ltd v xiamen fengwei energy technology co ltd 2013 fca 361kowalski v mmal staff superannuation fund pty ltd 2009 fcafc 117 2009 178 fcr 401lenijamar pty ltd v agc advance ltd 1990 fca 520 1990 27 fcr 388leonard cohen co v richardson 2005 wadc 172mudginberri station pty ltd v australasian meat industry employee union 1985 fca 330nbgi v minister immigration multicultural indigenous affair 2005 fcafc 233 2005 147 fcr 565o donoghue v state western australia 2013 fca 903re tradestock pty ltd pty ltd frewen stock v tnt management pty ltd 1983 fca 248richardson v leonard cohen co firm 2006 wasca 64richens v commonwealth australia represented commissioner australian federal police 2018 fca 1276strategic financial project service pty limited v bank china 2012 fca 701tenement administration service pty ltd v hodson 2013 fca 610ubs ag v tyne 2018 hca 45 2018 360 alr 184umoona tjutagku health service aboriginal corporation v walsh 2019 fcafc 32welsh v digilin pty ltd 2008 fcafc 149 2008 250 alr 13date hearing 7 august 2019 15 august 2019registry victoriadivision fair worknational practice area employment industrial relationscategory catchwordsnumber paragraph 60counsel applicant mr rinaldisolicitor applicant cooper sander legalcounsel respondent m j zhousolicitor respondent james mcconvill associate pty ltdordersvid 1416 2018between joseph carboneapplicantand james mcconvill associate pty ltdfirst respondentjames mcconvillsecond respondentjudge collier jdate order 19 august 2019the court order date compliance respondent order 1 2 made court 16 july 2019 extended 4 00pm 26 august 2019 respondent comply order 1 order respondent amended defence struck b judgment entered favour applicant applicant file application formal order giving effect order 2 order 4 00pm 30 august 2019 respondent pay applicant cost incidental interlocutory application case management hearing indemnity cost basis lump sum payment fixed registrar paid forthwith note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentcollier j interlocutory application filed applicant mr carbone 31 july 2019 seek following order interlocutory application heard urgent basis time service interlocutory application affidavit support dispensed respondent comply order 1 2 made court 16 july 2019 within five 5 day date order failing without order respondent amended defence struck b judgment entered favour applicant anda date set case management hearing provide direction hearing remedy penalty respondent pay applicant cost incidental application case management hearing indemnity cost basis lump sum payment fixed registrar paid forthwith 2 essentially mr carbone seek self executing order also known springing guillotine order respondent light submits repeated want compliance case management order regarding discovery filing defence matter complies thefederal court rule 2011 cth background factson 29 october 2018 mr carbone filed originating application thefair work act 2009 cth thefair work act alleging dismissal contravention ofs 340 1 ii thefair work act understand paralegal subsequently lawyer working first respondent james mcconvill associate pty ltd principal first respondent mr james mcconvill second respondent proceeding mr carbone complains dismissed made complaint inquiry relation employment exercise workplace right within meaning ofs 341 originating application complaint inquiry include raising ethical issue practice management issue throughout employment raising outstanding unpaid fee share entitlement reimbursement expense raising concern role answering telephone reporting workplace injury complaining discrimination segregation complaining false allegation mr carbone also claim injury employment adverse action within meaning ofs 342 1 thefair work act coercion exercise workplace right within meaning ofs 343of thefair work act failure first respondent provide pay slip proper payslip contrary toss 535and536of thefair work act mr carbone filed statement claim 25 january 2019 subsequently another statement claim 22 february 2019 summary mr carbone claim material time mr james mcconvill partner law firm conducted legal practice name james mcconvill associate firm practises law melbourne mr carbone also pleads inter alia employed paralegal february 2014 march 2015 following admission lawyer firm march 2015 1 july 2015 time mr carbone claim remunerated rate agreed second respondent mr carbone pleads july 2015 august 2016 employed lawyer first respondent accordance term written employment agreement executed party 8 august 2015 august 2016 2 july 2018 accordance term new written employment agreement respondent filed defence 22 march 2019 5 july 2019 23 july 2019 26 july 2019 recent version amended defence filed 4 37pm 26 july 2019 meaning technically filed 27 july 2019 docket judge matter justice logan honour made numerous order proceeding particular note following 12 november 2018 honour ordered inter alia pursuant rr 20 11 20 14 thefederal court rule 2011 cth party make discovery document 15 march 2018 order 3 5 march 2019 honour ordered applicant file serve amended statement claim 22 february 2019 respondent file serve defence 22 march 2019 pursuant torules 20 11and20 14of thefederal court rule 2011 cth party make discovery document 19 april 2019 matter referred mediation conducted registrar court date 17 may 2019 later 14 june 2019 subject registrar availability event matter settle conclusion initial mediation matter listed case management hearing next available date liberty apply order costson 28 may 2019 honour ordered applicant file serve amended statement claim 14 june 2019 respondent file serve amended defence 5 july 2019 applicant file serve reply amended defence 12 july 2019 interlocutory application filed 7 may 2019 adjourned date fixed 14 june 2019 liberty apply order costson 28 june 2019 honour ordered respondent make discovery pursuant torules 20 11and20 14of thefederal court rule 2011 cth including limited category set 12 june 2019 letter annexure jac1 affidavit joseph anthony carbone affirmed 27 june 2019 12 july 2019 order 4 order court dated 5 march 2019 varied mediation conducted later 21 august 2019 matter listed case management hearing 10 15 22 august 2019 appearance video link permitted subject availability link respondent pay applicant cost incidental interlocutory application filed 7 may 2019 today case management hearing fixed lump sum registrar paid forthwith understand mediation scheduled 28 may 2019 however matter resolve understand mediation adjourned 18 july 2019 adjourned 21 august 2019 15 july 2019 applicant filed interlocutory application seeking following order 1 interlocutory application heard urgent basis time service interlocutory application affidavit support dispensed respondent comply order 5 march 2019 28 may 2019 28 june 2019 order regarding discovery within 7 day date order default compliance order 3 order made 28 may 2019 respondent amended defence filed 5 july 2019 struck respondent pay applicant cost incidental application case management hearing indemnity cost basis lump sum payment paid forthwith matter came duty judge urgently 16 july 2019 hearing party prepared make order sought applicant rather ordered follows respondent comply order 5 march 2019 28 may 2019 28 june 2019 regarding discovery within 14 day date order respondent file serve amended defence within 7 day date order applicant file serve reply amended defence within 21 day date order respondent pay applicant cost incidental application case management hearing indemnity cost basis lump sum payment fixed registrar paid forthwith party returned applicant claim respondent continue fail comply order court interlocutory application currently listed hearing 7 august 2019 video melbourne party filed submission prior hearing hearing could concluded within time available accordingly made following order 7 august 2019 today interlocutory hearing adjourned 9 30am 15 august 2019 4pm 8 august 2019 applicant file serve submission providing particular deficiency discovery alleged paragraph 10 applicant outline submission filed 5 august 2019 4pm 12 august 2019 respondent file serve submission responding submission referred order 2 order 4pm 14 august 2019 applicant file serve submission reply matter resumed 15 august 2019 party made oral submission submission material applicantin summary mr carbone submits respondent continue breach order court respect filing defence discovery obligation prejudice case preparation mean unable fully address issue mediation relation respondent defence mr carbone submits summary although respondent served amended defence lawyer 23 july 2019 defence comply order 2 order 16 july 2019 subsequently 26 july 2019 respondent served amended defence fad however fad comply r16 58 thefederal court rule generally continues non compliant thefederal court rule example fad continues two version paragraph 30 notwithstanding fact latest sequence defence filed respect discovery mr carbone complaint extensive submits list document affidavit affirmed mr mcconvill behalf respondent filed 30 july 2019 substantially comply order 1 16 july 2019 order reference earlier order logan j order 1 16 july 2019 required respondent make discovery document reference category document set 12 june 2019 letter mr carbone lawyer respondent marked annexure jac1 affidavit mr carbone 27 june 2019 category document follows paragraph 1 defence para 4a invoice receipt issued partnership applicant expense per clause 7 paralegal contract agreement referred therein bank record expense paid applicant note record must give enough detail allow applicant identify expense reimbursed paragraph 2 defence para 4a relevant insurance certificate policy including public liability insurance professional indemnity insurance worker compensation insurance personal accident salary continuance insurance second respondent required hold copy applicant per clause 9 paralegal contract agreement referred paragraph 4a defence paragraph 4 defence para 4b email text message work roster period referred paragraph 4a defence detail request partnership agent applicant work consultant paralegal needed basis required firm per schedule item 1 paralegal contractor agreement referred paragraph 4a defence timesheets show hour applicant worked per week period paragraph 5 defence para 8b email text message lead roster detail request partnership agent applicant perform legal service take lawyer given applicant admitted lawyer period supervision second respondent required period referred paragraph 8a defence paragraph 6 defence para 8b b invoice issued client bank record income received banked partnership client listed client list attached period referred paragraph 8a defence note record must give enough detail allow applicant identify fee relate client client list defence para 8b b invoice receipt issued partnership applicant expense bank record payment expense reimbursed applicant period referred 8a defence note record must give enough detail allow applicant identify expense partnership reimbursed applicant paragraph 7 defence para 8b b record disbursement referred paragraph 8b b defence follows invoice issued partnership b receipt issued partnershipc bank record receiptof disbursement relation client list attached period referred paragraph 8a defence note record must give enough detail allow applicant identify disbursement relates client client list paragraph 9 c defence para 12 record relating transfer law business partnership james mcconvill associate pty ltd follows c record second respondent required provide applicant pursuant tosections 307 316of thefair work act including fair work information statement note record provide enough detail allow applicant satisfied partnership ceased provide legal service first respondent position enter contract employment applicant manner term referred paragraph 12 b defence incorporated legal practice perpart 3 7of thelegal profession uniform law application act2014

LBJ v COMMISSIONER OF POLICE [2023] SASC 129 (12 September 2023).txt

lbj v commissioner police 2023 sasc 129 12 september 2023 last updated 14 september 2023supreme court south australia criminal application disclaimer every effort made comply suppression order statutory provision prohibiting publication may apply judgment onus remains person using material judgment ensure intended use material breach order provision enquiry may directed registry court generated lbj v commissioner police 2023 sasc 129judgment honourable justice stein12 september 2023criminal law sentence sentencing order order declaration relating serious violent offender dangerous sexual offender dangerous sexual offender registration reporting like mattersin 2000 applicant sentenced four count indecent assault registered australian national child offender register required comply reporting obligation thechild sex offender registration act 2006 sa applicant applied court pursuant tos 37 2 act seeking order suspend reporting obligation applicant meet threshold requirement registrable offender entitled apply order primary question arising application whether court satisfied required bys 38 2 act applicant pose risk safety well child child held 1 application allowed child sex offender registration act 2006 sa s 37 38 referred c v commissioner police 2014 sasc 163 2014 121 sasr 106 l r v commissioner police 2018 sasc 181 holland v commissioner police 2019 sasc 141 attorney general v grosser 2016 sasc 49 considered lbj v commissioner police 2023 sasc 129criminal applicationstein j applicant registered australian national child offender register ancor pursuant provision thechild sex offender registration act 2006 sa act following conviction may 2000 four count indecent assault applicant required comply reporting obligation imposed act seek order pursuant tos 37 2 ands 38of act suspending reporting obligation respondent commissioner police take position application actsections 37 38 act provide follows 37 supreme court may exempt certain registrable offender 1 division applies registrable offender required continue comply reporting obligation imposed part remainder life 2 period 15 year passed since last sentenced released government custody respect registrable offence foreign registrable offence whichever later b become subject life long reporting period corresponding law whilst foreign jurisdiction becoming subject period south australia c parole respect registrable offence registrable offender may apply supreme court order suspending reporting obligation 38 order suspension 1 application section 37 2 supreme court may make order suspending registrable offender reporting obligation 2 court must make order unless satisfied registrable offender pose risk safety well child child 3 deciding whether make order court must take account seriousness registrable offender registrable offence foreign registrable offence b period time since offence committed c whether registrable offender ever subject restraining order section 99aa thesummary procedure act 1921 ca whether registrable offender ever subject declaration part 2a order section 15a age registrable offender age victim offence difference age registrable offender victim offence time offence committed e registrable offender present age f registrable offender total criminal record g matter court considers appropriate court must satisfied threshold requirement contained 37 2 act met counsel respondent confirmed satisfaction pre condition power conferred 38 1 discretionary 1 court must make order unless satisfied registrable offender pose risk safety well child child court must take account matter set 38 3 act determining whether make order 2 inc v commissioner police 3 nicholson j said court obliged make order event satisfied requirement 38 2 making order remain discretionary nevertheless whilst lack satisfaction 38 2 described matter preclusion finding satisfaction ordinarily highly favourable exercise discretion finding respect matter taken account 38 3 relevant making finding pursuant 38 2 exercise discretion generally making order involves three stage process threshold matter 37 2 satisfied court satisfied requirement 38 2 discretion exercised make order sought phrase pose risk 38 2 requires consideration present future risk read sense pose risk pose risk future 4 rarely case court could make unqualified finding indefinite future person pose risk 5 accordingly requirement registrable offender pose risk construed literally focus whether appreciable risk 6 appreciable risk risk purely speculative founded evidence perceptible capable estimated 7 fundamental question court whether court satisfied requirement contained 38 2 speaking term onus proof may apposite 8 factual consideration relevant applicationthe offending comprised four count indecent assault 14 year old female victim student attending high school applicant employed teacher assistant four incident occurred school ground technical study area three incident involved applicant touching victim clothing underwear last involved applicant taking victim hand placing groin outside trouser occurred contact victim applicant victim acknowledged enjoyed affection shown applicant reported conduct considered got hand applicant pleaded guilty magistrate court sentenced four month imprisonment suspended upon entering bond period two year amount 200 bond contained condition including applicant good behaviour supervision probation officer 12 month attend counselling program directed applicant completed bond successfully 2002 applicant similar conviction time twenty four year passed since offending applicant convicted offence period 2023 applicant charged breach reporting obligation charge withdrawn accept counsel submission court take consideration discontinued charge applicant deposed affidavit circumstance offending becoming registered offender pursuant act personal circumstance impact reporting obligation applicant born adelaide october 1947 wife married 1974 three adult child 11 grandchild applicant among role enlisted soldier qualified armourer left australian army 1973 honourable discharge thereafter worked range role including school service officer assisting metal woodwork class role offending took place applicant left education sector worked 2005 retirement 2015 role armourer applicant deposed complying reporting obligation whenever contact grandchild required advise police within 24 hour email applicant deposed feeling guilt shame also impact wife diagnosed cancer suffers depression anxiety applicant poor health 76 year old applicant wife wish spend last year without stigma reporting court received report mr richard balfour support application mr balfour practiced since 1988 psychologist work field forensic clinical psychology extensive experience including master clinical psychology adjunct senior lecturer clinical psychology flinders university mr balfour conducted three hour clinical interview applicant 24 july 2023 reviewed range document referred report mr balfour considered applicant interview behaviour family history education occupation history recreational history interpersonal history developmental history medical history financial legal history drug alcohol history mental health history psychosexual developmental history event antecedent sexual offence mr balfour used three formal risk assessment tool ass applicant level sexual recidivism tool employ actuarial methodology structured professional judgment risk assessment tool confirmed applicant low category sexual recidivism risk severity rating low low moderate moderate moderate high high mr balfour stated consider applicant represents acute risk child community mr balfour set number reason conclusion summarise applicant satisfy diagnostic criterion paedophiliac disorder paedophiliac orientation sexual obsession adolescent female deviant paedophilic sex drive applicant risk sexual recidivism lowest category level sexual risk base rate general population men applicant 76 year old multiple physical health problem consequential normal age related decline libido suffers age health related sexual impotence desire become sexually active research show risk sexual recidivism significantly decrease age 60 year seriousness applicant past offending behaviour major salutary effect upon powerful personal deterrent offending applicant exhibit evidence pro offending attitude fully accepts responsibility offending attempt blame victim applicant demonstrates remorse exhibit victim empathy mr balfour belief applicant remorse sincere applicant suffer comorbid psychopathology would predispose offending applicant strong supportive relationship family protective factor offending applicant married 48 year three adult child 40 11 grandchild age 2 15 year applicant enjoys close supportive relationship extended family applicant spent last 23 year making amends family trying good husband father grandfather applicant would contemplate offending want cause family distress jeopardise relationship family member mr balfour concern regarding applicant ancor reporting obligation suspended considerationi satisfied threshold requirement contained 37 2 act met applicant entitled make application pursuant act offence serious applicant pleaded guilty applicant deposed feeling guilty ashamed behaviour feeling exacerbated since placed child sex offender register period time since offending took place substantial applicant committed offence including sexual nature interval time would give rise concern potential risk safety well child mr balfour report indicates applicant presented cognisant wrongfulness behaviour empathetic victim offending accepted full responsibility action indication paedophiliac disorder orientation pro offending attitude age difference applicant victim significant early 50 victim 14 year old issue concern however applicant 76 year old poor health suffering impotence age difference victim applicant time offending sufficient override relevant factor addressed report mr balfour mr balfour referred applicant representing acute risk child report read entirety demonstrates mr balfour view applicant represents low risk level sexual risk base rate general population men material raise matter may militate making order accordance 38 3 g conclusioni determined ought exercise discretion favour granting application prepared act mr balfour opinion considered matter referred mr balfour including applicant age health issue length time since offending attitude offending lack sexual offending applicant strong motivation offend among thing avoid jeopardising family relationship taking account matter satisfied applicant pose risk safety well child child ordersi make order pursuant 38 1 act suspending applicant reporting obligation hear party term order 1 c v commissioner police 2014 sasc 163 2014 121 sasr 106at 11 per nicholson j l r v commissioner police 2018 sasc 181at 8 per nicholson j holland v commissioner police 2019 sasc 141at 6 per lovell j 2 c v commissioner police 2014 sasc 163 2014 121 sasr 106at 11 per nicholson j l r v commissioner police 2018 sasc 181at 8 per nicholson j holland v commissioner police 2019 sasc 141at 6 per lovell j 3 2014 sasc 163 2014 121 sasr 106at 12 referred inl r v commissioner police 2018 sasc 181at 8 per nicholson j 4 l r v commissioner police 2018 sasc 181at 11 per nicholson j holland v commissioner police 2019 sasc 141at 7 per lovell j 5 l r v commissioner police 2018 sasc 181at 13 14 per nicholson j 6 l r v commissioner police 2018 sasc 181at 13 15 per nicholson j holland v commissioner police 2019 sasc 141at 7 per lovell j 7 l r v commissioner police 2018 sasc 181at 15 per nicholson j adapting observation stanley j inattorney general v grosser 2016 sasc 49at 29 holland v commissioner police 2019 sasc 141at 7 per lovell j 8 l r v commissioner police 2018 sasc 181at 12 per nicholson j holland v commissioner police 2019 sasc 141at 7 per lovell j

FRIGGER -v- LEAN [2015] WASC 125 (10 April 2015).txt

frigger v lean 2015 wasc 125 10 april 2015 last updated 10 april 2015jurisdiction supreme court western australiain civilcitation frigger v lean 2015 wasc 125coram mitchell jheard 2 april 2015delivered 2 april 2015published 10 april 2015file civ 2408 2014between angela friggerfirst plaintiffhartmut friggersecond plaintiffandgraeme trevor leandefendantcatchwords abuse process application permanently stay proceeding claim based substantially fact previous unsuccessful claim turn factslegislation nilresult proceeding permanently stayedcategory brepresentation counsel first plaintiff personsecond plaintiff appearancedefendant mr j healysolicitors first plaintiff personsecond plaintiff persondefendant dla piper australiacase referred judgment 1mitchell j proceeding plaintiff seeking recover loss damage arising alleged breach contract defendant proceeding latest iteration long series action arising dispute plaintiff associated company computer accounting tax pty ltd cat martin banning associated company professional service australia pty ltd psa respect purchase service station armadale 2000 2the defendant seek various relief way amended chamber summons dated 10 february 2015 following reason agree part defendant application submission contend current proceeding permanently stayed abuse process court background3the fact pleaded statement claim contention purpose application broadly consistent fact found number judgment court relation proceeding involving plaintiff associated company outline basic fact 4on 9 july 2008 supreme court proceeding civ 2265 2006 cat awarded judgment including interest 1 106 027 plus postjudgment interest cost psa mr banning incomputer accounting tax pty ltd v professional service australia pty ltd 2008 wasc 133 july2008 judgment judgment sum immediately paid 5on 21 november 2008 cat applied obtained order pursuant tos 86of thecivil judgment enforcement act 2004 wa act appointing defendant receiver one 50 share share owned mr banning banning holding pty ltd banning holding 6a transfer share defendant registered register member banning holding 16 december 2008 pleaded defendant registered shareholder party bound constitution banning holding 7although always known defendant material time memorandum article association banning holding pty ltd provided follows article 22 director may decline register transfer without giving reason therefor article 22a share capital company shall sold transferred unless right pre emption hereinafter conferred followed 8the defendant advertised share sale inthe west australiannewspaper 10 february 2009 invited expression interest 9on 27 february 2009 defendant held meeting party interested purchasing share provided meeting certain information relation share 10the defendant received four written offer purchase share including offer purchase share 730 000 plaintiff 11on 10 march 2009 defendant entered binding written agreement plaintiff sale purchase share 730 000 12the plaintiff paid defendant deposit 20 000 10 march 2009 13on 25 march 2009 plaintiff paid defendant sum 710 000 balance consideration payable agreement made 10 march 2009 14the plaintiff plead 25 march 2009 courtordered mediation civ 2265 2006 defendant urged plaintiff accept offer behalf cat made judgment debtor 1 325 000 defendant advised plaintiff cat plaintiff would better financial position continued share purchase 15at time defendant disclose existence article referred understand defendant position aware article 16on 27 march 2009 defendant executed share transfer form transfer share plaintiff however director banning holding refused register transfer relying article referred 17on 27 march 2009 defendant refunded amount 710 000 plaintiff informed settlement agreement sale purchase share would deferred 18from 10 march 2009 21 january 2011 defendant held plaintiff deposit 20 000 ground considered sale agreement foot 19on 30 march 2009 defendant provided plaintiff copy email solicitor mr francois carles mr carles stated maintain view appropriate friggers bring court application separate proceeding compel director register share transfer 20on 22 may 2009 plaintiff requested defendant take step necessary comply provision memorandum article quoted alleged defendant take step 21the plaintiff commenced proceeding civ 1727 2009 mr campbellsmith described submission either director banning holding executor mr banning estate compel registration transfer share 22on 23 october 2009 judgment inprofessional service australia pty ltd v computer accounting tax pty ltd 2 2009 26 1 alr 179 2009 wasca 183 july2009 judgment delivered consequence judgment quantum damage awarded cat psa mr banning substantially reduced 424 449 23as october 2009 cat recovered excess 424 449 consequently unnecessary proceed sale share order satisfy judgment debt owed cat 24on 2 december 2010 kenneth martin j delivered judgment civ 1727 2009 beingfrigger v campbellsmith 2010 wasc 353 december2010 judgment justice kenneth martin ordered stay proceeding dispute party whether claim enforcement contract ever made proceeding unnecessary resolve dispute accepted party time kenneth martin j ordered stay proceeding extant contractual claim made plaintiff defendant proceeding civ 2265 201425on 28 march 2014 simmonds j delivered decision civ 2265 2014 beingcomputer accounting tax pty ltd liq v professional service australia pty ltd 6 2014 wasc 105 march2014 judgment decision concerned claim plaintiff compensation defendant loss claimed suffered resulting irregularity carrying order pursuant tos 105of act march 2014 judgment 70 irregularity alleged follows march 2014 judgment 136 offering sell share without first identified limitation article association banning holding represented article 22 article 22a failing comply article 22a failing obtain direction court contracting sell share failing make contract subject direction contracting sell share circumstance transpired plaintiff unable obtain share registered name promoting participation plaintiff proceeding civ 1727 2009 obtain registration share name initially coplaintiff became defendant andbeing coplaintiff otherwise involved proceeding civ 1727 2009 without first obtaining direction court 26in march 2014 judgment simmonds j found plaintiff failed establish irregularity defendant connection making carrying order act would warrant court exercising discretion cure irregularity 27simmonds j held even plaintiff established irregularity defendant enforcement receivership order would declined exercise discretion unders 105of act cure irregularity plaintiff contractual relationship defendant order act needed correct irregularity contractual relationship defendant plaintiff would provide entitlement claim remedy see eg march 2014 judgment 206 28it also alleged proceeding plaintiff defendant breached duty care owed defendant march 2014 judgment 70 submission directed issue closing submission made attention party court drawn decision inhuntingdale village pty ltd receiver manager appointed atf huntingdale village unit trust v perpetual nominee ltd 2013 wasc 352 claim breach duty care appears ultimately abandoned plaintiff consideration decision march 2014 judgment 137 abuse process29insheraz pty ltd v vega enterprise pty ltd 2015 wasca 4 4 11 bus ja summarised law concerning power court prevent procedure abused term agree bus ja noted 5 constitutes abuse process incapable described exhaustively 30however bus ja also noted 6 high court stated least one three characteristic apparent many case abuse process namely court process invoked illegitimate collateral purpose use court procedure unjustifiably oppressive party orthe use court procedure bringing administration justice disrepute 31buss ja identified number proposition insheraz 8 20 concerning nature abuse process namely inherent implied power exists prevent misuse procedure manner although inconsistent literal application procedural rule would nevertheless manifestly unfair party litigation would bring administration justice disrepute among rightthinking people abuse process extends proceeding seriously unfairly burdensome prejudicial damaging productive serious unjustifiable trouble harassment category abuse closed court may exercise power administration justice demand abuse process may arise successive proceeding cause likely cause improper vexation oppression would scandal administration justice litigant permitted changing form proceeding set case circumstance question previously disposed court may invoke principle abuse process prevent attempt litigate issue litigated earlier proceeding well prevent attempt relitigate issue substance litigated determined earlier proceeding focus applying principle abuse process matter substance form abuse process case32the defendant seek advance proposition cause action sought maintained proceeding merged march 2014 judgment however defendant contend commencement proceeding abuse process court attempt make claim later proceeding based wholly substantially fact unsuccessful claim made plaintiff civ 2265 2006 33the defendant submits discernible difference proceeding proceeding civ 2265 2006 alleged breach current action framed breach banning holding constitution director duty breach contract opposed irregularity unders 104ands 105of act 34in submission m frigger said claim fact purely contractual accept defendant point claim based fact remains 35the defendant contends similarity alleged breach two proceeding illustrated table par 24 submission socparacjea issuemarch 2014 judgment 136 29 offering share sale accepting consideration without identifying preemptive right limitation article 22 22a 1offering sell share without first identified preemptive right limitation article 22 22a 29 b contracting friggers 4contracting sell share circumstance transpired friggers unable obtain share registered name 29 c participating civ1727 2009 proceeding share transfer registered 5promoting participation friggers proceeding civ 1727 2009 obtain registration share name initially co plaintiff became defendant 29 e failing obtain direction court 3failing obtain direction court contracting sell share failing make contract subject direction 29 f failing comply pre emptive right provision article 22 22a 2failing comply article 22a 29 g acting coplaintiff compel registration 6being coplaintiff otherwise involved proceeding civ 1727 2009 without first obtaining direction court 36the defendant also point loss damage subject current proceeding civ 2265 2006 identical say illustrated table par 34 defendant submission socparacjeacase statementedward affidavit rfe5 35 legal cost paid legal representative 1727 2009 2265 2006 cacv27 200943 1 72 508 41 amount paid legal adviser counsel representation court fee action civ 1727 of2009 plus interest date payment 24 october 2011 6903 7335 b legal cost ordered paid plaintiff 1727 2009 2265 2006 andcacv27 200943 2 43 3in amount determined respect cost payable first third defendant action civ 1727 2009 defending applicant action incurred 23 october 2009 amount determined respect cost ordered paid applicant respondent respect action c1v 1727 200935 c difference defendant licensed valuation share 1 278 112 purchase price payable contract 730 000 548 112march 2014 judgment 226 2 243 246the failure provide share meant suffered loss difference price contract sale purchase share 730 000 value share 90 1 278 112 420 299 37i accept submission made defendant accept pursuit present proceeding abuse process court plaintiff m frigger accepts fact claim based relief sought current proceeding also sought civ 2265 2006 respect loss 38in view classic case plaintiff failed claim compensation one set proceeding seeking make claim based wholly substantially fact earlier unsuccessful claim respect alleged loss 39i accept defendant submission first plaintiff affidavit sworn 3 march 2015 provides explanation current damage claim could raised civ 2265 2006 accept submission inference ought drawn current proceeding commenced plaintiff failed application civ 2265 2006 wish raise claim ought raised proceeding brought view plaintiff current contractual claim could made earlier proceeding 40the plaintiff point various statement march 2014 judgment note possible contractual claim plaintiff view however observation assist plaintiff observation indicated claim plaintiff made civ 2265 2006 may failed relevant irregularity established plaintiff failed observation explain current claim could made earlier proceeding 41there passage simmonds j judgment might read suggest plaintiff might still contractual claim see eg march 2014 judgment 217 228 suggestion arises use present tense paragraph read simmonds j determining whether claim could still made new proceeding use present tense matter simmonds j reason decide 42further comment plaintiff contractual right form ultimate basis simmonds j determined earlier proceeding march 2014 judgment simmonds j found irregularity term allegation 1 5 irregularity 6 warrant making order unders 105of act therefore unnecessary form final position relation issue 5 7 identified simmonds j march 2014 judgment 224 43the plaintiff application civ 2265 2006 substantial proceeding number interlocutory step hearing five day described march 2014 judgment proceeding must imposed substantial burden upon defendant view would unfair unjustifiably oppressive defendant require litigate issue current proceeding put previous ordeal impose burden litigation defendant would also view bring administration justice disrepute 44the attempt plaintiff relitigate claim different juristic basis must also understood context proceeding plaintiff involved include proceeding leading december 2010 judgment andfrigger v lean 2012 wasca 66 acknowledge simmonds j rejected argument two decision cited rendered claim civ 2265 2006 abuse process march 2014 judgment 118 defendant seek challenge conclusion present proceeding however earlier litigation form relevant part litigious background oppressive nature current proceeding must addressed 45the claim dealt simmonds j march 2014 judgment claim made plaintiff first plaintiff submitted plaintiff party proceeding civ 2265 2006 substance however clear simmonds j dealing claim made plaintiff cat march 2014 judgment 46it also relevant note argument contractual relation plaintiff defendant remedy available addressed considered kenneth martin j december 2010 judgment summarised march 2014 judgment 204 217 noted contractual claim pleaded time subject stay granted honour december 2010 judgment 102 however argument form part background litigation indicate another occasion defendant required deal argument kind sought advanced proceeding 47in considering substantial justice case also relevant note plaintiff obtained benefit contract purchase share part execution july 2008 judgment debt owed company controlled plaintiff quantum judgment reduced appeal remaining judgment debt satisfied mean plaintiff able obtain claimed contractual right error made court assessment damage july 2008 judgment procuring use cat court enforcement process fact required order satisfy july 2008 judgment debt reduced appeal view plaintiff seek take advantage error proceeding hard perceive real practical injustice flow order precludes plaintiff pursuing claimed right obtained circumstance failed claim course lengthy dogged pursuit interest defendant already subject 48in circumstance accept defendant submission current proceeding abuse process permanently stayed

Malina Schindler and Adrian Schindler v Intellectual Property Development Corporation Pty Ltd. [2013] ATMO 36 (6 June 2013).txt

malina schindler adrian schindler v intellectual property development corporation pty ltd 2013 atmo 36 6 june 2013 last updated 4 july 2013trade mark act 1995decision delegate registrar trade mark reasonsre opposition malina schindler adrian schindler registration trade mark application 1302789 32 zig zag filed name intellectual property development corporation pty ltd delegate iain thompsonrepresentation opponent peter madigan counsel instructed ross higgins higgins lawyer applicant chris round solicitor middleton decision 2013 atmo 36s52opposition registration s42 b opposition established trade mark zig zag applied beer made zig zag area new south wale would misleading deceptive backgroundintellectual property development corporation pty ltd applicant applied thetrade mark act 1995 act register trade mark detail appear application 1302789priority date 5 june 2009goods class 32 beertrade mark zig zag application trade mark appropriate application examined mandated bysection 31of act advertised accepted possible registration theaustralian official journal trade markson 10 june 2010 31 august 2010 malina schindler adrian schindler opponent filed notice opposition notice registration trade mark notice couched broad term includes ground argued hearing matter party subsequently served evidence support respective contention matter heard delegate registrar trade mark canberra 3 july 2012 peter madigan counsel instructed ross higgins higgins lawyer represented opponent chris round solicitor middleton represented applicant subsequently administrative operational reason matter given iain thompson delegate registrar trade mark decide considered relevant material including audio recording hearing written submission evidence reaching decision onusthe opponent bear onus establishing one ground opposition balance probability 1 since consideration opposition face succeed subparagraph 42 b act necessary discus evidence party inasmuch go ground date ground opposition must established date filing application registration relevant date seesouthern cross refrigerating v toowoomba foundry pty ltd 1953 91 clr 592 page 595 evidencethe evidence served filed relation matter comprises statutory declaration malinda schindler made 27 april 2011 support statutory declaration philip charles withers made 27 july 2011 answer statutory declaration malina schindler made 30 june 2012 reply m schindler first declaration state managing director co owner zig zag brewery located brewery lane oakey park lithgow since 1884 since m schindler evidence weighs heavily ground decide matter merit prolonged attention m schindler say following concerning history brewery brewery built 1884 henry p corbett goodare first licensed 1888 site brewery selected purity water ran stream property combined altitude cooler climate considered excellent place brew beer brewery situated region nsw known zig zag also includes zig zag primary school renowned zig zag railway modern tourist destination attracts ten thousand people around australia zig zag region every year done since reopening 1975 important note brewery pointed tourist railway go past brewery railway acclaimed feat engineering ingenuity day overcoming rugged terrain blue mountain likewise completion 1865 railway attracted thousand people zig zag region marvel railway brewery gained name region brewery run successfully mr corbett conjunction mr goodare mr corbett solo 1896 taken mr corbett step son mr john alexander stammer jones expanded business turned highly profitable enterprise recorded period mr jones proprietor brewery brewery turning 36 hogshead beer twice daily hogshead large cask beer ale equalling 54 gallon 250 litre brewery time calculated producing 18 000 litre beer day large amount provincial brewery produced shown marked m 1 copy article entitled zig zag brewery publication called back lithgow well relevant page brewery australia history brewery success john jones retirement 1927 entailed brewery 10 hotel first 5 decade brewery named zig zag brewery business changed name lithgow brewing company 1927 business changed hand came ownership 6 director including three director sydney following 7 year brewery resold various owner eventually became terry brewery despite change ownership name brewery appears known generally zig zag brewery affectionately old zig zag throughout local region sydney even beyond produced shown marked ms2 copy article lithgow mercury newspaper dated 24 february 1928 produced shown marked ms3 copy several newspaper article thesydney morning heralddating 1932 1933 1934 referring beer coming zig zag brewery rather terry brewery brewery called article little illegible given source old photograph period also show name zig zag commonly associated brewery much brewery life figured largely brewery building produced shown marked ms4 copy original photograph showing brewery note inclusion word zig zag building well known brewery throughout nsw considered state art time constructed gravitational principle hop malt water etc sic lifted top brewery 70foot tower manual labour required rolled keg onto truck transportation hotel pub fellow brewer sydney regularly visited brewery marvel equipment view brewing process first hand equipment brewery reportedly sourced united state united kingdom unnamed newspaper article entitled latest machinery terry brewery stated brewery two year ahead time unnamed newspaper dated 13 april 1921 observed brewery best equipped brewery province tooth brewery one largest brewery sydney time reportedly impressed brewery intending buy brewery 1931 came sale however sale fell produced shown marked ms5 copy newspaper article tooth enterprise interested owning brewery 1929 sydney brewery ltd formed acquire brewery rsl nsw considered purchasing brewery 1946 produced shown marked ms6 copy article fromthesydney morning herald argus melbourne andthe canberra timesdated 7 may 1946 article also sydney morning herald dated 6 november 1929 relating potential sale brewer diary brewery dating early 1888 record amount beer yeast ordered local regional publican diary believed account book arthur goodare note page 2 8 heading order go beer name business far away mudgee brewongle gulgong sunny corner hill end mount victoria hartley vale katoomba proving reputation fledgling brewery diary copied returned owner becoming substantial enterprise hop grown lithgow area supply brewery two smaller brewery operating time plentiful supply fresh produce production beer growing hop local area undertaken 20 acre property brewery proprietor mr wyld known magpie hollow prior hop sourced tasmania produced shown marked ms7 copy article entitled hop growing experiment near lithgow lithgow mercury dated within late 1940s throughout life brewery trade mark zig zag acquired strong reputation brewing first class beer reputation name association beer brewing reached far beyond lithgow zig zag region sydney interstate even overseas noted one successful country brewery commonwealth unlabeled newspaper dated 27 october 1927 newspaper state beer produced acquired reputation highest quality throughout several state brewery regularly reported newspaper around australia including thesydney morning herald argusin melbourne thecanberra time produced shown marked ms8 copy relevant page regional newspaper dated 27 october 1927 owner brewery mr jones understood importance ownership successful brand subsequently trademarked many popular beer brand day around 1916 1917 included zig zag wombat trade mark zig zag bold heavy cap sic appeared theaustralian official journal trade marksvol 11 31 issue 1 december 1916 fermented spirituous liquor owner zig zag brewery produced shown marked ms9 copy information included volume theaustralian official journal trade marksas well photograph beer bottle bearing wombat trade mark manufactured zig zag brewery bottle manufactured prior use label beer bottle information embossed glass bottle brewery listed state heritage register since 2001 historic significance state basis rare survivor new south wale surviving brewery complex brewery also listed register national trust nsw department environment planning recognised importance brewery site undertook survey site mid 1980s record point interest brewery result survey recorded document entitled survey historical site lithgow area produced shown marked m 10 copy relevant page within document october 1950 brewery prestigious international award 1950 british empire commonwealth bottle beer competition award would put brewery map particularly around australia brewery time terry brewery still known zig zag brewery old zig zag produced shown marked m 11 copy newspaper article printed time thebankstown observerdated 19 october 1950 m schindler go state also lengthy process gaining license office liquor gaming racing enable boutique brewery brew beer onsite time process developing recipe beer intend selling boutique brewery process almost finalised although intend producing additional type beer time brewery fortunate least one hundred original beer recipe used brewer brewery process reviewing view utilising recipe possible brewery since 1996 much research gone appearance label affixed product agreeance would appropriate use original beer label produced brewery heyday much time spent researching label attempting find example may still exist regard advertised intention local newspaper asked assistance people region produced shown marked m 14 original zig zag ale label located well copy request lithgow mercury memorabilia brewery also produced new label compliment original old label used additional type beer unable find copy original label produced shown marked m 15 printout showing complimentary label affixed beer produced brewery plan renovate existing original brewery building restoring original appearance use place time consulted expert relation layout brewery procurement necessary equipment costing produced shown marked m 16 detailed pamphlet brewery intended renovation mean gauging public interest restoration brewery included article local newspaper exhibit set numerous show including bathurst show mudgee field day show orange tamworth show throughout metropolitan sydney 1993 2007 show exhibit included original photograph brewery requested comment suggestion show goer support overwhelming received overwhelming support sic many positive response reminiscence show goer recalled brewery well conversant history produced shown marked m 17 photograph exhibit bathurst show well copy relevant newspaper article turning evidence answer mr withers state director applicant mr withers state exhibit ms1 schindler declaration reveals zig zag brewery brewery ceased named zig zag brewery 1928 beer produced premise owned opponent since 1958 extensive research historical beer brand reveals beer produced anywhere australia reference trade mark since least date likely since 1928 paragraph 8 schindler declaration m schindler state brewery renamed lithgow brewing company 1927 eventually became known terry brewery despite change ownership name brewery appears known generally zig zag brewery affectionately old zig zag throughout local region sydney even beyond paragraph 17 schindler declaration m schindler state brewery time 1950 terry brewery still known zig zag brewery old zig zag opponent previously unsuccessfully opposed registration applicant australian trade mark 1246124 terry mountain device opposition hearing officer deirdre brien determined opponent established ground opposition allowed applicant registration mark m schindler made statutory declaration 6 may 2009 filed opposition declared paragraph 19 experience brewery still often referred terry brewery believe due strong historical connection name terry terry brand beer example company stall last year bathurst royal show held 6th 7th march 2008 bathurst showground bathurst new south wale company attend event showcase bottled water product noticed many people came view stand referred brewery old terry brewery rather zig zag brewery even though zig zag name use relation brewery paragraph 20 schindler declaration m schindler refers opponent intention reopen brewery trade mark filed opponent opponent registrant australian trade mark 977925 zig zag class 32 natural spring water trade mark filed 12 november 2003 originally beer natural spring water applicant successfully filed application remove beer specification good ground non use 3 year prior application filed opponent initially opposed non use application evidence filed support use mark 3 year prior non use application filed mr withers also state icb group 2 use trade mark way misleading deceptive likely mislead deceive confusion arise use trade mark presented public along icb group trade mark new boutique craft brewery history icb group trade mark relevant success trb 3 subparagraph 42 b subparagraph 42 b provides 42trade mark scandalous use contrary lawan application registration trade mark must rejected b use would contrary law considering whether use trade mark would contrary law hearing officer obliged consider whether use trade mark would contrary law inadvantage rent car inc v advantage car rental pty ltd 2001 fca 683 2001 52 ipr 24 2001 aipc 91 724madwick j stated 26 however opinion fact existence contrariety law exercised circumstance administrative body circumstance judicial body mean phrase use would contrary law ambulatory meaning depending upon kind tribunal apply reticence part administrative decision maker express opinion matter law encouraged idea contrary law context judicial proceeding mean contrary law whilst context proceeding registrar mean contrary law easy registrar determine clear cut sustainable matter practice delegate registrar case determined trade mark submitted registration contrary law result breach legislation see application slaney 1985 6 ipr 307at 309 trade mark found breach thehealth legislation amendment act 1983 cth application athol thomas kelly 1987 8 ipr 667at 672 found trade mark would infringe theadvance australia logo act 1984 cth see reason legislation able relied registrar establish contrariety law legislation copyright act albeit complex well settled power granted registrar court administrative judicial depending exercising power high court held inr v quinn ex parte consolidated food corporation 1977 hca 62 1977 138 clr 1 power remove trade mark register argued opponent use trade mark applicant would mislead deceive term consumer protection law priority date application 1 january 2011 thetrade practice act 1974 tpa relevant legislation rather thecompetition consumer act 2010 argued delegate section 52 tpa provides misleading deceptive conduct 1 corporation shall trade commerce engage conduct misleading deceptive 2 nothing succeeding provision division shall taken limiting implication generality sub section 1 section 53 tpa provides relevant subparagraph bold false misleading representationsa corporation shall trade commerce connexion supply possible supply good service connexion promotion mean supply use good service falsely represent good particular standard quality value grade composition style model particular history particular previous use aa falsely represent service particular standard quality value grade b falsely represent good new bb falsely represent particular person agreed acquire good service c represent good service sponsorship approval performance characteristic accessory us benefit represent corporation sponsorship approval affiliation e make false misleading representation respect price good service ea make false misleading representation concerning availability facility repair good spare part good eb make false misleading representation concerning place origin good f make false misleading representation concerning need good service g make false misleading representation concerning existence exclusion effect condition warranty guarantee right remedy note rule relating representation country origin good see division 1aa section 65aa 65an applicant corporation tpa applies considering application section 52 tpa hill j set number proposition inequity access pty ltd v westpac banking corporation 1989 fca 506 1989 16 ipr 431 1990 atpr 40 994at 41 1 conduct misleading deceptive conduct must convey circumstance case misrepresentation taco bell 4 202 present case misrepresentation part respondent said financial product advertised marketed product applicant business relationship applicant respondent applicant endorsed respective product respondent 2 however contravention 52 1 act unless error misconception result conduct corporation circumstance corporation responsible puxu 5 per gibbs cj p 6 per mason j p 15 global sportsman pty ltd v mirror newspaper ltd 1984 fca 180 1984 55 alr 25 p 34 3 conduct likely mislead deceive real remote chance possibility misleading deception regardless whether le 50 global sportsmanat p 34 question whether conduct misleading deceptive likely mislead deceive objective question court must determine hence evidence person relevant class misled although admissible determinative case however evidence persuasive puxuper gibbs cj pp 198 9 4 conduct corporation causing mere confusion uncertainty mind public sense may caused wonder whether two product may come source necessarily coextensive misleading deceptive conduct puxuat p 100 bridge stock broker v bridge 1984 fca 391 1984 57 alr 401at p 413 per lockhart j since actual deception need shown court must consider whether reasonably significant number potential purchaser would likely misled deceived weitmann v katies ltd 1977 29 flr 336 343 test passing case usually expressed whether substantial number person likely become purchaser liable deceived defendant use name hand necessary show substantially person market associate name plaintiff good shown substantial proportion person probably purchaser good kind question per wilberforce j innorman kark publication ltd v odhams press ltd 1962 rpc 163at 168 seesaville perfumery v june perfect ltd 1941 58 rpc 147 175 6 10thcantanae pty ltd v shoshana pty ltd 1987 79 alr 299at 315 per gummow j 5 case present applicant must establish acquired relevant reputation name say name become distinctive applicant business particular country geographical area sheraton corporation america v sheraton motel ltd 1964 rpc 202 bm auto sale pty ltd v budget rent car system pty ltd 1976 12 alr 363 however least circumstance slight activity may found sufficient establish name become distinctive person business particular country miki shoko co ltd v merv brown pty ltd 1988 atpr 40 858 6 section 52 confined conduct intended mislead deceive puxuper gibbs cj p 197 corporation act honestly reasonably may none le engage conduct likely mislead deceive yorke v lucas 1985 hca 65 1985 61 alr 307at p 309 opponent argument word zig zag refer region beer historically produced region quality purity water brewery building still extant widely recognized zig zag brewery listed state heritage register since 2001 support contention name zig zag refer region opponent evidenced name brewery still informally known zig zag brewery opponent also draw attention name primary school railway note also zig zag motel zig zag railway station fact brewery lane conclude word zig zag name region satisfied word widely accepted widely connected wide section australian public particular area via tourist attraction known zig zag railway perception broadly understood supporting material m schindler first declaration establish historically water used brewery particular purity filtered sandstone available site brewery note water quality impact beer three way ion water critical mashing process grain brewer character water determines efficiency flavor extracted wort water characteristic also affect perceived bitterness hop utilization finished beer finally water add flavor directly beer water largest single component finished beer particular quality water zig zag area incidentally affirmed opponent bottle mineral water old brewery note relation latter observation effect brewing water beer characterized six main ion water carbonate sodium chloride sulfate calcium magnesium beer take particular flavour character water site made bottled zig zag brewery known many thousand visitor zig zag railway travel past brewery according m schindler pointed visitor zig zag brewery accordingly consider use trade mark applicant would mislead deceive false misleading origin beer applicant proposes brew trade mark zig zag area beer made widely recognized public zig zag brewery exhibit m schindler first declaration make plain elevation water quality area known zig zag particularly suited beer making accordingly use trade mark beer attribute origin would misleading deceptive term subsection 52 1 tpa false misleading origin term subparagraph 53 eb tpa opponent established opposition subparagraph 42 b act decisionsubsection 55 1 provides 55 decision 1 unless proceeding discontinued dismissed registrar must end decide refuse register trade mark b register trade mark without condition limitation respect good service specified application regard extent ground application opposed established note forlimitationssee section 6 refuse register application 1302789 costshaving successful opponent entitled cost award applicant iain thompsonhearing officertrade mark hearings6 june 2013 1 seepfizer product inc v karam 2006 fca 1663 237 alr 787 2006 70 ipr 599 2006 aipc 92 146per gyles j 6 26 chocolaterie guylian n v v registrar trade mark 2009 fca 891 2009 180 fcr 60 2009 258 alr 545 2009 82 ipr 13 2009 aipc 92 355per sundberg j 22 26 sport warehouse inc v fry consulting pty ltd 2010 fca 664 2010 87 ipr 300per kenny j 30 40 nv sumatra tobacco trading company v british american tobacco service limited 2011 fca 1051 2011 198 fcr 435 2011 283 alr 743per greenwood j 16 32 allergan inc v di giacomo 2011 fca 1540 2011 199 fcr 126 94 ipr 541per stone j 11 12 tricarico v dunn bay holding pty ltd 2012 fca 271per mckerracher j 9 10 andfry consulting pty ltd v sport warehouse inc 2 2012 fca 81 2012 94 ipr 551per dodds streeton j 13 2 icb group applicant part import export business operates australia new zealand europe usa south africa 3 thunder road brewing company trb located brunswick expected open public late 2011 trb commenced brewing site first beer named full steam pale lager recently released public 4 taco company australia inc v taco bell pty ltd 1982 fca 136 1982 42 alr 177 5 parkdale custom built furniture pty ltd v puxu pty ltd 1982 hca 44 1981 2 149 clr 191

Ambrose v Badcock [2021] FCA 881 (8 July 2021).txt

ambrose v badcock 2021 fca 881 8 july 2021 last updated 30 july 2021federal court australiaambrose v badcock 2021 fca 881file number sad 134 2021judgment charlesworth jdate judgment 8 july 2021date publication reason 30 july 2021catchwords practice procedure application order interim relief granted anex partebasis application requiring consideration given likely cooperativeness absent respondent presiding judge prior dealing absent respondent prior litigation combination fact circumstance giving rise apprehension biaslegislation bankruptcy act 1966 cth case cited badcock v channel seven adelaide pty ltd or 2005 sadc 32badcock v channel seven adelaide p l or 2006 sadc 7ebner v official trustee bankruptcy 2000 hca 63 2000 205 clr 337division general divisionregistry south australianational practice area commercial corporationssub area general personal insolvencynumber paragraph 17date hearing 8 july 2021counsel applicant mr g gretsassolicitor applicant gretsas associatescounsel respondent respondent appearorderssad 134 2021between colin louis ambroseapplicantand robert john badcockrespondentorder made charlesworth jdate order 8 july 2021the court order originating application allocated another judge court note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgmentcharlesworth jon 8 july 2021 determined absence respondent disqualify presiding matter made order matter reallocated another justice court deliveredreasons judgmentex tempore indicated applicant publication written reason would delayed time respondent served originating process respondent served follows written record reason previously given orally minor amendment applicant trustee bankrupt estate respondent mr robert john badcock trustee alleges mr badcock conducted continues conduct business sale motor vehicle among thing trustee alleges motor vehicle mr badcock possession form part acquired property mr badcock purpose thebankruptcy act1966 cth vest originating application seek relief described interim relief proposed order 1 effect application injunction way interim relief initially heard anex partebasis without requirement serve notify respondent prior initial nominated hearing matter allocated usual course including determination whether anex partehearing proceed proposed interim injunction contained 11 12 originating process namely order mr badcock restrained injunction transferring selling charging pledging mortgaging signing advertising marketing dealing way motor vehicle without consent applicant motor vehicle forming subject matter proposed order defined elsewhere originating process order also sought requiring mr badcock grant trustee access defined motor vehicle permit inspect various purpose relating discharge function thebankruptcy act proceed hear application would necessary first satisfy proper basis proceeding mr badcock absence necessary satisfy criterion grant least interim relief satisfied whilst may low threshold would require assessment made whether anex parteorder preserving subject matter proceeding would necessary may require aprima facieassessment made whether mr badcock could reasonably expected preserve property forming subject matter dispute absent court order compelling upon reading affidavit trustee advance hearing determined preside matter basis disqualified accordance principle stated inebner v official trustee bankruptcy 2000 hca 63 2000 205 clr 337 ground apprehended bias test apprehended bias sometimes referred double might test whether fair minded lay observer might reasonably apprehend decision maker might bring impartial mind resolution issue decide mentioned one issue need decide albeit aprima faciebasis relates likely cooperativeness uncooperativeness mr badcock may 1997 story broadcast public affair program today tonight concerning business trading name decorator warehouse story made allegation wrongdoing relation business proprietor business mr badcock 1992 1996 journalist employed bychannel 7adelaide pty ltd related entity researcher today tonight january 1997 freelance journalist producer regularly engaged channel 7 related entity capacity engaged time time work today tonight cannot recall whether engaged work today tonight particular date story featuring mr badcock business broadcast consider likely presently remain friendly acquaintance former executive producer program mr graham archer around 2003 mr badcock commenced defamation proceeding district court channel 7 defendant including mr archer time admitted legal practitioner employed associate senior associate law firm kelly co lawyer capacity acted channel 7 defendant defending mr badcock action solicitor counsel capacity regular dealing mr badcock capacity self represented plaintiff including way written person dealing context court proceeding among thing written correspondence complained behalf defendant mr badcock non compliance perceived non compliance rule district court judgment district court proceeding include citationsbadcock v channel seven adelaide pty ltd or 2005 sadc 32andbadcock v channel seven adelaide p l or 2006 sadc 7 cannot recall whether proceeding progressed stage defendant required file defence ordinary course however would informed plaintiff mr badcock position defence upon defendant relied ordinary course foreshadowed defence would included defence justification defamatory imputation conveyed publication true made submission proceeding concerning significance mr badcock status undischarged bankrupt time mr badcock claimed person impecunious including reason bankruptcy particularly response application security cost instructed bring defendant behalf left employment kelly co 2006 litigation resolved know whether finally resolved reasonable person access correspondence might also conclude critical mr badcock conduct litigant proceeding time dealing believe mr badcock unaware status former employee freelance contactor channel 7 related entity acquaintance mr archer capacity reasonable observer knowledge might form view personally held opinion defamatory imputation made today tonight program true dealing mr badcock occurred 15 year ago story complained broadcast 20 year ago however correspondence annexed affidavit relied upon trustee proceeding fairly support inference mr badcock presently persists belief today tonight story precipitated demise business ultimately resulted bankruptcy also apparent mr badcock accept validity bankruptcy denied legal force sequestration order since made 2001 may fairly anticipated defending current action mr badcock may wish rightly wrongly raise matter occurring throughout bankruptcy dating back 20 year perhaps beyond event would necessary determine whether argument permitted raised substantively determine concluded combination circumstance summarised sufficient satisfy test apprehended bias warranting order disqualify presiding matter especially given trustee seek firstly order hearing proceedex parte without mr badcock opportunity heard necessarily follows cannot offer mr badcock opportunity heard whether recuse without drawing attention existence action said support application forex parterelief trustee relies alleged history non compliance uncooperativeness mr badcock part basis hearing proceedingex parte least initially circumstance satisfied make order matter allocated another justice court including purpose determining whether part proceeding heard mr badcock absence certify preceding seventeen 17 numbered paragraph true copy reason judgment honourable justice charlesworth associate dated 8 july 2021

Smith v Commonwealth of Australia [2009] FCA 684 (24 June 2009).txt

smith v commonwealth australia 2009 fca 684 24 june 2009 last updated 6 july 2009federal court australiasmith v commonwealth australia 2009 fca 684administrative law veteran entitlement double dipping entitlement pension war caused injury payment settlement common law action negligence whether payment respect incapacity injury whetherveterans entitlement act 1986 cth 30capplicable fact approach taken application ofs 30c veteran entitlement act 1986 cth s 30cand30p 1 administrative decision judicial review act 1977 cth 5judiciary act 1903 cth 39bexplanatory memorandum veteran affair legislation amending act 1994 cth schmidt v repatriation commission 2004 fca 1158cooper brooke wollongong pty ltd v federal commissioner taxation 1981 hca 26 1981 147 clr 297mills v meeking 1990 hca 6 1990 169 clr 214project blue sky inc v australian broadcasting authority 1998 hca 28 1998 194 clr 355repatriation commission v hayes 1982 fca 107 1982 43 alr 216starcevich v repatriation commission 1987 76 alr 449david ronald smith v commonwealth australiavid 371 2008ryan j24 june 2009melbournein federal court australiavictoria district registryvid 371 2008between david ronald smithapplicantand commonwealth australiarespondentjudge ryan jdate order 24 june 2009where made melbournethe court order decision decision repatriation commission 20 december 2007 31 july 2008 recover applicant sum 55 262 75 representing amount allegedly overpaid way disability pension set aside declaredthat event happeneds 30cof theveterans entitlement act 1986 cth application lump sum payment compensation received applicant pursuant term settlement action 20785 1997 supreme court new south wale respondent pay applicant cost application court taxed default agreement note settlement entry order dealt order 36 federal court rule text entered order located using esearch court website federal court australiavictoria district registryvid 371 2008between david ronald smithapplicantand commonwealth australiarespondentjudge ryan jdate 24 june 2009place melbournereasons judgmentthis matter involves narrow point statutory construction arising certain specific uncommon fact applicant mr smith received payment settlement claim damage physical injury allegedly suffered result negligence commonwealth question whethers 30cof theveterans entitlement act 1986 cth act effect requiring payment offset war service pension mr smith receiving recovered payment fruit action brought common law repatriation commission commission taken view 30c act require payment offset mr smith war service pension sought pursuant tos 5of theadministrative decision judicial review act 1977 cth ands 39bof thejudiciary act 1903 cth judicial review commission decision factual backgroundmr smith served member royal australian navy 29 july 1963 28 july 1972 matter currently court requires reference two aspect service first instance occurred board hmas melbourne 10 february 1964 collided australian water hmas voyager result 80 member crew latter vessel perished secondly mr smith served royal australian navy vietnam october 1969 october 1970 attached 135thassault helicopter company united state army disputed operational service within meaning act 26 november 1991 mr smith made claim act disability pension ground suffering duodenal ulcer post traumatic stress disorder ptsd well tinea pedis tinea claim rejected necessary refer rest claim accepted commission 8 january 1992 effect 26 august 1991 decision delegate commission dated 23 december 1992 contained passage examined relevant service document medical history statement made support claim find veteran post traumatic stress disorder duodenal ulcer may causally linked aggravated service follows therefore reasonable hypothesis connecting duodenal ulcer post traumatic stress disorder veteran war service established accordingly part claim granted 1997 mr smith commenced proceeding supreme court new south wale alleging relevantly collision melbourne voyager caused negligence officer commonwealth result suffered loss damage proceeding initially defended later mediated settled 11 december 2007 confidential basis term settlement provided particular filed supreme court proceeding amended amongst thing deleting particular disability sub paragraph viii directed ptsd sub paragraph xl duodenal ulcer stipulated 2 verdict judgment plaintiff sum 250 000 00 3 defendant pay plaintiff party party cost agreed assessed defendant liberty make statutory deduction amount verdict respect payment made plaintiff thesocial security act 1991 thesafety rehabilitation compensation act 1988 thehealth service compensation act 1995 themilitary compensation rehabilitation service act 2004or theveterans entitlement act 1986 defendant deduct judgment pay medicare australia sum 25 000 00 10 judgment sum pending issue valid notice charge medicare australia interest shall payable respect judgment payment made within 28 day either date judgment orreceipt original authority receive satisfactory defendant orreceipt defendant advice notice writing centrelink department veteran affair military compensation rehabilitation service amount due whichever latter interest paragraph 6 shall recoverable plaintiff respect part judgment monies deduction specified paragraph 4 5 settlement arrived department veteran affair evidently took view delegate repatriation commission put letter mr smith solicitor dated 20 december 2007 mr smith paid total 58 099 94 disability pension respect common condition claimed compensation supreme court 26 august 1991 sic amount recoverable lump sum compensation paid mr smith relation disability pension undersection 30cof theveterans entitlement act 1986 vea therefore request delegate repatriation commission amount 58 099 94be paid receiver public monies relation overpayment disability pension liability mr smith make repayment existed imposed 30p 1 act provides amount pension payable paid part respect incapacity veteran war caused injury disease ii death veteran b section 25a 30c 30d amount pension payable veteran dependant amount equal amount pension paid recoverable veteran dependant case liability imputed mr smith depended amount pension allegedly overpaid payable section 30c letter dated 31 july 2008 delegate commission calculated amount 55 262 75 commission continued insist amount pension paid applicant act repayable money received settlement common law action appears correspondence commission applicant solicitor commission time maintained stance supported 30c act actsection 30c 1 act provides 30clump sum compensation payment 1 lump sum payment compensation made person veteran dependant veteran b compensation payment paid respect incapacity veteran injury disease death veteran c person receiving subsequently granted pension part respect incapacity injury disease death following provision effect person taken receiving payment compensation rate per fortnight determined instruction commonwealth actuary e person taken receiving payment period person life determined instruction commonwealth actuary f period referred paragraph e begin day lump sum payment made person ii day pension becomes payable person whichever earlier day operative effect person taken 30c receiving payment compensation rate per fortnight determined instruction commonwealth actuary given sub s 4 5 act provide 4 subject subsection 6 person taken receipt payment compensation particular rate per fortnight subsection 1 2 3 b subsection pension referred paragraph 1 c 2 c 3 c would payable person particular rate per fortnight lump sum payment made rate per fortnight pension reduced rate per fortnight compensation 5 subsection 4 rate per fortnight compensation equal exceeds rate per fortnight pension pension payable person sufficiently appearing term 30c intention combat double dipping operation evidently prevent veteran paid money way case common law compensation well way pensionin respect injury much clear term explanatory memorandum amending act inserted 30c theveterans affair legislation amending act 1994 cth memorandum recited division 4 part iv theveterans entitlement actprovides compensation payment damage recoverable law whether commonwealth otherwise offset pension payablefor injury disease deathfor compensation damage paid act set basis converting lump sum payment compensation damage fortnightly amount purpose calculating amount compensation damage recovered commonwealth also provides adjustment ongoing payment pension act make provision repatriation commission require person receiving pension take legal proceeding recover damage third party circumstance appears injury disease death give rise possibility liability payment commonwealth award compensation damage amount equal amount pension paid time compensation damage payment made commonwealth liability compensation damage reduced total amount pension paid respect injury disease death compensation damage payable provision also allow recovery commonwealth pension payable reason payment compensation damage person emphasis added however fact two discrete type payment made veteran necessarily attract operation 30c rather 30c act requires context case answer two question first injury pre existing pension paid secondly amount recovered common law damage compensate veteran question answered light fact found pleaded term settlement injury disease death furnishes answer question offset provided 30c arise present case fact outlined disclose pension granted 1992 primarily injury mr smith sustained result service vietnam duodenal ulcer ptsd mr smith suffers determined commission 1992 war caused purpose 9 act determination necessarily flowed eligibility assessment conducted pt ii act operation described follows spender j inschmidt v repatriation commission 2004 fca 1158 5 section 13 act imposes upon commonwealth liability pay pension eligible person section 14 deal making claim pension 15 deal making application increase pension section 17 requires secretary department veteran affair investigate claim application section 19 give repatriation commission duty determining claim application pension determine rate pension payable 1992 pension granted mr smith consequence commission finding war caused injury existed date rendered eligible pension injury form duodenal ulcer ptsd arising service vietnam pleading particular filed new south wale supreme court show common law damage contrast injury suffered mr smith result collision melbourne voyager particular identify severe shock injury amendment consent noted 9 sole particular disability symptom injury severe anxiety depression follows injury injury mr smith compensated settlement common law action arising collision melbourne voyager term 30c 1 therefore next question whether time received lump sum settlement common law action mr smith receiving war service pension respect incapacity fromthatinjury ie injury suffered result collision fact recounted compel negative answer question pension received respect injury caused mr smith war service vietnam follows 30c available require lump sum received settlement common law action set pension payable act submission mr niall counsel mr smith made reference several familiar authority statutory interpretation consider interpretation 30c adopted give effect legislative context section seecooper brooke wollongong pty ltd v federal commissioner taxation 1981 hca 26 1981 147 clr 297 304 reading word statutory context seemills v meeking 1990 hca 6 1990 169 clr 214 235 242 3 according purposive construction required byproject blue sky inc v australian broadcasting authority 1998 hca 28 1998 194 clr 355 381 2 mr niall also submitted however construction 30c contended essentially accepted reinforced beneficial remedial nature act citedrepatriation commission v hayes 1982 fca 107 1982 43 alr 216 per keely j 219 persuasive body authority support benevolent interpretation legislation imputed confer social benefit see eg starcevich v repatriation commission 1987 76 alr 449 454 case view recourse canon construction kind necessary word section ordinary meaning express clear legislative intent war service pension reduced eliminated receipt lump sum payment received compensation injury pension would payable conclusionfor reason endeavoured explain decision decision commission 20 december 2007 31 july 2008 recover mr smith sum 55 262 75 representing amount allegedly overpaid way disability pension must set aside amended application mr smith seek also declaration applicant remains entitled receive disability pension benefit pursuant act consider declaration term would wide circumstance canvassed reason may impinge mr smith entitlement receive disability pension benefit act however declaration event happened 30 act application lump sum payment compensation received mr smith pursuant term settlement action 20785 1997 supreme court new south wale respondent must pay applicant cost application court certify preceding twenty five 25 numbered paragraph true copy reason judgment herein honourable justice ryan associate dated 24 june 2009counsel applicant mr r niallsolicitor applicant riordan legal pty ltdcounsel respondent mr p ginnanesolicitor respondent australian government solicitordate hearing 16 april 2009date judgment 24 june 2009

Ms F Emery v Eucla Motor Hotel [1996] WAIRComm 31 (28 February 1996).txt

m f emery v eucla motor hotel 1996 waircomm 31 28 february 1996 1150 ofwestern australian industrial relation commissionindustrial relation act 1979ms f emery eucla motor hotel 1150 1995 commissioner p e scott 28 february 1996reasons decisionthe commissioner application m emery pursuant tosection 29 1 b theindustrial relation act 1979that unfairly dismissed employment applicant say occurred employer sought unilaterally change contract employment refused advised work applicant say reinstatement impracticable therefore seek compensation lieu reinstatement respondent say applicant contract employment required perform whatever duty allocated within capacity refused repeatedly undertake work employer directed perform accordingly evinced intention repudiate contract circumstance m emery employment described conflicting evidence given representative respondent one owner eucla motor hotel mr steve patupis m rasa patupis originally interviewed m emery job evidence m emery say engaged interview short job advertised advised position available applicant worked hotel industry number year new zealand australia gave evidence worked waitress assistant manager undertaken work associated waitressing including bar work cooking food preparation cashing roadhouse also mopping floor applicant say position respondent waitress work ancillary main classification hand mr patupis say employee required whatever work necessary size isolation business need employee fit necessary engage people specialised classification applicant say dispute party led termination contract employment arose mr patupis applicant discussion regarding arrangement day duty notwithstanding dispute said regard end result m emery taking day subject m patupis available fill m patupis busy work commitment felt tired take work therefore m emery able take day previously arranged conversation mr patupis advised thought m patupis selfish respect m emery say point believed sort retribution event within number day occurring m emery arranged took two day employer due staff taking leave etc needed someone fill motel chose m emery upon return friday 6 october 1995 applicant advised mr patupis following monday report duty motel unit rather undertake work restaurant take away area m emery indicated wish work like m emery say mr patupis advised would new job new bos supervisor motel area yvonne say mention particular reason although m emery say asked done wrong mr patupis said argued much appears meaningful productive discussion regard matter day sunday 8 october 1995 approximately 12 20pm mr patupis advised applicant next day would housemaiding work say advised wish work ended discussion following day applicant arrived work 7 55am prepared work restaurant take away area went see mr patupis party agree respondent directed applicant three time undertake work motel occasion refused mr patupis advised applicant work inside applicant alleges mr patupis asked would like collect pay discussion arrangement permanent temporary simply applicant required report motel work appears applicant left mr patupis office attend work returned collect pay employment separation certificate mr patupis noted termination employment voluntary basis applicant say believed due comment fellow employee effect mr patupis intended force move motel unit work alleges knew wish perform purpose forcing resign basis applicant alleges dismissal constructive dismissal applicant appears also impression respondent reason unhappy comment made m patupis selfish incident regarding day addition applicant say mr patupis picked employee although unable elaborate also appears alleging part mr patupis intention terminate employment may related mr patupis unhappy applicant standard dress number occasion required return home change another occasion required comb hair satisfied matter involved termination applicant contract employment matter constructive dismissal applicant evince intention repudiate contract refusing perform work within contract employment thus allowing employer accept repudiation terminate contract commission referred number authority advocate party term constructive dismissal mr crossley applicant referred commission brown western australian industrial law page 194 section 914 note constructive dismissal 914 intolerable behaviour employer force employee resign regarded constructive dismissal purpose thes 29 b jurisdiction full bench intransport worker union australia wa branch v eastern goldfield transport board 1989 69 waig 1895 theeastern goldfield transport boardcase 48at 1897 making extensive review authority constructive dismissal said employee constructively dismissed may leave employment without giving requisite notice ie conduct employer amount repudiation contract test whether employer breach contract fundamental kind entitle employee regard released obligation contract 49 principle govern constructive dismissal reiterated full bench infederated clerk union australia wa branch v cargill australia ltd 1990 70 waig 2553 2555 follows 1 existence threat could cause employee resign amount constructive dismissal 2 fact act resignation subsumed act dismissal alter essential character transaction party 3 employee terminates contract reason employer conduct constructively dismissed 50 commission also referred yerbury dictionary industrial relation 1992 page 97 deal employer conduct leaf employee alternative leave employment commission referred r taylor dominion mining 72 waig 1642 noted employer ought known better provided procedural fairness sought advice process termination applicant say constructive dismissal brought employer seeking unilaterally vary contract employment employee flatly refusing commission referred brown supra page 223 issue unilateral variation employment term employer dealt note employer entitlement unilaterally change term employee contract employment employee disadvantage amount breach contract respondent referred commission decision full court industrial relation court australia gunnedah shire council v raymond grout 661 1995 19 12 1995 dealing repudiation employee employee evincing intention bound term contract find based evidence mr patupis m patupis upon concession made applicant cross examination engaged work respondent particular limited capacity area whilst may nominally title waitress purpose fact applicant could required undertake work within capacity directed employer understood case fact worked manner evidence applicant indicated number occasion worked motel area accordance direction employer done day time permanent allocation permanently allocated work particular area within employer business use title classification waitress case title often good indicator role scope work performed however fact case title reflect whole range work performed contract employment use indicator actual duty performed limited examination chief applicant gave evidence engaged work primarily restaurant takeaway area page 14 transcript following evidence given would say commission told go service motel unit told beginning told well like stuck busy ask told go motel day full time different mind job like day changeover stuck basically told except case well told full time right employment motel many time service motel unit probably think twice two two three time pretty yeah occasion told go volunteer twice know definitely told know definitely one voluntary really busy first went time one girl motel helped dish night time thought would fair time go clean motel help kitchen first walked see needed help variety bash going 500 people stuck one girl waitressing one cooking busy walked helped knew going help like housemaiding normal shift afternoon full shift also got paid stuck busy one girl helped know night coach helped u right long work motel 13 month 13 month saying worked servicing motel unit three time 13 month yeah first interview rasa tell work anywhere business besides restaurant also page 19 m emery gave following evidence three occasion went motel unit made clear either rasa mr steve expected part job normally get told normally m emery gave evidence circumstance previous employment expectation understanding regarding employment respondent said page 39 40 transcript multi talented lot thing uh huh quite usual isolated community expected pitch help yes sort capacity yes would basis upon took employment yes right yes got job eucla motel put exactly basis upon job offered accepted yes correct yes got job eucla motel put exactly basis upon job offered accepted yes correct yes knew first day employment whilst job might primarily involve waitress type waiting type duty would expected bog pitch wherever needed yes true yes said beginning evidence chief told thing chris probably knew going like said put actually applied job rasa patupis sitting behind interviewed job yes yes put clearly recall telling employed employed motor hotel prepared bog job required beyond waitressing say housemaiding something like really say much beginning told said oh done said come couple hour showed restaurant takeaway kitchen said mop floor inaudible saying tell expected waitressing tell going like housemaiding presumed stuck would assumed correctly might add normally would expected duty yes accepted term employment yes even though might spoken m patupis yes also page 42 m emery confirmed arrangement put another way already covered first accepted employment agreed normal environment employee work necessary done within capacity yes accept yes accepted employed eucla motel understood normal thing done employment situation yes therefore put one step understood employer could request time work within capacity yes term employment yes indeed put time work fact help area confirmed yes way clear applicant evidence confused contradictory view contract employment one hand believed could compelled perform work wish perform could required perform shift two could moved permanently motel unit fact understood entered contract employment could required whatever work necessary evidence contradictory unreliable basis accept evidence mr patupis m patupis applicant contract employment require undertake whatever work reasonably directed perform applicant decided prepared work motel unit evidence evidence mr patupis become argumentative employer found somewhat frustrating deal result explained mr patupis intended short time replace someone leave believe reference argumentative way reason allocation work prepared discus argumentative find basis upon mr patupis decided m emery undertake work motel unit genuine one need fill position whilst another employee away intention applicant undertake work short term although resolved would happen later decision choose m emery work rather employee allow cool may may expressed applicant appears lack clear communication may played part erroneous belief intended force resignation event employer employee decide perform work employee able directed work applicant refused work directed number occasion refusal evidence premeditated deliberate indicated evidence believed employer intending create situation would result termination others discussed deal matter appears applicant mind made employer attempting something prepared comply set course refusing perform work lawfully required perform furthermore applicant alternative flat refusal undertake work yet intention argumentativeness prevented looking option however already made mind employer intention force leave acted accordingly applicant made assumption employer motif intention sustained evidence told arrangement applicant response whilst attempting elicit information clarify position argumentative set course designed make belief employer motif intention reality basis find applicant acted manner evinced intention repudiate contract employment refusing undertake work directed accordance contract employment employer entitled believe applicant intention continuing contract employment employer simply acted formally terminate contract basis whilst employer took final act termination response employee repudiation contract employer behaviour could described intolerable fundamental breach contract constitute constructive dismissal section 23aa 1 theindustrial relation act 1979provides onus employer show ground commission could find dismissal justified subsection 3provides purpose section 23aa dismissal justified reason connected employee capacity conduct case employee conduct provided employer basis upon justify dismissal basis find termination applicant employment carried unfairly employer response applicant clear intention repudiate contract employment refusing perform accordance contract employment based confused view contract employment erroneous view employer intention motif mr jones urged commission found application sustained award cost respondent accordance withsection 27 1 c 27 1 except otherwise provided act commission may relation matter b c order party matter pay party cost expense including expense witness specified order cost shall allowed service legal practitioner agent mr jones say basis applicant whilst may great understanding detailed aspect contract law knew obliged obey employer lawful command contract employment required perform duty including motel work therefore must known consequence refusal work capacity engaged basis respondent say application pursued without reasonable expectation success constitutes vexatious prosecution claim satisfied applicant confused illogical genuine belief contract employment say light fact whilst applicant conceded cross examination contract employment established basis employer business isolated location size nature past experience required perform whatever duty within capacity still seemed belief work involved restaurant take away area required work another area employer lack communication intention long term respect move motel unit assist understanding situation employer responsibility communicate effectively employee case employer failed advise applicant would likely short term employer responsibility explain intention basis satisfied sufficient cause employee required pay respondent cost ground set mr jones order dismissal application issue

Application by Border Express Pty Ltd [2013] FWC 7627 (30 September 2013).txt

application border express pty ltd 2013 fwc 7627 30 september 2013 2013 fwc 7627fair work commissiondecisionfair work act 2009s 185 enterprise agreementborder express pty ltd ag2013 8756 road transport industrycommissioner robertssydney 30 september 2013application approval border express pty ltd transport employee melbourne site enterprise agreement 2013 2016 1 application made approval enterprise agreement known theborder express pty ltd transport employee melbourne site enterprise agreement 2013 2016 agreement application made pursuant tos 185of thefair work act 2009 act border express pty ltd border express agreement single enterprise agreement 2 6 september 2013 transport worker union australia twu bargaining representative agreement filed notice unders 183of act supporting approval agreement wishing covered agreement 10 september twu rescinded support approval agreement sole ground agreement provision relating part time employee clause 10 4 3 would result agreement passing better overall test boot relation class group employee twu oppose approval ground relating boot twu allege technical deficiency agreement making process application approval twu take position objection approval rejected seek covered agreement approved 3 modern award applies theroad transport distribution award 2010 award 4 agreement provision relation part time employee relevantly found clause 10 4 16 1 10 4 part time employee entitlement agreement shall prorate proportion entitlement set agreement full time employee 10 4 1 employee may employed permanent basis work regular day regular hour le 38 hour per week 10 4 2 hour work determined altered agreement employer employee 10 4 3 part time employee may offered additional work 38 hour per week ordinary pay 16 1 ordinary hour work shall exceed 40 hour per week 16 1 1 part time employee may employed permanent basis work regular day regular hour le 38 hour per week 16 1 2 part time employee may offered additional work 38 hour per week ordinary pay 5 date making agreement cover part time employee 6 clause 12 4 award provides 12 4 part time employment part time employee employee engaged work le 38 ordinary hour per week b commencing part time employment employee employer must agree upon hour worked employee day upon worked commencing finishing time work ii classification applying work performed c except otherwise provided award part time employee entitled paid hour agreed upon accordance clause 12 4 b term agreement may varied consent e term agreement variation must writing retained employer copy agreement variation must provided employee employer f part time employee must paid per hour 1 38th weekly rate prescribed clause 15 classification minimum wage rate classification employee engaged part time employee must receive minimum payment four hour day engaged g term award apply pro rata part time employee basis ordinary weekly hour full time employee 38 h time worked excess agreed hour referred clause 12 4 b paid appropriate overtime rate 7 application came hearing via recorded telephone link 13 september 2013 border express represented national people culture manager m l kearneyand m williams australian industry group twu represented mr h smith 8 company submits clause 10 4 inconsistent award provision award agreement read conjunction company contends right offer additional hour employee turn reject offer hour company submits essence agreement reached employee employer variation ordinary hour per clause 12 4 award allows term varied consent 9 company state clause occurs identical form eight current border express agreement state territory approved commission agreement include border express pty ltd transport employee act enterprise agreement 2012 2016 approved 5 march 2012 clause 9 5 border express pty ltd transport distribution facility employee south australia agreement 2011 2014 approved 10 november 2011 clause 9 4 andborder express pty ltd transport employee queenlsand enterprise agreement 2011 2014 approved 10 april 2012 clause 9 3 provision occurred predecessor agreement one consideration decision 10 twu submits clause 10 4 3 agreement provides part time employee may work additional hour 38 hour per week ordinary pay award provides part time employee must agreed hour work agreed starting finishing time commencing employment time worked excess outside agreement hour would paid appropriate overtime rate twu said part time employee would disadvantaged agreement 11 border express argues additional hour offered employee rather required work regard m williams said look clause agreement compared road transport distribution award actually inconsistent instead would submit read conjunction clause 10 4 agreement state part time employee may offered additional work 38 hour ordinary pay reiterated clause 16 1 2 state part time employee may offered additional work 38 hour ordinary pay use word may offered crucial distinguishes employee required work additional hour without receiving overtime payment fact disagree twu broad notion employee required work overtime hour would paid overtime rate 1conclusion determination 12 act requires boot must considered occasion agreement come commission approval automatic agreement approved predecessor similar existing agreement contain identical provision held relevant time offend boot however existence provision predecessor agreement several current border express agreement approved member commission cannot totally without influence 13 infederal express australia pty ltd federal express corporation2commissioner cargill helpfully summarised way boot applied thearmacell3andnteiu4full bench determined requires identification term agreement beneficial employee compared relevant award term le beneficial overall assessment whether employee would better agreement citation added 14 application border express form f17 set number area employee agreement better wage condition employment compared award application concedes area provision agreement would inferior award however twu submits boot met relation possible additional hour performed putative part time employee section 193 act requires interest prospective employee also subject boot 15 contention employee better overall agreement agree view therefore confine examination part time employee hour work issue 16 turn specifically examination clause 10 4 agreement comparison provision clause 12 4 award 17 initially important note provision clause 2 2 agreement 2 2 agreement shall read conjunction theroad transport distribution award 2010 award varied time time event inconsistency term agreement award agreement shall prevail extent inconsistency 18 clear fair reading clause 12 4 award prescribes part time employee employer must agree prior commencement employment hour worked employee day upon hour worked commencing finishing time work however agreement may formally varied consent employment commenced worker perform excess agreed hour work paid overtime rate 19 clause 10 4 agreement also provides part time employee may employed permanent basis work regular day regular hour le 38 hour per week hour determined altered agreement employer employee clause 10 4 go say part time employee may offered additional work 38 hour per week ordinary pay clause 16 1 agreement repeat provision 20 apparent clear inconsistency provision clause 12 4 award clause 10 4 16 1 agreement noted inconsistency provision award agreement resolved applying agreement 21 bare summary award written agreement must reached employer employee number span hour worked hour worked outside written agreement paid overtime rate agreement also provides agreement reached employer employee hour worked span hour go provide additional hour worked outside agreed paid single time rather overtime rate view provides clear disbenefit part time employee would mean employee would better overall agreement 22 noted satisfied overall proposed agreement meet boot exception payment made part time employee work performed outside agreed number span hour agreement failure satisfy boot regard necessary fatal approval regard accept suitable undertaking border express make clear hour performed outside already agreed employer relevant employee paid overtime rate per provision award border express provide suitable undertaking within seven day date decision suitable undertaking provided approve agreement commissioner1transcript pn148 2 2013 fwc 6022 3 2010 fwafb 9985 4 2011 fwafb 5163 printed authority commonwealth government printer price code pr542716

Auspine Ltd v H S Lawrence & Sons Pty Ltd [1999] FCA 1749 (21 December 1999).txt

auspine ltd v h lawrence son pty ltd 1999 fca 1749 21 december 1999 last updated 30 october 2006federal court australiaauspine ltd v h lawrence son pty ltd 1999 fca 1749practice procedure particular discovery circumstance order made application cross examine affidavit discovery whether affidavit conclusiveauspine limited v h lawrence son pty ltd anorno sg 28 1997o loughlin j21 december 1999adelaidein federal court australiasouth australia district registrysg 28 1997between auspine limitedapplicantand h lawrence son pty ltdfirst respondentemail limitedsecond respondentjudge loughlin jdate order 21 december 1999where made adelaidethe court order 1 respondent bring short minute order term consistent reason within twenty eight day date 2 liberty speak minute 3 party pay cost incidental proceeding order day made note settlement entry order dealt order 36 federal court rule federal court australiasouth australia district registrysg 28 1997between auspine limitedapplicantand h lawrence son pty ltdfirst respondentemail limitedsecond respondentjudge loughlin jdate 21 december 1999place adelaidereasons judgmentthe nature proceedings1 proceeding applicant auspine limited auspine sue h lawrence son pty ltd lawrence parent company email limited email claim damage including exemplary damage result purchase lawrence whole issued share capital three company cowells pty ltd cowells investment ltd cowells group ltd collectively referred hereafter cowells cowells group four issue presently court first concern claimed inadequacy auspine discovery respondent lawrence email seek order particular discovery document second relates application respondent order production document thirdly respondent seek leave cross examine one auspine senior officer content two affidavit dealt subject auspine discovery finally auspine filed notice motion seeking summary judgment respondent failure comply certain order court 2 29 june 1995 settlement date time beforehand material proceeding company cowells group wholly owned subsidiary lawrence turn wholly owned subsidiary email early 1995 business cowells group advertised sale business orientated timber trade general building product auspine stage carried business timber processor manufacturer responded advertisement 3 case unusual twist auspine alleging respondent either induced auspine acquire share result statement representation materially false contrary presently advised auspine accepts time respondent passed information auspine information given statement made behalf respondent materially correct truthful 4 auspine complaint found subpars 84a 2 following amended statement claim subparagraph read follows resolving enter share sale agreement auspine relied representation believing representation materially correct truthful time share sale agreement subparagraphs 84a 3 84a 4 set allegation crystallise auspine cause action plead 84a 3 change circumstance cowells business material sale share period due diligence share sale agreement material change 84a 4 material change contained document described paragraph 68 69 70 71 72 hereof described paragraph 74 75 hereof follows plea respondent obligation failed disclose auspine material change consequence auspine suffered loss respondent denied liability history proceedings5 proceeding matter commenced along ago 27 march 1997 auspine filed application court since progress matter held interlocutory issue apparent inability litigant identify agree upon issue dispute 12 november 1997 court ordered party file serve verified list document 30 january 1998 last quarter 1999 party still dispute adequacy auspine discovery 6 direction hearing held 3 february 1998 date party made discovery however mention made subject time taken hearing devoted fixing date hear argument respondent notice motion order sought applicant amended statement claim struck matter subsequently court either argument motion direction hearing 3 march notice motion argued 31 march judgment delivered 5 may direction hearing appear substantive discussion subject discovery party associate report listing date 7 24 august 1998 auspine filed notice discovery requiring discovery document respondent verification within fourteen day although auspine date given discovery file verified list document 9 september coincidentally respondent filed verified list date 8 direction hearing held 30 october 1998 seven week elapsed since filing auspine verified list document yet specific complaint inadequacy raised behalf respondent occasion passing reference made subject transcript reveals counsel purportedly counsel auspine said see much merit placing time limitation relation application better discovery may document come light stage course preparation case may necessitate application feel party hamstrung direction requiring put application within certain specified period time fact might counsel respondent made statement transcript record counsel auspine said response cavil honour event seems safe infer counsel intimating future work might generate discoverable document inference neither side complaining adequacy side discovery support conclusion found affidavit 12 october 1999 norman lucas stated 23 december 1998 onwards respondent asserted continue assert applicant failed give full proper discovery proceeding 9 mr lucas solicitor employ messrs clayton utz solicitor respondent subject supervision mr klimt solicitor record respondent responsibility daily carriage matter passage affidavit indicates three month passed since auspine gave discovery respondent raised complaint adequacy 10 auspine list discovered document extensive extends 150 page list many thousand document even regard fact discovery long overdue one would thought 30 october 1998 seven week would sufficient time within digest information auspine supplied discovery one would thought respondent might position signal doubt adequacy discovery date even though may completed inquiry instead direction hearing devoted fashioning time table party file serve witness statement expert report regard timetable next direction hearing listed 16 february 1999 11 party filed supplementary list document auspine 8 january 1999 also 10 march 1999 respondent 15 february auspine two supplementary list added 300 document list discovered document 12 16 february 1999 respondent raised court question adequacy auspine discovery also sought extension time within comply earlier order filing witness statement expert report understanding stage auspine filed served statement report respondent filed one two witness statement particular discovery13 18 march 1999 respondent filed notice motion sought order auspine file serve affidavit compliance federal court rule order 15 rule 8 respect following document followed list thirty document group document however 6 may 1999 amended notice motion filed whereby document sought reduced thirty twenty four order 15 rule 8 provision rule court deal subject particular discovery provides follows stage proceeding appears court evidence nature circumstance case document filed proceeding ground belief document class document relating matter question proceeding may may possession custody power party court may order party file affidavit stating whether document document class possession custody power possession custody power parted become b serve affidavit party 14 respondent original notice motion supported affidavit dated 18 march 1999 mr lucas march affidavit mr lucas exhibited affidavit copy correspondence solicitor party showing respondent request particular discovery activated part content witness statement expert report earlier filed auspine particular letter messrs clayton utz dated 2 february 1999 seeking discovery twenty two document group document precursor subsequent notice motion eight document added notice motion prepared 15 messrs phillips fox solicitor auspine responded messrs clayton utz letter 2 february letter dated 16 february saying twenty two request nine already discovered seven would discovered within fourteen day instruction needed respect five last twenty two document fact group twelve different document messrs phillips fox said document sought paragraph 22 either discovered client custody power control yet receive instruction relation paragraph 22 g h letter dated 3 march 1999 messrs phillips fox wrote messrs clayton utz addressing document respect said letter 16 february taking instruction answer summarised fashion three request said document relevant request discovered document 288 applicant forthcoming supplementary list document identified set minute wrote destroyed course moving office auspine building centre september 1998 balance document sought respondent solicitor auspine wrote document nature sought exist 16 earlier noted auspine second supplementary list document filed 10 march 1999 day copy posted respondent solicitor respondent satisfied solicitor wrote 17 march 1999 client accept client assertion certain document exist client properly complied obligation discovery addition respondent solicitor enlarged scope document respect particular discovery sought writing addition category document set letter 2 february 1999 client also given discovery following followed list nine document group document messrs clayton utz concluded letter writing light inadequacy client discovery client put notice able serve expert evidence certain lay evidence motion concerning better discovery determined client opportunity inspect document 17 messrs clayton utz since explained need better discovery inspection file serve expert report certain lay witness statement respondent delay filing serving witness statement expert report another source contention party auspine complaining dispute adequacy discovery excuse respondent complying court order 18 respondent amended notice motion seeking order particular discovery supported second affidavit may affidavit mr norman lucas sworn 5 may 1999 mr lucas explained may affidavit supplementary earlier march affidavit earlier affidavit mr lucas exhibited copy extensive correspondence passed solicitor 22 december 1998 17 march 1999 correspondence ongoing since may affidavit deposed respondent obtained copy document referred applicant original list supplementary list supplementary list inspected applicant discovery par 6 may affidavit mr lucas said primary purpose inspection applicant discovery ascertain whether could identify within applicant discovery document might fall within category document set motion 19 mr lucas addressed twenty four category document group document set notice motion particular discovery procedure adopted three step first listed category appropriate identified solicitor respondent specifically requested discovery production document category referring correspondence annexed march affidavit secondly referred source allegedly pointed existence document case mention document said made witness statement filed auspine behalf case allegedly discovered document turn referred document discovered another source statement allegedly made potential witness respondent final step assert case argument accepted favoured finding particular document would existed would may relevant issue trial 20 list hereunder first two twenty four document give indication nature problem first twenty four document described amended notice motion term preliminary analysis report prepared mr mcglone referred paragraph 69 outline statement dated 17 december 1998 including working paper note draft 21 mr mcglone hold position auspine describes strategic planner intended witness trial capacity witness statement prepared filed auspine behalf paragraph 69 statement following passage appears receiving information memorandum prepared preliminary analysis report consolidating auspine cowells profit balance sheet forecast prepared measure impact key ratio letter 16 february 1999 messrs phillips fox replied demand discovery report saying document relation category discovered helpful reply applicant original list document concluded document numbered 2649 2649 document listed several place subparagraphs numbering system auspine supplementary supplementary list document accounted 300 document fourth list later filed 16 june 1999 mr mcglone affidavit 11 june accounted another forty four document auspine claimed report discovered would simple cost efficient exercise auspine identify number one list preferred requesting party great cost expending much time laboriously cross checking thousand entry whilst search made report day court attempting contain cost litigation look legal practitioner adopt practical common sense approach matter day deliberate unjustified lack cooperation longer afforded 22 return mr lucas may affidavit answer auspine claim report discovered mr lucas deposed term upon inspection applicant discovery locate preliminary analysis report working paper note draft compiled preparation report 23 second group document sought respondent described paper handwritten note document recording evidencing conversation took place employee auspine employee agent cowells meeting 21 22 march 1995 24 par 104 witness statement mr mcglone said following completion inspection cowells document 22 march 1995 sic responsible compiling due diligence report member due diligence team forwarded note taken due diligence due diligence adrian de bruin michael stratman mainly responsible assessing acquisition cowells mr de bruin managing director auspine mr stratman company chief financial officer company secretary 25 mr lucas stated affidavit document identified might fall within category document 279 original list locate applicant discovery handwritten note document evidencing recording conversation took place employee auspine employee agent cowells meeting 21 22 march 26 auspine answer request say document discovered without making attempt identify discovered repeat earlier remark helpful reply court come expect degree cooperation solicitor case prepared trial expedition without incurring unnecessary cost achieved many area without suggestion client right might compromised one area order 6 may 199927 respondent amended notice motion particular discovery called mention 6 may 1999 date court ordered extent party maintains document type sought opponent exist party shall cause one senior executive officer depose oath affirmation within 14 day date due search inquiry made document sought way better discovery exist document longer exist destroyed party shall cause deponent depose approximate date destruction full detailed particular circumstance relating destruction 28 auspine failed file requisite affidavit within designated period fourteen day order made 31 may extending time within attend filing 4 june hearing respondent amended notice motion particular discovery listed argument 16 june two day set aside hearing hearing vacated however auspine failure file appropriate affidavit would comply court order 6 may 29 16 june 1999 auspine filed affidavit june affidavit mr mcglone affidavit dated 11 june said prepared compliance court order 6 may mr mcglone set length step taken auspine comply court order ensure full complete discovery given first place said originally caused comprehensive review search document undertaken initially attending discovery exercise however result order court 6 may 1999 deposed caused review search described paragraph 6 hereof repeated added caused undertaken due search inquiry officer employee agent auspine whether document referred mr lucas affidavit respondent amended notice motion exist exist mr mcglone explained 24 may 1999 9 june 1999 discussion communication thirteen named person part due search inquiry adding result search inquiry follows 9 1 document possession custody power applicant previously discovered within document category additional document discovered applicant auspine amended supplementary list document filed today annexed hereto marked mag1 true copy applicant amended supplementary list document dated 11 june 1999 and9 2 apart privileged document document enumerated applicant list document dated 8 september 1998 8 january 1999 9 march 1999 previous list document 11 june 1999 collectively including previous list document list document document material matter issue suit referred respondent amended notice motion otherwise possession power control applicant mr mcglone addressed twenty four document group document listed respondent amended notice motion setting result inquiry relation twenty four document 30 set hereunder answer respect first two category preliminary analysis report note meeting 21 22 march 1995 report said 11 1 document discovered list document 11 2 document exists electronic form 11 3 preliminary analysis report destroyed march april 1995 superseded later draft became april due diligence report answer marginally improves position earlier stated messrs phillips fox letter 16 february 1999 marginally reader still left wonder huge volume entry might find relevant document referred par 11 1 mr mcglone affidavit 31 request note meeting met le success enquirer told mr mcglone june affidavit document discovered list document document category exist like answer given respect eight twenty four category document production documents32 following filing mr mcglone june affidavit respondent issued notice motion 12 july 1999 seeking order pursuant 15 r 11 1 applicant produce respondent inspection eight document identified mr lucas accompanying affidavit mr lucas deposed read mr mcglone june affidavit reviewed auspine original list supplementary list document based review unable locate document discovered applicant list document fell within category 1 1 b 1 c 1 1 j 1 j vi 1 r 1 x eight category identified respondent amended notice motion 5 may 1999 respect mr mcglone deposed june affidavit already discovered 33 issuing notice motion respondent sought unsuccessfully information letter dated 17 june 1999 serving notice produce reply messrs phillips fox dated 23 june 1999 show misconceived nature respondent request asking production document respondent effectively asking auspine identify reference document number relevant list document document auspine said already discovered reply address issue said point affidavit sworn michael mcglone 11 june 1999 irresistibly plain document category indicated discovered matter client defacto way impose client order discovery issue topic indeed issue topic client unilaterally selected 34 order 15 rule 11 1 provides follows 11 1 appears list document filed party order document possession custody power b pleading affidavit filed party refers document c appears court evidence nature circumstance case document filed proceeding ground belief document relating matter question proceeding possession custody power party court may subject question privilege may arise order party produce document inspection party time place specified order e file serve party copy whole part document without affidavit verifying copy made person examined document copy application summary judgment35 acting principle attack best mean defence auspine issued notice motion 11 august 1999 seeking summary judgment lawrence email ground failed comply order court concerning filing serving witness statement expert report mr lancione solicitor auspine supporting affidavit dated 11 august 1999 deposed order made 30 october 1998 auspine serve outline witness statement expert report 15 december 1998 respondent attend task 8 february 1999 mr lancione complained date swearing affidavit 11 august 1999 respondent yet confirmed outline witness statement filed served also complained expert report filed served respondent 36 16 june 1999 court directed respondent file serve statement fact issue contention asserted respondent support order sought instead solicitor wrote court 14 july saying position properly comply direction loughlin j made 16 june 1999 applicant complied notice served federal court rule 15 r 10 1 appropriate course action party seek excused compliance order direction court correct procedure approach court either liberty apply way motion necessary affidavit filed explaining relevant circumstance knew respondent claiming needed examine certain document failed explain content document would might affect preparation statement fact issue contention however despite content letter 14 july respondent solicitor wrote court 6 august 1999 enclosing client written submission application particular discovery said letter apparent submission client position cannot proceed hearing application particular discovery notice motion concerning notice produce determined court circumstance client seeking leave court reserve right put supplementary submission notice motion concerning notice produce determined notwithstanding assertion submission failed opinion connect document subject notice produce sufficient particularity justify withholding consideration application particular discovery timetable notice motion37 friday 13 august 1999 direction hearing matter three notice motion far identified called mention respondent amended notice motion dated 5 may 1999 seeking order particular discovery respondent notice motion dated 9 july 1999 seeking production eight nominated document auspine notice motion dated 11 august 1999 seeking summary judgment direction hearing conducted telephone mr ross smith counsel auspine adelaide mr martin counsel respondent sydney darwin advised counsel commitment darwin would receive written argument three outstanding notice motion decide matter paper however express concern adequacy content mr mcglone june affidavit occasion directed auspine cause affidavit filed served addressing detail adequacy auspine discovery 38 directed respondent file serve memorandum subject earlier order 16 june 39 direction hearing 13 august 1999 timetable set follows auspine file mr mcglone affidavit 2 september respondent file statement fact issue contention 23 september statement confirmed preliminary submission require amendment moving party three notice motion file submission 23 september responding party file answering submission 7 october finally submission reply filed 14 october 40 mr martin counsel respondent expressed strong opposition procedure first place wanted argument proceed respondent application production document document could examined respondent proceeded application particular discovery secondly said client would seeking leave cross examine mr mcglone affidavit relation application particular discovery thirdly said client wished issue subpoena production document relation motion particular discovery responded mr martin telling would depart order made respect timetable identified immediately preceding paragraph also ruled would permit cross examination mr mcglone 41 however said opinion mr mcglone june affidavit gone far enough recording result inquiry obligation rest litigant give discovery requires make proper inquiry effort identify disclose relevant document possession custody power 15 court empowered order discovery limited order made proceeding obligation make complete discovery extends making reasonable inquiry person whose possession document may obligation extends limited servant agent discovering party mcgorm ex parte cooperative building society south australia 1989 20 fcr 387at 389 390 per von doussa j 42 affidavit dated 6 september 1999 filed mr mcglone deposed following term result enquiry say satisfied proper reasonable enquiry search made officer applicant acting instruction discoverable material kind sought respondent particularly referred sub paragraph 1 b c j ii v vi k l n p q r v w x respondent amended notice motion filed herein 6 may 1999 result enquiry search applicant discoverable material kind 43 june affidavit mr mcglone discovered document purported satisfaction request made respondent par 1 e 1 f 1 g 1 h 1 j iii 1 j iv 1 j viii 1 1 1 1 u amended notice motion dated 5 may 1999 respondent understand accepted auspine discovery respect category pursued matter particular discovery disputed category documents44 turn consider unresolved claim 45 analysis document follows borne mind proceeded upon premise category document ever exist would discoverable auspine never advanced submission document sought relate issue question proceeding consequence therefore discoverable category 1 preliminary analysis report prepared mr mcglone referred paragraph 69 outline statement dated 17 december 1998 including working paper note draft 46 respondent pursue application order auspine cause affidavit filed stating whether document possession custody power notwithstanding mr mcglone june affidavit stated report destroyed march april 1995 superseded later draft became april due diligence report respondent point sought merely production preliminary analysis report also working paper note draft relating mr mcglone affidavit address last mentioned document say document discovered list document document subject respondent second notice motion seek production regard extensive nature applicant list document think respondent request reasonable affidavit filed behalf respondent indicate reasonable effort made solicitor track document searched auspine list corresponded auspine solicitor asking identify document may found satisfied auspine advanced acceptable explanation failure disclose information order auspine file serve within twenty eight day date verified list serve copy working paper note draft relating preliminary analysis report list appropriate identify working paper note draft recorded auspine list document working paper note draft lost destroyed affidavit explain loss destruction full detailed particularity however see necessity pursue subject preliminary analysis report subject adequately explained mr mcglone category 1 b handwritten note document recording evidencing conversation took place employee auspine employee agent cowells meeting 21 22 march 199547 clear content par 104 statement filed mr mcglone name various participant meeting made note representative auspine forwarded note mr mcglone said statement responsible compiling due diligence report member due diligence team forwarded note taken due diligence 48 opinion respondent quite reasonable seeking production inspection note respondent unable identify auspine list discovered document auspine done say document discovered list document believe would imposing hardship auspine order produce copy note inspection identify appear auspine list order accordingly term consistent order made respect document category 1 category 1 c draft due diligence report date april 1995 april due diligence report 49 understand respondent accept april due diligence report discovered accept mr mcglone assertion affidavit 2 september 1999 discoverable material category understand respondent contention likely course preparation due diligence report would draft prepared respondent seem prepared accept mr mcglone deposition draft destroyed mr mcglone deposed oath term practice practice officer employee agent auspine destroy draft superseded amended version document far material put court would warrant court going behind mr mcglone sworn statement made statement oath absence compelling reason contrary oath accepted category 1 handwritten note document recording evidencing conversation took place employee auspine mr colin lamond mr steve matthew meeting auspine premise tarpeena 3 may 1995and alsocategory 1 correspondence memoranda file note report document south australian centre manufacturing relating study review operation auspine timber sale auspine building centre july august 199550 mr mcglone stated oath document category discovered uncertain position respect document category l sense sought numerous document mr mcglone said june affidavit limited one document document discovered mag1 51 exhibit june affidavit mag1 list numerous additional discovered document alongside document reference category description reader relate discovered document sought respondent category 1 mentioned discovered document refer south australian centre manufacturing although understand respondent pursued category think abundance caution overlooked reason already given copy document category produced inspection whereabouts auspine list identified order accordingly term consistent order made respect document category 1 category 1 j following document referred annexed document listed doc 22 main issue discus attached ii doc 656 20 letter dated 18 november 1994 v doc 1389 new price book vi doc 1676 memo 09 05 95 52 respondent rely auspine document 22 1676 pointing existence document expression main issue discus attached doc 22 lends support proposition doc 1676 reference memo 09 05 95 mr mcglone stated oath document discovered reason already given copy produced inspection whereabouts auspine list identified order accordingly term consistent order made respect document category 1 53 document 656 20 auspine discovered list document refers letter cameron mcdonald brown dureau dated 18 november 1994 respondent unable locate letter mr mcglone initial reply say inquiry show alan donnell file unable located destroyed december 1996 54 mr donnell formerly employed cowells production manager 1988 1995 made redundant auspine took cowells although respondent correct complaining answer make clear letter 18 november formed part mr donnell file probably intended inference however consider position concluded mr mcglone affidavit 2 september 1999 state discoverable document category mr mcglone appropriate senior officer auspine could approached cameron mcdonald asking copy letter 18 november 1994 done result inquiry verified oath 55 respondent rely document 1389 pointing existence document expressly refers new price book new year 1997 respondent complain new price book discovered applicant mr mcglone june affidavit said fellow officer auspine aware description new price book applied timber product price list went state subsequently caused made inquiry relation document time timber product list discovered according mr mcglone list discovered auspine amended supplementary list document exhibit mag1 june affidavit document examined respondent satisfied complain one page price list effective 6 january 1997 discovered remaining page entry document respondent referred indicate price list may one page example reference price book notation page 10 mr mcglone deposed discovered document category stage think statement oath must regarded concluding matter category 1 k stock book recording evidencing timber ordered supplied cowells auspine building centre 1 january 1994 31 december 199556 respondent belief stock book exist based information supplied mr donnell according mr lucas may affidavit mr donnell told maintained stock book red folder made a4 sheet stock book recorded length size stock order according respondent stock book discovered response mr mcglone deposed relation document referred category enquiry show alan donell file unable located destroyed december 1996 statement appears june affidavit later affidavit 2 september address issue discovery nevertheless deposes discoverable material feel stage mr mcglone statement oath accepted category 1 l document entitled direct marketing component including document similar name abbreviation computer print out hard drive disk floppy disk recording evidencing item added actual cost production timber product sold supplied timbersales period 1 january 1994 30 december 199857 mr mcglone addressed subject following manner june affidavit relation document referred category enquiry show that28 1 direct marketing component system referred document discontinued june 1997 28 2 document relevant category unable located destroyed period june 1997 january 1998 and28 3 applicant discovered document report august 1995 containing direct marketing component information document type discovered mag1 58 respondent pointed counsel written submission dated 6 august 1999 respondent rely statement attributed mr chris wray former south australian state manager auspine timbersales say provided document entitled direct marketing component contained mark ups placed timbersales actual cost timber product addition seeking particular discovery document respondent also seek particular discovery computer printout hard drive disk floppy disk recording evidencing item added actual cost timber product sold supplied timbersales period 1 january 1994 30 december 1998 alleged class document discovered applicant 59 agree respondent mr mcglone answer inadequate limited content direct marketing component made reference computer printout hard drive disk floppy disk order auspine file serve verified list serve copy computer print out particular hard drive disk floppy disk recording evidencing item added actual cost production timber product sold supplied timbersales period 1 january 1994 30 december 1998 auspine also cause affidavit filed served explaining loss destruction document relating direct marketing component full detailed particularity 60 respondent complained auspine caused inquiry made mr wray document complaint mr mcglone stated october affidavit mr wray one several people contacted telephone 14 october admittedly mr mcglone state affidavit expressly addressed subject document category mr wray regard history matter including relentless pursuit respondent particular discovery opinion fair inference draw mr wray able give assistance mr mcglone remembered allegation mala fides part auspine appear evidence could point direction rather battle line drawn conventional ground two lawyer widely disparate view subject inclined direct auspine make inquiry mr wray category 1 n document entitled monthly sale report may 1995 david taylor ii monthly sale report may 1995 bert saccone iii monthly sale report may 1995 ian williams iv monthly sale report may 1995 roger marshall 61 category document generated heat debate party respondent rely statement former employee auspine timbersales mr chris wray mr david taylor support claim monthly sale report exist mr taylor sale representative timbersales serviced cowells earlier day one auspine larger customer mr wray mr taylor say monthly sale report prepared sale representative end month respondent point fact sale report april june 1995 discovered applicant neither mr wray mr taylor aware reason would explain report prepared may 1995 62 response claim applicant discovered computer print recording sale made mr david taylor mr bert saccone may 1995 respondent claim response inadequate say applicant failed make inquiry order discharge properly discovery obligation say applicant failed address question whether sale report existed may 1995 whether may may possession custody power 63 counsel respondent made oral submission matter 13 october 1999 submitted ground arguing would appropriate avenue inquiry mr mcglone inquire messrs taylor saccone marshall williams author monthly sale report whether prepared report month may 1995 whether still posse copy respective report month submitted would appropriate mr mcglone inquire four salesman assuming one prepared report report submit whether know happened report perhaps would appropriate mr mcglone made caused made inquiry mr kennedy executive officer ordinary course business would received report salesman using compile monthly composite report 64 auspine took heed complaint course hearing caused affidavit filed mr mcglone dated 15 october 1999 mr mcglone said 14 october contacted four salesman messrs wray kennedy telephone said informed person longer custody power possession relevant document 65 far satisfying respondent affidavit served inflame rather accepting assurance issue regarded closed submitted fact mr mcglone made inquiry tantamount admission earlier inquiry inadequate respondent submit initial failure mr mcglone make inquiry messrs taylor saccone williams marshall wray kennedy established auspine failure make proper required investigation discovery process accepted respondent submission correct accepted auspine failed discovery obligation making inquiry six gentleman need decide issue fact remains failure rectified inquiry made result inquiry disclosed oath particular issue order direction warranted claimed inadequacy remedied 66 note passing mr taylor sworn affidavit support respondent case fall short asserting positively prepare report month may 1995 could say aware circumstance would prepared monthly sale report month may 1995 67 counsel respondent submitted defending claim brought auspine respondent raised inter alia defence effect auspine virtue extent trading activity cowells group prior settlement date well aware material change occurred cowells period immediately prior settlement date cowells respondent claim one auspine biggest customer monthly sale report prepared auspine sale representative show extent purchase made cowells month month making submission counsel refer specific provision respondent joint defence perusal pleading suggests may par 28 g amended defence counsel mind contains assertion whereby respondent say applicant aware financial circumstance cowells business immediately prior acquisition business particular contained amended defence however difficult gain value bald assertion 68 annexure nl40 mr lucas may affidavit contains monthly sale report month april 1995 four auspine salesperson messrs david taylor bert saccone ian williams roger marshall followed annexure nl40 four monthly sale report salesperson month june 1995 mr marshall report state fact month may reading report suggests error report june report included detail salesperson top twenty customer name cowells building supply take cowells group appears customer mr taylor report month april june however counsel point reference cowells group report three salesperson stage tentative inference might drawn purpose proceeding mr taylor alone among auspine sale staff designated sale representative purchase made cowells adoption inference correct would make difficult understand relevance issue trial messrs saccone william marshall sale report month may 1995 69 letter dated 6 april 1999 annexure nl41 mr lucas may affidavit messrs clayton utz requested copy four sale report month may 1995 response messrs phillips fox dated 7 april 1999 annexure nl42 term instructed document kind may 1995 created counsel respondent noted statement complained confirmed oath mr mcglone either affidavit 11 june affidavit 2 september 1999 70 auspine discovered document 307 tendered counsel respondent entitled auspine limited sale analysis salesperson evidence called explain document infer perusal content record perhaps sale made month may 1995 system called house account perhaps sale made month david taylor bert saccone apparent doc 307 contain detail sale made ian williams roger marshall however could responsible sale cowells absence sale figure might therefore matter concern matter greater interest doc 307 record mr taylor made sale month may cowells cowells group entity name included word cowells put counsel respondent replied might entry name auspine building supply sale made month cowells group theory understand correctly time doc 307 prepared settlement purchase cowells group occurred name purchasing entity changed internally cowells cowells building supply auspine building supply two comment made theory first place evidence support evidence subject far suggests mr taylor sold merchandise cowells doc 307 suggests month may 1995 sold merchandise group second comment mr martin theory correct doc 307 reveals detail sale made auspine cowells month may 1995 although mr taylor personal report month missing absence cause acute embarrassment suggested mr martin important subject matter dollar volume sale cross referenced date invoice number invoice cost net profit available respondent perusal doc 307 71 quality document poor difficult read figure although quite clear mr taylor sale cowells building supply month june 190 711 31 cannot say confidence value sale preceding two month adding legible figure doc 307 making allowance illegible one seems sale may 111 200 sale april might 59 843 47 first digit difficult read however clear april sale six figure le 100 000 hence le may figure assumed mr taylor sale auspine building centre fact sale cowells group information extracted material therefore test validity submission failure auspine discover may 1995 monthly report messrs taylor seccone williams marshall importance respondent cause delaying preparation witness statement 72 strange monthly report april june none may 1995 however persuasive respondent submission weighed mr mcglone september affidavit affidavit 15 october 1999 must regarded alert aberration salesman report month may missing yet sworn oath inquiry made result inquiry search applicant discoverable material must come time matter frustration party discovery process must brought end 73 prepared make order sought respondent respect category category 1 0 document containing analysis purchase made cowells timbersales south australia part period february 1994 march 1995 74 respondent rely statement attributed mr chris wray say prepared analysis period february 1994 march 1995 75 response claim applicant discovered computer print recording sale product type 1 february 1994 31 march 1995 respondent claim response inadequate say applicant failed make inquiry made order discharge properly discovery obligation say applicant failed address question whether analysis existed whether may may possession custody power 76 repeat observation made considering issue related category 1 n court entitled assume auspine aware discovery obligation respondent identified category document applicant claim discovery last supplementary list accommodates respondent demand respondent may justifiably expected absent evidentiary material might justify inquiry respondent disappointment justify continuance matter decline make order sought respondent respect category category 1 p letter including draft forwarded timbersales south australia merchant customer 1995 explaining timbersales south australia position relation takeover cowells auspine 77 respondent rely statement attributed mr david taylor say acquisition cowells auspine prepared letter addressed number merchant customer explaining position timbersales relation acquisition mr taylor say letter typed either sent handed customer 78 response claim applicant say document exist class information relating cowells purchase provided timbersales customer verbally advice apparent contradiction statement attributed mr taylor respondent submit applicant failed make inquiry order discharge properly discovery obligation however assertion met statement oath mr mcglone affidavit 2 september 1999 state discoverable material 79 respondent claim respect mr taylor found mr lucas may affidavit stage proceeding feel proceed upon premise mr lucas affidavit content would placed mr mcglone would aware content swore affidavit respondent therefore accept mr taylor wrote letter proper search failed locate contentious issue based allegation denial cannot entertained within discovery process exception verification discovering party must accepted consider exception discussed earlier reason par 92ff exist case category 1 q notice document placed noticeboard premise cowells evidencing recording trading performance sale cowells period 1 january 1994 30 june 1995 80 respondent rely statement attributed mr allen donnell say end month document entitled performance indicator pinned cowells notice board claimed document contained graph sale budget actual sale achieved cowells 81 response claim mr mcglone par 33 june affidavit deposes document destroyed within one month production respondent submit applicant failed make inquiry made order discharge properly discovery obligation identify inquiry could light assertion mr mcglone document destroyed regard mr mcglone said june affidavit coupled reaffirmation affidavit 2 september 1999 discoverable document fail see else respondent could reasonably expect decline make order sought respect category category 1 r handwritten note made david ford recording evidencing information provided john kolaczkos kitchen cowells premise 27 may 1995 82 respondent rely statement attributed mr kolaczkos mr donnell say observed mr ford making note meeting 27 may 1995 respondent say class document discovered applicant mr mcglone june affidavit say david ford file discovered applicant however failed produce document inspection compliance respondent notice produce dated 28 june 1999 failed identify list document class document subject respondent notice motion order production 83 opinion would appropriate require auspine produce copy note inspection identify appear auspine list order accordingly term consistent order made respect document category 1 category 1 v computer print out hard drive disk floppy disk document evidencing recording cancellation alteration amendment order made cowells timbersales period 1 january 1995 30 june 1995 andcategory 1 w order book computer print out hard drive disk floppy disk document evidencing recording order timber placed cowells timbersales period 1 january 1995 30 june 1995 84 respondent rely statement attributed mr allen donnell mr david taylor mr chris wray respondent claim mr donnell say maintained order book cancellation amendment alteration cowells order timbersales noted faxed version order form sent timbersales mr taylor mr wray respondent say give evidence timbersales received cancellation amendment order cancellation amendment would entered auspine computer database appears mr taylor also say faxed order cowells stored timbersales archive box regular basis 85 auspine response demand found par 38 mr mcglone june affidavit paragraph state category 1 v 38 relation document referred category enquiry show alan donnell file unable located destroyed december 1996 86 could mr mcglone misconceived nature document sought respondent two category seeking mr donnell file necessarily seeking content file respondent seek include hard drive disk floppy disk material hardly likely contained within mr donnell file opinion ground order particular discovery production material referred category order accordingly term consistent order made respect document category 1 misunderstood position mr mcglone affidavit 2 september 1999 intended encompass every aspect two category short confirming affidavit suffice category 1 x handwritten note typed note document glenn wheatland recording evidencing conversation taken place employee auspine glen wheatland meeting 5 april 1995 10 april 1995 87 respondent rely statement attributed mr glenn wheatland say accordance usual practice made handwritten note meeting auspine employee 5 10 april 1995 placed manila folder entitled due diligence 88 response claim mr mcglone deposed june affidavit term category 1 x 39 relation document referred category enquiry show glen wheatland file discovered previous list document 89 opinion would appropriate require auspine produce copy note inspection identify appear auspine list order accordingly term consistent order made respect document category 1 production documents90 although specifically addressed content respondent notice motion order production document course stating reason subject particular discovery made order consider appropriate production auspine certain document course making order consider given sufficient attention respondent claim order production think necessary give consideration notice motion 91 respondent argued fact auspine failed produce eight identified document response respondent notice produce sufficient evidence establish applicant failed discover document stage argument cannot accepted view auspine stand verified oath discovered stage position reject verified statement made name auspine proceed upon premise accept auspine assertion order supply copy document identify list document discovered cross examination affidavit discovery92 respondent solicitor messrs clayton utz wrote court letter dated 15 september 1999 said part client concern earlier stated inadequacy auspine discovery allayed affidavit sworn michael anthony mcglone 2 september 1999 messrs clayton utz went write ask respondent given opportunity put submission honour leave ought granted permit cross examination respondent mr mcglone request made notwithstanding ruling made 13 august 1999 cross examination would permitted may party advised available date 13 october 1999 consideration could given application however matter called hearing 13 october counsel respondent sought leave file court requisite notice motion explanation offered lateness filing notice unfortunately lead confusion counsel auspine claimed prepared argue subject matter notice motion fortunately party able agree notice filed counsel respondent moving party led evidence upon relied counsel auspine able identify affidavit material upon would rely mr martin made submission behalf respondent matter thereafter adjourned two day mr ross smith made submission behalf auspine 15 october 93 first order sought respondent recent notice motion follows 1 leave granted respondent cross examine mr michael anthony mcglone affidavit sworn 11 june 1999 2 september 1999 cross examination limited enquiry search undertaken undertaken applicant document sought respondent amended notice motion dated 5 may 1999 94 however respondent also sought order 2 respondent notion motion dated 9 july 1999 heard separately hearing respondent amended notice motion dated 5 may 1999 95 notice motion dated 9 july sought production document whilst 5 may 1999 sought particular discovery informed counsel respondent order foreshadowed messrs clayton utz sought listing matter event order sought made would contradict earlier order made court 13 august 1999 date stated would grant leave respondent cross examine mr mcglone also date ordered auspine file serve affidavit mr mcglone extent inquiry made auspine finally date directed written submission filed respect outstanding notice motion respondent obviously unhappy order 13 august case liberty apply leave appeal achieves nought merely repeat application order already refused without offering reason support application informed counsel prepared vary order 13 august hence would hear submission respect second order sought notice motion counsel respondent directed limit submission issue cross examination mr mcglone 96 matter general principle cross examination deponent affidavit interlocutory proceeding issue fall within discretionary power judge example poole j murray cj parson j agreed said inre john brien ex parte allchurch 1923 sastrp 35 1923 sasr 411at 421 discretion course one judicially exercised may case example order justice thestatus quoshould preserved allowance cross examination would defeat object case would improper act upon affidavit without 97 convenient starting point consideration issue cross examination deponent affidavit discovery decision menzies j inmulley v manifold 1959 hca 23 1959 103 clr 341 343 honour said far 32 r 13 concerned cannot shown contentious affidavit discovery made insufficient 1912 thought insufficiency appear pleading affidavit document document therein referred however inbritish association glass bottle manufacturer ltd v nettlefold 1912 1 kb 369 1912 ac 709 established insufficiency might appear document also source constituted admission existence discoverable document furthermore necessary infer existence particular document sufficient appears party excluded document misconception case beyond affidavit discovery conclusive 98 clear reading honour reason two proposition emerged quite strongly first place contentious affidavit material extend discovery process secondly exception normal rule affidavit discovery conclusive 99 mr martin based submission support application leave cross examine mr mcglone circumstance surrounding two many category document respect respondent sought order particular discovery category 1 n 1 v monthly report four salesperson electronic alteration cowells order timbersales first half 1995 mr martin pain emphasise respondent seeking leave cross examine mr mcglone content affidavit 2 september could satisfy proper reasonable inquiry fact made mr mcglone respondent seeking leave cross examine mr mcglone generally subject better discovery mr martin submitted important distinction claimed conclusiveness affidavit discovery apply application particular discovery fact submitted mr mcglone affidavit 2 september regarded affidavit discovery treated affidavit filed opposition application particular discovery opinion distinction without difference subject matter dispute party adequacy applicant discovery respondent wish question adequacy achieve objective must convince court reason court treat applicant verified list conclusive 100 giles j considered question cross examining deponent affidavit discovery infruehauf finance corporation pty ltd v zurich australian insurance ltd 1990 20 nswlr 359 although case one concerning question legal professional privilege consider honour remark relevant subject discovery large thus honour said p 366 affidavit discovery generally conclusive relation amplitude discovery also relation claim protection inspection discovered document including claim legal professional privilege particular cross examination maker affidavit permitted relevant exception position introduced rule court 101 recent time court shown willingness question affidavit discovery particularly claim legal professional privilege lockhart j said innational crime authority v 1991 29 fcr 203at 211 court slow permit cross examination deponent affidavit sentence immediately honour said although affidavit form usually sufficient uncontroversial potential abuse obvious 102 gummow j sitting judge court inhartogen energy ltd v australian gas light company 1992 36 fcr 557 endorsed remark lockhart j point opinion degree relaxation old rule affidavit discovery usually taken conclusive see anything relaxation degree 103 acknowledge case held appropriate permit party cross examine deponent adequacy deponent discovery olympic airway sa v spiros alysandratos consolidated travel victoria pty ltd unreported supreme court victoria harper j 26 may 1997 useful example circumstance cross examination affidavit discovery allowed plaintiff purchased interest group company second defendant member group first defendant principal shareholder second defendant plaintiff sued defendant alleging inter alia fraud particular plaintiff alleged purchasing interest group relied certain representation made behalf respondent representation said include forecast profitability group included report prepared behalf defendant firm accountant report listed several document upon accountant relied preparation report none discovered defendant particular discovery sought plaintiff document accountant referred report first defendant swore affidavit denied document ever second defendant possession appeal order master first defendant appear cross examination affidavit harper j said remains question whether first defendant cross examined affidavit one hand must regard general policy beneficial effect tested time affidavit discovery conclusive fact cross examination affidavit rarely ever allowed doubtless reflection policy hand case unusual cogent evidence suggest existence document one would expect exist generated one defendant evidence document either never existed exist never possession defendant seems much le cogent document exist discovered given relevance proceeding injustice might done plaintiff procedure available ensure injustice done ensure process court abused cross examination opinion ample ground honour concluding deponent made available cross examination honour well aware general rule affidavit document generally conclusive situation faced court called intervention would obvious ill informed accountant would relied material supplied one defendant event obligation part defendant seek agent would included accountant discoverable document possession custody control latter 104 drummond j allowed cross examination inaustralian security commission v zarro 2 1992 34 fcr 427 case claim certain document protected disclosure ground public interest immunity honour said 431 taken described exceptional course concern emerged respect way commission gone claiming immunity concern reliability mr adam final claim immunity certain document view change ground view content three affidavit 105 confess misgiving auspine refusal cooperate respondent identifying verified list document respondent might find document auspine maintained discovered reflection consider litigation conducted date side determination make task party difficult possible concluded auspine conduct example deliberate decision offer aid assistance opponent infer conduct deliberate obstruction discovery process 106 must acknowledged area identified respondent pointed insufficiency discovery process first category sought preliminary analysis report example insufficiency document referred mr mcglone witness statement according respondent document discovered subsequent affidavit auspine claimed answered allegation addition subject order produce certain related document contention party assuming auspine comply order court produce document hopefully end matter 107 october 1999 affidavit mr mcglone identified six person contacted 14 october four salesman messrs taylor saccone marshall williams together mr wray mr kennedy written submission reply counsel respondent restrict conventional matter law ranged extensively factual issue complaining auspine failed make inquiry mr donnell mr woodhead complaining inquiry made messrs wray taylor inadequate departure normal procedure understandable limited extent appropriate respondent address content mr mcglone affidavit respondent exceeded reasonable bound even filing three additional affidavit messrs lamond wheatland kolaczkos without leave without explanation 108 principle affidavit discovery case regarded conclusive become le rigid application recent time abolished time court feel justified subject discovery pursued greater detail defect inolympic airwaysafford good example appropriate case investigation case legal professional privilege another example fact case excited interest respondent shown predilection pursue state perfection presumably length pocket permit course action course action taking valuable court time assessment matter party could gainfully employed preparing case trial 109 pointed obvious deficiency auspine conduct appropriate made order designed correct deficiency enough enough respondent opinion behaved unreasonably respect pursuit discovery issue motion summary judgment110 remains consider auspine notice motion summary judgment serious allegation made conduct respondent evidence support court asked draw inference could readily drawn evidence bad faith part respondent example counsel auspine claim respondent notice motion 9 july 1999 operates abuse process statement without supporting evidence cannot stand examination 111 respondent identified eight document asked applicant produce applicant replied discovered decline say several thousand entry may found respondent responded serving notice produce exercise evoke response filed notice motion seeking production document expressed could hardly said conduct respondent constituted abuse process court proceeding constitute abuse process purpose bringing prosecute conclusion use mean obtaining advantage designed collateral advantage beyond law offer onus satisfying court abuse process lie upon party alleging onus heavy one auspine opinion discharged heavy onus establishing evidence purpose respondent bringing notice motion dated 9 july 1999 obtain advantage motion designed collateral advantage beyond law offer 112 respondent failure date failure comply procedural direction failure would except abnormal circumstance normally result judgment respondent course action available explored first could range cost order order restricting respondent evidence may adduce subject matter proof lodged certain date conduct respondent case warrant stage drastic action default judgment cf lenijamar pty ltd agc advance ltd 1990 fca 520 1990 27 fcr 388 case management become important tool must kept within bound litigant shut except matter last resort thestate queensland v j l holding pty ltd 1997 hca 1 1997 189 clr 146at 154 dawson gaudron mchugh said case management end important useful aid ensuring proper efficient disposal litigation ought always borne mind even changing time ultimate aim court attainment justice principle case management allowed supplant aim 113 hand respondent shown amenable complying order court particular attempted justify action failing file witness statement expert report sufficient say cannot file serve statement discovery exercise completed mr lucas affidavit 12 october 1999 addressed subject merely stated conclusion without proffering reason par 77 78 affidavit said 77 applicant given full proper discovery particular category document sought respondent amended notice motion dated 5 may 1999 respondent position complete outline evidence allen donnell david taylor christopher wray proposed witness need inspect number document subject respondent application particular discovery complete outline 78 respondent retained arthur andersen chartered accountant prepare expert report matter arthur andersen position finalise report access number document subject respondent application particular discovery 114 consider bland assertion justify delay time believe respondent conduct justify inference auspine would wish draw written submission reply counsel auspine wrote irrepressible impression intentional delay remains upon respondent concealment reason witness outline expert report cannot completed even volunteer draft outline expert report demonstrate prejudice list topic cannot dealt late day refused even reveal name witness expert respondent rely hearsay evidence solicitor never first hand evidence witness expert respondent must realise comply order direction court every opportunity explain cannot file witness statement expert report failed adopting supine position must face inevitable consequence risk punitive consequence building 115 order respondent file serve witness statement expert report 31 january 2000 addition senior executive officer respondent file date certificate certifying intended witness statement expert report filed period time given respondent liberal take consideration christmas break traditional summer vacation however sufficient time allow respondent comply order court expectation respondent comply order propose stand auspine notice motion liberty matter brought consideration seven day notice time 31 january 2000 costs116 respondent partially successful approach court order made favour term notice motion seeking production document hand application particular discovery met limited success failed application leave cross examine mr mcglone auspine application summary judgment could said unjustified time view history particular matter could said much chance success particular stage 117 would incur party cost made appropriate cost order four notice motion argument would arise dissecting costing different subject opinion broadbrush approach appropriate case respect four notice motion order court party pay cost incidental proceeding order day made cost incurred auspine notice motion today cost addressed later stage respondent principal moving party direct bring short minute order term consistent reason within twenty eight day liberty speak minute certify preceding one hundred seventeen 117 numbered paragraph true copy reason judgment herein honourable justice loughlin associate datedcounsel applicant mr r ross smithsolicitor applicant messrs purcell lancionecounsel respondent mr martin scsolicitor respondent messrs clayton utzdate hearing 13 15 october 1999date judgment 21 december 1999

Lickeen Pty Ltd t_a Rainforest Landscaping v Fiorello Leno C025-99 [1999] QBT 65 (28 April 1999).txt

lickeen pty ltd rainforest landscaping v fiorello leno c025 99 1999 qbt 65 28 april 1999 queensland building tribunalhearing date 28 april 1999application c025 99applicant lickeen pty ltd acn 010 361 261 trading rainforrest landscapingrespondent leno fiorellodecision contractual dispute applicant landscape contractor respondent homeowner respect construction retaining wall driveway homeowner property lot 225 aquarius place bridgeman down state queensland mr mcconville appeared behalf applicant company managing director company duly licensed gold card structural landscaping also conducted negotiation respondent homeowner leading formation contract appearance mr fiorello decision proceed 28 april 1999 applicant commenced proceeding tribunal 21 january 1999 application seeking payment 13 519 70 owing contract mr fiorello together cost filing fee mr fiorello attend mediation according mediation report dated 7 march 1999 12 march 1999 registry tribunal despatched notice case management conference party posted mr fiorello address service fiorello romano associateslevel 3 18 banfield streetchermside qld 4032 26 march 1999 designated case management conference took place mr fiorello failed attend ordered applicant file material 9 april 1999 mr fiorello would reply 23 april 1999 matter allocated hearing 28 april 1999 order noted respondent due notice time date venue direction hearing member hearing matter elected proceed absence copy order 26 march 1999 sent pre paid post mr fiorello address service response filed material applicant filed extensive material setting case notice hearing sent respondent 1 april 1999 response note tribunal file mr c davidson registry tribunal attempted telephone mr fiorello 27 april 1999 mr davidson spoke person named glynnis told mr fiorello phone left message telephoned hour later mr fiorello return call person glynnis informed matter would proceed absence appear 28 april 1999 perused material filed applicant seems mr fiorello conduct paying applicant invoice issued pursuant contract quite blatant evasion properly incurred debt debt liquidated claim arising fully performed contract section 87 2 act provides tribunal may proceed party absence party fails appear time place notified tribunal satisfied mr fiorello given notice time place hearing 87 1 provides tribunal must allow party proceeding reasonable opportunity call give evidence examine cross examine witness make submission satisfied mr fiorello reasonable opportunity provided 12 51pm 27 april 1999 mr fiorello faxed registry requesting adjournment declined file material give plausible reason adjournment decided proceed 28 april 1999 still failed appear despite fax day finally satisfied mr mcconville assurance statement filed behalf applicant served post mr fiorello address service satisfied applicant case extremely strong sense evidence would sufficient succeed judgment summons forum mr fiorello trying delay defence merit historymr leno fiorello contacted mr mcconville seeking quote construction retaining wall lot 225 aquarius place bridgeman down said mr fiorello property mr mcconville provided quote 10 000 00 28 april 1998 accepted mr fiorello deposit 6 000 00 paid purchase rock applicant prepared plan consultation consulting engineer retaining wall completed certified correctly built engineer mr fiorello refused pay balance 4 000 00 contractor reluctantly accepted mr fiorello promised driveway landscaping mr fiorello builder completed work site 3 november 1998 mr fiorello rang quote work discussion negotiation set applicant statement figure struck upon party agreed deletion amendment original quote quote accepted sum 9 389 70 writing also 600 00 bob cat fee mr fiorello paid directly operator owner also agreed per quote responsible engineer fee work duly performed mr mcconville caused company deliver final invoice totalling 13 519 70 11 january 1999 included 3 800 00 outstanding quote 28 april 1998 mr mcconville attended site collect final payment mr fiorello gave cheque 600 00 bob cat operator mr mcconville offered take bank mr fiorello refused claimed run cheque next week avoided contractor ultimately became clear intention paying bill mr mcconville say mr fiorello told mr mcconville wife might nice guy business man thereafter mr fiorello refused accept phone call mr mcconville accept applicant evidence entirety applicant total claim follows amount owing per invoice 13 519 70 ii tribunal filing fee 200 00 iii interest 7 iv cost overdraft mr mcconville attendance tribunal administrative cost cannot allow final claim included application indeed debatable whether claim could justified law event mr fiorello order made respect claim specifically brought attention application however propose allow interest 9 applicable rate allowed thesupreme court act regard fixing rate interest interest rate applied twelve month 3 800 00 11 january 1999 date invoice balance claim summary allow following amount owing 13 519 70 ii filing fee 200 00 iii 12 month interest 3 800 00 342 00 iv interest 11 1 99 9 319 70 260 40total 14 322 10i cannot allow legal cost party self represented direction hearing ordered legal representation allowed conclusion order respondent pay sum 14 322 10 applicant forthwith applicant may register judgment district court enforce accordingly p white memberlickeen pty ltd rainforest landscaping v fiorello leno c025 99 1999 qbt 65 28 april 1999 form 10the queensland building tribunalqueensland building service authority act 1991orderapplication c025 99between lickeen pty ltd trading rainforrest landscaping applicant leno fiorello respondent upon hearing mr mcconville applicant company appearance respondent queensland building tribunal make following order 1 respondent pay applicant sum 14 322 10 inclusive claim cost interest p white memberqueensland building tribunal

1705668 (Refugee) [2020] AATA 5510 (23 November 2020).txt

1705668 refugee 2020 aata 5510 23 november 2020 last updated 22 january 20211705668 refugee 2020 aata 5510 23 november 2020 decision recorddivision migration refugee divisioncase number 1705668country reference chinamember peter boothdate 23 november 2020place decision melbournedecision tribunal affirms decision grant applicant protection visa statement made 23 november 2020 11 51amcatchwordsrefugee protection visa china petition work safety condition unlawful dismissal petition local county labor bureau disruption social stability applicant unresponsive question vague evidence lack corroborative document delay seeking protection internal relocation decision review affirmedlegislationmigration act 1958 cth s 5aaa 5h 5j 36 65migration regulation 1994 cth schedule 2casesmiac v mzyyl 2012 fcafc 147selvadurai v minister immigration ethnic affair 1994 fca 1105 1994 34 ald 347szatv v miac 2007 hca 40 2007 233 clr 18szfdv v miac 2007 hca 41 2007 233 clr 51any reference appearing square bracket indicate information omitted decision pursuant tosection 431of themigration act 1958and replaced generic information allow identification applicant relative dependant statement decision reasonsapplication reviewthis application review decision made delegate minister immigration border protection 27 february 2017 refuse grant applicant protection visa unders 65of themigration act 1958 act applicant claim citizen china applied visa 26 october 2016 delegate refused grant visa basis applicant meet criterion in 36 2 36 2 aa act criterion protection visathe criterion protection visa set in 36of act schedule 2 themigration regulation 1994 regulation applicant visa must meet one alternative criterion 36 2 aa b c either person respect australia protection obligation refugee criterion complementary protection ground member family unit person person hold protection visa class section 36 2 provides criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation person refugee person refugee case person nationality outside country nationality owing well founded fear persecution unable unwilling avail protection country 5h 1 case person without nationality refugee outside country former habitual residence owing well founded fear persecution unable unwilling return country 5h 1 b 5j 1 person well founded fear persecution fear persecuted reason race religion nationality membership particular social group political opinion real chance would persecuted one reason real chance persecution relates area relevant country additional requirement relating well founded fear persecution circumstance person taken fear set s 5j 2 6 s 5k la extracted attachment decision person claim fear persecuted reason membership particular social group existence group person membership determined accordance 5l provides person treated member particular social group person family characteristic fear persecution shared member group person share perceived sharing characteristic characteristic must innate immutable must fundamental member identity conscience member forced renounce must distinguish group society person well founded fear persecution effective protection measure available person receiving country 5j 2 section 5la 1 provides effective protection measure available protection persecution could provided person either relevant state party organisation including international organisation control relevant state substantial part territory state party organisation willing able offer protection relevant state party organisation taken able offer protection persecution person person access protection protection durable case protection relevant state protection consists appropriate criminal law reasonably effective police force impartial judicial system 5la 2 person found meet refugee criterion 36 2 may nevertheless meet criterion grant visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion meaning significant harm circumstance person taken face real risk significant harm set s 36 2a 2b extracted attachment decision significant harm purpose exhaustively defined 36 2a 5 1 person suffer significant harm arbitrarily deprived life death penalty carried person person subjected torture cruel inhuman treatment punishment degrading treatment punishment cruel inhuman treatment punishment degrading treatment punishment torture defined 5 1 act certain circumstance taken real risk applicant suffer significant harm country arise would reasonable applicant relocate area country would real risk applicant suffer significant harm applicant could obtain authority country protection would real risk applicant suffer significant harm real risk one faced population country generally faced applicant personally 36 2b act pursuant 36 2b act taken real risk applicant suffer significant harm country tribunal satisfied would reasonable applicant relocate area country would real risk applicant suffer significant harm tribunal draw guidance judgement high court inszatv v miacandszfdv v miacwhich held whether relocation reasonable sense practicable must depend upon particular circumstance applicant impact upon person relocation within country szatv v miac 2007 hca 40 2007 233 clr 18andszfdv v miac 2007 hca 41 2007 233 clr 51 per gummow hayne crennan jj callinan j agreeing pursuant 36 2b b act taken real risk applicant suffer significant harm country tribunal satisfied applicant could obtain authority country protection would real risk applicant suffer significant harm level protection must reduce risk applicant significantly harmed something le real risk miac v mzyyl 2012 fcafc 147 pursuant 36 2b c act taken real risk applicant suffer significant harm tribunal satisfied real risk one faced population generally faced applicant personally mandatory considerationsin accordance ministerial direction 84 made 499 act tribunal taken account refugee law guideline complementary protection guideline prepared department home affair country information assessment prepared department foreign affair trade dfat expressly protection status determination purpose extent relevant decision consideration consideration claim evidencethe issue case whether applicant meet criterion set either 36 2 36 2 aa following reason tribunal concluded decision review affirmed fact taken applicant protection visa application follows applicant summaryapplication reviewthis application review decision made delegate minister immigration 27 february 2017 refuse grant visa applicant protection class xa subclass 866 visa 65 act visa applicant applied visa 26 october 2016 identity country referencethe applicant age year old female born date town 1 zhejiang province china applicant speak read write mandarin applicant state han ethnicity provide response question regarding religion applicant claim chinese citizenship birth copy applicant passport held upon department file confirms citizen china 1 applicant provide response question regarding marital status applicant recorded former employment china protection visa application 2010 2015 worker listed education china including primary middle school summary applicant claim sought improve safety condition workplace reporting condition company county 1 labor bureau however allegation investigated beaten threatened beaten death continued file report migration historythe applicant arrived australia january 2016 tourist visa applicant applied xa 866 protection visa 26 october 2016 claims866 visa applicationthe applicant claim protection contained protection visa application department interview conducted 15 february 2017 89 leave country please read statement90 think happen return country please read statement91 experience harm country applicant selected yes please read statement92 seek help within country harm applicant selected yes please read statement93 move try move another part country seek safety applicant selected please read statement94 think harmed mistreated return country applicant selected yes please read statement95 think authority country protect go back applicant selected please read statement96 think would able relocate within country applicant selected please read statementevidence submissionsthe applicant made submission tribunal applicant provided following statement department home affair applicant born date lived town 1 county 1 zhejiang province employee company 1 zhejiang province company produced product 1 production product 1 sulfuric acid needed inevitable worker exposed sulfuric acid sulfuric acid serious harm health worker exposed long time company provide worker good protection worker became ill unable continue work would paid small amount money dismissed sick worker choice suffer home since money treatment felt unfair required company treat sick worker humane provide worker necessary protection work company refused reasonable request threatened would regarded making trouble made request would dismissed immediately interest worker representative started journey right protection may 2015 five worker went county 1 labor bureau report company illegal dissolution labor contract also demanded company compensate dismissed employee according law people county labor bureau told u needed time investigate situation however investigation contrary made five worker representative retaliated evening 2 june 2015 beaten strong guy mouth nose bleeding also said kept reporting would beaten death time came understand reason beaten related reporting company labor bureau beaten badly rest three day company also dismissed harbor labor department company illegally dismissed employee angry june 2015 went provincial labor department report company illegal behavior officer told would make investigation let go home wait news waited month get reply went provincial labor department august enquiry situation told issue reported handled county labor bureau informed county labor bureau solve problem tried explain county labor bureau care would listen also called security drive away evening 12 august several policeman county public security bureau arrested said reporting slander disrupted social stability locked small dark room self reflect gave two steam bun water per day made sleep concrete floor told sign statement would go petition refused would locked forever scared sign set free followed monitored stranger china common government official businessmen made collusion personal interest corrupted country legitimate right citizen could maintained justice fairness could upheld scared dare return china please consider application protection carefully thank applicant gave evidence hearing assistance translator substance follows applicant confirmed summary basis claim protection australia left china sought improve safety condition workplace reporting condition company county 1 labor bureau however allegation investigated beaten threatened beaten death continued file report applicant confirmed basis upon seek protection australia tribunal asked applicant left china claimed protection australia applicant responded follows previously went bureau labor city government lodged report many year still worried might revenge elaborate asked whether wanted expand upon evidence said tribunal explained applicant application explain tribunal happened tribunal would know detail replied live town 1 zhejiang city many product 1 factory area process production two add sulphur acid harm full human body factory provide mask provide sick facility give money see doctor sick leave many worker approached leader factory said continue create chaos going sack sacked factory elaborate tribunal enquired whether applicant wanted add anything evidence replied colleague approach higher authority factory requesting sick leave however leader said continue create chaos sack u sacked around may 2015 went county 1 lodge breach company however know company knew lodge report short june beaten night day sacked went another labour bureau lodge report however working staff bureau labour said need tell people country told done already said need came back bureau labour province around one half month people came u say bureau labour province wore civilian clothes said police arrested u put u detention detained small room people allow u talk detained two three day give u good food eat gave u bread water allow u sleep day presented guaranteed document asked u sign asked sign paper would continue detain thinking woman face corrupt government could say anything signed left police station noticed people following therefore china official protect civilian cannot gain benefit lodged petition came back june sacked government australia protect want go back china applicant confirmed employed company 1 answer question said date first complaint authority date may 2015 tribunal asked applicant complained said labor bureau county five others asked identify five people said colleague work elaborate tribunal asked whether person still living china said left country afraid getting touch family heard two went country like africa elaborate tribunal observed stated employment terminated may 2015 replied may another five people lodged petition came back june sacked tribunal observed applicant stated june beaten night response applicant said around 2 june tribunal asked whether injured said yes mouth nose bleeding tribunal asked whether sought obtained medical assistance treatment said went village doctor clinic tribunal asked whether applicant produced medical evidence injury treatment replied minor injury afraid going hospital give invoice asked whether evidence relation assault said tribunal observed statement applicant said relation assault told kept reporting would beaten death invited explain mentioned aspect oral evidence replied three four year cannot remember thing tribunal observed statement stated needed rest three day assault asked mentioned oral evidence said yes beat mouth nose bleeding kept reporting would beat death question repeated said said previously beaten without reason describe seriously tribunal asked applicant residing assaulted occasion replied beaten live family beaten moved afraid revenge tribunal asked applicant else house beaten occasion replied beaten house beaten riding bicycle street tribunal observed mentioned asked applicant explain said mentioned need make short sentence tribunal asked date applicant reported conduct company authority second occasion replied date june 2015 tribunal asked applicant made report responded people went labor bureau indistinct province lodged report however went people asked u go home wait one month get reply august went back labor department tribunal asked applicant copy statement replied submitted copy added first statement remember date date asked date second assault said went back labor bureau around mid august arrested asked occurred said night rental house asked whether location moved first assault said yes moved around mid august tribunal asked located new premise said people follow told tribunal informed stated person following later narrative asked unidentified person knew find said first time beaten moved tribunal repeated question said place small city rental place far house sometimes would pick something stage people follow would know tribunal observed statement mentioned followed released asked explain said second time would lodge report came back continue follow tribunal asked accompanied applicant labor bureau second occasion replied people went tribunal asked applicant second occasion police came arrested said one else tribunal asked whether applicant complained police authority regarding detention said signed guarantee paper lodge report anymore asked whether ever complained police china event said added lodge report labor bureau police came arrest tribunal asked applicant identify people detained replied people went petition tribunal observed applicant mention moving residence statement asked explain replied perhaps missed tribunal asked applicant long release detention left china said detained mid august stayed china left january 2016 tribunal asked whether returned rental accommodation released detention replied yes tribunal asked whether harmed threatened harm asked released detention last occasion applicant largely unresponsive question repeated several time said people follow harmed tribunal asked whether family harmed threatened harm since released detention last occasion reply signed guarantee elaborate question repeated said released family followed unknown people afraid getting touch family tribunal asked type visa applicant arrived australia replied visitor visa tribunal observed visa would normally expire purpose visit within three month namely april 2016 applicant agreed tribunal asked visa applicant april 2016 said visa tribunal observed applicant applied protection visa 26 october 2016 asked applicant waited apply said time want submit protection visa application need someone know help elaborate tribunal asked applicant decided leave china january 2016 responded beaten second time detained wrote guarantee paper worried continue stay china would beaten bullied tribunal observed beaten bullied leave china january following year response said time need apply visa deal something asked applied tourist visa said maybe december tribunal observed approximately four month second assault detention asked waited long said went find work hard find stayed home around two three month tribunal asked whether applicant believed would harmed threatened harm return china said might harmed asked believed might harm threaten harm said believe people factory go tribunal asked unidentified person would signed guarantee saying would longer protest longer employed factory said thinking might harm fear go back government policy changed asked whether reason could relocate return china said go back would impossible move another province tribunal observed prepared move another country asked would prevent relocating within china said say unreasonable said used strange country tribunal observed fact moved strange country replied heard people australia good place chose go australia tribunal asked produced evidence colleague fellow detainee said get touch people provide evidence tribunal asked whether applicant believed authority state would protect returned china said know whether government protect go back applicant declined opportunity add anything application review based upon applicant answer paraphrased question application protection visa substance also set tribunal find applicant age year old female born date town 1 zhejiang province china speak read write mandarin han ethnicity citizen china 2 country informationin accordance direction 84 made pursuant 499 act tribunal also regard country information assessment prepared dfat dfat report titled people republic china dated 3 october 2019 relevantly stated follows footnote omitted security situation2 55 gaining support ccp policy throughout country maintaining social stability top priority ccp achieve government deploys vast internal security apparatus china internal security agency include ministry public security responsible inter alia police border security household registration hukou see hukou household registration system health child ministry state security main intelligence agency people armed police pap paramilitary force responsible internal security people liberation army pla china military see also military police november 2013 president xi established new national security commission strengthen coordination international domestic security issue 2 56 security personnel surveillance technology ubiquitous throughout china increased artificial intelligence ai capability serve china economic military modernisation interest simultaneously enhancing party stability increased power surveil control population see social credit system 2 57 report estimate 170 million surveillance camera installed city town across country past decade everyday street crime violence china major city generally low sensitive social group including religious organisation uighur tibetan ethnic group falun gong practitioner human right activist alleged government us range surveillance method monitor activity since 2016 medium reported chinese police security agency begun combining photo database artificial intelligence facial recognition technology installed surveillance camera track criminal suspect destabilising agent society 2 58 since 2010 china expenditure internal security agency police pap court prison system outstripped spending military 2016 gap domestic security defence expenditure reportedly reached record high 13 per cent domestic security expenditure increasing 17 6 per cent compared previous year exceed rmb 1 trillion aud 209 4 billion defence expenditure increased 7 5 per cent however actual amount china spends military domestic security widely debated foreign expert government relevant publication concur chinese statistic security spending include outlay standard reporting country note way verify accuracy official figure reported china 2 59 domestic security expenditure across province region increased 215 per cent 2007 2016 continued grow 2018 particularly sensitive minority region xinjiang tibet security remains volatile due heightened ethnic tension government attempt curb perceived threat social stability see ethnic uighur ethnic tibetan 10 year period security expenditure increased 411 per cent xinjiang uighur autonomous region xuar xinjiang 404 per cent tibet autonomous region tar 316 per cent qinghai population approximately 25 per cent tibetan february 2018 xinjiang reported 92 8 per cent increase domestic security spending rmb 30 05 billion aud 6 3 billion 2016 rmb 57 95 billion aud 12 9 billion 2017 increase security spending tar estimated 9 3 per cent although tar maintains position region highest per caput domestic security expenditure province region since 2008 ahead xinjiang analyst chinese security expenditure suggest per caput domestic security spending sensitive minority region higher per caput domestic security spending u russia pp adjusted wage level 2 60 june 2017 china national people congress standing committee also passed new national intelligence law 2017 amended 2018 form part national security legal architecture introduced 2014 includes counter espionage law 2014 criminal law 1979 amended 2015 national security law 2015 anti terrorism law 2015 cyber security law 2017 national intelligence law call upon element chinese society including individual contribute national intelligence work law inter alia empowers security agency launch intelligence operation china abroad collect intelligence foreign body engaged activity may harm china national security interest monitor suspect raid premise seize vehicle investigation domestic foreign individual group gain priority use transportation telecommunication equipment building enterprise employ technical reconnaissance measure permission law explicitly requires security agency act strict compliance law relating protection human right state agency exceed authority abuse power dfat aware report kindergarten child given homework instructing assist state security officer arbitrary arrest detention4 20 ministry public security manages pre trial detention facility procedure authority power authorise detention criminal suspect include limited public security bureau psb ministry state security anti smuggling bureau 4 21 criminal procedure law term arrest refers stage criminal prosecution process authority determine sufficient evidence proceed prosecution suspect though necessarily detained prior formally arrested detention warrant must issued suspect family within 24 hour detention formal arrest detainee must approved procuratorate take 37 day unless released bail criminal suspect generally remain detained conclusion judicial process including appeal practice rate release bail extremely low bail considered right criminal procedure law bail individual right designed minimize restraint freedom alternative pre trial coercive measure bail granted usually initiative convenience police 4 22 procedure subject judicial oversight post arrest investigation period seven month preparation indictment take six half month total time required hear case issue verdict standard case range twenty month indefinite period security agency hold individual year progress charge arrest investigation court hearing sentencing process individual convicted offence move prison system case finalised including appeal process time served detention centre deducted custodial sentence 4 23 amendment criminal procedure law 1979 amended 2012 2018 require prompt delivery suspect detention facility following arrest law stipulates interrogation must take place detention facility must recorded audio video revised law also requires judicial official investigate case extraction confession torture 4 24 police security agency broad administrative detention power ability detain individual extended period without formal arrest criminal charge police hold individual 30 day criminal detention deciding whether pas case prosecutor additional seven day prior formal arrest police detention beyond 37 day requires prosecutorial approval formal arrest notification family member within 24 hour detention law permit official provide notification would hinder investigation case pertaining national security terrorism major bribery period anniversary considered politically sensitive authority often detain activist without charge full 37 day period 4 25 administrative detention regulated law penalty administration public security 2006 administrative detention imposed crime minor nature serious enough warrant criminal prosecution punishment criminal procedure law criminal law imposed public security organ local county government level various form administrative detention china different procedure time limit maximum period administrative detention one act 15 day multiple period administrative detention imposed concurrently several act maximum period detention 20 day 4 26 criminal procedure law police may also detain individual residential surveillance designated location rsdl away home six month formal arrest release rsdl used detain individual suspected crime endangering national security involving terrorist activity involving serious corruption see corruption suspect defendant fixed residence authority must notify relative individual placed formal arrest residential surveillance designated location within 24 hour unless notification impossible notification need specify reason location detention suspect right meet defence lawyer category case case involving national security terrorism police authorised detain suspect arrest additional seven month investigating case following investigation procuratorate additional 45 day determine whether file criminal charge detention time detention continue law explicitly allows detainee meet defence counsel criminal charge filed rarely happens case considered politically sensitive filing charge authority detain suspect additional 45 day beginning judicial proceeding 4 27 rsdl criticised exposing detainee risk mistreatment see torture enabling condition detention produce forced confession evidence obtained rsdl able excluded court rarely case human right group report rdsl increasingly used detain activist human right lawyer government critic recent year claim police training dormitory facility repurposed rsdl 4 28 location used enforce rsdl often referred black jail however term black jail correctly describes short term detention rented owned run hotel room similar often used petitioner criminal suspicion le sensitive allegation coercive measure primary distinction rsdl black jail rsdl formal feature chinese legal system rsdl also reportedly often entail treatment severe black jail occurs government run custom fit purpose facility whereas black jail quasi administrative holding centre petitioner criminal 4 29 public security authority continue use form administrative detention suppress political religious dissident sex worker drug user petitioner authority also detain family member dissident poet liu xia widow nobel peace laureate liu xiaobo released july 2018 house arrest nearly eight year following husband nomination nobel peace prize 2010 see death custody authority also curtailed freedom family member 709 lawyer see human right defender including lawyer uighur tibetan activist see ethnic uighur ethnic tibetan law provide house arrest individual facing type detention right legal counsel due process chinese government abolished education labour policy december 2013 although medium human right group claim education labour including prison linked xinjiang based education centre continued 2018 supported production factory overseas market see detention prison ethnic uighur 4 30 dfat ass report security authority use extra legal detention politically sensitive investigation credible state protection5 1 article 5 theconstitutionstates law administrative local regulation may contravene theconstitution state organ armed force political party public organisation enterprise institution must abide theconstitutionand law act violation theconstitutionor law must investigated organisation individual privileged beyond theconstitutionor law 5 2 organisation china tasked enforcement theconstitutionand court general power judicial review would allow invalidate law ground violate theconstitution theconstitutionstates national people congress standing committee power review law violate theconstitution practice power rarely exercised one instance regulation rescinded 5 3 crime investigated public security organ generally psb also including organ anti smuggling bureau ministry state security national supervision commission prosecuted people procuratorate tried people court lawyer must registered operate compliance regulation issued china lawyer association directly supervised ministry justice see human right defender including lawyer 5 4 criminal procedure law criminal law regulate arrest detention criminal procedure law set procedure followed criminal process applies prior verdict issued court criminal law applied verdict issued criminal prosecution lengthy take excess one year case progress initial detention verdict sentencing police5 6 ministry public security oversees police force organised specialised police agency local county provincial jurisdiction government longer publicises size police force medium estimate place number around two million people armed police paramilitary force responsible internal security issue riot terrorist attack natural disaster emergency estimated 660 000 member police undertake four year training program include course procedural law public order well extensive physical training performance statistic driven national ranking system provides incentive compliance local level police generally entitled receive housing food allowance part monthly salary calculated according local condition rather national standard 5 7 maintaining public order social stability defined defending ccp rule key priority police force china outweigh protection public criminal activity regular police generally carry firearm area heightened security xinjiang tibet reflecting power held ministry public security procuratorate oversight police limited localised ad hoc 5 8 chinese citizen right lodge complaint police city residence telephone hotline online complaint website person writing public security bureau complaint office local authority targeted petitioner including complaint police punishment including arrest detention see protester petitioner complaint police rarely lead disciplinary action investigation announced outcome publicly released see also death custody 5 9 police unable open case prosecutor confident high chance conviction police required send brief prosecutor seeking formal permission arrest clear cut case generally approved accounting 99 per cent conviction rate procuratorate deems enough evidence justify arrest sends case back investigation source report police pressure obtain confession prior trial ensure success police investigation however china taken positive step protect individual right amendment criminal procedure law prohibiting use confession obtained torture evidence requiring interrogation major criminal case audio video recorded however protection apply case involving national security investigated outside china criminal justice system practice number case evidence accepted trial obtained torture coercive mean still low case nature reported 5 10 dfat additional information quality local policing responsiveness psb local crime judiciary5 11 china explicitly rejected western notion separation power judicial independence china undertaken significant reform minimise official interference lower level court case professionalise china judiciary court remain subject variety internal external control limit engagement independent decision making cpp approves judicial appointment personnel decision juror also appointed jury pool ccp five year period therefore serve need party ccp also exercise direct influence individual case political legal committee plcs level government plcs supervise direct work state legal institution including court typically staffed court president head law enforcement agency official justice ministry bureau legal organ although plcs focus primarily ideological matter influence outcome case particularly case sensitive important 5 12 china 2016 white paper judicial reform includes measure reduce political influence court improve access justice strengthen professionalism judiciary increase transparency effort curb local corruption new policy shift funding court local provincial level court started recording attempt influence proceeding since may 2015 mandatory nation wide case filing system court cannot refuse hear case without sound legal justification 5 13 enforcement court judgement remains issue however court publish many routine judgement online open trial network otn otn case database platform increase transparency listed case help enforce judgement parole individual entity comply fine fulfil judgement face restriction line sc see social credit system nevertheless otn coverage patchy case reported medium listed 709 crackdown case example listed otn final judgement viewed otn intermediary judgement always accessible appeal 5 14 article 183 274 196 criminal procedure law require case involving state secret personal privacy trade commercial secret defendant 18 tried closed court case involving trade commercial secret also held private party concerned matter request closed court session however article 196 requires verdict issued open court 5 15 judicial reform implemented recent year led increase administrative law case albeit low base including local case official abuse power example shenzhen court published figure administrative case showing 10 133 administrative case 2015 compared 9 167 2014 3 840 2013 2015 government lost 381 15 2 per cent 2508 lawsuit improving relatively low number even one china wealthiest international city shenzhen population 12 million indicate difficulty faced ordinary people pursuing case official 5 16 number special court also play key role judicial system standing committee national people congress power list function power special court set new special court special court include military court maritime court railway transportation court forestry court intellectual property court military court established within people liberation army responsible hearing criminal case involving serviceman woman relatively closed system without external supervision 5 17 maritime court system deal highly specialised issue related water chinese jurisdiction maritime court operate shanghai tianjin qingdao guangzhou wuhan haikou xiamen ningbo beihai also 39 detached tribunal major port city across 15 province maritime court jurisdiction maritime tort dispute maritime contract dispute sea environmental protection case maritime administrative special procedure case including dispute category arising chinese foreign citizen organisation enterprise procedure maritime court governed civil procedure law 1991 amended 2017 provision civil procedure law special maritime procedure law 1999 applies however maritime court jurisdiction criminal case civil administrative case without maritime element event jurisdictional dispute regarding existence maritime element ordinary court one level higher maritime court ordinary court seeking exercise jurisdiction determine jurisdiction high people court locality particular maritime court located appellate jurisdiction judgment order maritime court source claim maritime court remit time increased include administrative case labour case involving unpaid worker shop worker sailor maritime pollution case maritime court connect port border authority entry exit prohibited individual pending maritime court order 5 18 dfat ass lack separation power creates structural vulnerability within judicial system judicial autonomy limited case authority consider politically sensitive involve vested economic political interest public confidence ability court enforce judgement particularly rural area remains low internal relocation5 31 many opportunity internal relocation china movement people fundamental china push continued economic growth urbanisation legal impediment internal migration hukou system present biggest administrative impediment freedom internal movement see hukou household registration system otherwise come attention authority may also face impediment freedom movement see social credit system security situation 5 32 linguistic cultural barrier inhibiting factor ethnically han chinese move away place hukou registration ethnic minority may face varying degree difficulty discrimination depending ethnicity destination see also uighur tibetan 5 33 dfat ass internal relocation possible unless person attracted adverse attention authority local national level low social credit score see social credit system religion political opinion actual imputed group interest people subject adverse attention authority low social credit score unlikely able locate internally due chinese state significant surveillance capability ability restrict finance travel see security situation social credit system 5 53 applicant must complete registration form application resident identity card present hukou examination public security authority cost new renewed card vary according location circumstance applicant example law exempts payment urban resident subsistence allowance rural resident live specially straitened circumstance breach law lead disciplinary warning fine ranging rmb 200 1 000 approximately aud 40 200 ten day detention forgery card criminal offence 5 54 second generation card reportedly difficult counterfeit since 2013 government run trial include fingerprint card making difficult forge place bank train station airport card reader valid id card required hukou employment opening bank account obtaining passport driver licence application tertiary study travel plane train marriage legal case internet cafe shop also require proof identity 5 55 source report government longer term plan change national identity card online identity card political system2 35 china one party state governed ccp also known party minor political party exist approved subordinate ccp party peak leadership body politburo standing committee pbsc responsible practice making key decision foreign domestic policy head party general secretary xi jinping concurrently president chairman central military commission member pbsc pbsc member drawn subordinate 25 member politburo turn drawn party central committee 2017 2022 pbsc seven member number 2012 2017 term 2 36 china government enacts policy decision government subordinate party integral element china government structure senior government official administrative level concurrently hold party position almost case local party secretary outranks senior government position structure replicated across country various administrative level national people congress npc highest state body china closest approximation parliament march 2018 leadership president xi npc amended theconstitutionto abolish presidential term limit establish national supervision commission nsc new prc supervision law 2018 investigate party member civil servant see corruption 2 37 state council important administrative body china central government oversees implementation policy decision well regulation law adopted npc premier currently li keqiang head state council china head government premier li also member pbsc 2 38 government provincial level responsible majority public expenditure health education unemployment insurance social security welfare power enact regulation mean implementing law adopted centrally provincial level prefectural level administrative unit county county level city finally township town 2 38 government allowed grass root election take place every three five year local village level province administrative level outside formal four tier government system according china electoral law 1979 amended 2010 citizen become candidate long nominated party receive 10 signature supporting candidacy party appointed local election committee must confirm candidate publish final list candidate set rule campaigning count announce result practice candidate put forward party rarely successful corruption2 40 china ranked 87 180 country territory measured transparency international 2018 corruption perception index prevalent form corruption china bribery diversion public fund favouritism government official bribery political interference facilitation payment common acquiring public service dealing judicial system 2 41 chinese company surveyed 2015 35 per cent paid bribe government official 2017 global corruption barometer found 26 percent respondent china paid bribe accessing public service including education health care criminal justice system common practice guanxi custom building connection relationship based gift banqueting small favour see guanxi also considered bribery foreign company national international anti corruption law 2 42 taking office 2013 president xi launched nation wide anti corruption campaign promising catch official high low rank authority conducted 172 000 anti corruption investigation 2013 330 000 2015 527 000 2017 302 000 first half 2018 mid 2017 crackdown caught 1 800 official including 182 official ranked deputy provincial deputy ministerial level led arrest expulsion party conviction corruption 1 130 official including 139 senior official ousted senior official include provincial party secretary former general former politburo standing committee member zhou yongkang target include head state owned enterprise official fled china large sum public money 2 43 campaign led decline corruption related activity 2017 2018 global competitiveness index ranked china 49th 137 country frequency irregular payment bribe 20th favouritism government official compared 67th irregular payment bribe 34th favouritism government official 2012 nevertheless corruption remains widespread china government party implement law consistently transparently court judgement uniformly enforced party member military government department state owned enterprise 2 44 march 2018 npc adopted supervision law 2018 established new national supervision commission nsc subordinate supervision commission province city country level nsc supreme supervisory organ state responsible investigating corruption within party people court procuratorates people congress standing committee subordinate organ china eight democratic party manager state owned enterprise public university public research institute public hospital sport unit anyone performing public duty 2 45 upon creation nsc absorbed investigative function people procuratorate entirety ministry supervision longer exists effectively merging central commission discipline inspection ccdi communist party internal corruption body nsc conjunction ccdi thus responsible conducting graft ideological investigation party member public official nsc power detain people liuzhi system residential surveillance designated location rsdl six month initial period three month extendable three month undisclosed location without access lawyer see arbitrary arrest detention detention conviction rate corruption case criminal case close 100 per cent see judiciary 2 46 party central committee propaganda department maintains tight control medium coverage anti corruption campaign consequently state medium rarely play watchdog role authority detained member public including journalist sought publicise official corruption beyond endorsed authority international observer report government party implemented prc supervision law consistently transparently however dfat note law passed march 2018 likewise court judgement uniformly enforced party member military government department state owned enterprise 2 47 prior supervision law 2018 anti corruption confession obtained shuanggui system detention system outside formal legal system liuzhi system system extra legal detention party member also public servant investigated misconduct see glossary replaced shuanggui system prc supervision law 2018 comparison recent case see treatment party public official conclusionsthe tribunal informed country information summary follows security generally gaining support chinese communist party ccp policy throughout country maintaining social stability top priority ccp achieve government deploys vast internal security apparatus police citizen arrested prior charged police security agency broad administrative detention power ability detain individual extended period without formal arrest criminal charge arrest procedure subject judicial oversight state protection article 5 theconstitutionstates law administrative local regulation may contravene theconstitution state organ armed force political party public organisation enterprise institution must abide theconstitutionand law act violation theconstitutionor law must investigated organisation individual privileged beyond theconstitutionor law judiciary china explicitly rejected western notion separation power judicial independence china undertaken significant reform minimise official interference lower level court case professionalise china judiciary court remain subject variety internal external control limit engagement independent decision making dfat ass lack separation power creates structural vulnerability within judicial system judicial autonomy limited case authority consider politically sensitive involve vested economic political interest public confidence ability court enforce judgement particularly rural area remains low internal relocation dfat ass internal relocation possible unless person attracted adverse attention authority local national level low social credit score people subject adverse attention authority low social credit score unlikely able locate internally due chinese state significant surveillance capability ability restrict finance travel corruption china ranked 87 180 country territory measured transparency international 2018 corruption perception index prevalent form corruption china bribery diversion public fund favouritism government official bribery political interference facilitation payment common acquiring public service dealing judicial system evidence applicant often unresponsive question vague imprecise discursive often evidence applicant contained element issue tribunal rehearsed evidence representative narrative given real time often quite disjointed tribunal rehearsal evidence intended transcript evidence rather best recording transpired give intended give appreciation nature quality applicant evidence tribunal note requirement act applicant provide detail applicant claim incumbent upon tribunal prove applicant case section 5aaa act make clear applicant responsibility specify particular claim person respect australia protection obligation provide sufficient evidence establish claim tribunal responsibility obligation specify assist applicant specifying particular claim tribunal responsibility obligation establish assist establishing claim applicant produce document corroborate claim protection surprising regard importance matter apparently applicant time applicant consider prepare application applicant claim protection contained application protection visa associated narrative document provided department time applicant asserted others complained local authority working condition place employment statement said occurred may 2015 accompanied five co worker produced statement co worker reason unconvincing said 2 june 2015 beaten mouth nose bleeding produced corroboration assault injury medical treatment obtained stated threatened occasion beaten death mention hearing raised tribunal stated rest three day assault mention hearing raised tribunal stated dismissed employment result making complaint produced corroborative evidence stated made another complaint june 2015 stated 12 august 2015 arrested state accompanied others evidence said accompanied person attained produced statement person stated set free followed oral evidence said followed earlier time oral evidence said moved residence still located unknown person mentioned written statement said executed document agreed protest time longer employed company circumstance difficult accept would harassed police company asserts also asserted would harmed threatened harm representative company return china reason difficult accept likely occur agreed protest longer employed company event complains took place 2015 applicant produced convincing argument even event transpired would likely persecuted upon return china also asserted could relocate within china difficult accept assert targeted anyone local police perhaps representative company content relocate another country accordingly seems reasonable basis upon applicant could relocate within china applicant failed produce corroborative evidence court allegation upon claim protection australia apparently person involved key event produced evidence tribunal accept applicant assaulted detained whilst china dismissed employment circumstance alleged real risk serious harm return china could reasonably relocate within china vague nature assertion failure provide relevant detail document failure provide corroborative testimony compel conclusion applicant assertion cannot accepted tribunal accept matter asserted applicant basis claim protection australia also relevant applicant travelled australia tourist claim protection 9 month later reason delay applying protection visa unconvincing delay seeking protection visa support adverse credibility finding well finding applicant well founded fear harm 3 even three month delay lodging protection visa application held legitimate matter taken account assessing genuineness depth applicant fear persecution 4 inselvadurai v minister immigration ethnic affair 1994 fca 1105 1994 34 ald 347the court observed regard delay lodgement protection application opinion legitimate factual argument obvious one take account assessing genuineness least depth applicant alleged fear persecution rational consideration open material tribunal view applicant delay lodging protection visa application suggests basis claim protection accepted tribunal considered whether applicant feared persecution reason race religion nationality membership particular social group political opinion accordance 5j 1 act regard evidence tribunal make following finding tribunal satisfied applicant fear persecuted reason race religion nationality membership particular social group political opinion tribunal satisfied real chance applicant returned china applicant would persecuted reason race religion nationality membership particular social group political opinion tribunal satisfied real chance persecution relates area china tribunal satisfied applicant well founded fear persecution tribunal satisfied applicant refugee accordance 5h 1 act andthe tribunal satisfied applicant person respect australia protection obligation pursuant tos 36 2 act complementary protection criterion assessment 36 2 aa concluded applicant meet refugee criterion in 36 2 tribunal considered alternative criterion in 36 2 aa tribunal considered whether substantial ground believing necessary foreseeable consequence applicant removed australia china real risk applicant suffer significant harm mere fact applicant claim face real risk significant harm establish risk exists harm feared amount significant harm remains applicant satisfy tribunal statutory element made although concept onus proof appropriate administrative enquiry decision making relevant fact individual case must provided applicant tribunal required adopt reasonable approach matter tribunal required make applicant case applicant neither tribunal required accept uncritically allegation made applicant respect tribunal assessment regard complementary protection tribunal adopts finding stated relation refugee criterion assessment tribunal satisfied applicant person respect australia protection obligation unders 36 2 aa suggestion applicant satisfiess 36 2 b c basis member family unit person satisfiess 36 2 aa hold protection visa accordingly applicant satisfy criterion in 36 2 decisionthe tribunal affirms decision grant applicant protection visa peter boothmemberattachment extract frommigration act 19585 1 interpretation cruel inhuman treatment punishmentmeans act omission severe pain suffering whether physical mental intentionally inflicted person b pain suffering whether physical mental intentionally inflicted person long circumstance act omission could reasonably regarded cruel inhuman nature include act omission c inconsistent article 7 covenant arising inherent incidental lawful sanction inconsistent article covenant degrading treatment punishmentmeans act omission cause intended cause extreme humiliation unreasonable include act omission inconsistent article 7 covenant b cause intended cause extreme humiliation arising inherent incidental lawful sanction inconsistent article covenant torturemeans act omission severe pain suffering whether physical mental intentionally inflicted person purpose obtaining person third person information confession b purpose punishing person act person third person committed suspected committed c purpose intimidating coercing person third person purpose related purpose mentioned paragraph b c e reason based discrimination inconsistent article covenant include act omission arising inherent incidental lawful sanction inconsistent article covenant receiving country relation non citizen mean country non citizen national determined solely reference law relevant country b non citizen country nationality country former habitual residence regardless whether would possible return non citizen country 5h meaning refugee 1 purpose application act regulation particular person australia person arefugeeif person case person nationality outside country nationality owing well founded fear persecution unable unwilling avail protection country b case person nationality outside country former habitual residence owing well founded fear persecution unable unwilling return note meaning ofwell founded fear persecution seesection 5j 5j meaning well founded fear persecution 1 purpose application act regulation particular person person awell founded fear persecutionif person fear persecuted reason race religion nationality membership particular social group political opinion b real chance person returned receiving country person would persecuted one reason mentioned paragraph c real chance persecution relates area receiving country note membership particular social group seesections 5kand5l 2 person awell founded fear persecutionif effective protection measure available person receiving country note effective protection measure seesection 5la 3 person awell founded fear persecutionif person could take reasonable step modify behaviour avoid real chance persecution receiving country modification would conflict characteristic fundamental person identity conscience b conceal innate immutable characteristic person c without limiting paragraph b require person following alter religious belief including renouncing religious conversion conceal true religious belief cease involved practice faith ii conceal true race ethnicity nationality country origin iii alter political belief conceal true political belief iv conceal physical psychological intellectual disability v enter remain marriage person opposed accept forced marriage child vi alter sexual orientation gender identity conceal true sexual orientation gender identity intersex status 4 person fear persecution one reason mentioned paragraph 1 reason must essential significant reason reason must essential significant reason persecution b persecution must involve serious harm person c persecution must involve systematic discriminatory conduct 5 without limiting serious harm purpose paragraph 4 b following instance ofserious harmfor purpose paragraph threat person life liberty b significant physical harassment person c significant physical ill treatment person significant economic hardship threatens person capacity subsist e denial access basic service denial threatens person capacity subsist f denial capacity earn livelihood kind denial threatens person capacity subsist 6 determining whether person awell founded fear persecutionfor one reason mentioned paragraph 1 conduct engaged person australia disregarded unless person satisfies minister person engaged conduct otherwise purpose strengthening person claim refugee 5k membership particular social group consisting familyfor purpose application act regulation particular person thefirst person determining whether first person well founded fear persecution reason membership particular social group consists first person family disregard fear persecution persecution member former member whether alive dead family ever experienced reason fear persecution reason mentioned paragraph 5j 1 b disregard fear persecution persecution first person ever experienced ii member former member whether alive dead family ever experienced reasonable conclude fear persecution would exist assumed fear persecution mentioned paragraph never existed note section 5gmay relevant determining family relationship purpose section 5l membership particular social group familyfor purpose application act regulation particular person person treated member particular social group person family characteristic shared member group b person share perceived sharing characteristic c following apply characteristic innate immutable characteristic ii characteristic fundamental member identity conscience member forced renounce iii characteristic distinguishes group society characteristic fear persecution 5la effective protection measure 1 purpose application act regulation particular person effective protection measure available person receiving country protection persecution could provided person relevant state ii party organisation including international organisation control relevant state substantial part territory relevant state b relevant state party organisation mentioned paragraph willing able offer protection 2 relevant state party organisation mentioned paragraph 1 taken able offer protection persecution person person access protection b protection durable c case protection provided relevant state protection consists appropriate criminal law reasonably effective police force impartial judicial system 36 protection visa criterion provided act 2 criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation person refugee aa non citizen australia non citizen mentioned paragraph respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence non citizen removed australia receiving country real risk non citizen suffer significant harm b non citizen australia member family unit non citizen mentioned paragraph ii hold protection visa class applied applicant c non citizen australia member family unit non citizen mentioned paragraph aa ii hold protection visa class applied applicant 2a non citizen suffersignificant harmif non citizen arbitrarily deprived life b death penalty carried non citizen c non citizen subjected torture non citizen subjected cruel inhuman treatment punishment e non citizen subjected degrading treatment punishment 2b however taken real risk non citizen suffer significant harm country minister satisfied would reasonable non citizen relocate area country would real risk non citizen suffer significant harm b non citizen could obtain authority country protection would real risk non citizen suffer significant harm c real risk one faced population country generally faced non citizen personally 1 passport department file deleted 2 passport department file clf201683131 3 zhang v rrt anor 1997 fca 423 kavan v mima 2000 fca 370 4 subramanium v mima 1998 vg310 1997

Meadows v Lichmore Pty Ltd [2013] VSCA 201 (22 July 2013).txt

meadow v lichmore pty ltd 2013 vsca 201 22 july 2013 last updated 9 august 2013supreme court victoriacourt appeal apci 2012 0194sandra joye meadowsappellantvlichmore pty ltdrespondent judgesmaxwell acj robson dixon ajjawhere heldmelbournedate hearing22 july 2013date judgment22 july 2013medium neutral citation 2013 vsca 201judgment appealed frommeadows v lichmore 2012 vcc 1290 judgeo neill accident compensation workplace injury serious injury application left elbow epicondylitis pain syndrome disentangling physical psychological cause pain suffering consequence whether correct legal test applied adequacy judge reason appeal dismissed jayatilake v toyota motor corporation australia ltd 2008 vsca 167applied accident compensation act 1985 vic s 134ab 16 b 19 37 38 appearance counselsolicitorsfor appellantmr r w mcgarvie scwith mr b g andersonshine lawyersfor respondentmr meara scwith m j forbeswisewould mahonymaxwell acj summary1 appeal raise question continuing importance serious injury litigation judge decide serious injury application case pain suffering consequence relied establish serious injury attributable physical psychological cause 2 starting point injury work related i 134ab 38 h theaccident compensation act 1985 vic act court assessing pain suffering consequence injury must exclude psychological psychiatric consequence injury follows establish serious injury applicant must satisfy court balance probability organically based pain suffering consequence satisfy statutory criterion significant marked least considerable 1 3 present case physical injury mr meadow also developed pain syndrome functional overlay 2 resultant pain disability therefore physical psychological aspect judge accepted pain suffering consequence relied reach considerable level 3 satisfied consequence organic basis application therefore dismissed 4 appeal mr meadow advance three contention first judge erred law either applied wrong legal test conclusion arrived open evidence secondly contended judge failed identify consequence physical basis necessary part task hence failed conclude ought done physical basis pain suffering consequence thirdly contended judge give adequate reason 5 reason follow concluded judge apply correct legal test decision well open evidence b possible evidence separate physical psychological cause pain disability mr meadow suffering least well open judge conclude could separated c reason given decision entirely adequate

Ali, Asli Bishar [2004] MRTA 2199 (7 April 2004).txt

ali asli bishar 2004 mrta 2199 7 april 2004 catchword review visa refusal subclass 309 genuine relationshipreview applicant asli bishar alivisa applicant abdi mohamed osmanmahamoud abdi mohameddaud abdi mohamedtribunal migration review tribunalpresiding member maritsa eftimioumrt file number n03 01229dept file number osf2000 113586date decision 7 april 2004at sydneydecision tribunal remit application made visa applicant partner provisional class uf visa department immigration multicultural indigenous affair reconsideration direction visa applicant taken met following criterion subclass 309 spouse provisional visa clause 309 211 schedule 2 clause 309 221 schedule 2statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate refuse grant partner provisional class uf partner migrant class bc visa mr abdi mohamed osman primary visa applicant national somalia born 1955 child mr mahamoud abdi mohamed born 1987 mr daud abdi mohamed born 1992 applied partner provisional class uf visa 1 september 2000 delegate decision refuse grant visa made 21 november 2002 2 visa application form completed applicant incorporated application permanent visa partner provisional class uf visa normally cannot granted 2 year elapsed since lodgement application application temporary visa partner migrant class bc visa granted immediately permit stay decision made permanent visa process intended test whether relationship continuing 2 year visa application permanent residence confirmed delegate decision refuse grant visa made 21 november 2002 jurisdiction standing3 m asli bishar ali review applicant spouse visa applicant lodged valid application review tribunal 12 february 2003 decision refuse class uf visa reviewable tribunal application review properly made person standing apply review legislation policy4 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 5 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa department reconsideration remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 6 criterion policy immediately relevant review legislation regulation 1 15aof regulation regulation 1 20jof regulation part 309of schedule 2 regulation policy procedure advice manual 3 regulation 1 15a interpretation spouseprocedures advice manual 3 regulation 1 20j limitation approval sponsorship spouse prospective spouse interdependency visasprocedures advice manual 3 schedule 2 offshore spouse provisional visa 3097 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence8 tribunal departmental case file f2000 113586 tribunal case file n03 01229 9 visa applicant sponsored connection visa application m asli bishar ali review applicant australian citizen born somalia 10 january 1961 review applicant granted australian citizenship 11 january 1999 10 visa applicant claim couple knew young living somalia fond review applicant already entered proposed arranged marriage 11 visa applicant review applicant married individual child born respective previous relationship 12 visa applicant spouse died upon reaching refugee camp kenya 1995 heard review applicant divorced husband fact review applicant spouse died visa applicant sent message refugee camp located agreed start relationship contacted telephone 13 review applicant stated interview departmental officer rockdale sydney visa applicant visited camp sheltering 1995 time relationship commenced review applicant also stated visa applicant visited one occasion occasion stayed day returned refugee camp hagadera sheltering 14 1996 review applicant granted woman risk visa department first settled adelaide later 1999 moved sydney review applicant lost contact visa applicant 3 year visa applicant provided phone number mutual friend review applicant claim know address phone number camp 15 visa applicant obtained phone number spoke one another twice month 16 july 2000 decision made marry review applicant travelled kenya 5 july 2000 review applicant met airport proceeded hotel stayed couple married 14 july 2000 17 wedding witnessed friend reception held afterwards 25 people attendance later visa applicant visited review applicant mother 18 since review applicant return australia continued communicate regularly telephone 19 visa applicant lodged application basis review 1 september 2000 20 application refused 21 november 2002 delegate satisfied relationship genuine continuing finding based lack photographic evidence family member attending either wedding wedding reception visa applicant stated application form speak english required assistance interpreter interview delegate yet letter purporting sent review applicant written english delegate claim sole purpose convey impression ongoing relationship couple delegate noted lack knowledge regarding others present circumstance personal life 21 application review lodged 12 february 2003 review applicant claiming returned kenya 30 september 2002 remained husband 4 month sole purpose building relationship husband 22 continued communicating husband telephone since return australia although problematic husband life refugee camp resource limited 23 husband financially constrained providing evidence contact financial dependence one another single parent raising 3 young child welfare payment husband refugee 24 letter sent review applicant english written third party child cannot write read somali language read english 25 review applicant stated conceived child stay kenya husband sadly miscarried first trimester document dated 13 january 2003 madina nursing home nairobi kenya state review applicant admitted 12 january 2003 document state review applicant admitted impression pud early 1sttrimester pregnancy26 tribunal held hearing 16 march 2004 review applicant visa applicant gave oral evidence review applicant daughter son law tribunal assisted interpreter 27 review applicant gave detained history life somalia war commenced fled kenya 1992 review applicant told tribunal woman risk somalia kenya granted subclass 204 visa travel australia six child 1996 28 review applicant told tribunal visa applicant asked marry kenya however migrating australia six child told possible review applicant left kenya visa applicant made numerous enquiry able find australia asked marry review applicant told tribunal travelled kenya marry visa applicant stayed two month return australia keep family together returned kenya 2002 stayed four month trip became pregnant sadly miscarried returned australia review applicant gave detailed history time spent kenya visa applicant 29 review applicant told tribunal husband support australia stated visa applicant marrying migration purpose known since young girl would aware simply marrying migration purpose 30 review applicant told tribunal difficulty dialect interpreter interview department may caused inconsistency evidence also stated told truth interview lack intimate knowledge regarding visa applicant truly intimate knowledge life interested business survival rather romance refugee camp struggling raise child australia 31 review applicant told tribunal unable send fund visa applicant kenya receipt single parent benefit 32 spoken happen arrives australia told find work help child 33 visa applicant gave evidence tribunal consistent evidence provided review applicant told tribunal love review applicant always wanted wife visa applicant told tribunal marrying review applicant migration purpose genuine commitment review applicant husband 34 review applicant daughter gave evidence tribunal stated met visa applicant kenya family travelled australia time aware relationship mother visa applicant arriving australia mother told relationship visa applicant encouraged mother return kenya marry visa applicant review applicant daughter travelled kenya february 2003 visa applicant kind welcomed father review applicant daughter stated believe marriage contrived migration purpose mother step father would child together mother miscarried 35 review applicant son law gave evidence tribunal stated assisted review applicant financially travel kenya two occasion marry spend time visa applicant review applicant son law met visa applicant opinion observation relationship visa applicant review applicant genuine contrived migration purpose finding reasons36 tribunal finding based material department tribunal file well evidence given hearing 36 time visa application lodged partner provisional class uf contained following subclass subclass 309 spouse partner subclass 310 interdependency provisional subclass respect claim advanced subclass 309 evidence suggest visa applicant meet key criterion subclass 310 visa 37 time application visa applicant validly sponsored asli bishar ali australian citizen 38 visa applicant sponsor married kenya 14 july 2000 time application visa applicant sponsor married marriage recognised valid purpose act time decision still married tribunal therefore must consider whether visa applicant spouse sponsor time application continues spouse sponsor time decision 39 tribunal satisfied review applicant prohibited subclause 309 211 2 sponsoring spouse review applicant granted woman risk visa 1996 however evidence tribunal suggest spousal relationship visa applicant time 40 regulation 1 15a contains test applied determine whether one person spouse another person whether married de facto relationship forming opinion whether married relationship de facto relationship exists tribunal must take account consideration set subregulation 1 15a 3 consideration relate circumstance relationship including particular financial aspect relationship nature household social aspect relationship nature person commitment 41 tribunal considered evidence tribunal taken evidence review applicant visa applicant tribunal satisfied evidence gave consistent forthright tribunal therefore find visa applicant review applicant witness credit 42 tribunal accepts visa applicant life refugee camp kenya two child review applicant supporting parent benefit australia six young child unlikely going able provide evidence tribunal financial pooling resource 43 visa applicant review applicant never resided together husband wife particular circumstance fled somalia war spent many year refugee camp kenya review applicant accepted refugee australia visa applicant continued reside child refugee camp kenya review applicant travelled kenya marry visa applicant july 2000 visit resided hotel 2002 review applicant travelled kenya party stayed 2 month guest house nairobi rented room house another 2 month hariesa 44 tribunal satisfied visa applicant review applicant hold world married couple marriage ceremony kenya number friend family attended review applicant child australia aware marriage visa applicant acknowledge relationship genuine spousal relationship number friend australia also provided statutory declaration attesting genuine nature relationship president ogaden community association nsw provided letter support review applicant relationship visa applicant letter support also provided review applicant treating doctor state opinion review applicant suffering anxiety resulting failure bringing husband live australia 45 tribunal satisfied evidence visa applicant review applicant mutual commitment shared life husband wife exclusion others tribunal accepts visa applicant review applicant known many year tribunal accepts war started somalia review applicant husband killed forced flee somalia six child seek refuge kenya refugee camp tribunal accepts whilst kenya reacquainted visa applicant tribunal accepts visa applicant asked marry refused six young child accepted refugee woman risk program australia tribunal accepts arrived australia visa applicant able contact review applicant telephone relationship commenced party tribunal satisfied review applicant travelled kenya married visa applicant 16 july 2000 tribunal satisfied review applicant remained kenya visa applicant number month tribunal satisfied visa applicant review applicant remained contact via telephone review applicant returned australia review applicant provided tribunal number telephone bill support evidence tribunal satisfied review applicant returned kenya 2002 resided visa applicant four month tribunal accepts review applicant became pregnant trip kenya sadly miscarried supported medical evidence tribunal satisfied visa applicant review applicant continue remain contact telephone review applicant planning return kenya year spend time visa applicant whilst waiting processing application 46 tribunal considered delegate decision matter tribunal accepts part reason visa applicant may married review applicant economic betterment however tribunal satisfied taking evidence review applicant visa applicant party genuine commitment marriage contrived migration purpose 47 tribunal satisfied visa applicant genuine continuing relationship sponsor time application time decision pursuant regulation 1 15a 48 given finding appropriate course remit application class uf visa department consider remaining criterion subclass 309 visa visa applicant found meet remaining criterion visa applicant entitled grant subclass 309 visa follows department decision refuse class bc visa must also remitted consideration decision49 tribunal remit application made visa applicant partner provisional class uf visa department immigration multicultural indigenous affair reconsideration direction visa applicant taken met following criterion subclass 309 spouse provisional visa clause 309 211 schedule 2 clause 309 221 schedule 2

Legal Services Commissioner v Dempsey [2010] QCA 197 (30 July 2010).txt

legal service commissioner v dempsey 2010 qca 197 30 july 2010 last updated 2 august 2010supreme court queenslandcitation legal service commissioner v dempsey 2010 qca 197parties paul anthony dempsey respondent appellant vlegal service commissioner applicant respondent file appeal 13255 2009sc 9435 2008division court appealproceeding general civil appealoriginating court supreme court brisbanedelivered 30 july 2010delivered brisbanehearing date 19 may 2010judges mcmurdo p holmes muir jjaseparate reason judgment member court concurring order madeorders appellant refused leave adduce evidence appeal dismissed cost catchword profession trade lawyer complaint discipline professional misconduct misleading court perverting course justice legal practice tribunal found appellant legal practitioner guilty six charge brought 452legal profession act2007

MEDICAL BOARD OF AUSTRALIA v KANAPATHIPILLAI (Occupational Discipline) [2016] ACAT 16 (9 March 2016).txt

medical board australia v kanapathipillai occupational discipline 2016 acat 16 9 march 2016 last updated 18 march 2016act civil administrative tribunalmedical board australia v kanapathipillai occupational discipline 2016 acat 16or 13 2015catchwords occupational discipline health practitioner regulation general practitioner professional misconduct repeated drug use effect misrepresentation board health practitioner impairment suspension registration condition including psychiatric treatment mentoring supervision traininglegislation act civil administrative tribunal act 2008s 39 48health practitioner regulation national law act s 5 193 195 196cases cited briginshaw v briginshaw 1938 6 clr 336ex parte lenehan 1948 hca 45forster v hunter new england area health service 2010 nswca 106commonwealth australia v gretton 2008 nswca 117hccc v hutchins unreported 31 july 2009 health care complaint commission v 2014 nswca 307health care complaint commission v dr ian mchue 2007 nswdcmt40007 07health care complaint commission v greenwood 2011 nswnmt 13health care complaint commission v litchfield 1997 nswsc 297health care complaint commission v howe 2010 nswmt 12keddie v foxall 1955 viclawrp 58 1955 vlr 320latoudis v casey 1990 hca 59nsw bar association v maddocksnswca 23 august 1988 unreportedprothonotary supreme court new south wale v ritchardnswca 31 july 1987 unreportedreimers v health care complaint commission 2012 nswca 317re dr lemedical tribunal decision 20 september 2001the medical board australia v adam 2015 acat 8tribunal senior member brennanmember byrnedate order 8 march 2016date reason decision 8 march2016act civil administrative tribunal 13 2015between medical board australiaapplicantand dr nilanthi kanapathipillairespondenttribunal senior member brennanmember byrnedate 8 march 2016orderthe tribunal order pursuant section 196 thehealth practitioner regulation national law act national law respondent behaved way constitutes professional misconduct b respondent registration suspended 14 october 2014 period two year c upon resumption clinical practice respondent registration subject following 16 condition period 24 month condition relating drug use healththe respondent abstain drug use medication prescribed respondent treating medical practitioner respondent must undergo random urine drug screening uds accordance board sdrug alcohol screening protocol frequency random uds determined regime screening level 4 protocol namely one random uds per week b period 6 month board may review frequency uds view approving decrease frequency uds receipt evidence ongoing negative test support respondent treating psychiatrist c cost uds borne respondent respondent must undergo hair analysis testing accordance board protocol respondent must provide specimen hair drug analysis frequency determined regime screening level 4 protocol namely every three month b period 12 month board may review frequency hair analysis testing c cost hair analysis testing borne board respondent must maintain treating relationship general practitioner respondent must attend general practitioner frequency determined general practitioner b general practitioner prescribe supervise medication prescribed treating specialist c respondent must provide report written general practitioner board every three month requested board respondent must notify board change treating general practitioner within 7 day change e cost associated consultation borne respondent within one month return practice respondent must engage therapeutic relationship psychiatrist choice respondent must attend psychiatrist treatment including psychotherapy least month unless otherwise recommended treating psychiatrist b respondent must provide report written psychiatrist board every three month requested board c cost associated treatment reporting borne respondent within one month return practice respondent must engage therapeutic relationship clinical psychologist choice respondent must attend psychologist treatment least month unless otherwise recommended treating psychologist b respondent must provide report written psychologist board every three month requested board c cost associated treatment reporting borne respondent within 12 month 10 month return practice respondent must attend independent board appointed psychiatrist assessment respondent independent psychiatrist review relevant information respondent treating health practitioner mentor supervisor b respondent must provide report written independent psychologist board c respondent authorises exchange relevant information board independent psychiatrist respondent treating health practitioner mentor supervisor cost associated independent psychiatric assessment borne board within 12 month return practice respondent must complete following education program provided melbourne clinic anxiety management program b dialectic behaviour therapy program c cost associated completion education program borne respondent respondent must provide evidence board satisfactory completion education program end 12 month period e education program longer available within relevant 12 month period respondent must approach board approval equivalent alternative education program respondent must notify board soon practicable aware material change health respondent authorises exchange information board general practitioner psychiatrist psychologist respondent authorises exchange information board employer supervisor mentor respect respondent suitability practise condition relating supervision mentoringthe respondent may return practice medical practitioner supervision board approved supervisor accordance board ssupervised practice limited registration splr annexed hereto marked attachment b supervision level accordance level 1 supervision splr b respondent must nominate supervisor writing board supervisor must agree nomination respondent must provide copy supervisor curriculum vitae board c nominated supervisor must approved board advance writing respondent must provide report written supervisor board every month requested board addressing respondent health conduct performance e period three month board may review frequency reporting level supervision f supervision relationship reason terminate breakdown respondent must notify board soon practicable termination breakdown provide new nomination board within one month return practice respondent must meet board approved mentor ongoing professional mentoring respect ethic professionalism collegiality honesty open disclosure respondent must nominate mentor writing board mentor must agree nomination b nominated supervisor must approved board advance writing c respondent must meet mentor le one hour every calendar month respondent must provide report written mentor board every two month requested board e period six month board may review frequency reporting mentoring f mentoring relationship reason terminate breakdown respondent must notify board soon practicable termination breakdown provide new nomination board condition relating educationwithin 12 month return practice respondent must complete following education program provided cognitive institute difficult colleague interaction masterclass b mastering difficult colleague interaction workshop c mastering professional interaction cost associated completion education program borne respondent e respondent must provide evidence board satisfactory completion education program end 12 month period f education program longer available within relevant 12 month period respondent must approach board approval equivalent alternative education program general conditionsthe respondent provide copy condition employer within seven day imposition respondent ensure employer provide board acknowledgment receipt condition within 7 day receiving copy condition practitioner pay board cost proceeding agreed agreed cost fixed tribunal recommendation registrar following assessment cost registrar scale applicable supreme court matter party party basis pursuant 39 3 theact civil administrative tribunal act 2008 acat act publication evidence given hearing application matter contained document filed tribunal received evidence tribunal hearing identifies tends identify nurse working national capital private hospital whose statement document 14 applicant list document prohibited person shall referred nurse senior member brennan member byrnereasons decisionintroductionthe practitioner gained registration practice medicine australia 7 december 2001 worked range hospital including national capital private hospital ncph rockhampton base hospital rbh medical board australia board referred case tribunal reaching view action lengthy period constituted professional misconduct conduct included repeated drug use misleading board health practitioner referred use several occasion board filed served application disciplinary action practitioner made number admission agreed behaviour extended time constituted professional misconduct denied specific allegation procuring illicit drug whilst working ncph 1 july 2014 continued use drug 22 august 2014 tribunal task satisfied practitioner behaviour constitutes professional misconduct part also consider specific allegation around purchasing drug work whether evidence establishes used illicit drug 22 august 2014 also extensive evidence whether practitioner suffers impairment tribunal must also consider issue deciding whether practitioner registration cancelled submitted board suspended period time whether practitioner subject series condition proposed applicationby way application dated 1 may 2015 board sought following order practitioner engaged professional misconduct alternative unprofessional conduct b practitioner registration medical practitioner cancelled c practitioner pay board cost incidental application hearing board handed document seeking following finding order pursuant section 196 1 b iii thehealth practitioner regulation national law act national law tribunal find practitioner behaved way constitutes professional misconduct b pursuant section 196 2 e national law practitioner registration cancelled 14 october 2014 period 2 year alternative c pursuant section 196 2 national law practitioner registration suspended 14 october 2014 period 2 year alternative pursuant section 196 2 b national law condition imposed practitioner registration 15 october 2016 covering practitioner drug use health supervision mentoring education requirement advise future employer condition backgroundthe practitioner first registered practice medicine australia 7 december 2001 prior notification led application filed practitioner investigated medical council new south wale medical council 2013 poor professional behaviour language used colleague patient medical council referred practitioner psychiatrist dr bruce westmore assessment 4 june 2013 dr westmore recorded practitioner advised drank socially weekend use illicit drug report 10 june 2013 dr westmore opined practitioner personality disorder result practitioner moving canberra medical council referred matter board february 2014 meeting board resolved would impose condition practitioner practice invited make submission proposed condition practitioner declined said would commence treatment psychiatrist condition board decided impose practitioner registration may meeting included develop maintain relationship psychiatrist ensure psychiatrist provides report board every six month requested 10 september 2013 11 august 2014 practitioner employed intensive care registrar ncph 11 august 2014 board received notification general manager alleging respondent disclosed use illicit drug colleague used co worker mobile phone whilst work access facebook arrange purchase methamphetamine notifier also advised board practitioner admitted used ice occasionally used marijuana alcohol excess board met 14 august proposed take immediate action suspend practitioner registration investigate matter practitioner invited make submission response provided sworn affidavit 21 august 2014 included advising board tried cannabis march 2014 believed facebook entry found colleague made former partner ongoing substance abuse issue board met 21 august practitioner appeared member denied using illicit drug provided letter support colleague considering evidence board decided take immediate action suspend practitioner registration instead directed undergo health assessment hair strand drug testing 29 august medical council received notification practitioner treating psychiatrist dr helen proskurin dr proskurin understood practitioner shortly commence work rbh medical council forwarded notification queensland office health ombudsman day notified day office referred matter ahpra practitioner principal place practice still listed national register ncph act office given notification notification included dr proskurin treating practitioner since may 2014 aware board condition recently formed view practitioner drug problem likely impact medical practice practitioner advised dr proskurin misled board drug use told using cannabis 1 september practitioner employed intensive care registrar rbh 3 september board met consider dr proskurin notification considered practitioner registration suspended investigated practitioner invited make submission board advised board wished way email following advice board advised practitioner wished collect hair strand purpose drug testing sample taken 11 september request test presence amphetamine benzodiazepine cocaine methamphetamine also 11 september practitioner appeared board provided another sworn affidavit dated date affidavit included evidence advised board 21 august registration going suspended celebrated drank lot alcohol smoked two joint took two mdma capsule practitioner said stupid error judgment last consultation dr proskurin shared well drug use gay mardi gras march denied misleading board drug use offered random urine test future board considered evidence decided second time suspend practitioner registration took immediate action impose series condition including practitioner could use illicit drug work limited rbh must always subject clinical oversight senior practitioner asked submission response practitioner offered provide undertaking board accordance condition proposed provided 16 september 18 september board received result hair strand analysis positive methamphetamine mdma including ecstasy 9 march 7 june 2014 7 june 5 september 2014 result indicate period drug taken quantity used given result detailed analysis requested month month basis 25 september ahpra learnt practitioner failed advise rbh condition imposed registration day practitioner employment terminated 30 september detailed analysis practitioner hair strand provided revealing positive result mdma methamphetamine month 9 march 5 september 2014 3 october practitioner requested board review undertaking 16 september employment rbh terminated onsite supervision required senior practitioner available night shift work offered 9 october board resolved suspend practitioner registration given apparent inconsistency account drug use hair testing result also considered regular use mdma methamphetamine practising medical practitioner posed unacceptable risk public practitioner responded board proposed action writing 13 october admitted taking mdma every three week since march mardi gras sydney day practitioner asserted drug irrelevant day day clinical practice previously lied frequency use practitioner asked condition around supervision reviewed given difficulty requirement posed future employment 14 october board decided suspend practitioner registration whilst investigation continued directed undergo psychiatric drug alcohol assessment decision board considered practitioner failed demonstrate insight seriousness action also concerned still know exact nature drug used frequency could significant impact clinical practice 28 october testing practitioner hair sample undertaken test drug use 2013 first quarter 2014 board received report dated 4 november showed september december 2013 evidence cannabinoids mdma methamphetamine result given testing december march 2014 25 november 2014 practitioner saw associate professor jeffrey looi neuropsychiatrist assessed practitioner health impairment least hazardous substance use specifically mdma methamphetamine cannabis use posed significant risk health public direct effect intoxication withdrawal considered practitioner substance use assessed regularly monitored addiction medical specialist supervised board also recommended psychological treatment diagnosed impairment personality disorder supervised psychiatrist arranged board 26 november 2014 practitioner attended assessment dr saba javed staff specialist canberra hospital alcohol drug service reported practitioner advised used cannabis every six month since 2000 august 2013 august 2014 used approximately every two three week working practitioner also advised dr javed used mdma march 2013 every two three week dr javed found practitioner substance abuse disorder could identify imminent risk public 18 december board asked practitioner wished make final submission response investigation undertaken written response 6 january 2015 practitioner advised board dishonest frequency drug use including used march mardi gras 22 august 2014 appreciated neurotoxic drug mdma methamphetamine incompatible working medical specialty board formed view 21 january 2015 practitioner engaged professional misconduct defined section 5 national law matter must referred tribunal pursuant section 193 considered registration condition would adequately protect public due practitioner continued dishonesty lack insight admission practitionerby way letter dated 22 may 2015 board practitioner admitted particular set first nine paragraph application conceded conduct cumulatively amounted professional misconduct defined section 5 national law practitioner denied used colleague telephone work 1 july 2014 procure methamphetamine said used phone check facebook account practitioner claimed message accessed colleague facebook account sent number month earlier practitioner duty issue disputedid practitioner use colleague mobile phone procure methamphetamine work 1 july 2014 evidence support allegation come nurse worked practitioner ncp march 2014 advised m porritt 4 august 2014 finishing shift 1 july 2014 noticed receiving new message facebook accessing message nurse confused text sent aaron know recalled practitioner asked borrow mobile phone earlier day assumed practitioner logged facebook account nurse examined thread message prior new message concerned read following entry practitioner cool ice keep going night nurse took screen shot message others chain also took screen shot entry 16 march practitioner nikolas screen shot indicate time nurse took 11 24pm 11 46pm respectively message request practitioner aaron drug nikolas ice practitioner denies sent aaron message seeking illicit drug 1 july 2014 initially advised board partner time used facebook profile send message originated later withdrew statement admitting author said message sent earlier date 1 july 2014 whilst work board filed statement nurse dated 17 october 2015 nurse also gave evidence telephone advised take screen shot initial message alerted fact practitioner signed facebook page earlier day could recall sent aaron memory said also uncertain far thread message read cool ice keep going night nurse initially said cross examination swipe chain message later perhaps one swipe cross examination nurse also revealed uncertain date practitioner borrowed telephone could remember day week either evidence conflicted paragraph 11 statement included following appeared message sent nilanthi day 1 july 2014 although message date stamped asked inconsistency practitioner counsel nurse expressed annoyance signed statement haste could remember date given lack date stamp screen shot message coupled nurse retraction part paragraph 11 17 october 2015 statement tribunal find sufficient evidence support finding practitioner procured illicit drug work 1 july 2014 whilst work nurse reporting discovered employer 8 august 2015 establishes discovered practitioner facebook message time prior date nurse stated thought made discovery le five week prior reporting event giving doubt precise date practitioner used nurse phone access facebook page basis nurse recollection came forward employer thought far closer 8 august 1 july tribunal suspect given nurse concern practitioner patient unlikely waited five week report information learnt lead doubt 1 july date alleged conduct occurred tribunal found nurse genuine witness clearly concern effect notification practitioner career also understood risk practitioner care tribunal also considered nurse best answer series question hearing discovery 14 month earlier tribunal note board written submission practitioner accessed facebook page purpose sending communication date borrowed nurse phone otherwise appear reason accessed page tribunal agrees likely however sufficient doubt date message sent coupled evidence reply aaron communication practitioner forwarded lead find cannot certain balance probability practitioner used nurse phone obtain illicit drug 1 july finally tribunal troubled nurse oral evidence brought error paragraph 11 board attention day sent statement corrected prior start hearing also concerned nurse evidence executed statement without annexures attached revelation added tribunal doubt allegation practitioner use illicit drug 22 august 2014 practitioner advised board health practitioner saw tribunal taken illicit drug since 22 august 2014 arranged hair testing laboratory used board 13 july 2015 test preceding ten month three hair section measuring three centimetre analysed representing approximate time period 8 april 2015 7 july 2015 8 january 2015 8 april 2015 10 october 2014 8 january 2015 cannabis methamphetamine including ecstasy detected earliest two hair section april july 2015 tribunal considers issue important one considering protective order made practitioner continued take illicit drug 22 august 2014 mean lied applicant tribunal rehabilitation remains questionable clearly greater risk future patient due drug use dr lolita tsanaclis pharmacologist testing laboratory opined report dated 27 july 2015 result indicated decrease methamphetamine use level lower compared positive sample tested dr tsanaclis noted calculation section date assumed growth rate 1 centimetre per month individual growth vary 0 7 1 5 centimetre per month also noted possible cannabis methamphetamine used earlier time minimum approximate period indicated drug ceased drug level quickly drop remain detectable month due proportion hair resting phase phase hair growing contains trace drug previous use practitioner briefed dr michael robertson toxicologist provided written report dated 12 august 2015 gave evidence hearing dr robertson concurred dr tsanaclis view variation hair growth 0 7 centimetre 1 5 centimetre month also noted approximately 10 15 hair dormant time test result effected residual amount hair left scalp cutting area scalp hair removed also relevant dr robertson concluded given variable reasonably possible positive result two three period may due drug use prior 10 october 2014 cross examination agreed hair growth rate 1 5 centimetre assumed likely practitioner reused methamphetamine 22 august 2014 also hair sample taken close scalp growth rate 1 centimetre assumed also likely used drug august 2014 board retained dr dimitri gerostamoulos toxicologist pharmacologist provide opinion test result respond dr robertson opinion dr gerostamoulos provided report dated 5 october 2015 gave evidence telephone hearing agreed two expert hair grow average 0 7 centimetre 1 5 centimetre per month added hair grow rate however noted general acceptance many year using 1 centimetre per month testing dr gerostamoulos also stated le 5 centimetre usually left uncut donor scalp huge bearing estimated time detection window conceded drug cannabis take three month grow hair user abstains importantly dr gerostamoulos concluded even allowing variance detection time window month due variable growth rate collection procedure result showed cannabis methamphetamine used three nine month period prior collection considered likely practitioner used cannabis methamphetamine october 2014 april 2015 dr gerostamoulos referred study majority chronic methamphetamine user positive hair result 90 day abstinence 16 study 120 day detailed discussion application study practitioner tribunal note study involved chronic user practitioner considers study provide persuasive evidence may ceased using 120 day prior testing simply study result board obtained statement m cheryl jones director company took hair sample practitioner m jones undertook collection 13 july 2015 uncontested evidence staff select lock hair crown donor head cut close scalp possible without cutting skin estimate would 1 millimetre hair left scalp collection tribunal surprised greater certainty around hair test procedure also clear australian guideline collection analysis given significant impact result may donor decide safely decide precisely practitioner last used illicit drug 7 july 2015 tribunal assisted evidence three expert regarding variable hair testing result also aided m jones unchallenged evidence collection method employed based entirety testimony tribunal satisfied balance probability practitioner used methamphetamine cannabis 22 august 2014 even allowing variable raised particularly dr robertson given variable comfortably satisfied use beyond january 2015 also note trace methamphetamine found half earlier period cannabis result period tribunal found practitioner submission would initiated result served laboratory finding board taken drug 22 august 2014 merit however considers analysis result given three scientist mean likely practitioner used methamphetamine cannabis 22 august 2014 practitioner suffer impairment tribunal provided evidence board appointed psychiatrist practitioner treating health provider practitioner admits suffers impairment could nature personality disorder tribunal carefully considered evidence practitioner mental state prior notification alleged misconduct following action taken board suspending registration tribunal note set earlier section decision practitioner long involvement mental health practitioner psychiatrist psychologist counselor regard psychological difficulty experienced protracted period time difficulty include incapacity establish maintain mature lasting interpersonal relationship issue involving anger arrogance treatment co worker experience anxiety depression use illicit drug relationship issue focus practitioner consultation dr proskurin counselor provided eap program written assessment practitioner psychological state associate professor looi dr javed particular relation use illicit drug dr westmore dr knox dr short mr johnson tendered addition dr knox dr short mr johnson last two currently providing psychiatric psychological treatment practitioner gave oral evidence tribunal hearing dr javed report 27 november 2014 diagnosed substance use disorder mdma dr javed specialist psychiatrist practicing alcohol drug area dr westmore report dated 10 june 2013 stated practitioner suffered impairment offered formal psychiatric diagnosis personality disorder otherwise specified made according criterion specified american psychiatric association diagnostic statistical manual mental disorder fourth edition dsm associate professor looi report dated 25 november 2014 opined view sufficient longitudinal evidence formally diagnose personality disorder added view way necessarily disagree dr westmore assessment diagnosis dr short report dated 8 october 2015 noted adjustment issuesandinterpersonal difficulty offered diagnosis adjustment disorder proceed formal psychiatric diagnosis personality disorder oral evidence tribunal however dr short expressed view practitioner exhibited narcissistic personality trait necessarily amount formal diagnosis narcissistic personality disorder mr johnson report dated 26 september 2015 addressed difficulty emotional regulation lying without proceeding formal diagnosis personality disorder hearing mr johnson gave evidence practitioner evidenced sign either borderline personality disorder narcissistic personality disorder dr knox report dated 19 october 2015 explicit regard offering formal psychiatric diagnosis narcissistic personality disorder made according criterion specified dsm fifth edition based clinical examination practitioner dr knox provided tribunal clear clinical picture narcissistic personality disorder made standard clinical criterion 1 alternative dsm v model personality disorder 2 basis psychiatric psychological evidence generally guided particularly opinion expressed dr knox specifically tribunal persuaded practitioner suffers personality disorder likely narcissistic personality disorder dr knox also expressed view accepted tribunal practitioner also suffered substance use disorder secondary lying personality disorder issue insight whether practitioner accepts formal diagnosis mental disorder whether particular accepts deleterious effect illicit drug use performance medical practitioner also raised expert testimony evidence given tribunal practitioner lack insight implicit formal diagnostic criterion establishing narcissistic personality disorder expert opinion divided whether practitioner showed insight condition effect may performance medical practitioner dr short mr johnson expressed view practitioner least developed insight impairment dr knox opined report believe account narcissistic trait dr kanapathipillai recognised obligation medical practitioner responsible person behavioural disturbance unsatisfactory set changing good medical practice code conduct doctor australia detail number expectation registered medical practitioner include paragraph 1 4 professionalism embodies quality described includes self awareness self reflection doctor expected reflect regularly whether practising effectively happening relationship patient colleague health wellbeing paragraph 9 2 includes good medical practice involves seeking independent objective advice need medical care aware risk self diagnosis self treatment know suspect health condition impairment could adversely affect judgment performance patient health consulting doctor whether way may need modify practice following doctor advice practitioner suspension practice medicine since august 2014 given opportunity reflect past conduct seek help health practitioner however tribunal remains uncertain whether practitioner full insight mental condition effect may performance medical practitioner order made reflect standard proofthe medical board onus establishing practitioner behaviour constitutes professional misconduct standard proof civil standard explained inbriginshaw v briginshaw 1938 6 clr 336 see alsoforster v hunter new england area health service 2010 nswca 106 given seriousness allegation potential gravity consequence practitioner tribunal must comfortably satisfied ground set application established nature jurisdictionthe jurisdiction exercised tribunal protective punitive 3 key objective national law provide protection public ensuring health practitioner suitably trained qualified practise competent ethical manner registered tribunal also role protecting public deterring practitioner engaging similar conduct respondent proceeding also important public confidence profession maintained high professional standard fostered 4 sub section 196 1 b iii national law empowers tribunal decide practitioner behaved way constitutes professional misconduct whether practitioner impairment 5 professional misconductthe tribunal note practitioner admission cumulative behaviour constitutes professional misconduct comfortably satisfied also case finding extended drug use repeated misrepresentation board health practitioner rbh constitutes serious contravention national law impairmentthe tribunal also find reviewing evidence number psychiatrist health practitioner additionally pattern behavior shown practitioner impairment note practitioner accepts impairment could nature personality disorder considers go way explaining though justifying immature dangerous drug use practitioner submitted impairment may also explain attempt dishonestly hide drug use ncph raised concern tribunal considers practitioner must undergo treatment accordance condition relating drug use health proposed board document entitled finding order sought applicant medical board tendered hearing written submission practitioner oppose content draft condition relationship professional misconduct impairment discussed number case including nsw court appeal decision ofreimers v health care complaint commission 2012 nswca 317 case appellant anesthetist appealed decision deregistering included order reapply registration ten year dismissing submission finding impairment due substance abuse disorder precluded finding professional misconduct basten ja campbell hoeben jja agreed reasoned 14 impairment may manifest conduct reverse relationship impairment may explain particular conduct part whole protective orderssub section 196 2 national law detail power tribunal making finding sub section 196 1 b include imposing range condition practitioner registration requiring practitioner undertake period supervised practice power also extend suspension practitioner registration specified period cancelling registration pursuant sub section 196 3 condition imposed practitioner registration must review period condition tribunal decides cancel practitioner registration may also decide disqualify practitioner applying registration specified period 6 document entitled finding order sought applicant medical board board asked tribunal cancel practitioner registration two year 14 october 2014 alternative applicant sought practitioner registration suspended two year date alternative tribunal asked pose series detailed condition practitioner registration 15 october 2016 board referred tribunal case ofhealthcare complaint commission v dr ian mchue 2007 nswdmct 40007 07 decision tribunal ordered dr mchue name removed register permitted apply review order two year date decision tribunal found respondent medical practitioner deliberately misled treating psychiatrist board tribunal relation consumption alcohol noted 45 without honest dealing practitioner entire system developed benefit public practitioner imperilled practitioner whose conduct medicine called question must appreciate tribunal may treat dishonest statement explanation board panel expert appointed board tribunal justifying suspension deregistration even original conduct may well led result clearly similarity respondent practitioner case tribunal note case ofre dr le 7 tribunal commented condition made particularly imposed disciplinary context restriction lightly imposed may treated lightly practitioner whose registration subject condition could reasonably hold view condition must scrupulously observed repeated wilful breach condition treated medical tribunal serious finding practitioner containing grave criticism standard practitioner conduct tribunal considers deterrence practitioner one important function new south wale court appeal decision ofhealth care complaint commission v 2014 nswca 307 meagher ja basten ja emmett jj concurred discussed value deterrence importance public confidence noted 35 objective protecting health safety public confined protecting patient potential patient particular practitioner continuing risk malpractice incompetence includes protecting public similar misconduct incompetence practitioner upholding public confidence standard profession objective achieved setting maintaining standard appropriate cancelling registration practitioner competent otherwise fit practise including guilty serious misconduct denouncing misconduct operates deterrent individual concerned well general body practitioner also maintains public confidence signalling whose conduct meet required standard permitted practise tribunal carefully considered cancelling practitioner registration period time pressed board noted number decision referred practitioner counsel indicating cancelling registration removing respondent roll case legal practitioner usually implies finding respondent indefinitely disqualified practising conclusion reached practitioner disqualified removed roll 8 similarly innsw bar association v maddocksnswca 23 august 1988 unreported nsw medical tribunal reasoned 63 authority clearly establish medical practitioner deregistered exposed sanction livelihood taken away albeit protective purpose tribunal need find practitioner probably permanently unfit practice inprothonotary supreme court new south wale v ritchard 9 held court persuaded practitioner permanently unfit practice proper order usually one suspension fine instead removal practitioner counsel also referred tribunal decision ofre lenehan 1948 hca 45where latham cj dixon williams jj noted 27 person struck roll applies reinstatement disadvantageous position original applicant must displace decision probable permanent unfitness basis removal tribunal consider evidence including array health practitioner point practitioner permanently unfit practise returning melbourne also started seeing psychologist psychiatrist appears support family however practitioner repeated failure follow condition imposed board lead tribunal decide imposition condition proposed practitioner would inadequate mean protecting public tribunal also considers deter practitioner reengaging previous conduct least must suspended seeking reregistration two year period proposed board tribunal also considers practitioner applies registered 14 october 2016 subject extensive condition drafted board oppose detailed beginning reason decision condition cover practitioner drug use general health supervision mentoring education requirement notify future employer tribunal added additional condition order 8 pick recommendation treating psychiatrist dr short undertake two program offered melbourne clinic anxiety management dialectic behaviour therapy coststhe board seek order practitioner pay cost incidental proceeding section 48 acat act provides party application must bear cost unless act otherwise provides tribunal otherwise order section 57 acat act detail authorising law may set power tribunal decision may make authorising law tribunal power hear determine application involving member health profession falling national registration scheme come national law authorising law contemplated section 57 acat act setting power decision tribunal may make section 195 national law give guidance tribunal considering cost providing tribunal may make order cost considers appropriate proceeding give tribunal discretion relation cost order section 195 national law give guidance tribunal providing tribunal may make order cost considers appropriate proceeding tribunal note high court authority oflatoudis v casey 1990 hca 59where mchugh j reasoned relation cost 6 even discretion uncontrolled civil court act basis successful party reasonable expectation obtaining order cost discretion refuse award cost exercised successful party expect reason connected case thelatoudisdecision applied many case involving health practitioner new south wale victoria queensland tribunal also previously made cost order favour national board seemedical board australia v adam 2015 acat 8as case involving practitioner respondent inadamshad misled board drug use tribunal agrees board submission case practitioner taken opportunity given board two occasion previously proposed suspension proceeding would necessary tribunal note practitioner submission cost awarded due board pursuit allegation practitioner used colleague phone work procure drug 1 july 2014 detailed tribunal find allegation proven however consider pursuit ground calculated occasion unnecessary expense 10 unfair result departure ordinary rule 11 board clear evidence practitioner used colleague phone procure drug evidence led initial notification board evidence support date procurement occurred still important evidence board application practitioner generally view finding serious misconduct tribunal order practitioner pay board cost proceeding agreed agreed cost fixed tribunal recommendation registrar following assessment cost registrar scale applicable supreme court matter party party basis tribunal also note decision inhccc v greenwood 2011 nswnmt 13and found case particular application established sufficient justify making cost order senior member brennan member byrnehearing detailsfile number 13 2015parties applicant medical board australiaparties respondent dr nilanthi kanapathipillaicounsel appearing applicantms tonkincounsel appearing respondentmr lynchsolicitors applicantact government solicitorsolicitors respondenthicksons lawyerstribunal member senior member brennanmember byrnedates hearing 10 november 201511 november 201512 november 2015 1 dsm v page 669 670 2 dsm v page 767 768 3 health care complaint commission v litchfield 1997 nswsc 297 4 health care complaint commission v howe 2010 nswmt 12 5 sub section 196 1 b iv 6 section 196 4 7 medical tribunal decision 20 september 2001 95 8 see examplensw bar association v maddocks 1988 nswca 23august 1988 unreported 9 nswca 31 july 1987 unreported 10 keddie v foxall 1955 viclawrp 58 1955 vlr 320at 323 4 11 commonwealth australia v gretton 2008 nswca 117at 121

BANCROFT and GARDENER [2013] FCWAM 122 (7 November 2013).txt

bancroft gardener 2013 fcwam 122 7 november 2013 last updated 1 october 2014jurisdiction magistrate court western australia 150 terrace roadact family court act 1997location perthcitation bancroft gardener 2013 fcwam 122coram moroni mheard 22 october 2013delivered 7 november 2013file ptw 324 2012between mr bancroftapplicantandms gardenerrespondentcatchwords family law jurisdiction de facto relationship whether relationship marriage like evaluation factor indicating de facto relationship relationship le two year substantial contribution serious injusticelegislation family court act 1997 wa interpretation act 1984 wa category reportablerepresentation counsel applicant self represented litigantrespondent mr kavanaghsolicitors applicant applicablerespondent kavanagh lawyerscase referred judgment word square bracket replace word used originaljudgment party name identifying detail beenchanged1 proceeding determination court comprise form 1 application mr bancroft applicant filed 19 january 2012 form 1a response m gardener respondent filed 15 june 2012 2 applicant seek order pursuant certain provision ofpart 5aof thefamily court act 1997 wa act 3 briefly put applicant case party lived de facto relationship extending period 20 month made substantial contribution type caught bys 205zg 4 b c act failure make order seek would result serious injustice 4 respondent case firstly de facto relationship party alternative respondent case applicant made substantial contribution type referred alternative would serious injustice applicant court make order underpart 5aof act composition evidence5 applicant evidence chief comprised trial affidavit form 13 financial statement filed 24 july 2013 6 applicant call witness 7 respondent evidence chief comprised trial affidavit form 13 financial statement filed 15 august 2013 8 respondent call witness relevant statutory provisions9 first statutory provision relevance i 205zof act provides follows 205z court may make order division 1 court may make order relation de facto relationship satisfied de facto relationship partner least 2 year b child de facto relationship yet attained age 18 year failure make order would result serious injustice partner caring responsible child c de facto partner applies order made substantial contribution kind mentioned insection 205zg 4 b c failure make order would result serious injustice partner 2 deciding whether de facto relationship partner least 2 year court must consider whether break continuity relationship length break extent breakdown relationship 3 subsection 2 limit matter court may consider 10 expression de facto relationship defined in 13aof theinterpretation act 1984 wa theinterpretation act follows 13a de facto relationship de facto partner reference 1 reference written law de facto relationship shall construed reference relationship legal marriage 2 person live together marriagelike relationship 2 following factor indicator whether de facto relationship exists 2 person essential length relationship b whether 2 person resided together c nature extent common residence whether sexual relationship e degree financial dependence interdependence arrangement financial support f ownership use acquisition property including property individually g degree mutual commitment shared life h whether care support child reputation public aspect relationship 3 matter whether person different sex sex b either person legally married someone else another de facto relationship 4 reference written law de facto partner shall construed reference person life context requires lived de facto relationship 5 de facto partner person thefirst person person life lived de facto relationship first person 11 event applicant able satisfy court party de facto relationship extending period 20 month alleged close thereto court satisfied applicant made substantial contribution type referred 205z 1 c act court satisfied failure make order would result serious injustice applicant court must turn attention 205zg act 12 section 205zg provides relevantly follows 205zg alteration property interest 1 proceeding respect property de facto partner either court may make order considers appropriate altering interest party property including order settlement property substitution interest property including order requiring either partner make benefit either partner child de facto relationship settlement transfer property court determines 2 3 court must make order section unless satisfied circumstance equitable make order 4 considering order made section proceeding respect property de facto partner either court must take account financial contribution made directly indirectly behalf de facto partner de facto relationship child de facto relationship acquisition conservation improvement property de facto partner either otherwise relation lastmentioned property whether lastmentioned property since making contribution ceased property de facto partner either b contribution financial contribution made directly indirectly behalf de facto partner child de facto relationship acquisition conservation improvement property de facto partner either otherwise relation lastmentioned property whether lastmentioned property since making contribution ceased property de facto partner either c contribution made de facto partner welfare family constituted de facto partner child de facto partner including contribution made capacity homemaker parent effect proposed order upon earning capacity either de facto partner e matter referred section 205zd 3 far relevant f order made act affecting de facto partner child de facto relationship g child support child support assessment actthat de facto partner provided provide might liable provide future child de facto relationship 5 6 7 8 9 13 seen text immediately 205zg 4 e act import relevant matter referred 205zd 3 act 14 section 205zd 3 act provides follows 205zd maintenance order 1 2 3 matter taken account age state health de facto partner b income property financial resource de facto partner physical mental capacity appropriate gainful employment c whether either de facto partner care control child de facto relationship attained age 18 year commitment de facto partner necessary enable partner support ii child another person party duty maintain e responsibility either party support person f subject subsection 4 eligibility either party pension allowance benefit law commonwealth state territory another country ii superannuation fund scheme whether fund scheme established operates within outside australia rate pension allowance benefit paid either party g standard living circumstance reasonable h extent payment maintenance party whose maintenance consideration would increase earning capacity party enabling party undertake course education training establish business otherwise obtain adequate income extent party whose maintenance consideration contributed income earning capacity property financial resource party j duration de facto relationship extent affected earning capacity party whose maintenance consideration k need protect party wish continue party role parent l either party cohabiting another person financial circumstance relating cohabitation term order made proposed made section 205zg relation property party n child support child support assessment act de facto partner provided provide might liable provide future child de facto relationship fact circumstance opinion court justice case requires taken account p term financial agreement former financial agreement binding party 4 brief background15 applicant presently 57 year age born 1956 casual employment tradesman 16 applicant living rental accommodation suburb 17 respondent presently 58 year age born 1955 employed full time basis manager 18 respondent life property owned situated suburb b property 19 party commenced relationship march 2009 met via recourse popular online dating website 20 according respondent party began live together may 2009 applicant took residence property 21 although applicant said party marriage like relationship march 2009 would appear court party began living together may 2009 22 common ground relationship ended 11 november 2010 23 thus party lived together period 18 month 24 child relationship party 25 relationship party slept bedroom sexual relationship although extent relationship matter dispute trial 26 party first began live together applicant self employed generating income road pilot 27 respondent common ground employed continuously relationship albeit changed employment several time 28 respondent asserts july 2010 applicant gave work altogether road pilot work time date separation 29 unfortunately neither party provided evidence taxable income figure relevant period 30 length relationship span three consecutive financial year year ended 30 june 2009 2010 2011 31 would extremely helpful court evidence provided particularly respect year ended 30 june 2010 32 dispute party concerning precise detail management financial relationship whilst lived together clear though party acquire property joint name joint bank account joint credit card joint liability 33 party went away together number holiday course relationship 34 otherwise one quite unusual feature relevant chronology relates decision party made 2010 host described paper commitment ceremony relevant ceremony celebration involved party meeting cost fully catered party family friend evidence would suggest expensive exercise party 35 point latter half 2010 respondent granddaughter made complaint indecent dealing part applicant 36 result applicant charged police faced trial january 2012 37 applicant subsequently convicted offence sentenced 15 month imprisonment applicant released prison seven eight month served balance sentence parole 38 applicant made clear court accept verdict court convicted steadfastly maintains innocence relevant charge 39 would appear complaint made applicant cause substantial cause party separating 11 november 2010 remaining separated thereafter 40 point noted paragraph 129 trial affidavit respondent asserts granddaughter made relevant complaint november 2011 however presumably typographical error correct time november 2010 41 otherwise one significant event occurred long prior date separation concern acquisition certain subaru motor vehicle 42 september 2010 respondent traded mitsubishi motor vehicle purchase near new subaru motor vehicle 43 cost subaru vehicle 39 100 applicant contributed 31 350 towards purchase price respondent receiving 4 000 allowance mitsubishi vehicle shortfall purchase cost otherwise met respondent 44 respondent still possession subaru motor vehicle 45 according form 13 financial statement subaru motor vehicle presently worth 19 620 46 neither party led expert evidence establish present value subaru motor vehicle applicant trial appear take issue respondent estimate present value vehicle 47 otherwise relevant history event fairly unremarkable 48 perhaps matter add following breakdown relationship applicant received inheritance 50 000 estate late step mother however would appear money spent applicant cover legal cost respect criminal proceeding relief sought parties49 applicant never amended form 1 application filed 19 january 2012 sought order respondent pay sum 60 000 50 otherwise applicant proposed order made either altering interest property requiring settlement property favour lieu order altering interest property 51 respondent simply sought order applicant application dismissed pay cost proceeding de facto relationship party 52 court bound say little surprised hear respondent counsel confirm commencement trial respondent conceding party de facto relationship may 2009 november 2010 53 court little difficulty finding de facto relationship party extending may 2009 november 2010 54 particular circumstance case unnecessary court make detailed finding fact respect every relevant statutory indicator 55 considering relevant statutory indicator set in 13a 2 theinterpretation act need borne mind every single factor need established applicant order prove de facto relationship indicator important none individually essential 56 firstly length relationship either view evidence 20 month party first forming relationship march 2009 57 secondly common ground party resided together whole period may 2009 november 2010 period 18 month also significant person residence property period 58 thirdly nature extent common residence evidence provided court would suggest nothing particularly significant unusual way party shared occupation property 59 say party appears played relatively traditional role respondent accepting responsibility work inside home applicant relatively handy person attending management maintenance item outside home like 60 neither party involved relationship whilst shared common residence way party actually managed common residence unremarkable 61 fourthly court need consider whether sexual relationship party 62 either view evidence certainly sexual relationship party hardly surprising given individual circumstance given fact actually met recourse online dating service 63 seems court undeniable generally people would recourse online dating service unless interested romantic relationship another person would certainly appeared happened case party 64 party met obviously got well within short time meeting decided share common residence 65 respondent confirms party slept together master bedroom presumably bed respondent admits sexual intercourse say occurred rarely 66 applicant concede sexual intercourse occurred infrequently respondent suggested quite correctly said many different way people relationship might express sexually short actual intercourse 67 generally accepted expression sexual relation mean different thing different people 68 present purpose unnecessary court making detailed finding extent sexual relationship party suffice say sexual relationship highly likely party began live together expectation would ongoing sexual relationship 69 enough said topic 70 fifthly issue degree financial dependence independence arrangement financial support party 71 court satisfied large significant degree financial independence party uncommon de facto relationship entered people might fairly described relatively mature age 72 say need borne mind party well age 50 first began live together doubt party involved romantic relationship long meeting 73 party working time commencing live together party owned property beginning live together 74 relationship produce child 75 circumstance hardly surprising degree financial independence party 76 financial benefit party sharing accommodation whilst entirely true say said past two live cheaply one still certain fixed cost relating maintenance home increase whether one person life home however said clearly type cost increase one person household 77 court satisfied evidence party endeavoured share joint living cost fair reasonable term 78 next question ownership use acquisition property party 79 significantly party never acquired property joint name property belonged respondent party began live together 80 applicant reasonably significant property commencement relationship kept sole name 81 subaru motor vehicle reference made registered sole name respondent course mere fact registration motor vehicle conclusive evidence title case real property 82 however although applicant would concede contribution towards cost acquisition subaru motor vehicle gift neither seek argue respondent held part legal interest motor vehicle benefit form resulting trust constructive trust 83 also common ground party create joint financial liability arranging joint credit card facility 84 next statutory indicator concern degree mutual commitment demonstrated party shared life 85 respect said course reasonable standard relatively short relationship said two people make strong commitment within relatively short space time uncommon 86 doubt party entered relationship high hope would longstanding relationship made party happy general experience court people enter personal relationship hope expectation fail 87 particular circumstance case evidence concerning substantial investment made party described commitment ceremony occurred 2010 compelling 88 either view evidence financial investment party hosting commitment ceremony substantial indeed part respondent case paid great majority significant cost commitment ceremony 89 would respondent make significant investment committed shared life applicant 90 given evidence around hosting commitment ceremony given evidence around acquisition subaru motor vehicle time seems court prior disclosure made respondent granddaughter relationship progressing well 91 certainly suggestion relationship either party looking form relationship person 92 balance court satisfied relationship carry significant degree mutual commitment shared life 93 applicant annexed trial affidavit appendix 6 copy two long email sent respondent concerning life together email dated 16 19 november 2010 94 given quite poignant content email seems court always going difficult task respondent establish mutual commitment party shared life 95 indeed general content email appears quite inconsistent respondent present stance never marriage like relationship party 96 penultimate statutory indicator noted child relationship furthermore child cared supported presently either party 97 final statutory indicator concern reputation public aspect relationship party 98 generally speaking bona fide dispute two litigant whether de facto relationship ever place party call number witness support case respectively regarding particular indicator 99 somewhat surprising see neither party called witness case provide court evidence relationship question appeared outside world 100 certainly evidence would suggest neither party endeavoured make secret fact party living together way shared common residence would probably appear third party resemble fairly standard form de facto marital relationship 101 would interesting either party called one guest attended commitment ceremony likely invitee would formed conclusion time party indeed committed exclusive marriage like relationship 102 relevant legal principle applied court 103 present purpose unnecessary quote many leading authority area 104 suffice say substantial guidance subject found paragraph 335 355 judgment family court western australia intruman clifton 2010 fcwa 91 passage question often quoted honour analysis relevant authority extremely helpful relevant passage lengthy present purpose need recited 105 generally accepted marriage like relationship take many shape form indeed many marriage one single template marriage marriage like relationship 106 particular case always turn particular set fact final analysis court persuaded otherwise particular set fact pertaining particular relationship exhibit sufficient relevant statutory indicator lead conclusion relationship question considered de facto relationship 107 standing back considering evidence totality court little hesitation finding relationship party may 2009 november 2010 carry sufficient indicia marriage like relationship constitute de facto relationship purpose ofpart 5aof act applicant made substantial contribution 108 section 205z 1 c act refers substantial contribution kind mentioned 205zg 4 b c act 109 say three broad category contribution court must take account 110 first two group contribution need tied acquisition conservation improvement property party either 111 however third category contribution namely caught 205zg 4 c act assessed large 112 perhaps first thing say evidence presented applicant would certainly satisfy court made substantial 205zg 4 c contribution criticism applicant 113 however point childless short relationship party worked away joint place residence 114 evidence satisfies court likely respondent made greater 205zg 4 c contribution two party 115 applicant case though made substantial direct indirect financial contribution towards acquisition conservation improvement various item respondent property 116 moreover applicant also asserts made direct non financial contribution acquisition conservation improvement property respondent term carrying work property 117 perhaps point may useful consider financial snapshot financial position party time first began live together time trial 118 common ground may 2009 applicant self employed working tradesman property form cash bank 180 000 caravan home purchased may 2007 96 300 value may 2009 unknown land rover motor vehicle applicant estimate worth 40 000 estimate supported expert evidence 119 otherwise may 2009 applicant superannuation interest worth 150 000 120 presently applicant cash saving motor vehicle worth 34 000 estimate couple item property minimal value 121 otherwise applicant superannuation entitlement risen value 183 145 122 respondent may 2009 owned property subject mortgage anz bank 123 respondent estimated value property may 2009 480 000 subject mortgage owing 300 000 124 otherwise commencement de facto relationship respondent owned mitsubishi motor vehicle estimate worth 6 000 household content estimate worth 5 000 125 otherwise respondent superannuation entitlement 41 000 commencement de facto relationship 126 time trial like applicant respondent financial position deteriorated 127 also like applicant respondent evidence estimated value supported expert valuation evidence 128 presently respondent still owns property say still worth 480 000 mortgage balance increased 398 000 129 thus present value respondent equity property reduced 82 000 130 respondent still furniture content estimate worth 5 000 couple item property modest value 131 respondent still owns subaru motor vehicle referred estimate current value vehicle 19 620 132 neither party adduced expert evidence respect valuation issue however trial applicant appear quibble respondent estimate present value subaru motor vehicle 133 made finding immediately noted court would assisted considerably party provided court evidence taxable income financial year ended 30 june 2009 2010 2011 134 particular significance would taxable income figure party year ended 30 june 2010 given party lived together couple month financial year preceding following year ended 30 june 2010 135 party provided court extremely detailed evidence payment respectively alleges made joint benefit 136 appendix 5 applicant trial affidavit lengthy schedule prepared detailing expenditure course relationship say joint benefit 137 respondent asserted court place much weight content appendix 5 given applicant annex original source documentation receipt invoice submission find favour court 138 applicant said clearly detailed schedule prepared referred supporting original source documentation documentation included applicant disclosure list available inspection respondent wished check applicant calculation 139 respondent conceded ever ask inspect document applicant disclosure list would appear neither solicitor 140 applicant case leaving aside contribution cost subaru motor vehicle spent 60 000 joint expense 141 respondent paint quite different picture asserts whilst applicant may time time made payment cover household related item arrangement party would refund significant portion individual outlay 142 respondent explained working full time whereas applicant often much free time available actually go shop purchase item arrange service respondent say reason applicant made payment certain expense first instance made number significant payment applicant reimbursement 143 respondent provided detailed evidence court regarding management party finance time lived together 144 part respondent case covered paragraph 32 57 inclusive trial affidavit material includes several detailed schedule expenditure 145 respondent counsel cross examine applicant great detail concerning individual item expenditure alleged neither applicant cross examine respondent respect detail evidence part trial affidavit referred immediately 146 absence detailed cross examination difficult court make finding favour one party head 147 said seems court fairly significant weakness applicant case given full credit every dollar spent whilst living respondent seems court select example money spent holiday applicant derived considerable benefit expenditure 148 say applicant case spent large sum money sending respondent holiday part experience presumably enjoyed 149 also considerable dispute party paid food consumed relationship significantly actually consumed food fairly obvious concerned possible court carry precise mathematical analysis expenditure party made head actual benefit received 150 true applicant made payment respondent called board applicant called contribution towards respondent mortgage expense 151 need borne mind evidence would suggest respondent managing mortgage finance adequately applicant began live together say evidence would suggest respondent decision form de facto relationship driven need financial support simply desire relationship applicant hope party would mutually beneficial personal long term relationship 152 respondent said applicant moved home employed full time earning 50 000 per annum receiving net fortnightly salary 1 480 153 respondent purchased property nine year prior commencement cohabitation one way another respondent able manage mortgage commitment long time met applicant 154 summary evidence satisfies court party enjoyed good standard living whilst sharing occupation property noted financial advantage two people sharing one set premise 155 applicant perspective benefit occupying respondent property would pay rental elsewhere acknowledging applicant asserts contribution way board would greater rent would paid still matter choice part applicant 156 similarly applicant living respondent still would needed fed meet cost entertainment go holiday 157 furthermore party appear made joint decision live life comfortable standard court make criticism either party making choice doubt neither party anticipated relationship would break 18 month living together 158 applicant say made financial choice time based expectation relationship would permanent would taken conservative approach finance known would happen november 2010 159 evidence presented applicant weighed context enjoyed good standard living whilst party living together satisfy court applicant made substantial contribution either direct indirect 205zg 4 act except one respect namely respect acquisition subaru motor vehicle 160 next applicant 205zg 4 b contribution ass 161 subject covered applicant paragraph 13 14 15 applicant trial affidavit 162 respondent dispute applicant carried certain handyman task relatively brief time party lived together however respondent argued court inclined view perhaps applicant somewhat exaggerated extent value work performed 163 difficulty court evidence suggest handyman task performed applicant short relationship actually lifted value property 164 balance taking account court satisfied respondent made greater 205zg 4 c contribution court unpersuaded applicant made substantial 205zg 4 b contribution 165 question whether particular contribution would amount substantial contribution context 205z 1 c act considered former chief judge family court western australian invarga kelty 2005 fcwa 80 166 paragraph 21 judgment court said substantial mean something usual ordinary 167 undeniable putting applicant contribution towards acquisition subaru motor vehicle one side moment applicant made 205zg 4 b contribution however court view contribution considered constitute something usual ordinary 168 also authority namely tristan olifient 2007 fcwa 43 paragraph 54 thereof proposition term substantial considered context financial position party might appear substantial contribution people limited financial resource might substantial case involving wealthy party say court considering economic value 205zg 4 b contribution court need mindful financial circumstance generally party 169 two party certainly could considered wealthy indeed wealthy 170 applicant contributed 31 350 towards total cost 39 100 acquire subaru motor vehicle say applicant made direct financial contribution 80 towards cost purchasing vehicle 171 given applicant financial circumstance generally around time acquisition vehicle presently court satisfied contribution particular respect considered substantial 172 applicant investment acquisition subaru motor vehicle court would unpersuaded applicant made substantial contribution type caught 205z 1 c act 173 however end exercise would serious injustice court make order 174 sufficient applicant establish made substantial contribution type caught 205z 1 c act applicant must also establish would serious injustice court fail make order seek point need remembered applicant actually sought order respondent pay sum 60 000 175 expression serious injustice considered supreme court northern territory invan jole v cole 2000 ntsc 18 2000 26 fam lr 228 176 expression considered disposition proceeding brought party northern territory legislation governing financial relation former de facto partner 177 paragraph 16 judgment court said necessary court look whole surrounding circumstance agreement order determine whether accordance ordinary english usage word serious injustice arises injustice opposite justice includes concept wrong unfairness word serious context suggests weighty grave considerable agree submission made mr young appeared behalf respondent circumstance matter expression serious injustice given ordinary meaning considerable wrong unfairness 178 seems court meaning given expression serious injustice need considered context whole structure 205z act 179 say parliament decided general proposition court may make order division 2 ofpart 5aof act de facto relationship foot least two year 180 acknowledging circumstance would appropriate make division 2 order respect people de facto relationship period shorter two year parliament provided limited set circumstance power court extended 181 general two year limit included legislation reason seems clear enough court exception rather rule case involving de facto relationship le two year attract jurisdiction court 182 obvious observation make parliament seen fit apply adjective serious noun injustice 205z 1 c thus parliament acknowledged would case might result injustice would attract jurisdiction court 205z 1 c 183 seems court type case established substantial contribution made de facto partner short relationship whilst might injustice order made division 2 injustice could considered serious 184 court come view following reason 185 first point make court view question injustice applicant one hand need weighed reference potential injustice respondent 186 say applicant present financial circumstance taken account respondent 187 whilst party may spent 39 100 acquire subaru motor vehicle item question depreciated value figure 19 620 188 applicant contributed 80 purchase cost arguably might expect receive respondent payment equivalent 80 current value vehicle would figure order 15 700 189 court acknowledges 15 700 insignificant amount particularly regard present financial circumstance applicant say seems court relationship lasted usual minimum period two year highest applicant case would seen receiving payment respondent order 15 700 190 court accepts applicant present financial circumstance difficult however evidence presented court leave satisfied applicant currently exercising earning capacity fullest extent 191 expert evidence led applicant establish medical reason could work full time basis appears done past applicant reasonably strong financial position first met respondent presumably reflection earning capacity exercised number year 192 extent applicant presently low level earnings function recent conviction certainly respondent cannot held account 193 say extent applicant presently low level earnings partly wholly due recent conviction respondent blame ought penalised financially 194 need said applicant present financial circumstance would much better spend 50 000 inheritance paying legal fee associated unsuccessful defence criminal proceeding respondent ought held account particular circumstance 195 time party began live together applicant self employed road pilot obviously done well enough life able save considerable amount cash fact applicant significant quantity cash disposal course relationship may influenced many spending decision relationship including contributing cost subaru motor vehicle 196 court accepts respondent evidence decision acquire subaru motor vehicle largely driven applicant court way expressing criticism applicant respect evidence satisfies court wished assist respondent working life helping acquire motor vehicle appropriate standard generous decision part 197 said applicant financial circumstance somewhat difficult present time need said respondent particularly strong financial position work full time generating annual salary 67 700 per year contemporary standard particularly high salary 198 present value respondent equity property slightly 80 000 199 superannuation entitlement applicant far stronger position two party whilst applicant may still year retirement superannuation entitlement substantial indeed 200 respondent financial position presently also function meet legal cost defending proceeding since commenced january last year 201 question becomes would constitute serious injustice applicant able pursue claim respondent would likely capped something 16 000 court inclined answer question negative conclusion202 follows reason proceeding court dismissed order effect made certify preceding 202 paragraph true copy reason forjudgment delivered honourable courtsecretary

Genesalio & Genesalio (No 2) [2023] FedCFamC1F 611 (25 July 2023).txt

genesalio genesalio 2 2023 fedcfamc1f 611 25 july 2023 last updated 5 september 2023federal circuit family court australia division 1 genesalio genesalio 2 2023 fedcfamc1f 611file number mlc 7657 2018judgment john jdate judgment 25 july 2023catchwords family law practice procedure apprehension bias previous order joining second respondent proceeding second respondent seek primary judge disqualify second respondent alleges apprehension bias apprehension bias established order made dismissing applicationlegislation family law act 1975 cth 79cases cited ebner v official trustee bankruptcy 2000 hca 63 2000 205 clr 337genesalio genesalio 2023 fedcfamc1f 160johnson v johnson 2000 hca 48 2000 201 clr 488vakauta v kelly 1989 hca 44 1989 167 clr 568division division 1 first instancenumber paragraph 47date hearing 11 july 2023place melbournecounsel applicant m fredericocounsel first respondent dr inglebycounsel second respondent appeared personordersmlc7657 2018federal circuit family court australia division 1 m genesalioapplicantand mr genesaliofirst respondentmr genesaliosecond respondentorder made john jdate order 25 july 2023the court order paragraph 2 second respondent application proceeding filed 3 july 2023 seeking primary judge recuse dismissed note form order subject entry court record note copy court reason judgment may subject review remedy minor typographical grammatical error r 10 14 b federal circuit family court australia family law rule 2021 cth record variation order pursuant r 10 13federal circuit family court australia family law rule 2021 cth 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 pseudonymgenesalio genesaliohas approved pursuant tos 121 9 g thefamily law act 1975 cth reason judgmentintroductonthese proceeding relate competing property application applicant wife m genesalio respondent husband mr genesalio married approximately 26 year seek adjustment property interest pursuant tos 79of thefamily law act 1975 cth 26 april 2023 upon application wife opposed husband brother made order husband brother mr genesalio joined second named respondent proceeding day published reason judgment relation decision genesalio genesalio 2023 fedcfamc1f 160 application proceeding filed 3 july 2023 second respondent sought following relief stay order made 26 april 2023 pending outcome appeal naa141 2023 primary judge recuse proceeding dismiss order made 26 april 2018 application listed hearing 11 july 2023 addition issue raised second respondent application proceeding matter listed finalise outstanding issue respect disclosure arising wife amended application proceeding filed 19 august 2022 application recuse opposed wife husband light second respondent application disqualified hearing matter common ground party prior determination outstanding issue necessary first determine application reason follow found basis disqualify hearing matter dismissed second respondent application time order made indicated would provide reason judgment later date reason judgment backgroundthe wife aged 63 year employed educator husband aged 67 year suffered ill health since around 2010 worked since time husband wife married 1994 separated one roof august 2017 party divorced 2020 three adult child relationship november 2018 order made wife sole use occupation former matrimonial home suburb c since time husband resided brother second respondent home late parent f street suburb c second respondent professional operated business 2005 husband deposes present heavily reliant upon brother support financially physical carer due husband ongoing ill health procedural historyby amended application proceeding filed applicant wife 19 august 2022 sought order husband brother joined party proceeding also sought order valuation property held husband brother entity controlled sought order disclosure application opposed husband brother wife application joinder listed 12 july 2022 day made order requiring wife file serve statement claim setting legal factual basis claim husband legal equitable interest property owned brother entity controlled also ordered husband brother file defence wife statement claim matter otherwise adjourned interim defended hearing proceeded 21 november 2022 hearing 21 november 2022 husband wife represented senior counsel husband brother represented husband brother opposed wife application joinder conceded order made joinder husband brother followed order made valuation interest subject dispute included property held husband brother entity controlled husband brother confirmed oral submission adopted relied upon submission made senior counsel husband support opposition joinder 1 26 april 2023 ordered husband brother joined second named respondent proceeding published reason judgment reason made order valuation property motor vehicle number plate held second respondent entity reason stated 101 103 follows regard wife statement claim evidence filed support claim application final order accept submission failed particularise claim wife identified property claim made action taken husband brother say establish claim example transfer interest h street borrowing fund private lender secured property benefit e trust trust asserted husband brother accept contention wife fabricated claim respect alleged partnership clear factual dispute party circumstance acquisition property entity controlled course relationship view whether matter alleged wife proven matter determination following testing evidence final hearing position make finding fact interlocutory hearing 23 may 2023 second respondent filed notice appeal relation order made 26 april 2023 13 june 2023 appeal judicial registrar made order second respondent notice appeal summarily dismissed 26 june 2023 second respondent filed application appeal review order made appeal judicial registrar review application heard austin j 6 july 2023 day honour made order follows application appeal filed 26 june 2023 dismissed applicant shall pay first respondent party party cost incidental review application fixed sum 3 000 second respondent contends result conduct hearing 21 november 2022 order made 26 april 2023 disqualify hearing matter basis apprehended bias document relied uponthe second respondent relies upon following document support application application proceeding filed 3 july 2023 affidavit second respondent sworn 3 july 2023 outline case document dated 3 july 2023 exhibit mg 1 outline case document interim hearing addition outline filed 3 july 2023 dated 10 july 2023 transcript proceeding dated 12 july 2022 transcript proceeding dated 21 november 2022 andaffidavit second respondent filed 8 november 2022 legal principlesthe principle applied determination application relating apprehension bias identified plurality high court gleeson cj gaudron mchugh gummow hayne jj injohnson v johnson 2000 hca 48 2000 201 clr 488where stated follows established series decision court test applied australia determining whether judge disqualified reason appearance bias present case said take form prejudgment whether fair minded lay observer might reasonably apprehend judge might bring impartial unprejudiced mind resolution question judge required decide test adopted preference differently expressed test applied england reason give due recognition fundamental principle justice must done seen done based upon need public confidence administration justice fair minded people reasonably apprehend suspect tribunal prejudged case cannot confidence decision hypothetical reasonable observer judge conduct postulated order emphasise test objective founded need public confidence judiciary based purely upon assessment judge capacity performance colleague time two thing need remembered observer taken reasonable person observed professional judge whose training tradition oath affirmation require judge discard irrelevant immaterial prejudicial high court decisionebner v official trustee bankruptcy 2000 hca 63 2000 205 clr 337identified test constitutes apprehension bias 6 8 follows 6 absence suggestion actual bias question arises independence impartiality judge judicial officer juror governing principle subject qualification relating waiver presently relevant necessity may relevant second appeal judge disqualified fair minded lay observer might reasonably apprehend judge might bring impartial mind resolution question judge required decide principle give effect requirement justice done seen done requirement reflects fundamental importance principle tribunal independent impartial convenient refer apprehension bias principle 7 apprehension bias principle may thought find justification importance basic principle tribunal independent impartial important principle even appearance departure prohibited lest integrity judicial system undermined however aspect apprehension bias principle recognised deciding whether judicial officer juror mightnot bring impartial mind resolution question determined requires prediction judge juror fact approach matter question one possibility real remote probability similarly matter already decided test one requires conclusion factorsactuallyinfluenced outcome attempt need made inquire actual thought process judge juror 8 apprehension bias principle admits possibility human frailty application diverse human frailty application requires two step first requires identification said might lead judge juror decide case legal factual merit second step le important must articulation logical connection matter feared deviation course deciding case merit bare assertion judge juror interest litigation interest party assistance nature interest asserted connection possibility departure impartial decision making articulated reasonableness asserted apprehension bias assessed conduct alleged second respondent give rise apprehended bias second respondent identified four matter contends support application disqualified hearing matter basis apprehended bias require wife amend statement claim remove second respondent contends misrepresentation contained document failed make finding wife triable claim regard evidence court second respondent submission questioned relation income earned entity controlled submits conduct demonstrates unreasonable suspicion action giving rise apprehension bias andmy observation manner second respondent presented case mocking give rise apprehension bias second respondent relied upon decision high court australia invakauta v kelly 1989 hca 44 1989 167 clr 568in support application case relates question whether party waive right object judicial officer continuing hear matter basis bias apprehension bias issue arise case noted relevant test apprehension bias clearly articulated subsequent high court decision ofjohnson supra andebner supra first issue raised second respondent position wife statement claim dated 19 august 2022 contains misrepresentation particularly respect mortgage secured title property l street held entity controlled submits ought made order striking pleading contended second respondent permitted misrepresentation made remain court record allowed wife pursue describes fabrication jurisdiction joinder claim support submission second respondent relied upon 102 reason wherein stated accept contention wife fabricated claim respect alleged partnership view complaint misconceived paragraph 102 reason cannot read isolation paragraph around paragraph 101 found wife particularised claim provide example done 103 state follows clear factual dispute party circumstance acquisition property entity controlled course relationship view whether matter alleged wife proven matter determination following testing evidence final hearing position make finding fact interlocutory hearing evident material filed behalf husband wife second respondent significant factual dispute circumstance identified property acquired second respondent entity controlled set detail reason indeed 113 judgment noted follows outcome wife claim turn upon testing evidence final hearing evident material filed party underpinning wife claim complex factual matrix involving number entity husband brother held continue hold office relation one entity husband specified beneficiary outset second respondent vehemently maintained husband wife interest entitlement property also contended wife fabricated element claim throughout hearing wife joinder application confirmed party position make finding fact interlocutory hearing finding could made testing evidence confirmed reason accede second respondent contention wife statement claim time interlocutory hearing view give rise apprehension bias particularly given statement made acknowledging complex factual dispute party necessity finding made testing evidence regard statement inability make finding interlocutory hearing need testing evidence accept second respondent contention pre determined matter failed approach open mind accordingly accept second respondent contention refusal accede request wife required amend statement claim conduct would invite apprehension bias second issue raised second respondent sufficient evidence hearing wife joinder application satisfied wife triable claim accordingly submits failure dismiss joinder application hearing give rise apprehension bias noted earlier made finding assertion made wife support claim second respondent hearing joinder application informed party inability make finding respect disputed fact time testing evidence noted complex factual matrix pleaded relation acquisition conservation improvement asset acquired second respondent entity controlled second respondent contention interlocutory hearing austin j hearing review application ought determined jurisdictional fact existence prior making order joined party proceeding proposition rejected subsequently austin j upon review indeed observed austin j paragraph 23 judgment dated 6 july 2023 made order joinder second respondent party proceeding would denied procedural fairness would afforded opportunity rebut wife contention husband interest property held reject submission second respondent acceptance wife triable claim give rise apprehension bias decision indicate pre determined matter failed bring impartial mind determination dispute view complaint second respondent appear little attempt agitate opposition wife joinder application face submission failure require wife amend pleading dismiss claim appear complaint result hearing rather manner conducted third issue raised second respondent centre upon exchange occurred course interlocutory hearing 21 november 2022 particular relies exchange set transcript page 75 line 1 46 inclusive provides follows mr genesalio honour document document time income honour right mr genesalio income lodge tax return honour understand mr genesalio anything honour case income earned since mr genesalio well honour 1994 mr genesalio telling honour asset owned e pty ltd vacant land derive rent honour right question repeat may heard first time case income earned entity since 1994 mr genesalio correct honour income mr genesalio income honour zero mr genesalio zero honour return lodged mr genesalio zero honour 1994 mr genesalio zero yes remember final year income honour yes honour return lodged 1994 mr genesalio correct second respondent submits exchange demonstrates take account accept submission relation income earned entity controlled accept submission exchange demonstrates sought clarify understand submitted second respondent indeed evident issue clarified second respondent confirmed income tax return lodged 1994 proceeded balance submission incumbent upon trial judge ensure understands submission argument made litigant particularly circumstance litigant representing view exchange identified second respondent example endeavour ensure understood case putting accept contention exchange indicates give rise apprehension bias second respondent made submission exchange demonstrates indicates deviated course deciding application basis merit second respondent also contends mocked hearing wife joinder application support contention relies upon transcript page 83 line 12 41 inclusive follows honour adopt m ee submission mr genesalio quickly would like take honour might might go okay okay start one honour would like refer would like hand got one copy short m ee honour probably arrange get additional copy document need conclusion hearing probably mr genesalio honour definitely top tree handing supreme court authority mr genesalio mr genesalio well honour mean recall last time self represented litigant done front mr genesalio honour reason hand honour top class mr genesalio yes reason hand supreme court relation assertion partnership partnership governed thepartnership act 1958in victoria accrued jurisdiction cannot exceed primary jurisdiction limited perimeter original jurisdiction accrue jurisdiction expand would seem illogical exchange second respondent sought rely upon decision court appeal supreme court victoria handed copy judgment upon relied following observed could recall last occasion upon self represented litigant done noted second respondent top class second respondent submitted making observation mocking reject submission made observation compliment second respondent rare day self represented litigant well prepared cite precedent superior court copy judgment hand judge support submission following exchange second respondent continued make detailed submission relation authority upon wished rely view exchange give rise apprehension bias exchange extraneous issue court suggestion exchange would determine interlocutory application legal factual merit second respondent fails articulate exchange connected deviation course deciding case merit accordingly satisfied exchange would invite apprehension bias second respondent application supported husband view significant given husband united second respondent opposing wife application joinder husband raise complaint manner joinder hearing conducted raise concern application determined merit regard matter consider basis recuse hearing proceeding accordingly second respondent application disqualify basis apprehended bias dismissed certify preceding forty seven 47 numbered paragraph true copy reason judgment honourable justice john associate dated 25 july 2023 1 genesalio genesalio 2023 fedcfamc1f 160 100

Nathan Wellington v Express Publications Pty Limited [2009] AIRC 465; (11 May 2009).txt

nathan wellington v express publication pty limited 2009 airc 465 11 may 2009 note appeal pursuant 120 c2009 2514 lodged decision refer full bench decision dated 14 july 2009 2009 aircfb 629 result appeal 2009 airc 465australian industrial relation commissiondecisionworkplace relation act 1996s 643 termination employmentnathan wellingtonvexpress publication pty limited u2008 5053 commissioner thatchersydney 11 may 2009termination employment arbitration 1 mr nathan wellington made application unders 643 1 theworkplace relation act 1996 act ground termination employment sale representative express publication pty limited express 23 june 2008 harsh unjust unreasonable 2 mr wellington represented proceeding receiving limited legal advice commonwealth unlawful termination assistance scheme express represented house legal counsel 3 course proceeding guided general approach espoused full bench inre abouabdillah 1 namely 18 general approach taken proceeding involving unrepresented party set following passage judgment samuel ja inrajski v scitec corporation advice assistance litigant person ought receive court limited necessary diminish far possible disadvantage ordinarily suffer faced lawyer prevent destruction trap adversary procedure offer unwary untutored court astute see extend auxiliary role confer upon litigant person positive advantage represented opponent footnote nsw court appeal 16 june 1986 unreported cited approval sackville j morton v mitchell product 1996 828 fca 1 18 september 1996 full bench davidson op cit 4 mr wellington form r33 notice election proceed arbitration begin court proceeding sought elect proceed arbitration ground termination employment harsh unjust unreasonable begin court proceeding respect alleged contravention ofs 659 discrimination etc 2 request express matter listed direction hearing 13 october 2008 arbitration proceeding listed 19 20 november 2008 3 5 hearing 19 november 2008 express advised certain proposed witness longer give evidence mr wellington late notice advising required cross examination express declined opportunity apply adjournment mr wellington gave evidence made oral application express proposed witness summonsed proceeding adjourned summons issued 6 proceeding continued 18 february 2009 mr wellington indicated wanted give oral evidence time opportunity tender evidence support application express called witness person originally indicated would give evidence behalf giving mr wellington opportunity cross examine cross examination mr wellington provided commission documentation 7 conclusion evidence 19 february 2009 directed party provide written submission close business 3 march 2009 mr wellington request period extended 17 march 2009 following mr wellington request extension time extension 23 march 2009 granted 8 evidence given mr wellington behalf mr wellington stated express advised email purportedly received mr paul beck 4 worked express contractor magazineextreme street exist mr beck would return mr wellington call able question mr beck drew attention fact express declined provide telephone number former employee m tania surname published wanted clarify evidence given behalf former employer 5 also mr wellington sought tender evidence email certain advertiser agreed appear proceeding 6 9 mr wellington became argumentative course presenting case 7 sought explain frustration 8 dumbfounded 9 express evidence written submission stated passionate person regard truth fairness due trait commissioner take account regard cross examination questioning submission yes made disparaging comment along way good reason relation respondent appalling ethic tactic 9 month period 10 following person gave evidence behalf express m diana screpis general manager senior staff member owner mr charles vella 10 mr richard vella mr charles vella brother manages sale staff mr richard vella mr wellington direct supervisor made decision terminate employment mr richard vella worked express approximately 17 year mr ben hosking publisher performance motoring division charge performance motoring magazine time mr wellington employment publisher express motoring group responsible leisure four wheel drive magazine well performance motoring magazine relevant proceeding mr roy velardi editor publication street fordsandxtreme ford never editor ofextreme street mr mark cutajar sale representative present mr wellington employment terminated mr richard vella mr matthew rice sale representative 11 express objected submitted mr wellington attempt introduce fresh evidence written submission given opportunity 18 february 2009 introduce additional evidence since 19 november 2008 consider evidence submit 12 mr wellington submitted accept express unethical company poor reputation witness colluded giving much false misleading evidence may well view however commission make decision based evidence conflicting evidence commission must decide evidence prefers taking account relevant factor including credibility witness probability done case however evidence presented mr wellington response witness cross examination fall well short proving assertion regard evidence must reject 13 carefully reviewed material provided commission insofar relevant ground application given everything appropriate weight exercising statutory discretion limited weight given document objection made relevant person available cross examination 11 relied respondent initial pleading insofar included evidence written submission background 14 mr wellington employed advertising sale executive motoring 12 november 2007 proposed expiry date 12 november 2008 unless terminated earlier extended 12 15 express publishes 30 magazine covering motoring leisure lifestyle craft thirteen magazine relate motoring 13 company privately owned business 20 year employ approximately 200 person 8 contractor multitude casual contractor contribute magazine 16 mr wellington role sell advertising motoring magazineextreme street although time time assisted selling advertising motoring magazine worked mr richard vella managed advertising related matter authority within express recruit terminate sale staff 17 selling advertising sale representative required meet express sale target magazine whilst standard rate advertising sale representative flexibility rate charge advertiser order meet overall target edition includes ability charge lower rate standard rate without mr richard vella approval certain circumstance 14 18 unfilled space magazine use complimentary filler ad used sale representative attract retain advertiser whilst mr richard vella overall responsibility allocation space filler advertisement responsibility advertising manager particular magazine determine filler advertisement selected case ofextreme streetmr wellington selected filler advertisement 15 19 uncommon practice editorial staff motoring magazine feature article building project car interest reader project car usually built period time progress covered number edition return supplying good service towards project build various business receive positive exposure coverage story practice personal benefit owner project car necessary prior approval obtained property member express editorial staff 20 express advised practice allowing sale representative build project car similar arrangement explained m screpis possible conflict interest namely sale representative may act interest company signing advertiser may prefer agenda building project car interest express generate revenue conflict interest applies editorial staff find write story sell advertising 16 21 explained m screpis sale representative may conflict opposed editorial staff member advertising representative control advertising page ability guess manipulate sell space advertising giving free product editorial staff able editorial staff control word picture easy control advertising representative hard control cannot maintain control something best interest express 17 could example sell page advertising normally sold say 1000 page could sell 500 page get thing done car without knowledge 18 22 mr wellington evidence aware policy advertising sale representative allowed build project car exchange editorial coverage express magazine submitted policy existed prior advised policy 23 mr wellington owner 1967 ford mustang fastback considers high profile needed rebuilt new show standard using latest technology value vehicle featured cover 1995 edition unrelated motoring magazine 24 shortly commenced employment express mid december 2007 onwards 19 course employment mr wellington approached advertiser potential adviser ascertain whether interested contributing good towards rebuilding mustang project car within express motoring magazine part would supplied mr wellington would accept responsibility rebuilding 20 25 uncontroversial say mr wellington obtained formal approval mustang used project car also approval approach advertiser potential advertiser sponsorship rebuilding mustang 21 situation mr wellington aware employee express using vehicle project car obtaining product supplier return editorial coverage magazine b mr paul beck regarded editor ofextreme street 22 according mr wellington mr beckhad verbally supported examination business case 23 although gone specific 24 supported mustang featured 25 mr beck advised contact mr hosking would final say 26 c according m screpis mr beck employee express contractor express whose role related designing edition putting various component photograph advertising content together unlike mr wellington responsible selling advertising given encouragement mr wellington acting behalf company fellow colleague 27 numerous occasion mr wellington discussed rebuilding mustang mr ben hosking publisher express performance motoring division 28 contested mr hosking give necessary approval proposal 29 e mr hosking advised would entirely dependent upon editor say 30 mr wellington took mr beck f according mr hosking warned mr wellington push idea hard usual sale representative project car approved company 31 however editor passionate car included project car would think seeing senior management would make exception general policy 32 g mr wellington stated despite repeated request mr beck provide pro forma letter endorsing rebuilding mustang project car mr wellington could show potential advertiser nothing forthcoming 33 becoming frustrated mr beck lack response shortly termination approached mr velardi editor two motoring magazine although mr velardi suggested discussion rebuild mr wellington mustang big block 69 sportsroof 34 h contested mr velardi give necessary approval mr wellington mustang used project car mr wellington suggested mr velardi said sound good think would suit magazine would need speak ben hosking get final approval 35 according mr velardi advised mr wellington would like cover certain area rebuilding technical article however knew sale staff project car would put proposal forward see anything changed since policy introduced two year earlier 36 26 contested mr wellington discussed matter manager mr richard vella sought approval 27 according mr wellington approaching advertiser potential advertiser mustang putting together business case would assist sell advertising 28 even though preparation covered approximately six month mr wellington present commission evidence anything writing might resemble generally regarded business case including first draft partially completed document notwithstanding mr wellington unsupported suggestion hundred thousand dollar worth people wanted advertise mustang could built project car editorial coverage 29 evidence commission mr wellington actually accepted good advertiser rebuilding mustang although evidence least two indicated willingness participate rebuilding mustang exchange editorial coverage 37 evidence commission find mr wellington discounted advertising rate exchange actual future supply good mustang express assert mr wellington provided complimentary advertising advertiser potential advertiser exchange actual future supply good mustang 38 30 evidence advertiser potential advertiser received editorial coverage part mr wellington proposal 31 thing came head friday 20 june 2008 mr richard vella first heard mr wellington plan mustang used project car without prior notice mr vella raised subject without discussion subject mr vella rather directly expressed disapproval idea warned mr wellington persisted would mean end employment 39 32 mr wellington explained proposal mr vella suggested mr wellington approach m diana screpis obtain official position matter 40 33 afternoon mr wellington sent email m screpis referring certain benefit express mustang used project car expressing interest meeting discus opportunity detail 41 34 afternoon m screpis emailed response mr wellington copy mr hosking mr richard vella following term hi nathanour company policy vehicle besides approved editorial staff project car used editorial answer understand rest company coming requesting thing thanks 42 b response mr wellington recent approach refer subparagraph 25 h mr velardi emailed mr hosking asking cool project mr velardi would like cover various bit technical article asked would covered project car reader build type story 43 mr wellington accepts email seek mr hosking approval 44 35 monday 23 june 2008 mr hosking emailed reply mr velardi referring m screpis decision email 20 june 2008 mr velardi forwarded email mr wellington advice could run story anything built sale staff guy apparently allowed project car 45 36 early morning mr richard vella mentioned m screpis reply mr wellington viewed email refusing proposal 46 37 later morning mr richard vella held meeting office mr wellington mr cutajar discus sale target discussion moved subject mr wellington mustang decision m screpis mr vella explained email mr wellington 47 advised mr wellington happening due dianna screpis email 48 discussion mr vella terminated mr wellington employment 38 reason given express termination mr wellington employment refused accept directive company policy sale representative approach advertiser purpose mustang advertiser good service written feature express motoring magazine 49 b without authority approached advertiser attempt secure good service personal benefit e rebuilding mustang whilst making representation express would feature advertiser good service editorial one magazine 50 c failed disclose conflict interest employer obliged clause 17 2 contract employment state employee agrees notify chairman immediately interest obligation arises may inconsistent employee obligation agreement chairman mean express publication chairman 51 breached clause 12 1 confidentiality contract employment term employment utilizing express customer list contact customer order benefit try benefit clause 12 1 relevantly includes unless employee received express written consent contrary chairman employee 1 time employment express publication keep secret use benefit express publication confidential information 2 3 whenever requested express publication termination employment whatever reason whichever first occurs immediately return express publication record document computer disk paper note including copy employee possession control contain record form confidential information 4 employee must notify express publication immediately actual suspected unauthorised use disclosure copying confidential information note definition confidential information subclause 1 1 contract employment includes confidential information mean information relating current future business interest methodology knowhow affair express publication person entity deal concerned including name list directory express publication employee contributor advertiser reasonably regarded express publication confidential information public domain known competitor express publication information public domain known competitor result breach confidentiality employee person 52 39 therefore reason termination mr wellington employment essence twofold namely mr wellington conduct 23 june 2008 refusing comply decision m screpis endorsed mr vella rebuild mustang project car course employment e failing follow instruction b mr wellington conduct mid december 2007 onwards without prior approval proper authority approached advertiser potential advertiser attempt secure good service benefit e rebuilding mustang whilst making representation express would feature good service editorial e acting without authority 40 proceeding mr wellington expressed concern least one person industry advised told sacked pilfering 53 clearly stated case relevant legislation 41 subsection 643 1 act provides 1 subject subsection 5 6 8 10 employee whose employment terminated employer may apply commission relief respect termination employment ground termination harsh unjust unreasonable 42 inbyrne v australian airline limitedthe high court explained ground follows may termination harsh unjust unreasonable unjust harsh unreasonable unreasonable harsh unjust many case concept overlap thus one termination employment may unjust employee guilty misconduct employer acted may unreasonable decided upon inference could reasonably drawn material employer may harsh consequence personal economic situation employee disproportionate gravity misconduct respect employer acted 54 43 commission required regard number matter specified in 652 3 act subsection provides 3 determining purpose arbitration whether termination harsh unjust unreasonable commission must regard whether valid reason termination related employee capacity conduct including effect safety welfare employee b whether employee notified reason c whether employee given opportunity respond reason related capacity conduct employee termination related unsatisfactory performance employee whether employee warned unsatisfactory performance termination e degree size employer undertaking establishment service would likely impact procedure followed effecting termination f degree absence dedicated human resource management specialist expertise undertaking establishment service would likely impact procedure followed effecting termination g matter commission considers relevant 44 also relevant considers 635 2 act provides procedure remedy concerning conciliation arbitration claim well manner deciding working remedy intended ensure consideration application respect termination employment fair go round accorded employer employee concerned 55 45 well established paragraph in 652 3 must considered determining application far application relevant circumstance case 56 approach summarized following passage judgement moore j inedwards v giudice others clear language structure statutory context subsection appears section requires commission consider matter referred para e though matter referred para arise circumstance must matter considered use word regard signify must treated matter significance decision making process see minister immigration ethnic affair v baker 1997 45 ald 136 friend hinchinbrook society inc v minister environment 3 1997 77 fcr 153 australian competition consumer commission v leelee pty ltd 1999 fca 1121 57 46 accepted decision full bench commission inking v freshmore vic pty ltd 58 also applicable existing provision case commission indicated task commission review employer decision conduct occurred determine evidence whether conduct occurred stated 23 reason termination based conduct employee commission must issue proceeding challenging termination determine whether conduct occurred obligation make determination flow 170cg 3 commission must determine whether alleged conduct took place involved 24 question whether alleged conduct took place involved determined commission basis evidence proceeding test whether employer believed reasonable ground sufficient enquiry employee guilty conduct resulted termination 47 determining material commission whether mr wellington termination harsh unjust unreasonable evidence relevant fact existence time termination taken account stated full bench inmetricon home pty ltd v bradley 59 10 evidence relevant fact existence time termination taken account even employer unaware time starting point proposition judgment von doussa j inlane others v arrowcrest group pty limited roh alloy wheel footnote 1990 27 fcr 427 arrowcrest discussing relevant authority honour said opinion open employer justify dismissal reference fact known employer time dismissal discovered subsequently long fact concern circumstance existence decision made whether decision justified depend circumstance footnote ibid 456 11 statement principle inarrowcrestwas adopted high court inbyrne v australian airline limited footnote 1995 185 clr 410per brennan cj dawson toohey jj 430 mchugh gummow jj 468 follows commissioner duty determine mr bradley application basis fact circumstance existence time termination 48 commission cannot take account determining whether mr wellington termination harsh unjust unreasonable fact existence time termination e conduct mr wellington express occurred subsequent termination fact relevant determination excluded material made decision 60 652 3 valid reason termination 49 general acceptance often quoted word northrop j inselvachandran v peteron plastic pty ltdalso apply existing provision context 170de 1 adjective valid given meaning sound defensible well founded reason capricious fanciful spiteful prejudiced could never valid reason purpose 170de 1 time reason must valid context employee capacity conduct considering whether reason valid must remembered requirement applies practical sphere relationship employer employee right privilege duty obligation conferred imposed provision must applied practical commonsense way ensure employer employee treated fairly see said wilcox cj ingibson v bosmac pty ltd 1995 60 ir 1 considering construction application 170dc 61 failure follow instruction 50 stated maluk v sutton tool pty ltd 62 49 failure follow lawful instruction reasonable circumstance may provide employer valid reason terminate employee employment 50 conversely held failure comply unreasonable direction provide valid reason termination person employment inizdes v l g bennett co pty ltd alba industriesbeazley j stated determining whether refusal carry lawful reasonable direction employer constitutes valid reason termination necessary regard circumstance including nature degree employee conduct footnote omitted 51 m screpis made decision reject idea general manager entitled stated right engage sale representative basis advertising representative job sell advertising try get car done 63 52 mr wellington legal right use employment obtain good service rebuild mustang nothing contract employment remotely suggest 53 furthermore m screpis decision vehicle advertising sale representative could used project car editorial coverage unreasonable given conflict interest 54 therefore decision mr screpis insofar affected mr wellington employment lawful reasonable 55 consideration whether express made good commercial decision failing favourably consider participation providing editorial coverage rebuilding mr wellington mustang factor relevant unfair dismissal application 56 similarly material case whether idea linking rebuilding mr wellington mustang allocation advertising space merit commercial perspective 57 also material whether different response may forthcoming mr wellington employer project car involved support mr hosking 64 owned advertising sale representative 58 suggestion mr wellington employment terminated idea advanced proposal 65 therefore appropriate consider merit notion determining application 59 determination whether valid reason mr wellington termination failure follow instruction turn characterisation meeting took place 23 june 2008 60 disputed meeting mr wellington made sufficiently clear mr richard vella want accept m scepis decision final wished continue seek good client express free charge discounted basis rebuilding mustang evidence mr wellington agreed accept m screpis decision end matter believed rebuilding mustang many benefit express wanted take matter higher mr charles vella 61 dispute differing account length discussion extent mr wellington argued decision 62 according mr wellington brief discussion 66 mr vella explained m screpis decision stated meant project build mustang going happen mr wellington told mr vella adopting different attitude indicated previous friday though beyond discussion wanted discus matter someone higher level meaning mr charles vella wished proceed car build mr richard vella responded well pay everything need mr wellington argued brought lot advertiser express favoured supplier employment express supplied product free charge mr vella said well door get thing go 67 although mr wellington suggested received verbal abuse discussion 68 gave evidence find occur discussion 63 according mr vella contemporaneous note occurred conversation told response got diana final therefore cannot proceed building project car using magazine also advised anyone going get mustang built going wanted debate said contact needed money responded opportunity sale manager earn money selling advertising stage mark agreed nathan still wanted debate issue told want gave copy email regarding issue ben hosking roy velardi copy attached told continued wanting debate matter accept decision diana reaffirming would show door stage still wanted pursue matter left alternative ask leave immediate effect 69 64 mr richard vella written evidence included nathan continued repeat intention whilst happening formed opinion nathan want accept decision general manager diana still wanting pursue agenda directly conflicted company therefore made decision nathan insubordination failure accept situation would leave position neither express could sic workplace directly conflict company decision matter 70 65 accept mr richard vella evidence response question mr wellington like dog bone let go 71 66 mr richard vella explained action follows mr vella got response friday afternoon answer could happen thought going anyhow monday sort reiterating decision given nathan general manager said period time still want thought continue reason termination commissioner say look settle come back go cool talk later afternoon made think extreme led terminate employment mr vella worked nathan eight month stage thereabouts seven eight month knowing person knew sort blow sort made mind wish sort situation done many time go settle relax talk later nathan others staff year knew going go away thought mind time nothing going stop nathan pursuing matter commissioner evidence wanted go see mr charles vella mr vella well sort say well far go thing mean advertising director managing advertising department staff control already given decision general manager thought well far go depending size organisation go stop actually get yes reasoning commissioner mind understand see non negotiable mr vella general manager say email like 72 67 cross examination mr cutajar waiver evidence discussion m screpis directive lasted five ten minute 73 exchange mr wellington mr vella mr wellington repeated lot mr cutajar evidence clear mr vella wanted put m scepis decision behind move however mr wellington repeatedly argued allowed use mustang project car continued mr vella advised pursue would shown door 74 accepted mr cutajar evidence witness statement reflected note made within 2 hour meeting 75 68 find discussion went 5 10 minute accept mr vella evidence cross examination probably like 10 minute 76 three time sure mr wellington repeatedly accept decision 77 continued warned would result termination employment 69 mr vella told mr wellington employment terminated thing remained tense 78 whilst mr vella escorted mr wellington desk supervised packing belonging mr vella advised mr wellington would receive relevant documentation mail mr wellington refused leave without paperwork mr vella threatened call police mr wellington left building mr vella concurrence returned say goodbye colleague course mr wellington stated sacked aussie heard last dealing bhp ethical thing know heard last 79 70 doubt mr wellington attitude mr richard vella direction m screpis decision end matter affected mr wellington perception proposal would assist sell advertising well allowing rebuild mustang much gain personally sponsorship good rebuilding mustang reliant editorial coverage return sponsorship also discussing idea many month person regarded client brought express could difficult explain discussed going proceed anticipated outcome 71 find mr wellington conduct course discussion mr richard vella 23 june 2009 amounted legal term deliberate disobedience lawful reasonable direction 72 although mr richard vella response mr wellington refusal accept decision may appeared mr wellington overreaction must considered context surrounding circumstance 73 mr richard vella liberal approach 20 june 2009 agreeing mr wellington could seek overturn ruling going directly general manager respect accept mr wellington assertion action mr vella represented untoward total reveral backflip 80 74 m screpis decision reaffirmed mr richard vella original advice mr wellington mr vella previously warned mr wellington strongest term persisted proposal would mean end employment 75 mr wellington employed le 12 month shown poor judgment discussing proposal express client approximately six month without knowledge direct supervisor without concrete indication editorial staff would insert coverage rebuilding mustang express magazine 76 opinion case decision terminate employment made heat moment fire bullet clean later basis 77 find evidence support mr wellington conspiracy theory called mr vella office proposal would detrimental interest editorial staff built project car exchange editorial coverage without obtain product source advertise express magazine 81 78 already found mr wellington refusal comply decision involved deliberate refusal follow direction lawful reasonable therefore involved breach implied term contract employment obey lawful direction 79 considering circumstance including nature degree mr wellington conduct find well inconsistent maintenance employment relationship involved matter sufficient seriousness provide valid reason termination employment acting without authority 80 according m screpis policy practice advertising staff project car although unwritten well known discussion practice 82 81 mr richard vella evidence mr wellington known policy would surprised case however cross examination conceded possible mr wellington might known policy 83 82 absence evidence anyone told mr wellington practice policy prepared accept know policy therefore knowingly wilfully act breach express policy 83 however even case mr wellington action without appropriate authority canvassing advertiser potential advertiser ascertain willingness provide free discounted good enable rebuild mustang exchange receiving editorial coverage project provide valid reason termination employment 84 beyond doubt mr wellington canvassing express client least mid december 2007 ascertain willingness provide good evidence mr wellington without formal approval editorial coverage rebuilding mustang would occur b basis advertiser would gain advantage express participating rebuilding exercise c without knowledge direct supervisor mr richard vella 85 response mr velardi question mr wellington would go try get hundred thousand dollar worth advertising approval car get built featured magazine mr wellington responded already spoken paul beck four month promised supporting piece paper went roy said roy feeling 84 86 best mr wellington high regard high profile mustang assumed would accepted project car saw others obtaining benefit understand conflict interest issue advertising staff assumed mr beck indicated would prepared cover rebuilding mustang editorially inextreme street 85 mr hosking given firm decision could done could make happen 87 although accepted mr wellington know express policy practice reasonable expect recognised conflict interest discretion pricing giving advertising client express acceptance free discounted good 88 mr wellington submission shortly termination mr velardi gave green light would approve run editorial rebuilding project car subject approval mr hosking assist mr wellington explain authority many month approach client express canvassing whether would supply good exercise 86 fact mr wellington appeared concede wanted mr velardi agreement run editorial mr wellington accepted editorial looked editorially advertising looked advertising 87 89 whilst mr wellington relies mr beck unrealised indication would provide editorial coverage inextreme streetof rebuilding mr wellington mustang begs question within company approved mr wellington could use mustang project car purpose proceeding saw evidence approval 90 considering mr wellington evidence convinced preparing business case business proposal would present mr vella showing advantage express would gain increased advertising revenue rebuilding mustang mr wellington might expected elaborated email m screpis 88 concur express submission email requesting much type project car build approved editorial staff enjoyed past 91 also mr wellington satisfactorily explain mentioned sought concurrence direct supervisor mr richard vella managed advertising related matter 92 evidence purported business case would provide express hundred thousand dollar found description purported advertising component vague quite unremarkable mean unique mr wellington salesman seek increase amount advertising could sell job expected accordance arrangement imposed employer 93 period approximately six month mr wellington canvassed express client ascertain willingness provide free discounted good whilst withholding direct supervisor foreshadowed client would receive editorial coverage express magazine without adequate authority conduct approaching bordering breach obligation employee conduct oneself manner calculated likely destroy seriously damage relationship mutual trust confidence employer employee act fidelity good faith towards employer implied term contract employment 94 taking surrounding circumstance consideration including accepted mr wellington knowingly wilfully act breach express policy made finding wellington received personal benefit approach find conduct although unsatisfactory fall short valid reason termination employment 652 3 b whether applicant notified valid reason 95 reference in 652 3 b tothat reasonis reference thevalid reasonfor employee termination 89 reason must given prior decision terminate 90 96 evidence support finding exchange mr wellington mr richard vella made clear reason termination refusal accept decision mustang used project car express editorial support 652 3 c whether employee given opportunity respond reason related capacity conduct employee 97 section 652 3 c provides commission must regard whether employee given opportunity respond reason related capacity conduct employee opportunity respond refers opportunity provided decision taken terminate employee employment 91 reason refers valid reason employee termination 92 98 case employee conduct involved opportunity serf two purpose firstly give employee opportunity demonstrate allegation foundation secondly give employee opportunity persuade employer allegation substance factor persuade employer terminate employment factor may extenuating personal circumstance may involve undertaking future conduct 93 following comment moore j considering 170dc industrial relation act 1998 relevant second purpose opportunity defend implies opportunity might result employer deciding terminate employment defence substance employer may simply go motion giving employee opportunity deal allegation concerning conduct substance firm decision terminate already made would adhered irrespective anything employee might say defence opinion constitute opportunity defend 94 99 20 june 2008 mr wellington put notice persisted initiative could mean end employment 100 accept mr vella evidence prior warning given mr wellington verbal exchange 23 june 2008 prior termination employment 101 therefore time termination discussion 23 june 2008 mr wellington known refusing accept decision would result termination employment 102 however clear mr wellington given opportunity put case failure comply decision result termination 103 mr vella evidence sort made mind 95 suggests least extent decided mr wellington continue accept decision would terminate employment without giving opportunity defend 104 deficiency mr wellington afforded adequate procedural fairness termination process 652 3 termination related unsatisfactory performance employee whether employee warned unsatisfactory performance termination 105 consideration relevant proceeding given valid reason relates mr wellington conduct rather capacity 96 106 although mr wellington suggested mr richard vella threatened termination several time prior actual termination 97 insufficient evidence reason warning 98 652 3 e degree size employer undertaking establishment service would likely impact procedure followed effecting termination 107 express suggest could rely upon size justification defect procedure followed effecting termination mr wellington employment 652 3 f degree absence dedicated human resource management specialist expertise undertaking establishment service would likely impact procedure followed effecting termination 108 express employ dedicated human resource management specialist 109 accept mr wellington submission opportunity access human resource resolution process 110 mr richard vella stated management style pretty straightforward people generally understand coming know required done straightforward got obviously ability respond straightforward fashion straight shooter let know going required let get job 99 111 mr cutajar described mr richard vella management style old school style management 100 stated look richard put point clear end day obviously whoever agree something wanted say would say quite clearly agree agree 101 652 3 g matter commission considers relevant 112 required regard matter consider relevant 113 proceeding mr wellington display remorse action 23 june 2008 failing accept m screpis decision 114 whilst termination process include adequate opportunity mr wellington provide employer reason failure accept m screpis decision result termination employment evidence submission proceeding observation mr wellington conduct proceeding leaf doubt process involved opportunity outcome would mr wellington would accepted m screpis decision employment would terminated 115 find evidence support mr wellington assertion terminated order give mr richard vella opportunity rebuild mustang mr vella owned project car via hijacking business proposal 102 indeed evidence contrary 103 accept mr vella evidence reference made mustang discussion mr wellington 23 june 2009 company mr cutajar made tongue cheek 116 insufficient evidence find sale representative building project car exchange free filler advertisement table basis proposed mr wellington 104 certainly exhibit w5 purported statement former express advertising coordinator filler ad run name company published approximately 8 occasion insufficient draw inference law event according mr wellington done without mr richard vella knowledge mr vella advised sacked well ok 105 117 whilst found mr wellington conduct approaching client express canvas willingness provide free discounted good mustang fell short valid reason termination employment factor go favour finding termination employment harsh unjust unreasonable 118 regard economic consequence mr wellington decision terminate employment conclusion harsh unjust unreasonable fair go round 119 regard finding relation matter paragraph 652 g act far application relevant circumstance case including procedural deficiency identified relation 652 3 c 106 satisfied termination mr wellington employment express harsh unjust unreasonable 120 arriving decision conscious object division 4 termination employment part 12 act including ensuring mr wellington express accorded afair go round 121 ground application dismissed commission commissionerappearances mr n wellington behalfms l panuccifor express publication pty limitedhearing detail 2008sydneyoctober 13 direction november 192009february 18 19final written submission 2009march 23 1 106the commission required give want procedural fairness conclusive weight crozier matter application writ certiorari mandamus australian industrial relation commission 2001 fca 1031 1 august 2001 para 15 printed authority commonwealth government printer price code g pr986925

Matthews v Keylok Technology Pty Ltd [2008] VCC 1631 (4 December 2008).txt

county court victoria 250 william street melbourne undefined bookmark county court victoria revised restricted melbourne civil division case ci 07 02084 scott matthew plaintiff v keylok technology pty ltd defendant judge honour judge millane held melbourne date hearing 25 september 2008 13 october 2008 date judgment 4 december 2008 case may cited matthew v keylok technology pty ltd medium neutral citation 2009 vcc 1631 reason judgment catchword 134ab accident compensation act 1985 serious injury lower back appearance counsel solicitor plaintiff mr g lewis sc mr b mccullagh mw law defendant mr brooke sc m britbart minter ellison vcc sa lw 1 judgment matthew v keylok technology pty ltd honour 1 plaintiff 35 year old labour er born 10 may 1973 9 september 2003 5 january 2004 plaintiff employed defendant casual full time labourer 5 january 2004 became permanent full time labourer working 38 hour plus 4 hour overtime week told earned order 551 gross 2 application de 134ab accident compensation act 1985 act plaintiff seek leave bring proceeding recovery damage permanent inju ry l2 3 level lower back suffered course employment wednesday 28 january 2004 3 plaintiff relies particular result mri investigation lumbar spine 14 july 2005 reported amongst thing finding minor reduction disc space height l2 3 associated minor central left sided disc bulge causing minimal thecal definitiv e nerve root encroachment subarachnoid space otherwise rkedly capacious conus normal position sign arachnoiditis paravertebral abnormality exit foramen clear conclusion minor left sided disc bulge l2 3 causing minimal thecal encroachment cause patient symptom detected 4 leave sought pl aintiff respect pain suffering damage permanent serious impairment lo s function spine plaintiff background 5 summarised plaintiff affidavit plaintiff born australia issued proceedi ng living de facto wife baby son howeve r plaintiff hi partner married 27 august 2005 son born 6 june 2008 plaintiff wife separated 6 apparently plaintiff since returned live parent mother uncontested affidavit evidence confirms assistance look young child wednesday saturday 7 note plaintiff educated year 9 1989 commenced working various unskilled job car detailer factory hand labourer note long period unemployment 1993 1999 punctuated work dol e job 2001 2003 prior plaintiff commencing employment defendant september 2003 8 plaintiff present young man difficulty finding long term employment whose literacy skill inadequate mother required read affidav filed proceeding 9 assessed plaintiff forthright witness showed sign consciously embellishing exaggerating evidence 10 one factor doubt contributi ng plaintiff intermi ttent early work history mention current pain suffering consequence injury related impairment lower back plaintiff champion snooker player 11 according plaintiff la te teen australian 21 snooker champion 1996 represented australia world 21 snooker championship iceland unt il sustained injury plaintiff said still playing grade snooker placed top 10 player victoria however since injury avoid pain reduce pressure back plaintiff said altered playing stance substituted pool shorter game played around smaller table snooker requires 40 50 minute ordinary game played around much bigger table plaint iff also said found game snooker required stretch much vcc sa lw 2 judgment matthew v keylok technology pty ltd 12 according plaint iff ceased playing snooker aggravates back end sore whilst regularly play social game pool plaintiff described le skilful le enjoyable sport say plaintiff sport activity pain suffering consequence shortly circumstance giving rise injury 13 plaintiff history back pain back problem relying plaintiff uncontested evidence dat e injury main duty defendant involved assembling truck heavy vehicle brake shoe required stand work bench noted paragraph 3 first affidavit also required lift large brake shoe weighing four kilogram unassembled eight kilogram assembled assembling part lift eight kilogram item table put floor two hundred three hundr ed time per day also operated cutting machine injury back occurred reach lift part deep high box required lean get two brake shoe weighing four kilogram lift felt back lock pain came position two brake shoe hand tried work reduced rate report injury time work went see doctor sent chiropractic treatment hen month work injury week reported injury supervisor shannon jones 2 february 2004 14 supplementary affidavit sworn june 2008 plaintiff corrected evidence treatment receiv ed saying paragraph 7 8 7 day injury continued work injury much reduced pace di consult doctor night previously stated consulted dr hrstic dr yiap early february 2004 referred chiropractic treatment dr pratt certified unfit wo rk short period time otherwise certified fit modified duty except month late april 2005 late may 2005 ce rtified fit normal duty 8 continue consult dr becker general practitioner park hill medical centre berwick treatment chiropractic treatment physiot herapy treatment sport vcc sa lw 3 judgment matthew v keylok technology pty ltd physiotherapy treatment reco mmended work ct scan think mri cedar court course rehabilitation course taught hold back minimise strain back everyday living including lifting gym recommended physiotherapy attending workcover stopped paying present take four brufen ablets per day also take panadeine forte tablet number tablet varies depending level pain di scomfort experience 15 note june 2006 plaintiff 98c claim accepted respect lower back injury occurred 28 january 2004 followed impairment assessment general surgeo n mr conroy viewed mri film noted presence disc protrusion l2 3 level without nerve root involvement opinion shadow probably indicative significant disc injury expect matter clinical finding whi ch included evidence little wasting left thigh informed mr conroy advice pl aintiff suffering work related unresolved lumbar intervertebral di sc injury referred pain leg particularly left 16 mr conroy noted sinister pat hology film reported radiologist may accounted amongst thing fact mr conroy viewed film privy plaintiff history opportunity conduct fu physical examination area dispute 17 defendant concedes work related injury plaintiff back january 2004 however contest nature extent injury sustained arguing physical injury plaintiff lower back overtaken non organic regional pain syn drome effect defendant argues plaintiff probably suffered work related musculo ligamentous strain recovered latest 2005 vcc sa lw 4 judgment matthew v keylok technology pty ltd b addition contends injury suffered serious injury within meaning act relevant impairment plaintiff lumbar spine meet test identified sub 134ab 38 c judged comparison case range possible impairment loss body function evidence called tendered 18 plaintiff gave evidence time attested accuracy three affidavit sworn 5 december 2006 20 june 2008 18 september 2008 affidavit tendered along affidavit sworn 22 september 20 08 plaintiff mother marilyn ellen matthew required cro s examination however treating general practitioner dr becker r equired defendant cross examination 19 addition affidavit evidence plaintiff tendered bundle clinical record dr becker dated 10 march 2005 19 august 2008 eight medical certificate made 20 july 2005 4 february 2006 court book documentary item 1 2 3 6 dical report item 2 8 15 miscellaneous document item 1 2 3 removed copy return work plan taken defendant court book page 32 41 inclusive dated 4 24 novem ber 13 december 2005 20 april 2006 12 copy certif icates incapacity period 6 february 2004 18 september 2004 provided chiropractor dr pratt physiotherapist dr yiap general practi tioner dr hrstic chiropractor dr carter 20 defendant called evidence defendant tendered court book item page 5 8 inclusive medica l report page 17 21 23 27 29 30 inclusive removed copy diagram made 12 april 2005 accompany dr becker clinical te plaintiff court book page 46 contained exhibit p1 copy diagr dated 25 may 2005 vcc sa lw 5 judgment matthew v keylok technology pty ltd accompany dr becker clinical note plaintiff court book page 43 contained exhibit p1 treatment received since february 2004 21 following incident involving lowe r back plaintiff said persevered work monday 2 february 2004 saw general practitioner dr hrstic consulted two three occasion satisfied doctor treatment event plaintiff returned work 3 f ebruary 2004 fo llowing friday 6 february 2004 first consulted chiropractor dr pratt certified unfit work 15 february 2004 result back pain musculo ligamentous sprain strain 22 indicating idiopathic condition scoliosis plaintiff thoracolumbar sp ine note dr pratt felt x ray film initially obtained normal indeed note ct scan result obtained request dr cker 16 march 2005 also reported normal lumbar disc space spinal canal stenosis disc prolapse identified 23 notably written r eport dated 29 november 2004 dr pratt said detected nerve root tension disc jury reflex normal although note th e chiropractor first examinat ion plaintiff provided objective evidence injury revealing amongst thing palpable muscle spasm paraspinal musculature 24 medical certificate plaintiff response cross examination confirm 9 march 2005 dr becker said first made aware plaintiff lower back co ndition plainti ff certified totally incapacitated work 18 day certificate part bundle cover period betw een february september 2004 demonstrate dr pratt another chirop ractor dr carter dr hrstic physiotherapist dr yiap felt either musculo ligamentous vcc sa lw 6 judgment matthew v keylok technology pty ltd sprain strain soft tissue injury variously certified plaintiff unfit work duty fit modified duty fit alternative duty 25 general trauma vascular surgeon mr russell examined plaintiff october 2004 request allianz time apparently copy circumstance report access x ra film report obtained chiropractor 26 however despite mr russell perceived absence clinical evidence disc injury explain plaintiff ongoing ba ck pain following acute event work january 2004 nevertheless accepted plaintiff required ongoing tr eatment presumably lower back condition 27 number reason find early medico legal report particular assistance reason include fact mr russell opinion plaintiff condition identifie related employment significant material way informed radiologic al evidence particularly result later mri investigation b reached without speciali st explaining felt remaining work day without reporting injury somehow damaged broke c hain causation 28 common ground plaintiff fir sought treatment fr om clinic dr becker worked late april 2 004 however dr becker evidence clinical record tendered confirm plaintiff earliest treatment clinic medical condition unrelated lower back injury fact general practitioner record treatment plaintiff back condition commences 9 march 2005 dr becker said first received history work related injury plaintiff back occurring january 2004 circumstance despite plaintiff evidence vcc sa lw 7 judgment matthew v keylok technology pty ltd contrary think unlikely prior 9 march 2005 plaintiff mentioned back injury condition th general practitioner practitioner treated clinic however nevertheless accept plausible submission tha february 2004 early 2005 plaintiff probably seek require treatment general practitioner said receiving treatment chiropractor physiotherapist provided certificate capacity september 2004 29 moreover plaintiff also sa id workcover payment ceased presumably also brought payment chiropractic physiotherapy treatment end pl aintiff sought treatment fo r lower back condition dr becker since provided certificate capacity relate period total incapacit certify plaintiff fit light duty 30 note dr becker wrote repor dated 2 june 2006 appears summarise earlier handwritten report dat ed 1 may 2006 report amongst thing questioned clinical relevance minor l2 3 disc bulge expressed opinion likely diagnosis fibromyalgia type pain feel significant psychosomatic component pain part view appears influenced plaintiff report doctor december 2005 back pain lot worse following major family dispute lot associated stress 31 however also impor tant note cord plaintiff examination ccasion amongst thing referred tender r paralumbar muscle pain lateral flex ion tender r loin area muscle pain view fact hat examination dr becker also agreed never reason disbelieve patient think reasonable assume 6 decem ber 2005 dr becker accepted vcc sa lw 8 judgment matthew v keylok technology pty ltd plaintiff report pain rest riction genuine physical cause 32 hearing dr becker taken clinical record made particularly period commencing 9 10 march 2005 prescribed anti inflammatory medication celebre x provided plaintiff certificate incapacity five day work 33 doctor evidence supplemented medical record maintained clinic confirms throughout march april 2005 plaintiff continued present reduced range movement report lower back pain illustrated marking diagram accompanying dr becker clinical record made 12 april 2005 34 26 april 2005 dr becke r said plainti ff wanted return normal work presumably doctor said cross examination thought plaintiff largely covered dr becker diagnosed muscular strain 35 however evidence c ontrasted plaintiff otherwise uncontested evidence september 2006 employment terminated defendan could longer offer hi light duty period work performed since february 2004 hearing plaintiff explained typically called duty normal although ap ril 2005 pressure employer resume pre injury duty forced seek certificate light duty duty characterised normal 36 event note early month 2005 th ere improvement plaintiff back condition last 24 may 2005 reported dr becker previous week attended physiotherapy back lot worse attendance apparently led dr becker prescrib ing different anti inflammatory vcc sa lw 9 judgment matthew v keylok technology pty ltd medication voltaren providing plaintiff referral rheumatologist dr patrick 37 cross examination dr becker wa taken marked diagram dated 25 may 2005 accompanying clinical note without asked nominate docto r said represented area tenderness noted consultation dr becker also said also evident diagram tendered two site marked diagram different site area sacroiliac marked 12 april 2005 diagram think th probably correct statement two marking may diagram appear include area plaintiff shoulder blade right spine another area level thoraco lumbar spine 38 relevantly record also showed prior consulting dr patrick 9 june 2005 plaintiff consul ted dr becker time complained lower back pain radiating left buttock amongst thing doctor prescr ibed painkiller panadeine forte 39 dr patrick first examined plaintiff 27 june 2005 apar referring plaintiff cedar court take multi disciplinary functional restoration rehabil itation program especially plaintiff complaint intermittent left leg pain dr patrick reported arranged mri investigation result already mentioned investigation notwithstanding time clear dr patrick satisfied sym ptomatic disc injury stated plaintiff mostly myofascial probl em pain protective behaviour developing need reassurance regarding structure back 40 according clinical note kept dr becker clinic 13 july 2005 day mri investigation plaintiff seen another doctor dr morale provided ce rtificate incapacity vcc sa lw 10 judgment matthew v keylok technology pty ltd plaintiff hurt back work lifting cross examined entry made july 2005 plaintiff explained prior july 2005 continued probl em back managed light duty needed work ho wever hearing plaintiff acknowledged around july 2005 aggravated back condition work presumably whilst perf orming duty plaintiff said response cross examination entry concerning report back pain general practitioner lot time tried push back old work end hur ting back straight back light duty 41 note also entry clinical record 14 july 2005 day mri investigation wa performed record dr becker saw plaintiff date ho wever record appears suggest mri scan performed day earlier seems allowing date mri report entry probably incorrect 42 nevertheless occasion plainti ff recorded said hurt back accompanying diagram also marked doctor showed area plaintiff said felt pain region middle back right spine indeed diagram contains various statement doctor taken cross examination examinat ion may offer explanation plaintiff attendance treatment location plaintiff indicated tenderness stating stretching grab something r side back pain e tender rib posteriorly 43 14 july 2005 doctor apparently gave plaintiff script panadeine forte valium tablet workcove r certificate however whilst dr becker said thought tendance related different injury examined matter generally accepted entry clinic al record including co mplaints back pain vcc sa lw 11 judgment matthew v keylok technology pty ltd association work 29 july 2005 16 august 2005 18 september 2005 could relate recurrence symptom associated plaintiff earlier back injury arising ongo ing performance light duty say symptom plaintiff continued complain consistent ongoing mechanical back injury 44 event defendant asse rts attendance treatment 14 july 2005 related different compla int think unlikely event associated compla int responsible lumbar spine disc bulge l2 3 level repor ted mri scan result dated 14 july 2005 45 note following dr patr ick recent assessment plaintiff july 2008 based clinical find ings example report global back moveme nt restriction diffuse muscular enderness back lower leg inconsistent straight leg raising sign opts current diagnosis consistent wit h non organic cause myofascial soft tissue pain syndrome 46 whilst condition affecting myofa scia soft tissue muscle may ordinarily construed physical complaint instance notwithstanding plaintiff submission contrary think specialist report mention view change mri film obtained 2005 minor indicate dr patrick probably currently view primary cause plainti ff impairment non organic word probably dr patrick meant said contribution structural change minimal mo stly muscular soft tissue overlay contributing functional problem 47 either way treating rheumatologist general practitioner report give plaintiff little comfort estab lishing january 2004 plaintiff suffered frank work related discal jury contributed ongoing organic impairment lower back vcc sa lw 12 judgment matthew v keylok technology pty ltd 48 early august 2005 plaintiff assessed cedar court 26 september 2005 18 november 2005 undertook pain management program note amongs thing discharge plaintiff presented n improved range mo vement strength stability lumbar spine apparently plaintiff also reported decrease pain level improvement lower back symptom intermittent nature rarely extend left leg 49 number return work plan cove ring period early november 2005 april 2006 also endered appear developed accommodate plaintiff limitation associated lower back condition well encourage hi return pre injury duty defendant wanted perform know goal never achieved notwithstanding plaintiff attempt persist light different duty contemplated plan 50 discharge report fr om cedar court clinical record december 2005 march 2006 suggest save attendance doctor dece mber 2005 early january 2006 association return work pl provided light duty including first shorter working w eek plaintiff condition probably improved 51 next relevant entry clinical note relates plaintiff attendance 22 march 2006 cross examination explai ned developed pain paintin g ten shoe time required hold spray gun high result developed pain occasi amongst thing entry record tender l sacroiliac area rom sl restricted 52 entry clinical record attendance may june july august 2006 relate pain plainti ff lumbar spine vcc sa lw 13 judgment matthew v keylok technology pty ltd also entry complaint pain tenderness upper back rib cage area dr becker think related lumbar spine problem plaintiff attributed pain caused physiotherapy treatment event ac cording plaintiff attendance clinic 22 march 2006 september 2006 coincides termination employment notwithstanding ongoing back pain time time aggravated work activity persevered light duty medico legal assessment 2006 53 case plaintiff place particular reliance medico legal report including independent impai rment assessment mr conroy already discussed 54 recent examination took place 2008 plaintiff examined orthopaedic surgeon mr hooper request defendant solicitor consultant physician pain medicine rehabilitation mr kinloch surgeon mr flaim request plaintiff solicitor 55 whilst clear w hether mr hooper viewed mri film examining plaintiff 30 july 2008 nevertheless felt hat association lifting incident 2004 mri material revealed significant degenerativ e disc problem 2 3 sic disc bulge pushing theca level b four year conservative treatment without improvement symptom sing le level spinal fusion considered c impairment plaintiff spine precluded return plaintiff pre injury labouring employment vcc sa lw 14 judgment matthew v keylok technology pty ltd 56 mr kinloch examined plaintiff may 2008 seems viewed radiological material adopted cautious approach concluding man mechanical back pain ongoing symptomatology may related central disc protrusion l2 3 satisfied directly related work injury 28 january 2004 aggravation thereafter extent chanical derangement may may respond appropriate treatment spinal physiotherapist event unlikely able return labouring work would require training problematic poor literacy education experience 57 mr flaim examined plaintiff 7 february 2008 upplemented report short letter 25 septem ber 2008 mr flaim appears viewed radiological film noting abnormality l2 3 level plaintiff degenerate disc mr flaim specifically linked plaintiff chronic back pain stiffness loss vigorous function radiation left leg lifting incident jan uary 2004 whilst also opining lifti ng incident repeated aggravation related lifting period time reason suppose would continuing low back pain 58 doubt existed mr flaim believed hat origin plaintiff back pain probably organic letter forwar ded plaintiff solicitor september year act dispel stating plaintiff physical condition causing back pain nd stiffness limitation function related condition rather primarily related psychological cause 59 important issue application defendant assertion pain syndrome overtaken physical musculo ligamentous strain injury assert ion genesis earlier medical report treating rheumatologist dr beck er forget mr russell support pr oposition defendant also relied vcc sa lw 15 judgment matthew v keylok technology pty ltd report consultant occupational health sa fety legal medicine dr wallin rheumatologist dr e ngel examined plaintiff request solicitor 20 december 2006 29 october 2007 respectively report ort hopaedic surgeon mr jones examined plaintiff defendant two occasion 7 december 2006 11 october 2007 60 dealing first dr wallin wa another doctor least appears viewed x ray film necessarily th e ct mri film relevantly apparently confirmed presence disc bulge l2 3 level without definite ne rve root encroachment dr wallin concluded cause patient symptom could detected 61 evident report r ead report submitted mr conroy general practitioner dr becker dr wallin expressed preference dr becker opinion plaintiff symptom result significant psychosomatic disability including probably fibromyalgia syndrome two factor particular appear fluenced dr wallin choice one treating general practitioner greater contact wit h plaintiff dr wallin impression plaintiff presented fairly depressed stressed person 62 event interpretation dr wa llin report examination plaintiff satisfied organic factor major organic pathology fibromyalgia pain primarily responsible described genuine ongoing back disability flowing episode injury work 63 already indicated mr jones examined plaintiff twice 7 december 2006 le year later 11 october 2007 also provided correspondence commented medical report vcc sa lw 16 judgment matthew v keylok technology pty ltd submitted mr conroy dr becker dr wallin plaintiff fitness undertake range occupation 64 read material submitted mr jones note adequately explain reason reason final diagnosis october 2007 back pain unknown origin significant psychosomatic flavour note diagnosis fibromyalgia considered believe unlikely 65 instance following examination plaintiff mr jones report show obtained plaintiff c onfirmed history work related injury consistent led acceptance plaintiff claim b first examination reco rded complaint included pain left side lower back occasionally felt right side tends radiate left leg usually far calf foot leg pain onl last second sharp quality coughing sneezing bring leg pain unable bend lift repeatedly stand comfortably cannot sit long night pai n problem sleep throughout denied anxiety depre ssion said family doctor felt somewhat depr essed able drive motor vehicle short distance first report contrasted mr jones last report whic h said plaintiff never sciatica never referred pain leg report apparently attributed plainti ff making never cross examined c examination found abnormal neurological sign normal slump test october 2007 plaintiff also apparently able vcc sa lw 17 judgment matthew v keylok technology pty ltd clasp ankle whilst seat ed couch pain axial compression although october 2007 without explaining mr jones thought suggestive least functional element plaintiff presentation restriction movement december 2006 50 per cent plaintiff lumbar spine suggestion limited restriction comment meaning cannot fathom although oc tober 2007 mr jones also found self limitation particularly lumbar flexion 30 degree examined mri film first thought l2 3 pathology degenerative disc posterio swelling resulting minor compression thecal sac level probably significant far plaintiff symptom lower backache concerned although october 2007 mr jones described abnormality rev ealed film questionable degenerative change unlikely significant factor e accepted work related lower back injury january 2004 whether injury involved discal mr jones first appeared accept soft ti ssue injury mr jones always opinion passage time employment longer material contributing factor plaintiff back problem 66 arguably march 2007 prior next examination plaintiff seen report referr ed mr jones changed opinion plaintiff counsel described volt face nature injury suffered role disc pathol ogy pl aintiff ongoing symptomology say reviewing medical opinion mr jones appears persuaded th psychological rather physical factor dominant plaintiff presentation vcc sa lw 18 judgment matthew v keylok technology pty ltd compensable injury 67 despite likely psychological response injury whic h plaintiff treated general practitioner prescription anti depressant medication time 2007 think circumstance injury occurred subsequent mri f ilm general consistency plaintiff complaint specialist opinion including mr jones earlier opinion point likely work relat ed discal injury l2 3 level january 2004 addition finding evidence plaintiff specialist mr conroy mr hooper mr flaim dr kinloch satisfied discal injury suffer ed january 2004 probably remains symptomatic lower back pain leg pain limitation movement plaintiff physical impairment probably overtaken another contributing cause permanent sense hat likely last foreseeable future pain suffering consequence 68 pain suffering loss enjoym ent life consequence ongoing impairment plaintiff lumbar spine summari sed main plaintiff affidavit evidence lesser extent response cross examination 69 extent lates observation son evidence challenged plaint iff mother affidavit tends corroborate plaintiff evidence injury related impairment lower back significant ongoing impact work domestic social activity 70 short plaintiff said experience pain travel left part back left leg almost ankle time move right leg knee vcc sa lw 19 judgment matthew v keylok technology pty ltd lost opportunity engage porting activity golf jogging importantly nooker game recognised champion regularly us anti inflammatory painkilling medication lost opportunity return pre injury labouring work work requiring heavy repetitive lifting bending difficult performing regular domestic task mowing lawn putting rubbi sh bin washing dish difficulty caring young child since separating wife requires assistance task mother cannot shop carry heavier item cannot sit stand long period must avoid sudden jerked movem ents cause pain whilst dressing cannot perform task involving r epetitive bending lifting continuous lifting heavy object 71 view pain suffering con equences impairment comparatively young plaintiff lower back judged comparison case range possible impa irments loss function lower back may fairly described significant marked least considerable order 72 propose make order granting le ave plaint iff commence proceeding defendant re pect recovery pain vcc sa lw 20 judgment matthew v keylok technology pty ltd vcc sa lw 21 judgment matthew v keylok technology pty ltd suffering damage hear par tie relation making order

Marine Engineering And Generator Services Pty Ltd v The State Of Queensland (Queensland Emergency Services) [1997] ACopyT 4 (19 June 1997).txt

marine engineering generator service pty ltd v state queensland queensland emergency service 1997 acopyt 4 19 june 1997 last updated 4 february 2004commonwealth australiacopyright act 1968in copyright tribunalno ct4 1996application marine engineering andgenerator service pty ltdapplicantthe state queensland queensland emergencyservices respondentjudge making order lockhart jdate order made 19 june 1997wwhere order made sydneyminute orderthe tribunal order 1 respondent pay cost applicant application including reserved cost commonwealth australiacopyright act 1968in copyright tribunalno ct4 1996application marine engineering andgenerator service pty ltdapplicantthe state queensland queensland emergency service respondent19 june 1997reasons decisionlockhart jon 22 may 1997 tribunal published reason decision made order payment sum 3 900 respondent state queensland applicant tribunal also ordered applicant respondent file brief written submission concerning cost party since filed submission read need refer submission havebeen considered fully opinion respondent pay applicant cost matter applicant succeeded claim true fire service laboured misapprehension entitled essence liked schedule log also true applicant became aware respondent used log informed respondent use constituted infringement applicant copyright log respondent ceased use nevertheless plain material accompanying written submission misunderstanding respondent part basis application resolved august september 1996 tribunal order respondent pay applicant cost application including reserved cost hereby certify preceding two 2 page true copy reason decision herein honourable justice lockhart associatedated 19 june 1997counsel applicant mr c mooresolicitors applicant cleary leecounsel respondent mr mullinssolicitors respondent crown lawdate judgment 19 june 1997

Davies v WorkCover_EML (Souplympharm Pty Ltd) [2008] SAWCT 12 (14 March 2008).txt

davy v workcover eml souplympharm pty ltd 2008 sawct 12 14 march 2008 last updated 17 march 2008davies v workcover eml souplympharm pty ltd 2008 sawct 12workers compensation tribunal sa davy karynvworkcover corporation employer mutual ltd souplympharm pty ltd jurisdiction judicial determinationfile 3569 2007hearing date 18 19 20 28 february 2008judgment honour deputy president judge bp gilchristdelivered 14 march 2008catchwords judicial determination worker suffers severe chest injury cannot find appropriate treatment australia worker find treatment injury america whether device sternal talon used australia whether workcover directed law formulate rehabilitation program involves usage medical device approved therapeutic good act whether workcover directed formulate rehabilitation program involves medical treatment performed medical practitioner registered medical practitioner act whether worker request reasonable tribunal satisfied legal impediment establishment proposed program principle governing tribunal approval overseas treatment considered discussed tribunal prepared make finding time evidence given proposed treatment accepted australian medical profession appropriate tribunal find however treatment ancillary expense reasonable matter adjourned consideration judicial determination s 3 26 32workers rehabilitation compensation act 1986 59workers compensation act 1971 s 41ma 44matherapeutic good act 1989 30medical practitioner act 1919 1983 2004 representation counsel applicant mr colerespondent mr hanussolicitors applicant scale partnersrespondent minter ellison1ms karyn davy suffered severe injury chest motor vehicle accident occurred june 2001 2the injury occurred compensable circumstance purpose theworkers rehabilitation compensation act 1986 wrca m davy regularly receipt weekly payment reimbursed medical expense incurred consequence injury 3unfortunately despite extensive treatment including two operation chest remains severely debilitated chronic pain 4through extensive research identified surgical procedure might provide relief difficulty procedure cannot performed australia involves insertion medical device approved thetherapeutic good act 1989 also understand surgeon australia training fit device 5ms davy asked workcover corporation construct rehabilitation program would enable undergo procedure overseas workcover declined request m davy sought review decision turn culminated hearing task determine whether workcover directed comply m davy request 6at issue whether matter law workcover directed formulate rehabilitation program involves use medical device approved thetherapeutic good act whether matter law workcover directed formulate rehabilitation program involves performance medical treatment medical practitioner registered themedical practitioner act 2004 whether m davy request circumstance reasonable facts7the injury causing m davy chronic pain unhealed fracture sternum consequence gap sternum three centimetre sternum fracture vertical m davy sternum fracture horizontal 8dr cherry director pain management unit flinders medical centre described consequence condition follows move l arm particular cough try lie l side suffers pain fracture site radiates upper thoracic spine l shoulder natural response musculo skeletal type pain surrounding muscle tighten prevent unnecessary movement uncommon pain referred muscle think case 1 9this accord m davy evidence accept said experience chronic pain undertakes activity involving elevation arm weight bearing arm bending forward length time twisting either side laying front left side back sitting standing long 10mr jurisevic thoracic surgeon operated upon m davy 18 july 2002 surgery involved trimming side fracture hope would lead bone rebuilding joining site 11initially m davy experienced improvement result operation developed pain 12mr jurisevic performed surgery 28 june 2002 removing piece bone top sternum catching unfortunately despite procedure m davy continues experience chronic pain 13ms davy take tramal powerful analgesic four time day well voltaren anti inflammatory three time day taking tramal four half year voltaren six year last twelve month vomiting passing blood consulted gastrologist understood vomiting blood passing related medication take medication alleviate problem 14she offered morphine pump dr cherry declined accept offer concern taking powerful drug 15having advised mr jurisevic surgical treatment available m davy undertook research ultimately led professor levin surgeon professor orthopaedic plastic surgery duke university medical centre north carolina united state 16together another plastic surgeon company involved development production medical device kls martin professor levin invented designed surgical device known sternal talon 17a brochure produced kls martin describes sternal talon follows year sternal wound closed using stainless steel wire type non rigid fixation without complication sternal instability lead dehiscence potentially deadly mediastinitis wire also break cut porous bone tissue sternal talon advanced system true rigid fixation potentially help reduce risk thus enhances patient comfort promotes return full function sternal talon advance device offer superior mechanical advantage rigid sternal fixation titanium single double talon system pull side sternum together using ratchet mechanism 3 position screw anterior surface device rotates open closing locked position pressure applied medially using accompanying instrument full closure achieved fraction time required technique 2 18professor levin involved surgical procedure involving sternal talon trained others united state told done 800 plate 250 patient virtually complication many patient non union similar m davy 3 19professor levin examined m davy 19 december 2006 north carolina travelling united state holiday determined suitable person sternal talon implant 4 20dr cherry said sternal talon available australia would justifiably used m davy thought used good chance m davy persistent pain quality life level function would improved 21ms davy said surgery successful would contemplate returning work 22an issue arose proceeding whether similar device available australia one identified device known sternalock 23in brochure placed evidence sternalock procedure described device intended use stabilization fixation fracture anterior chest wall including sternal fixation following sternotomy sternal reconstructive surgical procedure aid alignment stabilization bone 5 comprises plate plate fixed position using screw affix plate bone 24mr jurisevic considered device unsuitable case said traditionally used midline longitudinal cut sternum plating side pull sternum together mr davy situation big gap transverse fracture force transverse fracture different longitudinal fracture plating across transverse fracture sternalock would would help control rotational force basically putting plate transverse gap screwing sternum address one aspect stability know plating situation plate one end basically plating one direction rotational force destabilise make plate move concern also whole aim procedure future stabilisation procedure control chronic pain going drilling bone sternalock device example may become unstable pain metal bone fragment risk infection understanding going get device would want make sure device theoretically trick without much bone damage issue want go damaging bone fracture 6 25mr jurisevic said sternalock device sternal talon endeavoured achieve result different method former using plate screw latter grasping side sternum talon type structure pushing together 26the potential two device job pursued cross examination led exchange case job apart fear fact screwing bone cartilage might produce pain go back step screwing bone actually remove bone tissue gap already may get enough purchase across sternum get stable joint also force experience wiring sternum past people tried plate rotational force screw one table sternum screw break free cause multiple fracture actually happens even simple wire much smaller narrower screw 7 27mr jurisevic opinion sternal talon could stabilise m davy sternal fracture tried alleviate chronic pain 28professor levin also asked sternalock device sternal talon primarily designed closure system longitudinal incision mr davy case make use closure system like sternalock system inadequate well method extension concern relative weakness bone bone loaded separated might get screw growing bone even holding say sternal talon device view preferable offer advantage different type closure system mean different type closure system simply incapable use would agree statement court law 8 29mr hanus argued could rely upon professor levin evidence suitability sternal talon m davy analysis evidence revealed firm understanding condition support submission took following exchange cross examination ct scan show fracture case initially least transverse fracture rather longitudinal fracture two half indistinct united gap left right side recollection gross movement mean one looking patient standing position bone continuously left right sternum gap vertical bone structure recollection m davy looking scan right court demonstrable motion left right side recollection courtroom 9 30this led mr hanus make following submission would appear least stage whilst giving evidence confused precise nature condition submission ability impact upon opinion 10 31he took evidence given professor levin professor want clarify issue three centimetre gap mr davy sternum look sternum side essence top sternum join bottom sternum mm hm talon designed likely stronger structure well know obviously biased believe well indistinct biomechanical testing done sternal talon definitely stronger particular case really difficult say 11 32mr hanus submitted directly course examination professor attention drawn specific nature mr davy condition perhaps quite properly respectful submission friend try clear might confusion answer well really difficult say 12 33in evaluating professor levin evidence important note gave evidence telephone normally medical expert give evidence person benefit note often confers counsel immediately prior giving evidence amongst thing likely focus expert make relaxed giving evidence 34professor levin eminently qualified surgeon personally examined m davy put apparent confusion nature disability circumstance giving evidence rather indication confusion 35as measured response relative advantage sternal talon took reflect degree modesty given invented device rather indication uncertainty efficacy case need noted e mail professor levin sent m davy 28 may 2007 wrote device available australia opinion product market one two flawed term design particular problem 13 36mr hanus took mr jurisevic evidence said respectful submission confident use talon device seems almost put realm experimental try make submission ask honour go page 34 line 19 relation sternal talon look like device able stabilise seen used first hand experience think tried effort break chronic pain cycle relation perhaps putting high realm experimental 14 37i disagree left firm impression mr jurisevic quite confident sternal talon valid form treatment offered m davy good chance success notable report tendered proceeding mr jurisevic wrote mr davy looked procedure whereby mobile sternum fixated new fixation device device available usa approved fda device knowledge chance successful fixation mobile sternum successful sternal fixation procedure provide best chance resolution chronic pain sternal device available australia reliably fixate sternum thus would highly recommend mr davy undergo procedure proposed dr levin 15 38ms davy presently receiving 274 69 per week way income maintenance workcover cease 23 july year reach 65 year solicitor obtained estimated costing associated performing procedure involving sternal talon device overseas comprise hospital surgery cost 38 500 two business class return fare united state 10 500 accommodation united state two week ancillary travel expense think reasonable cost estimate would 60 000 39i turn consider issue arise consideration matter law workcover directed formulate rehabilitation program involves use medical device approved thetherapeutic good act 40mr hanus took provision thetherapeutic good act commenced taking tos 5of act provides nothing act render crown liable prosecuted offence subject civil proceeding although conceded possible workcover might regarded crown compelling argument workcover something contravention thetherapeutic good actit likely could exposed commission offence act 41mr hanus took definition medical device plain sternal talon fit within definition took penal provision act contains particular 41ma 8 provides person commits offence person supply medical device use australia b medical device comply essential principle 16 42the essential principle referred therein contemplate consent secretary relevant authorising authority plainly provided case 43mr hanus took definition supply includes supply way administration application treatment person animal 17 44he submitted proposed tantamount supply sternal talon lead make submission say person fund essentially body fund currently proposed act funding paying either indirectly supply medical device paying least would arguably complicit supply use essentially hold mr davy sternum together contemplated use would take place australia say least arguable program contemplated set corporation least eml may well supplying sternal talon use australia 18 45this lead mr hanus say lead submission real risk put nay higher say certainty searched various defence various offence none seem apply take honour point think risk contravention commonwealth legislation directing compensating authority set rehabilitation program includes proposed applicant honour accepts least risk contravention commonwealth legislation honour respectful submission direct compensating authority set program 19 46i agree submission made mr cole thetherapeutic good actand penal provision contains intended provide control surgical use medical device australia concerned providing control relation may go overseas medical device fitted return australia think becomes clear one analysess 41ma 4 deal importation provides person commits offence person import medical device australia b medical device comply essential principle relating matter labelling device c secretary consented importation 47if one took mr hanus argument logical conclusion australian citizen went overseas undertook surgery implant medical device approved thetherapeutic good actwould commit offence 44ma 4 act upon returning australia implanted device inserted indeed logically argument would lead one conclude visitor country fitted medical device approved thetherapeutic good actwould also committing offence think parliament intention thetherapeutic good actto apply circumstance 48i also agree mr cole paying cost medical procedure tantamount supply purpose thetherapeutic good act 49i therefore agree mr cole mr hanus argument relation thetherapeutic good actcannot relied upon conclude m davy request must refused matter law workcover directed formulate rehabilitation program involves performance medical treatment medical practitioner registered themedical practitioner act 2004 50pursuant 32 act worker recover cost medical service medical service relevantly defined 3 act attendance examination treatment medical expert 51medical expert defined 3 meaning legally qualified medical practitioner b registered dentist c registered psychologist registered optician e registered physiotherapist f registered chiropractor g registered podiatrist h registered occupational therapist registered speech pathologist 52on face would appear medical practitioner treated differently medical expert within group stipulated profession qualified work registered 53however think analysis relevant legislation reveals intention 54many term concept appear wrca plainly borrowed predecessor theworkers compensation act 1971 55under 59 theworkers compensation act medical service meant attendance examination treatment kind administered legally qualified medical practitioner registered dentist registered optician prescription legally qualified medical practitioner registered physiotherapist registered chiropodist 56upon enactment theworkers compensation actin 1971 30 themedical practitioner act 1919provided wherever act hereafter force instrument expression legally qualified medical practitioner duly qualified medical practitioner used expression shall passing act unless contrary intention clearly appears deemed mean person registered act 57accordingly contrary intention clearly appeared theworkers compensation actthe expression legally qualified medical practitioner meant medical practitioner registered thenmedical practitioner act 58although time wrcawas passed 1986 themedical practitioner actof 1919 repealed replaced themedical practitioner act 1983and although later act contained equivalent provision 30 view expression legally qualified medical practitioner intended mean medical practitioner registered 1983 act process reasoning conclude present reference legally qualified medical practitioner thewrcarefers medical practitioner registered themedical practitioner act 2004 59it follows worker entitled reimbursed provision medical service undertaken medical practitioner registered themedical practitioner act 2004 60it also follows m davy decided pay proposed treatment overseas performed professor levin understand medical practitioner registered undermedical practitioner act 2004 would right law reimbursed cost workcover 61this might thought compelling argument support proposition workcover cannot compelled formulate rehabilitation program provides treatment undertaken paid worker would recoverable pursuant 32 wrca discount argument lightly 62there however matter pointing way 63first term 26 wrca provision empowers workcover establish rehabilitation program extremely wide term listing series example rehabilitation might achieved end 26 3 l statement anything else may assist rehabilitation worker word nothing within reflecting parliament intention limit service provided provider registered appropriate legislation state 64second scope 32 much enable reimbursement cost incurred example pursuant 32 11 governor may regulation prescribe scale charge purpose section b treatment protocol treatment disability particular kind 65although governor prescribes relevant regulation identification appropriate scale charge treatment protocol essentially matter workcover revealed 32 13 provides regulation made prescribing scale charge treatment protocol corporation must consult term proposed regulation professional association representing provider medical service relevant kind etc 66section 32 9 provides treatment protocol disability particular kind prescribed section cost medical service treatment disability relevant kind related hospitalisation nursing service compensable service provided accordance protocol b provider service establishes corporation satisfaction service outside term protocol justified circumstance particular case 67section 32 10 provides amount compensation service covered scale charge prescribed section must accordance scale 68it seen 32 also enables workcover effect regulatory body prescribe nature cost treatment obliged pay upon reasonably incurred disabled worker reasonable assume governor capacity prescribe regulation treatment protocol prescribe scale fee would apply medical practitioner registered state corollary medical treatment undertaken medical practitioner registered state expense recoverable pursuant 32 69it however follow worker thereby unable treated medical practitioner registered state disabled worker living east mount gambier might much better served seeking treatment doctor registered equivalent victorian act say portland rather seeking treatment doctor south australia registered themedical practitioner act 2004 70as matter practice workcover may elect reimburse cost treatment without argument however technically expense incurred without prior approval workcover could decline payment 71an effective way seeking prior approval provided proposed treatment regime could said comprise service assist worker cope disability home workplace 20 would request pursuant 26 act asking establishment rehabilitation program included within term provision treatment turn would enable workcover impose term rehabilitation program treatment protocol scale fee treatment undertaken outside state would undertaken within state medical practitioner registered themedical practitioner act 2004 72the fact medical treatment provided person although medical practitioner registered themedical practitioner act 2004is relevant factor determining m davy request however view fact matter law prevent tribunal formulating program might include treatment m davy request circumstance reasonable 73there issue associated establishment rehabilitation program involving treatment overseas require special consideration inevitably expense factor lack local knowledge supervision associated treatment result think circumstance would appropriate formulate rehabilitation program would rare would direct workcover formulate program unless satisfied following proposed treatment available australia effective alternative treatment available australia treatment accepted australian medical profession appropriate treatment worker real prospect treatment undertaken effective treatment successful substantially improve best practicable physical mental recovery possible might lead return workforce cost treatment ancillary expense circumstance reasonable 74the first matter clearly established 75on basis mr jurisevic evidence accept reason give conclude sternalock device appropriate treatment therefore conclude effective alternative treatment available australia 76the evidence mr jurisevic dr cherry accept go way establishing treatment accepted australian medical profession appropriate form treatment m davy think go far enough mindful professor levin eminently qualified device approved united state recently european country mr jurisevic gave glowing endorsement however mr jurasevic also said new device new treatment undertaken australia usual practice cardiothoracic surgery seek form approval australian college surgeon mr jurisevic said tend err cautious 21 light fact asked approve insertion device untried australia m davy chest justification le cautious 77as evidence one australian thoracic surgeon one australian doctor whose speciality pain management neither seen medical device issue observed proposed procedure view insufficient evidence establish proposed accepted australian medical profession appropriate form treatment m davy 78the evidence professor levin mr jurisevic effectiveness proposed treatment go long way establishing real prospect treatment effective presently satisfied proposed treatment accepted australian medical profession appropriate form treatment m davy prepared make finding time 79for reason although evidence professor levin mr jurisevic dr cherry go long way establishing treatment successful substantially improve best practicable physical mental recovery might actually lead m davy returning workforce prepared make finding time 80i understand workcover contend cost treatment ancillary expense unreasonable outlay order 60 000 insignificant compared cost medical expense associated surgery australia regard prohibitively expensive although amount weekly payment paid m davy large cease soon 26 wrca concerned cost analysis cost rehabilitation compared diminished cost compensation rehabilitation successful serf wider purpose 81in circumstance find cost treatment ancillary expense reasonable 82i presently satisfied sufficient fact provide m davy relief seek however unique nature type matter lack judicial guidance matter dealt tentatively view simply confirm workcover determination tentatively view adjourn consideration judicial determination enable m davy solicitor attempt seek evidence support request 83i propose receiving submission whether take course hear counsel suitable time occur note carefully party advised party wish appeal part decision appealable pursuant 86 1 act appeal must filed registrar accordance form titled notice appeal within 14 day delivery decision must served party 1 tb 119 2 tb 235 3 tr 18 4 tr 17 5 tb 226 6 tr 32 7 tr 38 8 tr 23 9 tr 22 10 tr 45 11 tr 24 12 tr 46 13 tb 40 14 tr 46 15 tb 90 16 tr 65 17 tr 66 18 tr 50 19 tr 51 20 26 3 g 21 tr 39

Bindaree Beef Pty Ltd & v Raymoon Pty Ltd [2006] NSWCA 35 (2 March 2006).txt

bindaree beef pty ltd v raymoon pty ltd 2006 nswca 35 2 march 2006 citation bindaree beef pty ltd anor v raymoon pty ltd 2006 nswca 35file number 40728 2004hearing date 24 10 05decision date 02 03 2006parties bindaree beef pty ltd orange city beef first appellantyolarno pty ltd second appellantraymoon pty ltd respondentjudgment santow ja mccoll ja brownie ajalower court jurisdiction supreme courtlower court file number sc 20066 2004lower court judicial officer dowd jcounsel b r mcclintock sc j downing appellantsm l williams sc j catsanos respondentsolicitors hunt partner appellantsblake dawson waldron respondentcatchwords judge judgment insufficient reason finding pleading admission allegation fact whether assertion implied contractual term allegation fact legislation cited decision 1 appeal allowed 2 judgment order made respect cross claim set aside 3 matter remitted common law division new trial respect cross claim 4 respondent pay cost appellant appeal certificate thesuitors fund act 1951if otherwise qualified 5 cost first trial party cross claim discretion judge conduct new trial judgment supreme courtof new south walescourt appealca 40728 04sc 20066 02santow jamccoll jabrownie ajathursday 2 march 2006bindaree beef pty ltd another v raymoon pty ltdjudgment1santow ja respectfully agree reason given brownie aja judgment advantage reading draft subject following observation 2 implied term assumed oral contract party appellant would take reasonable measure ensure health safety person lawfully entering abattoir course employment respondent pleaded paragraph 7 respondent cross claim never traversed appellant question whether failure traverse operated admission allegation made scrpt 15r20 amplified byscrpt 6r6 3 one begin proposition contract oral requires intention determined fact hanbury v nolan 1977 13 alr 339 hca intention cover intention bound one intends bound moreover term implied law based written trade code similar writing 222 2 restatement second contract 1979 contrast existence scope usage trade embodied determined question fact 4 term implied reference necessary give business efficacy party contractual arrangement reference simply uncodified custom usage legal test determines whether term may implied predominantly factual question term satisfied test believe properly explains auld lj observation agreed saville rose ljj infriends provident life office v hillier parker may rowden 1997 qb 85at 110 concluded implication mixed question law fact appropriate deal issue rule court determination issue law add boundary line content contract proper construction latter question law always clear however question implication term appears clearly enough former category 5 would therefore respectfully concur brownie aja purpose ofpt 15r20scr alleged implied term constituted allegation fact would add predominantly fact must taken admitted traversed even allegation law agree brownie aja event seems likely appellant intended deny implied term pleaded allegation paragraph 7 one fact thenpt 15r13 b required plead contention likely take respondent surprise 6 event circumstance pleaded paragraph 2 4 5 clearly factual require traversed admitted traversed paragraph follows 2 material time bindaree yorlano owner occupier abattoir located clergate road orange state new south wale 4 material time raymoon engaged bindaree yorlano pursuant contract perform plumbing duty around abattoir 5 material time raymoon employed plaintiff assist completion duty abattoir 7 appears unlikely subject say 9 may 1992 reasonable measure satisfying implied term would included testing plaintiff vulnerability q fever least correct failing appellant would breach obligation thus associated duty care earlier pleaded paragraph 2 4 5 untraversed preclude appellant contending premise treated abattoir time mr king engaged performing plumbing duty mr king performed plumbing duty behalf respondent request appellant 8 evidence demonstrates though de boning activity time 1998 carried premise used slaughtering ten year earlier b intention would recommence slaughtering activity premise would recommence near future de boning activity sufficiently partook activity abattoir circumstance may reason traverse pleading premise abattoir time plaintiff exposure 9 however regrettably finding trial appears sufficient evidence directly addressed question reasonable measure would satisfy standard applicable plaintiff contracted q fever 1998 10 fundamental problem explained brownie aja twofold determination finding whether implied term operated according medical standard reasonable may 1992 ambulatory operation import medical standard evolved particular evolved 1998 b implied term ambulatory operation finding whether medical standard reasonable 1998 higher may 1992 relevantly turn led conclusion reached brownie aja 63 64 essentially practitioner gave evidence directed relevant question 11 circumstance regret must agree appeal allowed new trial ordered 12mccoll ja agree brownie aja 13brownie aja appellant occupier premise formerly used abattoir premise engaged respondent carry certain plumbing work premise respondent employed mr king plaintiff perform work plaintiff contracted q fever sued respondent appellant damage contending contracted fever whilst working premise respondent brought cross claim appellant claiming contribution indemnity tort feasors contractual indemnity 14 course trial plaintiff respondent agreed upon compromise litigation agreement reached either plaintiff appellant respondent appellant result judgment given consent plaintiff respondent plaintiff respondent agreed sum plaintiff announced intention proceed appellant withdrew respondent proceeded upon hearing cross claim appellant obtained judgment upon indemnity basis plaintiff claim appellant remains foot part heard party taken effective step bring proceeding end 15 appeal concerned directly judgment cross claim whilst many disputed question question plaintiff contract q fever somehow question reasonableness amount judgment obtained plaintiff respondent 16 human usually contract q fever inhaling organism called coxiella burnetii organism widely distributed amongst many animal including cattle organism highly infectious animal human infected animal appear symptom free infected human often symptom free case human infection acute significant symptom produced 17 plaintiff congenital coronary artery stenosis prior event question aortic valve replacement result contracting q fever developed life threatening prosthetic aortic valve endocarditis case continuing disability resulted 18 disputed question plaintiff became infected organism four possibility suggested first organism persisted dust premise result former use premise abattoir plaintiff work premise closed dusty environment inhaled organism dust secondly inhaled organism aerosol aerosol product meat boning operation carried premise appellant period plaintiff worked thirdly infected whilst present occasion cow slaughtered two month started working respondent fourthly infected even earlier living boarding house near animal 19 medical evidence entirely documentary gave different version incubation period time exposure human organism development noticeable symptom professor broughton infectious disease physician specific experience area q fever likely transmission said range two thirty day blue 25 likely minimum period three four day blue 80 dr anderson occupational physician said range two four week blue 77 dr lee thoracic physician provided copy extract textbook also described period two four week blue 144 professor lloyd infectious disease physician particular interest q fever chronic sequela said reported extreme period approximately five day six week blue 183 20 symptom q fever non specific indistinguishable symptom many infection way make definitive diagnosis q fever conducting serological test however plaintiff consult medical practitioner month occasion might infected four suggested mechanism developed condition endocarditis consequent upon acute fever condition endocarditis led admitted hospital early 1999 test first carried 21 period plaintiff employed respondent work premise 23 march 1998 24 april 1998 boning operation premise commenced recommenced 16 april 1998 period 23 march 24 april 1998 plaintiff might infected reason working dusty condition period 16 24 april 1998 might also infected reason inhaling aerosol product boning operation 22 contemporary record plaintiff first suffered febrile illness first perceived symptom part q fever plaintiff recollection asked much later understandably imprecise account given different occasion sometimes quite ill varied 23 first possible cause plaintiff infection arose fact coxiella burnetii spore unusually hardy might survive long period various environment common ground might survive long time dust found place cattle housed slaughtered processed even dust blown wind although estimate maximum time spore might survive varied 24 professor broughton said organism known remain viable dust typically found abattoir least two year full duration viability organism known blue 30 later asked comment upon report professor sim report evidence professor broughton said thought unlikely organism would survive ten year could accepted appropriate study viability conducted however unlikely anyone would ever carry study blue 80 dr macleod treating microbiologist said organism survive dust many year impossible precise although survival rate would diminish time blue 31 also said organism could certainly present dust described present premise assuming infected animal slaughtered dr anderson occupational physician said well known organism could persist several month far knew nobody suggested organism could exist anything like 12 year blue 78 dr lee said improbable spore would remain viable ten year referring attached extract textbook already mentioned blue 140 extract evidence refers various way infection spread hardiness organism deal directly longevity professor lloyd spoke prolonged survival organism spore like form considering possible might survive ten year deal subject specifically blue 183 184 later said mechanism survival organism environment remained poorly defined strong epidemiological microbiological support plausibility long term persistence viability blue 186 since inhalation one two organism may result infection low rate viability particularly telling blue 30 25 significance view linked question lapse time premise last used abattoir plaintiff first entry upon 23 march 1998 witness knowledge date cessation use premise abattoir gave evidence although evidence various hearsay statement statement nature mere assertion people prima facie know fact personal knowledge however trial seems conducted basis period likely ten year longer contest plaintiff worked premise 1998 formerly used abattoir used although appellant acquired premise view later resuming slaughter operation blue 149 event subject litigation used abattoir 26 second possible cause infection arose presence aerosol around boning room premise boning operation commenced recommenced 16 april 1998 seem contest boning work resulted presence aerosol aerosol might contained organism plaintiff said entered boning room check pipe boning room minute black 25 26 130 people working wore protective clothing including mask described atmosphere room misty also spoke boning room employee hosing clothing boot showering evidence might lead inference drawn aerosol around shower room plaintiff worked frequently 27 ample evidence plaintiff inhaled one organism one aerosol might resulted contracting q fever 28 third possible cause infection concerned event fixed occurred 12 13 january 1998 plaintiff farming property called paddy pinch consisting 125 acre plaintiff parent bull twenty thirty cow plaintiff riding motorcycle assisted rounding cattle herding cattle crush end operation one cow slaughtered professor richmond recorded history blue 5 plaintiff participated slaughter cow paddy pinch evidence plaintiff denied physically involved slaughtering said merely observed cow slaughtered plaintiff said particularly close time question evidence said ten metre away earlier occasion said three four metre away 29 significance incident linked question incubation period mentioned 9 question plaintiff first suffered symptom q fever 30 fourth possible cause suggested arises fact period commencing end august 1997 soon thereafter plaintiff lived boarding house called towri situated near bathurst near boarding house separated 25 30 metre paddock 100 acre blue 29 containing cattle blue 182 also cattle sale yard kilometre away black 13 14 31 trial plaintiff respondent contended appellant negligent amongst way failed arrange plaintiff tested q fever appropriate vaccinated q fever allowed onto premise work vaccination q fever readily available safe effective people immune q fever perhaps previously suffered without experiencing symptom practice test people see whether immune vaccinate vaccinate person immune might result adverse consequence 32 dr macleod said blue 17 strong association working abattoir acquisition q fever long known staff visitor exposed environment risk well person handle animal recognition recommended practice abattoir worker evaluated immunity q fever strongly encouraged vaccinated deemed non immune believe tradesman working abattoir likely exposed animal carcass animal contaminated dust pre employment assessment q fever slaughterman would 33 others expressed generally similar sentiment evidence contrary principal point contention reporter spoke worker visitor abattoir whereas appellant say premise used abattoir ten year 1998 seems quite clear relevant time period leading 16 april 1998 appellant intending use premise boning work boning carcass cattle slaughtered elsewhere boning operation fact commenced 16 april 1998 34 25 march 1998 central western pathology service wrote first named appellant generally unnecessary distinguish appellant giving quotation cost pre vaccination testing vaccination appropriate offer accepted day sense arranged eleven person said employee appellant tested 27 march 1998 person worked premise including three employee respondent tested vaccinated appellant say june 1999 35 question debated appeal trial last mentioned date court admitted evidence appeal topic basis special circumstance shown trial cross claim proceeded set fact inferred trial documentary evidence found favour respondent shown newly admitted evidence false knowledge respondent time trial although knowledge respondent lawyer suggestion dishonesty impropriety appears fact trial litigation conducted name respondent worker compensation insurer ruling respondent sought leave file notice contention time appellant opposed since perceived need file notice arose granting leave appellant adduce evidence mentioned appeared appropriate grant leave file notice time 36 referred earlier course trial say time counsel respondent counsel appellant cross examined plaintiff examined plaintiff respondent arrived compromise mentioned plaintiff counsel informed learned trial judge dowd j agreement asked adjournment overnight term settlement could prepared also said propose call evidence appellant would close plaintiff case without examining plaintiff counsel respondent announced intention prosecute cross claim counsel appellant foreshadowed objection matter adjourned next day 37 next day without opposition judgment entered favour plaintiff respondent consistently term settlement produced counsel appellant asked honour give judgment appellant plaintiff counsel respondent objected course honour declined accede appellant submission 38 counsel appellant sought adjournment hearing plaintiff claim appellant hearing cross claim took various point need mention spoke need consider position appellant generally possibility would cross examination plaintiff objection respondent honour granted adjournment sought event hearing resume seven month later 39 resumed hearing various procedural point taken appellant including proposition respondent could proceed cross claim regard event occurred submission find favour honour hearing proceeded reason clear evidence already admitted tendered hearing continued next day overall person give oral evidence plaintiff cross examination earlier foreshadowed 40 appellant contend honour erred various respect including making finding disputed fact giving adequate reason judgment respect consider correct example finding plaintiff first suffered symptom q fever finding four possible cause plaintiff infection probable one relation claim made contribution tort feasors finding least clear finding adequately stated reason either respondent person liable plaintiff damage arising specified tortious conduct part appellant also person liable plaintiff damage arising specified tortious conduct part weighing two piece conduct make requisite judgment assessing contribution appellant equitable circumstance lack reason mean unless litigation resolved otherwise new trial inevitable without need go consider point taken appellant attributing error trial judge soulemezis v dudley holding pty ltd 1987 10 nswlr 247 mifsud v campbell 1991 21 nswlr 725 andbeale v government insurance office nsw 1997 48 nswlr 430 41 however one strand case brought respondent appellant contract party appellant breached term contract respondent therefore entitled indemnified appellant florida hotel pty ltd v mayo 1965 hca 26 1965 113 clr 588 necessary consider whether appeal dismissed reference claim 42 witness gave evidence concerning formation contract however cross claim respondent pleaded material time appellant owner occupier abattoir located given address paragraph 2 respondent engaged appellant pursuant contract perform plumbing duty around abattoir paragraph 4 respondent employed plaintiff assist completion duty abattoir paragraph 6 implied term contract appellant would take reasonable measure ensure health safety person lawfully entering abattoir course employment respondent paragraph 7 particular allegation given cross claim 43 defence cross claim appellant whilst putting allegation issue plead paragraph taken admitted fact pleaded scrpt 15r 20 amplified bypt 6r 6 however evidence point form appellant statement answer interrogatory administered respondent appellant said first engaged respondent acquired premise possibly early may 1992 thereafter engaged respondent perform service time time request appellant respondent made mr skinner employee second appellant made orally 44 appellant submit failure traverse paragraph 7 cross claim operate admission allegation made becausept 15r 20 operates respect allegation fact say allegation one fact rather legal conclusion characterisation submission supported argument reference authority unpersuasive whilst court sometimes imply term contract legal incident particular class contract exampleliverpool city council v irwin 1976 ukhl 1 1977 ac 239 contract consideration cannot recognised without evidence point falling within class contract evidence appears case dispute question court might found implied term pleaded basis term reflected actual intention party although fully stated term basis term one party actually consider would agreed upon actually turned mind codelfa constriction pty ltd v state rail authority new south wale 1982 hca 24 1982 149 clr 337 345 346 view allegation made paragraph 7 one fact 45 event seems likely appellant intended deny implied term pleaded allegation paragraph 7 one fact thenpt 15r 13 b required plead contention likely take respondent surprise 46 appellant also submitted use word abattoir paragraph 7 allegation made generally paragraph sufficiently precise make supposed admission worth anything citingellis v allen 1914 1 ch 904 909 andash v hutchinson co publisher ltd 1936 ch 489 503 take abattoir building place animal slaughtered food slaughterhouse macquarie dictionary evidence show premise used sense period plaintiff worked point immediate consideration pleading point 47 consider admission made pleading meant unnecessary honour consider implied term considered content obligation take reasonable measure ensure safety health person lawfully entering abattoir course employment respondent class person plaintiff member reasonable context question fact 48 appellant point honour appears found contract contained implied term expressed term different term pleaded 58 red 42 rejected submission appellant contract include implied term appellant would take reasonable step ensure plaintiff vaccinated q fever take error 49 appellant seek avoid admission made pleading reference conduct trial say respondent able depart course submission fails factual level hearing cross claim distinct earlier hearing involving plaintiff commenced 21 july 2004 transcript record end day agreed party would provide written submission trial judge facsimile transmission evening respondent written submission proceeded basis existence term admitted pleading black 173 appellant written submission referred paragraph 7 cross claim defence cross claim went submit term question ought implied 50 next day one document tendered counsel addressed orally transcript contains summary reporter counsel said black 166 172 counsel respondent recorded beginning topic referring pleading black 168 appellant stage apply amend defence cross claim whilst appellant argued trial whether term pleaded implied respondent maintained position governed pleading 51 content term set 41 difficult see sensible reason relying upon evidence mentioned 31 34 however submission tended focus instead question concerning actual practice appellant whether actually require employee employee respondent undertake pre vaccination testing appropriate vaccinated respect appropriate approach risk infection well known possible avoid risk little trouble expense appellant fact took avoidance action respect member class person protected contract taken contained term appellant would take reasonable measure ensure health safety people question conclusion measure included pre vaccination testing appropriate vaccination seems follow naturally 52 order decide whether respondent made case breach contract necessary look detail fact appellant strong ground refer lack finding made learned trial judge court course seen heard plaintiff honour made finding credit plaintiff whose evidence vigorously challenged circumstance consider appeal must allowed unless said respondent proved case notwithstanding every criticism advanced concerning plaintiff case subject finding trial judge 53 appellant referred difficulty attendant upon deciding upon plaintiff first suffered febrile illness benefit hindsight recognised first symptom q fever mentioned plaintiff given different account different occasion large number medical report tendered objection taken admission evidence document extent history recorded might treated containing evidence fact occasion honour admitted relevant passage evidence history given truth plaintiff said black 78 79 plaintiff gave evidence black 27 challenged night 22 april 1998 went dinner club work next day experienced symptom attributed coming flu feeling hot cold shivering sense malaise 54 disputed finishing employment respondent plaintiff employed period six week commencing 5 june 1998 course employment started feel unwell prompting said resign health seems generally declined thereafter admitted hospital january 1999 55 appellant submitted however plaintiff ill 22 april 1998 said ought found febrile illness first noticed date regarded first manifestation q fever 56 plaintiff suffered pneumonia hospital account six day august 1997 although hospital record relating admission evidence exhibit c medical practitioner suggested illness connected q fever appellant suggested various illness orange 19 night sweat fever august september 1996 pain abdomen october 1996 generally unwell lethargic january 1998 experiencing trembling night sweat late january early february 1998 ill day 1 employment respondent 23 march 1998 plaintiff either denied matter said could remember black 57 65 98 66 evidence support submission various history given said given plaintiff suggested evidence respondent 57 short evidence established plaintiff experienced symptom febrile illness 22 23 april 1998 apart pneumonia august 1997 evidence suffering earlier presently relevant febrile illness one considers fact conjunction incubation period discussed 19 likely plaintiff inhaled organism premise either working dusty environment 23 march 1998 inhaling aerosol 16 april 1998 evidence one cannot link onset symptom 22 april 1998 paddy pinch incident occurring nine week earlier much le plaintiff inhaled organism whilst living towri even earlier 58 professor broughton took history febrile illness commenced 24 april 1998 suggestion difference date significant 59 plaintiff described boning operation way contest spoke boning room employee cutting meat later cleaning clothing boot hose showering blood stuff clothing boot bit meat stuff collected drain near employee hosed black 24 25 60 dr macleod compared likelihood inhaling organism working premise inhaling paddy pinch incident said risk associated working abattoir would high since organism shed much slaughter cutting carcass normal animal husbandry blue 18 later asked comparative chance plaintiff inhaled organism dust aerosol said likely plaintiff would acquired organism atmosphere boning room exposed assuming infected carcass treated organism rich aerosol created condition blue 31 professor broughton speaking possibility organism might remain dust long time said blue 26 however boning packing activity use freezer would unwise individual congenital heart lesion prosthetic valve enter premise beef processed risk acquiring q fever cut carcass meat contaminated coxiella burnetii organism remains viable frozen procedure boning slicing packing cartage hosing work bench floor wall create aerosol dust carry infection infection commonly occurs inhalation material see also blue 80 61 professor lloyd said discussing whether paddy pinch incident regarded causative plaintiff q fever blue 185 assessment abattoir likely source remains stated based balance probability exposure asingleanimal unknown infection status paddy pinch incident significantly le likely represent source compared abattoir environment theaccumulatedinfectious material recently slaughtered animal boning room contaminated dust putatively containing dried sporulated organism dating previous use abattoir may transmitted emphasis original 62 evidence pointed febrile illness commencing 22 april 1998 plaintiff worked dusty environment premise 23 march 1998 case would relatively straightforward complication arises circumstance q fever might resulted either plaintiff inhaling dust containing organism inhaling aerosol containing organism plaintiff illness might result former use premise abattoir present use premise boning recently slaughtered cattle question arises whether admitted term contract made 1992 extend requiring appellant march april 1998 take measure mentioned premise used abattoir year 1998 appellant proposed use use boning carcase recently slaughtered cattle court answer question must given context lack finding fact trial 63 assuming contract formed 1992 contained term pleaded requiring appellant take measure mentioned respect health safety people mentioned generally guard risk possibly contracting q fever assuming term related use premise use premise abattoir consider court properly find evidence absence finding trial judge breach term resulted plaintiff illness whilst evidence summarised capable showing breach premise used abattoir time plaintiff worked cannot said stage breach resulted plaintiff contracting q fever might contracted fever inhaling dust containing organism inhaling aerosol containing organism 64 whilst medical evidence capable showing person using premise abattoir ought taken measure question evidence address question measure ought taken premise used used boning cattle doubt reason medical practitioner asked consider question 65 record two matter first appellant changed solicitor counsel since trial secondly appellant submitted certain medical report wrongly rejected purpose judgment assumed error connection treated report evidence 66 propose following order 1 appeal allowed 2 judgment order made respect cross claim set aside 3 matter remitted common law division new trial respect cross claim 4 respondent pay cost appellant appeal certificate thesuitors fund act1951

Pamela Marie Hart and the Secretary, Department of Social Security [1997] AATA 278 (8 August 1997).txt

pamela marie hart secretary department social security 1997 aata 278 8 august 1997 administrative appeal tribunalpamela marie hart v secretary department social securityno w96 206aat 12099number page 6social securitycourtadministrative appeal tribunalgeneral administrative divisiont e barnett deputy president catchwordssocial security child disability support applicant four child diagnosed attention deficit disorder applicant appealing cancellation child disability support one son whether applicant husband providing substantially care attention due son disability matter relevant care attention circumstance family life issue caring hearingperth 16 july 1997 hearing 8 august 1997 decision 8 8 1997counsel applicant m c belchersolicitor applicant welfare right advocacy servicecounsel respondent mr jonesorderthe decision social security appeal tribunal review set aside following decision substituted decision delegate secretary dated 21 march 1996 cancelled applicant entitlement child disability allowance respect daniel set aside b applicant continues entitled child disability support respect daniel entitled since date decision delegate review decisiont e barnett1 applicant matter applies review decision cancelled entitlement child disability support determination made 21 march 1996 affirmed authorised review officer aro 8 may 1996 affirmed social security appeal tribunal 29 may 1996 2 applicant represented m c belcher sussex street welfare association respondent represented mr jones departmental advocate addition material provided accordance requirement 37 ofadministrative appeal tribunalact 1975 following document admitted evidence a1a report dr slattery dated 22 august 1996 a1b report dr slattery dated 17 october 1996 a1c report dr slattery dated 23 april 1997 a2 letter dr nash dr slattery dated 24 april 1997 a3 warwick senior high school report a4 photograph daniel hart 13 year r1 report dr street dated 2 december 19963 applicant pamela hart husband frank blake hart gave evidence tribunal make following finding fact basically contention mr mr hart four child diagnosed suffering attention deficit disorder cameron 18 year age condition hyper form douglas aged 17 hypo daniel subject application aged 13 hyper nicholas twin brother hypo although tribunal hear detailed evidence condition cameron clear disability extreme form make subject violent aggressive behaviour including breaking door window butting head brick wall nicholas daniel born prematurely consequence suffered certain health problem case daniel prone lung infection required 3 4 full blood transfusion 4 21 january 1994 applicant applied child disability allowance respect add disability douglas daniel nicholas initially granted subsequently lost allowance respect douglas 21 march 1996 entitlement regard daniel cancelled continues receive child disability support allowance respect daniel twin brother nicholas 5 although relevant evidence restricted much possible matter relevant care attention daniel inevitable circumstance whole family life needed discussed behaviour daniel brother also described evidence 6 agreed daniel still suffers also agreed mr mr hart obliged provide care attention daniel would child disability issue whether providingsubstantiallymore care attention whether required daniel disability provided reason 7 evidence primary schooling daniel intelligent boy able obtain satisfactory mark b behaviour major problem however prior diagnosis 27 march 1991 daniel beginning disruptive school extent frequently required eat lunch front principal office disruptive behaviour diagnosed put medication ritalin teacher described improvement behaviour quite remarkable one problem facing daniel parent remained full medication three time per day assisted concentration helped control behaviour resulted good school mark also suppressed appetite made difficult gain sufficient sleep possibly consequence daniel rate physical growth well normal medical advice hart tried maintain balance reducing medication afternoon enabled feel hungry enough eat evening meal meant mental attention dropped became distracted slow organising homework tribunal find even primary school required considerable effort parent help organise carry comparatively modest amount homework given primary school student largely basis good primary school result doctor comment required one two hour week extra help school work outside school hour respondent decided cancel child disability allowance 21 march 1996 child disability allowance continued respect nicholas seems le intelligent daniel performing satisfactorily school 8 evidence mr hart however soon daniel went high school january 1997 given homework 4 5 separate teacher minimum 2 hour homework set per night class take daniel 4 hour hart also become extremely concerned daniel following normal pattern physical growth shown fact twin brother 8 inch taller much heavier daniel small 13 year old becoming self conscious emotionally disturbed remained small twin brother classmate continue outgrow 9 order try encourage appetite hart stopped giving daniel afternoon medication unless substantial amount homework also stopped medication weekend enabled improve appetite made performance homework duty far difficult involves parent detailed supervision assistance period 4 hour night mr hart often type assignment written handwriting clumsy 10 addition direct assistance organising supervising homework hart involved general counselling guidance becoming increasingly depressed small size fact feel take medication refers smart drug order perform intellectual task even simple matter like preparing go bed performing toilet operation daniel requires constant supervision attention least hour night go bed 11 tribunal aware problem care supervision daniel greatly complicated fact situation extreme sibling rivalry twin nicholas two hate share common friend activity elder brother cameron continues violent disruptive presence house complicated fact mr hart suffers anxiety condition related serious motor vehicle accident mean take least extra half hour drive daniel school probably overcares daniel anxious may harm property unreasonable concern however ample evidence causing deliberate careless damage 12 tribunal find mr hart honest witness though anxiety tends make see thing worse light might appear calmer person subjected extreme pressure family situation legislation13 legislation relevant application thesocial security act 1991 theact section 952of theactprovides disabled child952 subject tosection 953 young person disabled child young person physical intellectual psychiatric disability b disability young person need care attention another person daily basis ii care attention needed young person substantially needed young person age physical intellectual psychiatric disability c young person likely need care attention permanently extended period section 954of theactprovides qualification child disability allowance954 1 person qualified child disability allowance young person young person cda child person b young person receives care attention daily basis person member couple person person partner ii person member couple person private home residence person young person findings14 evidence material tribunal satisfied take approximately one hour supervision attention get daniel bed morning washed dressed fed school short period care midday given medication mr hart driving school unsafe let ride bicycle street take approximately one hour day preparation afternoon tea commencement homework supervision school take half hour continued supervision 4 hour ensure homework completed satisfactorily followed period preparing bed amount substantially care supervision would required boy age disability sense true say looking daniel school almost full time job mr hart unpredictability mean feel unable leave alone 15 next question however whether extra care attention daniel really needed whether mr hart anxiety condition providing care attention needed tribunal find caring factor objectively considered daniel require lot extra care attention taking full quota medication regular basis 16 suppression appetite well known side effect medication taking serious growth retardation problem necessary take medication encourage eat medical advice hart therefore decided reduce daniel medication full knowledge aggravate behaviour cause give far care attention medication required disability extra care attention bring upon taking medication fact caused disability 17 although specialist attending daniel dr slattery available give evidence tribunal benefit three report evidence dr slattery well briefed sort behaviour problem daniel manifest home medication report dated 22 august 1996 said medicated daniel performing satisfactorily school home substantial behaviour problem tribunal find however dr slattery also aware medication behavioural problem manifesting information conveyed communication parent dr slattery phrase good behaviour without cost parent term care attention dr slattery indicating without substantial care attention giving performance school behaviour school home would good way may easier obtain favourable decision allowed disruptive behaviour manifest 18 tribunal find daniel requires substantial extra care attention order lead productive life required disability mr mr hart fact providing substantial extra care attention required daniel permanent extended period disability 19 one reason cancelling child disability support allowance decision maker referring situation existed daniel final year primary school coping well far le homework lesser amount extra care attention parent sufficient achieve result subsequent determination however daniel went high school different situation requiring parent put great deal extra effort 20 tribunal supported view objective report dr slattery experienced paediatrician asked reconsider degree extra care support required april 1997 daniel commenced high school reissued previous report altering word significant extra care attention read substantial extra care attention 21 material evidence tribunal satisfied daniel disability permanent long term condition requires substantial extra care attention disability would required child age disability decision22 decision social security appeal tribunal review set aside following decision substituted decision delegate secretary dated 21 march 1996 cancelled applicant entitlement child disability allowance respect daniel set aside b applicant continues entitled child disability support respect daniel entitled since date decision delegate review

Katerson Pty Ltd v Thambipillay [2016] NSWSC 1226 (26 August 2016).txt

katerson pty ltd v thambipillay 2016 nswsc 1226 26 august 2016 last updated 1 september 2016supreme courtnew south walescase name katerson pty ltd v thambipillaymedium neutral citation 2016 nswsc 1226hearing date 26 august 2016date order 26 august 2016decision date 26 august 2016jurisdiction equitybefore mcdougall jdecision extend restraint time sufficient permit party mediate otherwise catchword procedure interlocutory injunction restraint trade whether restraint defendant extended time party agreed mediation whether injunction extended scope question principlecategory procedural rulingsparties katerson pty ltd first plaintiff karander pty ltd second plaintiff votiva pty ltd third plaintiff property investor institute australia piia pty ltd fourth defendant niro thambipillay also known nirojan thambipillay first defendant investment prime pty ltd second defendant representation counsel r francois plaintiff k edward defendant solicitor brown wright stein lawyer plaintiff sydun co solicitor defendant file number 2016 221404judgment ex tempore revised 26 august 2016 honour first defendant employee plaintiff period time plaintiff say bound restraint applicable 12 month following termination employment restraint includes following somewhat poorly drafted provision 5 covenantor covenantor retained company position period twelve 12 month following termination covenantor retainer b purpose specified sub paragraph ii solicit attempt solict business custom company client supplier covenantor dealing within period twelve month prior termination covenator retainer person whose business custom company time termination covenantor retainer cultivating conducting business competition company business ii assisting person carry business competition company business company plaintiff covenantor first defendant second defendant company party restraint matter last court order made enjoining defendant interlocutory basis without admission term company client generally respect specific supplier plaintiff order expire today plaintiff seek extension plaintiff seek also injunction relation supplier extended encompass company known qed risk service pty ltd plaintiff seek extension injunction extended qed order defendant oppose extension qed oppose also extension injunction order common ground mediation mr john west queen counsel available date finish 14 october 2016 party get organised mediation mr west within range available date circumstance leaving aside question qed appropriate course principle extend injunction including 17 october 2016 list matter registrar date party able resolve difference relist matter made whatever order appropriate cannot interlocutory dispute registrar refer matter list judge 17 october return question qed face thing restraint respect supplier operates respect supplier first defendant dealing within period 12 month prior termination employment plaintiff rely following word person whose business custom company time termination first defendant retainer difficulty word quite apart syntactical grammatical obscurity give meaning would justify granting interlocutory restraint respect qed evidence qed provides compliance service including relation licensing requirement people engaged plaintiff first defendant wish finance credit industry service qed provides include apparently assistance obtaining appropriate licence assistance complying condition attached licence granted plaintiff evidence possible apply licence direct without going intermediary qed plaintiff evidence also company provide service similar provided qed thus matter balance convenience plaintiff submit extending restraint qed would pose real hardship defendant may may evidence inclined agree however remains antecedent problem finding legal justification word cl 5 restraint plaintiff seek general structure cl 5 b relatively clear covenantor first defendant restrained soliciting attempting solicit business custom plaintiff client restrained also soliciting attempting solicit business custom supplier plaintiff dealing within period 12 month prior termination employment follow mysterious word set plaintiff place particular reliance level generality question solicitation client supplier dealt expressly preceding word cl 5 b difficult understand would general extension non solicitation obligation client matter supplier first defendant dealing within relevant period doubt word question intended operation court strive give meaning every part party bargain even expressed language incomprehensible word question nonetheless issue whether satisfied level serious question tried word given accurately could given meaning plaintiff contend considerable difficulty plaintiff forced rely word evidence relation supplier first defendant dealing within relevant period said arise inferentially first defendant evidence never dealing qed course employment plaintiff difficult see legitimate interest plaintiff would infringed first defendant use qed help obtain appropriate licence comply provision licence m francois counsel plaintiff put confidentiality obligation respect plaintiff client perhaps person quite frankly understand could arise necessity serious question tried considered vacuum made clear time time decision binding authority strength case considered part mix factor include risk injury balance convenience generally present case taking account difficulty construction case plaintiff seek mount absence real evidence detriment restraint conclude appropriate injunction extended include qed follows extend existing order course upon plaintiff continuing usual undertaking damage including 17 october 2016 said list matter registrar date

Nudd v Minister for Immigration & Anor [2005] FMCA 1492 (3 October 2005).txt

nudd v minister immigration anor 2005 fmca 1492 3 october 2005 last updated 14 october 2005federal magistrate court australianudd v minister immigration anor 2005 fmca 1492migration judicial review migration review tribunal partner temporary class uk visa partner residence class b visa application hopeless particular jurisdictional error practice procedure first hearing date appearance applicant direction made preferable course dismiss non appearance evidence applicant departed country first hearing date rule 13 03a 13 10 federal magistrate court rule undesirability administrative decision vacating hearing date without notice notice motion necessary departure applicant migration regulation 1994federal magistrate court rule 2001 rule 13 03aapplicant anne nuddfirst respondent second respondent minister immigration multicultural indigenous affairsmigration review tribunalfile number mlg 772 2005judgment mcinnis fmhearing date 3 october 2005delivered melbournedelivered 3 october 2005representationapplicant appearancesolicitor respondent m e nancesolicitors respondent australian government solicitororders 1 application filed 29 june 2005 dismissed pursuant torule 13 10of thefederal magistrate court rule 2001 2 applicant shall pay first respondent cost fixed sum 3500 00 federal magistratescourt australia atmelbournemlg 772 2005anne nuddapplicantandminister immigration multicultural indigenous affairsfirst respondentandmigration review tribunalsecond respondentreasons judgment revised transcript 1 application applicant seek set aside decision migration review tribunal handed decision 30 may 2005 refusing applicant application partner temporary class uk visa partner residence class b visa making decision mrt understand concluded applicant entitled visa basis able satisfy subclass 820 211 2 themigration regulation 1994because spouse australian citizen 2 respondent filed affidavit emily jane nance sworn 1 september 2005 present purpose accept satisfactorily set relevant chronology event otherwise attache decision mrt application court filed 29 june 2005 face application hopelessly defective simply seek order decision migration review tribunal set aside ground provided support application 3 address oakmont street rothwell given applicant address state queensland matter first listed hearing 17 august 2005 unfortunately date matter came registrar court order made direction hearing adjourned 14 september 2005 order made respondent file serve notice motion seeking summary dismissal affidavit support 31 august 2005 4 appears court file matter came court 17 august 2005 fact appearance applicant circumstance strong view preferred approach applicant appear first hearing registrar federal magistrate exercise power court undoubtedly pursuant torule 13 03aof thefederal magistrate court rule 2001and dismiss application circumstance party making application attend 5 unfortunately present case instead simply dismissing application non appearance registrar presumably request respondent permitted respondent time file serve notice motion seeking summary dismissal indeed noted court file would appear sealed copy order made court 17 august 2005 forwarded applicant 6 nevertheless able find matter fact result appropriate conduct respondent solicitor letter dated 22 august 2005 addressed address service applicant application forwarded sealed copy order made court 17 august 2005 note correspondence direct shall remain court file following paragraph appears 2 note order provide motion summary dismissal filed first respondent mean first respondent seek application dismissed early stage basis application review reasonable prospect success 3 wish withdraw application cost would minimal ask contact writer soon possible discus 7 point therefore satisfied applicant notice order made registrar 17 august 2005 given notice intention respondent seek way motion summary dismissal application evident affidavit emily jane nance information obtained department 30 august 2005 applicant departed australia apparently 16 august 2005 8 31 august 2005 respondent filed notice motion accordance order made registrar 17 august 2005 clearly time notice motion filed respondent aware applicant indeed departed australia extent process became somewhat unnecessary nevertheless satisfied least notice motion properly court day 9 concern arose chronology event order made 17 august 2005 provided direction hearing adjourned 14 september 2005 understand result administrative arrangement date vacated though examination file appear administrative arrangement subject adequate notice provided court applicant 10 view type administrative arrangement inappropriate whether case kind arguable case indeed merit application remove court responsibility providing adequate proper notice applicant record fortunately case appropriately solicitor respondent letter dated 2 september 2005 fact provided notice applicant last known address return date notice motion 11 perhaps unfortunately vacation earlier date seem subject notice nevertheless satisfied basis second item correspondence dated 2 september 2005 applicant instance given appropriate notice matter would court likely consequence non appearance applicant would application summarily dismissed notice address service absence notice change address advice applicant departed australia still good notice 12 process described indicates inappropriateness system administrative adjournment failure dismiss first opportunity application appearance applicant case application dismissed 17 august 2005 pursuant torule 13 03a c thefederal magistrate court rule great deal cost expense would saved given chronology event aware namely departure applicant 16 august 2005 matter would concluded 17 august 2005 13 circumstance however relying upon affidavit material provided respondent specifically affidavit emily jane nance prepared make order based upon court power notice motion filed respondent application dismissed 14 prepared accept regard total inadequacy material provided applicant knowing applicant departed australia find application abuse process frivolous vexatious indeed circumstance face application discloses reasonable cause action relation claim reason court prepared dismiss application certify preceding fourteen 14 paragraph true copy reason judgment mcinnis fmassociate date 3 october 2005

Kirika v Separovic [1999] WADC 151 (30 September 1999).txt

kirika v separovic 1999 wadc 151 30 september 1999 last updated 3 january 2007jurisdiction district court western australiain civillocation perthcitation kirika v separovic 1999 wadc 151coram kennedy dcjheard 30 september 1999delivered delivered extemporaneously 30 september 1999 typed tape edited trial judge file civ 1184 1997between paul eric kirikaplaintiffandtony separovicrespondentcatchwords practice procedure application amend turn fact legislation nilresult application allowedrepresentation counsel plaintiff b l nugawelarespondent mr j r criddlesolicitors plaintiff angelo partnersrespondent j r criddlecase referred judgment state queensland v j l holding pty ltd 1997 hca 1 1996 97 189 clr 146case also cited nil1 kennedy dcj matter chamber summons plaintiff various order including plaintiff seek leave bring application time bringing service abridged leave granted plaintiff amend substituted statement claim term minute proposed amended substitute statement claim herein 2 matter sorry history first statement claim filed 9 april 1997 basically alleged negligence practitioner mainly basis loss common law right action defendant eventually made certain application matter came judge yeats 30 january 1998 made order paragraph 11 1 3 4 6 struck granted leave amend 3 availed small section file quite extraordinary 9 july 1998 first set paper judge filed include struck passage impossible say file presume somehow pre trial conference drawn attention solicitor plaintiff subsequently obtained leave amend amended common law action deleted became action relation worker compensation 4 six week trial plaintiff really want think mr nugawela described 180 turn think 360 turn want go back first place however mr nugawela say prove successful prove arguable merit reason read authority referred defence state queensland v j l holding pty ltd 1997 hca 1 1996 97 189 clr 146 5 154 honour say talking management principle nothing case suggests principle might employed except perhaps extreme circumstance shut party litigating issue fairly arguable case management end important useful aid ensuring prompt efficient disposal litigation ought always borne mind even changing time ultimate aim court attainment justice principle case management allowed supplant aim 6 matter course concern mentioned last occasion layperson seeking take action legal practitioner must always vigilant make sure justice done seen done people left impression legal profession seeking protect occasion lead many lawyer might well argue injustice one matter simply put benefit regarded profession 7 circumstance propose allow amendment paragraph 18 properly amended necessary plead state plaintiff health stabilised state health said defendant would discovered done thing alleged done propose allow amendment extra paragraph added cover matter referred judge yeats cover talked 8 relation paragraph 6 propose force plaintiff strike 6 b understand mr criddle saying fact agreeing 6 allegation plaintiff making plaintiff saying properly advised either way either received ongoing worker compensation substantial award damage make received given state health neither sense worth would interfere social security might entitled without giving ability look alternative put alternative basis trial judge matter anyone putting alternative evidence circumstance 9 think record opposition defence matter absolutely strenuous without sympathy defendant personally relation matter far legal prejudice concerned nothing put would indicate would make way difficult defendant defend matter prejudice nature firstly cost secondly prejudice relation strain putting defendant accept say without sympathy circumstance cannot allowed prevent plaintiff litigating matter 10 order plaintiff may amend statement claim put sufficient amendment paragraph 18 needed 11 far matter cost concerned hear party relation

Water Legislation Amendment Act 2018 (No 29 of 2018).txt

water legislation amendment act 2018 29 2018 table provisionslong titlepart 1 preliminary matters1short title2commencementpart 2 amendment water act3act amended4section 4 amended interpretation 5section 7amended application act mining petroleum activity 6section 8a inserted7section 15replaced8section 24amended establishment constitution review panel 9section 27replaced10section 31replaced11section 33replaced12section 37replaced13section 39amended access confidential information 14section 40replaced15section 41amended grant construction permit 16section 42replaced17section 44replaced18section 46replaced19section 48replaced20section 50replaced21section 53replaced22part 6 division 3 heading amended23sections 55and56replaced24section 57amended grant bore construction permit 25section 58replaced26section 59replaced27section 61replaced28section 66 replaced29section 68 replaced30section 69 repealed prohibition waste 31section 71 replaced32section 79 amended power construct work c 33section 81 amended use bore cost borne territory 34sections 88 89 replaced35section 96 replaced36sections 98 102 replaced37part 10 division 5 heading section 104a inserted38sections 105b 105c inserted39part 12 heading inserted40section 109 heading replaced41part 13 heading inserted42section 110 heading replaced43part 14 heading inserted44part 15 inserted45act amendedpart 3 amendment water regulations46regulations amended47regulation 2a amended definition 48regulation 4amended review action decision controller 49regulation 6amended permit construct alter work 50regulation 7amended bore construction permit 51regulation 18replacedpart 4 consequential amendmentsdivision 1 mineral title act52act amended53section 31amended authorised activity el 54section 81 amended right use water title area 55section 82 amended right use water title area el emel division 2 mining management act56act amended57section 36amended approval mining management plan grant authorisation 58section 41amended review amendment mining management plan division 3 petroleum act59act amended60section 5amended interpretation 61section 29amended right conferred exploration permit division 4 fine penalty recovery regulations62regulations amended63schedule 1 amendedpart 5 repeal act64repeal actschedule

Boensch v Pascoe (No 2) [2008] FCA 1127 (1 August 2008).txt

boensch v pascoe 2 2008 fca 1127 1 august 2008 last updated 5 august 2008federal court australiaboensch v pascoe 2 2008 fca 1127boensch v pascoe 2007 fca 1977boensch v pascoe 2008 fca 412re kwiatek kwiatek ex parte big j ltd v pattison 1989 21 fcr 374fuelxpress ltd v l ericsson pty ltd 1987 75 alr 284mowie v fishery pty ltd switzerland insurance australia limited 1996 fca 608franz boensch v scott darren pascoensd 2403 2004buchanan j1 august 2008sydneyin federal court australianew south wale district registrynsd 2403 2004between franz boenschapplicantand scott darren pascoerespondentjudge buchanan jdate order 1 august 2008where made sydneythe court order 1 order made registrar hannigan 8 july 2008 set aside lieu thereof ordered karen mclean cost complying subpoena returnable court 16 may 2007 fixed sum 3 912 00 2 applicant cost notice motion paid m mclean cost taxed agreed note settlement entry order dealt order 36 federal court rule federal court australianew south wale district registrynsd 2403 2004between franz boenschapplicantand scott darren pascoerespondentjudge buchanan jdate 1 august 2008place sydneyreasons judgmentbuchanan j 1 13 december 2007 dismissed application mr boensch seeking removal mr pascoe trustee boensch v pascoe 2007 fca 1977 later judgment 27 march 2008 made order cost proceeding boensch v pascoe 2008 fca 412 2 course proceeding mr boensch solicitor acting issued two subpoena solicitor acting petitioning creditor obtained sequestration order mr boensch solicitor m karen mclean m mclean subsequently commenced act mr pascoe administration mr boensch bankrupt estate second subpoena issued 2 may 2007 issue subpoena generated correspondence m mclean solicitor acting mr boensch m mclean put solicitor notice would seek cost complying subpoena reference professional fee normally charged bankruptcy matter offer meet cost lesser amount rejected m mclean mr wright partner solicitor acting mr boensch swore filed affidavit relation bill cost 1 june 2007 served m mclean upon solicitor acting mr boensch solicitor objected bill cost bill cost filed court 4 september 2007 unamended form sought cost professional fee including gst 4 675 disbursement including counsel fee 550 616 28 total including gst 5 291 28 3 8 july 2008 registrar court ordered cost fixed accordance 27 r 11 thefederal court rulesin amount 4 560 4 mr boensch represents filed notice motion seeking review court unders 35a 5 thefederal court australia act 1976 cth fca act order made registrar also seek execution order stayed notice motion supported affidavit apart recounting history mr boensch simply advanced belief cost assessed fixed registrar excessive 5 section 35a 5 6 fca act provide follows 5 party proceeding registrar exercised power court subsection 1 may within time prescribed rule court within time allowed accordance rule court apply court review exercise power 6 court may application subsection 5 motion review exercise power registrar pursuant section may make order order think fit respect matter respect power exercised 6 procedure envisaged hearingde novo see example kwiatek kwiatek ex parte big j ltd v pattison 1989 21 fcr 374 7 evidence registrar affidavit sworn m mclean mr wright annexed correspondence well bill cost notice objection set basis objection specified item bill cost evidence affidavit sworn mr boensch support notice motion mr boensch evidence provide neither m mclean absence evidence material identified provides foundation review mr boensch sought material available ass cost claimed 8 order 27 r 11 relation cost expense compliance subpoena provides 1 court may order issuing party pay amount reasonable loss expense incurred complying subpoena 2 order made subrule 1 court must fix amount direct fixed accordance court usual procedure relation cost 3 amount fixed rule separate addition conduct money paid addressee b witness expense payable addressee 9 order 27 r 11 1 similar form earlier 27 r 4a 1 considered two case referred hereunder infuelxpress ltd v l ericsson pty ltd 1987 75 alr 284 fuelxpress lockhart j said 286 intent r 4a compensate person subpoenaed produce document expense loss reasonably incurred complying subpoena case successful party litigation seeking recovery cost distinction solicitor client cost one hand party party cost observed taxing officer case third party seeking compensation actually cost expense loss complying subpoena circumstance think appropriate case legal cost expense incurred dmr compliance subpoena including cost motion preparation bill taxation attending taxation solicitor client basis 10fuelxpresswas applied tamberlin j inmowie v fishery pty ltd switzerland insurance australia limited 1996 fca 608 11 m mclean although solicitor petitioning creditor later trustee third party proceeding far subpoena issued concerned therefore entitled cost compliance subpoena assessed solicitor client basis fact acted view disqualify respect particularly light fact solicitor acting mr boensch put clearly notice would apply charge professional skill way lay third party could hand possibly relevant document solicitor act advice thereafter produced basis professional scrutiny application judgment whether particular document need need produced would allowable lay third party view therefore allowed m mclean similarly view entitled seek receive advice counsel respect compliance well claim cost general correspondence subpoena normal aspect compliance lay third party would entitled 12 approaching matter way judgment must made specific matter claimed itemised bill cost think correspondence concerned negotiating position foreshadowed claim cost compliance regarded falling within cost allowed six item appear face regard correspondence identified fall category 2 28 04 07 email scott pascoe email michael costin undertake preliminary review file ascertain possible time comply subpoena kmc 0 4 hr 350 140 00 5 11 05 07 fax wright pavuk relation cost complying subpoena email draft copy correspondence counsel consideration comment kmc 0 2 hr 350 70 00 6 11 05 07 peruse email counsel amend finalise facsimile wright pavuk send facsimile wright pavuk email michael costin email scott pascoe kmc 0 2 hr 350 70 007 15 05 07 email counsel relation lack ofresponse wright pavuk notifying counsel intention seek adjournment proceeding kmc 0 1 hr 350 35 00 13 17 05 07 email counsel kmc 0 1 hr 350 35 0015 17 05 07 peruse email counsel send replyin relation correspondence wright pavuk peruse copy judgment provided counsel relation issue cost kmc 0 2 hr 350 70 0013 also think allowance made m mclean professional time communication client discussion document obliged reason subpoena produce accordingly would exclude following matter identified bill cost 14 17 05 07 letter scott pascoe michael costin email scott pascoe email michael costin 175 00 16 18 05 07 email scott pacoe michael costin relation compliance subpoena seeking meeting review document produced kmc 0 4 hr 350 140 00 17 18 05 07 peruse reply email scott pascoe kmc 0 4 hr 350 35 00 18 21 05 07 peruse reply email michael costin kmc 0 1 hr 350 35 00 19 22 05 07 telephone attendance simspartners scott available telephone attendance michael costin relation meeting go document produced court document procedure regarding subpoena kmc 0 6 hr 350 210 00 22 22 05 07 telephone attendance michael costin relation advice document meeting review document produced subpoena email michael costin relation meeting email scott pascoe relation meeting kmc 0 3 hr 350 105 00 1 120 00 14 disbursement would allow matter appear relate professional fee would disallow 4 11 05 07 facsimile wright pavuk 1 page 0 50 per page 1 10 5 17 05 07 facsimile wright pavuk 1 page 0 50 per page 0 55 6 18 05 07 facsimile wright pavuk 1 page 0 50 per page 0 55 8 22 05 07 mobile telephone call cost 10 minute 0 50 per minute 5 509 22 05 07 mobile telephone call cost 10 minutesat 0 50 per minute 2 20 9 90 15 bulk disbursement made counsel fee fee supported extent view following item relation m mclean professional fee indicates fee question related issue compliance 31 23 05 07 email counsel requesting account purpose bill cost kmc 0 1 hr 350 35 00 16 however clear item 5 6 m mclean professional fee set fee counsel generated consideration advice negotiating position m mclean proposed take respect professional cost complying subpoena already indicated would allow cost neither principle allow counsel fee relation matter one difficulty assessing matter counsel fee itemised mr mile appeared m mclean position assist respect issue shall return shortly 17 mr boensch expressed concern perhaps amount counsel fee included fee matter unrelated question compliance subpoena referred correspondence m mclean earlier solicitor m mclean referred need consider question client legal privilege arising fact acted mr costin mr pascoe mr boensch conjectured fee matter also dispute trustee mr pascoe might included evidentiary basis suggestion give weight 18 item bill cost referring contribution counsel apart reference counsel fee 550 item 5 6 7 13 15 already set following 11 16 05 07 meeting counsel discus matter kmc 0 5 hr 350 175 0020 22 05 07 telephone attendance scott pascoe toreschedule meeting telephone attendance counsel chamber relation meeting counsel kmc 0 1 hr 350 35 0028 23 05 07 meeting counsel scott pascoe andmichael costin review document produced subpoena discus issue relation document kmc 1 hr 350 350 0019 best entry appears 30 minute meeting counsel 16 may 2007 discus matter relation compliance subpoena short discussion 20 may 2007 arrange meeting counsel one hour meeting 23 may 2007 conduct final review document one question exercised mind whether allow amount counsel fee 23 may 2007 light conclusion allow m mclean professional fee related simply discussion client 20 although m mclean correspondence warns may necessary obtain advice question client legal privilege nothing correspondence suggest issue actually arose claim privilege made however final review document occurred meeting counsel 23 may 2007 together m mclean client seems legitimate cost claim 21 seems therefore l1 2 hour counsel time allowed without guide rate charged counsel propose allow 75 counsel fee reducing fee 550 412 50 purpose assessing m mclean cost compliance subpoena 22 result consideration matter review sought mr boensch would reduce amount claimed professional fee gst 4 250 3 130 amount gst 313 must added bringing total 3 443 would reduce amount claimed disbursement 616 28 468 88 round 469 23 total amount would allow therefore 3 912 00 24 mr boensch sought cost notice motion self represented clear incurred professional cost might recovered however possibility succeeded reducing amount ordered registrar make order cost cost taxed agreed 25 order make therefore 1 order made registrar hannigan 8 july 2008 set aside lieu thereof ordered karen mclean cost complying subpoena returnable court 16 may 2007 fixed sum 3 912 00 2 applicant cost notice motion paid m mclean cost taxed agreed certify preceding twenty five 25 numbered paragraph true copy reason judgment herein honourable justice buchanan associate dated 1 august 2008solicitor applicant applicant appeared personcounsel respondent mr b milessolicitor applicant mclean associatesdate hearing 1 august 2008date judgment 1 august 2008

PTDA v Commissioner for State Revenue [2017] VSCA 266 (22 September 2017).txt

ptda v commissioner state revenue 2017 vsca 266 22 september 2017 last updated 22 september 2017supreme court victoriacourt appeal apci 2016 0135public transport development authorityfirst applicantandcivic nexus pty ltdsecond applicantvcommissioner state revenuerespondent judge warren cj maxwell p kaye jawhere held melbournedate hearing 28 april 2017date judgment 22 september 2017medium neutral citation 2017 vsca 266judgment appealed 2016 vcat 1457 gardej valuation land land tax site value highest best use public infrastructure railway station transport interchange planning restriction capacity land yield monetary return potentiality land state victoria sole hypothetical purchaser whether comparable sale method applicable whether tribunal acted expert whether valuation decision reasonably open error law appeal dismissed valuation land act 1960s 5a appearance counselsolicitorsfor applicantsmr j delany qcwith dr b gauntlettminter ellisonfor respondentmr c wren qcwith mr muntsolicitor commissioner state revenuewarren cjmaxwell pkaye ja summary1 proceeding concern site value certain land land form part southern cross station spencer street melbourne land owned first applicant ptda leased second applicant civic nexus 2 respondent commissioner assessed land land tax year 2010 2013 inclusive assessment based valuation land valuer general applicant objected assessment request dispute referred victorian civil administrative tribunal tribunal 3 land tax assessed basis taxable value land question taxable value land amount equal site value 1 term site value theland tax act 2005has meaning thevaluation land act 1960 act 2 4 accordingly issue tribunal correct determination value land accordance withs 5aof act common ground tribunal purpose ofs 5a 3 act highest best use land might reasonably expected put existing use intermodal transport interchange facility 5 considering expert evidence relied applicant commissioner respectively tribunal constituted president garde j concluded site value relevant tax year substantially commissioner assessment based honour however accept applicant contention true site value year nil accordingly applicant seek leave appeal honour decision 6 reason follow would grant leave appeal dismiss appeal counsel applicant properly conceded conclusion site value conclusion fact follows appellate intervention justified shown finding reasonably open evidence tribunal 3 moreover counsel applicant also conceded valuation tribunal inform way chooses including relying expert opinion evidence bound adopt particular expert opinion 7 view reasonably open tribunal reach conclusion explained tribunal entitled reject applicant contention station facility loss making operation land value honour correctly applied principle engaged particular potentiality piece land give value one potential purchaser moreover honour reason disclose clear path reasoning identify body expert evidence decision based

United Voice [2013] FWCD 3799 (23 July 2013).txt

united voice 2013 fwcd 3799 23 july 2013 2013 fwcd 3799fair work commissiondecisionfair work registered organisation act 2009s 159 alteration rule organisationunited voice r2013 300 chris enrightmelbourne 23 july 2013alteration rule organisation 1 11 june 2013 united voice lodged fair work commission notice declaration setting particular alteration rule united voice 2 particular set alteration rule 75h sub rule w5 western australian branch rule united voice 3 information contained notice satisfied alteration made accordance rule organisation 4 opinion alteration comply contrary thefair work registered organisation act 2009 thefair work act 2009 modern award enterprise agreement otherwise contrary law certify accordingly undersubsection 159 1 thefair work registered organisation act 2009 delegate general managerfair work commissionprinted authority commonwealth government printer price code pr537839

V97_06112 [1997] RRTA 2943 (8 August 1997).txt

v97 06112 1997 rrta 2943 8 august 1997 refugee review tribunaldecision reason decisionrrt reference v97 06112country reference philippinestribunal member e cookedate decision 8 august 1997place melbournedecision 1 tribunal satisfied applicant refugee affirms decision grant protection visa catchword philippine non convention groundsdecision reviewthis review decision made delegate minister immigration multicultural affair 19 march 1997 refuse application protection visa lodged 28 february 1997 application refused ground applicant refugee article 1 section convention relating status refugee 1951 convention amended article 1 paragraph 2 protocol relating status refugee 1967 protocol jurisdictionthe tribunal jurisdiction review decision sub 414 1 migration act requires tribunal review rrt reviewable decision valid application made 412 sub 411 1 defines para c rrt reviewable decision include decision refuse grant protection visa 412 prescribes criterion valid applicationbackgroundthe applicant single woman aged twenty philippine left philippine late 1996 arrived australia following day visitor visa applied refugee status 28 february 1997 application rejected 19 march 1997 3 april 1997 sought review decision refugee review tribunal tribunal applicant attended hearing tribunal 6 august 1997 material tribunalin making decision tribunal considered following evidence given hearing material contained tribunal file department file submission made applicant adviser support applicationthe applicant claim evidencethe applicant claim left philippine two reason accompany sister give birth baby escape cousin drug addict threatening rest family threatens family people village applicant villager complained police action taken applicant belief cousin father died 18 year ago military family influence authority lawthe tribunal determine whether applicant refugee defined 1951 convention relating status refugee done geneva amended 1967 protocol relating status refugee done new york article 1a 2 provides refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return element definition refugee considered high court case ofchan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379

Industrial Relations Commission Decision 907_1995 [1995] AIRC 725; (1 May 1995).txt

industrial relation commission decision 907 1995 1995 airc 725 1 may 1995 industrial relation commission decision 907 1995 r0279 dec 907 95 print m1059 australian industrial relation commissionindustrial relation act 1988s 170ma certification agreement rundle pty limited textile clothing footwear union australia c 20817 1995 rundle pty ltd certified agreement 1994 clothing worker clothing industry commissioner cargill sydney 1 may 1995 condition employment certified agreement 170maindustrial relation act 1988 legislative requirement satisfied agreement certified decision application certification pursuant 170ma theindustrial relation act 1988 act agreement known rundle pty ltd certified agreement 1994 party agreement rundle pty limited textile clothing footwear union australia application heard sydney 12 april 1995 conclusion hearing indicated considered material commission heard representative party satisfied relevant requirement act rule met would therefore certify agreement agreement operates 12 april 1995 remain force 1 december 1996 appearance nossar textile clothing footwear union australia p amos chamber manufacture new south wale rundle pty limited hearing detail 1995 sydney april 12 end text end text

Pearce & Cole [2009] FamCA 88 (11 February 2009).txt

pearce cole 2009 famca 88 11 february 2009 last updated 19 february 2009family court australiapearce cole 2009 famca 88family law child child spends time interim order travel 100 km supervision best interest child adjournmentfamily law act 1975 cth applicant mr pearcerespondent m coleindependent child lawyer file number mlc13158of2007date delivered 11 february 2009place delivered melbourneplace heard melbournejudgment young jhearing date 11 february 2009representationcounsel applicant mr testartsolicitor applicant stella stuthridge associatescounsel respondent mr pannifexsolicitor respondent cahillscounsel independent child lawyer mr jacksonsolicitor independent child lawyer heinz partnersordersuntil order ordered paragraph 2 order made federal magistrate walter 19 november 2007 discharged child born december 2002 child live mother child spend time father follows sunday hour 9 00 4 00 p inclusive save order supended third sunday calendar month child shall remain mother time wholly supervised paternal grandmother changeover commencement conclusion father time child shall mcdonalds store f father permitted spend time child first sunday calander month bendigo election must travel reamin town locality every sunday spend time around bendigo child mother father remains restrained taking child w hotel bring child contact mr m pearce consuming alcohol 24 hour prior time child purpose changeover mother must punctually deliver child mcdonalds store f 9 00 collect 4 00 p respective sunday likewise father must punctual attendance changeover genuine medical reason child unable spend time sunday father mother must email ring father convey information full proper explanation later 6 00 p friday preceding sunday reason child genuinely ill unavailable sunday father spend time following sunday substituted make sunday travel family consultant mr prepare updated written report oral necessary issue arising order implementation matter best interest child confer mother father date time arranged child prior defended hearing mr confer child n pearce born august 1991 prepare report relationship father subject child matter interest concern court surrounding matter issue hearing hearing extant application listed mention thursday 2nd april 2009 9 00 cronin j party excused attendance court day subject discretion cronin j matter may listed telephone mention solicitor appropriate hearing defended application fixed date time cronin j hearing mid late april 2009 next available defended hearing date 4 5 day available extempore reason judgment transcribed placed upon court file made available party observation made mr court oath without cross examination transcribed day placed upon court file made available party order cost favour mr made attendance court day noted court required court period three 3 hour within 10 day father solicitor make file serve updated amended order sought within ten 10 day mother solicitor make file serve amended response father order updated mother father permitted file serve one primary affidavit updating fact issue filed served friday 20 march 2009 pursuant 62b 65da particular obligation order create particular consequence may follow person contravenes order detail assist party adjust comply order set document entitled parenting order obligation consequence help copy annexed ordersit certifiedpursuant torule 19 50of thefamily law rule 2004this matter reasonably required attendance counsel notedthat publication judgment pseudonympearce coleis approved pursuant tos 121 9 g thefamily law act 1975 cth family court australia melbournefile number mlc 13158 2007mr pearceapplicantandms colerespondentandindependent child lawyerreasons judgmentthe matter pearce cole defended list case mr testart counsel appears father mr pannifex counsel appears mother mr jackson counsel appears behalf appointed independent child lawyer mr heinz solicitor proceeding parent first issued magistrate court victoria bendigo 7 october 2005 thereafter proceeding heard determined federal magistrate court transferred family court child relationship daughter born december 2002 pursuant consent order made walter fm 19 november 2007 child life mother spends time father sunday 10 00 2 00 p extended 3 00 p order set required supervision changeover venue requires time spent bendigo otherwise restraining order party agreed read evaluated order matter significance made consent doubt made time frame interim order pending sure party intended speedy hearing ongoing matter dispute matter lay dormant within court would seem approximately year came registrar court late last year time matter listed hearing two three day duration reserve list week transpired five day matter listed monday 9 february concluded yesterday facilitated matter listed today counsel appearing matter indicated le five day hearing evidently estimate time given federal magistrate noted upon order matter mentioned registrar court december hearing estimate significantly downgraded clearly highly inaccurate fit list professional witness intended called give evidence matter cannot take matter next week next opportunity four day late july year made arrangement co ordinating judge endeavour matter listed interstate judge may available determined hereafter try facilitate earliest possible hearing matter father applicant order conveniently expressed second amended application final order dated 12 november 2008 document brief summary sought order equal shared parenting otherwise child live mother spend increasing substantial alternate weekend holiday time period otherwise injunctive restraining order sought today mr testart appearing father prepared updated set order orally advised court presented handwritten copy court father amend allow ten 10 day make file serve formal amended application mother position clear would sole parenting order would child live limited closely scrutinised time spent father immediate vicinity home town bendigo otherwise seek various restraining order protective order probably position record concern daughter respect increase time spent father much significant issue case supervision need supervision father time child pursuant existing order time supervised paternal grandmother court day deponent case life near father home town work spends considerable time w hotel approximately 20 kilometre position independent child lawyer generally supportive increase time spent father specific relaxation injunctive circumstance supervision position however fundamentally fact evidence case need ascertained prepared give absolute recommendation opinion court matter listed morning inquired evidence estimate time primary witness mother father counsel estimated time cross examination collectively approximately three 3 day lay witness grandmother paternal perhaps one supervisor contact centre significantly professional witness case mr family consultant recently completed updated report dated 5 january 2009 earlier prepared two detailed report evidence court required cross examination counsel indicated would lengthy dr j registered psychologist practising melbourne bendigo prepared report opinion court obtained extensive review father also involvement confidential psychological report prepared another child 13 year old female father earlier marriage report father certain recommendation made counsel indicated would occupy time read balanced summary recommendation page 9 report father m l registered psychologist practising bendigo also prepared report least somewhat shorter content father approximately 14 month past report actually prepared january early february 2008 read report recommendation summary paragraph 6 7 thereof dr k private practice clinical forensic psychologist certain speciality qualification experience known court contained within report prepared psychological assessment mother report dated 30 december 2008 father report dated 6 october 2006 advised required cross examination though trust solicitor immediately turn mind date report whether extent helpful court various timetable event elapsed likewise read report acknowledge course cross examination professional witness struck observation dr k highlighted father man difficulty relationship problem depression within context relationship also past family background likewise report fairly insightful relation past abuse alcohol heart health problem however could help observe conclusion dr k father present man currently suffering psychological disorder also man express significant commitment child desire able care part life based current evaluation information available time evaluation psychological reason suggest father prevented involved care child emphasise date report almost two half year past may limited benefit hereafter understand fund tight party funded legal aid may opportunity perhaps need upon express view updated report current position brief summary father life son prior marriage n life daughter prior marriage life maternal grandmother pursuant order state court determine obvious could hear matter also note counsel mother inherited brief last minute position cross examine family consultant court proposed call first witness arose issue interim order made today better understand interest child requirement interim order mr court give evidence provide information court allowing cross examination time constraint evidence given oath however enter witness box comment could recorded answer various question asked hopefully balanced basis regard observation though certainly balance fact merely observation given court though based particular experience case oath cross examined mr testart behalf father sought interim order extend time locality current order emphasis current order place 14 month father effectively driven 100 kilometre bendigo every sunday course round trip 200 kilometre occasion time spent unavailable frustrated explore issue every occasion order required mother attend seek opportunity return child occasion meet n become familiar step brother home environment father independent child lawyer warmly supported interim order made extension time relaxation certain travel commitment placed upon father submission made behalf child give due proper weight mother counsel opposed interim order mr pannifex position defended matter matter could reached heard current order continue without change whatsoever father increased time child relaxed condition concern mother predominantly directed proper meaningful supervision counsel expressed almost total lack respect trust grandmother undertake level supervision presumably manipulated son stand would stand protect child context course observation court make grandmother 14 month ago nominated supervisor seemingly done job without formal complaint certainly affidavit containing alleged failure part either present supervise concern mother retain order within bendigo circumstance allow father drive safety township bendigo one occasion agreement relaxed father could take child gymkhana surrounding bridgewater wedderburn area victoria incident passed without complaint event day safety child though disagreement party whether mother tricked agreeing bridgewater reality gymkhana always conducted wedderburn 20 kilometre distant current order provided paragraph f continue child taken particular hotel much comment submission counsel contact mr m pearce father previous wife ultimately matter first determined interim order made acknowledge argument counsel appearing mother vigorously presented behalf current order simply remain continue agree fourteen month considerable time child life lived regime interim order entered party would hoped limited period complaint specific issue child time matter importance likewise content mr report give real comfort improving relationship father daughter indeed many aspect report observation court today highlighted developed established child life must go forward two parent child right enjoy subject safety proper supervision parent supervision issue trespass upon today clearly heart ongoing future dispute may well point time order discharged father child relationship avoid supervision requirement however pause making finding regard without trial without complete evidence one difficulty highlighted mr touched upon counsel mother might simply able cope deal extension order matter importance though much mother handle mr touched upon counselling arrangement benefit required one would hope required reality order make today involve considerable extension time sunday current order 10 00 3 00 p though reality party adopted timetable 10 30 2 30 p inclusive propose interest child vary current order change time 9 00 commencement 4 00 p conclusion one aspect case raised counsel mother sunday view reading material context father travel would appropriate child weekend without time spent father mother propose every third sunday suspension time spent significant issue concerned supervision location contact time going interfere supervision requirement use brief extempore reason enforce upon grandmother court today absolute responsibility diligent active necessary act wish son judged action ultimately child role pearce family judged acute level supervision required grandmother permit child travel first sunday month reality case heard april may likely two occasion march april make order ongoing basis reviewed changed judge strictly child go nowhere else go surrounding town contact person mr m pearce wholly excluded circle contact father need understand breach might simply end relationship daughter simple blunt would show really concern understanding either mother might genuine concern changeover remain mcdonalds store mother must punctually deliver 9 00 collect store 4 00 p include brief extempore comment requirement mother positively meaningfully encourage time spent deliver child proper frame mind properly attired ready go dark story simple reality mother must framework consideration order best interest child time spent must enjoyable due proper regard operative section thefamily law actin regard acted regard best interest child pursuant primary additional requirement ofsection 60cc particular highlight interim order made without hearing party cross examination briefest submission upon reading whole file reason transcribed placed upon court file observation mr made earlier afternoon transcribed placed upon court file copy provided party certify preceding paragraph area true copy reason judgment hereinof honourable justice young associate

Industrial Relations Commission Decision 1031_1989 [1989] AIRC 993; (20 December 1989).txt

industrial relation commission decision 1031 1989 1989 airc 993 20 december 1989 industrial relation commission decision 1031 1989 australian industrial relation commissionindustrial relation act 1988s 113application variation transport worker union australia c 35868 1989 transport worker airline award 1988 1 odn c 02369 1986 99notifications industrial dispute australian transport officer federation qantas airway ltd others c 36161 1989 salaried staff qantas airway limited award 1984 2 odn c 02802 1983 salaried staff ansett airline award 1985 3 odn c 03308 1983 salaried staff taa award 1985 4 odn c 03308 1983 federated clerk union australia ansett transport industry operation pty ltd another c 36538 1989 clerk domestic airline award 1980 5 odn c 00312 1978 clerk overseas airline award 1985 6 odn c 00895 1982 various employee airline operation commissioner paine melbourne 20 december 1989 allowance disability allowance fcu claim disability payment engaged brisbane international airline terminal commission persuaded depart averaging approach followed earlier matter amount 2 00 per shift payable decision matter concern claim disability payment respect disability encountered member federated clerk union australia fcu engaged brisbane international airline terminal ______________________________________________________________________________ 1 print h3030 t029 2 print f6009 s007 3 print g0809 s004 4 print g0239 s002 5 print f7901 c027 6 print g0226 c030 came commission following similar matter concerning transport worker union australia australian transport officer federation disability payment made matter following inspection site 25 july 1989 commission said disability encountered performance work international terminal generally found construction site employee directly involved work construction fitting disability comprise dust dirt uneven temporary surface ingress exit noise congestion include frustration process ordinary work disability varying intensity may vary according various stage work time day particular work performed like necessary therefore examine incidence actual exposure condition instance cannot said worst condition occur conveyor extension north eastern side terminal experienced time directly related unloading baggage bringing dolly area front terminal exposure extreme condition le congestion dust present shuttering cutting pavement walkway mean requirement exercise considerable care handling equipment ensuring safety personnel including passenger boarding leaving aircraft disability payment 2 00 per shift determined commission following completion matter fcu notified present matter advising 29 august 1989 similar claim involving member transport worker union dealt mr commissioner paine notification referred matter came commission notwithstanding contention employer matter resolved basis former matter union declined sought inspection site commission subsequently argued matter commission substantially ground disability suffered clerical employee greater experienced transport worker time inference greater experienced member australian transport officer federation whose matter also resolved propose deal inspection carried behalf fcu commission international terminal save indicate inspection tended concerned directed towards disability said existed past rather relatively minor nature remained visable time course benefit inspection terminal six week earlier reconstruction work carried le completed stage particular emphasis placed fcu inspection however upon work taken place adjacent area occupied ansett staff area site plan tendered proceeding establish level disability encountered clerical worker evidence given two employee regard evidence level time exposure disability said occurred time case however could said full extent disability claimed present time every part shift worked nothing put persuades depart averaging approach followed earlier matter respect qantas employee reached conclusion amount 2 00 per shift payable claim relation disability said exist ansett group cause concern however practice commission acceptable term process award disability payment respect period relating condition preceded concluded prior claim made case area marked site plan claim must rejected respect ansett group employer however proposed settling matter consistent earlier matter regard similar level disability across site concur proposition providing payment shall proportionate actual time site group party required confer advise form order necessary give effect decision commission commissioner appearance mcpaul walker transport worker union australia r shaw australian transport officer federation r entsch j hayward ansett transport industry operation pty limited rspect airline operating division ansett airline australia samios l baker foley lamb qantas airway limited p cook avery j eustace australian airline limited c wood r winker federated clerk union australia date place hearing 1989 brisbane july 26 october 12 november 22 end text

SZIXV v Minister for Immigration & Anor [2006] FMCA 1847 (28 November 2006).txt

szixv v minister immigration anor 2006 fmca 1847 28 november 2006 last updated 11 january 2007federal magistrate court australiaszixv v minister immigration anor 2006 fmca 1847migration review refugee review tribunal decision application extension time five six year late application refused federal magistrate court rulesprovide dispensation compliance rule act migration act 1958 cth s 476 477migration litigation reform act 2005 cth part 2 item 42 schedule 1federal magistrate court rule r r 1 06 44 06applicant szixvfirst respondent minister immigration multicultural affairssecond respondent refugee review tribunalfile number syg 1643 2006judgment turner fmhearing date 28 november 2006date last submission 28 november 2006delivered sydneydelivered 28 november 2006representationthe applicant appeared personsolicitors respondent m h dejean australian government solicitorthe court order 1 applicant application themigrationact

Kambouridis v L.R. Reed City Pty Ltd & Anor [2020] FCCA 1484 (5 June 2020).txt

kambouridis v l r reed city pty ltd anor 2020 fcca 1484 5 june 2020 last updated 9 june 2020federal circuit court australiakambouridis v l r reed city pty ltd anor 2020 fcca 1484catchwords industrial law contravention offair work act 2009 unfair dismissal penalty hearing failure pay compensation ordered cost order sought penalty imposed legislation fair work act 2009 cth s 390 392 405 539 546 550and570 federal circuit court rule cth sch 1 case cited kambouridis v lr reed city 2017 fwc 5336kelly v fitzpatrick 2007 fca 1080meadley v sort worx pty ltd 2013 fca 1012mayberry v kijani investment pty ltd trustee dawe investment trust subway wallsend trading subway 2011 fca 1238applicant michael kambouridisfirst respondent l r reed city pty ltd acn 621 212 655 second respondent andrew musemecifile number mlg 2573 2018judgment judge riethmullerhearing date 28 february 2020date last submission 28 february 2020delivered melbournedelivered 5 june 2020representationsolicitors applicant maddison associatesthe respondent appear ordersthe court declares 1 first respondent contraveneds 405of thefair work act 2009 act failing comply order fair work commission dated 11 october 2017 2 second respondent involved within meaning ofsubsection 550 2 act contravention committed first respondent set paragraph 1 court order 3 first respondent pay applicant penalty 20 000 pursuant tos 546 1 act contravention set paragraph 1 4 second respondent pay applicant penalty 5 000 pursuant tos 546of act involvement contravention set paragraph 1 5 respondent pay applicant cost proceeding fixed sum 7 104 federal circuit courtof australiaat melbournemlg 2573 2018michael kambouridisapplicantandl r reed city pty ltd acn 621 212 655 first respondentandrew musemecisecond respondentreasons judgmentthe applicant commenced proceeding jurisdiction 28 august 2018 seeking enforcement order fair work commission fwc dated 11 october 2017 see decisionkambouridis v lr reed city 2017 fwc 5336and order pr 596732 fwc found applicant unfairly dismissed employment first respondent made order remedy way compensation 38 812 50 power make order pursuant toss 390and392of thefair work act 2009 cth act applicant employed accountant first respondent facility management company 10 august 2015 22 may 2017 see paragraph 4 applicant affidavit filed 24 february 2020 second respondent sole director first respondent responsible day day running business statement claim filed 28 august 2018 amended 14 january 2020 applicant seek payment compensation ordered fwc 38 812 50 penalty pursuant act first respondent penalty pursuant act second respondent interest andcosts matter adjourned number occasion allow personal service application statement claim second respondent 8 may 2019 affidavit service filed confirming second respondent personally served 28 march 2019 15 july 2019 order made absence respondent failed appear judgment entered first respondent sum 38 812 50 paid within 30 day matter adjourned hearing issue penalty cost first second respondent filed material proceeding attended hearing issue remaining court imposition penalty respondent whether make cost order evidence first respondent unable make payment ordered fwc first respondent therefore breacheds 405of act contravening order fwc make payment applicant submits pursuant tos 550of act second respondent involved contravention second respondent director first respondent guiding mind first respondent second respondent take active role operation first respondent finalising payroll process payment staff payment superannuation controlling payment creditor overseeing manager making decision promote terminate hire employee order fwc brought attention second respondent applicant representative attended deliver copy application statement claim proceeding served upon evidence persuaded second respondent knowingly concerned contravention first respondent result second respondent taken also contravened provision see 550 1 act section 539of act provides penalty amount 60 unit breach ofs 405of act section 546of act provides maximum penalty corporation 5 time individual making maximum first respondent 300 penalty unit penalty unit 210 time breach accordingly maximum penalty proceeding first respondent 63 000 second respondent 12 600 applicant submits penalty mid high range appropriate court considering circumstance impose penalty excess 50 per cent maximum consideration relevant factorsat hearing applicant made oral submission relevant factor identified tracey j inkelly v fitzpatrick 2007 fca 1080 turn consider factor relevant proceeding noting list guide exhaustive nature extent conduct circumstance conduct took placethe applicant submits conduct respondent serious breach legislative provision applicant unfairly dismissed first respondent fwc found applicant notified underperformance meeting dismissed see paragraph 23 fwc decision applicant given opportunity address issue related employment given opportunity improve performance fwc also note first respondent admitted applicant improved prior dismissal respondent participated conciliation fwc however failed comply direction file defence material respondent respond several attempt fwc respondent participate proceeding respondent participated filed anything proceeding court nature extent loss damage sustainedthe applicant submits lost employment respondent despite compensation ordered payment forthcoming applicant therefore without amount awarded addition applicant engage legal representation pursue enforcement claim subject legal fee whether similar previous conductthe applicant submits first respondent breach order fwc order 15 july 2019 court payment compensation applicant submits breach fwc considered previous conduct accept ongoing failure make payment ordered fwc considered one breach act court order payment enforced like money order evidence court occasion respondent either engaged conduct type whether breach arose one course conductwhile breach arise single course conduct failure comply order fwc note circumstance case breach continues due ongoing failure first respondent make payment size business enterprise involvedthe fwc satisfied first respondent small business proceeded basis first respondent small business accordance act see paragraph 18 fwc decision fwc noted first respondent act owner corporation least 63 building see paragraph 25 fwc decision applicant representative made submission bar table relation first respondent size profit however evidence tendered filed fwc note paragraph 26 level complexity nature business providing owner corporation service building owner would suggest respondent completely ignorant need comply law relation range area fact respondent acted cavalier manner matter probably le size particular attitude mr musumeci director respondent material court persuaded first respondent business size nature respondent must aware obligation comply lawful order fwc whether breach deliberatethe applicant submits conduct respondent clearly deliberate order made october 2017 respondent pay compensation payment ever made satisfied conduct deliberate whether senior management involved breachthe second respondent sole director company responsible day day operation conduct first respondent found second respondent involved breach accordance withs 550of act contrition corrective action co operation authoritiesthe respondent participated proceeding expressed contrition significantly remedied breach need ensure compliance minimum standardsthe role fwc case involving unfair dismissal ensure minimum standard maintained respect security person employment minimum standard maintained essential compliance fwc order need specific general deterrencethe conduct respondent show lack regard legislative provision fwc play important role protecting right employee employer view decision fwc could ignored would result lack confidence within system non compliance within work place inmeadley v sort worx pty ltd 2013 fca 1012 meadley case tracey j considered deterrence situation fwc made order complied saying 45 inclined accept submission little likelihood reoffending remains however significant issue relating general deterrence commission charged responsibility ensuring employee accorded protection proscribed adverse action entitled act commission find employee unfairly dismissed make remedial order order must complied unless stay granted pending appeal employer entitled unilaterally determine ignore order made commission case employer unable meet obligation simply chose serious contravention need general deterrence weighs heavy consideration fixing penalty penalty must imposed meaningful level serve general deterrent others may disposed engage similar misconduct see example australian competition consumer commission v ipm operation maintenance loy yang pty ltd 2 2007 fca 11at 66 finance sector union australia v commonwealth bank australia 2005 fca 1847 2005 224 alr 467at 41 finkelstein j said incommunity public sector union v telstra corporation limited 2001 fca 1364 2001 108 ir 228at 230 1 even need specific deterrence occasion general deterrence must take priority case penalty imposed mark law disapproval conduct question act warning others engage similar conduct case persuaded case call imposition penalty regard need specific deterrence respondent also reflects need general deterrence unlikemeadley casethere nothing indicate respondent case unlikely repeat type conduct conclusionin considering circumstance whole impose penalty 20 000 first respondent 5 000 second respondent applicant bring proceeding appropriate penalty payable personally coststhe applicant seek cost subsection 570 2 b c act indemnity basis section relevantly provide 570 cost proceeding instituted vexatiously etc 2 party may ordered pay cost court satisfied party instituted proceeding vexatiously without reasonable cause b court satisfied party unreasonable act omission caused party incur cost c court satisfied following party unreasonably refused participate matter fwc ii matter arose fact proceeding applicant submits respondent conduct unreasonable complying fwc order causing applicant incur cost inmayberry v kijani investment pty ltd trustee dawe investment trust subway wallsend trading subway 2011 fca 1238 katzman j noted 28 despite general rule awarding cost fair work proceeding party may ordered pay party cost court satisfied party unreasonable act omission caused party incur cost 570 2 act applicant incurred cost bringing prosecuting action result respondent conduct disobeying complying order fair work australia necessary view act omission unreasonable significantly case arguable dispute party remains case fwc determined dispute respondent simply failed comply fwc order apparent outlined reason conduct effectively forced applicant bring proceeding despite real dispute conduct unreasonable waste applicant cost circumstance case persuaded applicant cost pursuant tos 570of act conclusion hearing order made applicant file submission cost submission forthcoming therefore order cost based lump sum scale sch 1 thefederal circuit court rule 2001 cth note effectively case summary judgment obtained first claim penalty provision respondent filed material never appeared thus initial work filing material two appearance sufficient cover cost therefore ass cost follows item 2 commending proceeding including obtaining judgment payment fwc order 3 744item 2 b appearance fee half day judgment fwc order including advocacy loading item 12 13 b 1 680items 12 13 b appearance fee half day penalty hearing including advocacy loading item 12 13 b 1 680there evidence amount disbursement filing fee service agent fee however amount likely small able absorbed within lump sum amount set therefore order respondent pay applicant cost fixed 7 104 certify preceding forty 40 paragraph true copy reason judgment judge riethmullerassociate date 5 june 2020

Farnden v WorkCover Corporation_Luturn Pty Ltd t_as Primo Australia Port Wakefield Abattoir [2011] SAWCT 37 (28 November 2011).txt

farnden v workcover corporation luturn pty ltd primo australia port wakefield abattoir 2011 sawct 37 28 november 2011 last updated 4 january 2012farnden v workcover corporation luturn pty ltd primo australia port wakefield abattoir 2011 sawct37workers compensation tribunal sa farnden jedvworkcover corporation luturn pty ltd primo australia port wakefield abattoir jurisdiction judicial determinationfile 3834 2010hearing date 18 april 25 october 2011judgment honour president judge w jenningsdelivered 28 november 2011catchwords judicial determination proper interpretation 43b amount lump sum compensation entitlement worker referred medical panel sa assessment accepted workcover whether assessment failed take account apply provision s43b comparison sch 3a act current form sch 3 act repealed form held assessment worker entitlement lump sum compensation correctly determined determination upheld worker rehabilitation compensation act 1986representation counsel applicant m kellycompensating authority mr calligerossolicitors applicant rosey batt associatescompensating authority minter ellisonthis judicial dispute concern proper interpretation 43b theworkers rehabilitation compensation act 1986 worker mr jed farnden injured left foot 20 september 2007 run forklift whilst carrying duty luturn pty ltd trading primo australia port wakefield abattoir following incident worker aged 18 year attended queen elizabeth hospital noted sustained significant injury involving multiple fracture left foot underwent surgery including skin graft thereafter worker regularly reviewed orthopaedic outpatient clinic queen elizabeth hospital condition monitored supplied orthotics left significant permanent disability left foot workcover accepted disability compensable divide party amount lump sum compensation worker entitled pursuant 43 act connection assessment workcover referred worker medical panel sa found worker sustained complex multiple fracture left mid foot hind foot well scarring reference theamerican guide evaluation permanent impairment 5thed ama guide panel concluded worker sustained 51 lower extremity impairment applied ama guide convert assessment percentage whole person impairment found worker sustained 20 whole person impairment account lower extremity impairment 3 whole person impairment account skin impairment applied combined value chart ama guide concluded worker 22 whole person impairment workcover adopted assessment determined worker entitled lump sum compensation pursuant 43 amount 44 676 hearing workcover maintained remains appropriate assessment compensation case worker counsel m kelly submitted assessment erroneous fails take account apply provision 43b act section 43b provides follows 43b disadvantage compensation table 1 worker suffers compensable disability give rise entitlement compensation section 43 43a b compensable disability loss mentioned table schedule 3a c amount compensation payable section 43 43a respect disability le amount applying table schedule 3a respect disability worker entitled compensation equal amount applying table relevant subsection 2 instead compensation payable section 43 43a 2 worker suffers 2 disability mentioned table schedule 3a arising trauma worker entitled case receive compensation section excess 254 100 indexed despite operation subsection 1 table 3 compensation payable section death worker concerned worker case fulfilled condition 43b 1 schedule 3a contains list stipulated impairment stipulated impairment allocated specific minimum amount compensation payable stipulated impairment include loss leg knee loss leg knee loss foot case impairment comprising loss leg knee stipulated amount 215 160 worker case assessment medical panel properly understood suffered equivalent 51 impairment leg knee accordingly asserts proper construction relevant provision entitled 51 amount allocated loss leg knee sch 3a ie 51 215 160 namely amount 109 731 60 also worker case addition entitled additional compensation account scarring ultimately point difference party concern circumstance 43b applies worker case confined circumstance total loss faculty stipulated sch 3a also applies partial loss faculty m kelly contended whenever percentage loss faculty produce amount compensation greater payable compensation assessed pursuant ama guide workcover guide worker entitled disadvantaged therefore entitled greater amount compensation 43b provides m kelly contended use word mentioned 43b 1 b instructive contrasted word described contended use word mentioned conducive concept proportionality applying 43b argued would number inherent absurdity confining application sch 3a total loss impairment pointed example one stipulated impairment total impairment ventilatory function correctly asserted total ventilatory function would amount death rendering part schedule inexplicable finally made reference footnote sch 3a provides b purpose determining extent loss extent loss effect loss may reduced limited external removable aid appliance disregarded m kelly contended use expression extent loss could relevant partial loss applicable operation schedule contending 43b applies total impairment mr calligeros counsel workcover said significant act present form materially different repealed sch 3 act similarly contained list stipulated impairment prescribed various percentage prescribed sum payable case stipulated impairment particular mr calligeros took sub cl 2 repealed sch 3 provided disability consists permanent loss proportion full efficient use physical sensory faculty worker entitled percentage compensation payable total loss faculty equal percentage full efficient use lost worker however case hearing loss compensation payable reference schedule unless percentage loss hearing exceeds 5 mr calligeros contended without provision sub cl 2 ability award worker le full amount prescribed total loss bodily part function question view comparison sch 3a act current form sch 3 act repealed form instructive analysis various impairment listed schedule indicates apart rearranging order essentially large would follow m kelly construction relevant provision correct parliament done amendment case nearly permanent disability retained existing mean compensation assessed time added prescriptive method assessment clearly intended provide scientific basis make assessment making assessment assessable reference whole person impairment would follow worker may effectively select approach apply achieve attractive outcome seems unlikely parliament intended enactment provision directs guide prescriptive method assessment compensation intends achieve consistency making assessment assessable reference whole person impairment applies suggests parliament intended would primary usual method assessment recourse alternative method allowed 43 b would limited exceptional case view absence equivalent sub cl 2 sch 3 repealed act telling lead conclude wording sch 3a mean say limited case total impairment accept throw absurdity case ventilatory function however sufficient persuade alternate construction urged upon worker correct case worker suffered total impairment faculty identified sch 3a accordingly necessary prerequisite application 43b exist provision application opinion workcover assessment worker entitlement lump sum compensation 43 act correctly determined accordance act accordingly determination must upheld note carefully party advised party wish appeal part decision appealable pursuant 86 1 act appeal must filed registrar accordance form titled notice appeal within 14 day delivery decision must served party publication reasonsit practice tribunal publish reason decision full internet party person contends reason decision published full party person must make application within seven day delivery reason application shall application direction supporting affidavit addressed presiding member application lodged within time specified reason published accordance tribunal usual practice

Queensland Veterans' Council Bill 2021.txt

queensland veteran council bill 2021this bill act current law see theacts database queensland veteran council bill 2021long titlepart 1 preliminary1 short title2 commencement3 main purpose act4 definitionspart 2 queensland veteran councildivision 1 establishment5 establishment6 legal status7 council represents state8 application actsdivision 2 function powers9 anzac square10 administration fund11 functions12 powersdivision 3 membership13 membership council14 nominated person veteran organisation15 eligibility16 term appointment17 condition appointment18 chairperson19 disqualification appointed member20 requirement disclose particular matter disqualification21 leave absence22 vacancy officedivision 4 criminal history23 criminal history report24 change criminal history must disclosed25 confidentiality criminal history informationdivision 5 council meetings26 conduct business27 council meetings28 presiding council meetings29 quorum30 voting council meetings31 authentication documents32 minutes33 disclosure interest council meetingsdivision 6 veteran reference group34 establishment35 functions36 membership37 mattersdivision 7 miscellaneous38 advisory committees39 administrative support councilpart 3 minister powers40 minister may ask council carry review41 minister may give statement expectations42 minister may ask document informationpart 4 report budgets43 annual reports44 annual budgetspart 5 anzac square reserve45 council trustee anzac square reserve46 anzac square taken public place47 register reserves48 conservation management plan49 application local law within anzac squarepart 6 miscellaneous50 protection liability51 use disclosure confidential information52 regulation making powerpart 7 transitional provision queensland veteran council act 202153 removal trustee anzac square reserve54 council successor law former trust55 fund56 asset liabilities57 current instruments58 proceedings59 record former trust60 reference former trust61 thing done former trust62 registering authority register transfer dealing63 council first budget64 preparation conservation management plan65 local law made brisbane city council commencementpart 8 amendment legislationdivision 1 amendment act66 act amended67 amendment long titledivision 2 amendment anzac day act 199568 act amended69 amendment 2 definition 70 amendment pt 3 hdg anzac day trust 71 replacement pt 3 div 1 hdg continuation function power trust 72 omission s 4 673 replacement renumbering relocation 7 trust function 74 amendment 9 payment trust 75 omission 10 trust power 76 amendment 12 gift trust 77 amendment 13 payment trust 78 omission pt 3 divs 3 679 amendment pt 5 hdg transitional 80 insertion new pt 5 div 1 hdg81 insertion new pt 5 div 2division 3 amendment public sector ethic regulation 201082 regulation amended83 amendment schedule entity prescribed public service agency division 4 amendment statutory body financial arrangement regulation 201984 regulation amended85 amendment sch 3 statutory body allocated category 1 investment power 86 amendment sch 4 statutory body allocated category 2 investment power schedule 1 dictionarylong titlean act establish queensland veteran council amend theanzac day act 1995 thepublic sector ethic regulation 2010and thestatutory body financial arrangement regulation 2019for particular purposesthe parliament queensland enacts part 1 preliminary1 short titlethis act may cited thequeensland veteran council act 2021 2 commencementthis act commences day fixed proclamation 3 main purpose actthe main purpose act establish queensland veteran council manage maintain preserve develop anzac square state war memorial b administer fund including making payment fund c advise minister veteran matter 4 definitionsthe dictionary inschedule 1defines particular word used act part 2 queensland veteran councildivision 1 establishment5 establishmentthe queensland veteran council established 6 legal statusthe council body corporate b may sue sued corporate name 7 council represents state 1 council represents state 2 without limitingsubsection 1 council status privilege immunity state 8 application act 1 council statutory body thefinancial accountability act 2009 2 council statutory body thestatutory body financial arrangement act 1982 note thestatutory body financial arrangement act 1982 part 2bsets way act affect council power 3 council unit public administration thecrime corruption act 2001 division 2 function powers9 anzac squarethe council following function relating anzac square act trustee anzac square reserve theland act 1994 b manage maintain preserve develop anzac square memorial honour service sacrifice queenslanders australian war conflict peacekeeping peacemaking c approve oversee staging ceremonial activity event anzac square commemorate service sacrifice queenslanders australian war conflict peacekeeping peacemaking approve manage promote public program anzac square inform educate promote understanding among queenslanders visitor history experience service sacrifice queenslanders australian war conflict peacekeeping peacemaking e manage maintain cultural heritage significance anzac square 10 administration fundthe council function administer fund act theanzac day act 1995and decide application payment fund note see theanzac day act 1995 section 8 8aand9 11 function 1 council following function monitor matter affecting veteran community b investigate report aspect veteran matter referred minister c consult veteran community developing advice minister advise minister veteran matter matter relevant performance council function 2 council also function given council act another act 12 power 1 council power individual may example enter contract agreement b deal land property c appoint agent attorney engage consultant contractor e charge fee service facility supply f accept gift property fund deal property fund form money pay money fund g anything else necessary convenient done performance function 2 council also power given act another act division 3 membership13 membership council 1 council consists following member chief executive employee department nominated chief executive b chief executive officer brisbane city council council employee nominated chief executive officer c 6 member appointed member appointed governor council 2 appointed member may include 2 person nominated veteran organisation undersection 14 b 4 person nominated minister 3 forsubsection 2 b minister must satisfied person qualification experience least 1 following area corporate governance b business financial management c heritage conservation another area minister considers relevant necessary support council performing function 4 section council employee see thecity brisbane act 2010 schedule 2 14 nominated person veteran organisation 1 minister may give veteran organisation notice stating reasonable period within may nominate person appointment council 2 veteran organisation nominate person within period stated notice minister may nominate veteran forsection 13 2 veteran taken nominated appointment council 15 eligibilitya person eligible appointment member person member legislative assembly b councillor local government 16 term appointment 1 appointed member hold office term longer 4 year stated member instrument appointment 2 subsection 1 prevent appointed member reappointed 17 condition appointment 1 appointed member paid remuneration allowance decided governor council 2 appointed member hold office term condition provided act decided governor council 18 chairperson 1 governor council may appoint appointed member recommended minister chairperson council 2 person may appointed chairperson time person appointed appointed member 3 chairperson hold office term stated person instrument appointment chairperson 4 however person appointment chairperson end person stop member 5 person resigns office chairperson person may continue appointed member remaining term appointment undersection 16 19 disqualification appointed member 1 person disqualified becoming continuing appointed member person conviction spent conviction indictable offence unless minister given person notice undersubsection 4 b insolvent administration unless minister given person notice undersubsection 4 c disqualified managing corporation thecorporations act part 2d 6 2 also person disqualified becoming continuing appointed member person consent minister requesting report person criminal history underdivision 4 3 minister may act undersubsection 4 minister considers would reasonable regard circumstance offence person convicted b circumstance person became insolvent administration 4 minister may person member person convicted became insolvent administration term person appointment appointed member ended give chairperson person notice approval notice person restored appointed member ii person may later reappointed despite conviction insolvent administration b otherwise give written approval person become appointed member despite conviction insolvent administration 5 person given approval notice undersubsection 4 person restored appointed member day chairperson receives approval notice b person term appointment appointed member end would ended person convicted offence become insolvent administration 6 section conviction indictable offence include found guilty offence plea guilty otherwise without conviction recorded offence 20 requirement disclose particular matter disqualification 1 section applies person appointed member disqualified managing corporation person becomes insolvent administration b disqualified managing corporation thecorporations act part 2d 6 note change person criminal history seesection 24 2 person must unless person reasonable excuse immediately give notice minister insolvent administration disqualified managing corporation note maximum penalty 100 penalty unit 3 notice must state person became insolvent administration disqualified managing corporation thecorporations act part 2d 6 b person became insolvent disqualified c disqualified managing corporation detail adequate identify ground disqualification 21 leave absencethe minister may approve leave absence member b appoint another person act office member leave absence 22 vacancy office 1 appointed member office becomes vacant member completes term office b resigns office signed notice given minister c stop eligible appointment undersection 15 disqualified continuing appointed member undersection 19 e consent minister requesting report person criminal history underdivision 4 f removed office g absent without permission chairperson 3 consecutive council meeting proper notice given h appointed member nominated veteran organisation stop representative veteran organisation nominated person 2 forsubsection 1 h person representative veteran organisation organisation give minister notice stating person represent organisation division 4 criminal history23 criminal history report 1 decide person disqualified becoming continuing appointed member minister may ask commissioner police service written report criminal history person b brief description circumstance conviction mentioned criminal history 2 however minister may make request person given minister written consent request 3 commissioner police service must comply request 4 however duty comply applies information commissioner possession commissioner access 24 change criminal history must disclosed 1 section applies person appointed member convicted indictable offence term member appointment 2 person must unless person reasonable excuse immediately give notice minister conviction note maximum penalty 100 penalty unit 3 notice must state existence conviction b offence committed c detail adequate identify offence sentence imposed person 25 confidentiality criminal history information 1 section applies person posse criminal history information person member another person involved administering act including example public service employee 2 person must use directly indirectly disclose another person criminal history information unless use disclosure permitted undersubsection 3 note maximum penalty 100 penalty unit 3 person may use disclose another person criminal history information use disclosure performance function exercise power act b otherwise required permitted law c consent person criminal history information relates 4 person posse report given minister undersection 23or notice given minister undersection 24must ensure report notice destroyed soon practicable longer needed purpose given 5 subsection 4 applies despite thepublic record act 2002 6 section criminal history information mean information contained report given minister undersection 23 b notice given minister undersection 24 division 5 council meetings26 conduct businesssubject division council may conduct business including council meeting way considers appropriate 27 council meeting 1 chairperson may convene meeting member council meeting time place decided chairperson 2 chairperson must convene council meeting least 4 time year often necessary council perform function b requested writing minister ii 3 member 28 presiding council meeting 1 chairperson preside council meeting chairperson present 2 chairperson absent council meeting member chosen member present preside 3 member become chairperson council merely member presides council meeting undersubsection 2 29 quoruma quorum council meeting majority member time meeting held 30 voting council meeting 1 question council meeting must decided majority vote member present meeting able vote question 2 member present council meeting vote question decided 3 member abstains voting member abstains conflict interest taken voted negative 4 vote member present council meeting equal member presiding meeting casting vote 5 council may hold council meeting allow member take part meeting using technology allowing reasonably contemporaneous continuous communication member taking part meeting 6 member take part meeting council undersubsection 5 taken present meeting 7 resolution validly made council even passed council meeting notice resolution given procedure approved council b majority member agree writing resolution 31 authentication documentsa document made council document required sealed sufficiently made made signed chairperson another person direction chairperson 32 minutesthe council must keep minute council meeting 33 disclosure interest council meeting 1 section applies member direct indirect interest matter considered considered council meeting b interest could conflict proper performance member duty consideration matter 2 soon practicable relevant fact come member knowledge member must disclose nature interest council meeting 3 unless council otherwise directs member must present council considers matter b take part making decision council matter 4 member must present council considering whether give direction undersubsection 3 5 member present quorum making decision undersubsection 3 b 6 disclosure undersubsection 2 must recorded minute council meeting 7 contravention section invalidate decision council 8 however council becomes aware member contravened section council must reconsider decision made council member took part contravention section division 6 veteran reference group34 establishment 1 minister may establish veteran reference group approve term reference group 2 minister must consult council approving term reference 35 function 1 veteran reference group function advise council veteran matter referred group b help council identify consult veteran community veteran organisation community organisation preparing advice minister c help council advise minister veteran matter 2 section community organisation mean entity veteran organisation provides service support veteran community 36 membership 1 veteran reference group membership decided minister 2 however minister must ensure group consists appointed member undersection 13 2 b 8 member veteran community knowledge skill experience 1 following veteran welfare ii veteran health iii military service iv veteran transition military service v veteran employment vi veteran aged care vii matter affect veteran partner widow dependant viii matter affect wellbeing veteran community 37 matter 1 appointed member undersection 13 2 co chairperson veteran reference group 2 person hold office member group term longer 2 year stated person instrument appointment 3 subsection 2 prevent member group reappointed 4 member group entitled remuneration 5 person stop member group veteran organisation nominated person give minister notice stating person longer represents organisation 6 group conduct business hold meeting way council considers appropriate division 7 miscellaneous38 advisory committeesthe council may establish 1 committee council considers appropriate advise matter relating council function 39 administrative support councilthe chief executive must ensure council administrative support service reasonably required council perform function effectively efficiently including example following implementing council approved policy procedure plan relating management maintenance preservation anzac square operation council b establishing maintaining effective connection minister brisbane city council council c making payment including payment fund direction behalf council coordinating management council function part 3 minister powers40 minister may ask council carry review 1 minister considers appropriate minister may ask council carry review matter relevant council function b give minister written report matter completing review 2 council must comply minister request 3 report may provide particular outcome review council recommendation including example recommendation change council function 4 minister may publish report way minister considers appropriate 41 minister may give statement expectation 1 minister may give council written statement statement expectation minister expectation performance council function 2 statement expectation may apply particular period stated statement b provide following council strategic operational activity ii nature scope council activity proposed carried particular period iii information required given minister council iv way council must report minister activity v sharing information government entity 3 council must regard statement expectation performing function 4 section government entity see thepublic service act 2008 section 24 42 minister may ask document information 1 minister may notice ask council give minister document information related function stated notice 2 council must comply minister request part 4 report budgets43 annual reportsthe council must include annual report prepared thefinancial accountability act 2009 section 63 detail function performed council financial year b information effectively efficiently council performed function including identifying key achievement financial year c detail statement expectation given minister undersection 41during financial year action taken council ii document information requested minister undersection 42during financial year 44 annual budget 1 council must develop adopt budget financial year give minister least 2 month start financial year 2 minister may approve refuse approve budget 3 financial year council may develop adopt give minister amendment approved budget year 4 budget budget amendment effect minister approves 5 council must comply approved budget amended approved budget amendment financial year part 5 anzac square reserve45 council trustee anzac square reservethe council trustee anzac square reserve theland act 1994 46 anzac square taken public place 1 anzac square taken public place act confers imposes police officer authorised person power function respect public place b provides offence committed public place 2 subsection 1 prevent limit imposition council condition entry anzac square 3 subsection 1 applies local law made brisbane city council subject tosection 49 4 section authorised person mean person appointed chief executive officer brisbane city council act authorised officer authorised person 47 register reserve 1 asked council chief executive department theland act 1994is administered person responsible keeping register reserve act must without charge register council trustee anzac square reserve register reserve b make necessary change land registry kept act 2 council must comply relevant procedure required chief executive purpose section 48 conservation management plan 1 council must prepare implement plan conserve manage cultural heritage significance anzac square 2 council must least every 5 year review plan 3 council must give plan revision plan queensland heritage council 4 queensland heritage council may regard conservation management guideline endorse plan revision plan 5 council must give plan revision plan minister within 2 month plan revision plan endorsed 6 council must report minister queensland heritage council implementation plan within 2 month end financial year 7 section conservation management guideline mean guideline made thequeensland heritage act 1992 section 173that relates plan conservation management heritage place 49 application local law within anzac square 1 local law made brisbane city council applies within anzac square subject tosubsection 3 2 regulation may provide stated local law made brisbane city council apply applies stated change within anzac square 3 regulation provides stated local law made brisbane city council apply applies stated change within anzac square local law apply applies stated change within anzac square part 6 miscellaneous50 protection liability 1 protected person incur civil liability act done omission made honestly without negligence act 2 ifsubsection 1 prevents civil liability attaching protected person liability instead attache state 3 section apply protected person person state employee within meaning thepublic service act 2008 section 26b 4 note protection civil liability relation state employee see thepublic service act 2008 section 26c 4 section protected person mean minister b member 51 use disclosure confidential information 1 section applies person member another person involved administering act including example public service employee b obtains confidential information administering performing function act 2 person must use directly indirectly disclose confidential information unless use disclosure performance function exercise power act b consent person information relates c otherwise required permitted law note maximum penalty 100 penalty unit 3 section confidential information mean information could identify individual ii person current financial position financial background iii would likely damage commercial activity person information relates iv disclosed notice undersection 20 b include information publicly available ii statistical information could reasonably expected result identification individual relates 52 regulation making powerthe governor council may make regulation act part 7 transitional provision queensland veteran council act 202153 removal trustee anzac square reserveon commencement brisbane city council removed trustee anzac square reserve theland act 1994 54 council successor law former trust 1 council successor law former trust 2 subsection 1 limited another provision part 55 fundon commencement council becomes responsible administration fund 56 asset liability 1 commencement asset liability former trust immediately commencement become asset liability council 2 without limiting subsection 1 commencement property including gift bequest property immediately commencement held trust subject condition former trust continues held trust subject condition council 57 current instrument 1 section applies contract instrument former trust party otherwise applied former trust immediately commencement current instrument 2 commencement council becomes party current instrument current instrument otherwise applies council place former trust 3 without limiting subsection 2 right title interest liability former trust arising relating current instrument right title interest liability council b current instrument including benefit right provided current instrument given favour former trust commencement taken given favour council c application relating current instrument made name former trust commencement taken made name council current instrument amount may become payable former trust taken instrument amount may become payable council way amount might become payable former trust e current instrument property money may become liable transferred conveyed assigned former trust taken instrument property may become liable transferred conveyed assigned council way property might become liable transferred conveyed assigned former trust 58 proceeding 1 proceeding immediately commencement could started former trust within particular period may started council within period 2 proceeding immediately commencement ended former trust party may continued finished council council party proceeding 59 record former truston commencement record former trust become record council 60 reference former trustin act document reference former trust context permit taken reference council 61 thing done former trustanything done former trust act commencement taken done council 62 registering authority register transfer dealing 1 registering authority must written application council without charge register record appropriate way transfer dealing affecting asset liability instrument part 2 council must comply relevant procedure required registering authority purpose registering recording transfer dealing 3 section registering authority mean registrar title theland title act 1994or another entity required authorised law register record transaction affecting asset liability instrument 63 council first budget 1 section applies council budget section 44 2 period council first budget start commencement end end financial year commencement occurred 3 despite section 44 1 minister council may agree time council must prepare budget give minister approval 64 preparation conservation management plan 1 section applies council conservation management plan section 48 2 plan must prepared given queensland heritage council within 2 year commencement 65 local law made brisbane city council commencementforsection 49 reference local law made brisbane city council taken include reference local law made brisbane city council commencement part 8 amendment legislationdivision 1 amendment act66 act amendedthis division amends act 67 amendment long titlelong title amend omit division 2 amendment anzac day act 199568 act amendedthis division amends theanzac day act 1995 69 amendment 2 definition 1 section 2 definition board trust omit 2 section 2 insert council mean queensland veteran council established thequeensland veteran council act 2021 section 5 70 amendment pt 3 hdg anzac day trust part 3 heading trust insert fund71 replacement pt 3 div 1 hdg continuation function power trust part 3 division 1 heading omit insert division 1 administration fund72 omission s 4 6sections 4to6 omit 73 replacement renumbering relocation 7 trust function 1 section 7 omit insert 7 function council council function administer fund act thequeensland veteran council act 2021 2 section 7 renumber relocate assection 8a 74 amendment 9 payment trust section 9 trust omit insert council75 omission 10 trust power section 10 omit 76 amendment 12 gift trust section 12 trust omit insert council77 amendment 13 payment trust section 13 trust omit insert council78 omission pt 3 divs 3 6part 3 division 3to6 omit 79 amendment pt 5 hdg transitional part 5 heading transitional insert provisions80 insertion new pt 5 div 1 hdgbeforesection 32 insert division 1 transitional provision act 4 199581 insertion new pt 5 div 2part 5 insert division 2 transitional provision queensland veteran council act 202133 definition division division former trust mean anzac day trust act immediately commencement 34 abolition former trust 1 commencement former trust abolished note see thequeensland veteran council act 2021 part 7 provision succession former trust b former board abolished c person holding office chairperson former trust trustee former board former secretary go office 2 compensation payable chairperson trustee former secretary section 3 section former board mean board act immediately commencement former secretary mean secretary former trust act immediately commencement 35 undecided application 1 section applies commencement person made application former trust former section 9 b immediately commencement application decided 2 commencement application continues made council section 9 3 section former section 9 mean section 9 force time time commencement division 3 amendment public sector ethic regulation 201082 regulation amendedthis division amends thepublic sector ethic regulation 2010 83 amendment schedule entity prescribed public service agency 1 schedule entry anzac day trust queensland veteran advisory council omit 2 schedule insert queensland veteran council established thequeensland veteran council act 2021division 4 amendment statutory body financial arrangement regulation 201984 regulation amendedthis division amends thestatutory body financial arrangement regulation 2019 85 amendment sch 3 statutory body allocated category 1 investment power schedule 3 entry foranzac day act 1995 omit 86 amendment sch 4 statutory body allocated category 2 investment power schedule 4 insert queensland veteran council act 2021queensland veteran councilschedule 1 dictionary anzac square mean anzac square reserve memorial monument reserve including shrine remembrance shrine memory crypt present future memorial monument anzac square reserve mean reserve theland act 1994described lot 2623 2624 crown plan b32451 appointed member seesection 13 1 c chairperson mean chairperson council holding office undersection 18 1 council mean queensland veteran council established undersection 5 council meeting seesection 27 1 criminal history person mean person criminal history defined thecriminal law rehabilitation offender act 1986 spent conviction former trust mean anzac day trust theanzac day act 1995immediately commencement fund mean anzac day trust fund theanzac day act 1995 section 8 insolvent administration see thecorporations act section 9 member mean member council undersection 13 1 notice mean written notice spent conviction mean conviction rehabilitation period thecriminal law rehabilitation offender act 1986has expired act b revived prescribed undersection 11of act statement expectation seesection 41 1 veteran mean person serving served australian defence force veteran community mean veteran people direct link veteran including example surviving partner dependant parent veteran veteran organisation mean entity established support person served australian defence force b support member veteran community state queensland 2021

Irving v Jones Lang LaSalle Australia Limited and another (No. 2) [2007] NSWIRComm 87 (12 April 2007).txt

irving v jones lang lasalle australia limited another 2 2007 nswircomm 87 12 april 2007 last updated 20 june 2007new south wale industrial relation commissioncitation irving v jones lang lasalle australia limited another 2 2007 nswircomm 87file number irc 7758hearing date 13 12 2006date judgment 12 april 2007parties applicant oliver desmond irvingfirst respondent jones lang lasalle australia limitedsecond respondent jones lang lasalle nsw pty limitedcoram backman jcatchwords unfair contract 106of theindustrial relation act 1996 determination issue quantification amount ordered paid respondent whether order finally made date judgment delivered legal representativesapplicant mr p kite scsolicitors henry davis yorkrespondents mr r moses counselsolicitors hunt huntcases cited irving v jones lang lasalle australia limited another 2006 nswircomm 305lep international pty ltd v caine 2000 97 ir 35ove arup pty ltd v workcover authority nsw inspector mansell 2005 nswircomm 49 2005 141 ir 78wentworth v wentworth 1999 nswsc 638legislation cited industrial relation act 1996judgment 7 industrial court new south walescoram backman jthursday 12 april 2007matter irc 7758 2001irving v jones lang lasalle australia limited another 2 application unders 106of theindustrial relation act 1996judgment 2007 nswircomm 871 proceeding brought way summons relief unders 106of theindustrial relation act1996

Trustee Companies Amendment Act 2010 (No. 49 of 2010).txt

trustee company amendment act 2010 49 2010 act 49 2010 royal assent 14 december 2010table provisionslong titlepart 1 preliminary1short title2commencementpart 2 trustee company act 1953 amended3principal act4section 3 amended interpretation 5sections 4 4a repealed6section 7 amended power court c appoint trusteecompany trustee receiver c 7section 11 amended power court act affidavit ofauthorised person trustee company 8section 12 repealed9section 13 amended power trustee company act power ofattorney 10section 15a amended power trustee company undertake otherservices 11section 17 amended power authorised person attend behalfof trustee company 12section 17a repealed13section 18 substituted14section 18a amended management charge respect charitabletrusts c 15section 18c substituted16section 18e repealed17sections 18g 18h repealed18sections 20 21 repealed19part iii division 1 repealed20section 34a repealed21section 36 amended power court make order account onapplication public trustee 22sections 38 39 39aa repealed23sections 40 40aa repealed24section 40a amended regulation 25schedules 2 2a 3 5 repealedpart 3 administration probate act 1935 amended26principal act27section 25 amended administration bond part 4 repeal act28repeal act note table automatically generated may incomplete

Khoury v Rosemist Holdings Pty Ltd (In Liq) & Ors [2003] WASC 228 (5 November 2003).txt

khoury v rosemist holding pty ltd liq or 2003 wasc 228 5 november 2003 last updated 14 november 2003jurisdiction supreme court western australiain chamberscitation khoury v rosemist holding pty ltd liq or 2003 wasc 228coram em heenan jheard 5 november 2003delivered 5 november 2003file civ 2324 2003between fouad antoun khouryplaintiffandrosemist holding pty ltd liq first defendantredrunner holding pty ltd trustee jabbour family trustsecond defendantmarie vone jabbourthird defendantcatchwords interlocutory injunction marevaorder applicationex parte alleged voluntary alienation property defraud creditor property law act 89 defendant company liquidation leave proceed obtained potential interest liquidator relief sought insufficient case shown interlocutory relieflegislation corporation act 2001 clth 588fa 588fb 588ff 588fhproperty law act 89 1 result application interlocutory injunction adjournedstay proceeding company liquidationorder service process liquidatorcategory brepresentation counsel plaintiff mr j aristeifirst defendant appearancesecond defendant appearancethird defendant appearancesolicitors plaintiff holborn lenhofffirst defendant appearancesecond defendant appearancethird defendant appearancecase referred judgment case also cited nil1em heenan j afternoon court sat chamber hear urgent application plaintiff action interimmarevainjunction application heardex parte situation proceeding writ summons issued 3 november 2003 chamber summons themarevainjunction taken day affidavit plaintiff support application injunction deposing lengthy history party shall mention moment undertaking damage offered process served upon defendant plainly appearance behalf defendant 2 history transaction several party complicated one need stated full afternoon enough say plaintiff mr fouad antoun khoury obtained judgment liquidated sum mr jabbour company rosemist holding pty ltd first defendant liquidation judgment favour mr khoury party nature claim debt secured proprietary component respect asset judgment debtor attempt enforce judgment mr jabbour rosemist holding pty ltd far completely unsuccessful 3 next significant point note rosemist holding pty ltd conducted trading business behalf capacity owned variety asset comprising stock trade machinery equipment business bank deposit asset rosemist holding pty ltd indebted variety trade creditor apparently financial siege demand transfer asset business trustee jabbour family trust quite done appear statement claim perhaps involved declaration trust point rosemist holding pty ltd held various asset beneficially third party namely beneficiary trust jabbour family trust upon term trust 4 consequence transfer beneficial interest asset rosemist holding business purpose family trust rosemist obtained access money held behalf family trust used money pay various trade creditor detail payment trade creditor set statement claim implication pleading sum payment le value property rosemist point declared hold trust beneficiary effect transaction resulted trustee obtaining valuable property le commercial value 5 use money coming jabbour family trust controlled rosemist holding pty ltd include payment debt due mr khoury remained unsatisfied judgment creditor 6 little later rosemist holding pty ltd ceased trustee jabbour family trust quite happened emerge statement claim whether resigned whether removed whether appointor settlor exercised power appointment new trustee disclosed however came new trustee jabbour family trust appointed namely red runner holding pty ltd second defendant new trustee became seized asset business formerly held rosemist holding pty ltd trust jabbour family trust held rosemist holding pty ltd legally beneficially allegation statement claim proceed footing trustee red runner holding pty ltd continues hold business trading asset 7 next step history rosemist holding pty ltd insolvent put liquidation liquidator appointed somewhere time mr jabbour judgment debtor declared bankrupt petition effect two insolvency view asset bankrupt jabbour divisible among creditor date bankruptcy become vested official trustee asset rosemist holding pty ltd distributable benefit creditor date liquidation vested liquidator 8 point liquidator party proceeding leave sought granted plaintiff proceed rosemist holding pty ltd company liquidation point addressed detail argument afternoon appears fatal obstacle plaintiff proceeding rosemist holding pty ltd unless leave proceed company liquidation first obtained 9 account event given far lead situation mr khoury unsatisfied judgment creditor left judgment debt mr jabbour bankrupt rosemist holding pty ltd liquidation informed whether claim based judgment proved admitted bankruptcy liquidation seem reason would provable information limited though disclosed afternoon 10 proceeding plaintiff commenced present action take unstated premise probable fact claim liquidation rosemist holding pty ltd bankruptcy jabbour mr khoury judgment debt little prospect satisfaction satisfaction full 11 claim also take focus assumption transfer beneficial interest rosemist holding pty ltd business asset trustee jabbour family trust red runner holding pty ltd put valuable asset beyond reach creditor rosemist holding pty ltd statement claim alleges transaction asset rosemist holding pty ltd declared held trust benefit jabbour family trust followed change trustee transaction voidable 89 theproperty law actas transaction intended defraud creditor 12 accept arguable transaction may one voidable attempt defraud creditor creditor creditor rosemist holding pty ltd plaintiff one plaintiff submits sufficient characterise person thereby prejudiced transaction within meaning phrase 89 1 theproperty law act unable accept submission sufficiently well established justify grant injunctive relief ex parte basis present application reason reservation transaction even fraudulent transaction defeat creditor one prejudice rosemist holding pty ltd attempting put asset beyond reach 13 rosemist holding pty ltd liquidation view aprima facielevel liquidator company pursue vindicate claim set aside alleged fraudulent transaction liquidator charged responsibility gathering asset company liquidation also pursuing setting aside fraudulent void voidable preference unless liquidator take action satisfied basis upon individual unsecured creditor rosemist holding pty ltd stead 14 course provision thecorporations act 2001 clth containing variety detailed option pursue fraudulent preferential uncommercial transaction found pt 5 7b thecorporations act especially 588fa dealing unfair preference 588fb dealing uncommercial transaction 588ff dealing power court make order voidable transaction also power 588fh liquidator recover related entity benefit resulting insolvent transaction opportunity claim director person involved fraudulent unfair uncommercial transaction set div 4 subdiv thecorporations law 15 detailed commentary discussion statutory provision found many place including article professor andrew keay liquidator avoidance uncommercial transaction 1996 70 alj 390 justice mcpherson well known work law company liquidation 4th ed edited professor keay law book co page 430 following ford principle corporation law australia par 27 212 following 16 briefest attention provision made counsel plaintiff present application acknowledging existence submitting difficulty practical implementation present case may arise expiration apparent expiration limitation period whether limitation period fact expired whether answer plea relying limitation period raised deal afternoon 17 support submission court power entertain relief claimed plaintiff action notwithstanding claim made liquidator rosemist holding pty ltd counsel relied decision barrett j equity division supreme court new south wale ingreen v schneller 2002 nswsc 671 31 july 2002 case application made set aside fraudulent preference transfer property respondent mr schneller apparent intention defeat judgment creditor time transaction action brought mr schneller gone bankrupt reliance applicant placed 37a theconveyancing act nsw analogue state 89 1 theproperty law act wa action proceeded trial absence official receiver representative mr schneller although note leave granted provision thebankruptcy actfor plaintiff proceed action bankrupt notwithstanding bankruptcy trial barrett j concluded transaction fraudulent sense designed defeat interest creditor particular applicant honour disposed make declaration effect actual order honour made seems limited 18 benefit full report case afternoon access formal order court reason decision suggest honour completion trial adjourned proceeding making certain direction included one official trustee bankruptcy representative mr schneller served copy reason decision proceeding listed mention later date order hear application joinder official trustee bankruptcy might made either official receiver plaintiff submission precise form order made 19 despite reliance placed decision counsel present applicant seems disposition directed case acknowledges interest trustee bankruptcy sole proprietor interest asset bankrupt capacity party least primarily entitled initiate proceeding set aside voidable transaction whether fraud reason 20 consider liquidator rosemist holding pty ltd present case primarily exclusively entitled challenge impugned transaction property formerly owned legally beneficially rosemist holding pty ltd passed beneficially trustee jabbour family trust including later trustee conclude present application made say made make clear consider sufficiently demonstrated mr khoury interest bring application set aside transaction absence liquidator rosemist holding pty ltd 21 accordingly order make afternoon follows 1 adjournsine diethe application themarevainjunction 2 direct copy writ statement claim summons injunction affidavit mr khoury 3 november 2003 order reason decision served upon liquidator rosemist holding pty ltd 3 grant liberty party apply join liquidator rosemist holding pty ltd proceeding liquidator apply joined initiative 4 order stay proceeding rosemist holding pty ltd liquidation pending outcome application plaintiff leave proceed company liquidation 5 reserve cost afternoon application

Cheltenham Manor Pty Ltd and Greenwood Manor Pty Ltd [2015] FWCA 3076 (5 May 2015).txt

cheltenham manor pty ltd greenwood manor pty ltd 2015 fwca 3076 5 may 2015 2015 fwca 3076fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementcheltenham manor pty ltd greenwood manor pty ltd ag2015 1828 cheltenham manor pty ltd trading cheltenham manor greenwood manor pty ltd trading greenwood manor enterprise agreement 2014aged care industrycommissioner johnsmelbourne 5 may 2015application approval cheltenham manor pty ltd trading cheltenham manor greenwood manor pty ltd trading greenwood manor enterprise agreement 2014 1 9 february 2015 cheltenham manor pty ltd greenwood manor pty ltd applicant made application approval thecheltenham manor pty ltd trading cheltenham manor greenwood manor pty ltd trading greenwood manor enterprise agreement 2014 agreement application made pursuant tos 185of thefair work act 2009 cth act agreement single enterprise agreement 2 agreement lodged within 14 day made 3 applicant provided written undertaking copy undertaking attached annexure commission satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement case australian nursing midwifery federation victorian branch indicated acceptance undertaking 4 subject undertaking referred commission satisfied requirement ofss 186 187 188and190 relevant application approval met 5 australian nursing midwifery federation bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 commission note agreement cover organisation 6 agreement approved accordance withs 54of act agreement operate 12 may 2015 nominal expiry date agreement 31 december 2017 commissionerannexure aprinted authority commonwealth government printer price code ae413789pr567027 var _gaq _gaq _gaq push _setaccount ua 9592794 1 _gaq push _trackpageview function var ga document createelement script ga type text javascript ga async true ga src http document location protocol http ssl http www google analytics com ga j var document getelementsbytagname script 0 parentnode insertbefore ga

AHS17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 316 (5 April 2023).txt

ahs17 v minister immigration citizenship multicultural affair 2023 fca 316 5 april 2023 last updated 11 april 2023federal court australiaahs17 v minister immigration citizenship multicultural affair 2023 fca 316appeal ahs17 v minister immigration anor 2020 fcca 1011file number nsd 554 2020judgment bromwich jdate judgment 5 april 2023date publication 6 april 2023catchwords migration appeal decision federal circuit court australia division 2 federal circuit family court australia dismissing application judicial review decision immigration assessment authority iaa iaa affirmed decision delegate minister refuse appellant safe enterprise visa whether iaa failed consider appellant claim scar would expose authority thereby cause face real chance serious harm whether iaa failed consider whether appellant would risk deriving failure pay fine imposed return sri lanka failed asylum seeker departed country illegally whether primary judge erred failing detect error held appeal dismissed error part primary judgelegislation migration act 1958 cth pt 7aa s 5aaa 473cc 473db 1 473dc 473dc 2 473dc 3 case cited bjo18 v minister immigration citizenship migrant service multicultural affair 2020 fcafc 189 281 fcr 594bvd17 v minister immigration border protection 2019 hca 34 268 clr 29ccq17 v minister immigration border protection 2018 fca 1641cmp19 v minister immigration citizenship migrant service multicultural affair 2022 fca 634dgz16 v minister immigration border protection 2018 fcafc 12 258 fcr 551nabe v minister immigration multicultural indigenous affair 2 2004 fcafc 263 144 fcr 1qjyd v minister immigration citizenship migrant service multicultural affair 2021 fca 962division general divisionregistry new south walesnational practice area administrative constitutional law human rightsnumber paragraph 31date hearing 5 april 2023counsel appellant mr g fostersolicitor appellant sentil solicitorscounsel first respondent mr n swansolicitor first respondent mill oakleycounsel second respondent second respondent filed submitting notice save costsordersnsd 554 2020between ahs17appellantand minister immigration citizenship migrant service multicultural affairsfirst respondentimmigration assessment authoritysecond respondentorder made bromwich jdate order 5 april 2023the court order appeal dismissed appellant pay first respondent cost assessed agreed note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgment delivered ex tempore revised transcript bromwich j appeal order made judge federal circuit court australia division 2 federal circuit family court australia dismissing application judicial review decision immigration assessmentauthority also referred theiaa authority affirmed decision delegate first respondent minister grant appellant safe enterprise visa shev kind protection visa convenient reproduce primary judge summary claim made appellant visa application delegate finding claim authority finding claim certain additional claim omitting peripheral claim subject appeal omitting footnote claim protection 6 applicant stated claim protection number occasion would convenient first set claim applicant made application shev follows applicant tamil hindu born jaffna b applicant halted study always long period disturbance school would regularly close applicant worked store shop assistant father worked different store three four kilometre away would drop applicant work collect work applicant father finished work c june 2006 claymore mine attack jaffna manakora junction applicant father worked sri lankan army sla took applicant father suspicion involved bomb blast beaten result hospitalised applicant attached newspaper article bomb blast applicant claim father name appears applicant father interrogated regularly one occasion applicant father consequently detained sla applicant father hit front applicant applicant released night applicant mother pleaded applicant released e approximately six day later applicant father returned home injured applicant father arranged applicant live different address feared applicant would taken away applicant moved uravakaturai lived relative worked grocery store urukavaturai applicant however regularly interrogated cid criminal investigation department epdp eelam people democratic party sla continuously asked operation ltte liberation tiger tamil eelam applicant area f early 2009 applicant obtained national id card moved colombo worked shop assistant police regularly visited applicant check registered police station first occasion checked applicant taken police station police called applicant police station urkavaturai applicant provided national id card police urkavaturai informed police colombo case file applicant father time applicant father separately taken police station investigated police viewed applicant suspicion come colombo accused applicant involved ltte errand applicant bos fellow village man paid large bribe applicant released g applicant feared staying pettah agent may 2009 secured passport agent cheated applicant later year applicant moved kurungala sic applicant registered authority applicant pretence applicant father different man avoid problem applicant father continuing face problem h early 2012 cid took applicant enquiry asked applicant father applicant said name cid said applicant lying way cid speaking suggested applicant wanted bribe applicant paid bribe released applicant remain one place casual work changing location shop worked month two later informed applicant applicant searched applicant feared safety left sri lanka boat 7 interview delegate shev interview applicant additionally claimed father missing since 2013 applicant uncle confessed applicant real identity questioned authority 2012 applicant attended identification parade part interrogation uravakaturai applicant also claimed 2009 2012 applicant paid bribe police colombo kurunegala shev interview applicant representative provided submission claimed scarring applicant body may expose real chance mistreatment return sri lanka authority 10 matter referred authority applicant representative provided authority written submission submission representative provided purport letter dated 4 december 2016 ex member parliament ex parliamentary member claimed applicant ardent supporter tamil national alliance tna 2010 applicant helping purported ex parliamentary member election campaign applicant helping ltte letter also claimed applicant could live peacefully sri lanka reason left sri lanka letter also stated epdp sla visit applicant house make enquiry whereabouts letter also referred advice given amnesty international foreign minister switzerland intend return sri lanka recently six seven deportee taken custody katunayake airport return sri lanka 13 authority made number finding authority accepted applicant detained father late 2006 released day b accepted 2006 applicant father held six day physically assaulted following number bomb blast applicant father required sign daily assisted authority identify suspect c accept following one day detention late 2006 applicant person adverse interest cid police authority quickly moved urukavaturai evade authority although authority accept applicant moved urukavaturai early 2007 accepted urukavaturai applicant questioned various authority relation involvement ltte activity e accepted moved colombo applicant follow registration protocol consequence applicant viewed suspicion required sign police station daily period time f accept colombo police contacted counterpart urukavaturai discovered applicant father case file shev application applicant said detained jaffna police station urukavaturai police station applicant released jaffna police station three year prior response mother plea g accepted applicant briefly detained colombo police found applicant significant concern colombo police released following payment bribe may 2009 applicant able obtain passport would enable depart country h accepted plausible moved colombo applicant registered accept difficulty registering time pretence son accept applicant arrested tortured around may 2012 j accept applicant left sri lanka 2012 reason claimed applicant applied driver licence june 2012 applicant claimed entry interview 2 january 2013 father commenced arrangement travel five six month departed australia k found applicant oral evidence relation interest sri lankan authority various group october 2009 august 2012 unconvincing vague contradictory information provided shev statement reason authority accept living kurunegala applicant came adverse attention edpd cid sla police suspected link ltte suspected link father 2006 bombing registration household card reason satisfied applicant father missing hiding since 2013 shev application dated march 2016 applicant listed father contact address place jaffna applicant claim shev application father missing andm accept authority seeking applicant home since departure sri lanka 14 light finding authority satisfied applicant face real chance serious harm reasonably foreseeable future past experience sri lanka family link adverse profile sri lankan authority authority satisfied applicant face real chance serious harm reasonably foreseeable future tamil ethnicity 15 next authority considered claim made applicant representative applicant scar constituted additional profile factor put applicant risk returned sri lanka scar would exposed authority authority satisfied applicant would risk harm scar authority relied information applicant obtained scar applicant advanced shev application shev interview claim based scar delegate noting issue scarring examined shev interview delegate noticed visible scarring interview applicant representative mentioning scarring submission provided authority 16 authority made number finding would occur applicant return sri lanka authority accepted applicant departed sri lanka illegally return questioned police charged theimmigrants emigrant actand arrested airport course applicant fingerprinted photographed transported police nearest magistrate court first available opportunity investigation completed responsibility custody applicant would lie court prison applicant might held prison magistrate available applicant fined none matter constitute serious harm event matter applied generally person left sri lanka illegally 17 made finding authority concluded applicant meet definition refugee given 5h 1 act 18 finally authority considered whether applicant met complementary protection criterion provided 36 2 aa act relying significant extent finding already made authority concluded substantial ground believing necessary foreseeable consequence returned australia receiving country real risk applicant suffer significant harmthe appellant raised four ground review original application filed federal circuit court six ground review amended application primary judge refused leave rely upon additional ground review amended application decision challenged accordingly necessary consider original ground judicial review maintained appeal ground 1 2 original application maintained appeal ground 1 2 amended notice appeal amended notice appeal abandon appeal ground 3 9 add appeal ground 10 appeal ground 10 variation appeal ground 1 dealing subject matter taking step convenient deal two appeal ground together appeal ground 1 10 judicial review ground 1 appeal ground 1 10 respectively follows reproducing chapeau ground omitting particular immigration assessment authority iaa failed consider additional profile raised scar body immigration assessment authority iaa failed properly consider appellant claim scar would expose authority thereby cause appellant face real chance short term imprisonment would result mistreatment serious harm systematic discriminatory conduct totality claim made appellant scarring contained submission migration agent interview delegate follows emphasis added applicant returned sri lanka questioned authority returnees particular additional profile factor applicant come light scar body would exposed authority circumstance applicant face real chance short term imprisonment consequence mistreatment whilst imprisoned real chance mistreatment whilst imprisoned supported recent report special rapporteur torture cruel inhuman degrading treatment punishment may 2016 humbly submit mistreatment would serious harm involves systematic discriminatory conduct would reason combined factor applicant tamil ethnicity membership particular social group would essential significant reason harm delegate finding topic page 9 reason scarring applicant bodyin submission applicant agent raised issue scarring applicant body may expose real chance mistreatment upon return sri lanka examined interview scarring visible applicant remained clothed accept plausible applicant degree scarring experience sri lanka b page 16 reason emphasis added example current category person real risk persecution return sri lanka whether detention otherwise identified significant role post conflict tamil separatism journalist human right activist criticised government human right record given evidence lesson learned reconciliation commission government action civil war whose name would appear computerised stop list accessible airport information noted still current country information guidance report sri lanka theunited kingdom home officepublished may 2016 applicant meet profile therefore find would subjected anything administrative screening upon return sri lanka administrative screening due law generally applicable enforced achieve legitimate state objective result real chance harm applicant country report also support conclusion returnees failed asylum seeker including tamil returnees tamil failed asylum seeker returnees body scarring targeted face real chance serious harm c page 17 reason emphasis added information indicate applicant body scar would increase risk suffering significant harm detained short period return sri lanka therefore find harm departing sri lanka illegally applicant may incur return sri lanka significant harm submission made authority behalf appellant mention topic scarring authority dealt topic appellant illegal departure sri lanka status returning asylum seeker issue scar said said would impact upon treatment returned country follows illegal departure returning asylum seeker scarring 34 accept applicant returned sri lanka would failed asylum seeker returned australia also accept applicant would identified sri lankan authority someone departed sri lanka illegally 35 post shev interview submission applicant representative submitted applicant additional profile factor put applicant risk returned sri lanka specifically submitted applicant scar would exposed authority information provided applicant obtained scar note applicant advance claim nature shev statement shev interview decision 15 november 2016 delegate noted issue scarring examined shev interview noticed visible scarring interview iaa submission silent issue scarring satisfied applicant risk harm scar 36 regard country information referred material particular 2015 dfat report satisfied real chance applicant would harmed sri lankan authority virtue return failed asylum seeker particular note dfat report thousand tamil returned sri lanka since end sri lankan civil war including australia although reported instance returnees harmed information indicates people substantial link ltte suspected committing serious crime satisfied applicant person kind profile reason satisfied applicant face real chance serious harm due failed asylum seeker australia reasonably foreseeable future return sri lanka 37 sri lankan returnees including australia questioned police return illegal departure suspected charged immigrant emigrant act iaea dfat understands case individual arrested colombo international airport part process returnees fingerprinted photographed transported police nearest magistrate court first available opportunity investigation completed custody responsibility individual shift court prison service court make determination next step individual arrested remain police custody cid airport office 24 hour magistrate available time example weekend public holiday charged may held nearby prison dfat rates14 general prison condition sri lanka meeting international standard lack resource overcrowding poor sanitary condition 38 accept applicant departed sri lanka without passport may found committed offence iaea country information dfat indicates penalty applicable passenger illegally departing context include five year imprisonment fine slr200 000 dfat advises practice penalty applied discretionary basis usually form fine particular advice sri lanka attorney general department dfat returnee left sri lanka unlawfully simple passenger given custodial sentence breach iaea fine common amount vary depending circumstance case typically paid instalment 39 return sri lanka find applicant would charged fined iaea released event applicant elected plead guilty offence iaea would either granted bail personal surety family member act guarantor suggestion applicant anything ordinary illegal departee sri lanka context find would face chance imprisonment highly likely fined dfat assessed risk mistreatment people suspected offence iaea low 18 noted applicant may subjected poor prison condition short period detention prison condition applicant may subject constitute serious harm defined act satisfied applicant face real chance serious harm brief time spent detention evidence find imposition fine surety guarantee would constitute serious harm considered possibility custodial sentence country information indicates custodial sentence levelled low profile illegal departees context significant number sri lankan national returned sri lanka absence profile would elevate penalty applicant would face find real chance applicant would face imprisonment 40 also satisfied provision penalty iaea law general application apply sri lankans equally law discriminatory term country information indicates law applied discriminatory manner selectively enforced accordingly satisfied process penalty applicant may face return sri lanka illegal departure would constitute persecution purpose act light find applicant face real chance serious harm sri lankan authority due illegal departure travel australia reason primary judge dealt topic follows 21 ground may taken make three claim one authority consider applicant claim feared harm scarring accept claim already noted paragraph 15 reason authority referred claim determined adversely applicant reason gave 22 second claim ground might considered making authority ought accepted delegate finding prepared accept applicant scarring applicant intends claim accept review authority required undertake 473db de novo review consideration authority whether material applicant meet criterion grant shev 23 third claim ground might considered making authority obtained information scarring claim intended made also accept applicant place minister material intended rely support claim protection applicant elected make claim feared harm scarring displaying delegate scarring subsequently providing delegate photograph scarring providing evidence origin scarring bare assertion representative shev interview nothing material authority ought reasonably obliged authority consider whether exercise discretion 473dc act obtain information relating applicant scarring appellant submits relation ground 1 reference authority information provided obtained scar said irrelevant claim hehadscarring could expose sri lankan authority pause note never explained scar would come attention sri lankan authority given visible delegate appellant relies upon delegate found plausible degree scarring previous experience sri lanka therefore submits authority failed properly review delegate decision required bys 473ccof themigration act 1958 cth note appellant grapple reference scarring delegate reason reproduced may explain favourable assumption scarring made first place term asserted error part primary judge appellant submits honour found authority failed properly consider claim accepted delegate finding prepared accept scarring alternatively obtained information scarring constituting jurisdictional error relation appeal ground 10 appellant build upon submission relation ground 1 submits authority aware claim scarring accepted plausible delegate information scar observed shev interview b also aware claimed consequence serious c authority get new information pursuant tos 473dcof themigration actconcerning nature extent scar detail obtained matter may considered relevant declined consider commented upon clearly relevant decision topic 35 appellant therefore submits existence scarring would material decision made instead coming decision authority took account irrelevant matter considering getting new information committed jurisdictional error could properly review delegate decision without knowing scarring finding topic primary judge characterised appellant wrong unreasonable unable accept reasoning authority involved taking account anything irrelevant contrary circumstance scarring obvious point consider accept impugned observation made primary judge either wrong unreasonable minister submits primary judge observed 21 authority 35 plainly consider whether appellant risk harm scar satisfied b authority gave rational reasonable explanation lack satisfaction including substance claim raised post interview submission delegate statement claim interview delegate delegate interview noticed visible scarring c authority conclusion surprising nothing bare assertion provided appellant primary judge observed 23 appellant chose display scar delegate provide photograph delegate authority provide evidence origin making bare assertion e appellant put forward sufficiently detailed claim supporting evidence order satisfy authority citings 5aaaof themigration actandcmp19 v minister immigration citizenship migrant service multicultural affair 2022 fca 634per yates j 77 simply despite represented migration agent throughout f insofar appellant asserts authority failed properly review delegate decision without substance primary judge observed 22 authority conducted de novoreview required satisfied risk harm g insofar authority might reasoned differently delegate nothing turn citingdgz16 v minister immigration border protection 2018 fcafc 12 258 fcr 551at 72 full court reef robertson rangiah jj found authority permitted depart finding made delegate without alerting appellant none point clearly set minister written submission even really addressed appellant let alone met minister submits relation ground 10 insofar appellant contends authority ought obtained new information relation issue scarring jurisdictional error established even understood alleging legally unreasonable failure exercise power in 473dc 3 themigration act identification exactly new information obtained appellant provide minister relies upon observation made inbjo18 v minister immigration citizenship migrant service multicultural affair 2020 fcafc 189 281 fcr 594at 173 snaden j callaghan j agreeing issue whether course logically rationally available authority circumstance get consider new information visa applicant minister also submits relation ground 10 regard must nature thepart 7aastatutory scheme default position apart 7aareview completed paper without accepting requesting new information pers 473db 1 citingccq17 v minister immigration border protection 2018 fca 1641per thawley j 48 b authoritycouldhave taken course obtaining new information appellant scarring especially circumstance appellant chose provide scant information scarring delegate chose provide nothing authority duty obligation see 473dc 2 completeness minister also submits appellant assertion authority considered whether exercise power in 473dc 3 rejected whether authority failed consider exercising power question fact upon appellant bear onus proof minister submits appellant state basis purport discharge onus none apparent noting authority required give reason exercise non exercise procedural power in 473dcof themigration act minister relies upon observation high court inbvd17v minister immigration border protection 2019 hca 34 268 clr 29per kiefel cj bell gageler keane nettle gordon jj 16 40 mere failure authority mention procedural power give reason exercise non exercise cannot support drawing inference exercise discretion considered minister also relies uponqjyd v minister immigration citizenship migrant service multicultural affair 2021 fca 962per mckerracher j 48 applying passage inbvd17 appellant argument error part primary judge failing detect jurisdictional error part authority weak non existent whereas minister compelling accepted given lack detail claim made scarring finding delegate topic lack issue raised submission made review behalf appellant nothing required authority term consideration foundation error seeking information made let alone legal unreasonableness basis finding jurisdictional error argument authority accepted conclusion reached delegate topic scarring highly selective delegate effect willing assume appellant scarring asserted post interview submission despite visible even mentioned interview context scarring alone identified country information basis singled sri lankan authority appellant make case including way advancing information authority asking taken account authority make case let alone upon slender apparently inconsequential basis satisfied error part authority let alone jurisdictional error discern error part primary judge follows ground appeal must fail appeal ground 2 judicial review ground 2 appeal ground follows reproducing chapeau omitting particular iaa failed consider whether would risk failed raise fine departed illegally sri lanka ground turn finding authority 37 40 reproduced primary judge reasoning follows 26 ground claim authority failed consider risk harm applicant would face failed raise fine authority satisfied would probably imposed applicant left sri lanka illegally ground implies premise authority satisfied applicant would suffer serious significant harm return sri lanka applicant would fined would able pay fine however authority found authority found imposition fine surety guarantee would constitute serious harm word finding applicant fined would constitute serious harm ground 2 turn upon imposition fine rather upon would happen appellant pay fine appellant submits light accepted claim must possible would face harm past issue sri lankan authority event gaoled due non payment fine said something arises case subject finding authority appellant contends authority committed jurisdictional error constructively failing deal claim arose case primary judge failed detect error minister response simple compelling one despite represented throughout migration agent appellant never made claim would able pay fine imposed upon noting authority also found fine could typically paid instalment see 38 reproduced minister correctly point obligation consider claim made citingnabe v minister immigration multicultural indigenous affair 2 2004 fcafc 263 144 fcr 1per black cj french selway jj 62 minister also submits issue fine imposed addressed delegate making even inexplicable question appellant unable pay fine raised appellant submission authority delegate said page 17 reason emphasis added given applicant would detained short period time detained noting likely punishment pay fine satisfied claimed harm constitute significant harm defined insection 36 2a act coming finding also considered applicant particular personal vulnerability would result short detention return constituting cruel inhuman degrading treatment punishment ground appeal devoid merit must fail conclusionas three ground appeal failed appeal must dismissed cost certify preceding thirty one 31 numbered paragraph true copy reason judgment honourable justice bromwich associate dated 6 april 2023

O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 (10 September 2015).txt

loughlin v linfox australia pty ltd 2015 fca 1000 10 september 2015 last updated 11 september 2015federal court australiao loughlin v linfox australia pty ltd 2015 fca 1000citation loughlin v linfox australia pty ltd 2015 fca 1000appeal loughlin linfox australia pty ltd 2014 aata 577parties kym loughlin v linfox australia pty ltd comcarefile number vid 540 2014judge bromberg jdate judgment 10 september 2015catchwords worker compensation appeal decision aat affirming employer decision revoke acceptance liability injury substitute denial liability basis injury sustained course employment aat determined thatcomcare v pvyw 2013 hca 41 2013 250 clr 246applied whether injury employee occurred interval overall period work whetherpvywestablished different organizing principle tohatzimanolis v ani corporation limited 1992 hca 21 1992 173 clr 473so hatzimanolis principle longer limited injury sustained interval period overall work whether aat found employee injured interval contrary found employee interval pvywdid establish different organizing principle absence finding injury sustained interval overall period work aat erred applying thehatzimanolisprinciple clarified inpvyw conclude injury sustained course employment appeal allowedlegislation administrative appeal tribunal act 1975 cth s 44 1 44 5 44 7 safety rehabilitation compensation act 1988 cth s 5a 1 b 60 62 64 1 case cited australian leisure hospitality group pty ltd v simon blackwood worker compensation regulator campbell 2014 qirc 105bill williams pty limited v williams 1972 hca 23 1972 126 clr 146comcare v pvyw 2012 fcafc 181 2012 207 fcr 150comcare v pvyw 2013 hca 41 2013 250 clr 246gregory v comcare australia 1997 72 fcr 196hatzimanolis v ani corporation limited 1992 hca 21 1992 173 clr 473henderson v commissioner railway western australia 1937 hca 67 1937 58 clr 281kavanagh v commonwealth 1960 hca 25 1960 103 clr 547lee v transpacific industry pty ltd 2013 136 ald 652minister immigration multicultural affair v wang 2003 215 clr 518o loughlin v linfox australia pty ltd 2014 aata 577peacock v repatriation commission 2007 fcafc 156 2007 161 fcr 256repatriation commission v nation 1995 fca 1277 1995 57 fcr 25rigoli v commissioner taxation cth 2014 fcafc 29 2014 141 ald 529stateships v lawson 2009 fca 59 2009 107 ald 42whittingham v commissioner railway wa 1931 hca 49 1931 46 clr 22date hearing 18 may 2015place melbournedivision general divisioncategory catchwordsnumber paragraph 71counsel applicant mr r gorton qc mr careysolicitor applicant maurice blackburn lawyerscounsel first respondent mr p hank qc m e fordsolicitor first respondent moray agnewcounsel second respondent mr bergersolicitor second respondent comcare legal service group inhouse lawyer federal court australiavictoria district registrygeneral divisionvid 540 2014on appeal administrative appeal tribunalbetween kym loughlinapplicantand linfox australia pty ltdfirst respondentcomcaresecond respondentjudge bromberg jdate order 10 september 2015where made melbournethe court order decision administrative appeal tribunal made 20 august 2014 proceeding 2014 0846 affirm decision review set aside 18 september 2015 applicant file serve submission whether order made limiting scope remittal case aat 25 september 2015 first respondent file serve submission response first respondent pay applicant cost appeal note entry order dealt rule 39 32 thefederal court rule 2011 federal court australiavictoria district registrygeneral divisionvid 540 2014on appeal administrative appeal tribunalbetween kym loughlinapplicantand linfox australia pty ltdfirst respondentcomcaresecond respondentjudge bromberg jdate 10 september 2015place melbournereasons judgmentthe applicant mr loughlin employed first respondent linfox tanker driver delivering fuel petrol station 7 september 2010 mr loughlin sustained injury face knee violent altercation another man mr 4 00 day mr loughlin commenced work around 10 10 arrived site second delivery mobil service station pascoe vale established perimeter placing cone around working area around 11 00 finished discharging fuel hose tanker storage tank still draining petrol fume emitted woman drove car service station forecourt honking horn mr came service station workshop threw two object car struck windscreen window fist mr loughlin intervened administrative appeal tribunal aat factual finding mr loughlin involvement described comprising six intervention follows mr loughlin said mr hey cut first intervention mr desisted started walk back towards workshop said mr loughlin shut fuck mind business law side ii mr loughlin said mr mate settle second intervention whereupon mr turned walk towards mr loughlin said keep mind business mr turned towards workshop iii mr loughlin said mr speak like piece shit third intervention mr turned back mr loughlin said piece shit iv mr loughlin pointing finger mr said talk like fourth intervention mr turned away mr loughlin walked 5 metre turned walked toward mr loughlin still pointing finger mr fifth intervention within striking range mr punched mr loughlin face several time became unbalanced fell ground mr loughlin stood mr shaped though going throw punch sixth intervention mr kicked mr loughlin left knee punch mr loughlin face kick knee caused injury mr loughlin lodged claim worker compensation 22 september 2010 determination issued determination accepting liability respect injury 7 january 2014 agent linfox issued reconsideration determination motion whereby revoked determination substituted decision deny liability respect mr loughlin injury revocation confirmed linfox written submission revocation retrospective effect linfox suggest mr loughlin obliged repay amount already received mr loughlin entitled seek merit review revocation aat mr loughlin gave oral evidence written submission made 20 august 2014 aat affirmed revocation decision published aso loughlin v linfox australia pty ltd 2014 aata 577 appeal appeal aat decision application second respondent comcare joined action pursuant tos 108c 8 b thesafety rehabilitation compensation act 1988 cth src act unstated assumption inherent aat disposition mr loughlin claim controversial linfox determining authority within meaning 60 src act thus 62 src act entitled reconsider determination motion reconsideration reviewable decision within meaning 60 src act 64 1 src act mr loughlin entitled apply aat review reviewable decision pursuant tos 44 1 theadministrative appeal tribunal act 1975 cth aat act party proceeding aat may appeal court question law mr loughlin pressed first ground appeal issue question law raised question whether aat correctly applied statutory test 5a 1 b src act order determine whether mr loughlin injury arose course employment section 5a 1 b src act defines injury include injury disease suffered employee physical mental injury arising course employee employment mr loughlin ground appeal considering whether injury sustained injury arising course employment aat asked wrong question namely whether respondent induced encouraged mr loughlin engage activity time injury occurred thereby wrongly imposed requirement injury arisen course mr loughlin employment thing linfox encouraged injury occurred ground appeal challenged approach aat recorded 25 decision tribunal accepts time injury sustained mr loughlin engaged service employer hose still connected underground tank service station process delivery fuel completed however tribunal agrees respondent majority inpvywheld injury occurred course employment employee must thing employer encouraged employee injury occurred therefore question whether respondent induced encouraged mr loughlin engage activity time injury occurred aat linfox contended loughlin injury occurred whilst engaged activity submitted whether injury occurred course mr loughlin employment determined following question articulated majority incomcare v pvyw 2013 hca 41 2013 250 clr 246at 38 employer induce encourage employee engage activity thepvywquestion apparent 25 aat reason aat accepted submission applied thepvywquestion determination whether mr loughlin injury occurred course employment fundamental issue raised appeal whether thepvywquestion applicable circumstance injury occurred mr loughlin case aat erroneously applied question applicable injury suffered employee described majority inhatzimanolis v ani corporation limited 1992 hca 21 1992 173 clr 473at 484 interval interlude overall period episode work interval various point reason necessary distinguish kind interval interval two distinct period work interval used uncapitalised reference interval generally including kind interval elsewhere uncapitalised full description nature interval given mr loughlin case thepvywquestion part restatement principle formulated inhatzimanolisfor determining whether injury sustained whilst employee engaged activity interval injury occurred course employment thus question applicable determining whether mr loughlin injury occurred course employment injury occur interval occurred whilst period work issue whether aat found mr loughlin injury sustained whilst period work alternatively interval mr loughlin contended aat found injury sustained whilst mr loughlin period work linfox primary submission aat position put unnecessary finding made injury occurred interval applicability thepvywquestion limited injury sustained interval majority inpvywdid simply restate principle formulated inhatzimanolis articulated test applicable determination whether injury occurred course employment generally merely interval alternative notice contention linfox contended aat must necessarily concluded mr loughlin injury suffered whilst engaged activity interval comcare supported mr loughlin contention thepvywquestion applicable injury suffered interval comcare otherwise engage issue raised appeal issue raised following question deal turn principle formulated inhatzimanolis ii applicability thepvywquestion limited injury sustained interval iii aat find mr loughlin injury sustained interval hatzimanolis principlean employee resided new south wale obtained position employer mt newman remote mining town pilbara western australia told would work area mt newman three month would required work sunday third sunday employee commenced work employee joined employer organised trip see scenic wittenoom gorge whilst journey employer provided vehicle overturned employee seriously injured employee claimed worker compensation issue high court inhatzimanoliswas whether employee injury sustained course employment considering issue majority mason cj deane dawson mchugh jj recognised 478 course employment employee identical period employment worker work person performs informed observation made dixon j inwhittingham v commissioner railway wa 1931 hca 49 1931 46 clr 22at 29 majority stated course employment covered actual work performed employee long recognised extended incident service majority observed 478 479 whether something done incident service conclusion rather organizing principle would assistance determining whether injury sustained actual work nevertheless sustained course employment accordingly discussion authority majority formulated principle hatzimanolisprinciple 484 accordingly accepted interval interlude within overall period episode work occurs within course employment expressly impliedly employer induced encouraged employee spend interval interlude particular place particular way furthermore injury sustained interval within course employment occurred place employee engaged activity unless employee guilty gross misconduct taking outside course employment determining whether injury occurred course employment regard must always general nature term circumstance employment merely circumstance particular occasion injury employee arisen citation omitted necessary explain majority meant interval interlude within overall period episode work meaning apparent discussion 483 majority spoke interlude interval break occurring two period actual work honour recognised interval two period work occur within discrete working period occurring employee daily starting finishing time tea break lunch break given example interlude interval occurring within overall work period also acknowledged interval two period work could break end one working day commencement next interval would ordinarily perceived occurring course employment however majority recognised case employee required embark upon undertaking purpose work circumstance notwithstanding extends number daily period actual work whole period undertaking constitutes overall period episode work interval two day work may occur within overall period episode work applicability pvyw question limited injury sustained interval pvyw claimed compensation facial injury sustained whilst engaged sexual activity injury occurred light fitting displaced struck employee sustained room motel booked pvyw semployer accommodate overnight stay could visit regional office following day carry work required employer pvyw claim rejected comcare decision affirmed aat single judge court upheld employee appeal comcare appeal dismissed full court comcare v pvyw 2012 fcafc 181 2012 207 fcr 150 comcare successfully appealed high court stage litigation accepted thehatzimanolisprinciple applicable injury sustained overall period work issue employee injured interval comcare submit thathatzimanoliswas incorrect issue high court whether full court misinterpreted thehatzimanolisprinciple majority french cj hayne crennan kiefel jj found full court dissentients bell gageler jj found 7 majority expressed question appeal follows although respondent injured whilst engaged activity seek maintain approach full court relevant inquiry whether induced encouraged employer engage activity disputed answer inquiry would approach respondent contends inquiry arise irrelevant meet condition alternative circumstance stated inhatzimanolis namely required present place injured majority rejected thathatzimanolisstood proposition absent gross misconduct employer requires employee present particular place away usual place work liable injury employee suffers whilst present 9 majority reasoned hatzimanoliswould make liability injury dependent upon simply occurred interval majority considered result correct would required reconsideration ofhatzimanolis reconsideration embarked upon majority said 11 hatzimanolisis understood requiring result 14 majority expressly stated case require reformulation thehatzimanolisprinciple acknowledged explication principle light instant factual situation may required majority considered reasoning inhatzimanolisand principle stated thehatzimanolisprinciple set 31 34 majority explained court inhatzimanolishad sought said important identify howhatzimanolissought define circumstance extent employer liability compensation hatzimanolissought provide legal justification injury occurred period actual work regarded occurring course employee employment characterising interval reference employer inducement encouragement employer sliability circumstancesdepends upon employer induced encouraged employee hatzimanolisdid seek extend employer liability beyond emphasis added important passage majority reasoning 38 called thepvywquestion posed manner thehatzimanolisprinciple applied explained heading applying hatzimanolis principle majority said starting point applying said hatzimanolis order determine whether injury suffered course employment factual finding employee suffered injury whilst engaged actual work next inquiry employee injured principle inhatzimanolisto apply employee must either engaged activity present place injury occurred essential inquiry injury brought case injury occurred reference place commonly occurred employee engaged activity one circumstance present question arising thehatzimanolisprinciple becomes relevant activity engaged time injury question employer induce encourage employee engage activity injury occurs reference place question employer induce encourage employee answer relevant question affirmative injury occurred course employment emphasis added apparent order relevant inquiry set starting point factual finding injury suffered employee whilst engaged actual work thepvywquestion relevant inquiry anterior inquiry first satisfied absence finding injury sustained interval thepvywquestion arise recognise majority expressed gateway different term whilst engaged actual work expressed inhatzimanolis interval overall period work read context formulation merely one variety short hand expression majority used refer interval interlude within overall period episode work example interval period actual work 26 27 period actual work 34 whilst engaged actual work 38 interval period work 60 interval period actual work 61 absence contest nature scope interval expressed inhatzimanolisand indication majority concerned reformulate concept doubt identifying starting point application thehatzimanolisprinciple majority stated injury question must sustained interval senior counsel linfox submitted first sentence 38 majority inpvywwas presenting different organizing principle laid inhatzimanolis linfox submission two stage test first stage focused upon word actual work linfox said word ought read effect carrying duty carrying incidental duty employee carrying duty something incidental thereto employee engaged actual work within meaning phrase first sentence 38 linfox submission employee therefore course employment necessary go question inducement encouragement set last sentence 38 ofpvyw thepvywquestion second step reached employee engaged actual work thepvywquestion submission put thus senior counsel linfox way looking fact ask looking injury suffered employee engaged actual work answer course employment unless find encouragement inducement relation activity relation location alternatively expressed proposition injury one course employment injury occurs employee carrying duty employment something incidental duty assuming employee neither injury occurs employee something induced encouraged employer call thetwo stage submission elsewhere oral submission linfox described induce encourage test creating third connection category possibility first actual duty second something incidental thereto third something induced encouraged employer within one three category effect employee course employment think necessary record two stage submission submission linfox put aat two stage submission contemplates least two aspect first meaning word actual work first sentence 38 inpvywis central importance second one get induce encourage question unless one first rule actual work meaning ordinary duty thing incidental thereto aat word actual work focus linfox submission first sentence 38 submitted contained new organizing principle omitted quotation frompvywin linfox written submission 16 referred linfox submitted aat two stage analysis one majority proposition pvyw confined injury suffered period actual work 18 basis single question asked present case 18 1 mr loughlin thing linfox encouraged result injury occurred 18 2 answer plainly linfox encourage mr loughlin engage activity confronting seeking correct behaviour mr continuing confrontation injury occurred engaged activity contrary submission advanced behalf mr loughlin reasoning high court majority pvyw confined injury sustained outside ordinary working period confusion way linfox advanced case orally put two stage submission outlined necessarily requires determination whether employee engaged ordinary duty something incidental thereto linfox would actual work approach linfox invited aat adopt approach aat adopted approach question necessary answer whether particular action presence particular location induced encouraged particular necessary address whether employee interval cannot see analysis contemplated two stage submission conducted without ascertaining whether employee interval particular employee interval instead carrying actual duty linfox submitted orally inducement encouragement irrelevant one might think therefore approach put accepted aat proponent defender itswritten submission linfox said various place e g 32 1 majority inpvywdid limit principle inhatzimanolisto interlude interval within overall period work word effect cannot reconciled two stage submission elsewhere linfox written submission said thing keeping two stage submission 24 w employee suffers injury whilst engaged actual work question would employee injured must temporal connection employment clear whether linfox argues one question put aat two per two stage submission ultimately persuaded linfox two approach wrong approach already explained contrathe approach put accepted aat hatzimanolisandpvywapply injury suffered interval thus approach say unnecessary determine whether employee interval wrong approach necessary also explain linfox two stage submission wrong approach number difficulty first cannot reconciled withhatzimanolisor case went beforehatzimanolis second related strained indeed view unavailable reading majority reason inpvyw important understand whathatzimanoliswas addressing concerned employee course employment stated inhatzimanolis course employment covered actual work also natural incident connected class work 478 inwhittinghamat 29 dixon j said order course employment accident must happen employee something part incidental service interpolate note meaning linfox two stage submission attributed phrase actual work another way phrasing per fullager j inkavanagh v commonwealth 1960 hca 25 1960 103 clr 547at 559 worker engaged work employed something incidental work number case considered second aspect test something incidental work inwhittingham dixon j said 29 incidental worker work depends upon sufficiency connection employment thing done employee matter degree time place circumstance well practice must considered together condition employment stephen j identified inbill williams pty limited v williams 1972 hca 23 1972 126 clr 146at 159 consideration factor determines whether worker sustained injury engaged something incidental work apparent said 478 9 ofhatzimanolisthat majority setting organizing principle determiningwhen context interval injury sustained something incidental employment incidence service however principle application determine whether injury sustained course employment conclusion tribunal concludes worker sustained injury something incidental employment record result must reached consciously unconsciously reference principle standard lead result furthermore matter dixon j referred inwhittinghammust examined purpose determining whether injury sustained course employment matter automatically determine question without assistance organizing principle tribunal fact cannot know determinative majority went identify number subset overarching concept incidental employment observed 479 australian court almost invariably applied test formulated dixon j inhenderson v commissioner railway western australia 1937 hca 67 1937 58 clr 281when called upon determine whether injury occurringduring interval workwas sustained course employment emphasis added stated 483 injury readily seen occurring course employment sustained interval interlude occurringwithin overall period episode workthan sustained theinterval two discrete period work emphasis added gave example two kind interval context laid 484 organizing principle set establish accordingly accepted thatan interval interlude within overall period episode workoccurs within course employment expressly impliedly employer induced encouraged employee spend interval interlude particular place particular way hatzimanoliswas thus concerned quite limited area course employment comprises duty thing incidental thereto hatzimanoliswas concerned latter thing incidental thereto include thing occurring interval two period work interval within overall period work hatzimanoliswas concerned latter hatzimanolissaid test set 484 fulfilled injury sustained interval within overall period work sustained something incidental employee work therefore course employment expose difficulty first stage linfox two stage submission linfox read actual work first sentence 38 inpvywas meaning dixon j set inwhittingham e duty thing incidental duty say one get question inducement encouragement one ruled actual work ruled duty thing incidental thereto buthatzimanolis applied inducement encouragement test concerned precisely whether somethingwas incidental thereto linfox correct andpvywstands principle one arrives inducement encouragement incidental thereto ruled radical departure fromhatzimanolisand previous authority would raise number difficult question linfox answer ashatzimanolisis concerned working something incidental duty requires induce encourage test applied induce encourage test applied incidental ruled ishatzimanolisoverruled far establishes induce encourage test working something incidental duty case interval overall episode work concerned linfox second step application induce encourage test never serious work answer thehatzimanolis induce encourage test example action encouraged action occurred course employment second stage arrived answer thehatzimanolistest action wasnotinduced encouraged answer inevitably reached linfox second stage indeed far linfox address effect two stage submission seems two stage three category formulation would anything addto way something done might course employment first two category actual duty thing incidental thereto would include case already covered byhatzimanolis senior counsel linfox acknowledged leaf induce encourage test linfox second stage third category correct required fulfil test employer encouraged action example employer encouraged employee visit doctor working hour visiting employee injured injury would course employment choose example deliberately show linfox third category would include encouragement inducement operating regard interval two period work precisely example given inhatzimanolis 483 one employee would ordinarilynotbe course employment brings second reason reject linfox two stage submission persuaded majority inpvyw heading applying thehatzimanolisprinciple would set establish different organizing principle still le persuaded organizing principle thereby established linfox submission would constitute marked departure earlier decided case would raise answer number question concerning one would treathatzimanolisand earlier decided case especially unpersuaded appears judgment inpvyw party submitted new organizing principle required argument question appears majority intent would said plainly inhatzimanolis would explained shortcoming existing organizing principle would explained new organizing principle differed old would explained older authority thenceforth understood event majority none thing fact expressly disavowed intention reformulatehatzimanolis 14 time suggest departing expanding upon laid inhatzimanolis returned conclusion whathatzimanolishad decided disposed case court follows accept thatpvywcontains statement new organizing principle accept whilst engaged actual work first sentence 38 inpvywis read meaning whilst engaged ordinary duty something incidental thereto rather said consider phrase another way saying interval overall period work accept induce encourage formulation last sentence 38 inpvywestablishes second stage third category rather consider inhatzimanolis describes injury sustained interval overall period work one sustained course employment consider organizing principle remains set inhatzimanolis clarified inpvyw lastly subject comcare urged court follow judgment siopis j inlee v transpacific industry pty ltd 2013 136 ald 652 leewas injured whilst journey visit doctor aat held lee employer encouraged induced attend appointment doctor also found lee injured interval two distinct period work applyinghatzimanolisand observation cooper j ingregory v comcare australia 1997 72 fcr 196at 201 202 applicability thehatzimanolisprinciple injury occurring two distinct period work aat determined injury occurred course employment satisfied temporal connection established journey undertaken leeand employment employer subsequent aat decision judgment inpvywwas delivered siopis j took account appeal honour 41 held aat failed embark upon inquiry identified 38 ofpvyw siopis j reasoned aat distracted question characterisation interval injury occurred honour approach 41 47 seems based proposition post pvyw thehatzimanolisprinciple also applicable injury occurring interval two distinct period work comcare contested correctness view urged conclude clearly wrong followed however fact concern injury occurring interval two distinct period work applicability thehatzimanolisprinciple interval kind correctness ofleedoes arise neither linfox mr loughlin relied upon circumstance whilst room thinking siopis j took different view intended meaning first sentence 38 ofpvywto prefer need ought consider correctness oflee aat find mr loughlin injury sustained interval heading injury arise course mr loughlin employment aat set competing contention party conclusion question commenced observing inpvyw high court considered question whether injury sustained employee non work activity outside working period considered arisen course employment aat noted whether injury occurred outside work work period also issue inaustralian leisure hospitality group pty ltd v simon blackwood worker compensation regulator campbell 2014 qirc 105 aat recorded mr loughlin submission injury sustained outside work period decision majority inpvywdid apply mr loughlin circumstance see 21 22 reason aat turned linfox submission reliance upon majority stated inpvyw previously stated apparent linfox submission aat linfox contention majority inpvywaddressed wider issue confined injury sustained outside ordinary working period based selective reading particular passage majority judgment inpvyw passage reproduced aat reason 22 follows employer inducement encouragement employee present particular place engage particular activity effectively source employer liability circumstance injury must correspond employer induced encouraged employee injury course employment employee must thing employer encouraged employee injury occurs thus circumstance injury involve employee engaging activity question whether employer induced encouraged employee activity engaged time injury question employer induce encourage employee engage activity injury occurs reference place question employer induce encourage employee answer relevant question affirmative injury occurred course employment passage taken context starkly demonstrated passage selected 38 ofpvyw selected passage omits anterior inquiry majority inpvywoutlined 38 requisite inquiry including starting point finding made injury sustained interval set passage frompvyw aat 23 recounted linfox contention majority proposition confined injury suffered period actual work question asked proceeding whether mr loughlin thing respondent encouraged result injury occurred 24 aat recorded linfox alternative submission majority proposition inpvywis limited case injury occurring period actual work mr loughlin injury suffered short interval employment pursued confrontation continued assailant walked away point reason aat recorded two issue put contest party question whether mr loughlin injury arose course employment first whether pvyw majority proposition confined injury suffered period actual work second whether mr loughlin injury sustained outside work period issue resolved next paragraph reason 25 set 10 first sentence 25 aat conclusion second question second third sentence 25 encompass aat conclusion first question word 25 aat accepted mr loughlin contention injured whilst period work rather interval regarded little moment aat accepted linfox contention thepvywquestion applicable event senior counsel mr loughlin characterised 25 aat reason finding mr loughlin course employment conversely senior counsel linfox characterised harmless reference undisputed fact mr loughlin employed linfox reject submission would wrong opinion read first sentence 25 finding mr loughlin course employment ultimate question finding would render unnecessary aat approach topvyw everything followed concerning inducement encouragement would also wrong number reason read saying nothing mr loughlin employ linfox first would odd thing aat say accepted mr loughlin employed linfoxbecausethe hose still connected underground tank anon sequitur one would say example accept x employed bricklayer 11 00 day question laying brick would mean x 11 00 laying brick instead coffee break would x employed bricklayer second unusual wording say aat accepts mr loughlin employed linfox fact contest third harmless finding mr loughlin employed linfox commencement 25 odd place make finding would usual include front decision indeedfourth find 1 mr loughlin commenced working linfox mid 2010 september 2010 delivering fuel service station would appear need another comparable finding later fifth finally said mr loughlin employed linfox would make sense aat commence next sentence however however beginning sentence used way qualification preceding sentence clause whole previous sentence harmless finding mr loughlin employed linfox next sentence would phrased way qualification correct interpretation first sentence 25 aat found mr loughlin interval instead engaged duty reached conclusion also considered linfox alternative contention raised notice contention contended ground 2 notice appeal principle articulated majority high court incomcare v pvyw 2013 hca 41applies case injury occurring interval period actual work tribunal finding fact recorded paragraph 26 29 tribunal reason tribunal must necessarily concluded consistently respondent submission noted paragraph 24 tribunal reason injury suffered applicant suffered applicant engaged activity namely confrontation person mr service station b applicant suffered injury interval period applicant employment interval applicant chose take employment duty order pursue confrontation mr service station c respondent induce encourage applicant engage activity confronting mr therefore applicant injury occur course employment withins 5a 1 b thesafety rehabilitation compensation act 1988 issue finding fact recorded 26 29 support conclusion contended c finding made paragraph however support contention aat came conclusion b mr loughlin injured interval paragraph 26 29 aat reason framed nature issue address informed question posed end 25 thus therefore question whether respondent induced encouraged mr loughlin engage activity time injury occurred paragraph 26 29 answer question confirmed conclusion 29 aat said circumstance mr loughlin injured first intervention engaged activity confronting assailant continuing confrontation initiating intervention none induced encouraged respondent emphasis added read proper context apparent aat reason 26 29 addressing issue raised b whether mr loughlin injury suffered interval period work addressed whether activity mr loughlin engaged induced encouraged linfox consistent conclusion answer whether injury sustained interval already given aat first sentence 25 aat reason conclusionit follows absence finding mr loughlin injury sustained interval overall period work aat posed answered thepvywquestion wrong reason given absence finding mr loughlinwas injured interval thepvywquestion applicable mr loughlin circumstance aat wrong ask question determining whether mr loughlin injury occurred course employment mr loughlin therefore succeed ground appeal contrary conclusion pvywdid establish new organizing principle term linfox two stage submission aat would also erred fundamental linfox two stage submission induce encourage question could asked necessary exclude employee engaged actual work linfox read meaning ordinary duty thing incidental thereto finding mr loughlin engaged neither ordinary duty thing incidental thereto contrary first sentence 25 aat decision finding mr loughlin carrying duty something incidental thereto dispositionit follows conclusion make order setting aside aat decision affirm revocation party position question relief entirely clear mr loughlin belated suggestion made submission reply make declaration injury arose course employment must rejected understand suggested course founded upon mr loughlin submission rejected aat made finding effect court empowered make finding fact finding inconsistent finding made aat 44 7 aat act senior counsel mr loughlin accepted court rejected aat made factual finding injury arose course mr loughlin employment case remitted redetermination remains however final question whether order ought made limiting scope remittal remittal may confined basis large repatriation commission v nation 1995 fca 1277 1995 57 fcr 25 beaumontj black cj jenkinson j agreed stateships v lawson 2009 fca 59 2009 107 ald 42at 53 gilmour j condition imposed remittal whole case remitted without limitation presentation evidence scope matter dealt rigoli v commissioner taxation cth 2014 fcafc 29 2014 141 ald 529at 34 edmonds jessup mckerracher jj unqualified remittal even matter determined according law would require whole matter heard decided question law fact relevant claim considered determined rigoliat 34 citingpeacock v repatriation commission 2007 fcafc 156 2007 161 fcr 256 downes lander buchanan jj confined remittal cause difficulty reason identified gummow hayne jj inminister immigration multicultural affair v wang 2003 215 clr 518at 73 74 necessarily finding recorded tribunal written statement decision reason reflect matter applicant review sought agitate le importantly finding recorded reflect tribunal considered material decision made review material decision depend upon view tribunal formed relevant legal question review presented follows therefore attempt divorce tribunal statement finding considered material question fact decision made particular reason may dangerous case like present accepted tribunal made error law several reason may dangerous process first notorious difficulty disentangling finding fact conclusion applicable legal principle secondly assuming difficulty surmounted finding fact tribunal make hearing assessing body material submission necessarily reflect tribunal conclusion applicable legal principle directed question principle present review tribunal make error law subsequent review ordered tribunal finding made subject first tribunal dealt take starting point finding made earlier review misapprehension applicable legal principle may indeed often would skew second factual inquiry tribunal nevertheless may good reason limit scope referral including court making order 44 5 aat act case heard determined without hearing evidence specify whether remitting whole case part part peacockat 24 downes lander buchanan jj stated party routinely put submission topic submission put appropriate make direction requiring mr loughlin linfox file exchange short written submission whether order ought made limiting scope referral contest cost follow event also make order linfox pay mr loughlin cost appeal certify preceding seventy one 71 numbered paragraph true copy reason judgment herein honourable justice bromberg associate dated 10 september 2015

1313651 [2014] MRTA 2662 (19 November 2014).txt

1313651 2014 mrta 2662 19 november 2014 last updated 24 december 20141313651 2014 mrta 2662 19 november 2014 decision recordapplicants mr shujuan bimr teng mumrt case number 1313651dibp reference bcc2013 811663tribunal member david dobelldate 19 november 2014place decision sydneydecision tribunal affirms decision grant applicant temporary business entry class uc visa statement made 19 november 2014 4 11pmstatement decision reasonsapplication reviewthis application review decision made delegate minister immigration 12 september 2013 refuse grant applicant temporary business entry class uc visa unders 65of themigration act 1958 act applicant applied visa 5 june 2013 delegate refused grant visa basis first named applicant applicant satisfy requirement cl 457 224 1 schedule 2 themigration regulation 1994 regulation public interest criterion 4020 met theapplicants appeared tribunal 31 october 2014 give evidence present argument mr shujuan bi applicant applicant owner sponsoring company aumay group pty ltd aumay tribunal hearing conducted assistance interpreter mandarin english language applicant represented relation review registered migration agent also attended hearing following reason tribunal concluded decision review affirmed consideration claim evidenceon department file following relevant documentary evidence subclass 457 visa application following recorded q ever applied australian visa yes q detail visa stated granted detail givenq ever australian visa refused aumay offer employmentto applicant signed son director employee 1 june 2013aumay letter applicant offer employment 1 june 2013chinese notarial certificate birthdates applicant soncv applicantsharetea support letter signed anthony director 5 june 2013chinese passport front page applicant sonthe supporting letter director aumay son anthony stated follows anthony director aumay group pty ltd pleased writing letter support employee m shujuan bi term nomination visa application sub class 457 aumay group pty ltd established 2012 australia general franchise agent australia right use brand share tea operate chain store according operation model brand licensing system share tea famous dining brand originated taiwan established 1992 small roadside store till grew worldwide franchise business 200 store world newly opened milk tea house australia share tea beverage made finest ingredient 100 fresh natural healthy brand logo made three color black white red white mean harmony perfection black mean ambition calmness red mean energy passion great need m shujuan bi join management team general manager first m shujuan bi related professional management experience china working xinyada trade co ltd qingdao china partially operates business milk tea since 2003 general manager working experience enabled deep understanding tough milk tea industry running today sydney meanwhile m shujuan bi undertaken formal training program share tea headquarters taiwan enables start working immediately come company highly required secondly m shujuan bi deep acknowledgment customer need essential element successful general manager m shujuan bi indeed understands true measure satisfaction customer knowing make customer happy able connect provide guidance subordinate take care customer need thirdly m shujuan bi proficient chinese language would valuable company head office share tea taiwan ability speak write chinese highly preferable manager communicate manager report director coming chinese background also australia multicultural country facing people china speak chinese order better understand taste flavor provide excellent service really need person like m shujuan bi much knowledge understanding chinese culture would benefit business whole besides m shujuan bi strong capacity motive team take lead organization get much done unless people motivated m shujuan bi successful general manager build strong team develop positive relationship among team member offer efficient effective operation would definitely advantageous u achieved understanding addressing individual need concern staff additionally m shujuan bi excellent skill track measure staffperformance general manager establishes specific measurement tell staff goal provides clear base employee recognition also staff development addition measuring tracking individual personnel performance provide feedback help focus issue success factor improve overall organization performance effective general manager m shujuan bi always look utilizing human resource software streamlines process setting performance goal evaluating employee maintaining date training certification information finally m shujuan bi completed formal study bachelor economic management yantai university working china reinforced brilliant work capacity also made extremely strong contender general manager even worked majority career china find quick understanding business environment strategy become competitive local market close connection chinese community ideal type person need manage expand business general manager company m shujuan bi supposed fulfill following responsibility formulating company policy conjunction senior work guarantee implementation company policy procedure conferring stakeholder organization official staff member necessary devise set annual budget fiscal plan present senior management review financial statement activity report performance data measure productivity goal achievement determine area needing cost reduction program improvement oversee activity directly related making product providing service manage staff preparing work schedule assigning specific duty based individual qualification determine staffing requirement impart training program allemployees improve employee performance plan direct activity sale promotion coordinating senior required remain regular contact various supplier improving efficiency carry proper analysis market research data regularly increase awareness sensitiveness market based marketing research develop effective marketing strategy take account marketing mix aspect managing coordinating third party advertising marketing agency determine good service sold set price credit term based forecast customer demand collect customer feedback make prompt adjustment product service hope case officer would look m shujuan bi long successful extensive working skill strongly believe right person business need much going forward expand business organization australia question regarding application please feel free contact u department wrote applicant failure declare previous visa refusal following statement unsigned dated 8 august 2013 attached email applicant representative shujuan bi writing letter give comment information considered false misleading current situation firstly declare provide false misleading information department immigration relation visa application reason inform current agent refusal 676 tourist visa take refused clearly fact previous agent applied visitor visa shanghai however first twice application refused completely attributed previous agent submit deposit certificate department immigration authorized another agent apply visitor visa guidance offered agent prepared document visa application granted successfully agent mentioned visa finally granted unfavorable record shown passport addition visa grant proved intention visit australia merely stay son also document provided authentic perspective applicant without profession field consider application refused take serious mind dear officer declare stay australia obey visa condition breach regulation apologize taking visa refusal serious sorry inconvenience caused work really intend provide false misleading information shujuan bi solemnly declare visitor visa refused twice apologize trouble caused thank much reading letter please feel free contact agent mr jun zhang enquiry regarding case department made decision department sdecision record provided applicant tribunal relevantly stated follows evidence minister primary applicant provided caused provided bogus document false misleading information relation visa application 05 06 2013 time lodging application applicant provided evidence department considered non genuine nature applicant m shujuan bi indicated 457 visa application lodged 05 06 2013 never refused australian visa applicant declared application understand visa application may refused bogus document information false misleading presented department including third party acting behalf understand also applies previous application relating member family unit included application however departmental record indicate applicant m shujuan bi refused 676 tourist visa shanghai twice 23 03 2012 17 04 2012 individually declared 457 visa application lodged 05 06 2013 applicant sought review tribunal following documentary evidence provided hearing hnj accountant henry zhao principal relevant company entity 22 october 2014email second named applicant ausmart migration agent dated 30 october 2014passport evidence visa grant letter permanent residency zimei zhou zz 17 november 1988 accountant granted 25 february 2014jian wang jw 4 september 1986 passport front page visazhewen yu yz 4 september 1986 passport front page visaato gst registration aumay sharetea 3 september 2013 date effect 1 july 2013asic company registration aumay group pty ltd 20 june 2011asic company registration sharetea australia pty ltd 20 september 2012 asic company detail search aumay group undatedaumay ba july 2013 june 2014 form printoutaumay ba tax agent portal lodgement january june 2014sharetea australia financial report 30 june 2014aumay group financial report 30 june 2014organisational chart showing 3 permanent resident full time employee accountant zz store manager jw office administrator yz 9 casual attendantslease front page 539 551 george st sydney sharetea australia 1 july 2014 4 yearslease front page westfield hurstville shop a4 15 july 2013 5 yearslease front page unsw 17 may 2013 5 yearslease front page victoria rd marrickville 21 july 2014 2 yearssublease front page chatswood interchange 22 july 2014 5 yearsemployment agreement sharetea australia applicant general manager 185 000 pa signed 21 october 2014at hearing member reminded applicant made promise tribunal tell truth may determine whether truthful evidence whether documentary evidence provided genuine tribunal asked whether current standard business sponsorship business nomination relation said company aumay pty ltd sponsor later said sharetea control aumay tribunal said documentary evidence show approved sponsor matter let alone approved business nomination tribunal said talk representative tribunal said going make decision substantive issue pic 4020 applicant acknowledged really employing company gave tribunal copy letter accountant tribunal suggested applicant purpose coming australia get involved business said purpose come see son got saw business well decided work company turn around getting temporary working visa also son operation january 2013 appendix look tribunal suggested may purpose visit son may also purpose become involved business said arrived december 2012 said company first registered australia 2011 prompted tribunal suggest plan involved business along coming australia confirmed son director company beginning china store operating chatswood tribunal asked information business said franchise owns franchise right australia whole 7 shop open two city hurstville epping chatswood 2 university macquarie unsw one chatswood first business opened june 2012 company office located marrickville applicant said son full time student australia director company director zili chen said someone trust know said student studying confirmed owns company sole shareholder came son sole shareholder whereabouts husband said china confirmed recently lodged permanent residency subclass 186 visa tribunal turned subclass 457 visa application issue applicant said went agent professional whether gave written authority lodge visa behalf first said recalled printed page sign tribunal asked gave answer question visa application form said never told question said went office told come tourist visa two tourist visa refused gave usb stick personal information said leave everything tribunal suggested whilst office would gone question visa application said ask question tribunal said found hard believe migration agent whose job complete lodge visa application would go question visa applicant said ask question said job said visa refused said mistake made staff member forced lodge another subclass 457 visa application showed tribunal copy decision relation showed application 4 october 2013 refused also pic 4020 said rang told visa refused said small problem put another application going put explanation failure disclose 2 visa refusal department whether said see said would write tribunal said applicant saying serious mistake made migration agent asked whether lodged complaint agent omara said got chance spoke migration agent shortly hearing wanted come hearing said problem caused one staff said trust told 7 october would hearing said wanted meet refused knew something wrong found new migration agent tribunal asked whether migration agent gave anything writing acknowledged making mistake matter said tribunal referred visa application department file answered question whether previously refused visa tribunal referred department decision record recorded refused visitor visa 23 march 17 april 2014 tribunal said answer given incorrect give department refusal information tribunal asked successful visitor visa application 2012 whether disclosed 2 visa refused earlier year said tribunal asked whether copy form said could get one went australian migration agent get visitor visa 2 refused tribunal said would give time get copy application said agent handled subclass 457 visa tribunal said determine whether innocent mistake either migration agent noted told tribunal told migration agent 2 visitor visa refused yet wrongly completed answer question applicant said innocent mistake whether innocent mistake migration agent know tribunal turned waiver consideration read applicant asked whether may apply said referred company development tax company pay job opportunity creates tribunal confirmed saying would affect interest australia said 7 shop people employed local australian said family one bought franchise would affected tribunal noted people employee said employ 3 person australia permanent resident also part time student tribunal noted earlier said director student tribunal asked whether correct say australian permanent resident citizen said true tribunal asked whether franchise would continue operate granted visa said would serious effect franchise came store running loss profit said turnover gone 300 000 1 300 000 payroll used 40 000 270 000 said company pay tax 70 000 franchisees paying tax around 300 000 said know get information company said franchisees would fail would close shop would assist tribunal asked whether possible sell franchise right said hard contemplate option tribunal asked whether told people sold franchise bridging visa said ask tell applicant said right work assisting employed management team tribunal suggested evidence inconsistent one point saying important business would fail without behind everything organiser yet think important enough tell people holder franchise bridging visa right work assisting management team gave tribunal number document concerning company operation tribunal referred representative said indirect effect applicant getting visa considered rent lease investor sentiment job associated franchise including accountant lawyer said appalled applicant treated last migration agent said told free need come hearing considered victimised hope able continue serve australia community lodged subclass 186 visa found afterwards visa refused pic 4020 lodged known said mentoring role franchise helped 7 shop successful key person role tutoring coaching service intangible part business success tribunal gave applicant 1 week 7 november 2014 provide copy tourist visa application also gave time provide evidence relation waiver ground light many volume information brought hearing going provide summary business affected tribunal need detail ask applicant rose wished make plea tribunal said relevant aspect issue hand covered necessary relevant said thought relevant tribunal asked give line summary wished say said wanted tell tribunal much liked australia ambitious plan franchise future tribunal said relevant tribunal consideration pic 4020 could provide relevant information writing wished gave tribunal photo relevant store hearing 7 november 2014 tribunal received following representative submission representativeform 48r chs application general tourist dated 20 october 2012q23 want visit australia travel australia visit son currently studyingq36 ever application entry refused q38 applied temporary visa enter australia last 5 year april 2012 shanghai tourist visa visa granteddepartment notice decision sponsorship approval notice aumay 28 august 2013 28 august 2014letter applicant 6 november 2014nsw health discharge referral acute appendicitis 4 january 2013 hospitalised 31 december 2012 1 march 2013the letter applicant stated follows dear officer shujuan bi please find following statement regarding case since son told felt abdominal pain many time want visit son currently studying sydney authorized local agent called zhinanzhen apply 676 visa october 2012 told zhinanzhen refused 676 visa application shanghai filling situation application form application approval arrived sydney december 2012 end december 2012 son diagnosed acute appendicitis doctor let operation rpa hospital immediately stay looking period management team company work well company appears many serious problem 200 000 loss management team enough management training developing experience want apply 457 working visa full time general manager save company authorized local agent called ausmart education immigration center apply 457 visa felix ausmart manager told focus 457 visa application many year 676 visa experience believe local agent professional trust much clear tell refused 676 visa application told chinese agent professional local agent different let signed authorized form seen lodged application form verbally written september 2013 felix told application refused know chance comment within 28 day comment 19 08 2013 explains department 22 11 2013 felix represented without approval notice even give decision record letter department told assistant made small mistake filling form told small mistake would explain department officer regretted make mistake would like provide free service mrt case second 457 visa application early may 2014 told application refused told reason department want refuse 30th oct called mrt hearing holding 31st oct asked arrange meeting discus prepare submit additional document asked send relevant document case however heard anything received document 20th oct know felix unreliable person 21st oct met mr yuan mr yuan told must get copy two decision record letter first find real reason refused 23rd oct go felix office pick letter felix meeting assistant printed letter bring mr yuan office mr yuan explained letter told 4020 clause know felix made big mistake small mistake letter show felix submitted comment 19 08 2013 explanation letter 22 11 2013 department name totally know give approval explanation right know detail see relevant document form submitted felix want hide mistake let know detail problem trust felix much know could thing non professional appreciate chance know detail finally blinded forever 30th oct let son send following email hi felix staff gave two decision record letter mother 457 application last thursday solicitor still need send u relevant document form u 1 copy two lodged form mother 457 application date visa application 05 06 2013 04 10 2013 2 statement provided department 19 08 2013 3 explanation letter provided department 22 11 2013 second application ever received read form letter verbally written please let u know detail form letter kind regard tenguntil today 06 11 2014 felix answer question reply email make complain mara office mistake non professional aumay group pty ltd focus tea product beverage technique ownership tea beverage brand sharetea australia employed local management team manage company last one year july 2013 june 2014 performance company much better first year since australia gave management team many suggestion guidance let management gave taiwanese syrup sharetea tea beverage brand use australian local fruit milk product milk tea fruit tea sharetea popular sydney since local people feel sharetea healthy tea brand proud support local farmer developing part gave many suggestion management 10 year retail experience sharetea store open best location pay reasonable rental operating hr training part gave many suggestion guidance management 20 year management experience year 2013 2014 sale company store two time first year sale 2012 2013 last one year management opened cbd 2 shop university nsw shop hurstville westfield shop epping shop chatswood station shop macquarie university shop sharetea macquarie university shop built macquarie university union called u mq company provides tea drink technique equipment raw material macquarie university mq university management introduces sharetea sydney university monash university since sharetea popular campus many local people want franchise sharetea drink high quality best taste sharetea business good profit professional support system company received 100 enquire franchise sharetea last one year existing franchisees got good profit shop feed family company involved daily operating franchise store include fully training support operating consultant service new product recipe raw material supply equipment supply franchisees lease company name beneficial local employee company three full time local employee office 15 casual staff 30 local employee company store sharetea mq store staff employed macquarie university local full time employee five franchise store total 12 full time local employee 40 casual employee roughly 30 local employee since five franchise store franchised five local family profit store supporting five local family life include roughly 20 local people therefore company provides direct indirect working opportunity roughly 20 full time local employee 20 casual local employee beneficial government company great growth last one year suggestion guidance compared first year turnover july 2012 june 2013 turnover last year increase 1 311 201 93 wage increase 271 480 00 4 time data first year started one store company opened another 6 store last one year company paid net gst 35053 72 pay income tax 29 873 10 last one year oct 2013 sep 2014 sale 6 franchise store roughly 1 500 000 roughly 136 363 gst 100 000 income tax beneficial local company data last one year follows rental company paid 180 736 78 meriton group rain horne commercial office city store rental franchise store paid 400 000 rental local company like westfield group university nsw cbre group accounting legal service company paid 22 569 55 local company like hnj accountant ilc law frank low yeung solicitor franchisees paid relevant accountant legal service company well company paid 10 907 32 electricity fee energy australia franchise store paid 20 000 local electricity company well custom duty freight company paid 17 595 34 government local company like toll global forwarding local supplier company paid 200 000 many local equipment fruit milk supplier like dairy farmer wellkart equipment harries farm could work full time general manager offering suggestion guidance believe could make contribution business australian society since 20 year management experience 10 year retail business experience highest tea beverage technique believe suitable people general manager company compared 6 new sharetea store opened last one year open 15 20 sharetea new store year future plan next two year could granted working visa increase investment open 10 new sharetea company store cbd sydney melbourne perth brisbane plus new staff hired office employ 50 local full time employee also assistant 50 local family set sharetea business future therefore direct indirect create total 200 local full time employee opportunity year 2014 2015 2015 2016 expect achieve 2 500 000 turnover 5 000 000 turnover franchise store achieve 6 000 000 turnover roughly 545 454 gst 400 000 income tax 10 000 000 turnover roughly 909 090 gst 700 000 income tax consider relevant landlord solicitor accountant logistic local supplier sharetea business make beneficial government many local company secondly got many request local coffee shop last one year want learn tea technique promote afternoon night business since coffee shop busy morning low business afternoon night tea beverage best supplement business launch new service putting product coffee shop australia long history coffee culture many coffee shop service make lot benefit company local farmer supply also local coffee business relevant local employee thirdly setting tea drink factory make bottle tea drink since australia best fruit milk product world produce highest quality bottle milk tea fruit tea bottle milk tea fruit tea popular asian country australian made milk tea fruit tea big market asian initially plan tea factory provide 40 50 full time working opportunity local employee sorry make difficult immigration office since trust previous agent much let previous agent know refused 676 visa application application mistake made previous agent working visa important affect many local employee future ill granted working visa existing 7 store serious problem even shut two plan achieved please give chance win much appreciate understanding situation many thanks turning application law tribunal first note current standard business sponsorship business nomination matter raised applicant hearing however substantive issue review whether visa applicant meet public interest criterion 4020 pic 4020 required cl 457 224 1 grant visa tribunal considers obliged consider issue first stand alone issue reflects integrity applicant broadly speaking pic 4020 requires evidence applicant given caused given minister officer tribunal relevant assessing authority medical officer commonwealth bogus document information false misleading material particular relation application visa visa applicant held 12 month application made pic 4020 1 andthe applicant member family unit refused visa failure satisfy pic 4020 1 period starting 3 year application made ending application granted refused pic 4020 2 andthe applicant satisfies minister identity pic 4020 2a andneither applicant family unit member refused visa failure satisfy pic 4020 2a period starting 10 year application made ending application granted refused pic 4020 2b requirement pic 4020 1 2 waived certain compelling compassionate reason justifying granting visa pic 4020 4 however waiver apply identity requirement pic 4020 2a 2b pic 4020 extracted attachment decision applicant given caused given bogus document information false misleading material particular term information false misleading material particular defined pic 4020 5 term bogus document defined 97 act see attachment decision contrast definition information false misleading material particular pic 4020 5 reference 97 document obtained false misleading statement requirement relevant criterion grant visa batra v miac 2013 fca 274 requirement pic 4020 1 provide bogus document false misleading information applies whether minister became aware bogus document information false misleading material particular information given applicant pic 4020 3 also applies whether document provided applicant knowingly unwittingly pic 4020 refers information false sense purposely untrue necessary minister tribunal review conclude applicant aware information purposely untrue order pic 4020 engaged trivedi v mibp 2014 fcafc 42 current subclass 457 visa application applicant stated question asking whether ever australian visa refused cancelled face given evidence recorded department decision provided tribunal false statement refused visa 23 march 17 april 2012 applicant acknowledged hearing two visitor visa refused prior granted one came australia 2012 tribunal find accordingly occurred applicant claimed hearing migration agent ask question said printed page sign give authority complete application behalf went office told come tourist visa two tourist visa refused gave usb stick personal information said leave everything tribunal suggested whilst office would gone question visa application said ask question tribunal said found hard believe migration agent whose job complete lodge visa application would go question visa applicant said ask question said job applicant nothing writing migration agent acknowledging action lodged complaint omara failure latest letter state intends complain determining whether applicant telling truth regard claim tribunal wish step back consider applicant behaviour relation coming australia prior lodgement visa application assist coming view whether claim credible first time earlier behaviour exposed considered department tribunal tribunal raised applicant hearing never intention come australia visit son wasalwaysher intention come work business owned response applicant stated intention come visit son look operation said found business well became general manager applied current subclass 457 visa relation whether declared two relevant visa refusal successful visitor visa application said hearing provided copy visa application evidence show fully disclosed true situation q36 response ever application entry refused stated incorrect q38 whether ever applied temporary visa enter australia last 5 year answered april 2012 shanghai tourist visa visa granted misleading two visa refused 23 march 2012 thus applicant cannot claim fully disclosed true situation department earlier time however true department aware one visa refusal april 2012 granted subclass 676 visa later year tribunal note purpose visit stated travel australia visit son currently studying sydney whether purpose visit stated tribunal accepts coming see son considers always intention control business owned director claimed unwell part reason coming visit stated hearing son operation january 2013 appendix look hearing stated since son told felt abdominal pain many time want visit son currently studying sydney later end december 2012 son diagnosed acute appendicitis doctor let operation rpa hospital immediately stay looking tribunal considers claim abdominal pain reason wanted visit truth first stated subclass 676 visa application provided second discharge summary state son hadacuteappendicitis tribunal considers implausible son pain lodged visa application either march april october 2012 rather tribunal considers symptom would rapid onset summary state presented abdominal pain for3 day mother tribunal considers coincidence acute appendicitis shortly arrived trying retrospectively claim reason visit hence tribunal found truthful regard claim purpose coming australia tribunal turn oral documentary evidence concerning business clear occurred stated hearing bought franchise right business australia must come cost sharetea business set applicant aumay company incorporated june 2011 per asic document resident australia made son director company student friend son mr chen director son shareholder arrived australia shareholder chatswood sharetea shop opened june 2012 per oral evidence hearing made two unsuccessful attempt get visitor visa australia march april 2012 indicating desire get australia promptly presumably opening chatswood store whilst accepting applicant coming australia visit son tribunal considers main purpose coming australia take running sharetea franchise business owns considers implausible applicant owner business would aware well business financially prior arriving money tied business tribunal considers would kept well informed operating tribunal considers keen get australia run business profitably selling franchise running teashop given business background tribunal note australia arranged sponsored business temporary work visa made arrangement lodging permanent residency visa application tribunal find applicant always intended stay australia manage business always intended breach genuine visit requirement australian visitor migration law ie requirement expressed intention visit australia genuine cl 676 211 tribunal considers department known applicant direct business interest australia come view main purpose travelling would closely considered granting visitor visa circumstance may well refused thus tribunal considers applicant also made misleading statement last visitor application stated purpose coming australia travel australia visit son currently studying sydney false misleading applicant done view tribunal taken migration australia effectively hand decided apply business visa whilst overseas rather taken appeared easiest route getting australia visitor visa order take running business returning issue hand tribunal satisfied applicant telling truth occurred relation completion subclass 457 visa application tribunal note applicant evidence occurred apparently inconsistent first letter dated 8 august 2013 department state follows firstly declare provide false misleading information department immigration relation visa application reason inform current agent refusal 676 tourist visa take refused clearly hence stating understand two original application actually refused however hearing afterwards applicant adamant told migration agent two refused visitor visa last letter state clear tell refused 676 visa application also hearing last letter applicant stated write anything department application hence letter 8 august 2013 written tribunal find whoever wrote letter knew two refused visitor visa however could either applicant migration agent said told given potential inconsistency lack evidence support applicant claim happened migration agent completing visa application oral evidence lodged complaint relation serious allegation migration agent given tribunal earlier finding untruthful relation main reason came australia first place finding always intended stay australia breach genuine visit requirement australian visitor migration law tribunal accept applicant claim credible truthful rather tribunal satisfied shewasasked visa application question gave migration agent employee thewronganswer question migration agent would duly recorded visa application authority tribunal also satisfied information false material particular false given view relevant criterion ministermayconsider making decision application whether decision made information tribunal considers considering grant subclass 457 visa relevance department know person earlier refused visa go applicant identity generally hence applicable pic consideration may also go issue require determination applicant intention cl 457 223 4 thus breach pic 4020 1 applicant caused given information false misleading material particular relation application subclass 457 visa requirement pic 4020 1 2 waived requirement cl 4020 1 2 may waived compelling circumstance affect interest australia compassionate compelling circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen defined r 1 03 law pic 4020 waiver matter limiting hardship may considered make clear hardship theapplicantis disregarded applicant position employer employee claimed business employ australian citizen australian permanent resident franchisors australian citizen australian permanent resident seriously affected granted visa considered critical franchise business success acknowledges director company australian citizen permanent resident someone trust say also flow benefit business australia accountant lawyer wholesale provider tribunal consider compelling circumstance affect interest australia applicant claimed interest australia affected business employee franchisees employee paying tax government business benefit business pay tax also tribunal accepts isaneffect interest australia consider operating tea franchise operation series shop selling tea public necessarily affect interest australia meaningful sense make compelling circumstance however despite doubt given difficulty knowing exactly would happen business granted visa tribunalwillaccept central profitable operation business whole well franchise franchisees business granted visa may well number australian citizen permanent resident direct employee franchisee employee whose employment may reduced terminated business damaged financially part tribunal consideration evidence applicant declare potential franchise purchaser bridging visa possible may leave australia review application unsuccessful may well influenced person whether bought franchise accepted applicant important overall success effect number people combination sufficient considered compassionate compelling circumstance affect interest australian citizen permanent resident tribunal accept effect lawyer accountant like compassionate compelling without documentary evidence effect however tribunal view even waiver criterion satisfied still retains adiscretionto waive stated itmustwaive circumstance particular case context applying pic 4020 department hence tribunal take account applicant previous action conduct getting australia relation department first time exposed tribunal considers also taken account exercising discretion waive legal authority approach appear caselaw tribunal therefore examined theexplanatory statementaccompanying introduction pic 4020 explanatory statement select legislative instrument 2011 13issued minister immigration citizenship state page 20 new subclause 4020 4 provides minister may waive requirement anyor paragraph 4020 1 b subclause 4020 2 satisfied compelling circumstance affect interest australia compassionate compelling circumstance affect interest anaustralian citizen australian permanent resident eligible newzealand citizen justify granting visa subclause provides minister discretionary power waive therequirements clause 4020 circumstance minister satisfied thatthere sufficient ground justify granting visa intended thegranting waiver relates solely compelling circumstance affecting australia sinterests compassionate compelling circumstance affecting interestsof australian citizen australian permanent resident eligible new zealandcitizen interest visa applicant type circumstance may involve compelling compassionate reason forwaiving paragraph 4020 1 b subclause 4020 2 include family reason example unexpected serious fatal family situationsover applicant control incapacitation death ofa partner child another member family unit family member australia would left without financial emotionalsupport anda parent australia would separated child example thechild removed non resident parent would therefore besubject exclusion period tribunal considers approach discretion inconsistent statement statement clear tribunal retains adiscretionary powerin decision waiver even hardship provision met exercise discretion tribunal turn visa cancellation corollary limited situation decision makermustcancel visa visa cancellation matter whether incorrect information bogus document unders 109 unders 116of act decision maker generally retains discretion waive various consideration decision maker turn mind exercising discretion instance unders 109 cancellation visa information incorrect finding non compliance considering response ministermaycancel visa regard prescribed circumstance set r 2 41 follows reg 2 41 whether cancel visa incorrect information bogus document acts109 1 c 2 41 purpose paragraph 109 1 c act following circumstance prescribed correct information b content genuine document c likely effect decision grant visa immigration clear visa holder correct information genuine document circumstance non compliance occurred e present circumstance visa holder f subsequent behaviour visa holder concerning obligation subdivision c division 3 ofpart 2of act g instance non compliance visa holder known minister h time elapsed since non compliance j breach law since non compliance seriousness breach k contribution made holder community unders 116 particular 116 1 circumstance permitted grant visa longer exist consideration specified regulation department policy purpose visa holder travel stay australia reason extent breach visa condition relevant degree hardship may caused circumstance ground cancellation arose past present conduct visa holder towards departmentif breach relates breach r 2 43 1 la subclass 457 visa holder mitigating compassionate circumstance factor whether would consequential cancellation unders 140whether international obligation would breached result cancellation impact victim family violence relevant matter raised visa holderwhat clear tribunal consideration purpose travel australia past present conductarerelevant consideration exercising discretion case tribunal consider established compelling compassionate circumstance weigh consideration purpose applicant travel stay australia past present conduct applicant towards department including way came enter australia relevant matter come decision whether waiver exercised purpose applicant travel 2012 tribunal found take control management teashare franchise right owned see store operating profitably see increased sale franchise others visit never intended one genuine visitor main purpose come remain commence working business beyond limit visitor visa arrange sponsorship ultimately permanent residency tribunal considers always intention apply temporary work visa seek permanent residency time completing last visitor visa application would satisfied visitor visa requirement expressed intention visit australia genuine see cl 676 211 past present conduct applicant towards department tribunal found applied enter australia misleading stated purpose fully declare past visa refusal australia also relevant recentness applicant action tribunal considers action applicant taking migration australia hand great seriousness given considerable weight deliberation applicant current conduct relation subclass 457 visa application intentional false statement applicant caused given application discussed earlier tribunal considered oral written evidence applicant whole consider relevant matter overall action applicant someone shown contempt australian migration law tribunal considers applicant benefit waiver tribunal considers purpose coming conduct way came enter australia applying visa greater weight considering waiver accepted effect australian citizen permanent resident circumstance case justify granting visa thus tribunal determines pic 4020 4 waive requirement pic 4020 1 basis applicant satisfy pic 4020 purpose cl 457 224 1 decisionthe tribunal affirms decision grant applicant temporary business entry class uc visa david dobellmemberattachmentmigration regulation 1994schedule 4 1 evidence minister applicant given caused given minister officer migration review tribunal relevant assessing authority medical officer commonwealth bogus document information false misleading material particular relation application visa b visa applicant held period 12 month application made 2 minister satisfied period starting 3 year application made b ending minister make decision grant refuse application applicant member family unit applicant refused visa failure satisfy criterion subclause 1 2a applicant satisfies minister applicant identity 2b minister satisfied period starting 10 year application made b ending minister make decision grant refuse application neither applicant member family unit applicant refused visa failure satisfy criterion subclause 2a 3 avoid doubt subclauses 1 2 apply whether minister became aware bogus document information false misleading material particular information given applicant 4 minister may waive requirement paragraph 1 b subclause 2 satisfied compelling circumstance affect interest australia b compassionate compelling circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen justify granting visa 5 clause information isfalse misleading material particularmeans information false misleading time given b relevant criterion minister may consider making decision application whether decision made information note regulation 1 03 defines bogus document meaning section 97 act migration act 195897 interpretationin subdivision bogus document relation person mean document minister reasonably suspect document purport issued respect person b counterfeit altered person authority c obtained false misleading statement whether made knowingly

Sibelco Australia Limited [2016] FWCA 8024 (7 November 2016).txt

sibelco australia limited 2016 fwca 8024 7 november 2016 2016 fwca 8024fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementsibelco australia limited ag2016 6541 sibelco australia limited tantanoola enterprise agreement 2016mining industrydeputy president barteladelaide 7 november 2016 1 application approval enterprise agreement known sibelco australia limited tantanoola enterprise agreement 2016 agreement made sibelco australia limited employer application made pursuant tos 185of thefair work act 2009 act application single enterprise agreement 2 response concern raised employer employee representatives1relating modern award coverage employee bound agreement absence penalty payment weekend work employer provided additional information relevant modern award themining industry award 2010 2an undertaking relating payment penalty weekend work also provided undertaking meet requirement ofs 190of act address concern raised fair work commission undertaking taken term agreement appended decision agreement appendix 3 satisfied requirement ofss 186 187and188of act relevant application approval met 4 agreement approved accordance withs 54 1 act agreement operate 14 november 2016 nominal expiry date agreement 7 november 2020 deputy president1correspondence dated 31 october 20162ma000011printed authority commonwealth government printer price code g ae422071pr587296 appendix aappendix avar _gaq _gaq _gaq push _setaccount ua 9592794 1 _gaq push _trackpageview function var ga document createelement script ga type text javascript ga async true ga src http document location protocol http ssl http www google analytics com ga j var document getelementsbytagname script 0 parentnode insertbefore ga

Health Care Complaints Commission v Naiyer (No1) [2014] NSWCATOD 54 (13 May 2014).txt

health care complaint commission v naiyer no1 2014 nswcatod 54 13 may 2014 last updated 14 may 2014civil administrative tribunalnew south walescase title health care complaint commission v naiyer no1 medium neutral citation 2014 nswcatod 54hearing date 28 29 30 april 1 2 may 2014decision date 13 may 2014jurisdiction occupational divisionbefore f mark adcj principal member dr v sutton medical member dr v de carvalho medical member dr j mair lay member decision 1 tribunal find complaint 1 2 made outcatchwords medical practitioner complaint unsatisfactory professional conduct professional misconduct stage 1 hearing conducted factual finding made proceeding stood stage 2 hearing appropriate relieflegislation cited health practitioner regulation national law nsw category principal judgmentparties health care complaint commission complainant dr mohammed adnan naiyer respondent representation counsel counsel mcnaughton sc complainant solicitor health care complaint commission complainant norton rose fulbright respondent file number 1420075publication restriction order made prohibiting detail identifying tending identify patientsreasons decisionintroductionthese proceeding constituted amended notice complaint complainant hccc brings 3 complaint respondent dr mohammed adnar naiyer complaint alleges breach provision health practitioner regulation national law national law party requested dealing proceeding tribunal engage two stage process first stage would involve hearing evidence consideration determination whether complaint appropriately made tribunal satisfied complaint made appropriate make finding accordingly would embark upon second stage process would involve consideration order made circumstance would give party opportunity make submission nature extent order made regard finding made connection first stage course regularly adopted appropriate case especially involving contested factualcircumstances case proceeding indicated party prepared accede request decision concerned solely first stage process first complaint alleges respondent guilty unsatisfactory professional conduct within meaning section 139b national law based upon circumstance pertaining patient respondent known proceeding patient alleged whilst practice general practitioner city new south wale north coast respondent failed record detail external examination genital anal region internal pelvic examination conducted 27 june 2011 required law denying carried examination respondent knowingly provided false information health care complaint commission contrary law circumstance unnecessary carry physical examination physical examination sufficient detect sexually transmitted disease include visual speculum examination second complaint alleges respondent guilty unsatisfactory professional conduct also within meaning section 139b asserted demonstrated knowledge skill judgement possessed care exercised practice medicine significantly standard reasonably expected practitioner equivalent level training experience also alleged either additional matter alternative engaged improper unethical conduct relating practice medicine second complaint based firstly upon circumstance pertaining patient respondent known proceeding patient b consulted respondent 1 july 2011 alleged conclusion consultation respondent asked patient b going see whether could coffee coffee night gave personal mobile telephone number patient sent text message respondent inquiring whether family respondent alleged telephoned patient told overseas asking okay asserted respect patient respondent failed maintain appropriate professional boundary sought initiate inappropriate personal relationship second complaint based also matter affecting patient asserted occurred consultation 5 july 2011 whilst purporting use dermatoscope examine mole right breast respondent said placed head close breast placed lip breast furthermore whilst conducting examination said moved head around circular motion top breast alleged clinically necessary respondent examined breast using dermatoscope engaged inappropriate conduct sexual nature towards patient third complaint alleges professional misconduct respondent section 139e national law said engaged unsatisfactory professional conduct sufficiently serious nature justify suspension cancellation registration engaged one instance unsatisfactory professional conduct instance considered together amounted conduct sufficiently serious nature justify suspension cancellation registration particular relied upon sustain complaint summarised referable first second complaint prohibition publication ordershortly proceeding commenced acceded request made counsel complainant opposed respondent prohibit publication material would might tend identify patient respondent consistent order shall refer patient description used throughout proceeding dermascope dermatoscopeboth word used reason decision interchangeable refer instrument used inter alia examine skin lesion generally retained word used witness evidence referred amended complaint evidencea substantial amount documentary material became evidence proceeding addition number person gave evidence patient athis witness made 3 written statement first dated 5 july 2011 day incident one catalyst giving rise proceeding date patient 25 year old first seen respondent sometime march 2011 medical centre practised attended full body skin check conducted clothes removed underwear course examination respondent examined number mole including one right breast order pulled right side bra course examination said respondent conducted appropriate manner made follow appointment biopsy done mole right breast mole back removed mole back later removed operating room nurse also present respondent performed biopsy mole right breast slipping right side bra keeping left breast fully covered finished turned respondent removed mole back stitch applied wound back later removed nurse patient made appointment see respondent short time later biopsy result available appointment respondent informed mole back naughty mole one breast fine also reminded respondent mole left upper buttock respondent said make appointment three month see changed occasion respondent examined patient left upper buttock right breast allowing pull right bra said respondent checked mole using magnifying glass instrument took two second respondent told problem also took photograph mole could compared later visit change patient consulted respondent three month later lowered pant lifted underwear expose mole buttock respondent told mole changing come back three month time see change occurred told respondent wanted mole want come back every three month made appointment 5th july 2011 mole left upper buttock removed thought highly respondent recommended people knew skin checked 5 july 2011 patient attended operating room medical centre respondent worked buttock area prepared nurse removed jean underwear lowered kept shirt respondent came room removed mole applying stitch wound dressing procedure got dressed said respondent asked whether anything else wanted talk replied negative asked go office wait looking file computer respondent discussed care stitch buttock area discussion result previous blood test respondent asked mole breast responded fine respondent said would take another look exposed mole right breast pulling right strap bra respondent told needed see whole breast asked lie bed back pulled top right bra slightly said respondent put hand right sleeve touched bra strap asked take bra accordingly took shirt took right side bra exposing right breast importantly describing happened course examination respondent patient statement made later day nsw police said 16 doctor naiyer took hold magnifying glass examined mole doctor naiyer pressed instrument skin put head close breast looked instrument doctor naiyer one minute doctor naiyer moved away walked behind obtain alcoholic swab swabbed mole looked instrument way head close breast looking ceiling felt head moving quite lot circular motion top breast could feel doctor naiyer skin skin started feeling extremely uncomfortable could see corner eye white doctor naiyer eye looking doctor naiyer looked twice three time alarm bell really starting ring looked doctor naiyer saw rubbing mouth breast doctor naiyer even looking instrument looking mouth breast immediately pushed doctor naiyer shoulder hand would getoffme forced doctor naiyeroffme said hell doctor naiyer put hand defensive manner said word like name removed misunderstand come name removed come come name removed fixed bra usual position immediately put shirt doctor naiyer kept saying name removed come sat chair room said know saw kissing breast said doctor fucking bull shit yelling saying quite sternly calmly time said fucking doctor doctor naiyer said tm professional misunderstood know know name removed married man two small child introduce wife tell kind man stage looking towards door doctor naiyer kept repeating name 18 know started self doubt doctor naiyer said married know said want doctor said name removed come name removed like changed subject onto pathology result said good said yes everything fine said come back seven day get stitch said yes said right thank left office walked reception counter lady reception looked account usually bulk bill said right go shaking thought state shock said someone speak doctor lady said said think started get upset cry lady caught onto insinuating directed side counter area waited beside counter area doctor naiyer came office reception area doctor naiyer saw upset briskly walked towards behind counter doctor naiyer saw receptionist person believe medical centre manager doctor naiyer said name removed turned walked room believe manager patient cross examined meant started self doubt referred beginning para 18 put intended convey doubt happened response patient adamant doubt respondent would next intended convey accept explanation statement patient related conversation manager medical centre said clearly upset told manager nurse also present respondent kissed breast something similar contacted father phone later told manager employer encouraged stepmother report matter local police station concluded statement saying extremely upset shocked happened know saw sure respondent mouth breast breast wet saliva saw mouth breast feel respondent abused trust obviously taken advantage way also extremely angry feel violated think treated inappropriately doctor later statement made 26 august 2011 investigator engaged complainant patient said forgotten first statement mention respondent asked check scar back previous mole removal something initiated asked scar breast said fine also expanded para 16 earlier statement set said time saw respondent mouth breast lying back looking ceiling said first red flag felt head moving around circular motion thought odd examined breast previously never like looked recall seeing white respondent eye observed mouth brushing nuzzling breast mouth slightly open lip breast could feel breath saliva statement patient annexed diagram drew showing position mole situated slightly left nipple right breast statement patient also referred fact stage prior 5 july 2011 know evidence 27 june 2011 consulted respondent concerning possibility contracted sexually transmitted disease boyfriend shown pap smear respondent said would take blood sample relieve anxiety conducted physical examination consisted external internal examination vagina back passage said placing one hand vagina pressing ovary said cervix gonorrhoea sits patient made third written statement investigator engaged complainant 2 november 2011 elaborated information previous statement concerning irregular pap smear said undertaken january 2011 diagnosed hpv clinic said treated afterwards underlying fear exposed sexually transmitted disease boyfriend concern discussed respondent however concern anxiety disappeared ultimately told someone medical clinic test result clear occurred prior consultation respondent 5 july 2011 describing occurred 5 july 2011 oral evidence patient said device respondent using consisted predominantly single tube 9 10 mm long using respondent angled head breast right hand side little bit initially looking device first became concerned respondent seemed taking longer previously conducting examination examination lying back head pillow reiterated initial examination looked respondent got walked around behind swabbed breast commenced using instrument said could see top hair moving circular fashion keeping nose downwards direction remembers seeing flicker eye looking looking could feel pressure breast initially looking ceiling looked saw eye looking breast face mouth partially open side face mouth looked like caressing breast felt like long time said pushed gave evidence similar set written statement referred cross examination patient pressed could see occurring course examination 5 july 2011 adamant respondent definitely looking eyepiece instrument looking said could see eye moving said saw eye moving looking 2 3 time confirmed respondent kissing breast said nuzzling breastpatient denied informing police want give statement matter patient gave oral evidence clear considered measured manner unsure answer said could detect anything oral evidence either chief cross examination manner delivered would tend suggest way patient exaggerating dissembling telling u believed saw felt said heard relevant occasion accept evidence basis patient bevidence given witness orally including cross examination two statement made became evidence proceeding first statement made 26 august 2011 aged 32 said first consulted respondent earlier year routine skin check later consulted respondent number time including biopsy mole obtaining script blood pressure medication respondent referred cardiologist consulted respondent review cardiologist indicated particular medical problem time also discussion concerning appropriate contraceptive device respondent recommended coil understood offered place course consultation said felt little affronted asked time consider option said respondent told information coil computer invited patient b move chair around sitting desk took chair placed near computer said turned swivel chair around face knee touched leg felt uncomfortable waited respondent immediately remove knee 5 10 second stage stood moved chair away said incident made feel uncomfortable consultation came end patient b said respondent asked going make another appointment said would ring practice said said going see said next time coffee coffee night said made feel uncomfortable respondent asked put mobile telephone number phone said could leave quickly patient b said troubled experience consultation later afternoon spoke father happened said word effect think doctor hit told father happened made feel said father advised find going decided text respondent using word following effect hi patient b family said respondent telephoned almost straight away said family overseas okay responded hung last occasion involvement respondent cross examination patient b pressed sent text message respondent consultation replied wanted clarify whether would happy continue respondent medical practitioner make sure misunderstanding course conversation particular suggestion respondent cup coffee night said said telephone conversation confirmed end relationship treating medical practitioner patient b recalled incident respondent occurred friday later evening dinner family member police officer lately close personal relationship whose name reproduced shall refer police officer told cousin present dinner word effect doctor hit cousin mentioned conversation dinner front police officer turn asked whether wished pursue matter formal complaint told wish day later police officer called asked name doctor consulted mentioned respondent name told police received complaint another woman doctor discus nature complaint little time later police officer persuaded patient b meet investigation officer health care complaint commission alison brazel provide statement said reluctant nevertheless met m brazel asked make formal complaint giving written statement persuaded confirmed happened right month later patient b contacted m brazel asked provide additional information result response received hccc respondent respondent told m brazel discussion patient b last occasion consulted conversation cup coffee member respective family seven year old daughter patient b adamantly vehemently denied conversation said time conversation respondent concerning family occurred first consultation asked long lived particular area told lived 20 year beautiful place recalled respondent saying word effect thought family would happy good place bring family course cross examination attention patient b directed email 1 april 2011 sent respondent said wanted send quick email say thank help far really appreciate time taken expertise finding leaking valve heart organising weight loss program wanted know think great job nice doctor care hope great weekend patient b deny sending email pointed sent three month prior incident gave rise complaint made hccc said email reflected feeling time also impressed forthright manner witness gave evidence ready acknowledge matter sure appear exaggerate evidence particular readily acknowledged respondent given concern treatment prior date last consultation email forwarded 1 april 2011 attests respect respondent medical practitioner time furthermore fact prepared give respondent benefit doubt conversation surgery sending text message inquiring whether family evidence attempt conduct fair appropriate manner father patient boral evidence given father patient b remembered daughter coming back home doctor appointment towards end 2011 said word effect propositioned doctor asked said replied doctor invited coffee given telephone number asked daughter whether wanted go replied negative married suggested send message asking whether fact married far knew sent text message received telephone call shortly said told find another doctor admitted evidence statement father given hccc signed name shown incorrectly nothing statement inconsistent elaborates oral evidence given set police officeroral evidence given police officer written statement made tendered evidence evidence corroborates patient b extent advised concern arising invitation coffee extended respondent however evidence police officer differ patient b one material respect said know fact another complaint made concerning respondent patient b mentioned name respondent think anything turn anything particular relevance evidence given police officer impact way evidence patient b karen gerkea statement made karen gerke admitted evidence required cross examination m gerke employed practice manager medical centre respondent worked said 5 july 2011 asked receptionist speak patient identified patient distressed cry seemed distraught patient found hard talk told patient respondent asked come consulting room removed mole buttock doctor told needed check mole breast previously checked month earlier told get examination bed m gerke statement said patient stated pulled part bra examination doctor insisted remove bra need use dermatoscope doctor seemed examining breast prolonged time beginning feel uncomfortable uneasy felt finger rubbing put lip breast nipple m gerke asked nurse come room patient repeated story nurse recorded reported incident mother patient athe mother patient made statement became evidence proceeding required cross examination statement aware daughter treated respondent course 2011 found surprising aware daughter previously uncomfortable intimate female medical procedure informed course year respondent performed internal examination mentioned passing expressed concern examination indeed daughter seem ed totally fine examination alison brazelms brazel investigator former police officer employed hccc period almost 4 year involved investigation complaint made patient b carried certain investigation work particular took statement made patient first statement made patient new south wale police force m brazel cross examined extensively concerning methodology used taking statement fact purported witness signature statement fact done nothing evidence m brazel opinion affect integrity evidence witness given statement relevant proceeding although may concern methodology used attestation m brazel name attesting witness readily acknowledged evidence none matter opinion relevant determination factual issue issue required determine proceeding fundamentally witness gave oral evidence confirmed substantially much content statement given relevant determination proceeding expert evidencethree expert witness called behalf complainant one behalf respondent expert evidence went 3 distinct issue addressed expert issue 1 whether internal external examination carried respondent patient necessary appropriate 1 2 whether necessary appropriate respondent examine right breast patient 5 july 2011 3 assuming allegation made patient respondent cheek mouth came contact breast examination 5 july 2011 established satisfaction tribunal whether satisfactory explanation occurred deliberate act respondentdr peter kean mun lye qualified give evidence complainant 22 year experience skin cancer primary care physician working private clinic also visiting clinician royal prince alfred hospital also held relevant teaching position australia uk published research paper area skin cancer co author postgraduate certificate diploma dermatology dr lye profess experience connection first issue preferred make comment respect second issue opinion dr lye varied depending upon whether narration happened given patient given respondent preferred based assertion patient made complaint respondent 5 july 2011 concerning scar right breast dr lye thought unusual respondent gone way examine scar lesion previously biopsied four month earlier revealing lesion dysplasia malignancy furthermore dr lye thought even unusual respondent use dermatoscope carry examination unless sign recurrence unusual return pigmentation dr lye noted patient made complaint corresponding note respondent record would suggest case however situation would different respondent concern possible recurrence notwithstanding could doubt accuracy original pathology report possible also dermatoscope could used look scarring merely provide magnification third issue dr lye used dermatoscope many time female breast last 22 year never encountered situation part face including mouth touched part patient indeed possible hold dermatoscope away patient adjust focus maximise comfort patient dr lye rejected suggestion proper appropriate use dermatoscope breast patient lying could bring sufficient ballooning cause part breast become elevated make contact part face course giving evidence dr lye shown dermatoscope respondent said one used examining patient regard dimension dermatoscope dr lye opinion reinforced distance end dermatoscope eyepiece dr lye longsighted us dermatoscope 10 cm eye would possible dermatoscope used might closer eye examiner depending upon visual acuity eye used namely whether shortsighted longsighted however whatever distance examiner eye eyepiece dermatoscope still necessary look directly dermatoscope much like using eyepiece viewer camera impossible endeavour look dermatoscope angle straight dr lye said use dermatoscope reason practitioner head moving circular motion clinical benefit dermoscopy practitioner looking anywhere else eyepiece answer questioning dr lye said might possible operator come physical contact patient looking breast low angle however case breast would operator part examined would unlikely event observed scenario inconsistent manner procedure took place narrated patient dr hein carel vandenbergh qualified expert complainant addition qualification medical practitioner postgraduate certificate number area including dermatology extensive experience general practitioner concentration skin condition including skin cancer currently skin cancer practitioner general practitioner southern new south wale dr vandenbergh issued number report shall refer portion oral evidence reason decision however opinion expressed based factual understanding longer correct shall leave aside opinion dealing evidence respect first issue dr vandenbergh said examination conducted respondent accepted practice said practice direct vaginal examination undertaken connection std would carried together speculum swab examination conducted glove conjunction taking blood urine sample leaving aside speculum swab would inappropriate would tell practitioner anything might possibly alert practitioner existence vaginal wart except sensitivity would lacking whilst wearing glove cross examination conceded might however assist establishing whether vaginal discharge respect second issue opinion dr vandenbergh necessary use dermatoscope examine scarring breast patient thought dermatoscopic view may fact confuse examiner unduly magnifies change biologically associated wound healing detriment proper assessment lesion true biological nature absence complaint patient thought examination carried three month biopsy would superfluous respect third issue opinion dr vandenbergh also impossible one eye dermatoscope touch patient skin one lip cross examination said using dermatoscope since 1988 face made contact skin patient time said tried could suggested dr vanenbergh giving evidence respondent conducting examination using dermascope may troubled floater eye disputed saying floater visible background clutter also floater interfere ability use dermascope dr harry michael nespolon qualified give evidence complainant highly qualified experienced general practitioner undertakes lot skin cancer work practice provided report gave oral evidence respect first issue dr nespolon noted record physical symptom respondent record specifically pelvic pain vaginal discharge expressed concern failure respondent record examination note put dr nespolon cross examination examination might warranted exclude presence vaginal wart rejected basis genital wart occur outside vagina said time vaginal examination would warranted indication pelvic inflammatory disease event antibiotic would prescribed symptom anxiety depression whether std asserted respondent would need vaginal examination pathology blood test would undertaken event dr nespolon noted evidence patient requested vaginal examination take place respect second issue opinion dr nespolon review scar would warranted genuine concern melanoma case respondent taken small 2 mm biopsy completely excised mole event pathology result indicated malignancy accordingly respondent examining aesthetic small scar could done short time necessarily requiring touching patient would require dermascope although instrument could assist magnification necessary absence expressed concern patient also relevant factor necessity undertake examination furthermore examination could undertaken without removal bra however respondent exploring patient breast circumstance would unreasonable exposed whole breast third issue dr nespolon observed even respondent eye next lens head dermascope would little distance patient contact doctor face patient would incidental brief doctor eye lens handle held usual position handle would doctor face patient instrument handle used intended way need touch patient doctor hand might incidental hand contact moving instrument would brief usually dermascope placed lesion examined usually moved scope stabilises skin opinion need hold breast examine lesion near nipple unless instrument handle positioned horizontally would way instrument would classically used would difficulty doctor lip could touch patient skin touching would incidental brief instrument designed used one hand need stabilise skin breast reason doctor lip touching patient skin even doctor face touched patient contact would incidental brief inconsistent version given patient described occurred nuzzling dr nespolon shown opinion expressed prof mark gillie report 30 april 2014 examined respondent day report indicated respondent mild vitreous degeneration eye may cause sensation floater visual acuity 6 6 part right 6 5 left otherwise healthy suggested dr nespolon cross examination respondent may needed move head get rid floater might impeding view dr nespolon unsure intended prof gillie reference sensation floater thought event respondent would needed move head slightly clear floater furthermore adjusting focus scope moving head move floater contact respondent face patient body would need contact dr michael roy burke qualified give evidence respondent however dr burke provided material consisting respondent clinical note information provided respondent provided material setting version event given patient b accordingly extent evidence given patient b accepted preferred relevant factual evidence given behalf respondent unable accept rely upon opinion witness dr burke provided brief report gave oral evidence general practitioner long standing held university appointment substance oral evidence dr burke concerned use dermascope dr burke never used particular scope respondent said utilised opinion clinically possible face examiner touch patient using scope said demonstrated wife demonstrated manner would occur tribunal course giving evidence however dr burke placed scope next right eye whereas respondent evidence used left eye carrying examination patient cross examination dr burke conceded left eye used scope sure face examiner could touch breast patient dr burke adamant event part examiner face could possibly come contact patient would side cheek part mouth could touch patient dr burke conceded much depend upon size breast nature extent breast tissue furthermore would necessary use normal pressure obtain full contact scope breast dr burke also asked question concerning need examination right breast 5 july 2011 noted pathology report effect melanoma said compound naevus capable changing doctor thought would accept surrounding tissue would affected thought overall examination carried date could justified examination breast mole contraindicated examining mole said evidence patient made complaint mole several month biopsy would reason examine breast comment evidence u effect respondent evidence respondent previously provided certain information concerning complaint complainant took form letter solicitor information essence replicated statement made respondent 4 november 2013 answer amended complaint admitted evidence proceeding addition respondent gave evidence cross examined respondent born april 1974 currently life booval queensland qualified medical practitioner india worked general practitioner also spent time capacity uk emigrated family australia 2007 moved city north coast new south wale 2009 october 2010 commenced working general practitioner private practice medical centre working incident subject complaint occurred first time worked general practitioner private practice australia complainant asked respondent provide certain information complaint received entitled law information furnished solicitor acting respondent admitted evidence shall refer reference patient subject proceeding patient athe respondent said first saw 2 march 2011 attended full skin check carried undressed save underwear made complaint seem concerned large mole right breast said concerned respondent examined using dermascope patient pulled right cup bra allow occur identified suspicious mole back asked removed asked biopsy taken mole breast respondent said could sure whether melanoma 8 march 2011 respondent carried procedure operating theatre surgery respondent said patient attended result biopsy 16 march 2011 explained mole back mildly dysplastic mole right breast clear patient attended respondent 18 march 2011 stitch back removed asked check mole buttock told suspicious could review three month time concern 17 june 2011 patient returned mole left buttock reviewed respondent used dermascope said minimal change asked removed said statement told feeling anxious shaky time took blood pressure used stethoscope examine upper chest tested gross motor skill reflex showed abnormality seem discomforted examination patient next attended respondent 22 june 2011 complained feeling anxious depressed four month said pap smear diagnosed sexually transmitted disease hpv said contracted disease previous partner respondent concerned well psychological health prepared gp mental health plan referred psychologist counselling next saw 27 june 2011 asked check sexually transmitted disease hpv felt anxious gave information asked provide blood sample urine sample pathology room associated practice medium letter solicitor dated 8 february 2012 statement 4 november 2013 respondent specifically denied conducting physical examination patient 27 june 2011 however oral evidence respondent said heard evidence patient thought possible mistaken recollection patient may right recollection may wrong also said see happening patient came surgery 5 july 2011 mole left buttock removed undertaken operating theatre said statement operation almost completed patient asked speak sti result went back consulting room waited said seated room entered said door closed oral evidence said could remember closed door discussed partial result come back normal respondent said asked whether change mole asserted replied sure mole breast offered inspect dermascope agreed oral evidence repeated patient volunteered concerned mole breast told easiest perform test lying bed lay bed head flat pillow looking ceiling said lifted top tried make arrangement expose mole loosened shoulder strap bra pulled expose breast mole said examined mole right breast described placed dermascope surface patient right breast mole used thumb index finger left hand support skin around mole adjust zoom said looked scope left eye getting clear feature used swab wiped area mole commenced using dermascope using technique said close surface breast performing examination took second said trying make sure nothing suspicious change mole sign melanoma accused kissing breast although respondent given opportunity furnish information complainant solicitor subsequently prepared statement dated 4 november 2013 gave evidence proceeding respondent mentioned examination using dermascope 5 july 2011 affected way presence floater left eye said course part examination occurred used swab felt might floater said may moved head get rid floater could even focus patient gave jerking movement said thought kissed breast said part examination occurred took swab lasted 10 15 second swab examination took even le time could even focus denied part face came contact breast said occurred deliberately oral evidence respondent elaborated action ordinarily took order clear vision got floater said remove eye eyepiece could get rid blinking clenching eye jerking head denied making circular movement head whilst performing examination specifically denied part mouth came contact patient looked course examination could see looking answer question said clinical reason conducting examination investigate possibility suspicious change mole patient mentioned sure whether change respondent asked cross examination performed dermascope examination 5 july 2011 said patient expressed concern would examined breast especially scar examination conducted directed mole respondent also emphasised patient exhibited discomfort time course examination moment pushed away never expressed appeared concern examination conducted prior incident patient bin letter solicitor dated 17 november 2011 respondent answered certain question put complainant required answer law patient first consulted respondent 10 march 2011 full skin check performed biopsy suspicious lesion right deltoid right thigh told single mother daughter requested bulk billed agreed performed punch biopsy lesion 16 march 2011 also referred program person weight problem risk developing diabetes next seen 25 march 2011 obtain result biopsy said feeling discomfort chest examination respondent arranged testing undertaken revealed trivial mitral regurgitation gave result 1 april 2011 referred cardiologist review date patient b sent respondent email earlier referred expressing appreciation care subsequently received treatment cardiologist respondent said patient next attended 1 july 2011 said clear attending asked blood pressure asked information contraception method discussed recommended insertion mirena implant denied told would perform surgery insert device would referred gynaecologist purpose furthermore device stock surgery product new recently attended training course offered show website manufacturer computer screen suggested pull chair towards computer moved chair closer anticipated said turned towards knee inadvertently touched knee immediately apologised moved chair backwards indication uncomfortable occurred said would go away think wanted respondent said felt uncomfortable occurred way accidental contact thought appropriate change subject said asked whether daughter daycare replied daughter seven year old told daughter age suggested meet daughter come house time coffee meet family gave telephone number mobile phone using phone wife normally used made note number denied made suggestion patient b coffee alone together night seen since surgery time conversation respondent said wife two daughter india intention daughter lonely could meet daughter patient b age later day surgery respondent said received text message patient b following effect hi patient b thanks number offer today took surprise thought family said confused message discussion centred around respective child telephoned said word effect yes family overseas moment back next week arrange meeting heard nothing reply said okay said goodbye heard patient b say okay end conversation statement 4 november 2013 respondent said training culture medical practitioner working india far aware inappropriate social contact medical practitioner patient provided wife mobile phone number patient said aware inappropriate would conduct way future considerationwe come consider complaint brought respondent particular thereof cognisant must consider whether complaint established balance probability regard serious nature matter tribunal must comfortably satisfied established submission made behalf complainant senior counsel complainant emphasised well known principle applied tribunal determining whether medical practitioner engaged either unsatisfactory professional conduct professional misconduct essential standard practised medical profession public confidence standard maintained order protect general public greater vulnerability particular patient greater need protection submission emphasised also patient must able trust integrity expertise doctor especially general practitioner cognisant seen examining particular complaint made complainant respondent proceeding involve consideration integrity misconduct rather capability expertise respondent practice general practitioner come consider particular complaint contained within amended notice complaint amendednotice complainttake notice medical tribunal new south wale received complaint health care complaint commission following consultation medical council new south wale accordance withsections 39 2 908 3 thehealth care complaint act 1993and section 145a health practitioner regulation national law national law dr mohammed adnan naiyer 16 green st booval old 4304 practitioner medical practitioner registered national law complaint onehas guilty unsatisfactory professional conduct within meaning section 1398 national law engaged improper unethical conduct relating practice purported practice medicine ii contravened provision health practitioner regulation new south wale regulation 2010 regulation iii engaged conduct demonstrates knowledge skill judgment possessed care exercised practitioner practice practitioner profession significantly standard reasonably expected practitioner equivalent levelof training experience iv particular complaint oneon 27 june 2011 female patient patient consulted practitioner practice northern nsw medical centre patient expressed concern possibility acquired sexually transmitted disease boyfriend requested practitioner conduct test practitioner performed physical examination patient including external examination genital anal region internal pelvic examination 1 practitioner failed record detail physical examination patient 27 june 201f patient medical record contrary requirement clause 7 part 4 regulation record examination respondent note sole question whether occurred patient adamant occurred respondent suggested undergo respondent acknowledged possible conduct examination although recollection begin recollecting patient presented reliable witness appeared u good recall matter gave evidence furthermore external examination kind internal examination vagina anal region something likely remembered patient invasive highly personal part female body observed many factual difference evidence respondent patient b however great deal independent corroboration evidence patient b example connection issue mother patient said daughter mentioned passing respondent conducted internal examination reference made stressful circumstance entirely benign question fabrication corroborative evidence area corroboration occurred referred later reason decision sufficient present purpose state overall prefer evidence patient b respondent relevant area controversy circumstance comfortably satisfied respondent carried physical examination patient 27 june 2011 conceded respondent recorded medical record required clause 7 part 4 health practitioner regulation new south wale regulation 2010 regulation find complaint proven respect particular find accordingly engaged improper conduct relating practice medicine response prepared solicitor dated 6 february 2012 notice issued undersection 34a 1 thehealth care complaint act 1993the practitioner knowingly provided false information commission breach ofs99ofhealth care complaint act 1993in denied performed physical examination patient 27 june 2011 course giving evidence respondent said good memory purported demonstrate recollecting verbatim content text message patient b sent last consultation however respondent indicated trouble recollecting carried physical examination patient conceded might recollection found conduct physical examination however different matter altogether make positive finding respondent knowingly provided false information complainant denied conducted examination could knowingly provided false information could satisfied circumstance either knew denied recklessly without consideration whether true false simply sufficient evidence available upon could conclude respondent ought aware fact conducted physical examination circumstance decline find complaint proven reference particular practitioner conducted physical examination patient circumstance necessary circumstance respondent asserted conduct examination recollection evidence whether necessary gleaned opinion expressed several expert summarised dr vandenbergh said examination accepted practice undertaken accompanied speculum swab furthermore blood urine test undertaken examination served useful purpose except perhaps determine vaginal discharge observed however evidence would justify examination basis alone dr nespolon opinion necessity vaginal examination conducted summarised evidence especially evidence patient sought examination based evidence conclude necessity respondent conducted examination accordingly complaint made respect particular find result respondent engaged conduct demonstrates knowledge skill judgement possessed care exercised practice profession significantly standard reasonably expected practitioner equivalent level training experience iii practitioner conducted physical examination sufficient detect sexually transmitted disease include visual speculum examination evidence concerning matter found opinion dr vandenbergh set whilst find evidence particular complaint proven observe circumstance subsumed within earlier particular doubt matter submission course stage 2 hearing find respondent engaged conduct demonstrates knowledge skill judgement possessed care exercised practice profession significantly standard reasonably expected practitioner equivalent level training experience complaint twohas guilty unsatisfactory professional conduct within meaning section 1398 national law demonstrated knowledge skill judgement possessed care exercised practice medicine significantly standard reasonably expected practitioner equivalent level training experience ii engaged improper unethical conduct relating practice purported practice medicineparticulars complaint twopatient bon 1 july 2011the practitioner consultation female patient patient b medical centre consultation patient b requested advice contraception practitioner discussed contraception option 1 conclusion consultation 1 july 2011 practitioner asked patient b going make appointment advised patient b would contact medical centre b inappropriately asked patient b going see c inappropriately asked patient b next time coffee coffee night inappropriately said patient b number put number phone gave patient b mobile telephone number 2 later 1 july 2011 response text patient b read hi patient b family practitioner telephoned patient b stated yes overseas ok 3 reason matter referred particular 1 2 individually cumulatively practitioner failed maintain appropriate professional boundary patient b b sought initiate inappropriate personal relationship patient b set detail evidence given respondent given patient b matter version given respondent significantly different given patient particular respondent said time mentioned conversation patient wanted introduce seven year old daughter patient daughter age purpose invitation coffee however version given respondent inconsistent content text message patient b sent question text message forwarded day consultation reason content text message entirely consistent version event given patient b furthermore evidence given father corroborates understanding said respondent reaction accept entirely reasonable reason advanced patient b sending text message namely wanted confirmation whether continue attend respondent medical practitioner accordingly accept respondent used word attributed conversation related patient b necessary determine whether respondent engaged improper unethical conduct using word found used regard word convey invitation socialise outside relationship medical practitioner patient particular reference coffee night opinion conduct respondent improper unethical especially given circumstance patient namely young single mother potentially vulnerable overture kind furthermore conduct need considered context earlier event day namely fact account either touching knee reason earlier advanced prefer evidence patient b respondent accept therefore respondent placed knee knee patient b whether intentionally unintentionally patient b adamant left knee withdraw even though swivel chair forced stand move chair back remove physical contact conduct part respondent inappropriate whilst complaint made proceeding occurrence form part necessary finding made u purpose proceeding fact occurred corroborative concern expressed patient b ongoing relationship respondent response later conduct respondent conversation took place reason find complaint proven reference particular find respondent engaged improper unethical conduct patient aon 8 march 2011 practitioner performed punch biopsy mole patient right breast breast mole pathology report dated 10 march 2011 biopsy stated breast mole compound naevus dysplasia malignancy 16 march 2011 practitioner advised patient pathology result biopsy 18 march 2011 practitioner examined breast mole 5 july 2011 practitioner removed mole patient left buttock procedure 5 july 2011 practitioner consultation patient consulting room medical centre consultation consultation 5 july 2011 practitioner inquired breast mole advised patient mole fine e b told patient needed see whole breast asked remove bra patient adjusted clothing exposed breast mole practitioner examine f c placed head close patient breast moved head around circular motion top patient breast used dermascope examine patient breast mole itwas clinically necessary use dermascope e placed lip patient breast g f reason matter referred c g individually cumulatively practitioner engaged inappropriate conduct sexual nature towards patient vast gulf evidence patient respondent fact patient clearly visibly upset occurred examination corroborated evidence practice manager also corroborated evidence respondent clearly something occurred course examination patient found upsetting version occurred manner respondent conducted set clearly graphically several account extracted summarised said could clearly see respondent looking whilst purporting examine mole breast examination initiated respondent referred seeing eye respondent entirely inconsistent one eye dermascope also inconsistent raised head way clenching left eye remove floater accept evidence expert including dr burke called behalf respondent effect virtually impossible respondent face come contact patient whilst using dermascope left eye given position patient scar examined near nipple right breast right breast therefore nearer examiner cannot conceive examiner face could possibly come contact patient breast using scope manner intended looking straight eyepiece left eye eyepiece furthermore contact would momentary would kind described patient whose description accept preference evidence given respondent matter observe also reference deal floater eye something respondent raised first time whilst giving evidence proceeding almost 3 year event smack recent invention ex post facto rationalisation accept respondent evidence way precluded carrying examination required move head order avoid effect floater generally prefer evidence patient respondent connection particular aspect proceeding find investigation conducted respondent 5 july 2011 subject complaint initiated suggestion respondent patient asked remove bra covering right breast placed head close breast moved head around circular motion top breast placed lip breast placing one lip breast another involves intimate physical contact sexual nature inherent feature sexual activity understood generally community include kind contact describe sufficient conclude conduct sexual nature respondent seek argue contrary gravity matter exacerbated consideration age patient fact single particular relationship time treated respondent degree vulnerability entitled protected leaf consideration whether respondent examined mole right breast clinically necessary use dermascope expert evidence effect arguably necessary respondent examine part right breast patient particularly evidence expressed concern clinical reason conduct examination however read para e particular directed use dermascope per se rather necessity examination whether using dermascope otherwise expert evidence effect examination justified albeit may unusual dermascope could used magnification however qualify observation extent dr burke opinion magnification might inappropriate reason set overall given understanding meaning particular comfortably satisfied proven circumstance find particular c g h complaint made find accordingly respondent engaged improper unethical conduct relating practice purported practice medicine complaint threeis guilty professional misconduct section 139e national law practitioner 1 engaged unsatisfactory professional conduct sufficiently serious nature justify suspension cancellation practitioner registration 2 engaged one instance unsatisfactory professional conduct instance considered together amount conduct sufficiently serious nature justify suspension cancellation practitioner registrationparticulars complaint threecomplaints one two including particular thereof repeated relied individually cumulatively course submission complainant said complaint made either basis elaboration presumably reason particular relied upon applied complaint 1 2 respondent made submission complaint 3 perhaps assumed necessity reason however mindful engaged two stage process rationale behind process allow respondent well complainant adequate opportunity address tribunal order appropriately made consequent upon finding misconduct manner complaint 3 framed consistent provision section 139e national law subsumes within finding conduct also finding consequence obvious order determine matter tribunal required find conduct sufficiently serious nature justify named consequence namely suspension cancellation registration doubt whether make finding whether relevantly satisfied complaint 3 made may trespass area covered stage 2 proceeding foreclose ability party respondent particular make full submission covering totality order available tribunal order made unfortunately matter canvassed hearing inclined take cautious approach refrain making finding whether complaint 3 made matter addressed party hearing set 28 may next given made finding respect particular contained within complaint 1 2 particular apply complaint 3 envisage hearing 28 may next compromised way asking party make submission whether complaint 3 made conclusionthe proceeding stood hearing 10 28 may 2014

Grand Lodge of Western Australia Freemasons Homes for the Aged Incorporated [2014] FWCA 7983 (13 November 2014).txt

grand lodge western australia freemason home aged incorporated 2014 fwca 7983 13 november 2014 2014 fwca 7983fair work commissiondecisionfair work act 2009s 185 application approval single enterprise agreementgrand lodge western australia freemason home aged incorporated masonic care wa ag2014 8085 howard solomon enterprise agreement 2014aged care industrycommissioner cloghanperth 13 november 2014application approval howard solomon enterprise agreement 2014 1 5 november 2014 grand lodge western australia freemason home aged incorporated masonic care wa made application approval single enterprise agreement known thehoward solomon enterprise agreement 2014 agreement application made pursuant tos 185of thefair work act 2009 fw act 2 agreement made following ballot 24 october 2014 3 fair work commission must approve enterprise agreement pursuant 186 fw act requirement set section 187 188 met 4 satisfied material provided commission s 186 187 188 relevant application approval met 5 australian nursing midwifery federation wa branch anf united voice declared anf united voice bargaining representative agreement entitled represent industrial interest employee accordance paragraph 176 1 b fw act anf united voice support approval agreement commission read agree employer statutory declaration support application insofar within knowledge finally anf united voice given notice pursuant 183 fw act want covered agreement 6 agreement approved accordance 54 1 fw act operate 20 november 2014 7 nominal expiry date agreement 30 september 2017 commissionerprinted authority commonwealth government printer price code g ae411063pr557589 var _gaq _gaq _gaq push _setaccount ua 9592794 1 _gaq push _trackpageview function var ga document createelement script ga type text javascript ga async true ga src http document location protocol http ssl http www google analytics com ga j var document getelementsbytagname script 0 parentnode insertbefore ga

ACT Housing v Demelius [2003] ACTRTT 52 (17 October 2003).txt

act housing v demelius 2003 actrtt 52 17 october 2003 residential tenanciestribunal australiancapital territory 957 2003between commissioner housing applicant suzanne demelius respondent statement reasonsthe respondent tenant premise 24c currong apartment braddon act premise residential tenancy agreement dated 14 march 2002 applicant lessor child involved 20 june 2003 applicant lodged application tribunal seeking termination residential tenancy agreement possession premise applicant filed statement particular application dispute party concerning particular alleged statement statement read 1 applicant lessor government authority responsible leasing premise located 42c currong apartment braddon 2612 australian capital territory also known flat 42 block c section 052 suburb division premise 2 applicant lessor registered proprietor premise lease pursuant real property act 1925 3 14 march 2002 respondent tenant respect premise signed residential tenancy agreement copy said residential tenancy agreement annexed hereto marked letter 4 respondent tenant failed pay rent due payable tenancy agreement 5 18 february 2003 notice remedy sent post hand delivered premise copy said notice remedy statement service annexed hereto marked letter b respondent tenant failed remedy account bring two week advance accordance requirement tenancy agreement 6 4 march 2003 andrew teaurima accordance theresidential tenancy act 1997served notice vacate respondent tenant attached notice vacate letter respondent tenant advising applicant lessor decision terminate tenancy outlining option open relation appeal copy said notice vacate letter applicant lessor respondent tenant statement service notice vacate annexed hereto marked letter c 7 23 april 2003 account referred housing manager specialist contact letter hand delivered property copy said referral appointment letter annexed hereto marked letter 8 9 may 2003 filed report stating respondent tenant phone response contact letter copy said report annexed hereto marked letter e 9 20 may 2003 calling card requesting contact rental arrears hand delivered premise response copy said calling card annexed hereto marked letter f 10 28 may 2003 respondent tenant attended shopfront tenant informed debt account stated would submit rebate form overdue letter addressing arrears rebate form handed contact arrears copy said file note annexed hereto marked letter g 11 4 march 2003 rent premise arrears extent 259 44 copy statement account respect respondent tenant annexed hereto marked letter h 12 respondent tenant vacated premise accordance notice vacate 13 applicant lessor requires termination possession order effect warrant eviction 14 applicant lessor seek liberty relist matter tenant responsible maintenance order payment compensation damage premise subsequent respondent tenant vacating premise tribunal served copy application respondent mail together notice hearing advising matter listed 11 july 2003 11 july 2003 attendance respondent communication respondent matter proceeded exparte another member tribunal made unconditional order terminating tenancy pursuant tosections 43 1 and49 1 residential tenancy act 1997 act ordering warrant possession issue rent arrears time 2032 98 4 15 july 2003 respondent applied tribunal set aside order application said notice hearing received waiting appointment unspecified body legal assistance tribunal listed matter haring friday 18 july 2003

Knight v McSweeney [2013] NSWLEC 1035 (13 February 2013).txt

knight v mcsweeney 2013 nswlec 1035 13 february 2013 knight v mcsweeney 2013 nswlec 1035 13 february 2013 last updated 6 march 2013land environment courtnew south walescase title knight v mcsweeneymedium neutral citation 2013 nswlec 1035hearing date 13 february 2013decision date 13 february 2013jurisdiction class 2before galwey acdecision application dismissed catchword tree neighbour damage property risk injury application dismissed legislation cited tree dispute neighbour act 2006cases cited barker v kyriakides 2007 nswlec 292dooley anor v nevell 2007 nswlec 715hendry anor v olsson anor 2010 nswlec 1302category principal judgmentparties mark knight applicant paula mcsweeney first respondent david mcsweeney second respondent representation solicitor mark knight applicant litigant person brian phillips mcw lawyer respondent file number 21090 2012judgmentthis decision given extemporaneous decision revised edited prior publication introductionmr knight owner darlinghurst property 13 year knight renovated terrace house approximately 11 year ago adding two level addition rear dwelling landscaping courtyard time large tree already stood neighbouring property south west property owned mcsweeneys since 1985 rented recently mr knight concerned tree damaged property may cause injury underpart 2of thetrees dispute neighbour act 2006 theact applied land environment court removal tree compensation 43 000 damage property cost 770 arborist report commissioner power award cost application regarding final order sought would require notice motion heard judge mr knight wish pursue mcsweeneys value tree wish retain say evidence tree caused damage knight property framework theactthe court must consider matter within following framework firstly jurisdictional test at 7 tree must neighbouring land dispute court must satisfied at 10 2 tree caused causing likely near future cause damage applicant property b tree likely cause injury jurisdictional test met court must consider range matter listed unders 12 finally order made at 9as court see fit issue several main issue need resolved firstly applicant shown sufficient evidence demonstrate tree caused damage shown tree caused damage severity secondly tree likely cause injury also consideration matter fact tree first jurisdictional test must considered unders 12of theact situationthe site hearing allowed observation property tree within property observation alleged damage tree common hackberry celtis occidentalis approximately 20 metre tall growing rear courtyard respondent property appears around 50 year old good health two main stem tree broad crown spread much respondent courtyard extends applicant courtyard applicant pointed main concern debris including leaf berry fall onto property staining pavers blocking gutter drain applicant pointed discoloration small gap floorboard near back door dwelling took u upstairs bathroom pointed water damaged plaster shower matter relate damage applicant say initiated debris falling tree courtyard applicant pointed small section paving say lifted root neighbouring tree applicant submissionsthe applicant claim pavers discoloured droppings bird bat attracted tree well leaf fruit tree fallen debris block gutter drain say take 2 3 hour every weekend clean debris paving applicant say tree block sunlight causing mould grow pavers relies damage cost estimated letter birgitte randall say builder claim 13 000 one year courtyard cleaning 2 500 cleaning gutter applicant say flooding caused drain blocked debris damaged floorboard rear house noted slight discoloration small gap several board damage appears minor say flooding also damaged door rear house applicant claim 7 000 new floor 9 000 new door applicant say bathroom ceiling upstairs damaged gutter became blocked debris tree claim 1 500 ceiling repair repair light painting applicant say root tree lifted paving damage likely claim 10 000 cost new paving item comprise applicant total compensation claim 43 000 applicant concerned injury may result falling limb saying several limb fallen time lived respondent submissionsthe respondent say value tree amenity shading habitat tree west dwelling provides shelter hot afternoon sun summer say cleaning fallen debris onerous say applicant lifted paving could caused tree side applicant respondent submit tree applicant undertook house renovation landscaping applicant taken consideration designing drain gutter paving argue applicant extended dwelling beneath tree canopy level changed garden contributing drainage issue respondent say told limb fell tree applicant property limb cause injury returned fence findingsdamage caused debris treeas explained indooley anor v nevell 2007 nswlec 715damage caused animal damage caused tree even tree provides habitat animal cause damage property discoloration paving caused animal droppings therefore fall within act jurisdiction although leaf may discoloured light coloured pavers applicant argues damage damage minor warrant court interference regarding issue refer principle set commissioner inbarker v kyriakides 2007 nswlec 292at 20 people live urban environment appropriate expect degree house exterior ground maintenance required order appreciate retain aesthetic environmental benefit tree urban environment particular reasonable expect people living environment might need clean gutter surround house regular basis dropping leaf flower fruit seed small element deadwood urban tree ordinarily provide basis ordering removal intervention urban tree applicant view level maintenance required extreme however nothing situation extreme situation court dealt see reason principle apply expectation applicant maintain property also return fact tree first applicant would aware time purchase well renovation leaf would fall onto pavers principle regarding maintenance extended inhendry anor v olsson anor 2010 nswlec 1302to include cleaning mould slime considering application regarding compensation cleaning pavers gutter dismissed insufficient evidence presented satisfy court damage dwelling door flooring bathroom ceiling resulted tree debris blocking gutter drain certainly possible factor contributed flooding downstairs insufficient size drain bathroom ceiling affected steam shower however even area damage directly result gutter drain blocked debris tree principle stated previously frombarker applies cleaning gutter drain onus applicant maintain item functional state consequence compensation claim repair dwelling dismissed damage caused tree rootsonly one small section paving lifted extent lifting minor cause trip hazard otherwise interfere functioning paving remainder paving across courtyard unaffected applicant show lifting result root hackberry view damage presently minor even applicant could show caused hackberry root severe enough warrant making order risk injurythe tree pruned recent year arborist report mr william home submitted applicant state risk injury conclusion summary summary say could form hazard later date bringing expertise matter accept significant risk injury falling limb conclusionsregarding much damage compensation sought applicant demonstrated satisfactory level damage caused neighbouring tree however even able damage allegedly resulted fallen debris effect fallen debris would apparently avoided maintenance principle set inbarkeris relevant reasonable expect people living environment might need clean gutter surround house regular basis applicant fully aware tree presence renovated landscaped implication living close tree would foreseeable applicant demonstrated court satisfaction respondent tree lifted paving however even able damage minor warrant order court reason compensation shall ordered accept tree likely cause injury tree benefit owner neighbourhood considerable ordersas result foregoing order court 1 application dismissed galweyacting commissioner court

Antonopoulos v Australian Outdoor Living (Victoria) Pty Ltd (Building and Property) [2023] VCAT 1131 (4 October 2023).txt

antonopoulos v australian outdoor living victoria pty ltd building property 2023 vcat 1131 4 october 2023 last updated 5 october 2023victorian civil administrative tribunalcivil divisionbuilding property listvcat reference bp238 2023catchwordsinstallation artificial lawn damage sewage pipe course installation damage assessed amount paid owner plumber unblock sewage pipe discussion party written contract respondent guarantee unfair term consumer contract section 23 theaustralian consumer law victoria claim applicant speculative necessarily illusory warranting balance proceeding struck right apply reinstatementfirst applicantalexander antonopoulossecond applicantnatalie antonopoulosrespondentaustralian outdoor living victoria pty ltd acn 137 265 402 heldmelbournebeforei lulham deputy presidenthearing typehearingdate hearing28 september 2023date order4 october 2023citationantonopoulos v australian outdoor living victoria pty ltd building property 2023 vcat 1131orderthe principal registrar directed amend register first applicant surname spelt correctly antonopoulos respondent shall pay applicant 2 304 50 shall also reimburse applicant filing fee proceeding 224 80 proceeding otherwise struck right apply reinstatement narrow purpose described paragraph 37 38 attached reason application reinstatement must accompanied fresh proposed point claim set separate numbered paragraph articulating claim sought made applicant proceeding reinstated lulhamdeputy presidentappearances applicantsin personfor respondentmr v govin mr r le company officersreasonsthe applicant live suburban house built 2020 december 2021 engaged respondent supply install artificial lawn back yard property applicant allege installation done way caused sewage pipe house become blocked applicant spent money plumber rectifying blockage emergency basis plumber required applicant roll back artificial lawn expose inspection pit whilst work carefully rolling product caused join two panel artificial lawn become visible prompted respondent say lawn longer warranted interfered applicant claim damage 15 000 00 assessed reference amount paid plumber plus notional value loss warranty respondent defends claim several base say sewage pipe became blocked result installation artificial lawn arose applicant instructing respondent installation subcontractor change level pipe respondent say contrary requirement variation contract applicant respondent expressly agreed requirement applicant deal directly subcontractor respondent say applicant engaged plumber directly made warranty claim respondent respondent submission respondent given opportunity rectify blocked sewage pipe relief liability respondent relies defence plumber produced formal report filmed photographed inside sewage pipe issued invoice respondent also dispute applicant right compensation plumber charge defence extends significant proportion 15 000 00 claim contract respondent contractual guaranteethe respondent prepared written contract work form order form term condition back document printed relevant detail inserted box left side front page sketch proposed work drawn right side document signed customer detail inserted left side front page recorded respondent supply install 40 augusta artificial lawn excavating 36 m2to standard depth removing waste using 3 skip applicant would pay bin company directly installing 36 m2 double base sketch right side page showed area artificial lawn would 3 3 x 10 9 area sloped towards applicant house sketch word backfill subject check measure written next word written 1065 direct installer heading note written timber 525 contract work named second applicant client signed document 17 december 2021 space headed acceptance order sentence extra work performed unless detailed order change check measure charged normal rate plus additional admin charge immediately second applicant signature word read understood term condition overleaf received copy pre post installation instruction contract work recorded total price 6 140 00 applicant paid deposit 1 500 00 17 december 2021 case concern applicant allegation respondent install artificial lawn properly led toilet house becoming blocked convenient note respondent relies clause term condition clause headed seller warranty contained word respondent warrant material used good suitable purpose b unless otherwise agreed customer material new c responsibility customer ensure sought necessary approval local council relevant government authority confirmed work subject contract contravene sic requirement either local council government authority customer hereby indemnifies respondent subsequent breach law bylaw obligation relevant work subject sic claim work carried appropriate skilful way reasonable care skill e work carried according relevant plan specification f provisional illegible calculated reasonable care skill another clause headed seller contained word c accept responsible sic damage underground service noted work order responsibility homeowner point underground service including pipework irrigation phone line cable service etcanother clause headed customer contained word accurately indicate contractor location underground service work begin including stormwater sewerage electricity gas water phone line damage owner expensethe respondent also relies post contractual document respondent call guarantee card contained term condition bottom customer satisfaction slip refer appropriately document state right granted consumer addition enjoyed theaustralian consumer law victoria term condition guarantee include following augusta artificial lawn attracts seven year guarantee plus one year guarantee labour three type artificial lawn also named duration guarantee also stated repair warranty period must carried qualified aol representative tampering product could result warranty becoming void aol abbreviation respondent name product must cared maintained suitable manner per manufacturer recommendation future product fault workmanship concern within period defined per product addressed term warranty warranty claim must writing reported within 48 hour fault occurring upon receipt written warranty claim aol contact ass nature concern dispatch service person inspection required site visit required service person document agreed remedy prior rectification work commencing possible agreed rectification work commence within 21 business day warranty claim denied due poor use lack maintenance reasonable upkeep claimant may subject service charge additionally applicant gave evidence read brochure like material respondent product respondent website decided engage respondent say contained representation relevant claim respondent attended applicant property around 14 january 2022 completed document headed artificial lawn site evaluation check measure form style contract work containing room sketch right hand side document though internal document respondent respondent give copy customer document produced hearing way discovery artificial lawn site evaluation check measure form contains similar sketch contract work showing area measuring 3 3 x 10 9 three arrow pointing page signifying area sloped towards applicant house text written officer respondent around sketch follows next arrow pointing edge area word timber edge done next arrow pointing circle written centre section area signifying inspection pit sewage line word inspection cover sketch word customer install timber edging sleeper customer want hide timber finish grass top sleeper customer really aware crush rock cover sewerage connection inspection point adam spoken customer 14 01 2022 friday author artificial lawn site evaluation check measure form called give evidence stated document internal respondent word third bullet point contain date 14 january 2022 date document read adam respondent spoken applicant day author prepared form second sentence appears bit self serving evidence witness suggesting form prepared date 14 january 2022 worksthe respondent supplied installed artificial lawn installation carried respondent subcontractor brendan eddington installer finished installation 1 february 2022 second applicant sign brief document headed customer satisfaction slip torn guarantee card along perforated edge immediately second applicant signature pre populated word completely satisfied delivery installation first applicant submitted typed statement tribunal summary alleged fact legal argument distinct record diary note like made contemporaneously event substance document completing contracted agreed work respondent installer brendan eddington raised 27a inspection point sewage pipe low nearly bottom subgrade soil non compliant plumbing code australia first applicant understood sewage pipe would lifted made compliant first applicant discussed brendan eddington respondent production manager richard le telephone call conversation first applicant expectation richard le would organise raising pipe licensed plumber respondent told applicant prepared would told first applicant get licensed plumber work first applicant also gave evidence substantially effect orally hearing emphasised speak brendan eddington alone also spoke richard le respondent first applicant reject allegation applicant dealt directly respondent subcontractor oral evidence first applicant said one relevant telephone discussion brendan eddington richard le level sewage pipe brendan eddington richard le advised first applicant sewage pipe raised assumption applicant entitled rely richard le experienced expert applicant followed advice gave instruction sewage pipe raised b brendan eddington advised lawful cover inspection pit artificial lawn note applicant said eps later advised unlawful c first applicant removed concrete pad sleeve sewage pipe respondent request first applicant raise sewage pipe response respondent putting first applicant changed mind two day installation artificial lawn first applicant negotiated directly brendan eddington raise sewage pipe even though respondent policy variation must agreed respondent client first applicant concede changed mind emphasised spoke brendan eddington richard le together meaning submission first applicant talking respondent subcontractor blockagethe applicant holding engagement party house saturday 5 february 2022 expecting around hundred guest afternoon shortly guest arrive toilet became blocked presented applicant emergency immediately called plumber eps eps carried emergency work issued invoice applicant 2 304 50 applicant paid narration eps invoice said attended property inspect blocked sewer found soil drain crush rock suspected sewer drain may back falling 27a inspection point council side call fee 240 labour 960 sewer machine 895 subtotal 2095 plus gst 209 50 equal 2 304 50 eps arrived site inspection point underneath artificial lawn eps told applicant prepared interfere artificial lawn fear legal liability kind first applicant therefore carefully rolled back artificial lawn expose inspection point first applicant said observed sewage pipe lifted 300 mm top immediately artificial lawn top inspection pit capped around 40 50 mm lower finished level artificial lawn crushed rock sand placed artificial lawn part installation able fall sewage pipe inspection pit examined first applicant saw sewage pipe rock glue holding plate top inspection pit also fallen rock first applicant concludes brendan eddington probably see rock entered sewage pipe raising simply placed plate top presence glue convinces first applicant rock present brendan eddington glued plate first applicant gave evidence eps reported applicant sewage pipe blocked way inspection pit inspection pit applicant neighbour side fence eps need photograph sewage pipe run camera sewage pipe rock visible eps used camera would charged applicant service circumstance applicant argue invoice eps sufficient evidence absence report video relieve respondent liability since eps unblocked sewage pipe operated appropriately analysisthe contract required respondent lift sewage pipe liable consequencesif applicant respondent contract respondent defined scope work applicant went behind respondent back respondent subcontractor perform additional work direct arrangement applicant without knowledge respondent additional work defective would merit respondent defence however first applicant evidence spoke brendan eddington richard le denied respondent cause conclude matter law respondent raised sewage pipe fact rock glue observed inside sewage pipe must conclude respondent allowed rock enter sewage pipe raising respondent therefore caused blockage clause seller warranty provided work carried appropriate skilful way reasonable care skill warranty complied respondent respondent argument given opportunity unblock sewage pipe defenceas discus term respondent guarantee might purport require applicant repair done respondent one else void none clause respondent term condition give defence require applicant repair done respondent beyond though argument commonly put trader right rectify defective work fallacious building contract contain maintenance clause expressed require builder rectify defect emerge within defined period hand commercial term clause advantage builder rather principal clause party contract common law contract performance defective work builder amount breach contract principal owner consumer innocent party right claim damage amount damage generally assessed objective reasonable cost rectifying defect principal spends excessive sum either work performed go beyond rectifying defect simply allowing overcharged new contractor builder damage assessed amount le spent principal principal run risk might spend money able recover builder builder often argue could repaired defect cheaper wholesale price principal rectifying builder charged principal retail price impression might gained builder right repair case right repair respondent cannot argue applicant breached contractual obligation question arises whether applicant paid eps legitimately claim respondent satisfied applicant throwing engagement party expecting large number guest day toilet blocked respondent defective work applicant undoubtedly entitled call emergency plumber rectify blockage evidence eps performed work unnecessary overcharged particular circumstance blockage respondent cannot reasonably argue applicant obtained second quote competitive plumber 2 304 50 appear excessive charge hesitation awarding 2 304 50 applicant respondent contractual guarantee assist respondentfirst guarantee expressed tight term applicant cannot rely example clause say repair warranty period must carried qualified aol representative tampering product could result warranty becoming void cover two different separate concept first sentence construe word repair apply labour material therefore includes repairing respondent labour raising sewage pipe however stating work must carried respondent without result applicant claim necessary work carried someone else word tampering second sentence might refer first applicant rolling artificial lawn back expose inspection pit equally though might tampering connotes immoral improper interference product akin vandalism carrying work necessary assuming minute first applicant activity tampering sentence say warranty could become void without criterion explanation could result simply matter interpretation clause effect assist respondent clause warranty purport require warranty claim writing reported within 48 hour fault occurring give respondent sole discretion deciding whether arrangement inspection stating rectification work would commence within 21 day possible void operation section 23 theaustralian consumer law victoria briefly section provides term standard form consumer contract void unfair section 27 1 place burden supplier establish contract standard form contract respondent could satisfy burden proceeding imposed customer printed document pre populated term condition customer must simply accept party contract consumer contract defined section 23 given artificial lawn supplied personal domestic household use applicant home meaning unfair set section 24 example given section 25 without setting section important theme concept term consideration cause significant imbalance party right obligation reasonably necessary protect legitimate interest party would advantaged term case respondent example section 25 term permit effect permitting one party another party avoid limit performance contract h unilaterally determine whether contract breached interpret meaning contract k limit one party right sue another party term condition contracti set relevant clause simply plain reading find none relevant clause respondent term condition give defence require applicant repair done respondent applicant claim damagesas stated applicant entitled damage 2 304 50 document stand statement claim applicant say respondent rectify damage artificial lawn caused first applicant rolling relatively small amount give eps access inspection pit would like full refund initial cost artificial lawn 6 140 00 plus damage leading total 15 000 00 claim effect additional 12 695 50 misconceived first evidence establishes bulk artificial lawn untouched good quality properly installed applicant cannot obtain refund keep artificial lawn secondly amount damage caused artificial lawn first applicant rolling stage unclear hearing first applicant mr le agreed join panel artificial lawn visible first respondent rolled lawn join invisible however neither side given evidence degree gain impression applicant artificial lawn particularly unsightly join come apart danger hearing respondent made open offer applicant rejected accepted deal would required applicant waive claim 2 304 50 return respondent would carried professional repair join would licensed plumber carry necessary work inspection pit respondent request offer rejected particularly respondent specify work proposing carry would seize offer make order requiring respondent perform sort work better course applicant claim damage based alleged rather undefined damage artificial lawn caused first applicant rolling struck right apply reinstatement already said respondent cannot void warranty artificial lawn respondent made open offer clear respondent intends refuse repair artificial lawn essentially dispute tribunal time relation damage artificial lawn applicant make claim warranty choose consider respondent response claim decide whether seek reinstate proceeding noting applicant use word damage signify something would round claim 15 000 00 note many self represented party seem think tribunal add amount properly assessed damage recognition party annoyed inconvenienced case would counsel applicant read famous case asaddis v gramophone co ltd 1909 ac 488 orbaltic shipping co v dillon 1993 hca 4 1993 176 clr 344if require confirmation party self represented throughout proceeding issue one party seeking cost however applicant paid filing fee 224 80 whilst award 2 304 50 much lower 15 000 00 claimed claim additional 12 695 50 add length hearing party preparation time appropriate respondent reimburse fee applicant lulhamdeputy president

Phillips v MCG Group Pty Ltd [2013] QCA 83 (16 April 2013).txt

phillips v mcg group pty ltd 2013 qca 83 16 april 2013 last updated 16 april 2013supreme court queenslandcitation phillips v mcg group pty ltd 2013 qca 83parties lawrence william phillips appellant vmcg group pty ltd respondent file appeal 5567 2012sc 11924 2010division court appealproceeding general civil appealoriginating court supreme court brisbanedelivered 16 april 2013delivered brisbanehearing date 9 november 2012judges fraser white jja daubney jseparate reason judgment member court concurring order madeorder appeal dismissed cost catchword damage measure remoteness damage action tort measure damage personal injury non pecuniary damage pain suffering appellant suffered spinal injury working respondent scraper driver mine site respondent accepted liability appellant prior spinal injury different part lumbar spine latter injury party dispute much pain attributable latter injury whether error identifiable primary judge assessment general damagesdamages measure remoteness damage action tort measure damage personal injury loss earnings earning capacity appellant residual earning capacity injury party dispute employment appellant would otherwise injury judgment whether error identifiable primary judge assessment damage loss earning capacity double discountingdamages measure remoteness damage action tort measure damage personal injury loss earnings earning capacity party dispute employment appellant would otherwise remainder working life party dispute date appellant would otherwise retired whether error identifiable primary judge assessment damage loss future earning capacityarthur robinson grafton ltd v carter 1968 122 clr 649 1968 hca 9 consideredbell v mastermyne pty ltd 2008 qsc 331 consideredcameron v foster 2010 qsc 372 consideredcommonwealth australia v elliott 2004 nswca 360 citedcraddock v anglo coal moranbah north management pty ltd 2010 qsc 133 consideredfederal commissioner taxation v st helen farm act pty ltd 1981 146 clr 336 1981 hca 4 citedhopkins v workcover queensland 2004 qca 155 consideredkoven v hail creek coal pty ltd 2011 qsc 51 consideredmalec v jc hutton pty ltd 1990 169 clr 638 1990 hca 20 consideredmedlin v state government insurance commission 1995 182 clr 1 1995 hca 5 citedmiller v jennings 1954 92 clr 190 1954 hca 65 citedminchin v public curator queensland 1965 alr 91 citedmontemaggiori v wilson 2011 wasca 177 citednewell v lucas 1964 5 nswr 1597 consideredpaul v rendell 1981 55 aljr 371 1981 34 alr 569 consideredpurkess v crittenden 1965 114 clr 164 1965 hca 34 consideredseltsam pty ltd v ghaleb 2005 nswca 208 consideredsmith v topp 2003 qca 397 consideredstate new south wale v moss 2000 54 nswlr 536 2000 nswca 133 citedtodorovic v waller 1981 150 clr 402 1981 hca 72 citedvan gervan v fenton 1992 175 clr 327 1992 hca 54 consideredwatts v rake 1960 108 clr 158 1960 hca 58 consideredcounsel r c morton appellantg w diehm gc driscoll respondentsolicitors morton morton appellantmcinnes wilson respondent 1 fraser ja advantage reading reason judgment white ja agree reason order proposed honour 2 white ja 28 august 2008 eight day commenced employment respondent scraper driver mine site near moranbah appellant sustained compression fracture l2 50 per cent 70 per cent loss vertebral height thereafter unable return paid employment time trial receipt disability support pension 3 liability issue trial respondent accepted responsibility state vehicle appellant driving led accident injured 4 party agreement many head damage various rate pay went trial assessment general damage past economic loss loss future earning capacity appellant sustained serious back injury earlier employment able undertake employment thereafter assistance considerable amount prescribed opioid analgesic 5 primary judge assessed disputed head damage follows

SZCJV v Minister for Immigration [2005] FMCA 1853 (7 December 2005).txt

szcjv v minister immigration 2005 fmca 1853 7 december 2005 last updated 8 february 2006federal magistrate court australiaszcjv v minister immigration 2005 fmca 1853migration review decision refugee review tribunal tribunal find subjective fear tribunal relies independent country information migration act 1958 48bfederal magistrate court rule 2001chan v minister immigration 1989 hca 62 1980 169 clr 379b41 2003 2004 fca 30applicant szcjvrespondent minister immigration multicultural indigenous affairsfile number syg16 2004judgment raphael fmhearing date 7 december 2005date last submission 7 december 2005delivered sydneydelivered 7 december 2005representationsolicitors applicant applicant personcounsel respondent mr j smithsolicitors respondent australian government solicitororders 1 application dismissed 2 applicant pay respondent cost sum 5 000 00 pursuant topart 21rule 21 02 2 thefederal magistrate court rule federal magistratescourt australia atsydneysyg16 2004szcjvapplicantandminister immigration multicultural indigenous affairsrespondentreasons judgment1 applicant citizen lebanon first arrived australia 10 november 2001 would appear arrival based upon holding spouse visa appears left australia returned 13 june 2003 23 june 2003 lodged application protection class xa visa department immigration multicultural indigenous affair 22 july 2003 delegate minister refused grant protection visa 18 august 2003 applicant applied review decision 2 applicant attended hearing refugee review tribunal 5 november 2003 6 november 2003 tribunal determined affirm decision grant protection visa handed decision 3 december 2003 3 applicant claim well founded fear persecution convention reason political opinion arises support right wing militia group known lebanese force lf although told tribunal active member lf claimed targeted syrian force result support lf father support michael aoun militia leader time exiled france 4 persecution complained applicant appears threat made member syrian force sf occurred time came australia first time upon return lebanon 5 application court applicant complains tribunal understand proper definition persecution would appear claim associated fact alleges occurred involve physical assault upon person consisted threat carried would involved assault 6 however mr smith submits ground complaint point tribunal determined considering evidence given applicant weighing country information available applicant history problem sf exist tribunal say cb 64 tribunal find numerous substantial conflict applicant assertion ici much amount finding claimed factual base fear part stem speculation might able find job return lebanon 7 tribunal came conclusion totality evidence applicant genuine subjective fear persecution finding based volume discrepancy applicant assertion ici identified lack supporting detail application generally vague unconvincing speculative nature answer tribunal question 8 applicant argued application tribunal finding based largely general independent information little consideration claim perusal reason decision court book make clear applicant claim considered tribunal questioned upon unable accept applicant argument regard 9 tribunal responsibility satisfy concerning applicant claim order entitled rely upon independent country information well knowledge situation particular country applicant hail whilst applicant burden proof required provide tribunal sufficient evidence enable reach state satisfaction required act 10 tribunal entitled prefer evidence independent country information provided applicant constitute error let alone jurisdictional error mchugh j said inchan v minister immigration 1989 hca 62 1980 169 clr 379at 428 unlikely therefore state party expected grant refugee status person whose account although plausible coherent inconsistent state understanding condition country nationality 11 today applicant gave long history complaint migration agent complaint transcript available read necessary migration agent named complaint appear vague centred around demand money well established failure migration agent failure applicant take advice given migration agent indeed taking advice given applicant migration agent constitute jurisdictional error part tribunal b41 2003 2004 fca 30 applicant genuine claim migration agent entitled take relevant authority request minister grant opportunity make application 48b themigration act 1956 cth matter court 12 whilst might suggested given doubt surrounding validity finding subjective fear expressed professor hathaway others tribunal might better confined expression nothing fear based upon evidence suggested infelicity expression render decision invalid virtue jurisdictional error still law australia two element well founded fear persecution subjective objective 13 dismiss application order applicant pay respondent cost sum 5 000 00 pursuant part 21rule 21 02 2 thefederal magistrate court rule certify preceding thirteen 13 paragraph true copy reason judgment raphael fmassociate date

Stockdale v Kingston CC [2015] VCAT 1675 (22 October 2015).txt

stockdale v kingston cc 2015 vcat 1675 22 october 2015 last updated 4 november 2015victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p747 2015permit application kp446 2014catchwordsapplication section 82 theplanning environment act 1987to review notice decision grant permit kingston planning scheme general residential 3 zone four double storey dwelling incremental change policy neighbourhood character amenity parking applicantssusan anitra stockdale helen peterson graeme val farnel barry mathews phillip lilley rita danny matic jeanne robert moody chamille foote ray evansresponsible authoritykingston city councilrespondentilyar rexitsubject land13a lord avenue dingley villagewhere heldmelbournebeforechristopher harty memberhearing typehearingdate hearing24 september 2015date order22 october 2015citationstockdale v kingston cc 2015 vcat 1675orderthe decision responsible authority varied permit application kp446 2014 permit granted directed issued land 13a lord avenue dingley village permit allows development four 4 double storey dwelling lot general residential zone 3in accordance endorsed plan subject condition set notice decision grant permit kp446 2014 issued responsible authority 30 march 2015 modified accordance condition appendix christopher hartymemberappearancesfor applicantsmr michael dunn town planner metropol planning solution responsible authorityms jaclyn murdoch town planner respondentmr robert easton town planner easton consulting informationdescription proposaldevelopment four 4 double storey dwelling nature proceedingapplication undersection 82of theplanning environment act1987

Jones v Boroondara CC [2000] VCAT 506 (29 January 2000).txt

jones v boroondara cc 2000 vcat 506 29 january 2000 last updated 1 august 2000victorian civil administrative tribunalplanning list 1999 072003catchwordsplanning list application unders 77of theplanning environment act 1987 boroondara planning scheme residential 1 zone pilot application use statement planning information multi dwelling good design guide open space landscapingapplicantgraeme jonesrespondents objector john pressley linda rohrsresponsible authorityboroondara city councilwhere heardmelbournebeforerichard walter memberdate hearing20 december 1999date ordersubject land52 yerrin street balwynorder1 application review allowed decision responsible authority set aside permit granted directed issued land 52 yerrin street balwyn 2 permit allow construction three dwelling accordance endorsed plan 3 permit must contain following condition 1 use development matter thing hereby permitted shall strictly comply description endorsed plan shall altered modified whether order comply statute statutory rule local law reason without consent responsible authority 2 land must drained satisfaction responsible authority drainage work must completed prior occupation building 3 stormwater drain connected legal point discharge approved council drainage connection within road reserve must council standard council supervision permit required work 4 applicant responsible person required meet full cost reinstatement council asset damaged result demolition building construction work 5 work within dripline tree subject site adjoining property driplines encroach upon site must supervised qualified landscape architect horticulturist ensure work done manner protects minimises damage tree 6 access driveway parking area area shall properly graded drained provision inlet grating pit connected household drainage system legal point discharge accordance council standard satisfaction responsible authority driveway edged prevent run adjoining property 7 prior commencement building work hereby permitted later date responsible authority may approve writing landscape plan incorporating survey existing vegetation natural feature b area area set aside landscaping c schedule proposed tree shrub ground cover include location size maturity plant botanical name plant location area covered grass lawn surface material specified paving retaining wall fence design detail landscape work including area cut fill shall submitted approved responsible authority endorsed copy landscape plan form part permit landscaping accordance approved plan schedule shall thereafter used garden shall maintained proper tidy condition satisfaction responsible authority 8 existing vegetation shown endorsed plan must suitably marked development start site vegetation must removed destroyed lopped without written consent responsible authority 9 work within dripline tree retained must supervised qualified landscape architect horticulturist ensure work done manner protects minimises damage tree specifically report shall obtained landscape architect horticulturist regarding measure taken protect cupressus lambertiana frontage setback remedial work undertaken ensure health tree 10 permit shall expire use development commenced within period two 2 year date hereof b development completed within two 2 year date commencement unless responsible authority upon written application made within three 3 month expiration permit shall writing approve extension time 11 use development start amended plan must submitted satisfaction responsible authority plan satisfaction responsible authority endorsed form part permit plan must drawn scale dimension three copy provided generally accordance plan submitted application modified show reduction amount hard surfaced paving within private open space area dwelling replacement pervious material following discussion applicant responsible authority ______________________________richard waltermemberplanning listappearancesfor applicant review mr john cicero best hooper solicitor mr hooper called mr e zagami planning consultant provide expert evidence responsible authority m jane tait consultant planner respondent objector m linda rohrs appeared person made verbal submission behalf mr john pressley reasons1 application undersection 77of theplanning environment act1987

Edward Lees Imports Pty Ltd v Department of Finance Services and Innovation t_as Commissioner of Fair Trading [2020] NSWSC 256 (18 March 2020).txt

edward lee import pty ltd v department finance service innovation commissioner fair trading 2020 nswsc 256 18 march 2020 last updated 18 march 2020supreme courtnew south walescase name edward lee import pty ltd v department finance service innovation commissioner fair tradingmedium neutral citation 2020 nswsc 256hearing date 5 march 2020decision date 18 march 2020jurisdiction common lawbefore adamson jdecision 1 grant leave appeal decision appeal panel 2 appeal allowed 3 set aside decision appeal panel made 31 may 2019 decision senior member dinnen 27 july 2018 except far senior member dinnen set aside determination commissioner dated 14 march 2017 4 order defendant pay plaintiff cost proceeding catchword administrative law statutory requirement procedural fairness motor dealer repairer act 2013 nsw 41 whethers 41binds tribunal reviewing determination made actadministrative law procedural fairness notice particular case applicant disciplinary action undermotor dealer repairer act 2013 nsw disciplinary action must commenced show cause notice new matter particularised show cause notice introduced hearing whether introduction new matter denial procedural fairnesslegislation cited administrative decision review act 1997 nsw s 7 58 63civil administrative tribunal act 2013 nsw s 38 80 83interpretation act 1987 nsw 33legal profession act 1987 nsw medical practice act 1992 nsw 43migration act 1958 cth s 424a 425motor dealer repairer act 2013 nsw s 8 25 27 38 39 41 42 43 46 52 54 100 176motor dealer repairer regulation 2014 nsw pt 3 reg 42road transport act 2013 nsw 68supreme court act 1970 nsw 75auniform civil procedure rule 2005 nsw r 42cases cited cl v r 2014 nswcca 196della vedova v r 2009 nswcca 107edward lee import pty ltd v commissioner fair trading 2019 nswcatap 134edward lee import pty ltd v commissioner fair trading 3 2018 nswcatod 116frugtniet v australian security investment commission 2019 hca 16 2019 93 aljr 629re minister immigration multicultural indigenous affair ex parte lam 2003 214 clr 1 2003 hca 6saap v minister immigration multicultural indigenous affair 2005 228 clr 294 2005 hca 24sabag v health care complaint commission 2001 nswca 411smith v new south wale bar association 1992 176 clr 256 1992 hca 36sudath v health care complaint commission 2012 84 nswlr 474 2012 nswca 171walsh v law society new south wale 1999 198 clr 73 1999 hca 33category principal judgmentparties edward lee import pty ltd plaintiff department finance service innovation commissioner fair trading defendant representation counsel j r young plaintiff j sheller sc n f case defendant solicitor g law group plaintiff fair trading legal service defendant file number 2019 201143decision appeal court tribunal nsw civil administrative tribunaljurisdiction appeal panelcitation 2019 nswcatap 134date decision 31 may 2019before harrowell principal member anderson senior memberfile number ap 18 34666judgmentintroductionby summons filed 28 june 2019 edward lee import pty ltd plaintiff sought leave appeal decision appeal panel nsw civil administrative tribunal appeal panel decision edward lee import pty ltd v commissioner fair trading 2019 nswcatap 134 accepted summons filed within time specified theuniform civil procedure rule 2005 nsw commissioner fair trading defendant commissioner wish heard grant leave appeal pursuant tos 83of thecivil administrative tribunal act 2013 nsw thencat act background appeal panel decision briefly summarised 14 march 2017 commissioner disqualified plaintiff licence holder involved direction management conduct business licence required themotor dealer repairer act 2013 nsw period 10 year determination plaintiff applied tribunal review determination 27 july 2018 tribunal set aside determination instead cancelled plaintiff motor dealer licence disqualified plaintiff holding licence period two year original decision edward lee import pty ltd v commissioner fair trading 3 2018 nswcatod 116 tribunal find ground determination made disqualified plaintiff new ground first raised cross examination phillip lee plaintiff sole director shareholder 31 may 2019 appeal panel dismissed plaintiff appeal original decision common ground commissioner delegate exercised relevant power present case commissioner power secretary act thus commissioner referred reason relevant decision maker case reference made statutory term word secretary used reference legislation reason unless otherwise stated reference themotor dealer repairer act relevant legislationncat actthis court jurisdiction derives 83 1 thencat actwhich provides party external internal appeal may leave court appeal question law court decision made tribunal proceeding section 38 make provision procedure tribunal relevantly follows 38 procedure tribunal generally 1 tribunal may determine procedure relation matter act procedural rule otherwise make provision 2 tribunal bound rule evidence may inquire inform matter manner think fit subject rule natural justice 4 tribunal act little formality circumstance case permit according equity good conscience substantial merit case without regard technicality legal form 5 tribunal take measure reasonably practicable ensure party proceeding understand nature proceeding b requested explain party aspect procedure tribunal decision ruling made tribunal relates proceeding c ensure party reasonable opportunity heard otherwise submission considered proceeding note neither party submitted obligation provide procedural fairness 38 5 imposed higher obligation circumstance present case imposed common law motor dealer repairer actand regulationssection 25 5 act relevantly provides 5 secretary may refuse grant licence applicant secretary satisfied following close associate applicant fit proper person hold licence section 8of act defines close associate common ground mr lee close associate section 27of act relevantly provides 27 criterion fit proper person hold licence 1 determining whether person fit proper person hold motor dealer licence motor vehicle repairer licence motor vehicle recycler licence secretary may regard following whether applicant preceding 10 year found guilty offence involving fraud dishonesty whether state elsewhere c whether applicant convicted offence act regulation another act administered minister part 3of act entitled disciplinary provision division 1 entitled ground disciplinary action includesss 38and39 section 38sets ground disciplinary action may taken licence holder include person contravened secretary reasonable ground believe person likely contravene provision act regulation act administered minister 38 1 person fit proper person hold licence 38 1 c person licence holder secretary would required act refuse application person licence 38 1 division 2 ofpart 3is entitled disciplinary process containsss 41 47 section 41 central plaintiff primary submission provides 41 show cause notice 1 secretary may give show cause notice person secretary opinion reasonable ground believe ground taking disciplinary action person 2 show cause notice notice requiring person show cause disciplinary action taken person act ground specified notice 3 show cause notice writing specify period le 14 day notice given period person notice directed show cause specified notice 4 person show cause notice given may within period allowed notice make oral written submission secretary respect matter notice relates case corporation submission may made director officer corporation 5 except otherwise provided act secretary must take disciplinary action person unless person given show cause notice secretary considered submission made accordance show cause notice section 42confers power secretary suspend licence show cause notice given section 43authorises secretary conduct inquiry carry investigation relation matter show cause notice relates submission made behalf person show cause notice relates section 46provides mandatory cancel licence holder fit proper person hold licence part 4of act entitled obligation relating sale recycling repair motor vehicle creates various offence section 52prohibits odometer tampering ands 54provides offence licence holder employee report suspected odometer tampering secretary section 100of act division 8 ofpart 4 requires licence holder keep record form prescribed bypart 3of themotor dealer repairer regulation 2014 nsw mdr regulation regulation 42prohibits motor dealer advertising negotiation sale motor vehicle specifying odometer reading inaccurate motor dealer know reasonably suspect reading false representation section 176 provides person disqualified may apply tribunal administrative review theadministrative decision review act 1997 nsw adr act administrative decision review acttheadr actapplies proceeding tribunal section 58 imposes obligation administrator case commissioner person made decision lodge certain document tribunal relevantly provides 58 duty administrator lodge material document tribunal decision reviewed 1 administrator whose administratively reviewable decision subject application review tribunal must within 28 day receiving notice application lodge tribunal copy statement reason given applicant section 49 statement given applicant statement reason setting matter referred section 49 3 a1 copy statement reason decision internal review conducted respect administratively reviewable decision b copy every document part document possession control administrator administrator considers relevant determination application tribunal emphasis added section 63 provides 63 determination administrative review tribunal 1 determining application administrative review act administratively reviewable decision tribunal decide correct preferable decision regard material including following relevant factual material b applicable written unwritten law 2 purpose tribunal may exercise function conferred imposed relevant legislation administrator made decision 3 determining application administrative review administratively reviewable decision tribunal may decide affirm administratively reviewable decision b vary administratively reviewable decision c set aside administratively reviewable decision make decision substitution administratively reviewable decision set aside set aside administratively reviewable decision remit matter reconsideration administrator accordance direction recommendation tribunal section 7 1 theadr actdefines administratively reviewable decision decision administrator tribunal administrative review jurisdiction factsthe plaintiff licensed motor dealer repairer granted motor dealer licence md054381 11 june 2015 show cause noticeson 16 february 2016 commissioner issued show cause notice plaintiff first show cause notice first show cause notice subsequently withdrawn subject proceeding tribunal remitted commissioner common ground show cause notice issued commissioner plaintiff 5 april 2016 second show cause notice alleged applying motor vehicle repairer licence 2 september 2015 plaintiff failed disclose party referred hornsby conviction second show cause notice rely hornsby convictionsper se rather plaintiff failure disclose also common ground although second show cause notice withdrawn proceeded hornsby conviction arose consequence mr lee plea guilty hornsby local court 10 june 2015 offence set following table offencelawpenalty imposed1fail answer question concerning use trader platereg 48 ofroad transport vehicle registration regulation 2007 nsw repealed 110 fine2not record trip detail using trader platesreg 47 ofroad transport vehicle registration regulation 2007 nsw repealed 110 fine3use unregistered registrable class motor vehicle road 68 1 theroad transport act 2013 nsw 640 fineon 6 january 2017 commissioner issued show cause notice plaintiff third show cause notice notice suspension also accompanied notice notice suspension purported suspend plaintiff motor dealer licence period 60 day third show cause notice said follows acting delegation secretary accordance withsection 41of themotor dealer repairer act 2013 mdr act opinion reasonable cause believe ground taking disciplinary action edward lee simports ptyltd acn 602 862 199 connection motor dealer licence number md054381 ground belief set enclosed schedule notice edward lee import pty ltd twenty one 21 day date notice show cause disciplinary action taken edward lee import pty ltd may wish make oral written submission produce evidence respect matter notice relates manner specified accompanying letter schedule third show cause notice set allegation plaintiff follows 2 3 allegations18 upon evidence referred heading 3 reason set heading 4 formed opinion reasonable request edward lee import pty ltd show cause following ground contravention mdr act 38 1 particular advertising vehicle odometer reading inaccurate knew reasonably suspected inaccurate 42 ii odometer tampering 52 iii failure report suspected odometer tampering 54 andiv failure keep record accordance 100 mdr act schedule 2 mdr regulation b carrying business motor dealer dishonest unfair manner 39 b particular providing vehicle sale whose odometer reading inaccurate knew reasonably suspected inaccurate accuracy reckless ii obtaining record inaccurately recorded vehicle odometer reading iii phoenix company edward lee japanese auto centre pty ltd eljac order eljac could avoid statutory obligation mdr act mdr regulation c fit proper person hold licence mdr act 38 1 c due serious nature breach 52 54 ii seriousness systematic nature breach 100 schedule 2 iii eli licence holder application licence would required refused 1 eljac golee pty ltd terrano craff pty ltd edward lee philip lee close associate eli fit proper person purpose 25 5 mdr act serious systemic breach mdr act 2 eli unlikely carry business authorised motor dealer licence honestly fairly 25 4 particular allegation set section 4 schedule third show cause notice section 4 10 entitled close associate alleged 77 stated philip lee stand behind eli plaintiff eljac golee knowledge eli golee eljac conduct may attributed follows none philip lee eli golee eljac fit proper person hold motor dealer licence section 4 11 entitled eli plaintiff fit proper person alleged 82 accepted allegation set demonstrate eli fit proper person hold licence mdr act purpose 38 1 c mdr act three reason three reason given first serious systematic breach mdr act regulation set secondly plaintiff conducted business motor dealer dishonest unfair manner thirdly plaintiff already licence secretary would required refuse application licence 38 1 act notice concluded 94 call upon plaintiff make submission disciplinary action taken concerning ground specified schedule 14 february 2017 plaintiff solicitor responded third show cause notice addressed paragraph notice determination dated 14 march 2017as referred commissioner made determination 14 march 2017 cancel plaintiff motor dealer licence disqualify holding licence 10 year reason determination commissioner set allegation made third show cause notice setting summary finding determination commissioner found following four specific contravention act mdr regulation contained allegation third show cause notice set 1 advertising vehicle odometer reading inaccurate plaintiff knew reasonably suspected inaccurate 2 odometer tampering 3 failure report suspected odometer tampering 4 failure keep record accordance 100 act schedule 2 mdr regulation proceeding tribunal senior member dinnenthe plaintiff appealed tribunal determination hearing senior member dinnen took place nine day 5 6 june 2017 19 20 21 24 26 28 july 2017 2 august 2017 ground appeal raised way hearing senior member dinnen conducted necessary set detail occurred relevant passage set relevant oral evidencethe cross examination mr lee commenced 24 july 2017 sixth day hearing m case appeared behalf commissioner tribunal asked various preliminary question outset following exchange ensued tr 74 40 75 1 m case q general tell lie legal consequence upon evidence giving well referring criminal record matter happy discus m case would never intentionally tell lie court anyone happy discus matter occurred traffic infringement several year ago course operation paris investigation got nothing hide matter rested point however 28 july 2017 mr lee still cross examination mr george short period appearing plaintiff mr young absence following exchange occurred tr 101 9 13 101 44 102 4 m case q evidence tribunal mr lee previously concocted evidence get claim mr george object m case q concocted evidence past get claim made find hard answer question ground vague question know q contrary pointed question mr lee understand ground non specific m case subsequently asked mr lee whether charged criminal offence 18 february 2015 following exchange occurred tr 105 47 107 45 mr george object relevant member m case senior member witness put matter criminal record issue first day cross examination mr george member subject question also objected witness required answer would like ruling relevance tainting person irrelevant matter senior member dinnen well tainting anything question asked submission made weight afford evidence given witness referred criminal record recall matter chief cross examination nevertheless referred m case say criminal record relevant m case yes senior member senior member dinnen determination credit m case relevant question credit also relevant question fitness broadly relevant mr george well member matter fitness determination show cause act required get show cause matter procedural fairness senior member dinnen mr george think mistaken belief tribunal role respondent applicant required put whatever evidence considered relevant determination neither party confined matter show cause determination determine whether decision respondent upheld make reason decision make different decision set aside affirm vary like m case say relevant issue fitness matter consider mr george member exactly say party entitled put whatever think relevant go first reason procedural fairness put u everything say relevant opportunity bring material respond brought 2 15 friday last day hearing opportunity respond objection senior member dinnen right well put ask would like put response m case senior member matter really submission think senior member dinnen yes m case yes q question 18 february 2015 charged criminal offence charged found guilty traffic matter believe unfair also linked whole investigation proceeding whole matter arisen believe unfairly q think offence unfairly charged think circumstance thing happened extremely unfair stood side road almost four hour grilled without solicitor barrister unfair operation paris came radio police man grilled four hour made feel uncomfortable nervous without presence barrister solicitor terrific sic offence filling form correctly use trade plate going prejudice case open happy go criminal record prosecution great detail m case mentioned right start cross examination first asked matter senior member dinnen interrupt m case charge conviction m case emphasis added senior member dinnen subsequently said tr 108 8 9 going behind fact matter m case put question mr lee effect conviction recorded basis fact provided court police mr george objected reminded senior member dinnen said would go behind fact m case confirmed police fact relevant credit following exchange occurred tr 109 20 29 mr george well object tribunal saying despite said earlier statement fact tendered potentially going allow witness go behind give explanation senior member dinnen right convicted m case fact m case purported justify approach led following exchange tr 110 5 31 m case however usually particular process relation kind cross examination credit feel bound justice mr george well agree submission usual process document allow sic evidence m case accept sic except relation credit senior member clearly issue put issue applicant senior member dinnen fit proper determination mr george issue credit tribunal bound hear submission point evidence tribunal also able accept evidence mr george plea member people plea different reason different document tendered time hearing respondent want hear seeing respondent want see senior member dinnen mr george plea matter statement fact agreed party tendered court purpose sentencing m case began going police fact interrupted senior member dinnen follows tr 111 8 20 senior member dinnen see m case think necessary go fact statement fact circumstance pleaded fact accept fact face value m case face well certainly senior member prepared accept fact evidence proof contain happy rely tender document rely upon senior member dinnen content accept fact evidence fact accepted emphasis added point mr young temporarily absent proceeding returned replace mr george instructing solicitor senior member dinnen provided following explanation mr young occurred absence tr 112 28 41 senior member dinnen yes expressed solicitor mr young document tendered context credit whatever submission wish weight document go behind document fact conviction found proceeding pleaded guilty proposition come conviction relation current fitness propriety applicant think question relevant tribunal hear mr young yes put credit senior member dinnen yes absolutely discussion police fact senior member dinnen expressed understanding police fact document agreed statement fact tendered criminal proceeding mr young submitted nothing document indicated agreed statement fact submitted correctly plea guilty amounted plea constituent element offence notwithstanding objection senior member dinnen admitted police fact exhibit r13 described agreed statement fact tendered criminal proceeding mr sheller sc appeared m case court accepted description incorrect note police fact produced answer summons local court produced nsw police answer request commissioner mr sheller explained submission court important note point police fact probative value sentencing cl v r 2014 nswcca 196at 45 agreed fact must present comprehensible way fact circumstance offence upon court sentence offender della vedova v r 2009 nswcca 107at 14 statement fact must framed court discern agreed fact merely assertion della vedova v rat 11 sentencing court obliged act fact proved contained statement agreed fact nothing tribunal indicate basis mr lee sentenced local court police fact accordingly irrelevant m case moved another topic application made mr lee licence described motor vehicle dealer licence 2 september 2015 application eventually admitted marked exhibit r14 actually application plaintiff motorrepairer slicence mr lee agreed application form filled incorrectly one respect including negative answer given question individual nominated application found guilty within preceding 10 year offence m case asked mr lee whether notice show cause issued plaintiff 16 february 2016 answered affirmative reference first show cause notice referred withdrawn defective appears superseded third show cause notice m case put mr lee subject notice dated 16 february 2016 related error contained form application licence 2 september 2015 following exchange ensued tr 118 3 46 mr young well object mean go 2 30 friday afternoon notice show cause senior member dinnen mr young solicitor made several objection last half hour time mr young accept senior member dinnen objection time would little bit advanced mr young well respect go back 2016 show cause prepared ask question seems grossly unfair event make point show cause dealing tribunal senior member dinnen m case senior member dinnen m case please continue m case q 5 april notice show cause issued director eli eljac basis conviction traversed think addressed past yes q agree notice show cause issued 5 april 2016 say guess q show show copy maybe assist addressed disagree m case tender senior member mr young continued object set following exchange tr 121 3 39 mr young object object wholly outside show cause wholly outside show cause matter tribunal sort boot strap attempt senior member dinnen mr young point m case putting hypothetical witness m case yes senior member go question credit fitness evidence traversed witness effect failed make relevant disclosure renewing licence notice fact 5 april senior member dinnen mean term hypothetical hypothetical operating without authority m case yes senior member dinnen fact authority disclosed conviction correct m case yes obtained well q obtained authority false pretence mr young object whole line questioning put basis went credit creeped two little word fitness word matter tribunal regard term determination matter relation credit senior member dinnen well credit go fitness m case yes cross senior member subsequently mr young raised decision high court insmith v new south wale bar association 1992 176 clr 256 1992 hca 36as follows tr 122 30 44 mr young sure familiar senior member case like smith new south wale bar association also medical tribunal context sabag health care complaint commission case say must particularise case person relation finding impropriety something changed course hearing suddenly put question may well legitimate term credit senior member dinnen hearing context credit submission made issue fitness propriety hear submission line hearing question context credit ruling along conclusion cross examination m case tendered plaintiff application motor dealer licence referred marked exhibit r14 exchange occurred tr 124 7 21 mr young ask noted objection relation senior member dinnen credit mr young relevant credit senior member dinnen yes mr young issue proceeding m case matter submission course senior member senior member dinnen yes mr lee examined relation matter 2 august 2017 hearing matter resumed mr george called production document commissioner possession including mr lee criminal record mr george asserted commissioner served document pursuant 58 1 b theadr act following exchange occurred tr 5 28 37 senior member dinnen document served mr george criminal record client document respondent going rely tendered around 4pm last day hearing objected stated word effect would chance put whatever wanted reply opportunity able m case think submission senior member written submission relied partiesdirections made party serve written submission file tribunal commissioner submission dated 13 october 2017 included following submission concerning mr lee evidence 106 respondent submits mr lee dishonest b previously lied authority avoid consequence including police fair trading c conceded relevant offence fabricates evidence first resort responding allegation contravention law e engages conduct order avoid responsibility unlawful conduct 107 respondent submits mr lee evidence therefore accepted tribunal unless corroborated reliable independent evidence commissioner submitted 226 written submission mr lee obtained plaintiff motor dealer licence false pretence breach act regulation accepted court submission incorrect 228 commissioner submitted mr lee willingness mislead including caught lie evidence director corporate licensee would conduct business licence honest fair manner conclusion commissioner relevantly submitted 229 applicant therefore fit proper person hold motor dealer licence due matter included mr lee unfitness hold licence seen conviction ultimately relied rather mr lee conduct relating conviction submission response plaintiff submitted commissioner confined matter third show cause notice entitled raise additional matter original decisionthe tribunal set scope review reason 35 follows second show cause notice defined third show cause notice issued respondent 6 january 2017 form basis finding made second determination following principle identified intosohn v director general department fair trading 2003 nswadt 1 tosohn 57 59 tribunal limit review ground identified second show cause tribunal addressed relevance mr lee conviction 58 follows relevant tribunal determination mr lee credibility witness reliability weight placed evidence proceeding evidence mr lee claimed charge conviction unfair product respondent investigation attempted contradict statement statement fact police fact supported charge conviction deflected responsibility others also attempted deflect responsibility multiple false statement contained disclosure section application motor vehicle repairer licence lodged 2 september 2015 tribunal assessed mr lee credit 63 said oral evidence cross examination mr lee presented believable defensive witness frustrated stressed relentless investigation allegation business legal process effect livelihood considered party submission mr lee credibility witness rely mr lee oral evidence proceeding relation usual practice knowledge intention complying obligation mdr act regulation significantly oral evidence included thorough explanation process complying obligation pursuant mdr act accept tribunal addressed mr lee antecedent follows antecedent 122 18 february 2009 mr lee found tribunal unsatisfactory witness engaged conduct calculated conceal earlier misconduct inadams v japanese auto centre pty ltd motorvehicle 2009 nswcttt 47 proceeding tribunal inferred mr lee endeavouring conceal extent failing whilst also undermining applicant claim 123 18 february 2015 mr lee attempted conceal commission offence clause 48 theroad transport vehicle registration regulation 2007 provides driver person charge registrable vehicle trader plate affixed person trader plate issued must required police officer immediately answer truthfully question put person concerning purpose plate used 124 according amended fact relevant mr lee plea guilty conviction 30 june 2015 mr lee failed answer truthfully gave false story police asked another person lie police corroborate story instructed m vongpraseuth create log containing false information corroborate story 125 whilst mr lee previous conviction finding character tribunal proceeding basis applicant licence suspended cancelled pursuant second show cause defined reason third show cause notice second determination defined reason determination reject applicant submission would denial procedural fairness allow material used ground supporting cancellation failure put evidence required nsc thes 58documents evidence material accepted tribunal ground supporting cancellation evidence available tribunal make finding regarding ground tribunal specifically fitness propriety applicant close associate evidence tendered hearing applicant sufficient opportunity hearing written submission address evidence emphasis added tribunal made following finding application mv licence 126 respondent tendered applicant application motor vehicle repairer licence lodged 2 september 2015 application list mr lee associated party contains multiple false statement regarding required disclosure mr lee conviction charged offence disciplinary proceeding contravention mdr act winding corporation shared premise mr lee agreed responsible accuracy false disclosure stated m vongpraseuth completed application form incorrectly 127 accept respondent submission applicant repair licence renewal obtained false information mr lee responsibility ensure accuracy application content whilst applicant submitted false disclosure could considered tribunal relevant mr lee credit witness disagree directly relevant fitness propriety mr lee close associate applicant applicant given sufficient notice opportunity deal issue new ground rather evidence support currently existing ground put tribunal time subject appropriate opportunity applicant respond heard tribunal found four contravention act determination set none first three established although plaintiff contravened 100 required record kept contravention technical minor 166 matter particularised third show cause notice made tribunal found uncontroversially mr lee plaintiff director secretary sole shareholder accordingly close associate plaintiff 173 tribunal found established plaintiff conducted business dishonest unfair manner alleged referred limit jurisdiction 35 tribunal revisited topic 180 said passage plaintiff submits erroneous tribunal restricted determining mr lee fitness propriety term expressed particularisation second show cause second determination tribunal determine whether relevant material available mr lee fit proper person within meaning mdr act tribunal turned topic criminal conviction said part 181 evidence mr lee criminal conviction motor vehicle dealer repairer industry including dishonesty offence fall within parameter 27 1 c 185 evidence mr lee claimed charge conviction unfair product respondent investigation attempted contradict statement statement fact supported charge conviction deflected responsibility others also attempted deflect responsibility multiple false statement contained disclosure section application motor vehicle repairer licence lodged 2 september 2015 186 taking consideration factor referred inpoytress applied relevantly motor vehicle dealer industry intrlin v commissioner fair trading 2003 nswadt 222at 44 46 original conduct pleaded criminal charge conviction serious specifically relevant mr lee conduct motor vehicle dealer industry event relevant assessment fitness propriety since criminal conduct include 2 september 2015 application motor vehicle repairer licence false declaration made behalf candour explanation conduct discussed unsatisfactory minimal effluxion time time passed consider insufficient context inability acknowledge conduct subject criminal conviction present circumstance include subject investigation allegation respondent protracted litigation evidence negative impact finance business reputation 187 circumstance tribunal concludes mr lee fit proper person hold licence within meaning mdr act emphasis added tribunal found 192 tribunal also concerned mr lee practice deferring responsibility compliance obligation mdr act regs others including m vongpraseuth act instruction applicant licence cancelled nothing preventing reapplying licence different director manager circumstance mr lee continues provide instruction director manager period disqualification necessary protect public provide period time individual wish involved management direction applicant business obtain appropriate qualification experience ensure individual knowledge mdr act regs allow time demonstrate fitness propriety industry appropriate period following tribunal previous determination matter would two year citation omitted conclusion tribunal said 193 agreed majority allegation levelled applicant respondent reasoning accordingly correct preferable decision set aside respondent second determination substitute different decision tribunal made following order 1 respondent second determination dated 14 march 2017 set aside 2 substitution decision tribunal cancel applicant motor dealer licence number md054381 disqualifies applicant 2 year date decision licence holder involved direction management conduct business licence required mdr act proceeding appeal panelon 8 august 2018 plaintiff filed notice appeal appeal panel ground appeal alleged substance denied procedural fairness ground follows 1 appellant denied procedural fairness matter relation 2015 conviction alleged notice show cause indeed removed 2016 notice show cause hornsby conviction tribunal stated allowing question subject absolutely put credit 2 alternative 2 appellant denied procedural fairness given notice kind relation allegation concerning false declaration made application licence allegedly lodged 2 september 2015 3 appellant denied procedural fairness given reasonable opportunity tender evidence challenging explaining fact underlying conviction 30 6 2015 phillip lee b tender evidence general character notwithstanding conviction c tender evidence subsequent disclose sic conviction application motor dealer licence renewal 4 tribunal erred 127 sic 126 127 holding material excepted b tribunal ground supporting cancellation evidence available tribunal could make finding ground fact tribunal 5 appellant appeal finding close associate mr phillip lee fit proper person 6 appellant appeal order 2 finding reasoning sic paragraph 192 decision period disqualification necessary appropriate period disqualification period 2 year erroneous 7 tribunal failed regard abandonment respondent 2016 notice show cause 2017 notice show cause allegation relating matter hornsby court conviction allegation non disclosure relation matter commissioner submitted writing appeal panel 11 ground 1 appears complaint 2015 application admitted evidence included material served advance hearing commissioner admission 2015 application necessary corollary conviction put evidence mr lee rule evidence procedure prevents party seeking tender document served upon opposing party document tendered address oral evidence opposing party content notified 12 close associate eli mr lee fitness propriety issue central issue second notice question eli fitness propriety soon eli made conviction relevant tribunal determination 2015 application became relevant question mr lee fitness propriety 2015 application eli document document made submitted eli 13 commissioner submits tribunal admit fact conviction limited purpose mr lee credibility alleged eli clear tribunal general ruling evidence made hearing party extensive objection evidence response thereto tribunal approach evidence proceeding accept evidence purpose receive submission party weight emphasis added hearing appeal panel took place 13 december 2018 appeal panel reserved decision published appeal panel decision 31 may 2019 appeal panel decided conduct new hearing 80 3 thencat actbut rather hear argument evidence tribunal appeal panel decisionthe appeal panel summarised finding tribunal 49 50 appeal panel decision follows 49 matter tribunal made finding relevant ultimate conclusion appellant fit proper person holda motor dealer licenseconcernedthe application motor dealer license 2015 making false statement connection application inability mr lee provide satisfactory explanation event fact mr lee close associate appellant 50 addition tribunal regard evidence thatmr lee convicted various offence mdr actand circumstance conviction emphasis added common ground passage highlighted bold erroneous reference motor dealer licence erroneous since relevant licence motorrepairerlicence granted themotor vehicle repair act 1980 nsw superseded present act none hornsby conviction offence act summary offence theroad transport actor theroad transport vehicle registration regulation appeal panel addressed plaintiff submission tribunal confined matter alleged third show cause notice follows 63 respondent accepted 2017 notice term refer fact conviction 2015 application see written submission dated 24 september 2018 para 17 2017 notice allege mr lee fit proper person hold motor dealer license close associate respondent consequently respondent said tribunal correct conclude 180 restricted particular 2017 notice respondent said enquiry permitted 27 1 c mdr act expressly permitted enquiry event 2017 notice confine question fitness propriety ambit allegation contravention mdr act mdr act confine enquiry regard respondent referred s 27 4 38 1 c 46 mdr act appeal panel 64 identified substance plaintiff complaint reason cancellation determined tribunal reason particularised second show cause notice appeal panel extracted 185 187 original decision 66 continued 67 clear reason evidence mr lee conduct arose circumstance appellant put forward evidence albeit said relevant issue credit led detailed cross examination hearing tribunal appeal panel correctly summarised plaintiff submission reiterated court 68 appellant said approach tribunal impermissible finding matter particularised 2017 notice legislative regime permit tribunal embarking enquiry respect matter particularised reliance placed ontosohnas well assudath appeal panel addressed requirement show cause notice follows 70 present case ground 2017 notice included mr lee fit proper person however conceded respondent particular tribunal made finding included notice 71 agree statement intosohnat 57 show cause notice issued 41 mdr act must specify ground section 41 2 state show cause notice notice requiring person show cause disciplinary action taken person act ground specified notice 72 ground referred section set s 38 39 mdr act include person fit proper person hold license 38 1 c 73 20 following reason tribunal explained 1 criterion fit proper person hold license specified 27 1 however inclusive definition 27 4 mdr act 2 request licence corporation must refused 25 3 b mdr act director case mr lee would prohibited holding licence fit proper person see 25 2 b mdr act 3 request licence may otherwise refused close associate fit proper person 25 5 b mdr act 74 consequently mr lee fit proper person tribunal satisfied appellant fit proper person 46 mdr act required licence cancelled appeal panel rejected plaintiff submission tribunal bound particular ground set third show cause notice said 77 view requirement mdr act specification particular show cause notice mdr act indicate intention enquiry whether cause shown respect specified ground limited particular provided show cause notice appeal panel reasoned proposition limitation submission might made affected person 82 83 secretary similarly free adduce additional material concluded 89 follows subject issue procedural fairness secretary limited taking disciplinary action circumstance particular specified show cause notice established rather secretary may regard relevant material determining whether ground taking disciplinary action established 90 clear u tribunal review proceeding similarly confined ground specified show cause notice particular show cause notice 91 63 adr act tribunal may exercise function conferred imposed relevant legislation administrator made decision 63 1 adr act tribunal granted original depository power discretion brian lawlor automotive pty ltd collector custom new south wale 1 ald 167 175 confined reviewing decision made empowered review totally different decision secretary department social security v riley 1987 17 fcr 99at 105 hare commissioner superannuation2 ald 233at 236 92 however pursuant 63 1 adr act tribunal decide correct preferable decision regard material including following relevant factual material b applicable written unwritten law 93 tribunal regard factual material placed evidence upon review emphasis added appeal panel addressed decision ofsudath v health care complaint commission 2012 84 nswlr 474 2012 nswca 171 sudath andsabag v health care complaint commission 2001 nswca 411 sabag distinguisheds 43of themedical practice act 1992 nsw froms 41of act present case appeal panel considered plaintiff put notice course hearing tribunal commissioner would rely additional matter ultimately formed basis tribunal decision concluded denial procedural fairness appeal panel said 123 doubt evidence mr lee concerning conviction matter appellant referred relied respondent issue issue credit tribunal made abundantly clear appellant would consider relevant evidence making correct preferable decision tribunal consider confined matter show cause notice determination considerationthe question raisedthe amended summons set considerable number ground appeal however substance appeal raise two question involve question law circumstance necessary reproduce address separately ground set amended summons appropriate grant leave appeal regard importance question law raised note commissioner ultimately oppose grant leave first question whether plaintiff contended 41 operates mandatory precondition exercise power secretary continues operate bind tribunal appeal panel reviewing determination secretary unders 41 answer first question yes appeal must allowed common ground basis tribunal disqualified plaintiff attempted contradict statement police fact deflected responsibility others made false declaration application motor repairer licence insufficiently candid response tribunal topic contained third show cause notice answer first question question arises whether appeal panel decision must set aside ground tribunal making finding plaintiff original decision failed accord plaintiff procedural fairness substance plaintiff submitted tribunal stood shoe commissioner secretary greater power conferred secretary bys 41 basis plaintiff argued tribunal prohibited taking disciplinary action unless basis disciplinary action contained show cause notice alternative plaintiff submitted even commissioner tribunal bound third show cause notice denial procedural fairness way matter ultimately formed basis original decision raised vitiated original decision mr young appeared behalf plaintiff submitted particularisation additional matter relied upon accordingly plaintiff know actually alleged mr young relied error made appeal panel concerning type gravamen hornsby conviction evidence danger proceeding without particularisation procedural fairness requires depends circumstance disciplinary case give rise particular issue nature consequence licence holder practitioner case may criminal conviction relied upon basis allegation bad character usually person fit proper hold relevant licence practise profession open inquiry person character underlying conduct gave rise conviction relied upon person affected entitled adduce evidence whether particular conduct occurred place context sudathat 49 basten ja 102 104 meagher ja whealy ja agreeing non disclosure conviction relied fact circumstance conviction may also relevant instance particular generally required order affected person appreciate basis conviction relevant way matter arose tribunalin present case allegation made related mr lee conviction referred third show cause notice operative one tribunal document commissioner purported provide accordance 58 theadr act include document related either hornsby conviction plaintiff application motor repairer licence disclose hornsby conviction outlined hornsby conviction first arose 24 july 2017 penultimate day evidence senior member dinnen mr lee referred answer proposition put m case would generally tell lie legal consequence tr 74 40 75 1 set topic explored cross examination 28 july 2017 final day evidence mr sheller conceded would open commissioner rely hornsby conviction issue whether plaintiff fit proper person mr lee answered m case question way however mr sheller submitted mr lee referred conviction answer commissioner entitled use hornsby conviction notwithstanding commissioner chosen proceed second show cause notice relied non disclosure mr sheller accepted appeal panel analysis 77 incorrect would defeat purpose show cause notice required bald statement one ground set s 38 39 act understood also accept word 41 4 respect matter notice relates implicitly required degree particularity notice order affected person response could directed matter considered secretary require cause shown indeed mr sheller submitted orally show cause notice must provide sufficient information enable someone answer however mr sheller submitted content show cause notice delineateallof matter tribunal permitted take account contended additional matter raised course hearingcouldbe relied upon commissioner adequate notice given affected person since 41 confine tribunal appeal panel secretary submitted show cause notice effect beginning process end whether 41 bind tribunalthe first issue one statutory construction turning 41 instructive consider authority concerning approach taken statutory requirement procedural fairness authority disciplinary migration casessmith v nsw bar associationinsmith v nsw bar association 1992 176 clr 256 1992 hca 36 nsw bar association commenced proceeding original jurisdiction court appeal seeking mr smith name removed roll barrister mr smith gave evidence court appeal court appeal found lied evidence took finding account deciding guilty professional misconduct ought removed roll high court reversed decision basis barrister given notice court finding would might made finding would used way joint judgment brennan dawson toohey gaudron jj said 269 procedural fairness required allegation deliberate lying made barrister given opportunity respond deane j said 270 disciplinary proceeding legal practitioner primarily directed towards protection public punishment legal practitioner nonetheless court tribunal entertaining proceeding bound observe requirement procedural fairness making acting upon finding misconduct two requirement proceeding relevant present purpose first allegation particular practitioner must specifically identified second practitioner must afforded appropriate opportunity heard relation footnote omitted emphasis added walsh v law society new south walesinwalsh v law society new south wale 1999 198 clr 73 1999 hca 33 walsh high court considered legislative scheme disciplinary action legal practitioner inwalsh law society appealed court appeal dismissal two complaint made walsh solicitor instead conducting appeal obliged unders 75aof thesupreme court act 1970 nsw court appeal went beyond complaint formulated particularised solicitor addressed question good name character fitness remain roll majority mchugh kirby callinan jj summarised provision thelegal profession act 1987 nsw follows 61 scheme discipline number protection included legal practitioner brought tribunal proceeding may instituted respect complaint information laid appropriate council commissioner accordance withpt 10of act function tribunal confined conducting hearing allegation particularised information tribunal certain power amendment vary information laid legal practitioner example permit inclusion additional allegation justified purpose hearing question professional misconduct tribunal observe rule law governing admission evidence hearing tribunal bound may inform matter manner think fit continued 62 given scheme legislation introduction new statutory body task discipline member legal profession formerly conducted professional body supreme court requirement particularity contained act safeguard thereby introduced practitioner concerned would narrowly construed emphasis added saap v minister immigration multicultural indigenous affairsinsaap v minister immigration multicultural indigenous affair 2005 228 clr 294 2005 hca 24 saap high court considered effect ofs 424aof themigration act1958

Re Christopher Robin Fisher and Fay Annette Fisher v Westpac Banking Corporation; Tom Macdonald; Patrick Maher; Brian A Gregory; Greg J Munro; Brian Airey and Australian Guarantee Corporation Ltd [1992] FCA 390 (18 August 1992).txt

christopher robin fisher fay annette fisher v westpac banking corporation tom macdonald patrick maher brian gregory greg j munro brian airey australian guarantee corporation ltd 1992 fca 390 18 august 1992 federal court australiare christopher robin fisher fay annette fisherand westpac banking corporation tom macdonald patrick maher brian gregory greg j munro brian airey australian guarantee corporation ltdno wa g81 1992 fed 624practice procedurecourtin federal court australiawestern australia district registrygeneral divisionfrench j 1 catchwordspractice procedure pleading statement claim whether reasonable cause action disclosed claim upon bank finance company employee allegation unenforceable loan created book entry credit supported asset currency real wealth conspiracy magna carta biblical prohibition usury principle strike cause action disclosed difficulty arising cost lack access legal service transfer land act wa 1893 145contracts review act 1980nswthe industrial arbitration act 1940industrial relation act 1991 nsw bullen leake jacob precedent pleading 13th ed 1990 general steel industry inc v commissioner railway nsw 1964 hca 69 1964 112 clr 125coe v commonwealth australia 1979 hca 68 1979 24 alr 118turner v bulletin newspaper co pty ltd 1974 hca 25 1974 131 clr 69bride v stewart unrep fed ct 18 1 90 french j hearingperth18 8 1992the applicant appeared person counsel respondent mr mccarthysolicitors respondent parker parkerorderthe court order 1 statement claim struck 2 applicant pay respondent cost motion note settlement entry order dealt order 36 federal court rule decisionchristopher robin fisher fay annette fisher hopetoun western australia dissatisfied customer westpac banking corporation bank australian guarantee corporation ltd agc commenced proceeding bank agc certain bank officer arising borrowing related financial dealing taken place since july 1984 principal claim based part upon allegation bank purporting make loan effected book entry represent commitment legal tender practice call cost free book entry credit creation said among thing misleading deceptive alternative give rise entitlement part offset obligation bank credit created filling appropriate certificate criminal conspiracy respondent strip asset also alleged particularised involves allegation bank promised credit obtaining security strength promise withheld credit forced sale land subsequently supermarket owned company operated mr fisher another person certain mortgage executed favour bank agc said properly executed unenforceable non compliance provision transfer land act wa 1893 relating witnessing instrument reliance placed upon magna carta defence exercise remedy bank mortgagee fisher matrimonial home various biblical injunction relating release debtor practice usury also invoked 2 original statement claim filed 30 june 1992 substituted statement claim filed 22 july 1992 31 july 1992 respondent moved strike statement claim entirety alternatively various paragraph argument motion proceeded 7 august 1992 reserved today two proceeding court perth others adelaide sydney raise similar issue substituted statement claim3 application filed court 30 june 1992 christopher robin fisher fay annette fisher claim bank five employee agc various form relief alleged misleading deceptive conduct criminal conspiracy improper execution mortgage substituted statement claim filed 22 july 1992 begin reciting registered owner certain land para 1 bank agc corporation engaged trade commerce para 2 4 messrs macdonald maher gregory munro airey named second fifth respondent material time officer employee agent servant bank para 3 4 fisher allege 10 july 1985 bank approved loan 270 000 secured mortgage registered 29 july para 5 plead alleged debt created bank book entry credit cost bank say right claim payment legal tender cash currency commonwealth return cost free book entry credit created nothing totally unbacked real wealth asset legal tender hand bank para 6 particular set paragraph designated j inclusive first five paragraph particular allege practice part bank publicly representing asset capital figure calculated adding real money possession valueless debt paper including transitory cheque multiplying total factor least 15 every dollar held bank legal tender commonwealth australia claim without basis fact actually hold 1 500 bank lent fisher said particular para g legal tender commonwealth book entry credit created nothing cost bank bank illegally deceitfully demanding legal tender commonwealth australia plus extortionate interest charge para g reference made decision united state judge 1968 said precedent proposition book entry credit illegal para h copy judgment question annexed original statement claim indicates county court jury decision dismissing action recovery possession land brought first national bank montgomery plaintiff memorandum annexed appears formal record proceeding martin v mahoney justice peace credit river township scott county minnesota said inter alia consideration used support mortgage possession action brought created money credit bank upon book bookkeeping entry said jury found lawful consideration agree god created sic something value nothing 5 particular para 6 substituted statement claim also refer reserve bank publication said demonstrate total currency available australia 15 201 million total cost cost free book entry credit created 333 730 million conclusi offered arithmetically impossible book entry debt created bank australia paid customer factor bank officer named respondent said aware particular go refer submission australian banker association recent parliamentary inquiry australian banking industry said show cost free book entry credit created bank exceeds gross domestic product australia reference also made publication called screw bank extract annexed original statement claim extract list number publication evidently thought relevant question cost free book entry credit creation includes reference five publication written major c h douglas said detail truth book entry credit creation bank offer sensible solution replace secretive oft denied fact fiscal fraud bank 6 next substantive paragraph statement claim para 7 pleads alleged loan application alleged mortgage alleged mortgage debenture specifically fail state bank engaged barter contract comprises book entry credit created cost bank exchange legal tender cash currency commonwealth australia fisher basis said bank alleged contractual document misleading struck accordance thecontracts review act section 4 trade practice act 1974 section 52 52a and53 industrial arbitration act 1940 section 88f fair trading act prior pleading reference statement claim loan application mortgage one mortgage referred para 5 thecontracts review act 1980is new south wale statute fact pleaded bring present matter within reach law new south wale industrial arbitration act 1940 also new south wale statute repeal industrial relation act 1991 nsw 7 alternative plea made para 7 contended para 8 court find bank entitled create cost free book entry credit fisher claim right particular para 8 invoke magna carta assert guarantee fisher equality respect creation cost free book entry credit para said law regulation australia state territory place world authorises creation cost free book entry credit bank agc para e g absence law regulation fisher say way debarred creating cost free book entry credit bank attached original statement claim referred substituted statement claim fisher assert book entry certificate court find cost free book entry credit creation legal acceptable shall completed shall fully satisfy bank agc demand without prejudice right claim fisher certificate referred printed form copy annexed reason 8 paragraph 9 substituted statement claim alleges criminal conspiracy part respondent criminally defraud asset strip fisher particularised length para h respondent said taken advantage inexperience naivety fisher construct criminal scam breath taking simplicity audacity said taken advantage trust ignorance fisher inveigle alleged contract prior point pleading contract pleaded loan 270 000 referred para 5 first second third fourth fifth respondent said knowingly malice aforethought extended enough cost free book entry credit fisher get entangled respondent withheld essential credit mean said forced fisher sell valuable asset loss coerced business associated company agc continued detriment para also alleged inveigled fisher sign mortgage d551018 favour agc registered 2 september 1987 para e knowingly malice aforethought said acted combination force fisher progressively sell asset direct substantial benefit respondent pre determined asset stripping said clear respondent implementation secret schedule para f paragraph f sub particularised reference overdraft facility fisher bank initially limit 25 000 increased 53 000 22 october 1987 april 1985 bank said dishonoured fisher final payment cheque 20 406 86 international prime mover purchasing form instalment arrangement time cheque dishonoured fisher say 5 423 77 credit overdraft facility place claim respondent forced sale vehicle 52 000 inveigled leasing 112 000 scania vehicle agc total cost 154 189 92 9 bank officer alleged taken advantage fact bank one fisher geographical area systematically asset strip fisher successively promising credit obtaining yet security way mortgage withholding promised credit forcing fisher parcel fisher land sell piecemeal advantage bank specifically pleaded bank obtained alleged mortgage unencumbered title false pretence alleged mortgage referred clear 10 sub particular go refer para iii partnership mr fisher another person husband 1987 purchased shelf company called kultex pty ltd constructed new supermarket hopetoun kultex trading hopetoun supermarket opened trading account anz bank perth twelve month prior opening business westpac bank alleged loaned mr peter dow one client credit purchase rebuild local store hopetoun hopetoun supermarket opened 23 july 1988 said successful extent 5 august 1989 business banked 620 290 anz westpac bank said written fisher requiring provision information concerning hopetoun supermarket refused bank employee alleged closed farming business fisher credit withheld hopetoun supermarket sold insistence respondent october 1990 alleged hopetoun supermarket leased insistence respondent incompetent inexperienced local female client bank advanced sufficient credit bank take property respondent denied fisher insufficient credit enable local female stock supermarket intended end result said supermarket closed alleged done deny business anz hopetoun area protect bank business arrangement mr dow destroy fisher particular para 9 claim bank guilty negligence failing exercise proper care banker fisher borne mind offered particular allegation criminal conspiracy support particular alleging negligence reference made judicial decision textbook 11 alleged extent asset stripping set para h particular para 9 summarising total 1 632 452 said paid bank book entry credit borrowed bank 447 500 period cited bank therefore said made gross profit le 365 basis maximum amount real wealth cash currency commonwealth provided bank 4 alleged borrowing real gross profit said le 9 120 12 paragraph 10 alleges agc non bank financial institution associated company bank contrary public relation image assiduously fostered considerable advertising expense first seventh respondent institutionally dishonest habitually engage illegal immoral practice reliance may placed anything said submitted evidence respondent reference made way particular information said contained manual screw bank infamous westpac paper 13 paragraph 11 set alleged mortgage properly executed struck mortgage referred said unenforceable officer employee agent bank agc case signed purporting independent witness fact time party dealing reliance placed upon 145 1 transfer land act wa 1893 14 paragraph 12 pleads federal court australia justified existence power authority constitution commonwealth australia turn justified existence power authority magna carta follows extensive reference way particular magna carta asserted inter alia magna carta guarantee right fisher matrimonial home fundamental guaranteed right may circumstance abrogated interfered respondent anyone else thrust plea seems provision magna carta proof claim made bank mortgage 15 paragraph 13 turn king james version bible said relied upon swearing witness court respondent said automatically irrevocably covenanted agreed content bible contains various form official oath office allegiance including oath office upon swearing judge federal court referred para f particular para 13 reference deuteronomy ch 15 1 2 quoting passage effect end every seven year creditor release debtor scripture passage usury also quoted para h followed assertion alleged mortgage contract bank fisher usury particular go allege court fully liable duty bound law uphold enforce commandment list thirty biblical curse applicable uphold divine law set whether statement claim struck out16 principle regulating exercise court power summarily strike pleading well established power exercised sparingly claim obviously untenable cannot possibly succeed general steel industry inc v commissioner railway nsw 1964 hca 69 1964 112 clr 125at 129 barwick c j rule permit striking statement claim objectionable matter closely intertwined matter pleading whole may tend embarrass fair trial action whole pleading may struck even though cause action could spelled pleading whole coe v commonwealth australia 1979 hca 68 1979 24 alr 118at 132 jacob j turner v bulletin newspaper co pty ltd 1974 hca 25 1974 131 clr 69at 88 menzies j question whether much material statement claim irrelevant embarrassing bring whole pleading one degree bride v stewart unrep fed ct 18 1 90 french j 17 allegation set substituted statement claim may grouped follows 1 allegation purported loan bank thefishers simply book entry credit respect ofwhich bank entitled claim repayment inlegal tender alternatively book entry credit socreated could offset like paper credit createdby fisher 2 allegation contractual document purporting toevidence loan misleading deceptive insofar asthey describe true nature underlyingtransaction e creation book entry credit 3 allegation respondent conspired criminallydefraud fisher strip asset 4 allegation negligence part bank 5 allegation mortgage favour bank agcare unenforceable witnessed inaccordance provision 145 transferof land act wa 6 allegation reason magna carta fisher matrimonial home protected enforcement actionunder mortgage registered 7 allegation biblical law binding court andthe party require release debtor creditor after7 year prohibit usury 18 statement claim asserts loan approved secured mortgage suggested fisher obtain benefit loan mr fisher told court bar table used acquire real property essence complaint seems bank cannot make enforceable loan unless time asset form currency real wealth back proposition upon fisher rely untenable nothing prevent bank evidencing loan credit entry obligation loan agreement nevertheless real one money advanced way electronic transfer appropriate book entry none le real right real obligation created enforceable law contract document security recording loan case mislead deceive want hard currency backing alternative plea patent mere completion certificate fisher could discharge obligation bank 19 conspiracy plea asserts conspiracy defraud plea conspiracy statement claim specify party conspiratorial agreement relationship allege content agreement giving best particular available date agreement made continued plea state precisely object method conspiracy overt act done conspirator pursuance must also allege injury damage occasioned applicant result bullen leake jacob precedent pleading 13th ed 1990 pp 221 222 plea conspiracy case manifestly deficient requirement necessary establish cause action putting one side use word criminal irrelevant context plea civil conspiracy identify alleged agreement reference made act respondent alleged party despite broad allegation fraudulent object specified way expose purpose mean fraudulent character use word scam entangle coerce inveigled suffice disclose comprehensible plea fraudulent conduct allegation successive promise credit subsequently honoured might support claim misleading deceptive conduct could shown promise made intended honour provision acted upon loss damage suffered result allegation however support claim conspiracy allegation negligence appears para g particular para 9 cannot support plea conspiracy defraud anything pleaded support claim negligence plea relation conspiracy disclose cause action 20 claim relation execution certain mortgage asserts unenforceable witnessed person employee officer agent bank agc turn party mortgage reliance placed 145 transfer land act section provides instrument power attorney act signed person attested witness party instrument power attorney shall held duly executed various geographical location set including within limit commonwealth territory commonwealth short answer contention officer employee party witness document party document purpose section 21 relation remaining plea based magna carta bible sufficient say disclose legally tenable cause action conclusion22 appears preceding reason statement claim disclose tenable cause action must therefore struck saying accept mr mr fisher sincere people financial personal stress save asset resorted proceeding based upon statement claim follows along somewhat similar line pleading presently court state australia unfortunate others like false hope expectation aroused suggestion matter kind raised statement claim lead legal remedy difficulty best course would get proper legal advice particularly relation claim promised credit later withheld may however cannot afford pay advice cannot get legal aid time economic difficulty cost legal service limitation upon availability publicly funded legal aid privately sponsored pro bono representation create climate people forced resort court without representation legal quackery offered unqualified person flourish represents least part failing institution hoped mean addressed government court legal profession effect improvement

Birdon Pty Ltd [2023] FWCA 1217 (28 April 2023).txt

birdon pty ltd 2023 fwca 1217 28 april 2023 last updated 1 may 2023 2023 fwca 1217fair work commissiondecisionfair work act 2009s 185 enterprise agreementbirdon pty ltd ag2023 970 birdon marine enterprise agreement 2022manufacturing associated industriescommissioner simpsonbrisbane 28 april 2023application approval birdon marine enterprise agreement 2022 1 application made approval enterprise agreement known thebirdon marine enterprise agreement 2022 agreement application made pursuant tos 185of thefair work act 2009 act made birdon pty ltd applicant agreement single enterprise agreement 2 satisfied requirement ofss186 187and188as relevant application approval met 3 agreement contain flexibility term compliant act pursuant tos 202 4 act model flexibility term prescribed thefair work regulation 2009is taken term agreement 4 agreement contain consultation term compliant act pursuant tosection 205 2 act model consultation term prescribed thefair work regulation 2009is taken term agreement 5 noting clause 4 b agreement satisfied beneficial entitlement ne act prevail inconsistency agreement ne 6 clause 5 agreement state agreement commences 1 december 2022 however 54 act provides enterprise agreement approved commission operates 7 day agreement approved later day specified later date agreement approved operate accordance 54 act operative date 7 day date decision commissionerprinted authority commonwealth government printer ae519864pr761464

McCormick; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and [2009] AATA 746 (29 September 2009).txt

mccormick secretary department family housing community service indigenous affair 2009 aata 746 29 september 2009 last updated 29 september 2009administrative appeal tribunaldecision reason decision 2009 aata 746administrative appeal tribunal 2009 1603general administrative division resecretary department family housing community service indigenous affairsapplicantandrita mccormickrespondentdecisiontribunalmr e frost memberdate29 september 2009placesydneydecisionthe decision social security appeal tribunal dated 24 march 2009 affirmed m mccormick qualified economic security strategy payment sgd mr e frostmembercatchwordssocial security economic security strategy payment whether respondent receiving age pension respect 14 october 2008 age pension suspended income exceeded allowable limit previous fortnight nil income instalment period including 14 october 2008 age pension payment resumed decision review affirmedsocial security act 1991s 23 44 55 900 1064 1072social security administration act 1999s 43 80social security legislation amendment economic security strategy act 2008re secretary department family housing community service indigenous affair de waal 2009 aata 635secretary department family community service v rolley 2000 fca 806reasons decision29 september 2009mr e frost memberintroductionon 14 october 2008 prime minister australia joint medium release treasurer announced 10 4 billion economic security strategy strengthen australian economy face global financial crisis one key measure included strategy government would deliver payment australia four million pensioner carers senior provide immediate financial help parliament subsequently enacted thesocial security legislation amendment economic security strategy act 2008 es act act effect amendment various law including social security law provide tax free economic security strategy payment es payment payment made people receiving relevant benefit respect day announcement 14 october 2008 present proceeding determine whether respondent rita mccormick entitled es payment m mccormick received age pension payment sporadically since 2002 supplement age pension working casual teacher declares teaching income centrelink every fortnight income vary one fortnight next always receive amount pension every fortnight fortnight 20 september 3 october 2008 m mccormick earned 2 000 casual teaching unusually high level earnings nevertheless always done declared earnings centrelink without delay 7 october 2008 centrelink recalculated pension entitlement basis declaration determined pension payment suspended immediately next reporting fortnight 4 17 october 2008 m mccormick earn anything teaching reported state affair centrelink pension reinstated next payment pension made 3 november 2008 centrelink took view basis circumstance m mccormick receiving age pension respect 14 october 2008 accordingly refused es payment internal review confirmed position social security appeal tribunal ssat found favour secretary applied tribunal review ssat decision issuethe issue tribunal whether m mccormick entitled es payment depend whether receiving age pension respect 14 october 2008 es act related provisionsthe es act introduced thesocial security act 1991 s act news 900 provides relevantly follows qualified section applies 1 person qualified economic security strategy payment subsection 2 3 4 applies person receipt certain payment 2 subsection applies person person receiving one following payment respect 14 october 2008 age pension b except case carer allowance person receiving payment claim person made 14 october 2008 note forreceiveseesubsections 23 2 4 word receive defined in 23 2 ands 23 4 s act follows 23 1 act unless contrary intention appears receivehas meaning given subsection 2 3 4 4aa 4ab 2 purpose act thansection 735 person taken bereceivinga payment act earliest day payment payable person even first instalment payment paid later day 4 purpose act person taken receiving social security payment latest day payment payable person even last instalment payment paid later day expression social security payment defined in 23 1 term include age pension previous consideration es actthe tribunal dealt circumstance similar m mccormick inre secretary department family housing community service indigenous affair de waal 2009 aata 635 mr de waal receiving disability support pension dsp like m mccormick refused es payment centrelink tribunal consider whether ssat decision allow es payment contrary original centrelink decision correct mr de waal case relevant dsp fortnightly period included critical date 14 october 2008 period 14 october 2008 27 october 2008 fortnight deputy president jarvis noted 4 mr de waal earnings exceeded relevant income test limit s act rate dsp respect period included 14 october 2008 calculated accordance s act 0 dsp paid payable respect period 7 deputy president continued reference omitted payment summary covering period january 2006 july 2009 indicates mr de waal received dsp payment end fortnightly period 14 day instalment period ended 13 october 2008 received dsp payment respect 14 day period ended 27 october 2008 period included eligibility date also received dsp payment respect next ensuing 14 day entitlement period ended 10 november 2008 according statement fact issue contention filed behalf mr de waal engaged part time seasonal work involving pruning declared earnings 14 day period ended 27 october 2008 amount exceeded income test limit dsp mentioned rate dsp reduced 0 result paid dsp respect period also declared earnings excess limit dsp next ensuing 14 day period ended 10 november 2008 rate dsp 0 paid dsp respect period emphasis added found highlighted sentence indicates mr de waal paid dspin respect period included 14 october 2008 deputy president jarvis set aside decision ssat substituted decision mr de waal entitled es payment case compare withde waal critical distinction mr de waal circumstance m mccormick mr de waal excess earnings fortnightly period applying included 14 october 2008 m mccormick employment income fortnightly period applying included eligibility date excess earnings previous fortnight relevant legislative provisionsunders 43 1 thesocial security administration act 1999 administration act social security periodic payment includes age pension paid arrears instalment relating period exceeding 14 day secretary determines 43 2 instalment social security periodic payment paid time secretary determines secretary determined age pension paid arrears instalment 14 day relevant instalment period secretary determined relation m mccormick fortnight ended 2 october 2008 16 october 2008 30 october 2008 one day discrepancy end date period m mccormick pay period employment purpose discrepancy bearing principle involved section 43 3 administration act provides method calculating periodic payment social security payment provides follows subject subsection 4 amount paid person instalment social security periodic payment relation period total amount social security periodic payment calculated reference daily rate payment applicable day payable person day period social security periodic payment payable person section 44 s act provides age pension payable person person age pension rate would nil section 55 s act provides person rate age pension worked using pension rate calculator end 1064 rate calculator point 1064 a1 module provides rate pension daily rate rate worked dividing annual rate calculated according rate calculator 364 fortnightly rate provided information method statement immediately following provision requires calculation person smaximum basic rate certain addition rate relevant m mccormick circumstance result person smaximum payment rate necessary apply ordinary income test using module e work theincome reduction subtracted maximum payment rate produce theincome reduced rate m mccormick case rate also theprovisional annual payment rate reduction step 12 final step method statement thatprovisional annual payment rateis equivalent therate pension clear arithmetic involved annual rate must divided 364 produce daily rate pension finally 80 administration act provides cancellation suspension social security payment section 80 1 provides follows secretary satisfied social security payment paid person qualified payment b payment payable secretary determine payment cancelled suspended secretary contentionsthe secretary relies summary interaction 23 44 s act statement fact contention put way 24 25 24 effect subsection 23 2 4 link receiving social security payment concept payment payable social security payment becomes payable person person start day normally date person claimed payment administration act s 41 42 sch 2 virtue subsection 44 1 age pension payable person person rate age pension would nil accordingly latest day relevant question tribunal received pension 6 october 2008 ceased payable virtue employment income age pension since become payable mr mccormick virtue change income 25 secretary contends effect provision reference section 900 receiving age pension respect 14 october 2008 mean person pension must payable 14 october 2008 considerationi accept deputy president jarvis inde waal correspondence notion receiving 23 s act payable 44 act central question case whether m mccormick wasreceiving pension respect 14 october 2008 expressed reference concept imported 44 whether pension payable m mccormick respect 14 october 2008 secretary say suspension pension 7 october 2008 disagree certainly case suspension pension paid m mccormickduring period suspension 7 october 2008 16 october 2008 follow notpayableto herin respect day suspension period seems question whether pension payable m mccormick respect 14 october 2008 answered application method statement pension rate calculator determine m mccormick daily rate pension respect 14 october 2008 establish whether amount pension payable respect date turn establish whether receiving pension respect date application method statement pension rate calculator ai already summarised 19 step involved method statement critical step method statement step 5 requiring application ordinary income test using module e work income reduction module e method statement comprises six step set point 1064 e1 omitting note within method statement relevant step step 1 work amount person ordinary income yearly basis step 2 work person ordinary income free area see point 1064 e4 1064 e9 step 3 work whether person ordinary income exceeds person ordinary income free area step 4 person ordinary income exceed person ordinary income free area person ordinary income excess nil step 5 person ordinary income exceeds person ordinary income free area person ordinary income excess person ordinary income le person ordinary income free area step 6 use person ordinary income excess work person reduction ordinary income using point 1064 e10 1064 e12 two note following method statement first application second one explains relevantly application ordinary income test affected provision concerning general concept ordinary income section 1072 1073 section 1073 relevant m mccormick circumstance person claimed one allowance specified paragraph f subsection 2 section 1072 provides reference act person ordinary income period reference person gross ordinary income source period calculated without reduction reduction division 1a note 1 forordinary incomesee subsection 8 1 argument 1072 directly relevant either basis reference ordinary income yearly basis step 1 method statement module e reference ordinary income period present purpose put issue aside undoubtedly relevant signpost 8 1 notion ordinary income examination definition result unsurprising outcome m mccormick earnings casual teaching activity ordinary income defined returning step 1 method statement module e necessary work amount m mccormick ordinary income yearly basis evident paper centrelink approached task way first took income amount 2 007 74 amount m mccormick reported period 20 september 3 october 2008 next multiplied fortnightly amount 26 arrive annual amount 52 201 24 t28 57 concluded income amount clearly excess amount allowed suspended pension finally reinstated pension result later report received employment income period 4 17 october 2008 document t28 57 annual amount 52 201 24 recorded next label earned income stated effective period 7 october 16 october 2008 next document paper t28 58 amount recorded next label earned income inviting inference calculated earned income amount nil effective period 17 october 2 november 2008 document significant three respect first method calculation annual income earned income amount multiply fortnightly figure 26 way calculate figure reasonable enough circumstance lead frequent change earned income amount irregular nature m mccormick earnings expectation long run amount pension paid period time tolerably correct view appropriate way calculate earned income amount method statement refers ordinary income yearly basis second significant aspect earned income amount 52 201 24 applies effective period 7 october 16 october 2008 since declared income amount 2 007 74 earned fortnight 20 september 3 october 2008 surprising period derived amount 52 201 24 applies instead applies following period third significant aspect m mccormick declared income fortnight 4 october 17 october 2008 leading derived earned income amount nil effective period 17 october 2 november 2008 unusually 17 day period pension reinstated immediately next payment occur 3 november 2008 payment although expressed period 17 october 30 october 2008 calculated reference earnings m mccormick reported 17 october 2008 period 4 17 october 2008 pension paid m mccormick period included 14 october 2008 pension suspended time suspension income declaration respect previous period information supplied income fortnight 14 october 2008 fell pension reinstated 17 october 2008 received full pension amount period 17 30 october 2008 paid 3 november 2008 14 october 2008 day fortnight received employment income centrelink necessarily acting information regarding past period determine entitlement time intend criticism centrelink way dealt m mccormick circumstance centrelink task difficult one administering complex sometimes inconsistent confusing legislation generally financial assistance customer administrative guideline occasion automated computer generated decision making play important role administration sometimes outcome le optimal m mccormick case category ordinary course event s act requires ongoing basis calculation daily rate pension without specific focus particular day respect daily rate applies normally matter whether daily rate change today tomorrow next fortnight long calculation tolerably accurate relevant payment processed without disadvantage customer disadvantage suffered corrected due course way law practically administered centrelink receives income information one fortnight process often next fortnight make payment decline make payment second fortnight sometimes even following third fortnight sometimes payment non payment second third fortnight might practical term adjustment earlier payment recent information suggests earlier payment either low high made none objectionable way thing done system probably could operate ongoing basis way however provision 900 2 enacted must turn away way thing done focus law say law asks whether m mccormick receiving age pension respect 14 october 2008 secretary say agree answer question must determine whether pension payable m mccormick respect 14 october 2008 answerthatquestion determine whether daily rate pension respect 14 october 2008 nil case qualified es payment whether greater nil case qualified es payment starting point step 1 method statement module e say must work amount m mccormick ordinary income yearly basis insecretary department family community service v rolley 2000 fca 806 full court federal court australia examined construction step 1 module e observed 18 necessary regard statutory context provision particular place calculation module e one step involved calculation module rate pension said part 1064 a1 module annual rate point 1064 a1 state parenthesis fortnightly amount provided information instalment age pension payable alternate thursday 23 1 instalment worked dividing amount annual rate pension 26 59 1 payment pension done fortnightly instalment calculated according annual rate fortnightly instalment paid may vary annual rate varies according fluctuation amount person ordinary income calculated module e result amendment 23 pension pay day longer invariably thursday also work previously done 59 1 done 43 administration act nevertheless main thrust full court observation unaffected minor legislative change court continued 19 20 19 first step module e requires working amount pensioner income yearly basis offset module annual rate pension payable annual rate payable fortnightly instalment may varied according change ordinary income time time albeit ordinary income calculated yearly basis despite different language basic conceptual framework remains 1947 act reflects legislative intention expressed second reading speech new act rewrite involving major policy initiative financial impact ordinary income yearly basis reflects concept annual rate income referred 28 2 1947 act 20 basis appropriate calculating ordinary income yearly basis consider character payment received harris v director general social security 1985 hca 1 1985 57 alr 729 1985 59 aljr 194 1985 7 ald 277 annual dividend payment 1 000 would treated module e ordinary income 1 000 yearly basis characterisation income reference source may require evaluative judgment whether treated recurring income annual rate may extrapolated range case requiring judgment illustrated reference income derived employment person regular employment albeit may part time could expect income received employment dealt assumption earnings current rate would continue extrapolated multiplication annual rate last sentence 20 inrolleyillustrates support part centrelink methodology described first two bullet point 29 already indicated reasonable approach possible one deciding whether amount pension payable m mccormick respect 14 october 2008 centrelink undertook unobjectionable calculation methodology opinion apply sufficient focus actual eligibility date task calculate amount represented 14 october 2008 ordinary income yearly basis expression used step 1 module e annual rate income according torolley expression mean calculation must use starting point actual income earned day perhaps pragmatically acceptably actual income earned relevant fortnight included date divided 14 either basis starting point actual income amount nil must follow ordinary income yearly basis 14 october 2008 nil therefore purpose module income reduction amount result employment consequence daily rate pension respect 14 october 2008 greater nil follows receiving age pension respect 14 october 2008 view inconsistency outcome decision deputy president jarvis inde waal 33 deputy president said mr de waal receiving dsp continuously start day 7 february 2006 13 october 2008 two successive 14 day instalment period dsp entitlement reduced nil result declared earnings mr de waal particular circumstance word instalment period could added final sentence emphasise entitlement reduced nilas result declared earningsin instalment period m mccormick circumstance differ mr de waal m mccormick pension instalment amount temporarily reduced nilas result declared earningsin previous instalment period pension ratein respect day relevant eligibility periodwas reduced nil could reduced nil employment income period trigger reduction size mr de waal excess income relevant period m mccormick critical difference two case conclusionms mccormick qualified es payment receiving age pension respect 14 october 2008 decision ssat dated 24 march 2009 affirmed certify 48 preceding paragraph true copy reason decision herein mr e frost membersigned sgd associatedate hearing 11 august 2009date decision 29 september 2009appearance applicant mr j larcombe centrelink legal servicesappearance respondent self represented

Commonwealth Bank of Australia v Munro and Anor [2010] NSWSC 1066 (17 September 2010).txt

commonwealth bank australia v munro anor 2010 nswsc 1066 17 september 2010 last updated 21 september 2010new south wale supreme courtcitation commonwealth bank australia v munro anor 2010 nswsc 1066jurisdiction file number 2009 293782hearing date 16 september 2010judgment date 17 september 2010parties commonwealth bank australia plaintiffterance ronald munro first defendantloretta laura buccollero second defendantjudgment schmidt jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel mr aspinall plaintiffms sk hill second defendantsolicitors henry davis york plaintiffclamenz corporate lawyer second defendantcatchwords procedure supreme court procedure new south wale notice motion order sought pursuant part 10 14 uniform procedure rule 2005 substituted informal service unsuccessful attempt locate first defendant first defendant admitted receipt statement claim order made rule 10 14 3 uniform procedure rule cost plaintiff bear second defendant cost motionlegislation cited australian security investment commission act 2001civil procedure act 2005contracts review act 1980trade practice act 1974 cth uniform civil procedure rule 2005category procedural rulingscases cited text cited decision 1 order underrule 10 14 3 statement claim taken served first defendant 25 april 2009 7 day claim served occupier oyster bay property 2 plaintiff bear second defendant cost motion judgment 5 supreme courtof new south walescommon law divisionschmidt jfriday 17 september 20102009 293782 commonwealth bank australia v munro anorjudgment1 honour motion filed september 2010 plaintiff seek order pursuant topart 10 14of theuniform civil procedure rules2005

V98_08919 [1998] RRTA 3197 (25 June 1998).txt

v98 08919 1998 rrta 3197 25 june 1998 refugee review tribunaldecision reason decisionrrt reference v98 08919country reference indonesiatribunal member k bolanddate decision 25 june 1998place melbournedecision 1 tribunal jurisdiction review decision refusing grant applicant protection visa catchword jurisdiction time limit review application decision reviewthis matter concern decision made delegate minister immigration multicultural affair themigration act 1958 act refuse grant applicant protection visa applicant applied department immigration multicultural affair department protection visa 27 may 1997 delegate decision made 3 june 1997 applicant notified letter dated 3 june 1997 sought review decision tribunal application lodged tribunal 15 january 1998 issuesthe issue whether application review lodged within prescribed period 28 day whether tribunal jurisdiction entertain determine issue necessary consider primary decision notification process application review lodgement process tribunal formed provisional view jurisdiction consider application received within prescribed time therefore wrote applicant 1 june 1998 inviting submission issue tribunal received response legislationthe primary decision notification processfrom 1 september 1994 provision dealing notification primary decision contained in 66of act r 2 16 migration regulation minister required notify applicant decision prescribed manner 66 1 prescribed manner includes sending notice decision last address given minister applicant 53 act r 2 16 1 section 53 requires visa applicant inform minister address intend live application dealt notify minister change address section 53 4 allows applicant give minister name address specified person migration agent may given notification applicant application refusal notification letter sent correct address within 7 day date taken received 7 day date r 5 03 notification decision refuse visa must include certain information reason refusal applicant right review review application must made 66 2 review application lodgement processthe tribunal jurisdiction arises valid application made 412 act review rrt reviewable decision 414 rrt reviewable decision defined include decision refuse grant protection visa 411 1 c far relevant 412 act provides application review rrtreviewable decision must given tribunal within period prescribed 412 1 b prescribed period commences day applicant notified decision end end 28 day r 4 31 1 2 b application review must lodged registry tribunal r 4 31 3 application sent tribunal post electronic facsimile transmission taken lodged received registry tribunal r 4 31 4 time limit imposed 412 1 b r 4 31 mandatory tribunal discretion entertain late application seecoung van nguyen v w gerkens rrt unreported fed ct aust ryan j 8 october 1996 andseci dawai alumita vonokula voravora v mima unreported fed ct aust moore j 3 feb 1997 effect legislation authoritiesthe effect provision letter notification decision refuse protection visa includes necessary information sent within 7 day date correct address 28 day period within review application must received tribunal commences 7th day date letter notification application received tribunal within prescribed period valid application tribunal jurisdiction entertain reason decisionhaving considered evidence available submission applicant come following conclusion letter advising applicant delegate decision dated 3 june 1997 included information legislation required sent registered mail applicant correct address 3 june 1997 applicant therefore taken received letter 10 june 1997 date letter notification plus 7 day accordingly 28 day period within review application required lodged ended 8 july 1997 date deemed notification plus 28 day application review received tribunal 15 january 1998 prescribed period expired conclusionas applicant properly notified decision refuse protection visa review application received tribunal within mandatory prescribed period application valid tribunal jurisdiction review delegate decision decisionthe tribunal jurisdiction review decision refusing grant applicant protection visa k boland 1 accordance withs 431of themigration act1958

Hill and Repatriation Commission [2008] AATA 12 (8 January 2008).txt

hill repatriation commission 2008 aata 12 8 january 2008 last updated 8 january 2008administrative appeal tribunaldecision reason decision 2008 aata 12administrative appeal tribunal n2006 561veteran affair division remaureen hillapplicantandrepatriation commissionrespondentdecisiontribunalmrs josephine kelly senior memberdr mec thorpe memberdate8 january 2008placesydneydecisionthe decision veteran review board dated 13 april 2006 set aside substituted therefor decision dr walker death war caused follows war widow pension payable mr hill sgd presiding membersenior member mr josephine kellycatchwordsveteran affair war widow pension whether war veteran death war caused kind death relevant statement principle two kind death found renal failure heart failure material pointing smoking habit war caused hypothesis raised smoking caused ischaemic heart disease contributed death hypothesis disproved beyond reasonable doubt held applicant husband death war caused reviewable decision set aside war widow pension payableveterans entitlement act 1986ss 8 120 120aand196bstatement principle concerning ischaemic heart disease 53 2003bull v repatriation commission 2001 fca 1832 2001 34 aar 326bushell v repatriation commission 1992 hca 47 1992 175 clr 408byrnes v repatriation commission 1993 hca 51 1993 177 clr 564doolette v repatriation commission 1990 21 ald 489east v repatriation commission 1987 fca 242 1987 16 fcr 517repatriation commission v hancock 2003 fca 711 2003 37 aar 383repatriation commission v deledio 1998 fca 391 1998 83 fcr 82repatriation commission v codd 2007 fca 877 2007 95 ald 619repatriation commission v law 1980 fca 92 1980 47 flr 57repatriation commission v town 2003 fca 1262 2003 38 aar 77reasons decision8 january 2008senior member mr josephine kellymember dr mec thorpeintroductionin 1955 mr maureen hill met dr john walker served royal australian air force world war ii patient many year 1987 moved 1993 married separated 1997 never divorced dr walker died 21 june 2003 mr hill seek review decision dr walker death war caused within meaning ofs 8of theveterans entitlement act 1986 act successful entitled receive war widow pension simple term argument put mr hill behalf dr walker developed heavy smoking habit result war service caused ischaemic heart disease ihd turn caused contributed death ihd inadequate supply blood heart muscle backgroundit disputed dr walker operational service period 9 october 1942 8 december 1945 death taken war caused pursuant tos 8 1 b act death veteran arose attributable eligible war service rendered veteran claim relating operational service rendered 1 june 1994 death war caused unless tribunal satisfied contrary beyond reasonable doubt see 120 1 120 3 and120aof act justice selway held inrepatriation commission v hancock 2003 37 aar 383 2003 fca 711 two precondition causation must dealt step one methodology set inrepatriation commission v deledio 1998 fca 391 1998 83 fcr 82 followed dispute case dr walker veteran died mr hill widow next pre condition identify balance probability kind death veteran suffered order ascertain whether sop statement principle applies multiple medical condition contribute particular death sense medical cause expedited death medical condition contributed death relevantly related service sufficient establish entitlement pension seehancockat 8 9 issuesat hearing apparent counsel party different view nature case put behalf mr hill statement fact contention filed behalf mr hill contended dr walker developed smoking habit result service satisfied factor 5 f statement principle sop ihd 53 2003 amended 9 2004 proceeded contend ihd caused materially contributed dr walker death noting repatriation commission contention renal insufficiency dementia appropriate kind death suffered veteran stated applicant make contention regard reserve right alter amend document statement led mr purcell appeared repatriation commission form view argument put mr hill would kind death ihd sop ihd sop satisfied however mr vincent appeared mr hill rely argument significant extent put case broadly term language ofs 8 1 b act also stated sofacs dr walker death arose attributable eligible war service case proceeded basis understood mr vincent argue oral submission relevant consider kind death 120a 4 relevant sop force therefore sop 8applies 120adoes apply tribunal describes death large seemed retreat subsequent written submission understand mr vincent oral submission two possible death use neutral language could find first heart failure second renal failure renal failure contributed heart failure contributed ihd either case sop force either death declaration made one made tribunal describes death large follow methodology set inbushellv repatriation commission 1992 hca 47 1992 175 clr 408andbyrnes v repatriation commission 1993 hca 51 1993 177 clr 564to determine whether reasonable hypothesis linking death service mr purcell relied justice selway discussion inhancock summarised argued mr vincent submission putting cart horse could look contribution death outside notion kind death understood argue mr hill succeed find ihd kind death view 120a 4 act make quite clear justice selway stated necessary consider kind death order determine whether sop applies relevant sop accept mr vincent submission extent proceed accordance withbushellandbyrne seehancockat 10 bull v repatriation commission 2001 fca 1832at 14 repatriation commission v town 2003 fca 1262 2003 38 aar 77 latter case dealing death claim relevant sop case ofeast v repatriation commission 1987 fca 242 1987 16 fcr 517 east also relevant concerned death claim sop regime came existence issue emerged party asked hearing address effect case ofrepatriation commission v codd 2007 fca 877 2007 95 ald 619 mr purcell argued thatcoddrequired case veteran death must found war caused disease therefore medical evidence heart failure condition disease cannot regarded contributing underlying cause veteran death within context act discussed gordon j incodd consider reasoning incoddhas consequence understand decision authority proposition kind death medical causation death including contributing underlying medical cause death opinion heart failure may kind death within meaning ofs 120aof act may renal failure kind death dr walker death certificate next cause death duration last illness following appears delirium secondary acute chronic renal failure end stage 1 year b heart failure 2 week ii progressive dementia 2 yearswe expert report oral evidence question caused dr walker death dr butler consultant physician major interest clinical cardiology professor rourke cardiologist following dispute dr walker developed acute focal necrotising glomerulonephritis disease kidney 1993 scarring apparent 1994 without active inflammation around time dr walker also developed hypertension consequence glomerulonephritis february 1996 renal function mildly impaired november 2000 moderate renal dysfunction renal function deteriorated markedly 2002 1999 dr walker small myocardial infarct coronary angiogram showed triple vessel disease necessitating coronary artery bypass surgery ihd surgery undertaken apparently good result management dr walker hypertension apparently difficult time dr walker suffered episode cardiac failure june 2002 associated chest infection deterioration renal function memory problem noted 2000 august 2002 dr walker referred geriatrician felt suffering alzheimer type dementia dr walker admitted hill private hospital 12 june 2003 breathing difficulty conflicting account presence absence chest pain association breathing difficulty found slow heart rate cardiac pacing considered briefly heart rate rose change medication professor rourke attributed dr walker heart failure time death glomerulonephritis caused hypertension renal failure maintained evidence ihd factor death professor rourke acknowledged dr walker ihd clinical onset september 1999 said symptom attributable coronary artery disease following successful coronary artery pas graft 1999 following successful surgery 1999 dr walker made complete recovery ihd suffer condition time death cardiac catheterisation report dated 14 october 1999 reported mild left ventricular dysfunction professor rourke considered coronary angiography prior surgery showed normal left ventricular contractility triple vessel artery disease severe degree dr butler agreed dr walker hypertension secondary renal disease control hypertension may inadequate likely effect previous myocardial infarct played contributing role heart failure reported echocardiogram prior pas surgery showed left ventricular function lower limit normal ejection fraction 45 50 per cent area hypokinesis antero lateral wall apex distal septum dr butler also noted relation june 2002 cardiac failure residual sign suggesting cardiac decompensation 8 july 2002 understood evidence considered 2002 cardiac failurecould attributable ihd professor rourke refer specifically echocardiogram report value 45 50 per cent ejection fraction constitute significant impairment left ventricular function within normal limit measurement made 1999 professor rourke drew distinction diastolic left ventricular dysfunction caused age hypertension worsened tachycardia process intercurrent disease opposed systolic left ventricular dysfunction subsequent left ventricular scarring coronary atherosclerosis reported three publication provided tribunal 1 2 3 diastolic left ventricular dysfunction described publication heart failure normal left ventricular ejection fraction systolic ventricular dysfunction heart failure impaired left ventricular ejection fraction subsequent ventricular scarring coronary atherosclerosisprofessor rourke argued ihd play integral part dr walker death absence symptom attributable coronary artery disease following dr walker successful bypass surgery 1999 normal troponin level time fatal illness almost excludes ihd cause chest pain around time death dr walker seek treatment ihd 1999 death professor rourke view dr walker heart failure diastolic ventricular failure attributable hypertension age renal failure heart failure due ventricular systolic failure evidence ischaemia inference evidence myocardial damage definition normal ventricular ejection fraction publication referred professor rourke indicate doppler echocardiography become primary tool assessment diastolic function ventricular filling pressure accepting method limitation dr butler commented unfortunately comparison echocardiographic study performed surgery indication measurement left ventricular function period following surgery 1999 dr walker death 2003 professor rourke accepted dr walker suffered ihd resulting myocardial infarction 1999 opinion dr walker completely recovered subsequent surgery impairment left ventricular function contribution cardiac failure dr butler accept proposition opinion likely myocardial damage contributed heart failure time dr walker death oral evidence dr butler said heart failure worsens renal failure impairs renal perfusion also said renal failure probably contributed heart failure dr walker would responded diuretic therapy professor rourke said severe renal failure primary cause death heart failure probably contributed death dr walker heart failure would still died matter hour day also stated heart failure independent renal failure later said make worse dr butler opinion likelihood order 10 20 per cent dr walker systolic ihd time death also said ischaemic event without chest pain also understood dr butler accept troponin level time death indicated dr walker suffered recent cardiac damage said conjecturing damage previously suffered result ihd could impaired dr walker cardiac function time death professor rourke also accepted pre existing damage could contributed heart failure said different saying dr walker ihd time death response question mr vincent professor rourke said likelihood ihd playing role 2003 le 10 per cent summary understood doctor accept dr walker died renal failure heart failure accepted heart failure consequence dr walker hypertension caused glomerulonephritis difference opinion extent ihd contributed heart failure understood mr purcell argue accepted professor rourke evidence connection cause death listed death certificate dr walker service therefore kind death starting point case also finishing point accept also accept mr purcell argument one kind death renal failure cardiac failure flowed renal failure evidence including professor rourke dr butler find two kind death heart failure kidney failure consider either dementia ihd kind death sop either kind death found reasonable hypothesis connecting mr byrne death service sop therefore proceed according principle outlined inbushellandbyrne section 120 3 act provides inter alia sufficient ground determining dr walker death war caused material u must raise reasonable hypothesis connecting injury disease death service rendered dr walker 3 applying subsection 1 2 respect incapacity person injury disease respect death person related service rendered person commission shall satisfied beyond reasonable doubt sufficient ground determining injury war caused injury defence caused injury b disease war caused disease defence caused disease c death war caused defence caused case may commission consideration whole material opinion material raise reasonable hypothesis connecting injury disease death circumstance particular service rendered person considering whether reasonable hypothesis following principle set majority inbushellapply concerned conflict fact opinion material u question material raise relevant causal hypothesis bushellat 413 414 415 ofbushellthe majority mason cj deane mchugh jj said material raise reasonable hypothesis within meaning ofs 120 3 material point fact fact raised fact support hypothesis assuming raised fact true determining whether hypothesis reasonable purpose ofs 120 3 decisive connection proved kind injury occurred particular circumstance veteran service decisive medical scientific opinion support hypothesis little support medical profession among scientist however hypothesis cannot reasonable contrary proved scientific fact known phenomenon nature commissioner government transport v adamcik 1961 hca 43 1961 106 clr 292at 303 obviously fanciful impossible incredible tenable remote tenuous east v repatriation commission 1987 fca 242 1987 16 fcr 517at 532 leaving aside possibility case must rare could said hypothesis based raised fact unreasonable put forward medical practitioner eminent relevant field knowledge conflict medical opinion insufficient rejection hypothesis unreasonable note also comment majority case 415 thats 120 3 require choice competing hypothesis determine whether one medical scientific opinion preferred another mean however performing function unders 120 3 commission cannot regard medical scientific material opposed material support veteran claim indeed commission bound regard opposing material purpose examining validity reasoning support claim connection incapacity death service veteran justice brennan also said inbushellat 430 would exceptional case would right forming view competing medical theory hold hypothesis connection favouring entitlement unreasonable hypothesis supported responsible medical practitioner speaking within ambit expertise inbyrnethe court said 570 case hypothesis may assume occurrence existence fact make hypothesis unreasonable b hypothesis unreasonable simply assumed sustained asevereinjury dived swimming pool townsville nothwithstanding material reveal extent injury ineastthe full federal court approved tribunal analysis reasonable hypothesis concluded 533 reasonable hypothesis requires possibility fanciful unreal consistent known fact hypothesis pointed fact even though proved upon balance probability inbull court consideredeastin detail said 331 however full court say hypothesis obviously fanciful impossible incredible tenable remote tenuous therefore necessarily reasonable material must point connecting hypothesis considerationfollowing summary material tribunal relating element hypothesis linking heart failure service first element dr walker developed heavy smoking habit result service continued smoke least 1999 dr walker enlistment medical paper record smoking habit 10 cigarette per day mr hill statement dated 1 september 2006 said john always heavy smoker used talk supplied carton cigarette per week airforce ran would given another carton given stress active war service providing serviceman cigarette form therapy mr hill also stated told smoked carton week many year return service said reduced smoking slightly married estimated went packet day gave completely heart bypass surgery thought early 1990s separated 1997 saw several time week visited home mr hill cross examined file note dr patel dated 11 october 1999 stated dr walker smoked 25 year meant would smoked since mid 1970s said definitely wrong knew right year also asked record dr johnson 1993 tobacco nil said dr walker hated admit weakness told doctor smoke also said lived 1987 smoked home night bought packet day said could smell cigarette clothes always seemed one hand heart operation difficulty breathing putting nebuliser live dr butler estimated dr walker tobacco consumption 30 50 pack year also expressed opinion requirement sop would met next element hypothesis link smoking ihd set earlier dr butler professor rourke accepted dr walker ihd 1999 mr vincent argued orthodox medical opinion smoking cause ihd refer sop support proposition given term ofs 196bwe accept existence sop ihd includes smoking factor relevant matter respect element hypothesis report dated 29 september 2006 professor rourke expressed opinion ihd related war service specifically cigarette smoking several base dr walker smoking prior entering raaf described non smoker 1993 former smoking 1999 blood pressure normal 1993 answer question mr purcell professor rourke said opinion dr walker ceased smoking 25 year bypass surgery smoking would risk factor 1999 however response question mr vincent professor rourke accepted dr walker smoked 6 pack year still smoking 1999 smoking played role ihd 1999 final element hypothesis ihd contributed dr walker death understand evidence dr butler professor rourke agreed evidence damage result ischaemia within two week dr walker death previous damage could contributed heart failure dr butler said 10 20 per cent likelihood systolic failure basis ihd professor rourke also said le 10 per cent probability ihd played role dr walker death evidence doctor likelihood contribution ihd dr walker death letter dated 7 september 2005 dr patel wrote opinion possible ischaemic heart disease contributed demise mr purcell relied discussion phrase attributable indoolette v repatriation commission 1990 21 ald 489 case ofcodd submit death veteran could war caused death hastened accelerated progress disease acceleration caused war caused condition consider quotation fromrepatriation commission v law 1980 fca 92 1980 47 flr 57at 68 also referred indoolette assistance case seems clear expression attributable case involves element causation cause need sole dominant cause sufficient show attributability cause one number cause provided contributing cause 53 view material u point relevantly one cause dr walker death ihd conclusionwe consider material u raise element hypothesis proposed mr vincent linking dr walker service death heart failure successful relation hypothesis unnecessary address alternative hypothesis linking renal failure ihd hypothesis therefore dr walker developed heavy smoking habit consequence service continued bypass surgery 1999 caused ihd turn cause death find hypothesis reasonable next question satisfied beyond reasonable doubt dr walker death war caused 120 1 satisfied beyond reasonable doubt element hypothesis raised material u disproved beyond reasonable doubt dr walker death attributable service decisionfor reason set aside reviewable decision substitute therefor decision dr walker death war caused follows war widow pension payable mr hill certify 58 preceding paragraph true copy reason decision herein senior member mr josephine kelly member dr mec thorpe signed steven mulipolaassociatedate hearing 26 june 2007final date submission 27 september 2007date decision 8 january 2008counsel applicant mr vincentsolicitor applicant dibbs abbott stillmancounsel respondent mr g purcellsolicitor respondent advocate department veteran affair 1 central arterial pressure arterial pressure pulse new view entering second century korotkov michael f rourke md james b seward mdmayo clin proc 2006 81 8 1057 1068 2 prolonged mechanical systole increased arterial wave reflection diastolic dysfunction weber j auer f rourke c punzengruber e kvas b eberheart 2006 92 1616 1622 3 mcdonald sblood flow arteriestheoretical experimental clinical principle fifth edition 2005wilmer w nichols phd facc michael f rourke md dsc facc fracp fesc

Construction, Forestry, Maritime, Mining and Energy Union [2018] FWCA 6415 (16 October 2018).txt

construction forestry maritime mining energy union 2018 fwca 6415 16 october 2018 last updated 23 october 2018 2018 fwca 6415fair work commissiondecisionfair work act 2009s 185 enterprise agreementconstruction forestry maritime mining energy union ag2018 4794 trustee site pacific unit trust site pacific group cfmeu collective agreement 2018building metal civil construction industriescommissioner leemelbourne 16 october 2018application approval trustee site pacific unit trust site pacific group cfmeu collective agreement 2018 1 application made approval enterprise agreement known thetrustee site pacific unit trust site pacific group cfmeu collective agreement 2018 agreement application made pursuant tos 185of thefair work act 2009 act made construction forestry maritime mining energy union agreement single enterprise agreement 2 satisfied requirement ofss 186 187and188as relevant application approval met 3 construction forestry maritime mining energy union bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 4 agreement approved accordance withs 54of act operate 23 october 2018 nominal expiry date agreement 31 december 2018 commissionerprinted authority commonwealth government printer ae500475pr701379